IN THE GAUHATI HIGH COURT

Transcription

1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) PRINCIPAL SEAT AT GUWAHATI (EXTRAORDINARY WRIT JURISDICTION) WP(C) No.2855 of 2010 Ramesh Goswami Writ Petitioner -Versus- The State of Assam & others. Respondents BEFORE HON BLE MR. JUSTICE SUMAN SHYAM For the petitioner : Mr. B. D. Das, Sr. Advocate. Ms. R. Deka, Advocate. For the respondents : Mrs. R. Choudhury, Standing Counsel, Higher Education Deptt. Date of hearing : Date of Judgment : JUDGMENT AND ORDER (Oral) 1. Heard Mr. B. D. Das, learned senior counsel assisted by Ms. R. Deka, learned counsel appearing for the petitioner. Also heard Mrs. R. Choudhury, learned Standing Counsel, Higher Education Department, appearing on behalf of the official respondents. 2. By filing the instant writ petition the petitioner has approached this Court for the third time seeking benefit of UGC scale with effect WP(C) 2855/2010 Page 1 of 12

2 from the date on which the College under which he was serving i.e. Nalbari Commerce College, was brought under the deficit grant in aid system of the Government. 3. This case has a chequered history and therefore, a narration of the brief factual matrix, as projected by the petitioner, giving rise to the present writ petition would be necessary for appreciating the issue involved herein. The petitioner had acquired Masters Degree in Assamese Group-B securing 46.1% marks in the year 1977 and thereafter, had again acquired a Masters Degree in Assamese Group- A by securing 53.4% in the year Taking note of his academic qualification, the petitioner was appointed as a lecturer in Assamese in the Nalbari Commerce College on The Nalbari Commerce College was brought under the deficit grant-in-aid system of the Government with effect from and the appointment of the lecturers made in the College by fulfilling the UGC norms were also provisionally approved by the subsequent letter dated Since the approval of the appointments were made provisionally, hence, by the letter dated the DPI had sought Government approval in respect of those appointment made to the teaching and non-teaching staff of the College but the post of lecturer held by the petitioner was shown as vacant in the said letter on the ground that the petitioner did not meet the UGC qualification norms. Thereafter by issuing the order dated , the WP(C) 2855/2010 Page 2 of 12

3 petitioner s service was provisionally approved in the fixed pay of Rs.2300/- per month plus other allowances with effect from , but he was not allowed avail the regular UGC pay scale and on the contrary a condition was imposed that the petitioner would be entitled to the incremental benefit in the UGC scale of pay of R.2200/- to 4000/- only after obtaining M.Phil/Ph.D. degree within eight years failing which his service will not be confirmed. In the said letter a further condition was imposed that the petitioner will not be entitled to Selection Grade scale of pay till he fulfills the UGC norms. 4. It would be pertinent to mention herein that prior to , the UGC norms for appointment as a lecturer in the College required 52.5% marks in MA/MSc/MCom with honours in the first degree level. The said requirement was however enhanced with effect from upto 55% marks in the Masters degree. Before the enhancement of the eligibility norms to 55% marks there were at least 16 lecturers serving in 8(eight) numbers of different Colleges in Assamese who were recruited by following the previous UGC norms of 52.5% marks with honours in first degree level but since the said lecturers did not meet the revised norms of 55% marks, hence, the Directorate was faced with certain legal hurdles in regularizing their services. As such, by issuing a communication dated the DPI had requested the Government to regularize the services of those lecturers by giving them the new UGC scale as a special case. The Government accepted the proposal made by the DPI and thereafter WP(C) 2855/2010 Page 3 of 12

4 approved the appointment of all the 16 (sixteen) lecturers for granting them the UGC scale with effect from by issuing the letter dated In the said letter it was also mentioned that separate notification will be issued allowing them the benefit of UGC scale from the date on which the respective Colleges were taken over by the Government. 5. In the meantime, being aggrieved by the order dated provisionally approving the appointment of the petitioner without giving him the benefit of the regular UGC scale, the petitioner had approached this Court by filing Civil Rule No.3671/1996, inter alia, praying for a writ of mandamus directing the respondents to extend him the benefit of UGC scale with effect from i.e. the date from which the College was taken over by the Government. By the judgment and order dated , the learned Single Judge had dismissed the writ petition as a result of which the petitioner had preferred Writ Appeal No.457/1999 before this Court. By the judgment and order dated the Division Bench of this Court had disposed of the writ appeal by issuing a direction upon the respondents to examine the claim of the petitioner by treating him at par with Smti. Pranati Talukdar and other similarly situated lecturers and thereafter extend him the benefit if he is found to be entitled to the same. The petitioner had submitted a representation dated enclosing copy of the judgment and order dated WP(C) 2855/2010 Page 4 of 12

5 requesting the respondents to take appropriate action in the matter as per the order of this Court. However, since no action was forthcoming, the petitioner had filed Contempt Petition(C) No.412/2003 before this Court alleging deliberate violation of the directions issued by the Division Bench. On receipt of notice in connection with the aforementioned contempt case, the Government had issued an order dated regularizing the services of the petitioner as lecturer in the department of Assamese in the Nalbari Commerce College by providing him the benefit of UGC scale of pay in the band of Rs.8000/- to 13500/- per month with effect from Thereafter, the respondents had issued an order dated disposing of the prayer made by the petitioner by rejecting his prayer for giving effect to the UGC scale w.e.f while admitting that the benefit of extending the UGC pay scale to the similarly situated lecturers with effect from the date of taking over of the College was by mistake. 6. Aggrieved by the order dated the petitioner had, once again, approached this Court by filing WP(C) No.5561/2004 which was disposed of by this Court by the judgment and order dated directing the respondents to make a fresh consideration of the petitioner s case within a period of six weeks. In the wake of the order dated passed by this Court in WP(C) No.5561/2004 the respondents have purportedly examined the matter in the light of WP(C) 2855/2010 Page 5 of 12

6 the court order and thereafter issued a notification dated modifying the approval of appointment earlier made in favour of a number of similarly situated lecturers granting them the benefit of UGC pay scale from the date of provincialisation of the respective Colleges and on the contrary, giving effect to the same from the date of acquiring of M Phil/Ph.D. degree or NET/SLET with a further stipulation that such lecturers would be entitled to enjoy the incremental benefits in UGC scale of pay only after obtaining M Phil/Ph.D degree or NET/SLET within eight years failing which their services will not be continued. In the notification dated it was further mentioned that the candidates would not be entitled to Senior Grade Scale/Selection Grade Scale of pay till they fulfill the conditions as laid down in the UGC norms. 7. On the basis of the notification dated the respondent No.1 had passed a separate order dated (Annexure-31) disposing of the prayer made by the writ petitioner by refusing him the benefit of UGC scale with retrospective effect from the date of taking over of the College i.e Aggrieved by the order dated the instant writ petition has been filed. 8. Mr. Das, learned senior counsel for the petitioner, submits that a perusal of the direction contained in the judgment and order dated passed by this Court in Writ Appeal No.457/1999 goes to show that the respondents were required to examine the claim of the WP(C) 2855/2010 Page 6 of 12

7 petitioner by treating him at par with Smti. Pranati Talukdar and other similarly situated lecturers. It is not in dispute that the aforesaid lecturers were extended the incremental benefit of UGC pay scale with effect from the date on which their respective Colleges were brought under the deficit grant-in-aid system and therefore, the petitioner also being similarly situated, was required to be extended the same benefit in strict compliance with the direction of the Division Bench which has not been done in the instant case. 9. By producing a copy of the judgment and order dated passed by the learned Single Judge in WP(C) No.3519/2009 Mr. Das further submits that the impugned notification dated has since been set aside by the learned Single Judge and therefore, the very basis on which the order dated has been passed is now non-existent. Under the circumstances, the impugned order dated is not sustainable in the eye of law and is therefore required to be interfered with. Mr. Das further submits that the petitioner has retired from service on attaining the age of superannuation with effect from and any further delay in the matter will cause extreme hardship to the petitioner. 10. By referring to the counter affidavit filed on behalf of the department, Mrs. Choudhury, learned Standing Counsel, submits that the impugned order dated has been passed after hearing the petitioner and in due compliance of the direction issued by the WP(C) 2855/2010 Page 7 of 12

8 Division Bench and therefore, there is no illegality or infirmity in the order under challenge in the writ petition. The learned departmental counsel has, however, confirmed that no appeal has been preferred against the judgment and order dated passed in WP(C) No.3519/ I have bestowed my anxious consideration to the rival submissions made at the bar and have also perused the materials available on record. It is not in dispute that the petitioner fulfilled the UGC norms which was in force on the date on which he was appointed as a lecturer in the Nalbari Commerce College and also the fact that the petitioner was in the same category of employees as Smti. Pranati Talukdar and few other lecturers, referred to above, insofar as the qualification and eligibility norms under the UGC guidelines was concerned. Taking note of the aforesaid position, by the judgment and order dated the Division Bench of this Court had disposed of the appeal by issuing the following directions :- 18. In the light of the above discussions, we are therefore inclined to dispose of the appeal with a direction to the State respondents, more particularly, the Secretary, Education (Higher) Department, Government of Assam, Dispur and the Director of Public Instruction (Higher Education), Assam, respondent Nos.1 and 2 herein to take up the case of the appellant with utmost expedition and examine the tenability of his claim to be treated at par with Smti. Pranati Talukdar and other similarly situated lecturers for the purpose of approving his WP(C) 2855/2010 Page 8 of 12

9 services under the Deficit Grants in Aid system of the Government and for granting him the revised UGC scale of pay as done in case of Smti. Pranati Talukdar and others and if the appellant is found entitle to the same reliefs, to grant him the same without further delay. The appellant in order to enable the said authorities to do the needful in terms of the directions of this Court, would submit a copy of the writ application, affidavit in opposition of the State respondents, affidavit in reply and the additional affidavit filed by him in the appeal along with the supporting documents together with a certified copy of this judgment and order before the above named authorities and if the same is done, the said authorities would initiate the process of examining the claim of the appellant as directed above and complete the whole exercise within a period of 6(six) weeks from the date of receipt of the pleadings and the certified copy of the judgment and order as aforesaid. It is needless to say that the said authorities in taking their decision on the matter would bear in mind the observations made by this Court as above and communicate their decision in writing to the appellant. 12. In the wake of the judgment and order dated the matter was examined by the department and by the communication dated a recommendation was made by the respondent No.2 recommending the regularization of the services of the writ petitioner in the light of the judgment and order passed by this Court in Writ Appeal No.457/1999. The findings recorded by the respondent NO.2 as regards the status of the writ petitioner vis-à-vis Smti. Pranati WP(C) 2855/2010 Page 9 of 12

10 Talukdar would be relevant for the purpose of appreciating the contentions of the parties and is therefore extracted herein below :- Initially, Govt. approved the appointment of Smt. Pranati Talukdar Lect. In Assamese of Puthimari College in the fixed pay of Rs.2200/- p.m. w.e.f along with Sri Ramesh Ch. Goswami with the same terms and condition. Subsequently Govt. regularized the appointment of Smt. Pranati Talukdar in the regular UGC scale of pay of Rs.2200 to 4000/- p.m. w.e.f i.e. from the date of taking over of the college under deficit system of G.I.A. vide Govt. letter No.B(2)H 210/98/14 dated The academic career of Smt. Pranati Talukdar is HSLC II 50% P.U. II 53.1% B.A.(H) II 53.6%, M.A. II 53.6%. It may also be stated here that at the time of appointment of the above mentioned lecturers in their respective colleges, they had the then UGC norms i.e. Honours in Ist degree and 52.3% in Master s Degree. An early Govt. order is solicited. 13. A perusal of the aforesaid note leaves no manner of doubt that the petitioner was placed at equal footing with Smt. Pranati Talukdar for all intent and purposes of the case and as such, in terms of the order dated passed by the Division Bench, the respondents ought to have extended similar benefits to the petitioner by giving effect to his regularization and UGC scale from the date of taking over of the College as has been done in the case of Pranati Talukdar. But, as has been noted above, no such order was passed by the WP(C) 2855/2010 Page 10 of 12

11 respondents in favour of the petitioner thereby compelling him to file contempt petition. 14. Although, subsequently by issuing the order dated , the petitioner was extended the benefit of UGC pay scale with effect from , yet, the same was not given effect from the date of taking over the college i.e Therefore, it is apparent on the face of the record that, the order dated and the consequential order dated were not issued in strict compliance with the directions passed by the Division Bench. As a matter of fact, being fully conscious about the obligations cast upon the respondents by the judgment and order dated , an attempt has instead been made by the department to retrospectively withdraw the benefits earlier granted to the similarly situated lecturers almost two decades back by issuing the order dated The action of the respondents in doing so, however, did not find favour with the learned Single Judge of this court as a result of which the impugned notification dated was set aside. 15. This court has noticed that by issuing the order dated , the respondents have denied the claim of the petitioner seeking effect of his regularization with effect from on the ground that the such benefits earlier granted to similarly situated lecturers had already been withdrawn. But the order of withdrawal having been set aside by this Court, the ground on which the notification dated WP(C) 2855/2010 Page 11 of 12

12 was issued has become non-existent. As a result of the same, the order dated can also no longer stand in the eye of law. The order dated is therefore, set aside. 16. In view of the interference caused to the impugned order dated , the respondents will now be required to pass a fresh order disposing of the claim of the petitioner in strict compliance with the directions issued by the Division Bench of this Court by the order dated In the light of the discussions made above, this writ petition is, therefore, disposed of by issuing a direction to the respondent Nos.1 and 2 to pass a fresh order disposing of the claim of the writ petitioner in terms of the order dated passed by the Division Bench of this court in Writ Appeal No 457/ 1999, by complying with the directions contained therein in letter and spirit. The order, as directed above, be passed within a period of two weeks from the date of receipt of a certified copy of this order. With the above observation, this writ petition stands disposed of. JUDGE T U Choudhury WP(C) 2855/2010 Page 12 of 12