Allowed

Altaf Hussain v. the State of Assam and 4 Ors.

Gauhati HC14 Sept 2025WP(C)/5996/2022

Case brief

AI extract

What is this about?

The writ petition challenged the Finance Department's rejection of the petitioner's regularization proposal. The Court held the rejection illegal and arbitrary, applying the principle that long-serving irregular employees in sanctioned posts should be regularized. The opinion was quashed, and the department was directed to give effect to the earlier regularization order and pay arrears.

What did the court decide?

Mandamus quashing the Finance Department's opinion and directing regularization implementation and payment of regular and arrear salary.

Altaf Hussain Vs the State of Assam and 4 Ors. — Pension and Retirement Benefits | Gauhati HC (2025)

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GAHC010182392022

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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. 5996/2022

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Altaf Hussain,

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S/o Haji Moslem Uddin, Vill & PO-Katarihara, Dist.-Goalpara, Assam.

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…… Petitioner .

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-Versus-

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The State of Assam, Represented by the Commissioner & Secretary to the Govt. of Assam, Education (Secondary) Department, Dispur, Guwahati-6.

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The Commissioner & Secretary to the Govt. of Assam, Finance Department, Dispur, Guwahati-6.

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The Director,

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Secondary Education, Assam, Kahilipara, Guwahati-19.

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The Inspector of Schools, Goalpara District Circle, Dist.-Goalpara, Assam.

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The Headmaster, Indira High School, Vill & PO-Pukhuripara, Dist.-Goalpara, Assam.

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…… Respondents .

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For the Petitioner : Mr. A.R. Bhuyan. ……Advocate. For the Respondents : Ms. H. Terangpi, SC, Sec. Edu., Mr. B. Gogoi, SC, Finance. ……Advocates.

WP(C) 5996/2022

Page 1 of 24

BEFORE

HON’BLE MR. JUSTICE ROBIN PHUKAN

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Date of Hearing : 21.07.2025

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Date of Judgment : 15.09.2025

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JUDGMENT AND ORDER

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Heard Mr. A.R. Bhuyan, learned counsel for the petitioner. Also heard Ms. H. Terangpi, learned standing counsel, Secondary Education Department, appearing for the respondent Nos. 1, 3 and 4 and Mr. B. Gogoi, learned standing counsel, Finance Department, appearing for the respondent No.2.

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2. In this petition under Article 226 of the Constitution of India, the petitioner has challenged the opinion dated 27.10.2021 (Annexure-20) of the Finance Department in the concerned file as regards rejection of proposal for regularization of service of the petitioner as Hindi Assistant Teacher of Indira High School in the district of Goalpara and also to direct the respondents, more particularly, the Finance Department to recall/rescind and/or revoke the opinion dated 27.10.2021 (Annexure-20) and also to direct the respondents, more particularly, the Finance Department, Govt. of Assam, being respondent No.2, to accord its approval to the proposal submitted by the Secondary Education Department for the purpose of regularization of service of the petitioner as Hindi Assistant Teacher of Indira High School.

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

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“The petitioner was initially appointed as an Assistant Hindi Teacher of Thorko High School. While he was serving in the said School, on recommendation and approval of the Government in the Secondary Education Department, the service of the petitioner was adjusted as well as regularized against the vacant post of Hindi Teacher in Indira High School, vide order dated 06.02.2001. The petitioner then joined in Indira High School on 09.01.2001 and continuously rendering his service. Thereafter, with regard to the matter relating to payment of salary and regularization of service of the petitioner, several communications were made at various levels, but the same failed to yield any result. Instead the respondent authorities had decided to dispense with the service of the petitioner. Thereafter, the respondent No.1 vide his letter dated 03.09.2001, addressed to the Inspector of School asked to furnish particulars of the teaching and non teaching staffs to the department and further directed that till receipt of such instruction salary bill of such teaching and non teaching staffs shall be stopped. The Inspector of School, thereafter, furnished the particulars of teaching and non-teaching staffs who were appointed between 2000-2001, without approval of High Power State Level Empowered Committee and then the respondent No.3 had further instructed not to prepare salary bill of those teacher until further order vide his letter dated 19.10.2001. Then petitioner had approached this Court by filing WP(C) No.777/2002, wherein vide order dated 18.02.2002, this Court has interfered with the said letter dated 03.09.2001 and the letter dated 19.10.2001. Thereafter, the petitioner had approached the respondent authority

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Page 3 of 24

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with a prayer for releasing his salary, but the same was rejected. Thereafter, the petitioner had approached this court again byfiling a contempt petition, being Contempt Case No. 555/2002, for violation of the order dated 18.02.2002 passed the WP© No. 777/2002. Thereafter, the respondents had released his salary up to the month of July 2003. Thereafter, the respondent No.3 had without giving an opportunity of being heard and without assigning any reason thereof, vide order dated 21.08.2003 had cancelled the adjustment of service of the petitioner in Indira High School and further observed that the petitioner may file an appeal before him within 15 days and that will be considered as per existing rules. The petitioner then filed an appeal within 15 days before the respondent No.3. But, the same had not been attended to for which the petitioner had again approached this Court by filing WP(C) No. 7928/2023 challenging the order dated 21.08.2003. Then this Court, vide order dated 05.01.2006, disposed of the said petition by directing the respondent No.3 to dispose of the appeal of the petitioner within 2(two) months, with an observation not to disturb the service of the petitioner if not already dispensed with till disposal of the appeal, and also directed respondent No.3 to looked into the matter of nonpayment of salary of the petitioner. The petitioner then obtained certified copy of the order of this court dated 21.08.2003 and placed the same before the respondent No.3, who did nothing upon the representation. Thereafter, respondent No.3 had inspected Indira High School to verify as to whether the petitioner was working or not and after inspection he found the petitioner working in the said School and accordingly, he

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had submitted a report to the respondent No.2 on 06.08.2012. Thereafter, the respondent No.3 after going through the report of respondent No.4 vide his order dated 25.07.2013 observed that as service of the petitioner was not terminated, the government may consider his case for regularization, with prospective effect and thereafter forwarded a copy of the said order to the respondent No.1. The respondent No.1 then on receipt of the said order dated 25.07.2013, and on consideration of the proposal/recommendation therein, vide its letter dated 13.09.2013, asked the respondent No.3 to submit a proposal for regularization of service of the petitioner in Indira High School. Thereafter, the respondent No. 3 vide his letter dated 20.02.2014 had forwarded a proposal for regularization of service of the petitioner as Hindi Teacher in Indira High School along with Finance Format (SIU) –I & II for. But, the said proposal was not attended to, for which the petitioner has preferred another writ petition, being WP(C) No.4511/2015 before this Court for regularization of his service. In pursuance to the order being passed by this Court in WP(C) No.4511/2015, the Government in Secondary Education Department initiated the process for regularization of service of the petitioner and in response to the said instruction of the Government, the Director, Secondary Education, through the Joint Director of the said office, conducted a detail enquiry as regards the selection/appointment/ regularization of service of the petitioner and based on the said report, the Government in the Secondary Education Department, sought for judicial view/opinion and thereafter, the Judicial Department, after perusing the entire materials, give its opinion to

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consider and adjust the service of the petitioner against the proposed sanctioned post vide its endorsement dated 09.07.2021, and while the Government has approved the proposal of the Government and the concerned department i.e. respondent Nos.1, 3 and 4 had considered and approved the claim of the petitioner. The Finance Department, being respondent No.2, in its opinion dated 27.10.2021, (Annexure-20) expressed its inability to consider the proposal for regularization of service of the petitioner. Being aggrieved, the petitioner approached this Court by filing the present petition.”

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4. The respondent No.3, the Director of Secondary Education, has filed its affidavit-in-opposition, wherein it has taken a stand that the petitioner was appointed as honorary Hindi Teacher by the Managing Committee of Thorko High School, Goalpara, in its venture stage vide resolution dated 03.02.1999. Later on, the said High School was provincialized on 01.01.2013, vide Office Order No.PC/Sec/50/2013/45, dated 03.06.2013. But, prior to the provincialization of Thorko High School, on the basis of an application submitted by the petitioner, the Government has directed to the Inspector of Schools, Goalpara, vide its letter No. B(3)S.437/2000/82, dated 08.01.2001 to take necessary action for regularization of his service with prospective effect by way of adjustment against the vacant post of Hindi Teacher of Indira High School, Goalpara. Thereafter, the Inspector of Schools, Goalpara, adjusted the petitioner against the vacant post of Hindi Teacher (Senior) vide its Order No.IS/GLP/06/201/3945, dated 06.02.2001 and he joined in Indira High School on 01.03.2001 and the said High School was already provincialized in the year 1991. He also received salary for 30 months in

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the newly joined Indira High School. It is also stated that in compliance of the order dated 18.02.2002 passed by this Court in WP(C) No.777/2002, the Director, Secondary Education, Assam, vide Order No.GIS/HE/CC/76/2002, dated 21.08.2003 had cancelled the order of adjustment of service of the petitioner in Indira High School by holding that the adjustment of the service of the petitioner in Indira High School was wrong and illegal. Thereafter, the petitioner had preferred another writ petition, being WP(C) No.4511/2015 for regularization of his service. In the said case, the Government has directed the Director of Secondary Education, Assam to furnish a detailed justification note on the matter of regularization/adjustment of the service of the petitioner against the vacant post of Hindi Teacher in Indira High School, Goalpara, vide letter No.ELC/WP(C)/4511/2015/634/37, dated 23.07.2021. Accordingly, the justification report was submitted to the Government vide letter No.GIS/CC/16/2015/pt/56, dated 06.08.2021 and thereafter, the Government has informed the Director of Secondary Education vide its letter dated 06.12.2021, that the Finance Department had expressed its inability to consider the proposal of regularization of service of the petitioner vide U.O. No.681/2021, dated 27.10.2021 and that in reference to the Government Office Memorandum, being No.A(I)E.621/2003/320, dated 21.01.2004 and the letter No.A(I)E.621/2003/322, dated 30.06.2004 and letter No.ASE.46/2006/16, dated 07.03.2006 regarding appointment of teachers on honorary basis by the Managing Committee, the Government is not liable for regularization of the services of the honorary teachers, who were appointed by the Managing Committee and in WA No.252/2003, in WP(C) No.2932/2003, it has clearly been ordered that the principle laid down in that case is that persons appointed by the

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Managing Committee, after the provincialization of the school on honorary basis, are not eligible for regularization and on such count, the petitioner is not eligible for getting his salaries as his adjustment of service in Indira High School under Goalpara district has already been cancelled vide Office Order No.GIS/HE/CC/76/2002, dated 21.08.2003.

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5. The respondent No.2 has also filed an affidavit-in-opposition, wherein it is stated that regarding regularization of service of the petitioner, the Finance Department vide endorsement dated 27.10.2021 regretted its inability to consider for regularization of service, since the petitioner was appointed illegally.

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6. The petitioner then filed an additional affidavit bringing on record the order of Thorko High School and Indira High School, pursuant to the direction issued by this Court on 06.05.2025. 7. Mr. Bhuyan, learned counsel for the petitioner submits that the petitioner was appointed initially as Assistant Hindi Teacher in Thorko High School, but while he was serving in the said school, he was adjusted as well as regularized to the vacant post of Hindi Teacher of Indira High School vide order dated 06.02.2001. Thereafter, the petitioner has received salaries for 30 months and he had rendered 26 valuable years in the said service, but his service has not been regularized by the State respondents, more particularly by the respondent No.2, the Finance Department had refused to regularize the service of the petitioner. Mr. Bhuyan further submits that on different point of time the petitioner has preferred different writ petitions, being WP(C) No.777/2002 and WP(C) No.4511/2015, but despite the orders being passed by this Court, the service of the petitioner has not been regularized by the State respondents. Mr. Bhuyan further submits that in view of the decision of WP(C) 5996/2022 Page 8 of 24

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Hon’ble Supreme Court in the case of Secretary, State of Karnataka & Ors. v. Umadevi (3) & Ors. , reported in (2006) 4 SCC 1, and in the case of Nihal Singh v. State of Punjab , reported in (2013) 14 SCC 65 and also in view of the decision of the Hon’ble Supreme Court in the case of Jaggo v. Union of India & Ors. , reported in 2024 SCC OnLine SC 3826 , the petitioner is entitled to be regularized in his service and on such count, Mr. Bhuyan submits that the rejection of the claim of the petitioner by the Finance Department is illegal and arbitrary and therefore, it is contended to set aside the same and to direct the respondent authorities to regularize the service of the petitioner in terms of the direction issued by the Hon’ble Supreme Court in the case of Umadevi (3) (supra) and subsequently in the case of Jaggo (supra) .

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8. Per contra, Mr. Gogoi, learned standing counsel for the Finance Department has vehemently opposed the petition. Mr. Gogoi submits that the adjustment of the petitioner and regularization of his service vide order dated 06.02.2001, had already been cancelled and the said order is still in force. Mr. Gogoi also submits that the adjustment of the petitioner in the High School which has already been provincialized is not in accordance with law and since the very regularization of the petitioner is illegal, he is not entitled to claim the benefit of regularization and under such circumstances, Mr. Gogoi has contended to dismiss the petition. In support of his submission, Mr. Gogoi has referred following decisions:-

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(i) State of Orissa & Anr. v. Mamata Mohanty , reported in (2011) 3 SCC 436 ;

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(ii) State of Jammu and Kashmir & Ors. v. District Bar Association, Bandipora , reported in (2017) 3 SCC 410 ;

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(iii) State of Karnataka & Ors. v. G.V. Chandrashekar , reported in (2009) 4 SCC 342 ; and

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(iv) National Fertilizers Ltd. & Ors. v. Somvir Singh , reported in (2006) 5 SCC 493 .

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9. 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 office note of the Finance Department (Annexure-20) and also decisions referred by learned counsel for both the parties.

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10. The basic facts here in this case are not in dispute. The petitioner was appointed as Hindi Teacher in Thorko High School, vide appointment letter, dated 04.02.1999, by the Managing Committee of the said school. Thereafter vide order dated 06.02.2001, he has been adjusted as well as regularized in the vacant post of Hindi Teacher of Indira High School. Initially he had received salaries for 30 months, after interference of this Court. But, thereafter, he has not been paid salary, instead his service was dispensed. Thereafter, he preferred one writ petition, being WP(C) No.777/2002 and vide order dated 18.02.2002, the same was stayed. Thereafter, the petitioner approached the respondent authority to release his salary, but the same was refused, for which he filed one contempt case, being Cont.Cas(C) No.555/2002 and thereafter, the department has released the salary of the petitioner up to July 2003. Thereafter, the respondent No.3 without assigning any reason and also without providing any opportunity of being heard, vide order dated 21.08.2003 cancelled the adjustment of the service of the petitioner. Thereafter, the petitioner has preferred another writ petition, being WP(C) No.7928/2003, challenging the order dated 21.08.2003, and the said writ petition came

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to be disposed of vide order dated 05.01.2006, with a direction to the respondent No.3 to dispose of the appeal of the petitioner dated 03.09.2003, within a period of 2(two) months. Thereafter, the petitioner has submitted the certified copy of the order dated 05.01.2006, to the respondent No.3 and thereafter, the respondent No.4 made an inspection of the Indira High School to verify whether the petitioner has been still working there or not and thereafter, he had submitted a report to the respondent No.2 on 06.08.2012. Thereafter, the respondent No.3 on the basis of the report of respondent No.4 vide order dated 25.07.2013 observed that the service of the petitioner was not terminated and therefore, the Government may consider his case for regularization with prospective effect and further observed that since August 2003 the petitioner was not paid with his salary. Thereafter, the respondent No.3 had forwarded the said communication to the respondent No.1 vide Annexure-11 and thereafter, the respondent No.1 has initiated the process to regularize the service of the petitioner and accordingly, vide order dated 13.09.2013, had requested the respondent No.3 to submit proposal for regularization of service of the petitioner as Assistant Hindi Teacher in Indira High School along with Finance (SIU) format I & II and creation number. Thereafter, the respondent No.1 vide letter dated 13.09.2013 forwarded the proposal for regularization of service of the petitioner as Hindi Teacher of Indira High School along with the Finance Format (SIU) – I & II for necessary action and the proposal seeking approval has not yet been approved.

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11. Thereafter, the petitioner has filed another writ petition, being WP(C) No.4511/2015, wherein vide order dated 07.08.2015 notice was issued to the respondents and it was held that pendency of the writ

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petition would not be a bar for the respondents from regularizing the service of the petitioner and thereafter, vide order dated 04.12.2019 said writ petition was disposed of by directing the respondent authorities to examine the proposal submitted by the Director, vide his letter dated 20.02.2014, and to take appropriate action relating to the claim of the petitioner for regularization of his service as Assistant Hindi Teacher in Indira High School in the district of Goalpara and further, it was observed that if otherwise found eligible for such regularization, then it was directed to extend him the benefit of such regularization. Thereafter, the petitioner has submitted the order dated 04.12.2019 before the respondent No.1, but the respondent No.1 vide letter dated 18.02.2020 asked for an action taken report from the respondent No.2 and thereafter, the proposal was submitted to the respondent No.1 by the respondent No.2 and the respondent No.1 on receipt of the said report from the respondent No.2, send the same seeking views of the Judicial Department and the Judicial Department vide Annexure-19 had expressed the opinion that “since admittedly the service of the petitioner was not dispensed with and thereby, made him to work for a prolonged period of 20 years and therefore, nonconsideration of the case would cause great injustice. However, there may be legal difficulties in regularizing his service as proposed. Therefore, the department may consider to adjust his service against the proposed sanctioned post and there may not be any difficulty since the post is available and there are numerous instances of such adjustment of services of honorary teachers in Assam and accordingly, the department may consider his case for adjustment prospectively, on humanitarian consideration as WP(C) 5996/2022 Page 12 of 24

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proposed and this may be done, in substantial compliance of the Hon’ble Court’s order dated 04.12.2019 cited above”. And the said opinion was given on 09.07.2021. But the Finance Department vide impugned opinion dated 27.10.2021 expressed its inability to consider the proposal for regularization of the petitioner on the ground that the petitioner had been illegally appointed. Therefore, it had put a question, under what provision of Rules/Act, the Education Department submitted its proposal for regularization of service of the petitioner.

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12. Perusal of the opinion of the Finance Department indicates that the petitioner has been illegally appointed and therefore, it has expressed its inability to consider the proposal.

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13. It also appears that the petitioner was appointed in the Thorko High School as Assistant Hindi Teacher vide Annexure-1 on 04.02.1999. At the relevant point of time, the said school was venture school and as such, his appointment as Assistant Teacher in Hindi in the said school cannot be said to be illegal, as no material is placed on record by the respondent authorities to suggest that the appointment of the petitioner in the aforementioned school as Assistant Hindi Teacher is illegal. Thereafter, on the basis of a letter dated 08.01.2001, written by the then Additional Secretary to the Govt. of Assam, Education (Secondary) Department, addressed to the Inspector of Schools, GDC, Goalpara, the service of the petitioner was regularized by way of adjustment as Hindi Teacher, vide order dated 06.02.2001 and thereafter, the said order was cancelled by the Director of Secondary Education, Assam, vide order dated 21.08.2003 and the said order was interfered with by this Court in the WP(C) No.7928/2003, vide order dated 05.01.2006. The petitioner

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then preferred an appeal on 03.09.2003 to the Director, Secondary Education and this Court has directed the respondent No.3 to dispose of the same within 2(two) months and not to disturb the service of the petitioner and also to look after the non-payment of salary to the petitioner and during the pendency of the appeal, the respondent No.4 had made an inspection of the school to verify whether the petitioner was working there or not and the respondent No.4 thereafter submitted a report on 06.08.2012 and the respondent No.3 after going through the report of the respondent No.4, passed an order dated 25.07.2013, observing that the petitioner was not terminated and therefore, the Government may consider his case for regularization with prospective effect and further observed that the petitioner has not been paid salary since August 2003 and the respondent No.3 had forwarded the report to the respondent No.1 and the said proposal culminated in rejection of the proposal for regularization of the petitioner on the ground of illegally appointed.

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14. Though Mr. Gogoi, learned standing counsel for the respondents in Finance Department submits that the order of cancellation dated 21.08.2003 (Annexure-8) has not yet been cancelled, yet, the submission of Mr. Gogoi left this Court unimpressed, as because against the said order the petitioner has preferred an appeal and the said appeal is yet to be disposed of and the respondent No.3 on the basis of the enquiry conducted by the respondent No.4, submitted a proposal to the respondent No.1 for regularization of service of the petitioner. Moreover, this Court, vide order dated 05.01.2006, in WP(C) No. 7928/2023 disposed of the said petition by directing the respondent No.3 to dispose of the appeal of the petitioner within 2(two) months, with an observation

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not to disturb the service of the petitioner if not already dispensed with till disposal of the appeal, and also directed respondent No.3 to look into the matter of nonpayment of salary of the petitioner. Further, from the order of the respondent No.3, dated 25.07.2013 (Annexure-11), wherein it had been observed that the service of the petitioner was not terminated and the government may consider his case for regularization, with prospective effect.

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15. It is well settled in the case of Umadevi (3) (supra) , specially in paragraph 53 that the service of an irregular employee can also be regularized and the said decision has also been followed subsequently in the cases of State of Karnataka & Ors. v. M.L. Kesari & Ors. , reported in (2010) 9 SCC 247 and Nihal Singh (supra) and recently in the case of Jaggo (supra) .

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15.1. In the case of Umadevi(3),(supra) in para No.53, Hon’ble Supreme Court has held as under:-

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53. One aspect needs to be clarified. There may be
cases where irregular appointments (not illegal
appointments) as explained in S.V.
Narayanappa [(1967) 1 SCR 128], R. N. Nanjundappa
 [(1972) 1 SCC 409 : (1972) 2 SCR 799] and B.N.
Nagarajan [(1979) 4 SCC 507, and referred to in
para 15 above, of duly qualified persons in duly
sanctioned vacant posts might have been made and
the employees have continued to work for ten years
or more but without the intervention of orders of
the courts or of tribunals. The question of
regularization of the services of such employees
may have to be considered on merits in the light of
the principles settled by this Court in the cases
above referred to and in the light of this

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judgment. In that context, the Union of India, the
State Governments and their instrumentalities
should take steps to regularize as a one-time
measure, the services of
such irregularly appointed, who have worked for ten
years or more in duly sanctioned posts but not
under cover of orders of the courts or of tribunals
and should further ensure that regular recruitments
are undertaken to fill those vacant sanctioned
posts that require to be filled up, in cases where
temporary employees or daily wagers are being now
employed. The process must be set in motion within
six months from this date. We also clarify that
regularisation, if any already made, but not sub-
judice, need not be reopened based on this
judgment, but there should be no further bypassing
of the constitutional requirement and regularising
or making permanent, those not duly appointed as
per the constitutional scheme.

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15.2. In the case of Nihal Singh (supra) Hon’ble Supreme Court has held as under:-

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“36. The other factor which the State is required
to keep in mind while creating or abolishing posts
is the financial implications involved in such a
decision. The creation of posts necessarily means
additional financial burden on the exchequer of the
State. Depending upon the priorities of the State,
the allocation of the finances is no doubt
exclusively within the domain of the legislature.
However in the instant case creation of new posts
would not create any additional financial burden to
the State as the various banks at whose disposal
the services of each of the appellants is made
available have agreed to bear the burden. If

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absorbing the appellants into the services of the
State and providing benefits on a par with the
police officers of similar rank employed by the
State results in further financial commitment it is
always open for the State to demand the banks to
meet such additional burden. Apparently no such
demand has ever been made by the State. The result
is—the various banks which avail the services of
these appellants enjoy the supply of cheap labour
over a period of decades. It is also pertinent to
notice that these banks are public sector banks.

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37. We are of the opinion that neither the
Government of Punjab nor these public sector banks
can continue such a practice consistent with their
obligation to function in accordance with the
Constitution. Umadevi (3) [State of
Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC
(L&S) 753] judgment cannot become a licence for
exploitation by the State and its
instrumentalities.

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39. We direct the State of Punjab to regularise the
services of the appellants by creating necessary
posts within a period of three months from today.
Upon such regularisation, the appellants would be
entitled to all the benefits of services attached
to the post which are similar in nature already in
the cadre of the police services of the State. We
are of the opinion that the appellants are entitled
to the costs throughout. In the circumstances, we
quantify the costs to Rs 10,000 to be paid to each
of the appellants.

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15.3. Again in the case of Jagoo (supra) Hon’ble Supreme Court has held as under:-

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20. It is well established that the decision in Uma
Devi (supra) does not intend to penalize employees
who have rendered long years of service fulfilling
ongoing and necessary functions of the State or its
instrumentalities. The said judgment sought to
prevent backdoor entries and illegal appointments
that circumvent constitutional requirements.
However, where appointments were not illegal but
possibly “irregular,” and where employees had
served continuously against the backdrop of
sanctioned functions for a considerable period, the
need for a fair and humane resolution becomes
paramount. Prolonged, continuous, and unblemished
service performing tasks inherently required on a
regular basis can, over the time, transform what
was initially ad-hoc or temporary into a scenario
demanding fair regularization. In a recent judgment
of this Court in Vinod Kumar v. Union of India5, it
was held that held that procedural formalities
cannot be used to deny regularization of service to
an employee whose appointment was termed
“temporary” but has performed the same duties as
performed by the regular employee over a
considerable period in the capacity of the regular
employee. The relevant paras of this judgment have
been reproduced below:

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“6. The application of the judgment in Uma
Devi (supra) by the High Court does not fit
squarely with the facts at hand, given the
specific circumstances under which the appellants
were employed and have continued their service.
The reliance on procedural formalities at the
outset cannot be used to perpetually deny
substantive rights that have accrued over a
considerable period through continuous service.
Their promotion was based on a specific
notification for vacancies and a subsequent

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circular, followed by a selection process
involving written tests and interviews, which
distinguishes their case from the appointments
through back door entry as discussed in the case
of Uma Devi (supra).

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7. The judgment in the case Uma Devi (supra)
also distinguished between “irregular” and
“illegal” appointments underscoring the
importance of considering certain
appointments even if were not made strictly in
accordance with the prescribed Rules and
Procedure, cannot be said to have been made
illegally if they had followed the procedures of
regular appointments such as conduct of written
examinations or interviews as in the present
case…”

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21. The High Court placed undue emphasis on the
initial label of the appellants' engagements and the
outsourcing decision taken after their dismissal.
Courts must look beyond the surface labels and
consider the realities of employment : continuous,
long-term service, indispensable duties, and absence
of any mala fide or illegalities in their
appointments. In that light, refusing regularization
simply because their original terms did not
explicitly state so, or because an outsourcing policy
was belatedly introduced, would be contrary to
principles of fairness and equity.

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22. The pervasive misuse of temporary employment
contracts, as exemplified in this case, reflects a
broader systemic issue that adversely affects
workers' rights and job security. In the private
sector, the rise of the gig economy has led to an
increase in precarious employment arrangements, often
characterized by lack of benefits, job security, and
fair treatment. Such practices have been criticized

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¶101

for exploiting workers and undermining labour
standards. Government institutions, entrusted with
upholding the principles of fairness and justice,
bear an even greater responsibility to avoid such
exploitative employment practices. When public sector
entities engage in misuse of temporary contracts, it
not only mirrors the detrimental trends observed in
the gig economy but also sets a concerning precedent
that can erode public trust in governmental
operations.

¶102

xxxxxx xxxxxxxx

¶103

26. While the judgment in Uma Devi (supra) sought
to curtail the practice of backdoor entries and
ensure appointments adhered to constitutional
principles, it is regrettable that its principles
are often misinterpreted or misapplied to deny
legitimate claims of long-serving employees. This
judgment aimed to distinguish between “illegal” and
“irregular” appointments. It categorically held
that employees in irregular appointments, who were
engaged in duly sanctioned posts and had served
continuously for more than ten years, should be
considered for regularization as a one-time
measure. However, the laudable intent of the
judgment is being subverted when institutions rely
on its dicta to indiscriminately reject the claims
of employees, even in cases where their
appointments are not illegal, but merely lack
adherence to procedural formalities. Government
departments often cite the judgment in Uma
Devi (supra) to argue that no vested right to
regularization exists for temporary employees,
overlooking the judgment's explicit acknowledgment
of cases where regularization is appropriate. This
selective application distorts the judgment's

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¶106

spirit and purpose, effectively weaponizing it
against employees who have rendered indispensable
services over decades.

¶107

16. In the instant case, the petitioner was appointed by the Managing Committee of Thorko High School vide Annexure-1, on 04.02.1999. Indisputably, the said School was at the venture stage at that point of time. And as such the School managing has the right to appoint the petitioner and the same cannot be termed as illegal or irregular. The petitioner had joined on 05.02.1999. While he was rendering his service in Thorko High School, the Additional Secretary to the Government of Assam, Secondary Education Department, recommended for adjustment of service in Indira High School, Goalpara, vide his letter dated 08.01.2001, Annexure-3. Thereafter, his service was regularized vide order dated 06.02.2001, (Annexure- 4) by the respondent No.4 against the vacant post of Hindi Teacher (Sr.), vice Shri Ranjit Kumar Talukdar, H/T (Sr.) transferred. Thereafter, salary of the petitioner was not paid. The petitioner then approached this court by filing writ petition. On interference of this Court, the petitioner had received salary up to July, 2003. He had been continuously rendering his service without salary for more than 22 years. Indisputably he was not terminated from service this Court, as this Court vide order dated 05.01.2006, in WP(C) No. 7928/2023 had made an observation not to disturb the service of the petitioner if not already dispensed with, till disposal of the appeal, preferred by the petitioner. Further, from the order of the respondent No.3, dated 25.07.2013 (Annexure-11), also it appears that the service of the petitioner was not terminated. Instead it is suggested that the government may consider his case for regularization, with prospective

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¶110

effect. These are undisputed facts. And the proposition of law, so laid down in the case of Uma Devi (3) (supra) and in Nihal Singh (supra) and in the case of Jagoo (supra) are squarely applicable to facts here in this case.

¶111

17. Thus, having examined the impugned opinion dated 27.10.2021 (Annexure-20) of the Finance Department in the concerned file, with regards to rejection of proposal for regularization of service of the petitioner as Hindi Assistant Teacher of Indira High School in the district of Goalpara, in the light of the ratio laid down in the case Uma Devi (3) (supra) and in Nihal Singh (supra) and in Jagoo (supra) and also in the light of the submission of learned counsel for both the parties and also considering the facts and circumstances on the record and also in view of the opinion given by the Judicial Department of the Govt. of Assam, this court is unable to endorse the view expressed therein. The impugned opinion is nothing but an abortive attempt to circumvent the order being passed by this Court in the different writ petitions filed by the petitioner, as referred and discussed herein above, and also the observation made by the respondent No.3 in the order dated 25.07.2013.

¶112

18. The endorsement of the Judicial Department dated 09.07.2021 (Annexure-19) indicates that there are numerous instances of such adjustment of services of honorary teachers in Assam and on humanitarian consideration as proposed, the case may be considered by substantially complying with the order of this Court dated 04.12.2019 passed in WP(C) No.4511/2015. The impugned opinion of the Finance Department (Annexure-20) thus, on the face of it, is illegal and arbitrary. It is to be noted here that in the case of Mamata Mohanty, (supra) while dealing with arbitrariness, Hon’ble Supreme Court has held that –

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¶115

“the rule of law inhibits arbitrary action and also makes it liable to be invalidated. Every action of the State or its instrumentalities should not only be fair, legitimate and above board but should be without any affection or aversion. It should neither be suggestive of discrimination nor even give an impression of bias, favouritism and nepotism. Procedural fairness is an implied mandatory requirement to protect against arbitrary action where statute confers wide power coupled with wide discretion on an authority. If the procedure adopted by an authority offends the fundamental fairness or established ethos or shocks the conscience, the order stands vitiated. The decision-making process remains bad.”

¶116

19. Thus, the impugned opinion dated 27.10.2021 (Annexure-20) of the Finance Department is liable to be interfered with being illegal and arbitrary. Accordingly, the same stands seaside and quashed. 20. I have carefully gone through the decisions referred by Mr. Gogoi, the learned standing counsel for the respondent No. 2. And this Court is of the considered opinion that the facts and circumstance of the said cases are totally different from the case in hand and as such the proposition of law laid down in the said cases would not be applicable in all force to the facts and circumstances herein this case.

¶117

21. In the result, this Court finds sufficient merit in this petition and accordingly the same stands allowed. Since the petitioners service has already been regularized by way of adjustment in a vacant post of Hindi Teacher (Sr.) in Indira High School, Goalpara, vice Shri Ranjit Talukdar, H/T, (Sr.) transferred, vide Annexure-4, and the same is still in force due to intervention of this Court, the question of regularization does not arise again.

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¶120

22. Accordingly, by a mandamus of this Court, the respondent authorities are directed to give effect of the Annexure-4, and to pay the petitioner regular as well as arrear salary. It is further provided that in the event of the said post of Hindi Teacher in Indira High School is found to be not available, then the proposal, so submitted by the respondent No.3, to the respondent No.1, shall be taken to its logical conclusion and thereafter, the petitioner shall be paid both regular as well as arrear salary.

¶121

23. Let the aforementioned exercise be carried out within a period of 3(three) months from the date of receipt of certified copy of this judgment and order. The petitioner shall obtain a certified copy of this order and place the same before the respondent No.3, with in a period of two weeks from today.

¶122

24. With the above observation and direction, the present writ petition stands disposed of. No costs.

¶123

Sd/- Robin Phukan JUDGE

¶124

Comparing Assistant

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Page 24 of 24

Altaf Hussain v. the State of Assam and 4 Ors.

Case brief

What is this about?

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Altaf Hussain v. the State of Assam and 4 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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