WA 35/2009 BEFORE HON’BLE MR. JUSTICE RANJAN GOGOI HON’BLE MR. JUSTICE A.C.UPADHYAY P R E S E N T THE HON’BLE MR. JUSTICE RANJAN GOGOI THE HON’BLE MR. JUSTICE A.C. UPADHYAY For the appellant : Shri A.K. Goswami, Sr. Advocae, Mr. N. Pathak, Mr. D. Sarma, Mrs. K. Goswami, Advocates (n W.A. No.34 and 35 of 2009) For the Respondents : Mr. N. Dutta, Sr. Advocate, Mr. N. Das, Mr. B. Talukdar, Ms. A. Dutta, Advocates (in W.A. No.34 and 35 of 2009) Mr. I. Ahmed, Mr. S. Das, Mr. I. Hussain, Advocates for Respondent No. 6 in W.A. No.34 of 2009 Mr. A.S. Choudhury, Sr. Advocate, Mr. J. Ahmed, Mr. A.M. Khan, Advocates for Respondent Nos.6 and 7 in W.A. No.35 of 2009. Dates of hearing : 17.07.2009; 21.07.2009 and 8.9.2009 Date of Judgment & : 16.11.2009 Order JUDGMENT AND ORDER (CAV) (A.C. Upadhyay, J.) These two appeals have been preferred against a common judgment and order passed by the learned Single Judge in W.P.(C) No.641 of 2008 (Hazarat Husnuzzaman &Ors. Vs.- State of Assam and others) and W.P.(C) No.3909 of 2008 (M d. Shahjan Ali Vs. State of Assam and others), whereby the learned Single Judge quashed and set aside the appointment order of the appellant and directed the re spondent College Authority to advertise the post of Lecturer in Arabic and to ma ke appointment therein by following the necessary Rules and the U.G.C. Guideline s holding the field for appointment to the post of lecturer in a deficit college . 2. Both the writ appeals carry common questions of law structured o n almost identical factual premises. Therefore, these appeals have been taken up together for analogous hearing and disposal. 3. The relevant facts which will be required to be noticed for adju dication of the two writ appeals may briefly be stated as follows :- The BH College at Howly was a deficit college, subsequen tly provincialised under the provisions of the Assam College Employees Provincia lisation Act, 2005. For the deficit colleges, sanctioned posts were allocated by the State Government and the salaries and allowances against such posts was by way of grants-in-aid to the College. However, it is an acknowledged fact that th e posts sanctioned in deficit colleges were in-adequate compelling such Colleges to make recruitments against non-sanctioned posts, the expenditure in respect o f which posts is to be borne by the College from its own funds. Following the af oresaid practice, an advertisement dated 21.11.2003 was issued by the B.H. Colle ge, Howly for appointment in a non-sanctioned post of Lecturer in the Arabic Dep artment. Pursuant to the said advertisement, the appellant as well as the Respon dent No.6 in Writ Appeal No.34 of 2009 and others applied for the post in questi on. A selection committee was constituted to hold a selection for the post in qu estion. Accordingly, on the basis of the selection held, a select list dated 12. 12.2003 was prepared wherein the name of the writ appellant appeared at Serial N o.2, whereas the Respondent No.6 in W.A. No.34 of 2009 (petitioner in W.P.(C) No .3909/2008) was placed at Serial No.1. The Governing Body of the College in its meeting held on 29.12.2003 recommended appointment of the writ appellant in the non-sanctioned post of Lecturer in Arabic. Accordingly, appointment letter dated 3.2.2004 was issued to the writ appellant. On the basis of the aforesaid appoin tment order the Writ Appellant joined the College on 19.7.2004 and has been work ing continuously in the non-sanctioned post. By a Resolution of the Governing Bo dy dated 24.1.2008 his name was recommended for regularisation against a vacant sanctioned post of Lecturer in Arabic, which vacancy had occurred due to superan nuation of the Head of the Department of Arabic in the College. It may be recall ed at this stage, that the service rendered by a large number of Lecturers again st non-sanctioned posts in deficit colleges for long years had engaged the atten tion of the Government and pursuant to certain Court orders, details of which ne ed not be noticed, an Office Memorandum dated 17.7.2004 was issued, inter alia, providing for regularization of Lecturers working in non-sanctioned posts agains t vacancies occurring in sanctioned posts on death or retirement. Such regularis ation was to be on the basis of the seniority of the concerned incumbents in the non-sanctioned posts provided the initial entry of the incumbent against the no n-sanctioned post was on the basis of selection. It is on the basis of the afore said Office Memorandum dated 17.7.2004 that the Governing Body of the College by Resolution dated 24.1.2008 had recommended the name of the writ appellant for r egularization against the vacancy occurring in the sanctioned post in the Arabic Department of the College. 4. At this stage, Writ Petition (C) No.641 of 2008 (corresponding t o Writ Appeal No.35 of 2009) was instituted by the two petitioners therein conte nding that the vacancy in the sanctioned post in the Arabic Department that had occurred due to superannuation of the concerned incumbent should be advertised. The aforesaid two petitioners, it may be noticed, were not candidates in the sel ection held for filling up the non-sanctioned post in which post the petitioner was appointed on 3.2.2004. 5. Another Writ Petition i.e. W.P.(C) No.3909/2008 (corresponding to Writ Appeal No.34 of 2009) was instituted by Respondent No.6 contending that as he w as placed in Serial No.1 of the select list prepared for the non-sanctioned post in Arabic Department, the appointment of the writ appellant against the said po st was arbitrary and illegal inasmuch as the writ appellant was placed at Serial No.2 of the select list. 6. The learned Single Judge hearing both the writ petitions took th e view that as the writ petitioner in W.P.(C) No.3909/2008 (Respondent No.6 in W .A. No.34/2009) was better placed in merit and there were no explanations forthc oming from the Governing Body of the College why the better claim of the writ pe titioner was overlooked, it would be appropriate to interfere with the appointme nt of the writ appellant in the non-sanctioned post made as far back as on 3.2.2 004. The consequence of the aforesaid interference by the learned Single Judge, inter alia, brought to naught the recommendation of the Governing Body dated 24. 1.2008 for regularization of the writ appellant against the sanctioned post that had become available. The learned Single Judge, however, on ground of delay in approaching the Court, refused to pass any order for appointment of the writ pet itioner in W.P.(C) No.3909/2008 against the non-sanctioned post in which the wri t appellant was appointed and, instead, the learned Single Judge directed that t he vacancy in the sanctioned post in the Arabic Department should be advertised. The aforesaid direction of the learned Single Judge, it may be noticed, took ap propriate care of the prayers made in W.P.(C) No.641/2008. Consequently, both th e writ petitions were allowed to the extent noticed above. Aggrieved by the afor esaid order of the learned Single Judge dated 22.12.2008. the present appeals ha ve been filed. 7. We have heard Mr. AK Goswami, learned senior counsel assisted by Mrs. K. Goswami, learned counsel appearing for the appellant in both cases. Mr. AS Choudhury, Sr. Advocate assisted by Mr. J. Ahmed, learned counsel appearing for the Respondent No. 6 in W.A. No.34 of 2009 as well as for Respondent Nos. 6 and 7 in W.A. No.35 of 2009 and Mr. N. Dutta, learned Senior Advocate assisted b y Ms. A. Dutta, learned counsel appearing for Respondent Nos. 3, 4 and 5 and Mr. MR Pathak, learned Standing Counsel, Education Department in both the writ appe als have also been heard. 8. Shri AK Goswami, learned counsel for the writ appellant has submitted that W.P.(C) No.3909/2008 filed by the Respondent No.6 in W.A. No.34/09 sought t o raise the question of validity of the initial appointment of the writ appellan t in a non-sanctioned post made as far back as on 3.2.2004. The writ petition w as inordinately delayed and no explanation has been forthcoming for the delay. A dditionally, Shri Goswami has submitted that the said delay also is indicative o f the fact that the petitioner therein was not interested in accepting the non-s anctioned post and only when the prospect of regularization of the incumbent wor king in the non-sanctioned post against a sanctioned post had materialized, the writ petitioner had woken up and sought to ventilate his grievance with regard t o the initial appointment. According to Shri Goswami, the said inaction on the p art of the writ petitioner in W.P.(C) No.3909/2009 will have the effect of a for feiture of his rights under the law and disentitle him to any benefit in exercis e of the discretionary jurisdiction of the Court under Article 226. Arguing furt her, Shri Goswami, leaned counsel, with particular reference to the issues arisi ng in the second writ petition i.e. W.P.(C) No.641 of 2008, has submitted that u nder the Office Memorandum dated 17.7.2004 certain rights have accrued to the wr it appellant by virtue of the long years of service rendered in a non-sanctioned post and the Office Memorandum having contemplated regularization of such an in cumbent without any advertisement of the sanctioned vacancy, the issues raised i n the Writ Petition (C) No.641 of 2008 are without any merit or substance. In th is regard, Shri Goswami has further pointed out to a Government order dated 12.1 0.2004 prohibiting any further appointment in non-sanctioned posts on and from t he said date. According to Shri Goswami, the aforesaid order dated 12.10.2004 wa s passed to give full effect to the Office Memorandum dated 17.7.2004 i.e. for r egularization of incumbents holding non-sanctioned posts. Shri Goswami has furth er submitted that as a matter of fact all holders of non-sanctioned posts appoin ted prior to 12.10.2004, have been regularized on the basis of the Office Memora ndum dated 17.7.2004 though on a plain reading, the same would suggest that it w as intended to apply to holders of non-sanctioned posts with a minimum of five y ears of service as on the date of the said memorandum. 9. Shri N. Dutta, learned senior counsel appearing for the Governin g Body of the College had argued that the basis of the decision of the Governing Body to appoint the writ appellant against the non-sanctioned vacancy, though h e was placed at Serial No.2 of the merit list, is not disclosed by the records. However, according to Shri Dutta, the said decision could have been actuated by several good reasons which are deducible from whatever is available on record. T he salary in the non-sanctioned post was a paltry amount of Rs.1000/- and, ther efore, the Governing Body could very well have taken into account that the writ appellant who was a local person would be more suitable for the job on the salar y offered than the writ petitioner in W.P.(C) No.3909/2008 who was a resident of the far away place i.e. Bongaigaon. According to Shri Dutta, the preference of the local candidate could very well have been on the ground that the local candi date on the paltry salary of Rs.1000/- per month could devote himself to the dut ies in a better way than the petitioner in W.P.(C) No.3909/2008. 10. Shri AS Choudhury, learned counsel for both sets of the responde nts in the two appeals under consideration, however, contended that apart from t he question of delay and latches in instituting W.P.(C) No.3909/2008, a question of great significance arises in the two appeals. A reading of the Office Memora ndum dated 17.7.2004, Shri Choudhury has submitted, indicates that the same was issued to cover the cases of about 300 lecturers holding non-sanctioned posts fo r periods between 5 to 14 years. Shri Choudhury has submitted that the Office Me morandum, therefore, ex-facie discloses a requirement of minimum period of servi ce of 5 years in a non-sanctioned post on the date of the said memorandum which the writ appellant does not possess. Shri Choudhury has further submitted that w ith the coming into force of the Assam College Employees Provincialisation Act, 2005, the mode of regularization contemplated by the Office Memorandum dated 17. 7.2004 has to be understood to have come to an end and it is only the manner pro vided by the Provincialisation Act, 2005 which will govern the field. In such ci rcumstances, the Governing Body of the College could not have recommended the wr it appellant for regularization against the available sanctioned post in the Ara bic Department. 11. The arguments advanced by Shri AS Choudhury, learned counsel for the respondents in both the appeals having raised questions touching upon the c ore of the validity of the recommendation for regularization made in favour of t he writ petitioner, the aforesaid issue may be taken up in the first instance an d depending on the conclusion that may be reached, the other question arising in the appeals i.e. delay and latches may be answered, if so required. 12. To appreciate the arguments advanced by Shri Choudhury, learned senior counsel for the respondents, the relevant provisions of the Office Memora ndum dated 17.7.2004 are reproduced herein below :- 1. There are more than 300 College teachers found to be serving in diffe rent degree College (deficit-grants-in-aid College), of Assam since 1989 serving for 5 to 14 years without any valid sanctioned posts here in after referred to as non-sanctioned post. These teachers have been serving in Colleges in consolid ated pay allowed by the respective college authorities from their own fund. Thes e teachers were appointed by the respective Governing Body of the College on the need basis as per UGC guidelines. The Govt. have also accorded concurrence to t he subject against which they were appointed. These teachers have also been perf orming similar responsibilities like those teachers who have been working agains t sanctioned posts in the College. 2. The Government could not sanction any additional post to the deficit grants-in-aid colleges since 1992. 52 Nos. of Colleges were brought under defici t system of Grants-in-aid by the Govt. since 1992. But the Govt. have not sancti oned any additional post of lecturers since then over and above originally alloc ated sanctioned post. As a result, the College authorities appointed lecturers w ithout valid sanctioned posts and have to bear the additional financial burden. a) Vacant posts in a particular deptt. lying in a grant-sin-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 teacher was appointed by respective G.B. observing due procedure i.e. advertisement selection and having UGC norms required and if the need for s uch a post is justified by enrolment in that deptt. of the College etc. Provided further, the post is not being 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 . & & & & & & & & &.. . 13. On the basis of the issues highlighted by Shri AS Choudhury, learned counsel for the respondents, this Court by order dated 22.7.2009 required the le arned Standing Counsel of the Department to obtain necessary instructions and an swer the following two queries :- (i) Whether the Office Memorandum dated 17.07.04 would apply to the holders of non-sanctioned posts who have completed 5 to 14 years of service in view of t he Cabinet Memorandum dated 25.3.2004; (ii) The effect of the Provincialisation Act of 2005 particularly, Section 6, thereof, on the Office Memorandum, dated 17.7.2004 with regard to the holders o f non-sanctioned posts in aided colleges subsequently covered by the Provinciali sation Act of 2005. 14. In response, a set of written instructions was received by the learned Standing Counsel of the Department from the Principal Secretary to the Governme nt of Assam, Higher Education Department. The said instructions which are dated 28.7.2009 may best be extracted hereinbelow :- Sub : WA No.34 and 35 of 2009 Md. Safiqul Islam -Vs- State of Assam and others. Please refer to your letter dated 24th July, 2009 on the above mentioned subject . The answer to the questions of the Hon’ble High Court are as follows :- 1. The last sentence of paragraph 4 of the Office Memorandum dated 17.7.200 4 reads - In view of the same and in pursuance of the approval of the Cabinet dated 9.6. 2004, the following procedure/modalities are hereby prescribed for adjustment of service of College teachers working without sanction posts as mentioned above. In view of this provision our understanding is that the procedure for ad justment has been laid down for the 300 plus College teachers who were found to be serving in different Degree Colleges since 1989 serving for 5 to 14 years wit hout valid sanctioned posts as mentioned in the earlier part of the Office Memor andum. The Circular would thus be applicable only to teachers who had 5 years or more of service on the date of issue of the Office Memorandum. 2. The Assam College Employees (Provincialisation) Act, 2005 has certain co ntradictions in it which we are trying to resolve by way of amendment. Section 3 (a) reads- All Rules including the rules of conduct and discipline, which are applicable t o the Government Servants of corresponding grade similarly situated shall be app licable. Similarly situated Government servants are teachers of Government Colleg es. Under the Rules applicable to them they are Gazetted Officers and A.P.S.C. R egulations are applicable to them. Accordingly the recruitment has to be done by the A.P.S.C. while the Appointing Authority is the Government. As against this Section 6 reads- Appointments of both teaching and non-teaching in the College shall be made by the Director of Higher Education, Assam on the basis of selection and recommenda tion of the Governing Body of the respective College in accordance with the Rule s and Procedure of the Government in force. This Section requires the recruitment to be done by the Governing body w hile the Director will be the Appointing Authority. However, so far the question raised by the Hon’ble High Court is concerned, the change in the Appointing Aut hority or in the status of the teachers from being teachers of a private College receiving grant-in-aid to teachers whose services have been provincialised, in our understanding, would not end our obligations created by the Office Memorandu m under reference. 15. A reading of the aforesaid stand taken by the Principal Secretary in t he matter under consideration may indicate that so far as the first issue is con cerned, regularization under the Office Memorandum dated 17.7.2004 may require a minimum of five years of service as on the date of the said memorandum. In so f ar as the position after coming into force of the Provincialisation Act, 2005 is concerned, the stand appears to be that the said Act will not affect the obliga tion created by the Office Memorandum dated 17.7.2004. 16. The stand in the first issue highlighted above seems to be contr ary to the stand taken by the State in its counter affidavit filed in W.P.(C) No .641 of 2008. The relevant part of the said affidavit is extracted below :- 4. The deponent states that there have been more than 395 College teachers serving against non sanctioned post in different Grants-in-aid degree Colleges o f Assam and these teachers have been serving the College (now provincialised) in a consolidated pay provided by the fund of the respective College authority. Pu rsuant to the orders date 11.2.2003 and 23.7.2003 passed in W.P.(C) No.626/2002 and W.P.(C) No.2368/2002 respectively, the Government considered the matter of a bsorption of those non sanctioned Lecturers. However, in view of the Govt. ban o n creation of new posts, instead of sanctioning new posts of Lecturers for absor ption of those Lecturers working in non sanctioned posts, the department propose s certain steps for redressal of grievances of the non sanctioned teachers. Acco rdingly, the Cabinet took a decision vide Cabinet Memorandum No.8(2)G.97/2003 /1 14 dated 25.3.04 and decided the matter. As per the said Cabinet decision, the v acant sanctioned posts of the Colleges to be allotted to the lecturer serving wi thout sanctioned post in the respective Colleges, provided that they were initia lly appointed against the non sanctioned post as lecturer after observing due pr ocedure and fulfilling the norms. It was further decided that while filling up t he future vacancies, preference to be given to such lecturers. Clause 6(a), (b), (c) and (d) of the cabinet Memorandum lays down the manner in which the posts ar e to be allocated. A copy of the Cabinet Memorandum dated 25.3.2004 is annexed herewith as ANNEXURE-A/1. 5. That the deponent states that in terms of the aforesaid Cabinet Memorand um, the Government of Assam, Education Department issued an Office Memorandum be aring No.1 B92) h. 97/2003/90 dated 17.7.04 considering the facts that more than 300 College teachers working in the deficit grants-in-aid Colleges of the State without any valid sanctioned post i.e. Non-sanctioned post and they have been performing their responsibilities like the teachers working against sanctioned p osts. The government was not in a position to sanction any more new post for the College to accommodate the College teachers serving without sanctioned post. In view of the same, some procedure/ modalities are adopted with the approval of t he Cabinet to adjust the services of the College teachers working without sancti oned posts. Clause 4(a),(b),(c) and (d) lays down the manner in which the posts are to be allocated. A copy of the O.M. dated 17.07.04 is annexed here as ANNEXURE-A/2. & & & & & & & & & & 7. That the deponent state that as per provision of clause 4(b) of the afor esaid O.M. dated 17.07.07 (sic) provides In case of any future vacancies of san ctioned posts, in a particular deptt. College teachers working without valid san ctioned post but appointed as per procedure stated at (a) above are to be adjust ed in preference to fresh teachers. 17. That apart, in paragraph 11 of the aforesaid affidavit, it has been ca tegorically stated that 88 nos. of lecturers holding non-sanctioned posts who we re appointed after 17.7.2004 have been regularized. In this regard, in para-8 of the affidavit, it has been further stated that appointment against non-sanction ed posts continued to be made even after publication of the O.M. dated 17.7.2004 . Consequently, by another Office Memorandum dated 12.10.2004 such engagements w ere prohibited and it was made clear that any appointment in non-sanctioned post s made after 12.10.2004 will have to be understood to be without any authority. 18. From the above, it is crystal clear that notwithstanding what ha d been recited in the Office Memorandum dated 17.7.2004 with regard to applicabi lity of the terms of the office memorandum to the non-sanctioned teachers who ha d put in between 5 to 14 years of service, as a matter of fact, appointments mad e against non-sanctioned post till the date of issuance of the second office mem orandum dated 12.10.2004 have been regularized in terms of the earlier Office Me morandum dated 17.7.2004. It is not in dispute in the present case that the peti tioner was appointed by order dated 3.2.2004 and he joined in service on 19.7.20 04. In such a situation, it is difficult to visualize as to