Allowed

O. Anjana Devi and 2 Ors. v. the State of Assam and 4 Ors.

Gauhati HC7 May 2025WP(C)/5428/2019

Case brief

AI extract

What is this about?

Three lecturers prayed for regularization of their services under Article 226 of the Constitution. The Gauhati High Court held that as the State had not admitted any mistake in regularizing similar categories of teachers via Cabinet decisions, the petitioners were entitled to similar benefits under Articles 14 and 16.

What did the court decide?

Respondent No.2 directed to place the matter before the State Cabinet for regularization of services within three months.

O. Anjana Devi and 2 Ors. Vs the State of… — Pension and Retirement Benefits | Gauhati HC (2025)

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GAHC010176492019

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IN THE GAUHATI HIGH COURT (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh) PRINCIPAL SEAT

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WP(C) No. 5428/2019

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Ms. O. Anjana Devi, D/o Shri O. Churmoni Singha, Resident of Village-Boaljur, PO-Singari, Dist.-Cachar, Assam.

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Ms. Priyanka Hojai, D/o Shyam Chand Hojai, Resident of near Ladies Park, Haflong, PO-Haflong, Dist.-Dima Hasao, Assam.

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Ms. Anima Das, D/o Girindra Chandra Das, Resident of Opposite Iskon Mandir, PO-Haflong, N.C. Hills District, Dima Hasao, Assam.

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…… Petitioners .

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-Versus-

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The State of Assam, Represented by the Chief Secretary to the Govt. of Assam, Dispur, Guwahati-6.

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The Commissioner & Secretary to the Govt. of Assam, Education (Higher) Department, Dispur, Guwahati-6.

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The Dima Hasao Autonomous Council, Represented by the Principal Secretary, Dima Hasao Autonomous Council, Haflong, District-N.C. Hills, Assam, Pin-788819.

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The Principal, Haflong Government College, Haflong, District-N.C. Hills, Assam, Pin-788819.

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The Assam Public Service Commission,

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Jawaharnagar, Khanapara, Guwahati-22. (represented by it’s Secretary).

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…… Respondents .

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For the Petitioners : Mr. M.K. Choudhury, Sr.Adv., Mr. A.U. Ahmed. ……Advocates. For the Respondents : Mr. K. Gogoi, SC, Higher Edu., Mr. R.M. Das, Mr. R.R. Kaushik, SC, N.C. Hills, Mr. P.P. Dutta, SC, APSC. ……Advocates.

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BEFORE

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HON’BLE MR. JUSTICE ROBIN PHUKAN

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Date of Hearing : 19.02.2025, 10.03.2025, 19.03.2025 & 25.03.2025 Date of Judgment : 08.05.2025

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JUDGMENT AND ORDER

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Heard Mr. M.K. Choudhury, learned Senior Counsel, assisted by Mr. A.U. Ahmed, learned counsel for the petitioners. Also heard Mr. K. Gogoi, learned standing counsel, Higher Education, appearing for the respondent No.2, Mr. R.M. Das, learned standing counsel for the respondent No.3, Mr. R.R. Kaushik, learned standing counsel for the N.C. Hills and Mr. P.P. Dutta, learned standing counsel for the respondent No.5.

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2. In this petition, under Article 226 of the Constitution of India, three petitioners, namely, Ms. O. Anjana Devi, Ms. Priyanka Hojai and Ms. Anima Das, have prayed for issuing direction to the respondent authorities to regularize their services as Lecturers/Assistant Professors in the department of Physics, History and Zoology, respectively, in Haflong Government College, by relaxation of Rules as has been done in the case of similarly situated Lecturers of Government Colleges including Haflong Government College, vide orders dated 02.06.2006, 27.02.2016 and 12.06.2017 (Annexures-14, 28 and 29), issued by the Higher Education Department.

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3. The background facts leading to filing of the present writ petition is briefly stated as under:-

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“The petitioner No.1 was appointed as Lecturer in the Department of Physics, the petitioner No.2 was appointed as Lecturer in the Department of History and the petitioner No.3 was appointed as Lecturer in the Department of Zoology of Haflong Government College, under Regulation 3(f) of A.P.S.C. (L&F) Regulation, 1951 in UGC scale of pay along with many others in different disciplines, vide Notification dated 23.03.2001 (Annexure4). Thereafter, the services of the petitioners were extended from time to time by the respondent authorities. Thereafter, a selection process was conducted by APSC, vide advertisement dated 17.05.2001 (Annexure-5) and the petitioners were duly selected by the APSC, vide select list dated 17.05.2002 (Annexure-6), but, they could not be regularized as their posts did not cover the recommendation. The petitioners have qualified in SET and also completed M.Phil. and they become fully qualified for being regularized and appointed as Lecturers/Assistant Professors in the

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Government Colleges. Thereafter, the N.C. Hills Autonomous Council also conducted a selection in the month of September, 2005 for fresh appointment or extension of service, wherein the petitioners were selected for re-engagement on contractual basis by the Principal Secretary, N.C. Hills Autonomous Council, Haflong, vide Notifications dated 02.09.2005 and 21.11.2005.

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The pleaded case of the petitioners‟ is that the Dima Hasao Autonomous Council (Erstwhile N.C. Hills Autonomous Council) wanted regular appointment/regularization of services of the petitioners and other Lecturers, who have been working under Regulation 3(f) of the 1951 Regulation or on contractual basis in sanctioned posts in Haflong Government College and on several occasions the Council insisted the Government of Assam to regularize the service by way of relaxation of Rules or by a Cabinet decision and the Council also requested the Government that since the services of some lecturers, who were working on contractual basis at Diphu Government College, have been regularized by way of Cabinet decision, vide Notifications dated 02.06.2006 (Annexure14), 27.02.2016 (Annexure-28) and 12.06.2017 (Annexure-29), the services of the petitioners in Government Colleges, may also be regularized by way of a Cabinet decision, but till date the Government of Assam has not taken any decision in the matter of regularization of services of the petitioners and their future is languishing in uncertainty. Being aggrieved, the petitioners have approached this Court praying the relief as aforesaid.”

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4. The respondent No.3, Dima Hasao Autonomous Council had filed affidavit-in-opposition by stating that it is a fact that the Principal Secretary, North Cachar Hills Autonomous Council, Haflong, vide O.M.

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No.AC/NGC/2/2007/50, dated Haflong 13.02.2008, written a letter to the Commissioner & Secretary to the Govt. of Assam, Education Department, by referring to the APSC advertisement No.01/2008, dated 24.01.2008, wherein it is specifically stated that whenever the lecturers were appointed in the said Government posts, either they do not report at all, or just after joining they obtained transfer and leave and to solve the aforesaid problem, the Council took the steps to appoint lecturers, who are duly qualified for the post of lecturers on contractual basis, so that the education of the students are not affected for want of lecturers in the college and therefore, in the said letter, it was requested by the Principal Secretary, N.C. Hills Autonomous Council to take up the matter with the Assam Public Service Commission for allowing those lecturers who were already working on contractual basis to apply for the posts they are holding on, so that they get the opportunity to appear in the APSC examinations as a special case, for giving them the scope to compete. It is also stated that the Principal, Haflong Government College had written a letter to the Principal Secretary, N.C. Hills Autonomous Council on 02.05.2012, for regularization of services of lecturers in various posts who are working on contractual basis, yet, N.C. Hills Autonomous Council is not the authority to regularize their services. It is also stated that the services of 8 nos. of lecturers in Haflong Government College on contractual basis having requisite qualification as per UGC norms were regularized with approval of the State Cabinet. But, the service of the petitioner Nos.1 and 2 could not be considered due to lack of their requisite qualification, as required under UGC norms at that time.

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5. The respondent No.2, the Commissioner & Secretary to the Govt. of Assam, Education (Higher) Department has also filed affidavit-inopposition, wherein it is stated that the services of employees of the

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Government Colleges are governed by Assam Education Service Rules, 1982 and Rule 5 sub-rule (1) of the said Rules, deals with the method of recruitment, where it is clearly mentioned that Lecturers of Government Colleges shall be made by direct recruitment. Rule 6 deals with direct recruitment, where it is clearly mentioned that direct recruitment to the posts mentioned in the sub-rule (1) of Rule 5, shall be made by the Government on the basis of recommendation made by the Commission. It is also stated that the petitioners were appointed vide order dated 23.03.2001, but, they were terminated vide order dated 30.08.2003, vide Notification No. B(2)H.57/97/Pt/308 and though they appeared in the selection of APSC and got selected vide letter dated 17.05.2002, they stood beyond the zone of consideration in respect of specialization, reservation according to roster points and clearance of backlog and that in view of the judgment and order dated 05.06.2004, passed in WA No.31/2004, and along with some other writ appeals, the services of the petitioners along with others appointed under Regulation 3(f) were terminated with immediate effect, vide letter dated 25.05.2004, and thereafter, the petitioners were engaged by the N.C. Hills Autonomous Council as lecturers on contractual basis, which they could not do as Education is not a transferred subject to Autonomous Council.

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6. It is also stated that 8 nos. of college teachers of Haflong Government College and 3 nos. of Diphu Government College were regularized through a Cabinet decision, vide Notification Nos.AHE.95/2011/360, dated 27.02.2016 and AHE.174/2006/52, dated 12.06.2017, and that the petitioners cannot claim negative discrimination qua the persons who have been regularized on the basis of Cabinet decision without following the Rules and Procedure applicable to the Government Colleges prescribed under recruitment procedure, under

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Articles 14 and 16 of the Constitution of India and that the Assam Education Service Rules, 1982 lays down the procedure to be followed for making appointment to the post of Lecturers/Assistant Professors in Government Colleges and the respondent authorities cannot give a go by to the statutory provisions.

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7. The respondent No.3 had filed additional affidavit, wherein it is stated that as per O.M. dated 31.12.1996 and 25.05.1996 and the Notification dated 15.02.2005, the Department of Education has been brought under the administrative control of North Cachar Hills Autonomous Council and as such, the N.C. Hills Autonomous Council is empowered to issue appointment.

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8. Mr. Choudhury, learned Senior counsel for the petitioners submits that the petitioners herein are discriminated by the respondent authorities, specially by respondent No.2 by not regularizing their services, though they possessed the requisite qualification for being appointed as Lecturers/Assistant Professors in the Government Colleges of Assam. Mr. Choudhury further submits that though the respondent No.2 had taken a stand in the affidavit-in-opposition that the petitioners cannot claim negative equality, as 8 nos. of college teachers of Haflong Government College and 3 nos. of teachers of Diphu Government College were regularized through Cabinet decision, yet, before taking such a stand, the respondent No.2 has to admit that they have committed mistake and the benefit of which the present petitioners cannot derive. But, nowhere in the affidavit-in-opposition, has the respondent No.2 admitted that they had by mistake given such benefit to 8 nos. of Lecturers of Haflong Government College and 3 nos. of Lecturers of Diphu Government College and as such, the stand taken by the respondent No.2 is not sustainable.

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8.1 Further, Mr. Choudhury submits that the respondent No.3 has appointed the petitioners on contractual basis and their services have been extended for 5 years since the year 2023 and that their future is languishing in uncertainty even though they rendered services in the said Government College since the year 2001 and under such circumstances, Mr. Choudhury submits that like the 8 nos. of teachers of Haflong Government College and 3 nos. of teachers of Diphu Government College, whose services have been regularized through a Cabinet decision, the services of the petitioners may also be regularized through a Cabinet decision and the petitioners are also entitled to said benefit and therefore, it is contended to dispose of this writ petition by directing the respondent authorities to regularize the services of the petitioners.

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8.2 In support of his submission, Mr. Choudhury has referred to a decision of Hon‟ble Supreme Court in the case of State of Assam & Anr. v. Raghava Rajgopalachari , reported in 1967 SCC OnLine SC 1 and contended that the respondent to a writ petition cannot be allowed to attack its own order as a respondent. Referring to another decision of Hon‟ble Supreme Court in the case of Basawaraj & Anr. v. Special Land Acquisition Officer , reported in (2013) 14 SCC 81 , Mr. Choudhury submits that it is well-settled that Article 14 of the Constitution of India is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality, but, has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well, but, unless the State respondents admits in affidavit-in-opposition that they had committed some wrong, they cannot apply the principle of negative

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equality and they cannot review their own order or cancel it. But, Mr. Chaudhury submits, the same is not the case here. The respondent No.2, nowhere in its affidavit-in-opposition had admitted that they had mistakenly given the said benefit to some other candidates while regularizing their services through Cabinet decision.

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9. Per contra, Mr. Gogoi, learned standing counsel for the Higher Education Department submits that the petitioners have prayed for regularization of their services by relaxing the Rule and that the Rule 5 and 6 of the Assam Education Service Rules, 1982 are applicable in this case and that by invoking the jurisdiction under Article 226 of the Constitution of India, this Court is not empowered to issue direction for relaxation of the said Rule for regularization of services of the petitioners. Mr. Gogoi further submits that the N.C. Hills Autonomous Council has no authority to appoint teachers on contractual basis as education is not a transferred subject and that the petitioners were released on 25.05.2004, pursuant to order of this Court in WA No.31/2004 and that the petitioners did not fulfilled the prescribed norms, for which their services could not be regularized and the Court cannot travel beyond the rules and norms and in paragraph Nos.15, 16 and 17 of the affidavit-in-opposition, it has categorically mentioned that it is not open for the respondent authorities to give a go by to the statutory provisions and that though some of the lecturers of Government Colleges were given the benefit of regularization, on the basis of Cabinet decision, yet, the petitioners cannot claim negative equality. Under such circumstances, Mr. Gogoi contended to dismiss the petition.

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10. Mr. Gogoi has also referred to a decision of Hon‟ble Supreme Court in the case of R. Muthukumar & Ors. v. The Chairman and Managing Director TANGEDCO & Ors. , reported in 2022 LiveLaw

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(SC) 140 , specially in paragraph No.24, to contend that there is no negative equality in the country‟s Constitutional lore. Mr. Gogoi further submits that though the petitioners have been working for a long period on contractual basis, they have not acquired any legal right to be appointed in the respective posts on regular basis and in support of his submission; he has referred to a decision of Hon‟ble Supreme Court in the case of Ganesh Digamber Jambhrunkar & Ors. vs. State of Maharashtra & Ors. , reported in 2023 SCC OnLine SC 1417 . Referring to another decision of Hon‟ble Supreme Court in the case of Union of India & Ors. vs. Mahendra Singh, reported in MANU/SC/0919/2022, Mr. Gogoi submits that it is well settled statutory principle that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and not in other manner.

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11. On the other hand, Mr. R.M. Das, learned counsel for the respondent No.3 submits that Education is a transferred subject and on such count, respondent No.3 can appoint lecturers on contractual basis for running the college as some candidates were granted the benefit of regularization through Cabinet decision, the case of the petitioners may be considered.

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12. Mr. P.P. Dutta, learned counsel for the respondent No.5, however, subscribed the submission so advanced by Mr. Gogoi, learned standing counsel for the Higher Education Department.

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13. Having heard the submission of learned counsel for both the parties, I have carefully gone through the petition and the documents placed on record and also perused the decision referred by learned Advocates of both the parties.

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14. The basic facts here in this case are not in dispute. Initially the petitioners were appointed as Lecturers in the Haflong Government College, vide Notification dated 23.03.2001 issued by the Deputy Secretary to the Govt. of Assam, Education (Higher) Department. Initially the petitioners did not possess the requisite qualification for being regularization of their services. But, subsequently, the petitioner No.1 and 2 had acquired their qualification and passed the SET examination and the petitioner No.3 had obtained M. Phil. degree also. It is not in dispute that now they are fully qualified for being appointed as Lecturers/Assistant Professors in regular manner in Haflong Government College.

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15. They have also appeared in the interview conducted by the respondent No.5 and they had got selection, but their services could not be regularized at that time as they stood beyond the zone of consideration in respect of specialization/reservation according to roster points and clearance of backlog. Thereafter, in view of order of this Court in WA No.31/2004, vide order dated 05.06.2004, the petitioners were released. But, thereafter, the petitioners were engaged by the N.C. Hills Autonomous Council as lecturers on contractual basis and they are working in that capacity till date.

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16. Further, from the additional affidavit filed by the respondent No.3 it appears that as per Office memorandum issued by the Government of Assam in Hill Area Department vide notification No. HAD. 57/95/309 dated 31.12.1996 and No. HAD.57/95/268 dated 25.05.1996 and Education Department, Government of Assam Notification No. B(2)H.412/2003/Pt/25 dated 15.02.2005, the Department of Education has been brought under the administrative control of N.C. Hills Autonomous Council and as such, the respondent No.3 is empowered to

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engage lecturers. This averment in the additional affidavit is not disputed by the respondent No.2 and as such, the contention made by Mr. Gogoi is a misleading statement, which fails to mandate acceptance of this court.

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17. It also appears that the respondent No.3 had written a letter to the APSC for regularization of the services of the petitioners, vide letter dated 13.02.2008, and also to the Commissioner & Secretary to the Govt. of Assam, Education Department and that the persons who were working already on contractual basis may be allowed to apply for the posts they are holding and to get opportunity to appear in the examination conducted by the respondent No.5 as a special case for giving them a scope to compete.

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18. It is also not in dispute that 8 nos. of contractual Lecturers of Haflong Government College and 3 nos. of contractual Lecturers of Diphu Government College were regularized through a Cabinet decision, vide Notifications dated 02.06.2006, 27.02.2016 and 12.06.2017 (Annexures14, 28 and 29, respectively). Though, the respondent No.2 had taken a stand that the petitioners are not entitled to negative equality, yet, the fact remains that nowhere in the affidavit-in-opposition, the respondent No.2 had admitted that they have committed any mistake by regularizing services of those 8 nos. of contractual Lecturers of Haflong Government College and 3 nos. of contractual Lecturers of Diphu Government College. Without there being any such admission that it had committed mistake, the respondent No.2 cannot claim that such negative equality cannot be claimed by the petitioners. In that view of the matter, the submission of Mr. Choudhury, learned Senior Counsel for the petitioners appears to be justified and the decisions referred by him in the case of Basawaraj (supra) , also strengthen his submission.

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19. Further, it appears that the respondent No.2 in its own affidavit admitted having regularized 8 nos. of contractual Lecturers of Haflong Government College and 3 nos. contractual Lecturers of Diphu Government College by way of Cabinet decision, vide Notification dated 27.02.2016 and 12.06.2017. In view of above, the stand so taken by the respondent No.2 that the petitioners are not entitled to claim negative equality is not at all sustainable. Being similarly situated with the said 8 nos. of contractual Lecturers of Haflong Government College and 3 nos. of contractual Lecturers of Diphu Government College, the present petitioners are also entitled to similar benefit, in view of Articles 14 and 16 of the Constitution of India. Mr. Choudhury, learned Senior Counsel for the petitioners, had rightly pointed it out in his argument and the case law, referred by him, also strengthened his submission.

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20. It is also not in dispute that the petitioners have been working since 2001 as contractual Lecturers in Haflong Government College. They possess all requisite qualification for being appointed as regular Lecturer in Halflong Government College or in any other Government Colleges of Assam. They have dedicated 24 years of their life in serving as contractual lecturers. At the fag end of their service career, they have to leave the College with empty hand having dedicated the golden period of their life.

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21. It is true that as held in the case of Ganesh Digamber Jambhrunkar & Ors.(supra) the petitioners herein this case have not acquired any right for regularization having appointed on contractual basis and rendering their services for long period. But, facts of the said case are completely distinguishable from the facts herein this case. In that case the issue was of absorption and there was no scheme for regularization also. This is not the fact situation in the present case.

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22. In this context it is worth mentioning that Hon‟ble Supreme Court in the case of Sheo Narain Nagar and Others Vs. State of Uttar Pradesh and Another , reported in (2018) 13 SCC 432, has emphasised that incumbents should be appointed on regular basis as per rules, it cannot be in exploitative terms and forms. It has been observed in p aragraph No. „7‟ has held as under:-

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“7. When we consider the prevailing scenario, it is
painful to note that the decision in Umadevi(3)4 has
not been properly understood and rather wrongly
applied by various State Governments. We have called
for the data in the instant case to ensure as to how
many employees were working on contract basis or ad
hoc basis or daily-wage basis in different State
departments. We can take judicial notice that widely
aforesaid practice is being continued. Though this
Court has emphasised that incumbents should be
appointed on regular basis as per rules, but new
devise of making appointment on contract basis has
been adopted, employment is offered on daily-wage
basis, etc. in exploitative forms. This situation was
not envisaged by Umadevi(3)4. The prime intendment of
the decision was that the employment process should
be by fair means and not by back door entry and in
the available pay scale. That spirit of the
Umadevi(3)4 has been ignored and conveniently
overlooked by various State Governments/authorities.
We regretfully make the observation that Umadevi(3)4
has not been implemented in its true spirit and has
not been followed in its pith and substance. It is
being used only as a tool for not regularising the
services of incumbents. They are being continued in
service without payment of due salary for which they
are entitled on the basis of Articles 14, 16 read
with Article 34(1)(d) of the Constitution of India as
if they have no constitutional protection as
envisaged in D.S. Nakara V. Union of India8, from
cradle to grave. In heydays of life they are serving
on exploitative terms with no guarantee of livelihood

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to be continued and in old age they are going to be
destituted, there being no provision for pension,
retiral benefits, etc. There is clear contravention
of constitutional provisions and aspiration of
downtrodden class. They do have equal rights and to
make them equals they require protection and cannot
be dealt with arbitarily. The kind of treatment meted
out is not only bad but equally unconstitutional and
is denial of rights. We have to strike a balance to
really implement the ideology of Umadevi(3)4. Thus,
the time has come to stop the situation where
Umadevi(3)4 can be permitted to be flouted, whereas,
this Court has interdicted such employment way back
in the year 2006. The employment cannot be on
exploitative terms, whereas Umadevi(3)4 laid down
that there should not be back door entry and every
post should be filled by regular employment, but a
new device has been adopted for making appointment on
payment of paltry system on contract/ad hoc basis or
otherwise. This kind of action is not permissible
when we consider the pith and substance of true
spirit in Umadevi(3)4.” The issue with which we are
concerned in this petition is as to whether by
working for a long period of time on contractual
basis, the petitioners have acquired any vested legal
right to be appointed in the respective posts on
regular basis.”

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23. Again, in the case of The State of Karnatak and Others vs. C. Lalitha, reported in (2006) 2 SCC 747, it has been held that service jurisprudence evolved by Hon‟ble Supreme Court from time to time postulates that all persons similarly situated should be treated similarly.

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24. Thus, drawing premises from the discourse made herein above, and also having regards to the facts and circumstances on the record, this Court is of the considered opinion that the petitioners have

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succeeded in establishing a case for interference of this Court. Being similarly situated with the said 8 nos. of contractual Lecturers of Haflong Government College and 3 nos. of contractual Lecturers of Diphu Government College, whose services were regularized on the basis of Cabinet decisions, vide Notifications dated 02.06.2006, 27.02.2016 and 12.06.2017 (Annexures-14, 28 and 29, respectively), the present petitioners are also entitled to similar benefit, in view of Articles 14 and 16 of the Constitution of India. In the given facts and circumstances on the record, this Court finds sufficient merit in this petition and accordingly, the same stands allowed.

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25. The respondent No.2, by a mandamus of this Court, is directed to place the matter of the present petitioners, before the State Cabinet for its kind consideration, for regularization of their services, as done in the case of 8 nos. of contractual Lecturers of Haflong Government College, and 3 nos. of contractual Lecturers of Diphu Government College, vide Notifications dated 02.06.2006, 27.02.2016 and 12.06.2017 (Annexures14, 28 and 29, respectively). The aforesaid exercise has to be carried out within a period of 3(three) months from the date of receipt of a certified copy of this order. The petitioners shall obtain a certified copy of this order and place the same before the respondent authorities within a period of 1(one) week from today.

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26. In terms of above, the writ petition stands disposed of.

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Sd/- Robin Phukan JUDGE

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Comparing Assistant

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O. Anjana Devi and 2 Ors. v. the State of Assam and 4 Ors.

Case brief

What is this about?

What did the court decide?

O. Anjana Devi and 2 Ors. v. the State of Assam and 4 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

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