WP(C) 1103/2009 BEFORE HON’BLE MR JUSTICE B. K. SHARMA Heard Mr. U.K. Nair, learned counsel for the petitioners as well as Mr. M.K. Cho udhury assisted by Mr. M. Dutta, learned Standing Counsel, Education Department. 2. The matter relates to adjustment of teachers of deficit grants in aid in colleges (presently provincialised) in terms of the Office Memorandum dated 17. 07.2004. By the said Office Memorandum, various provisions have been made for ad justment of the teachers working against non-sanctioned posts. In this proceedin g, we are concerned with clause-4(C) of the Office Memorandum. For a proper appr eciation of the matter, the relevant clauses of the Office Memorandum are quoted below :- 4. The State Govt. is not in a position to sanction any new post fo r the Colleges to accommodate the aforementioned college teachers serving withou t sanctioned posts. In view of the same and in pursuance to the approval of the cabinet dated 09.06.04. The following procedure/modalities are hereby prescribed for adjustment of service of College teachers working without sanction posts as mentioned above : a) Vacant posts in a particular deptt. Lying in a grants-in-aid College of Assam may be allotted in order of seniority to accommodate teachers in the same College who is working in some other deptt. Without a valid sanctioned post prov ided that such teachers was appointed by respective G.B. observing due procedure , i.e. advertisement, selection and having UGC norms required and if the need fo r such a post is justified by enrolment in that deptt. Of the College etc. provi ded further, the post is not be considered essential for the deptt. Against whic h it was originally sanctioned. b) In case of any future vacancies of sanctioned posts. In a particular dep tt. College teachers working without valid sanctioned post but appointed as per procedure stated at (a) above are to be adjusted in preference to fresh teachers . c) To accommodate the teachers working without a sanctioned post in a colle ge where there is no vacant sanctioned posts or where the number of vacant sanct ion posts is less than the number of teachers proposed to be adjusted in conform ity with this O.M. the Director, Higher Education is authorized to withdrew vaca nt posts from a deficit grants-in-aids colleges where student enrolment or other norms do not justify to the total number of sanctioned posts in that Colleges. The Director, Higher Education will prepare a list of such vacant / withdrawn po sts from different colleges giving necessary details. Thereafter he will conside r the cases of all those teachers working without sanctioned posts and appointed as per procedure as mentioned at para 4(a) above in order of their seniority of services for adjustment and send such proposal to Govt. for approval, However, if a vacant sanctioned post is available in a particular college for adjustment such post against any eligible teachers working without a sanctioned post in tha t College, no additional allotment of post will be made to such colleges. d) The teachers working under non sanctioned post who will be adjusted agai nst vacant sanctioned posts will be required to qualify in NET/SLET within 2 (tw o) years if they do not posses the same already otherwise their services would b e discontinued and till than they will be entitled to basic pay only from the da te of approval by Director of Higher Education, Assam. 3. When the OM was allegedly not implemented in its true perspective, the w rit petition being WP(C) No. 7305/2004 was filed by number of petitioners. The w rit petition was disposed of by judgment and order dated 07.04.2005. In paragrap h 9 of the judgment, it was observed thus :- 9. In view of the above, the prayer made in this application for implementation of the Clause 4(c) of the aforesaid office memorandum dated 17.07.2004 stands a llowed and the case of the petitioners shall be considered along with other simi larly situated persons strictly in accordance with the parameters, guidelines an d procedure laid down in the aforesaid office memorandum dated 17.07.04 which al so speaks of maintaining seniority in service. Since the Director of Higher Educ ation, Assam has already identified 81 number of posts and his further such exer cise may lead to adjustment of all the Lecturers in future, it is hereby provide d that whatever necessary follow up action is required to be carried out in the matter in terms of the office memorandum dated 17.07.04 and in terms of this ord er, shall be so taken as expeditiously as possible. It is expected that the Dire ctor, Higher Education shall not kept the matter unnecessarily pending and shall take action promptly. It is made clear that merely because this order has been passed on the basis of the writ petition filed by the petitioners, they will not get any preference over their seniors who were not party to this proceeding and that adjustment shall be made strictly in accordance with the service seniority of the teachers and other parameters laid down in the said memorandum . 4. When the aforesaid clause 4(c) of the office memorandum was held to be r edundant in view of Section 3(c) of the Assam College Employees (Provincialisati on) Act, 2005 in a writ proceeding, the writ appeal being WA No. 219/2006 was fi led. The writ appeal was allowed holding that the aforesaid provisions of the Ac t is not in conflict with the aforesaid clause 4(c) of the office memorandum. A ccordingly, it was held that preparation of the list for adjustment of non-sanct ioned post of teachers against sanctioned post would be justified. In paragraph -17 of the judgment, it was observed as follows :- 17. This now lead us to the grievance of the writ petitioners that the list was not prepared maintaining the seniority of the college teachers. The office memo randum envisages preparation of the list for adjustment of non-sanctioned post t eachers against sanctioned posts maintaining their service seniority. Since the learned Single Judge has not answered that question, it is hereby provided that the authority before passing the final order towards adjustment of the non-sanct ioned post teachers shall take into account the grievance of the writ petitione rs that, although they are seniors to many of the teachers who are sought to be adjusted against sanctioned posts are being deprived of such adjustments. After examining the case of two writ petitioners, if need be, after hearing of the par ties involved, the authority may pass appropriate order. 5. In these two writ petitions, the grievance of the petitioners is that th e departmental authority is contemplating to prepare a list towards implementati on of clause 4(c) of the office memorandum without taking into account the senio rity position of different incumbents working in deficit grants-in-aid colleges (provincialised). It is the grievance of the petitioners that while preparing th e list, their seniority may be ignored. 6. Mr. Nair, learned counsel for the petitioners submits that similar direc tion as in paragraph 17 of the judgment and order dated 09.02.09 passed in WA No . 219/2006 is required to be issued entitling the petitioners to have their say in the matter. Mr. Choudhury, learned Standing Counsel, Education Department, su bmits that the petitioners need not be unnecessarily apprehensive and that the d epartmental authority would definitely prepare the list strictly in accordance w ith the guidelines contained in the aforesaid OM dated 17.07.04. 7. It has been brought to my notice in the writ proceedings which had given raise to WA No.219/2006, the present petitioners were party. However, they were not party to the writ appeal. In paragraph 17 of the judgment quoted above, it has been provided that the authority before passing the final order towards adju stment of the non-sanctioned post teachers shall take into account the grievance of the two writ petitioners that their seniority positions has been ignored. 8. If the present petitioners were party to the writ proceeding which had g iven raise to the writ appeal and even otherwise also it will be appropriate for the authority to take into account the grievance of the petitioners that the li st which is sought to be drawn, may not be drawn without taking into account the seniority position of different incumbents working in the non-sanctioned post a nd falling under Clause 4(c). 9. Considering the matter in its entirety, it is hereby provided that the d irections as contained in paragraph 17 of the aforesaid judgment in writ appeal No. 219/2006 shall also govern the case of the petitioners. It is also provided that the respondents before publishing the final list, may publish a provisional list indicating the necessary particulars of the teachers and inviting objectio ns from the teachers working against non-sanctioned posts to have their say in t he matter and after taking into account, the objections, if filed, the authority may draw the final list towards adjustment of non-sanctioned teachers. The enti re exercise may be carried out as expeditiously as possible, preferably within t hree months of receipt of copy of this judgment and order. 10. With the above directions, the writ petitions are disposed of. There sha ll be no order as to costs.