WP(C) 1157/2007 BEFORE HON’BLE THE MR. JUSTICE AMITAVA ROY The writ jurisdiction of this Court has been resorted to for ann ulling the order dated 16/8/2006 of the Commissioner and Secretary to the Govern ment of Assam, Education Department(s) Department, rejecting the claim of the pe titioners for bringing them under the deficit system of grants in aid and the co nsequential service benefits. 2. I have heard Mr. M.U. Mahmud, learned Counsel for the petitioner s and Mr. Thomas, learned Standing Counsel, Education Department for the officia l respondents. 3. The facts constituting the background of the lingering dispute a re unavoidable. The petitioners claim to have been appointed in different posts teaching as well as non-teaching in several junior colleges of the State between 1989 to 1997 and are rendering their services since then till date in return of a consolidated amount as monthly remuneration. The Government enacted the Assam Junior College (Provincialisation) Act, 1996 (hereafter referred to as the Act) for provincialising the services of the teaching and non-teaching staff of 48 J unior Colleges of the State. As inspite of the legislation, the benefits of prov incialisation were not extended to those intended thereunder till 1997, the Assa m Junior College Teachers Association instituted Civil Rule 922/1997 before this Court claiming provincialisation of 1099 teaching and non teaching staff of the said Junior Colleges. By judgment and order dated 27/2/1998, this Court dispose d of the said writ petition with the following operative directions. In view of the above, I direct the respondents/authority to take necessary step s to provincialise the services of the teachers/staff as per provisions of the A ct after due enquiry and frame Rules thereunder without further delay. This shal l be done within a period of six months from the date of receipt of this judgmen t. 4. It was held that the State respondents ought to have provinciali sed the services of the teachers/staff of the Junior Colleges as per Section 7 o f the Act, if necessary after enquiry. 5. The Government of Assam, however, enacted thereafter the Assam J unior College (Provincialisation) Repealing Act, 1998 and by notification dated 2/1/1999 issued by the Secretary to the Government of Assam, Education Departmen t, the decision of the Governor of Assam to take over the 48 Junior Colleges und er the deficit grants in aid scheme w.e.f. 26/3/1996 was notified. Subsequent th ereto by communication dated 13/4/1999, the Deputy Secretary to the Government o f Assam, Education Department intimated the Secretary, Assam Junior College Teac hers Association that to start with one post of Junior Lecturer would be provide d to the Colleges per subject and that too with the concurrence of the Finance D epartment of the State. As a result only 822 posts of teaching and non-teaching staff out of total 1099 were sought to be brought under the deficit system of gr ants in aid. 6. The remaining 277 members of the teaching and non-teaching staff being aggrieved formed a new association nomenclatured Assam Junior College Sec ond Post Teachers’ and Library Assistants’ Association and instituted WP(C) 5246 /2000 praying for a direction to the Government to extend the same benefit to th em. The petitioners have alleged that inspite of the aforementioned orders of th is Court, 12 persons who were appointed between 1997 to 2000 were sought to be b rought under the deficit system of grants in aid most arbitrarily by excluding o ther deserving persons like the petitioners who had been appointed prior to them . According to the petitioners, these 12 persons were not amongst the persons re presented in CR 922/1997 and were sought to be favoured on extraneous considerat ions by the official respondents. Being aggrieved, the petitioners, therefore, i nstituted WP(C) 10526/03 challenging induction of the aforementioned 12 persons in the deficit grants in aid who were impleaded as respondents 5 to 16. By order dated 19/5/2005, this petition was disposed of with a direction inter alia to c onsider the case of the petitioners as to whether they as well should be extende d the same benefit like their counter parts in other Junior Colleges. The cases of the respondents 5 to 16 were also directed to be processed simultaneously. 7. Though thereafter an application for review of the said order wa s filed on behalf of the State respondents, the same having been registered as R eview Application No. 111/2005 it was eventually withdrawn on 14/6/2006. The imp ugned order was thereafter passed rejecting the petitioners’ claim. 8. Alleging that the said order was in deliberate non-compliance of the order dated 19/5/2005 passed in WP(C) 1065/03, the petitioners initiated a Contempt Proceeding being COP(C) 496/06 which was rejected on 15/2/2007 however leaving the petitioner’s at liberty to challenge the order dated 16/8/2006 on me rits in an appropriate proceeding. The order as such has been assailed in the in stant petition. 9. The respondent No. 3, Director of Secondary Education, Assam, in his affidavit while admitting the prefatory facts leading to the order dated 19 /5/2005 passed in WP(C) 10526/03 has asserted that pursuant to the order dated 4 /12/2000 passed in WP(C) 5246/2000, the Government initiated the exercise for id entifying the 277 persons i.e. the petitioners in the said writ petition as per the list submitted by the President of the petitioner association and at the fir st instance brought 227 posts under the grants in aid system vide Government let ter dated 31/3/2001 subject to the condition that the posts would be personal to the incumbents concerned and once they vacate the posts, the same would stand a bolished automatically. As regards the remaining posts, the Director of Secondar y Education, Assam, submitted to the Government a list of 38 persons and later t hat of 12 persons after due verification. 10. Though the entitlement of these 12 persons was questioned by the petitioners in WP(C) 10526/03, this Court while disposing of the same by order dated 19/5/2005 declined to interfere with the Government decision to extend the benefit to the private respondents but also referred the cases of the petitione r to the Government for an appropriate decision. The answering respondent endors ed the impugned order as valid having been passed on a due consideration of all relevant aspects. 11. The Joint Secretary in the Finance (EC-III) Department in his af fidavit has averred that his department had initially concurred to the inclusion of 822 posts of the 48 Junior Colleges under the deficit system of grants in ai d as per the Cabinet decision and thereafter in compliance of the order of this Court added another 277 posts thereto. 12. Mr. Mahmud has emphatically urged that it being apparent from th e letter dated 25/2/2003 of the Director of Secondary Education, Assam, (Annexur e 9 to the writ petition) forwarded to the Commissioner and Secretary to the Gov ernment of Assam, Education Department that the names and particulars of the pet itioners were furnished in the list of 50 members of the teaching and non-teachi ng staff of the Junior Colleges identified to be brought under the deficit syste m of grants in aid, the impugned order rejecting their claim is palpably illegal , arbitrary and malafide and is thus liable to interfered with. The learned Coun sel argued that this list of 50 persons being unequivocal to the effect that the petitioners were appointed much before the respondent No. 5 to 16 in WP(C) 1052 6/03 who thus could by no means have been represented in WP(C) 5246/2000, the de cision to deprive the petitioners of their legally acquired right to be brought under the deficit system of grant in aid is patently discriminatory, unfair and unjust. The State respondents having failed to comply with the orders of this Co urt in letter and spirit without any justification whatsoever a writ of mandamus ought to be issued to redress the grievances of the petitioners, he urged. 13. As against this Mr. Thomas submitted that the inclusion of respo ndent No. 5 to 16 of WP(C) 5246/2000 under the deficit system of grants in aid h aving been upheld by this Court in its order dated 19/5/2005 passed in WP(C) 105 26/2003 and as the 1099 posts ear marked for the purpose in terms of the extant policy has been exhausted, the petitioners claim is misconceived. As for the pre sent the Government does not contemplate to bring additional posts in the Junior Colleges of the State under the deficit system of grants in aid, having regard to the background of the lis, the petitioner’s claim is unsustainable in law and , therefore, the impugned order is valid, he urged. 14. I have extended my thoughtful consideration to the rival content ions and the pleadings in support thereof. That the initial claim of the Assam J unior Colleges Teachers Association, the petitioner in CR 922/97 was for provinc ialising in all 1099 posts of the Junior Colleges to accommodate the teaching an d the non-teaching staff thereof is a matter of record. At the initial phase 822 posts out thereof were brought under the deficit system of grants in aid leavin g a balance of 277. Following the order dated 4/12/2000 of this Court in CR 5246 /2007 instituted by a new Association being the Assam Junior College Second Post Teachers’ and Library Assistants’ Association espousing the cause of the incumb ents of the left out posts as the first step 227 posts were brought under the de ficit system of grants in aid. It was thereafter that the Director of Secondary Education, Assam, submitted a list of 38 persons. The petitioners noticeably hav e no reservation against them. According to the State respondents, the Director of Secondary Education, Assam, after due verification recommended the cases of 1 2 more persons namely respondents 5 to 16 in WP(C) 10526/2003 for extending the said benefit. This Court while responding to the challenge made by the petitione rs thereto, made the following determination in its order dated 19/5/2005. In the facts and circumstances narrated above, since the Government has, by way of policy, decided to extend the aforesaid benefit to the private Respondent No s. 5 to 16, the said decision warrants no interference by this Court. At the sam e time, it is considered imperative to place on record that the case of the writ petitioners who were once selected and recommended cannot be just ignored. Sinc e the Government had once considered their case and decided to proceed according ly, it would not be in aid of justice to obliterate them altogether from being g iven the same benefit. Hence, this petition is disposed of with direction to the Respondents to consider the case of the writ petitioners and take a decision im mediately as to whether they should be given the same benefit like their counter parts in other junior colleges and such a decision should be taken within a peri od of one months from today and orders be passed accordingly. Needless to say, t he case of the private Respondent Nos. 5 to 16 should also be processed simultan eously and order be passed accordingly. No costs. 15. It is apparent from the above extract that this Court did not in terfere with the decision of the State respondents to bring the respondents 5 to 16 under the deficit system of grants in aid and, therefore, the petitioners’ c hallenge thereto was negated. The petition thus was disposed of with a direction to the State respondents to consider the case of the petitioners as to whether they could be given the same benefit like their counterpart in other Junior Col leges and such a decision should be taken within a period of one month from toda y and orders be passed accordingly. This Court also directed that the case of th e private respondents No. 5 to 16 be processed simultaneously and orders be pass ed accordingly. 16. While passing this order, this Court necessarily was aware of th e fact that with the recommendation of respondents 5 to 16 as directed, all 1099 posts would stand exhausted. The direction to consider the cases of the petitio ners thus was on the premise that the same would be against additional posts to be brought under the deficit system of grants in aid, if deemed necessary, exped ient and warranted by the State respondents. The tone and tenor of the order doe s not admit of any proposition that the respondents 5 to 16 could permissibly be substituted by the petitioners to be recommended against the 1099 posts. Incide ntally this order has remained unchallenged by the petitioners. Though the State respondents have endeavoured to have it reviewed, the pursuit was eventually ab andoned. This order thus has attained finality. 17. A plain reading of the impugned order demonstrates that the peti tioners’ cases have been rejected in the touchstone of 1099 posts after accommod ating respondents 5 to 16 of WP(C) 10526/2003 in terms of the order of this Cour t. In the above background, a fresh challenge to the adjustment of the said resp ondents or their entitlements therefor cannot be entertained more particularly a s the petitioners have allowed the order dated 19/5/2005 of this Court in WP(C) 10526/2003 to remain un-assailed from their end though fully aware that in case the posts held by the respondents 5 to 16 are brought under the deficit system o f grants in aid, all the 1099 posts identified for provincialisation would be fi lled up thereby. The list of the teaching and the non-teaching staff prepared by the Director of Secondary Education, Assam, (Annexure 10 to the writ petition) includes the names and particulars of the petitioners wherefrom their assertion of appointments between 1989 to 1997 is prima facie vindicated. The names and pa rticulars of some of the aforementioned private respondents as appearing in the list furnished by the Director of Secondary Education, Assam (Annexure 12 to the writ petition) disclose that they had been appointed between 1998 to 2000 i.e. after the petitioners. 18. This Court while declining to interfere with the selection of th e respondents 5 to 16 in WP(C) 10526/03 for bringing them under the deficit syst em of grants in aid had observed that as the Government had once considered the cases of the petitioners it would not be in the aid of justice to obliterate the m altogether from being given the same benefits. This direction to consider the case of the petitioners, however, cannot be construed to be independent of the o rder dated 4/12/2000 passed in WP(C) 5246/2000 directing the extension of the be nefit of being brought under the deficit system of grants in aid as accorded to the other 822 persons out of the 1099 incumbents then in service in the 48 Junio r Colleges of the State. Though the petitioners have relied on the list furnishe d by the Director of Secondary Education, Assam (Annexure 10 to the writ petitio n) to emphasise that they have been appointed between 1989 to 1997, the material s available on record do not conclusively demonstrate that they had been represe nted by the Assam Junior College Second Post Teachers’ and Library Assistants’ A ssociation in WP(C) 5642/2000. Moreover at this distant point of time, none of t he teaching or non-teaching staff already brought under the deficit system of gr ants in aid is liable to be displaced to accommodate the petitioners. The only c onceivable alternative appears to be visualization of additional posts for regul arization of the left out incumbents of the existing Junior Colleges of the Stat e who though have been rendering services have not yet been brought under the de ficit system of grants in aid. While recording this observation, this Court is n ot oblivious of the fact that the discretion and decision in the matter of inclu sion of such posts under the deficit system of grants in aid is with the Executi ve and that no mandamus as such ought to be issued compelling it to do so. The a bove notwithstanding, perceiving that many such serving teaching and non-teachin g staff of the Junior Colleges are awaiting provincialisation of their services, it would be rationale, realistic and befitting for a State as a model employer to adopt a flexible, considerate and amelioratory outlook in the matter so much so that the petitioners as well as other similarly situated persons if deserving otherwise be meted out the same treatment as already accorded to their counter parts. This indeed, to reiterate, had been the underlying objective of this Cour t’s order in WP(C) 10526/2003. 19. For the reasons stated hereinabove, the impugned order, however, is left un-interfered. As the petitioners wait in expectation, the State respon dents would take a decision on the issue as indicated hereinabove without undue delay and in no case later than six months herefrom. If the respondents decide t o include additional posts in the Junior Colleges of the State under the deficit system of grants in aid, the petitioners, needless to say, if their dates of ap pointment so permit would be entitled to due preference on the basis thereof in the process. The petition stands disposed in the above terms. No costs.