Dr. Abdul Mannan Vs the State of Assam and 3 Ors.

Heard Mr. B D Konwar, learned Senior counsel assisted by Mr. B Doley, learned counsel for the petitioner. Also heard Mr. S Das, learned standing counsel, Department of Higher Education, Assam appearing for respondent no. 1 & 2 and Mr. P Hazarika, learned counsel appearing for the respondent no. 3 & 4.

¶20

The petitioner, in the present writ petition, has presented a challenge to an order dated 05.11.2014 issued by the Director, Department of Higher Education, Assam, by which the provincialisation of the services of the petitioner, effected vide an order dated 20.01.2014, was withdrawn on the ground that the petitioner was the holder of the 4^th post in the Department of English, and the college did not have a Government concurrence for offering Major Course, in English subject.

¶21

As projected in the writ petition, the petitioner was recruited as an Assistant Professor in the Department of English of Laluk College, Lakhimpur, Assam, in pursuance to a process of selection. The appointment of the petitioner was effected vide an order dated 08.10.2010 and the petitioner joined his services on 09.10.2010. At the time of joining of the petitioner in the Department of English of the said College, there were already 3 (Three) other Assistant Professors working in the Department recruited before the recruitment of the petitioner, herein. The College, at the time of recruitment of the petitioner, was in its venture stage.

¶22

The Government, thereafter, enacted the Assam Venture Educational

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Institutions (Provincialisation of Services) Act, 2011. The college of the petitioner, being found to be an eligible institution for having the services of the teachers and staff working, therein, provincialized, the case of the eligible teachers in the said College and was taken up for consideration for provincialization of their services. The constituted Committee, on considering the eligibility of the Assistant Professors including the Assistant Professors working in the Department of English, proceeded to recommend the names of the incumbents working in the said departments as Assistant Professors, found eligible for provincialisation of their Services. On conclusion of the said process, a list of eligible Professors of the College found eligible to have their services provincialised, came to be published.

¶25

Therein, the name of one Sri. Biswajyoti Borpatra, and the petitioner, herein, were reflected to be qualified candidates for provincialization of their services against the posts that would now be required to be sanctioned to the Department of English of the said college. As a consequence to the declaration of the eligibility of the petitioner, herein, the petitioner was, vide order dated 20.01.2014, provincialized in his services with retrospective effect i.e. 01.01.2013. The petitioner accepted the said provincialization, effected in his case and joined his services in such capacity, as an Assistant Professor in the Department of English. Thereafter, vide an order dated 05.11.2014, reckoning that the petitioner was the holder of the 4^th post in the Department of English of the College and the College not having a Government concurrence for offering major courses, the Director of Higher Education, Assam, proceeded, vide order dated 05.11.2014, to withdraw the provincialization, as effected in respect of the petitioner, herein, vide the order dated 20.01.2014.

¶26

Being aggrieved, the petitioner has instituted the present wit petition.

¶27

Mr. B D Konwar, learned Senior counsel for the petitioner, by reiterating the facts noticed, hereinabove, has submitted that although the petitioner was the holder of the 4^th post existing in the Department of English of the College in

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question, the constituted Committee under the Act of 2011, having found him and one Sri. Biswajyoti Borpatra to be the only qualified candidates, possessing the requisite UGC norms for provincialization of their services, the petitioner was provincialized in his services by construing him to be second Assistant Professor in the Department of English. Mr. B D Konwar, learned Senior counsel submits that in terms of the provisions of the Act of 2011, 3 (Three) posts are mandated to be so sanctioned to a particular department of the College for provincialization of the services of the Assistant Professors working, therein, and accordingly, he submits that the petitioner, being so found qualified for provincialization of his services, his services was so provincialized against one of the 3 (Three) posts mandated to be sanctioned to the Department of English of the College, in question.

¶30

Mr. B D Konwar, learned Senior counsel has submitted that the petitioner,

¶31

admittedly, was the 4^th post holder and there were 3 (Three) other Assistant Professors, placed above him in the Department and in the usual course, the Services of the first 3 (Three) incumbents ought to have been provincialized. However, the constituted Committees, having found the petitioner and said Sri. Biswajyoti Borpatra, only to be qualified in terms of the UGC norms holding the field, recommendation came to be made in their favour. He further submits that the 2 (Two) other candidates in the field who were senior to the petitioner had not raised any objection with regard to the provincialization effected in respect of the petitioner, herein. He further submits that the 2 (Two) other Professors who are senior to the petitioner working in the Department of English of the said College, at its venture stage, were considered for provincialization of their services in terms of the provisions of The Assam Education (Provincialisation of Services of teachers and reorganization of educational institutions) Act, 2017 and their services were provincialized vide issuance of an order dated 05.02.2021. The said 2 (Two) Professors have also not presented any challenge to such prospective provincialization of their services.

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In view of the above, Mr. B D Konwar, learned Senior counsel for the petitioner submits that the order dated 05.11.2014 would mandate an interference from this Court.

¶34

Mr. S Das, learned Standing Counsel, Department of Higher Education, Assam, submits that in terms of the provisions of the Act of 2011, more particularly the provisions in proviso to Sub-Section (2) of Section 4 of the said Act, where the number of such employees serving in a venture educational institution exceeds the number as specified in the schedule, the provincialization of services of the employees shall be on the basis of seniority in respective category in the concerned educational institution. He submits that in the facts of the case on hand, the category as finding mention in the proviso to sub-Section (2) of Section 4 of the Act of 2017 would be the post of Assistant Professor in the Department of English. He submits that in terms of the schedule to the said Act, 3 (Three) posts of Assistant Professors were to be sanctioned for each department for the pass course and in the event, the concurrence was received by the department concerned for also offering a major course in the subject concerned, one further post was permissible to be so sanctioned.

¶35

Mr. S Das, learned standing counsel, Department of Higher Education, Assam, submits that with regard to the Department of English of Laluk College, Lakhimpur, Assam, the said department not being granted an concurrence for offering a major course, the said department was only offering a pass course and accordingly, only 3 (Three) posts were mandated to be sanctioned to the said department. Accordingly, he submits that there being 4 (Four) incumbents working as Assistant Professors in the said department, the provincialization of services against the 3 (Three) posts, now required to be sanctioned, ought to have been made by reckoning the services rendered by the first 3 (Three) senior incumbents. He submits that the petitioner, being the 4th incumbent in the department against the post of Assistant Professor, was not entitled to have his services provincialized

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under the provisions of the Act of 2011.

¶38

Mr. S Das, learned standing counsel, Department of Higher Education, Assam, submits that on account of an error committed in processing of the case of the petitioner, his services came to be provincialized vide an order dated 20.01.2014. He submits that although the services of the petitioner was provincialized vide the order dated 20.01.2014, the said order also incorporated within itself a condition to the effect that in the event if any defect is found and/or procedural lapse is found to have occasioned in provincializing the services of the incumbent concerned, the same would be mandated to be cancelled, without any prior notice.

¶39

Mr. S Das, learned standing counsel, Department of Higher Education, Assam, submits that basing on the facts noticed, the petitioner was not entitled to have his services provincialized against the 3 (Three) posts mandated to be sanctioned to the Department of English of the College for provincialisation of the senior 3 (Three) Assistant Professors, working in the department, in question. Accordingly, he submits that the respondent authorities, more particularly, the Director of Higher Education, Assam, proceeded, vide order dated 05.11.2014, to withdraw the provincialization of the services of the petitioner, as effected vide the order dated 20.01.2014.

¶40

In the above context, Mr. S Das, learned standing counsel, Department of Higher Education, Assam, submits that there is no error committed by the respondent authorities in issuing the order dated 05.11.2014 and the same having been so issued to rectify an irregularity committed in the matter, the same would not mandate an interference from this Court.

¶41

Mr. P Hazarika, learned counsel appearing for the respondent nos. 3 & 4, submits that the College authorities had forwarded the name of the petitioner by reflecting that he is the holder of the 4^th post. He submits that the consideration, for provincialisation of his services, in respect of the petitioner, by the respondent

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authorities was so made by construing him to be the incumbent in the 4^th post. He submits that college authorities are not aware of the reason existing, basing on which the authorities had proceeded to provincialise the services of only the petitioner and said Sri. Biswajyoti Borpatra, in the Department of English of the College.

¶44

Mr. P Hazarika, learned counsel appearing for the respondent nos. 3 & 4, has further submitted that 2 (Two) other incumbents placed in seniority position, in the Department of English, between Sri. Biswajyoti Borpatra and the petitioner, herein, were considered by the respondent authorities under the provisions of the Act of 2017 and the services of the said incumbents were so provincialized vide an order dated 05.02.2021. He submits that said 2 (Two) incumbents have accepted their provincialization of services as effected vide the order dated 05.02.2021 and are continuing in their services under the said order of provincialization.

¶45

I have heard the learned counsel for the parties and perused the materials available on record.

¶46

The facts noticed, hereinabove, are not in dispute.

¶47

The petitioner, admittedly, was recruited by the college authorities, when the college was in the venture stage, as an Assistant Professor in the Department of English, Laluk College. There were other 3 (Three) incumbents working as Assistant Professor in the Department of English at the time of recruitment of the petitioner, including said Biswajyoti Borpatra.

¶48

The college authorities, after the enactment of the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011, had placed the particulars of the Assistant Professors working in the College, more particularly, those working in the Department of English of the College, by highlighting that the petitioner in the Department of English, was holding the 4^th post. The particulars of the 3 (Three) other Senior Assistant Professors working in the Department of English

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were also duly forwarded. However, the constituted committee, under the Act of 2011, having considered such particulars, proceeded to recommend the names of the petitioner and the said Biswajyoti Borpatra, for provincialization of their services. Accordingly, upon further verifications being done, in the eligibility list of Assistant Professors of the said college, working in different departments, in so far as it concerns the Department of English, only the names of 2 (Two) Assistant Professors i.e. said Biswajyoti Borpatra and the petitioner came to be published notifying them to have been found eligible for having their services provincialised. Accordingly, vide order dated 20.01.2024, the services of the petitioner and said Biswajyoti Borpatra came to be provincialised against the Department of English of the said college.

¶51

The provisions of the Act of 2011, more particularly the schedule, thereof, mandates that for a degree college, it would be permissible to provincialise services of 3 (Three) Lecturers in a particular department for the pass course. In the event the department had received Government concurrence for offering Major Course, services of one additional Assistant Professor would also be permissible to be provincialised.

¶52

In terms of the Schedule of the Act of 2011, 3 (Three) posts of Assistant Professor was only mandated to be sanctioned, in respect of the Department of English, for provincialising the services of Assistant Professors working, therein, as the said department had not received Government concurrence for offering Major Course, Accordingly, in terms of the provisions of the 1^st proviso to sub-Section (2) of Section 4 of the Act of 2011, the services of the first 3 (Three) incumbents in the post of Assistant Professor, in order of their seniority were required to be provincialised in their services.

¶53

In the case on hand, it is seen that upon conclusion of the process of verification and scrutiny of the particulars of the Assistant Professors working in the Department of English of the College, in question, in terms of the provisions of Sub-

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Section (4) of Section 10 of the Act of 2011, a list of Assistant Professors found eligible for provincialisation of their services, in various departments of the College in question, came to be published and, therein, in respect of the English Department, only the names of said Sri. Biswajyoti Borpatra and the petitioner came to be published. Accordingly, basing on the said determination of eligibility by the empowered Committee and other authorities as envisaged under the provisions of the Act of 2011, the services of the petitioner came to be provincialised against one of the 2 (Two) posts sanctioned for the purpose to the Department of English, Laluk College.

¶56

Having noticed the above developments taking place in the matter, this Court would now examine the impugned order dated 05.11.2014. The justification given by the respondent authorities, for issuance of the order dated 05.11.2014, towards withdrawal of the provincialisation effected of the services of the petitioner, is that he was not eligible to have his services provincialised, being the holder of the 4^th post in the Department of English of the College, during its venture stage.

¶57

The justification advanced by the respondent authorities towards issuance of the order dated 05.11.2014, has been examined by this Court. This Court finds that while it is correct that the petitioner was the holder of the 4^th post in the Department of English of the College, during its venture stage, no misrepresentation is found to have been made in this connection by the college authorities while placing the case of the petitioner before the concerned authorities for consideration of his case for provincialisation of his services, the constituted Committee as well as other authorities mandated under the provisions of the Act of 2011 had extended consideration to the case of the petitioner for provincialisation of his services by also reckoning that he was the holder of the 4^th post in the said department. However, the authorities, in so far as the department of English of the said college is concerned, only found 2 (Two) incumbents working, therein, to be qualified to have

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their services provincialised. It is on the basis of such determination of eligibility that the services of the petitioner came to be provincialised.

¶60

The other 2 (Two) senior incumbents working in the Department of English, in the said college, is not found to have assailed the determination of the eligibility of the petitioner, for having his services provincialised, nor is found to have assailed the order dated 20.01.2014 issued towards provincialising the services of the petitioner. This Court also would notice that 3 (Three) posts were permissible to be sanctioned to the Department of English of the College in question, for provincialising the services of the Assistant Professors working, therein, however only 2 (Two) posts came to be sanctioned and the services of Sri. Biswajyoti Borpatra and the petitioner came to be provincialised. No grievance is also found to have been raised by the other 2 (Two) incumbents working in the said Department on the said non-sanctioning of 3 (Three) posts to the said department.

¶61

This Court further notices that cases of 2 (Two) incumbents working in the Department of English of the College, senior to the petitioner was considered under the provisions of the Act of 2017 and their services were also provincialised, albeit with prospective effect, which is found to have also been accepted by them.

¶62

In view of the above discussions, this Court is of the considered view that the petitioner, at the time of provincialisation of his services, having already acquired the norms mandated for such provincialisation, the respondent authorities ought not to have proceeded to issue the impugned order dated 05.11.2014, withdrawing the provincialisation of the services of the petitioner, by construing him to be the holder of the 4^th post in the Department, when the college was in its venture stage, inasmuch as the services of the petitioner came to be provincialised with the permissible strength as mandated under the Schedule to the Act of 2011, in the Department of English. Such withdrawal is also found to have been done without issuance of a notice to the petitioner, affording to him an opportunity of hearing.

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¶64

In view of the conclusion drawn, hereinabove, this Court is of the considered view that the impugned order dated 05.11.2014 would mandate an interference and accordingly, the same stands set aside. The interference made by this Court into the order dated 05.11.2014, would have the effect of reviving the order dated 20.01.2014 provincialising the services of the petitioner and the petitioner be continued to be extended with all service benefits as flowing to him pursuant to provincialisation of his services.

¶65

With the above observations and directions, the present Writ Petition stands allowed and disposed of.

¶66

JUDGE

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Comparing Assistant

Dr. Abdul Mannan v. the State of Assam and 3 Ors.

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Dr. Abdul Mannan v. the State of Assam and 3 Ors.

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