WP(C) 762/2007 BEFORE THE HON’BLE MR. JUSTICE AMITAVA ROY THE HON’BLE MR.JUSTICE B.D.AGARWAL JUDGEMENT AND ORDER (CAV) Agarwal,J/ This judgment will dispose of the writ appeal as well as the connected writ petitions. For convenience the parties will be addressed as per their standing in the writ appeal. 2. Writ appeal no. 483 of 2005 has been filed by the State of Assam assailing the judgment and order dated 29.3.2005 passed by a learned Single Jud ge of this court in W.P(C) No.7545 of 2004. By this impugned judgment the learne d Single Judge has held that the appellants, more particularly, the Director of Higher Education, should take necessary steps to protect the present status of t he writ petitioner Sri Kukil Kumar Bharali as directed in the order dated 9.9.2 002 passed in C.R.No.450 of 1997. The said order dated 9.9.2002 will be discusse d in this judgment at a later stage. 3. W.P(C)No.5057 of 2007 has been filed by the respondent No.1/ Sri Kukil Kumar Bharali, seeking a writ in the nature of mandamus to direct the Sta te-Respondents /appellant to pay current and arrear salary of the petitioner in the pay scale of UDA w.e.f. August, 2004. 4. W.P(C)No.762 of 2007 has been filed by the respondent No.4 Sri B ipin Ch. Deka praying for a writ in the nature of certiorari so as to set aside and quash the order dated 19.12.2006 passed by the Director of Higher Education, Assam. By this impugned order the Director of Higher Education (appellant No.2 ) upgraded one post of LDA to the rank of UDA and the said upgraded post has bee n made personal to the respondent No.1 Sri Kukil Kumar Bharali , thereby decli ning promotion of the petitioner as UDA. The writ petitioner is also seeking a w rit in the nature of mandamus and has also sought for a writ of mandamus to dir ect the aforesaid authority (Respondent No.2) to accord necessary approval to th e resolution No. 8 taken by the Governing Body of the Loknayak Omiya Kumar Das C ollege on 9.11.2004. By the said resolution the College Authority has requested the Govt. to approve the promotion of the petitioner/respondent No.4 as UDA. 5. We have heard the argument of Sri M Dutta, learned counsel for the appellant as well as Shri N Dutta, learned senior counsel appearing for the College Authority (Respondents No.2 and 3). The respondent Nos.1 and 4/writ pet itioners respectively were represented by Sri I Choudhury, learned counsel and S ri P Mahanta, Advocate. 6. To appreciate the rival claims of the writ petitioner vis-à-vis the justiceability of the impugned judgment of the learned Single Judge, it is n ecessary to have a glance over the facts leading to filing of cross writ petitio ns and appeal by the State of Assam. The summarized facts are as below: 6.1 The Loknayak Omiya Kumar Das College, respondent Nos.2 and 3 in the writ appeal, issued an advertisement for selection of non-sanctioned post of UDA (Accountant). After regular selection the respondent No.1 was appointed as Accountant-cum- UDA on 30.7.1997. The initial appointment was on fixed pay basis . However, from September, 1991 the respondent No.1 was allowed to draw salary i n the scale of pay at par with the post of UDA. In the year 1992 a regular vacan cy in the cadre of UDA arose and the Governing Body of the College adopted a res olution to regularize the services of the respondent No.1 as UDA w.e.f. 1.4.1992 . The said resolution was approved by the appellant No.2 on 29.9.1992. However, the appellant No.2 was quick enough to withdraw the approval vide order dated 1 5.10.1992 and this order was the beginning of litigation. The order dated 15.10. 1992 was challenged by respondent No.1 in Civil Rule No.3245 of 1993. The said petition was decided on 27.6.1994, whereby the order dated 15.10.1992 was set as ide and it was held that the petitioner/respondent No.1 shall be deemed to be du ly appointed UDA and he shall be entitled to all the benefits of a UDA from the earlier date of approval i.e. 29.9.92. Pursuant to the aforesaid judgment the Di rector of Higher Education approved the appointment of the respondent No.1 vide order dated 15.3.1996 in the post of UDA w.e.f. 23.2.1996. This order of appella nt No.2 was challenged by few LDAs of the College in the W.A.No.334 of 1995 and the appeal was disposed of on 4.7.1996, directing the Director of Higher Educati on to take a fresh decision upon hearing both parties. In the new order dated 1 8.10.1996 the appellant No.2 reversed his previous decision and allowed the Coll ege authority to promote respondent No.4 Sri Keshab Ch. Kalita to the post of UD A and also allowed the College Authority to absorb the respondent No.1, Sri K K Bharali as LDA in the resultant vacancy. This order of the appellant No.2 was ag ain challenged by the respondent No.1 in C.R.No.450 of 1997. This Civil Rule cam e to be decided on 9.9.2002 upholding the promotion of respondent No.4. At the same time the order dated 18.10.1996 allowing the College Authority to absorb th e respondent No.1 as LDA in the resultant vacancy was also not interfered with. However, the writ petitioner/respondent No.1 was allowed to continue in his pres ent status until such time his case for regularization is considered as per norm s and guidelines. After the aforesaid order dated 9.9.2002 of this court the app ellant No.2 passed another order dated 14.7.2003 canceling the approval of the p romotion of respondent No.1 as UDA vide order dated 15.3.1996. The aforesaid ord er dated 14.7.2003 was again challenged by respondent No.1 in W.P(C)No.5931/03 a nd this court directed to maintain ’status quo’ as an interim measure. In view o f the said interim order the respondent No.1 is still working in the College as Accountant-cum-UDA in a non-sanctioned post. But the college authority (responde nt Nos. 3 and 4) are not paying his salary since August, 2004 on the ground that his promotion to the rank of UDA was approved by the appellant and as such the Govt. should pay his salary. The order dated 9.9.2002 was not challenged by any authority. However, the writ petitioner (respondent No.1) himself filed W.P(C)No .7545 of 2004 seeking an appropriate order to the Govt. for regularization of hi s service as an Accountant-cum-UDA in the College and for payment of his salary . This writ petition was disposed of vide impugned judgment dated 29.3.2005 reit erating the order dated 9.9.2002. 6.2 In our considered opinion, the observations and directions given under judgment dated 27.6.1994 in Civil Rule No.1245 of 2003 , judgment da ted 9.9.2002 in C.R.No.450 of 1997 and judgment dated 29.3.2005 in W.P(C)No.7545 /04 would be relevant to decide the appeal. Hence, relevant observations given i n the aforesaid writ petitions are extracted below: Judgment dated 27.6.1994 in C.R.No.3245 of 1993: & & & &Be that as it may, I do not want to enter into this controversy to decide he present writ application. After all, the petitioner is duly qualified to hold the post of U.D.A. There was a regular selection and in that selection he toppe d the list has been rendering services for about 5 years before his regularizati on was sought for and in that view of the matter the approval for regularizatio n which was given by the Director, Higher Education, Assam was proper and reaso nable. There was not earthly reason as to why this approval which was given earl ier should not be withdrawn subsequently solely on the ground that approval that this resolution for regularization was passed by a Governing Body which was not in existence as it was dissolved from 28.1.92. For the purpose of approval, it is not necessary that the Governing Body should pass the resolution. xxxx xxxx xxxx The petitioner shall be deemed to be U.D.A. duly appointed and he shall be entit led to all the benefits of service as U.D.A. from the earlier date of approval g iven by the Director of Higher Education, Assam. The writ application accordingly allowed. Judgment dated 9.9.2002 in C.R.No.450 of 1997 & & &The finding of the learned Director in favour of the senior most Lower Divi ion Assistant, therefore, cannot be said to be vitiate by any perversity or erro r apparent on the face of record which would justify interference of this court under Article 226 of the Constitution. The impugned order dated 18.10.96 in so f ar as the post of Upper Division Assistant is, therefore, upheld . 6. Coming to the second part of the order of the Director dated 18.10.96 i. e. ordering for absorption of the writ petitioner against the anticipated vacanc y in the post of Lower Division Assistant, this Court finds that the petitioner was selected and appointed against the post of Accountant and not of a Lower Di vision Assistant. If the petitioner had been selected and appointed as an Accoun tant, may be against a non-sanctioned post and at a consolidated scale, the dire ctions issued for his regular absorption as a Lower Division Assistant would har dly have any justifiable basis. The aforesaid part of the order dated 18.10.96 i s, therefore, being interfered with. The same is accordingly, set aside and quas hed and it will not be open for the writ petitioner to continue in his present s tatus until such time that his case for regularization is due to be taken up in accordance with the prevailing norms and guidelines in force. 7. The writ petition stands allowed to the extent indicated above. Judgment dated 29.3.2005 in writ petition (C)No.7545 of 2004. 6. The rival submissions advanced on behalf of the parties have received th e due and anxious consideration of this court. The elaborate facts recited and t he arguments advanced make it abundantly clear that the core issue that has to b e decided in the present case is the purport and correct meaning and effect of t his Court’s direction dated 9.9.2002 passed in Civil Rule No.450/1997 by which the present status of the petitioner was protected. It would, therefore, be nec essary for this court to re-emphasise what this court had intended while issuin g the aforesaid directions keeping in mind that the order dated 9.9.2002 passed in Civil Rule No.450/1997 has attained finality in law as no appeal against the said order has been preferred. At the time when the Court had passed the order d ated No.9.9.2002, the petitioner, due to various force of circumstances, had wor ked as an upper division assistant for over a decade and had enjoyed the scale o f pay of U.D.A. since 1.9.1991. Having regard to the length of service rendered by the petitioner and the scale of pay enjoyed by him for over a decade, this Co urt, while rendering in decision in Civil Rule No.450/1997, had thought it appro priate to protect the existing status of the petitioner by which the Court had i ntended to protect the scale of pay enjoyed by the petitioner on the date when t he judgment was delivered i.e.9.9.2002. Having clarified the effect of the Court ’s order dated 9.9.2002 in so far as the protection afforded to this petitioner is concerned, this Court must now hold that it is really upto the respondents to work out in what manner the said directions are to be given full and complete e ffect particularly when the said directions had attained finality in law. The ju stification for the directions issued by this Court on 9.9.2002 would hardly be an appropriate subject matter of the present litigation. Rather, it would be the primary concern of the Court to ensure due implementation of the order passed. If the Governing Body of the College out of its limited resources cannot pay the scale pay to the petitioner, a fact which is to be verified by the Director of Higher Education, it was really for the Director of Higher Education to take necessary steps, even by creation of a post , to ensure that the directions of t his Court are fully and completely complied with. In this regard the contentions now advanced by the petitioner that the enrolment of students in the college ju stifies creation of a second post and that the second post to be created has to be earmarked against the Accounts Section are the matters that has not been answ ered specifically in the affidavit of the Director. The Director, in the affidav it filed, has virtually admitted that his actions in the matter were based on th e opinion of the Additional Advocate General of the State which has been noticed to be to the effect that the order of this Court dated 9.9.2002 in so far as th e protection afforded to the petitioner is concerned, need not be complied with. While it is not for the Court to comment on the opinions expressed by the Law O fficers of the State, there can be no restraint in the Court in clarifying its o rders and on insisting on due observance of the orders after the same are clarif ied. As the Director of Higher Educations appears to have been acted on a miscon ception on the advice/opinion of the Additional Advocate General of the State an d the matter having been clarified by the Court, this writ petition will now be closed by requiring the Director to do all that is necessary to give full and co mplete effect to the order dated 9.9.2002 passed by this Court in Civil Rule No. 450/1997 in so far as the protection of the present status of the petitioners is concerned. The Director will act without any delay in the matter and, in any case, ensure implementation of this Court’s order dated 9.9.2002 within a period of two months from the date of receipt of a certified copy of this order. Furth ermore, the Director passing such fresh orders as would be called for now, wil l also take into account the retrospective entitlement of the petitioner to arre ar salary in the scale pay, which this Court would understand to be a natural co ncomitant of its earlier directions dated 9.9.2002 passed in Civil Rule No.450/1 997. 7. The writ petition shall accordingly stands answered in terms of the abov e directions. 7. In our considered opinion, the instant writ appeal is basically against the Judgment dated 9.9.2002 passed in Civil Rule No. 450 of 1997. The i mpugned Judgment dated 29.3.2005 passed in WP(C) No.745 of 2004 is nothing but c larification of the Order dated 9.9.2002. After going through the impugned Judgm ent, it cannot be termed as an order of review as contended in the memo of appea l. We say so, because the learned Single Judge has not taken a different view th an what was taken in the earlier writ petition. The Judgment dated 9.9.2002, pas sed in Civil Rule No. 450 of 1997 was not challenged by the respondents. In the said Judgment the learned Single Judge had upheld the order dated 18.10.1996, p assed by the Director of Higher Education allowing the college authority to appo int the respondent No. 4 Sri Keshab Chandra Kalita as UDA and in the resultant v acancy the respondent No. 1 was allowed to be regularized as LDA. The order date d 18.10.1996 was basically upheld on the premise that notwithstanding assurance/ undertaking in the advertisement of the college authority that after being appo inted as an Accountant the incumbent would be absorbed as an UDA in future vacan cy cannot confer any legal right to the writ petitioner for his exclusive consid eration to the post of UDA. This finding of the learned Single Judge was also no t challenged by the petitioner Sri Kukil Kumar Bharali. In this way, the aforesa id finding of the learned Single Judge has attained finality. 8. While dismissing Civil Rule No. 450 of 1997, the learned Single Judge, however, observed that it would be open for the writ petitioner (responde nt No. 1) to continue in his present status , until such time his case for regu larization is considered. It has already been noted earlier that the same petit ioner had also filed another writ petition being WP(C) No. 5931 of 2003, inter a lia, praying for a direction to the State respondents to regularize his service s of the petitioner. The said writ petition was admitted on 5.8.2003, returnable within 8 (eight) weeks and till the returnable date, a learned Single Judge of this Court provided that status quo in respect of the petitioner shall be mainta ined. The writ petition was finally dismissed on 2.1.2006 on the statement of th e counsel for the petitioner that the writ petition had become infructuous. In o ur considered opinion, the direction to maintain present status in the Judgmen t dated 9.9.2002 and the interim order of status quo , passed in WP(C) No. 5931 of 2003 are synonymous in nature and cannot be construed as either raising the status of the writ petitioner or demoting him. Strangely, the said orders were n ot challenged by the State of Assam nor sought for any clarification of the said direction. Nearly, after two years the respondent No. 1 filed WP(C) No.7545 of 2004, reiterating his claim for regularization in service, and also praying for payment of arrear salary by the State. Only during the course of hearing of WP(C ) No. 7545 of 2004 the Standing Counsel for the Education Department, submitted that the word present status must be understood to allow the writ petitioner t o continue in a non-sanctioned post and the salary of such employee has to be b orne by the College Authority. 9. While passing the impugned Judgment dated 29.3.2005, the learned Single Judge has held that since the writ petitioner was working as an Accounta nt in the rank of UDA for over a decade and enjoyed the scale of UDA since 1.9.1 991, it would mean that the order of maintaining present status was intended t o protect the scale of pay. The learned Single Judge further observed that if th e college authority cannot pay to the petitioner in the regular scale the Educat ion Department should take necessary steps, even by creation of a post, to ensur e that the order dated 9.9.2002 is fully complied with. The direction to create a post was given on the premise that enrollment of students in the college just ified creation of a second post. Except this clarification the learned Single Ju dge did not deviate from the earlier stand taken in the Judgment dated 9.9.2002 that the writ petitioner had no legal right to exclusively claim the existing po st of UDA. 10. There is no dispute that the respondent No. 1 was allowed to dra w the pay scale of an UDA w.e.f. 1.9.1991. At the same time, it is also an admit ted position that the respondent No. 1 is still working against a non-sanctioned post. On the other hand, the respondent No. 4 was working against a regular pos t of LDA and as such, no fault can be found in his promotion against the sanctio ned post of UDA. 11. On perusal of the record of WP(C) No. 7545 of 2004, it is notice d that the writ petitioner (respondent No. 1) had pleaded in Para-4 that the con cerned authority can allot another post of UDA in a college where the enrollment is more than one thousand. It is true that the writ petitioner did not give the specific figure of students in the college, but at the same time, the State res pondents were also conspicuously silent to project a clear picture before the Co urt about the strength of students in the College. In our considered opinion, si nce two persons were fighting for a single post of UDA for more than a decade th e appellants, more particularly, the Education Department was expected to put fo rth a clear scenario of facts before this Court to do substantial justice. In ab sence of a clear cut stand by the State respondents and in view of non-challenge to the order dated 9.9.2002, the learned Single Judge had just found out a way to implement the earlier order. 12. Although it is the specific case of the appellants that the lear ned Single Judge has gone beyond the pleadings in directing the appellants to cr eate a post of UDA, the learned counsel for the appellants did not categorically deny during arguments that the student ratio of the college do not justify sanc tion of a second post of UDA in the college. This apart, not only the Governing Body of the college had also approved regularization of service of respondent No . 1 as an UDA way back in the year 1992 and the resolution was once approved by the Director of Higher Education vide order dated 29.9.1992. Apparently, approva l of regularization of respondent No. 1 in the post of UDA was not taken on the basis of any judicial order. Had there been no challenge to the said order, the respondent No. 1 would have been appointed as an UDA nearly two decades ago. It may also be mentioned here that when the approval order was withdrawn by the app ellant No. 2 through his order dated 15.10.1992, the said order was challenged i n Civil Rule No. 3245 of 1993 and in the said writ petition this Court had obser ved that the petitioner, i.e. Sri Kukil Kumar Bharali shall be deemed to be duly appointed as UDA and he shall be entitled to all the benefits of the post of UD A. This order was no doubt challenged in Writ Appeal 334 of 1995 and with the co nsent of both the parties the matter was remanded back to the appellant for fres h decision. Amidst these various judicial orders and also keeping in mind that o nce the appellants had also approved the appointment of respondent No. 1 as UDA in the year 1992 and also other facts mentioned in this Judgment, we are of the view that the impugned order dated 29.3.2005 does not call for any interference. In other words, while approving the direction of the learned Single Judge for c reation of a second post of UDA in LOKD College, Dhekiajuli, the State responde nts are further directed to pay the arrear salary of the respondent No. 1 from A ugust 2004. 13. In the result, Writ Appeal No. 483 of 2005 stands dismissed and Writ Petition(C) No. 5057 of 2007 and Writ Petition (C) No. 762 of 2007 stands d isposed of in terms of the directions given in the previous paragraphs.