WP(C) 2077/2007 BEFORE HON’BLE THE MR. JUSTICE AMITAVA ROY The petitioner seeks the intervention of this Court to quash the resolutions dated 20/12/2005 and 30/7/2006 adopted by the Governing Body of the Hojai College, Hojai, Nagaon (hereafter referred to as the College) for regular izing the services of the respondents 5, 6 and 7 against sanctioned posts lying vacant in the department of Economics, English and Mathematics respectively as w ell as the Government approval therefor as conveyed by its letter No. AHE.238/20 06/207 dated 5/5/2007. A writ of mandamus and/or direction has been sought for i nstead to regularize her services against any of the posts in the aforementioned departments. This Court while issuing notice of notion on 4/5/2007 had maintain ed status quo with regard to the process of recommendation and approval of the r egularization of the above mentioned respondents in terms of the resolutions imp ugned. 2. I have heard Mr. D Mazumdar, learned Counsel for the petitioner, Mr. U.K. Goswami, learned Standing Counsel, Education Department for the State respondents, Mr. G. Uzir, learned Counsel for the respondents 3 and 4 (the Colle ge and the Governing Body), Mr. S.N. Sharma, Sr. Advocate for the respondents 5 and 6 and Mr. N. Choudhury, Advocate for the respondent No. 7. 3. The fascicule of facts as the preface for the combative argument s generated thereby has been provided by the parties in their pleadings. The pet itioner has introduced herself to be a Post Graduate in Chemistry (Inorganic) ha ving secured First Class from Gauhati University. She claims to have U.G.C. Norm s. She responded to an advertisement published by the College in the local daily , the Assam Tribune for appointment amongst others as a Lecturer in Chemistry wi th specialization Inorganic (Quantum). After subjecting herself to the selection process that followed by order dated 1/9/2000 she was appointed as a Lecturer i n Chemistry on adhoc basis on a consolidated pay of Rs. 1250/- P.M. initially fo r a period of three months. She accordingly joined on 2/9/2000. The petitioner h as disclosed that through the same process as many as six lecturers including he r were appointed in various departments, their names and other relevant particul ars being as follows. Name Department Date of joining Smti. Shilpi Mitra (Petitioner) Chemistry 02/09/2000 Shri Nirmal Debnath Statistics 02/09/2000 Shri Sudeep Purkayastha Management 02/09/2000 Shri Utpal Phukan (Respondent No. 5) Botany 05/09/2000 Smt. Sharmistha Paul Zoology 29/09/2000 Shri Rathin Sarma Physics 30/10/2000 4. All these appointments were against non-sanctioned posts necessi tated by the extent of enrolment in the respective departments. The petitioner h as claimed that though her initial term of appointment had been for three months , she was allowed to continue thereafter and accordingly she is rendering her se rvices as such since then till date. 5. Referring to an office memorandum dated 17/7/2004 issued by the Government of Assam in the Education Department, the petitioner has pleaded that it having provided for withdrawal of sanctioned posts lying vacant in other dep artments to accommodate teachers of Deficit Grants-in-aid Colleges of the State serving against non-sanctioned posts in order of seniority, the Director of High er Education, Assam by his letter dated 20/7/2004 requested all such institution s to take necessary follow up steps in accordance therewith. The petitioner has contended that amongst the six lecturers appointed as above, she is senior to th e respondents 5, 6 and Ms. Sharmistha Paul and in terms of the aforementioned of fice memorandum she is thus entitled to a preference in the matter of adjustment /accommodation as contemplated therein. According to her, the Governing Body of the College on 20/12/2005 adopted a resolution whereby though vacant sanctioned posts in the department of Economics and English were identified to be diverted to regularize respondents 5 and 6 who are junior to her, no such post was ascert ained for her. While asserting that at all relevant times there was no vacant sa nctioned post in the Department of Assamese in the College, the petitioner being aggrieved, submitted a representation on 16/7/2006 before the Departmental Mini ster for redressal of her grievance. Subsequent thereto on 30/7/2002, the Govern ing Body of the College took a resolution whereby respondents 5 and 6 were recom mended for regularization against vacancies in the departments of Economics and English and a post from the Department of Assamese was resolved to be withdrawn to accommodate the petitioner. Realizing that the diversion of the post from the Assamese department would not be feasible and that the resolution dated 30/7/20 06 vis-à-vis her was only a formality with no realistic prospect, the petitioner submitted representations before the various authorities of the department but to no avail. She being apprised of the fact that steps were afoot to accord appr oval to the resolution dated 30/7/2006 for accommodating respondents 5 and 6 whi ch according to her is in contravention of the letter and spirit of the office m emorandum dated 17/7/2004, she has sought to invoke the extra ordinary jurisdict ion of this Court for succour. 6. The petitioner has also questioned the validity of the appointme nt of respondent No. 7 as not being preceded by any selection process in the yea r 2001 contending that, therefore, her case thus could not have been considered in terms of the office memorandum dated 17/7/2004 as done. However, as the Depar tmental Authorities, according to her, were inclined even to regularize her, the petitioner has also sought for the annulment of the impugned resolutions vis-à- vis the said respondent as well. 7. The Director of Higher Education, Assam, respondent No. 2 in his affidavit has averred that there is no vacancy in the Department of Chemistry i n the College to regularize the services of the petitioner in the said departmen t. However, the College also did not submit any proposal for the said purpose by way of conversion of a vacant sanctioned post from another Department. 8. The respondents 3 and 4, Shri Kumudeswar Sarma, Vice President o f the College in their affidavit while affirming that the petitioner is senior i n service to respondents 5, 6 and Ms. Sharmistha Paul have asserted that the Gov ernment in its meeting held on 20/12/2005 resolved to regularize the services of the petitioner and other candidates as mentioned therein by adjustment/conversi on of posts from other departments in terms of the office memorandum dated 17/7/ 2004. This was followed by another resolution dated 30/7/2006 for regularization of the petitioner by way of adjustment against a vacant post in the Department of Assamese available due to the retirement of one Dr. (Mrs.) N. Mahanta, Head o f the Department of Assamese, by deciding to divert the same to the department o f Chemistry. The answering respondents, however, disclosed that in a subsequent meeting held on 25/12/2006, the Governing Body vide its resolution No. 2 in the said meeting approved the contract appointment of the respondent No. 7. It was f urther stated that by resolution dated 26/4/2007 thereafter the Governing Body o f the College permitted the respondent No. 7 to render services on temporary arr angement. 9. In their counters which are identical the respondents 5 and 6 wh ile claiming that they too had been appointed as lecturers in Botany and Physics respectively through the same process by which the petitioner had been inducted , have pleaded that the seniority comprehended in the office memorandum dated 17 /7/2004 for regularization of lecturers serving against non-sanctioned posts den oted seniority in the respective departments and not based on length of service thus repudiating the petitioner’s preferential claim for regularization on the b asis of service seniority. The respondents have contended that her case having a lso been approved for the said purpose by the resolutions dated 20/10/2005 and 3 0/7/2006, the recommendations in terms thereof are in conformity with the office memorandum dated 17/7/2004, and therefore, the challenge made in the instant pr oceeding is obviously flippant and misconceived. The answering respondents claim ed that the Government has already approved the proposal for regularization of t heir services in terms of the resolutions of the Governing Body of the College. 10. The College in its additional affidavit filed on 2/5/2008 throug h the same deponent referred to the resolution dated 30/7/2006 whereby it was de cided to convert one post in the Department of Mathematics lying vacant due to r etirement of one Shri B.C. Saha, Head of Department of Mathematics, to the Depar tment of Zoology to accommodate Ms. Sarmistha Paul, a lecturer therein serving a gainst a non-sanctioned post. In relation to the resolution dated 20/12/2005 it was alleged that though thereby amongst others it was resolved to regularize the services of respondent No. 7 against a substantive post in the Department of Ma thematics against the retirement vacancy of Shri B.C. Saha, Head of Department, no discussion to that effect was made as the said respondent was not entitled to be considered in terms of the office memorandum dated 17/7/2004. The deponent w hile asserting that he was present in the said meeting as a teacher representati ve also maintained that in the proceeding book of the Governing Body of the Coll ege handed over by the earlier Principal, the resolution of the said meeting was missing for which a show cause noticed dated 13/10/2007 has been issued against him with the charge of deliberate tampering and destruction thereof. While admi tting that there has been a strong resentment against conversion of posts from d epartments of Bengali, Assamese, Economics, History and the respective Heads the reof, the College asserted that the post of Lecturer in the Department of Mathem atics falling vacant due to the retirement of one Mr. A.D. Majumdar was requeste d by the Head of the said Department to be filled up by a candidate with special ization in Applied Mathematics. By this affidavit, the College sought to convey that Mrs. Sharmistha Paul having in the meantime left the institution, the vacan t post of lecturer in the Mathematics Department earmarked for her was available for regularization of the services of the petitioner as per the office memorand um dated 17/7/2004. 11. This affidavit was replied to by the respondent No. 7 endorsing the resolution No. 3(XIV) contained in the minutes of the meeting dated 20/12/20 05 whereby inter alia her services were recommended to be regularized. While con tending that the sudden volte face by the College vis-à-vis the issue of her reg ularization is unfair, malafide and discriminatory, the said respondent has insi sted that the resolution dated 20/12/2005 as a whole had been forwarded to the D irector of Higher Education, Assam, under the joint signatures of the President of the Governing Body of the College as well as the earlier Principal and had be en acted upon for others. While categorically denying the averment that no discu ssion in the meeting dated 20/12/2005 had taken place on the issue of the regula rization of her services and that the same is tampered, this respondent has refe rred to a letter dated 21/9/2006 of the Head of Department of Mathematics reques ting the Principal of the College against conversion of any post from his Depart ment in view of shortage of staff and the rising enrolment of students. 12. By way of further elaboration of its stand, the College through the same deponent in its additional affidavit filed on 20/6/2008 pleaded that in the meeting dated 20/12/2005, there was no discussion or resolution for adjustm ent of the services of the respondent No. 5, 6 as well as one Monoj Swami and th at a decision to that effect was taken only in the resolution dated 30/7/2006. T he deponent further avowed that the proposal for the respondent No. 7 had been f orwarded by the earlier Principal of the College on his own initiative for which he has been asked to show cause vide notice dated 13/10/2007. According to the College, the letter dated 31/9/2006 to the Head of the Department of Mathematics had not been received at the time when the charge had been handed over by the e arlier Principal and Secretary. A letter dated 3/6/2008 of the Principal-in-Char ge and the Secretary of the College intimating the Director of Higher Education, Assam, about the falsity and non-authenticity of the proposal vis-à-vis the res pondent No. 7 based on the resolution dated 20/12/2005 was also referred to. 13. In her affidavit in reply the petitioner has averred that on 11/ 6/2008, the Governing Body of the College has already held an interview for fill ing up the vacant post of Lecturer in the Department of Assamese and, therefore, the resolution dated 30/7/2006 purportedly seeking to regularize her services a gainst the said post is for all intents and purposes nonest on facts. Through he r additional affidavit, she has brought on record, the letter No. AHE./238/2006/ 207 dated 5/5/2007 of the Additional Secretary to the Government of Assam, Educa tion (H) Department, conveying the approval of the Government to the regularizat ion of the services of respondents 5, 6 and 7 and one Monoj Kr. Swami. In its fu rther additional affidavit filed on 23/9/2008, the College has contended that it s records do not contain the order dated 5/5/2007 conveying the Government appro val for regularization of the services of the respondents 5 and 6. 14. In the backdrop of the emulous pleadings, Mr. Mazumdar has argue d that the petitioner being admittedly senior in service than the private respon dents, she in terms of the office memorandum dated 17/7/2004 is entitled to a pr ecedence over them in the matter of regularization and, therefore, the impugned resolutions which seek to extend primacy to their claims by overlooking hers are visibly illegal, arbitrary, unfair and discriminatory and are liable to be set aside being adjudged as such. The learned Counsel has maintained that an appropr iate direction therefore ought to be issued to the respondents to undertake the exercise afresh as per the above office memorandum and take an appropriate decis ion on the issue of regularization of the petitioner in terms of her seniority i n service. 15. Mr. Goswami has contended that as the College did not forward an y proposal for the regularization of the services of the petitioner vide the off ice memorandum involved, the State respondents cannot be held to be at fault in any view of the matter. He however affirmed that by the letter dated 5/5/2007 of the Additional Secretary to the Government of Assam, Education (H) Department, the Government had accorded approval to the regularization of the services of re spondents 5, 6 and 7 and one Shri Monoj Kr. Swami but in face of the interim int erdiction of this Court, the Director of Higher Education, Assam, has abstained from taking the follow up steps as regards the respondents 5, 6 and 7. The learn ed State Counsel has produced the official records in reinforcement of his submi ssions. 16. Mr. Uzir appearing for the College while reiterating that the pr oceeding book of the Governing Body does not contain the minutes of its meeting said to be held on 20/12/2005 has affirmed the resolution dated 30/7/2006 to be in observance of the procedure enjoined by the office memorandum dated 17/7/2004 . He also endorsed the petitioner’s claim to be senior in service to respondents 5, 6 and 7. Abiding by the pleaded stand to the College, the learned Counsel ha s urged that the resolution dated 20/12/2005 vis-à-vis the Respondent No. 7 was the yield of the personal initiative of the earlier Principal who held the offic e till 30/12/2006. The proceeding book of the Governing Body of the College as w ell as the letters dated 10/4/2007, 8/8/2008 and 30/8/2008 addressed to the Dire ctor of Higher Education, Assam, on its behalf has been produced for the perusal of this Court. 17. Mr. Sharma has assiduously urged that as seniority envisaged in the office memorandum dated 17/7/2004, is to be construed of a lecturer Departme nt wise, the petitioner’s claim for preference on the basis of overall service s eniority is misconceived. According to him, if length of service is to be applie d, then the marginal difference in the dates of joining of the candidates concer ned would be a decisive factor thus rendering the time permitted to report for d uty nugatory. Contending that the stand of the College qua the resolution dated 20/12/2005 being inexplicably inconsistent and vacillating is untrustworthy, the learned Sr. Counsel has urged that the Director of Higher Education, Assam, hav ing categorically classified that the petitioner’s name had not been forwarded f or regularization, the respondents 5, 6 and 7 ought not to be made to suffer and that on this count alone the petition is liable to be dismissed. Mr. Sharma has contended that the letter dated 5/5/2007 conveying the Government’s approval fo r regularization of the services of respondents 5, 6 and 7 belies the version of the College disowning the resolution dated 20/12/2005. The endeavour to shift t he blame on the earlier Principal of the institution only demonstrates an attemp t to cover up the default on the part of the College to expedite the regularizat ion of the services of respondents 5, 6 and 7 presumably on extraneous and colla teral considerations, he urged. 18. Mr. Choudhury while emphasizing on authenticity of the resolutio n dated 20/12/2005 has argued that it would be apparent therefrom that the regul arization of the services of the respondent No. 7 had not been under the office memorandum dated 17/7/2004 but against a post in her Department in usual course and, therefore, she has been unnecessarily dragged into the controversy. The lea rned Counsel by referring to the letter dated 21/9/2006 of the Head of Departmen t of Mathematics has argued that in any view of the matter, no post is sparable from the Department for adjustment of a lecturer of any other Department by appl ying the aforementioned office memorandum and, therefore, the criteria of senior ity debated upon has no relevance vis-à-vis his respondent. 19. The competing contentions have been duly examined. As the stand off appertains to the issue of regularization of services as contemplated by the office memorandum dated 17/7/2004, the criteria of seniority ordained as one of the guiding norms, therefore, deserves appropriate construction. Clause 4(a) of the said memorandum which embodies the procedure/modalities for adjustment of s ervices of College Teachers serving against non-sanctioned posts pre-eminently c ommends for extraction. a) Vacant posts in a particular department lying in a grant-in-aid college of A ssam may be allotted in order of seniority to accommodate teachers in the same c ollege who is working in some other department without a valid sanctioned post, provided that such teacher was appointed by the respective GB observing due proc edure i.e. advertisement selection and having UGC norms required and if the need for such a post is justified by enrolment in the Department of the College etc. provided further the post is not be considered essential for the department aga inst which it was originally sanctioned. 20. The allotment of a vacant post in a particular Department has be en mandated to be caused in order of seniority to accommodate teachers in the sa me College who are working in some other department without a valid sanctioned p ost. The other factors, which stipulate to condition the exercise being inessent ial for the present purpose, are not being dilated upon. The step, as the office memorandum reveals, is an initiative to accommodate teachers serving without sa nctioned posts in deficit grants in aid Colleges to tide over the shortfall in p osts to adjust them otherwise due to the inability of the State Government to sa nction new ones. The well articulated move on the part of the Government is, the refore, to advance the cause of the teachers of deficit grants in aid Colleges o f the State serving since long against non-sanctioned posts but otherwise should ering the responsibilities of a regular lecturer appointed against valid sanctio ned posts. Logically, therefore, the benefit of the measure conceptualized by th e office memorandum has to be accorded by applying an uniform yardstick shorn of fortuitous variables. Aside the clear and unambiguous terminology used in the e xtract as above, in the opinion of this Court, length of service in the College is indubitably the most rational and realistic norm to be applied to identify th e teachers for allotment of vacant sanctioned posts in other departments for adj ustment. Any other benchmark would precipitate anomalous consequences thus frust rating the very underlying objective of the wholesome scheme adopted by the Gove rnment. The plea of departmental seniority being incompatible with the framework of the guidelines engrafted in the aforementioned office memorandum does not co mmend for acceptance. 21. Incidentally the college has accepted the petitioner to be senio r to the respondents 5, 6 and 7 as is evident from the resolution dated 30/7/200 6. This resolution discloses further the comprehension of the College about serv ice seniority to be the criteria applicable for allotment of vacant posts from o ther departments. Though the proceeding book of the Governing Body of the colleg e as produced before this Court for the period 20/6/2002 to 20/12/2005, most ins crutably does not contain the text of the minutes of the meeting held on that da te (20/12/2005) that such a proceeding had been held on that date in which the i ssue of regularization of the services amongst others of the petitioner, respond ents 5, 6,7 and one Shri Monoj Kr. Swami was deliberated upon, is evident intera lia from the official records produced on behalf of the State respondents. Incid entally though the posts from the department of Economics and English were resol ved to be diverted to adjust the respondents 5 and 6, no such post was located f or the petitioner. The respondent No. 7 was proposed to be regularized against a vacant post in her own department of Mathematics that had fallen vacant due to retirement of Shri B.C. Saha. Apart from the fact that the imputation of tamperi ng of this resolution so far as it relates to the respondent No. 7 is subject to enquiry and proof, so far as the petitioner is concerned it is of no avail to h er viewed in the context of the office memorandum dated 17/7/2004 as no vacant s anctioned post from any other department has thereby been earmarked for her. The letter dated 10/4/2007 signed by the Principal Secretary of the College and add ressed to the Director of Higher Education, Assam, as available from the State r ecords convey in unequivocal terms the transmission of the resolutions dated 20/ 12/2005 and 30/7/2006 for regularization of the services of the following five L ecturers. Sl. No. Name Department 1 Shri Bidyapati Singha Manipuri 2. Shri Monoj Kr. Swami Hindi 3. Shri Utpal Phukan (respondent No. 5) Botany 4. Shri RathinSarma (respondent No. 6) Physics 5. Miss Suchismita Debnath (respondent No. 7) Mathematics 22. The said letter discloses a resolution of the Governing Body ado pted on 25/12/2006 deciding to advertise the vacant post of Lecturer in the Depa rtment of Assamese. This incidentally is the resolution whereby, as pleaded by t he College, the Resolution No. 2(c) dated 30/7/2006 whereby the petitioner was p roposed to be adjusted against the advertised post in the Assamese Department wa s recalled. The State records reveal that the Director of Higher Education, Assa m, had forwarded to the Government by his letter No. DHE/EST/58/2006/50/5487 dat ed 5/4/2007 a list of 90 incumbents proposed to be regularized by the respective Colleges as