IN THE GAUHATI HIGH COURT (High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
1. Writ Petition (C) No. 2921 of 2015
1) Sri Mobidur Hussain, Grade-IV employee, Banhgarh Rupjyoti Girls High School, P.O- Silasaku, District- Sivasagar, Assam.
2) Sri Dipak Gogoi, Grade-IV employee, Triseni High School, Village- Ligiripukhuyri Khanikuchi Gaon, P.O- Nazira, District- Sivasagar, Assam.
3) Sri Tulsi Marak, Grade-IV employee, Sologuri Girls High School, Village- Madoorai Tea Estate, P.O- Nazira, District- Sivasagar, Assam.
4) Sri Guni Ram Tanti, Grade-IV employee, Geleky High School, P.O- Geleky, Dist- Sivasagar, Assam.
5) Md. Smail Ali, Grade-IV employee, Nazira Bortala H.S. School, P.O- Nazira, Dist. Sivasagar, Assam.
6) Sri Bipul Buragohain, Grade-IV employee, Mothiachinga Rajkhowa High School, Village- Jatakia, P.O- Jatakia, Dist- Sivasagar, Assam.
7) Sri Sajen Gorh, Grade-IV employee, Mezenga H.S School, Madoorai Tea Estate, P.O- Nazira, District- Sivasagar, Assam.
8) Sri Hem Chandra Sahu, Grade-IV employee, Madoorai Gohin Gaon Jyomati Girls High School, P.O- Madoorai, District- Sivasagar, Assam.
9) Sri Bireswar Gogoi, Grade-IV employee, Khonamukh H.S. School, P.O- Khonamukh, Dist- Sivasagar, Assam.
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10) Sri Bishnu Murah, Grade-IV employee, Godapani H.S. School, P.O- Na-pam Baroti, Dist- Sivasagar.
11) Sri Bikram Kurani, Grade-IV employee, Mejenga H.S School, P.O- Mekipur, Dist- Sivasagar, Assam.
12) Sri Biren Kandha, Grade-IV employee, Dholegagan H.S School, P.O- Mothurapur, Dist- Sivasagar, Assam.
13) Sri Sukeswar Nayak, Grade-IV employee, Mathurapur H.S School, P.O- Mathurapur, District- Sivasagar, Assam.
14) Sri Kusum Baruah, Grade-IV Employee, Tengapukhuri High School, P.O- Tengapukhuri, District- Sivasagar, Assam.
15) Sri Ranjit Mahanta, Grade-IV employee, Banghgarh High School, P.O- Chaingalibari, District- Sivasagar, Assam.
16) Smti Khunja Gogoi (Khanikar), Grade-IV employee, Simaluguri High School, P.O- Simaluguri, District- Sivasagar, Assam.
17) Smti Labanya Gogoi, Grade-IV employee, Chakimukh H.S School, P.O- Chakimukh, District- Sivasagar, Assam.
18) Sri Thaneswar Dutta, Grade-IV employee, Namti Boys H.S School, P.O- Namtidou, Dist-Sivasagar, Assam.
19) Sri Pranjal Mahanta, Grade-IV employee, Nazira Bortala H.S School, P.O- Nazira, District- Sivasagar, Assam.
20) Sri Manu Saikia, Grade-IV employee, Dikhowmukh Janajati H.S School, P.O- Bhoralowa Tiniali, Dist- Sivasagar, Assam.
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21) Sri Bikram Konda, Grade-IV employee, Hatipati High School, Village-Borhul, P.O- Bihubar, District- Sivasagar, Assam.
22) Sri Dimbeswar Neog, Grade-IV employee, Barpatradola High School, P.O- Kalugaon, District- Sivasagar, Assam.
23) Smti Niroda Gogoi, Grade-IV employee, Santak High School, P.O- Santak, District- Sivasagar, Assam.
24) Sri Somir Kumar Sur, Grade-IV employee, Geleky High School, Village & P.O- Geleky, Dist- Sivasagar, Assam.
25) Sri Kuladhar Gogoi, Grade-IV employee, Tribeni High School, Vill & P.O- Nazira, District- Sivasagar, Assam.
26) Sri Deben Boragohain, Grade-IV employee, Chikimukh Higher Secondary School, Village & P.O- Nazira, District- Sivasagar, Assam.
27) Sri Ranjan Kumar Chetia, Grade-IV employee, Jahanji Higher Secondary School, Village- Jahanji Moran Gaon, P.O- Jahanji, Dist- Sivasagar, Assam.
28) Sri Indra Pran Tanti, Grade-IV employee, Godapani High School, Village & P.O- Godapani, District- Sivasagar, Assam.
29) Sri Bhaba Kanta Konwar, Grade-IV employee, Rahdoi High School, Village & P.O- Dhupbor, Dist- Sivasagar, Assam.
30) Sri Dimbeswar Dutta, Grade-IV employee, Chariali Girls High School, Village- Deraghar Sartra, P.O- Mozera, District- Sivasagar, Assam.
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31) Pritam Karmakar, Grade-IV employee, Chekimukh H.S School, P.O- Chekimukh, Dist-Sivasagar, Assam.
...... Petitioners - Versus –
1) The State of Assam, represented by the Commissioner & Secretary to the Government of Assam, Education (Secondary) Department, Dispur, Guwahati-6.
2) The Deputy Secretary to the Government of Assam, Education Department (Secondary), Dispur, Guwahati-6.
3) The Director of Secondary Education, Assam, Kahilipara,Guwahati-19.
4) The Commissioner and Secretary to the Government of Assam, Finance Deprtment, Dispur, Guwahati-6.
5) The Inspector of Schools, Sivasagar, Assam
...... Respondents
2. Writ Petition (C) No. 4749 of 2012
1) Sri Alakesh Pathak, Grade-IV employee, Sundaridia High School, Village Sundardia, P.O- Sundardia, District- Barpeta, Assam.
2) Sri Ajit Deka, Grade-IV employee, Sarthebari Girls High School, Village- Gumua, P.O- Sarthebari, Dist- Barpeta, Assam.
3) Sri Dimbeswar Kalita, Grade-IV employee, Rehabari High School, Village Pub Rehabari, P.O- Rehabari, Dist- Barpeta, Assam.
4) Sri Sadananda Talukdar, Grade-IV employee, Janata High School, Village Bamakhata, P.O- Banakata Pathsala, Dist- Barpeta, Assam.
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5) Sri Dhiraj Medhi, Grade-IV employee, Nabajyoti High School, P.O- Sarthabari, District- Barpeta, Assam.
6) Md. Habibur Rahman, Grade-IV employee, Betabari U.C Deka High School, P.O- Sonarigaon, District- Barpeta, Assam.
7) Sri Bhadreswar Baishya, Grade-IV employee, Rehabari High School, Village- Pub Rehabari, P.O- Rehabari, District- Barpeta, Assam.
8) Sri Sanjib Kumar Nath, Grade-IV employee, Chansari H.S School, Village Pub Rehabari, P.O- Changsari, Dist- Kamrup, Assam.
9) Sri Manindra Kalita, Grade-IV employee, Pub Guwahati High School, Village Patharquwari, P.O- Narengi, District- Kamrup, Assam.
10) Sri Dhanjit Das, Grade-IV employee, Hatigaon High School, P.O- Narengi, District- Kamrup, Assam.
11) Sri Hari Charan Brahma, Grade-IV employee, Chandrapur High School, P.O- Chandrapur, District- Kamrup, Assam.
12) Sri Anil Ch Gayan, Grade-IV employee, Bhatgharia H.S School, Village Hilloipara, P.O- Kacharipathar, District- Dhemaji, Assam.
13) Sri Guni Ram Tanti, Grade-IV employee, Geleky High School, P.O- Geleky District-Sivasagar, Assam.
14) Sri Mobidur Hussain, Grade-IV Employee, Banhgrah Rupjyoti Girls High School, P.O- Silasaku, District- Sivasagar, Assam.
15) Sri Dipak Gogoi, Grade-IV employee, Tribeni High School, Vilalge Ligiripukhuri Khanikuchi Gaon, P.O- Nazira, District- Sivasagar, Assam.
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16) Sri Tulsi Marak, Grade-IV employee, Sologuri Girls High School, Village- Madoorai Tea Estate, P.O- Nazira, District-Sivasagar, Assam.
17) Md. Ismail Ali, Nazira Bortala H.S School, P.O- Nazira, District- Sivasagar, Assam.
18) Sri Bipul Buragohain, Grade-IV employee, Mothiachinga Rajkhowa High School, Village Jatakia, P.O- Jatakia, Dist-Sivasagar, Assam.
19) Sri Sajen Gorh, Grade-IV employee, Nezenga H.S School, Madoorai Tea Estate, P.O- Nazira, District- Sivasagar, Assam.
20) Sri Hem Chandra Sahu, Grade-IV employee, Madoori Gohain Gaon Jyomati Girls High School, P.O- Madoori, Dist-Sivasagar, Assam.
21) Sri Bireswar Gogoi, Grade-IV employee, Khonamukh H.S School, P.O- Khonamukh, District- Sivasagar, Assam.
22) Sri BIshnu Murah, Grade-IV employee, Godapani H.S School, P.O- Na-pam Baroti, District- Sivasagar, Assam.
23) Sri Bikram Kurmi, Grade-IV employee, Majenga H.S School, P.O- Makipur, District- Sivasagar, Assam.
24) Sri Biren Kandha, Grade-IV employee, Dholebagan H.S School, P.O- Mothurapur, Dist- Sivasagar, Assam.
25) Sri Sukeswar Nayak, Grade-IV employee, Mathurapur H.S School, P.O- Mathurapur, District- Sivasagar, Assam.
26) Sri Kusum Baruah, Grade-IV employee, Tengapukhuri High School, P.O- Tengapukhuri, District- Sivasagar, Assam.
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27) Sri Ranjit Mahanta, Grade-IV employee, Banhgarh High School, P.O- Chiangalibari, Dist- Sivasagar, Assam.
28) Smti Khunja Gogoi (Khanikar), Grade-IV employee, Simolugiri High School, P.O- Simolugiri, District- Sivasagar, Assam.
29) Smti Labanya Gogoi, Grade-IV employee, Chakimukh H.S School, P.O- Chakimukh, Dist- Sivasagar, Assam.
30) Sri Thaneswar Dutta, Grade-IV employee, Namti Boys H.S School, P.O- Namtidoll, District- Sivasagar, Assam.
31) Sri Pranjal Mahanta, Grade-IV employee, Nazira Bortalla H.S School, P.O- Nazira, Dist-Sivasagar, Assam.
32) Sri Manu Saikia, Grade-IV employee, Dikhowmukh Janajati H.S School, P.O- Bharalowa Tiniali, District- Sivasagar, Assam.
33) Sri Bikram Kancha, Grade-IV employee, Hatipati High School, Village- Borhula Binubar, P.O- Binubar, District- Sivasagar, Assam.
34) Sri Pritam Karmakar, Grade-IV employee, Chekimukh H.S School, P.O- Chekimukh, District- Sivasagar, Assam.
35) Md. Chaukat Ali, Grade-IV employee, Gandhiya High School, Village & P.O- Gandhiya, District- Sivasagar, Assam.
36) Md. Mainuddin Ahmed, Grade-IV employee, Janata H.S High School, Village- Bihampur, P.O- Mularkuchi, District- Nalbari, Assam.
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37) Omar Gaji, Grade-IV employee, Gandharipara High Madrassa, P.S Mairajhaar, District- Barpeta, Assam.
38) Smti Rina Devi, Grade-IV employee, Pub Bahjani Gopal Than Balmiki Bidyamandir School, P.O- Bahjani, District- Nalbari, Assam...... Petitioners - Versus –
1) The State of Assam, represented by the Commissioner & Secretary to the Government of Assam, Education (Secondary) Department, Dispur, Guwahati-6.
2) The Under Secretary to the Government of Assam, Education Department (Secondary), Dispur, Guwahati-6.
3) The Director of Secondary Education, Assam, Kahilipara,Guwahati-19.
4) The Commissioner and Secretary to the Government of Assam, Finance Deprtment, Dispur, Guwahati-6.
...... Respondents
3. Writ Petition (C) No. 5149 of 2012
1) Sri Jiten Gohain, Grade-IV employee, Kadam High School, Village & P.O- Kadam, District- North Lakhimpur, Assam.
2) Sri Ajit Gogoi, Grade-IV employee, Phamara High School, Village Barsaria Gaon, P.O- Pahumara, District- North Lakhimpur, Assam.
3) Sri Somir Kumar Sur, Grade-IV employee, Geleky High School, Vilalge & P.O- Geleky, District- Sivasagar, Assam.
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4) Sri Kuladhar Gogoi, Grade-IV employee, Tribeni High School, Village & P.O- Nazira, Dist- Sivasagar, Assam.
5) Sri Deben Boragohain, Grade-IV employee, Chikimukh Higher Secondary School, Village & P.O- Nazira, Dist. Sivasagar, Assam.
6) Sri Tileswar Dutta, Grade-IV employee, Nazira Higher Secondary School, Vilalge & P.O- Nazira, Dist- Sivasagar, Assam.
7) Sri Ranjan Kumar Chetia, Grade-IV employee, Jahanji Higher Secondary School, Vilalge Jahanji Moran Gaon, P.O- Jahanji, District-Sivasagar, Assam.
8) Sri Taiab Ali, Grade-IV employee, Geleky High School, Village Gelekey Chutia Gaon, P.O- Geleky, District- Sivasagar, Assam.
9) Sri Indra Pantanti, Grade-IV employee, Godapani High School, Village & P.O- Godapani, Dist- Sivasagar, Assam.
10) Sri Pradip Lohar, Grade-IV employee, Simluguri High School, Village & P.O- Simluguri, Dist- Sivasagar, Assam.
11) Sri Bhaba Kanta Konwar, Grade-IV employee, Rohdoi High School, Village & P.O- Dhupabor, Dist- Sivasagar, Assam.
12) Sri Dimbeswar Dutta, Grade-IV employee, Chariali Girls High School, Village Deraghar Satra, P.O- Mezera, Dist- Sivasagar, Assam.
13) Debendra Patir, Grade-IV employee, K.K. Patir High School, Village Annapur, District- Dhemaji, Assam.
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14) Sri Dwipen Barua, Grade-IV Employee, Dergaon Higher Secondary School, Village- Bongalgaon, P.O- Dergaon, District- Golaghat, Assam...... Petitioners - Versus –
1) The State of Assam, represented by the Commissioner & Secretary to the Government of Assam, Education (Secondary) Department, Dispur, Guwahati-6.
2) The Under Secretary to the Government of Assam, Education Department (Secondary), Dispur, Guwahati-6.
3) The Director of Secondary Education, Assam, Kahilipara,Guwahati-19.
4) The Commissioner and Secretary to the Government of Assam, Finance Deprtment, Dispur, Guwahati-6.
...... Respondents
4. Writ Petition (C) No. 5888 of 2012
1) Sri Prabin Bora, Grade-IV employee, Indrani Devi High School, P.O- Dergaon, Dist- Golaghat, Assam.
2) Sri Subhash Ch Seal, Grade-IV employee, Narengi High School, P.O- Narengi, District- Kamrup, Assam.
3) Sri Mohendra Das, Grade-IV employee, Dekargaon High School, P.O- Tezpur, Dist- Sonitpur, Assam.
4) Sri Dimbesar Neog, Grade-IV employee, Barpatradola High School, Kalugaon Dist- Sivasagar, Assam.
5) Sri Smti Niroda Gogoi, Grade-IV employee, Santak High School, P.O-Santak, District- Sivasagar, Assam...... Petitioners
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- Versus –
1) The State of Assam, represented by the Commissioner & Secretary to the Government of Assam, Education (Secondary) Department, Dispur, Guwahati-6.
2) The Under Secretary to the Government of Assam, Education Department (Secondary), Dispur, Guwahati-6.
3) The Director of Secondary Education, Assam, Kahilipara,Guwahati-19.
4) The Commissioner and Secretary to the Government of Assam, Finance Deprtment, Dispur, Guwahati-6.
...... Respondents
5. Writ Petition (C) No. 3196 of 2015
1) Mrs Hima Buragohain Chetia, Grade-IV employee, W/O- Sri Ranjit Chetia, Simaluguri Girls H.S School, P.O- Simaluguri, District- Sivasagar, Assam.
2) Sri Tileswar Dutta, Grade-IV employee, Nazira Girls Higher Secondary School, Village & P.O- Nazira, District-Sivasagar, Assam.
3) Sri Tayab Ali, Grade-IV employee, Geleky High School, Village Gelakey Chutia Gaon, P.O- Gelakey, District- Sivasagar, Assam...... Petitioners - Versus –
1) The State of Assam, represented by the Commissioner & Secretary to the Government of Assam, Education (Secondary) Department, Dispur, Guwahati-6.
2) The Deputy Secretary to the Government of Assam, Education Department (Secondary), Dispur, Guwahati-6.
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3) The Director of Secondary Education, Assam, Kahilipara,Guwahati-19.
4) The Commissioner and Secretary to the Government of Assam, Finance Deprtment, Dispur, Guwahati-6.
5) The Inspector of Schools, Sivasagar, Assam.
...... Respondents
B E F O R E HON’BLE MR. JUSTICE T. VAIPHEI
For the petitioners: Ms. K. Devi, Advocate
For the respondents: Mr. U.K Goswami, Standing Counsel Secondary Education Deptt. Mr. N. Baruah, Advocates Date of Hearing : 10-09-2015 Date of Judgment: 30-09-2015
JUDGMENT & ORDER (CAV)
Aggrieved by the decision of the respondent authorities to advertise for recruitment seven posts of Laboratory Bearer (Grade-III) and 137 posts of Grade-IV at various Secondary Schools of Sivsagar District, which have hitherto been held by them on ad-hoc basis, by overlooking their cases for regularization, they are now approaching this Court for appropriate reliefs by filing these writ petitions separately. As they involve a common question of law, they were heard together, and now being disposed of by a common judgment.
2. In WP(C) No. 2921 of 2015, there are 31 petitioners, whose names and particulars are given as under:
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Sl Name of the petitioners Name of the Schools Date of No appointment 1 Sri Guni Ram Tanti Geleky High School 1.3.1994
2 Sri Mobidur Hussain Banhgarh Rupjyoti Girls 20.10.1993 High School 3 Sri Dipak Gogoi Triseni High School 1.7.1994
4 Sri Tulsi Marak Sologuri Girls High 6.7.1994 School 5 Md. Smail Ali Nazira Bortala H.S 2.3.1995 School 6 Sri Bipul Buragohain Mothiachinga Rajkhowa 1.11.1995 High School 7 Sri Sajen Gorh Mezenga H.S School 17.12.1993 Madoorai Tea Estate 8 Sri Hem Chandra Sahu Madoorai Gohain Gaon 7.2.1994 Jyomati Girls High School 9 Sri Bireswar Gogoi Khonamukh H.S School 10.2.1994
10 Sri Bishnu Murah Godapani H.S School 20.5.1994
11 Sri Bikram Kurani Mejenga H.S School 21.9.1993
12 Sri Biren Kandha Dholegagan H.S School 7.9.1993
13 Sri Sukeswar Nayak Mathurapur H.s School 27.6.1994
14 Sri Kusum Baruah Tengapukhuri High 21.9.1994 School 15 Sri Ranjit Mahanta Banghgarh High School 5.1.1994
16 Smti Kunja Gogoi Simaluguri High School 12.4.1995 (Khanikar) 17 Smti Labanya Gogoi Chakimukh H.S School 27.6.1994
18 Sri Thaneswar Dutta Namti Boys H.S School 27.6.1994
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19 Sri Pranjal Mahanta Nazira Bortala H.S 12.1.1996 School 20 Sri Manu Saikia Dikhowmukh Janajati 21.1.1994 H.S School 21 Sri Bikram Konda Hatipati High School 15.12.1994
22 Sri Dimbeswar Neog Barpatradola High 23.5.1994 School 23 Smti Niroda Gogoi Santa High School 23.1.1995
24 Sri Somir Kumar Sur Geleky High School 21.1.1994
25 Sri Kuladhar Gogoi Tribeni High School 24.9.1993
26 Sri Deben Boragohain Chikimukh Higher 15.2.1994 Secondary Schol 27 Sri Tileswar Dutta Nazira Higher 1.12.1994 Secondary School 28 Sri Ranjan Kumar Jahanji Higher 30.5.1994 Chetia Secondary School 29 Sri Indra Pran Tanti Godapani High School 1.3.1994
30 Sri Bhaba Kanta Rahdol High School 5.7.1994 Konwar 31 Sri Dimbeswar Dutta Chariali Girls High 13.3.1995 School
3. The petitioners are Grade-IV employees of different High and Higher Secondary Schools of Sivasagar District and were appointed on different dates between 1993 and 1995 by the Inspector of Schools, Sivsagar District (respondent 5) on ad-hoc basis initially for a period of three months. As their services were extended from time to time, they have now rendered more than 15 years of continuous service. It is the case of the petitioners that they were appointed against sanctioned vacant posts so much so that they have also been allowed to open their service books and GPF accounts. They were paid
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their salaries up to June, 1996 whereafter no salary was paid to them. This prompted them to approach this Court against the non-payment of their salaries. This Court disposed of the writ petition by directing the respondent authorities to refer their cases before the Expert Committee to examination. Ultimately, the respondent No. 1 vide W.T. Messages dated 16-12-2005 and 17-12-2005 instructed the Inspectors of Schools of all the districts to submit their reports before the Joint Secretary, Government of Assam, Education Department on the detailed information about the Grade-III and Grade-IV employees appointed during 1991-96 showing their respective dates of appointment and their respective places of posting, the vacancies against which they were appointed, the post creation orders and their retention numbers, whether they were appointed after undergoing due selection process, etc. In the meantime, the Deputy Secretary, Govt. of Assam, Education Department by the communication dated 8-11-2007 instructed the respondent No. 2 to fill up 23 posts of Grade-III (LDA) and 145 posts of Grade-IV by due process of selection among eligible candidates and give due weightage to the experiences earned by the working persons and also relax the age bar if they were found to be overage. It was also directed therein that due remuneration be paid to these incumbents regularly as their services had been extracted by the Education Department. A Selection Committee was thereafter constituted by the respondent No. 2 comprising of four members. The petitioners duly appeared before the Selection Committee on the dates fixed for verification of their appointments, which took place during 1991-1996. The Selection Committee in their proceeding dated 21-2- 2000 recommended the cases of the employees shown in their report for regularization of their services in view of the long services rendered by each of them. The names of all the petitioners found a place in that report.
4. However, to the dismay of the petitioners, instead of regularizing their services, the respondent No. 2 by the communication dated 12-9-2009 directed the respondent No. 5 to commence the process for recruitment of Grade-IV staff in the provincialized High and Higher Secondary Schools in their districts. Aggrieved by this, the petitioners filed another writ petition being WP(C) No. 4749/2012 before this Court, which passed the interim
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order dated 4-10-2012 by directing that the petitioners should be allowed to continue in their posts if they were still working. In the meantime, the Deputy Secretary to the Government of Assam, Education Department by his letter dated 22-8-2013 asked the respondent No. 5 to examine the eligibility of the employees (list enclosed) for regularization in terms of the Office Memorandum dated 27-6-2013 issued by the Finance (EC-II) Department, Govt. of Assam, concerning regularization of services in respect of Grade-III and IV staff appointed in excess of the sanctioned strength. On the basis of the instructions contained in the said Office memorandum of the Finance Department, the respondent No. 1 by his letter dated 17-4-2015 directed the respondent No. 2 to fill up the said vacant posts strictly in compliance with the order dated 22-8-1996 of the Apex Court in Civil Appeal No. A7646-11724 of 1996 and Uma Devi case, (2006) 4 SCC 1 by following reservation rules and compassionate appointment scheme. This was followed by the WT message sent by the respondent No. 2 to the respondent No. 5 on 30-4-2015 for filling up the 143 Grade-IV posts in various provincialized High and Higher Secondary Schools. Consequently, the respondent No. 5 issued the circular dated 5-5-2015 to all the Principals/Headmasters of Higher Secondary/Higher Secondary & Multipurpose Schools conveying the approval of the Government for filling up the vacancies of seven Laboratory Bearer and 130 Grade-IV posts in various Secondary Schools of Sivasagar district during 2015 and requesting them to take steps for filling up the said vacancies in accordance with Rule 4 of the Assam Secondary Education (Provincialized) Service Rules, 2003. Aggrieved by this, the petitioners are now initiating this third round of litigation by way of this writ petition for quashing the said circular and for regularizing their services.
5. An affidavit-in-opposition is filed by the State-respondents through the Joint Director of Secondary Education, Assam. It is pointed out by the answering respondent that ad hoc system of appointment had been prevailing in the years 1993, 1994 and 1995, and the petitioners were appointed by the Inspector of Schools in their respective schools on that basis. The Government of Assam constituted an Expert Committee to look
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into the appointments which were made without following due selection process and which are doubtful. It is further stated that steps were being taken by the Government for adjustment of services of the persons appointed against Grade-III and Grade-IV posts during the years 1991-96: those appointments were made without following proper recruitment procedure and were appointed on ad hoc basis. According to the answering respondents, as the services of the petitioners have been extracted by the Government, they took lenient view by recommending that their services be regularized along with similarly situated employees: correspondences have been exchanged between the Finance Department and the Judicial Department on many occasions to that effect. As a part of the drive that was undertaken for adjustment of the services of the excess appointees, who had been appointed without following proper recruitment policies, the Government constituted a Screening Committee for verification. The Screening Committee so constituted held interview, verified testimonials and submitted their report to the Government. The answering respondents admit that the Government in the Finance Department issued the said Office memorandum dated 27-6-2013 to the effect that the Grade-III and Grade-IV appointees which were made in excess during the years 1991-96 be regularized against existing vacancies. The respondent No. 5 was asked to submit a report to the Government to that effect. The Government in the Secondary Department thereafter took a policy decision to fill up all the vacant posts in the cadre of Grade-III and Grade-IV. The respondent No. 5 was directed to submit the vacancy position along with the requisite Format I and II of the Finance SIU Department for approval: he accordingly submitted 143 vacant posts of Grade-IV including the posts against which the petitioners claimed to have been working regularly without pay since July, 1996. It is open to the petitioners to take part in the interview that was held at the behest (?) of the Selection Committee of the concerned schools. Since the petitioners are more experienced, they could have got selection in their respective schools over the fresh applicants if they took part in the interview. It is also the case of the answering respondents that the earlier process that was adopted by the Government for regularization of services of the petitioners did not yield any fruitful result. As part of the new policy
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decision of the Government, the present recruitment drive undertaken by the Government is proper, just and fair. It is, therefore, submitted by the answering respondents that the prayers of the petitioner are not tenable and are, therefore, liable to be dismissed.
6. The question to be considered in this writ petition is whether the cases of the petitioners can be said to fall within the exception which the Apex Court has carved out in paragraph 53 of the decision in State of Karnataka v. Uma Devi (3), (2006) 4 SCC 1 by permitting a one-time exception for regularizing their services? Mrs. K. Devi, the learned counsel for the petitioners, submits that when the State-respondents had already initiated the proposal for regularizing the services of the petitioners as early as 29-10-2013, it is absolutely unfair and unreasonable at this stage to abandon such proposal and take an entirely new decision for recruitment of new candidates notwithstanding the permission granted to the petitioners to participate in such recruitment process: their chances of selection in such recruitment will become undoubtedly much smaller. According to the learned counsel, the petitioners have been rendering more than ten years of continuous services, gaining enough experiences by now in their job and have even become overage without any further prospect for applying fresh Government jobs. It is also contended by the learned counsel that the services of similarly situated employees like one Kanteswar Kalita, who was appointed in the year 1994, had already been adjusted at Tihu High School in the year 2011. She, therefore, strenuously urges this Court to quash the impugned circular dated 5-5-2015 issued by the respondent no. 4 (Annexure-13) and direct the respondent authorities to regularize the services of the petitioners, who are working in Sivasagar District against the vacant posts of Grade-IV in their respective schools in terms of the Government proposal contained in the Office Memorandum dated 27-6-2013 of the Finance (EC-II) Department, Govt. of Assam (Annexure-12), without further loss of time. Mr. U.K. Goswami, the learned standing counsel for the Education (Secondary) Department, Assam, supports the impugned decisions of the respondent authorities and submits that the petitioners have no legitimate grievance to make inasmuch as they are not prohibited
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from participating in the recruitment process, and if they do so, the State- respondents are prepared to condone their overage and give weightage to the past services rendered by them in their respective posts. He, therefore, contends that there is no merit in this writ petition, which is liable to be dismissed with costs.
7. In the instant case, a comparative reading of the pleadings of the parties will reveal that there is no dispute about the rendering of services by the petitioners in the posts of Grade-IV by way of ad hoc appointments for more than 15 years. There is also no dispute between the parties that the petitioners were appointed on ad-hoc basis against the sanctioned vacant posts as in those days, the system of ad hoc appointment was prevalent. There is also no dispute that the petitioners are qualified for the post of Grade-IV. The legal position regarding regularization of service of irregular appointee enunciated in Uma Devi case (supra) was referred to and clarified by the Apex Court in Amarendra Kumar Mohapatra v. State of Orissa, (2014) 4 SCC 583. Paras 43 and 44 of the report are relevant and read thus:
“42. The decision in Umadevi (3) case16, as noticed earlier, permitted regularisation of regular (irregular?) appointments and not illegal appointments. Question, however, is whether the appointments in the instant case could be described as illegal and if they were not, whether the State could be directed to regularise the services of the degree-holder Junior Engineers who have worked as ad hoc Assistant Engineers for such a long period, not only on the analogy of the legislative enactment for regularisation but also on the principle underlying para 53 of the decision in Umadevi (3) case16. 43. As to what would constitute an irregular appointment is no longer res integra. The decision of this Court in State of Karnataka v. M.L. Kesari20, has examined that question and explained the principle regarding regularisation as enunciated in Umadevi (3)
16 State of Karnataka v. Uma Devi (3), (2006) 4 SCC 1 20 (2010) 9 SCC 247
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case16. The decision in that case summed up the following three essentials for regularisation: (1) the employees have worked for ten years or more, (2) that they have so worked in a duly sanctioned post without the benefit or protection of the interim order of any court or tribunal, and (3) they should have possessed the minimum qualification stipulated for the appointment. Subject to these three requirements being satisfied, even if the appointment process did not involve open competitive selection, the appointment would be treated irregular and not illegal and thereby qualify for regularisation. Para 7 in this regard is apposite and may be extracted at this stage: (M.L. Kesari case20, SCC p. 250) “7. It is evident from the above that there is an exception to the general principles against ‘regularisation’ enunciated in Umadevi (3)16, if the following conditions are fulfilled: (i) The employee concerned should have worked for 10 years or more in a duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. (ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.” 44. It is nobody’s case that the degree-holder Junior Engineers were not qualified for appointment as Assistant Engineers as even they possess degrees from recognised institutions. It is also nobody’s
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case that they were not appointed against the sanctioned post. There was some debate as to the actual number of vacancies available from time to time but we have no hesitation in holding that the appointments made were at all relevant points of time against sanctioned posts. The information provided by Mr Nageswara Rao, learned Additional Solicitor General, appearing for the State of Orissa, in fact, suggests that the number of vacancies was at all points of time more than the number of appointments made on ad hoc basis. It is also clear that each one of the degree-holders has worked for more than 10 years ever since his appointment as ad hoc Assistant Engineer. It is in that view difficult to describe these appointments of the Stipendiary Engineers on ad hoc basis to be illegal so as to fall beyond the purview of the scheme envisaged in Umadevi (3) case16.”
8. In the case at hand also, the petitioners were initially appointed against vacant posts of Grade-IV on ad hoc basis in various High and Higher Secondary Schools of Sivasagar district. It is not the case of the respondent authorities that they are not qualified for the posts. The petitioners have also rendered more than ten years of continuous service in their respective posts without the benefit or protection of the interim order of any court or tribunal except after 4-10-2012 (by which time they had already completed more than years of continuous service). Under the circumstances, in my judgment, the time has now come for the State respondents to take a one time measure to regularize the services of the petitioners against the posts in they are hitherto working. In the view that I have taken, the impugned decision contained in the circular dated 5-5-2015 cannot be sustained in law. In fact, the Government of Assam in the Finance Department has issued the Office memorandum dated 27-6-2013 with the following instructions consistent with the decisions of the Apex Court:
“2. The State Government will now like to take the “One time measure” the regularization of those workers as referred to in paragraph 53 of the orders in Uma Devi’s case read with Kesari’s
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case, whereby exception was carved out to regularize all employees who full the following three conditions:- (i) Who have been working continuously for 10 years or more as on 10-04-06 i.e. the date of passing of the judgment in Uma Devi’s case without the benefit or protection of the interim order of any Court or Tribunal. (ii) Who have been engaged against sanctioned vacant posts. (iii) Who have requisite qualification to hold the post. 3. It is therefore necessary to undertake One time exercise to regularize those W.C..M.R. and similarly placed workers who have fulfilled all the above three conditions for due compliance of the direction passed by the Hon’ble Supreme Court of India in the above mentioned cases. 4. In view of above, all the Departments shall undertake One time exercise for regularization of services of those employees who fulfil all the three conditions as mentioned at para 2 strictly in compliance of the orders of the Hon’ble Supreme Court of India and then place the proposal before the Cabinet towards regularization of services of those employees who were engaged against vacant sanctioned posts in which they are continuing since their appointment.”
9. The offshoot of the foregoing discussion is that this writ petition succeeds. The impugned circular dated 5-5-2015 (Annexure-13) issued by the respondent No. 5 is, therefore, quashed. Consequently, the respondent authorities are directed to consider regularization of the services of the petitioners against the posts of Grade-IV in the various High and Higher Secondary Schools of Sivasagar District with regular time scale of pay. The entire exercise shall be completed within a period of three months from the date of receipt of this judgment. 2. WP(C) No. 4749 of 2012
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10. In this writ petition, there are 38 petitioners, who belong to different districts of Assam such as Barpeta district, Kamrup district, Nagaon district, Dhemaji district, Sivasagar district and Nalbari district. As in the previous writ petition, they were appointed as Grade-IV employees on ad hoc basis in different High and Higher Secondary Schools by the Director of Secondary Education, Assam during the period of 1993 to 1995. The names of the petitioners, their places of posting and dates of their appointments are as follows:
Sl Petitioners Name Schools Name Date of No appointment 1 Sri Alakesh Pathak Dundaridia High School 14.2.1994 2 Sri Ajit Deka Srathabari Girls H.S School 10.1.1994 3 Sri Sadananda Talukdar Janata High School 10.1.1994
4 Sri Dimbeswar Kalita Rehabari High School 18.2.1994
5 Sri Dhiraj Medhi Nabajyoti High School 1.2.1994
6 Sri Habibur Rahman Deka High School 13.6.1994
7 Sri Bhadreswar Baishya Bonshar Jatidar Girls H.S 5.2.1994 School 8 Sri Sanjib Kr Nath Changsari H.S School 26.10.1995 9 Sri Monindra Kalita Pub-Guwahati High School 14.8.1995 10 Sri Dhanjit Das Hatigaon High School 10.2.1994 11 Sri Haricharan Barman Chandrapur High School 6.2.1995
12 Sri Anil Ch Gayan Batgharia Higher 1.2.1994 Secondary School 13 Sri Guni ram Tanti Gelapy High School 1.3.1994
14 Muhibur Hussain Bangarh Rupjyoti Girls 20.10.1993 High School 15 Sri Deepak Gogoi Tribeni High School 1.7.1994 16 Sri Tulsi Nayak Salaguri Girls High School 6.7.1994
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17 Sri Smail Ali Nazira Bortall Higher 2.3.1995 Secondary School 18 Sri Bipur Borgohain Midiachinga Rajkhowa High 1.11.1995 School 19 Sri Sajen Garh Nezera Higher Secondary 17.12.1993 School 20 Sri Hem Chandra Saha Moradi Gohain Gaon Girls 7.2.1994 High School 21 Sri Bireswar Gogoi Khonamukh H.S School 10.2.1994 22 Sri Bishnu Murah Godapani H.S School 20.5.1994 23 Sri Bikram Kurmi Magenga H.S School 21.9.1993 24 Sri Bikren Khanda Dholebgaon H.S School 7.9.1993 25 Sri Sukeswar Nayak Mathurapur H.S School 27.6.1994
26 Sri Kusum Baruah Tengapukhuri High School 21.9.1994
27 Sri Ranjit Mahanta Banhgarh High School 5.1.1994
28 Smti Kunja Gogoi Simluguri High School 12.4.1995 (Khanikar)
29 Smti Laanya Gogoi Chakimukh H.S School 27.6.1994
30 Sri Thaneswar Dutta Namti Boys H.S School 27.6.1994 31 Pranjal Mahanta Nazira Bortilla H.S School 12.1.1996 32 Sri Manu Saikia Dikhomukh Janajati H.S 21.1.1994 School 33 Sri Bikram Kancha Hatipati High School 15.12.1994
34 Sri Pritam Khakhlari Chakimukh H.S School 20.9.1993
35 Sri Chaukat Ali Gandhiya High School 31.10.1994 36 Mainuddin Ahmed Janata High School 23.4.1992 37 Omer Gazi Gandipara High School 19.1.1994
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11. The petitioners are aggrieved by the circular dated 10-9-2012 issued by the respondent No. 2 for recruitment of Grade-IV staff in the provincialized High and Higher Secondary Schools: the School Managing Committees were asked to give advertisement seeking application from intending candidates. The contention of the petitioners is that the posts sought to be advertised by the impugned circular are the posts which they have been holding since 1993-95 and cannot be filled up without regularizing their services. As in the previous case, they have rendered more than 15 years of continuous service without the benefit or protection of an interim order of this Court except for the period after 4-10-2012 (but then, by that time, they had already completed more than 15 of years of continuous service), are otherwise qualified for the posts, and were appointed against sanctioned vacant posts. The impugned circular dated 10- 9-2012 (Annexure-M) issued by the respondent No. 2 is liable to be quashed. As in the previous writ petition, the petitioners are entitled to regularization of their services against the vacant posts of Grade-IV.
12. The respondent authorities are, therefore, directed to consider regularization of the services of the petitioners against the posts of Grade-IV in various High and Higher Secondary Schools of Barpeta district, Kamrup district, Dhemaji district, Sivasagr district and Nalbari district of Assam with regular time scale of pay. The entire exercise shall be carried out within a period of three months from date of receipt of this judgment. Resultantly, the impugned circular dated 10-9-2012 is quashed.
3. WP(C) No. 5149 of 2012
13. There are fourteen petitioners in this writ petition and they belong to different districts of Assam such as North Lakhimpur district, Sivasagar district, Dhemaji district and Golaghat district. All these petitioners were appointed as Grade-IV employees on ad hoc basis by the Director of Secondary Education, Assam on various dates between 1993 and 1995. They have been continuously working in their posts for at least the last 15 years without the benefit or protection of any interim order from Court or
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Tribunal except after 23-11-2012 (but by that time, they had already completed at least 15 years of continuous service), are otherwise qualified for the post of Grade-IV and were appointed against sanctioned posts. The names of the petitioners with their detail particulars are reproduced below:
Sl Petitioners Name Schools Name Date of No appointment 1 Sri Jiten Gohain Kadam High School 12.08.1994 2 Sri Ajit Gogoi Pahumara High School 11.2.1994 3 Sri Samir Kumar Sur Gelakey High School 21.1.1994
4 Kuladhar Gogoi Tribeni High School 24.9.1993
5 Sri Deben Boragohain Ghikimukh Higher 15.2.1994 Secondary School 6 Sri Tileswar Dutta Nazira Higher Secondary 1.12.1994 School 7 Sri Ranjan Kumar Jahanji Higher 30.5.1994 Chutia Secondary School 8 Md. Taiyab Ali Gelakey High School 20.9.1993 9 Sri Indra Pantanti Godapani High School 1.3.1994 10 Sri Pradip Lohar Simluguri High School 19.9.1995 11 Ri Bhaba Kanta Konwar Rohdoi High School 5.7.1994
12 Sri Dimbeswar Dutta Chariali Girls High 13.3.1995 School 13 Sri Debendra Patir K.K. Patir High School 15.5.1994
14 Dwipen Barua Dergaon Higher 19.2.1994 SEcodnary School
14. The petitioners are aggrieved by the 10-9-2012 issued by the respondent No. 3 directing the concerned Inspectors of Schools to initiate recruitment process for filling up Grade-IV staff in their respective districts
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against sanctioned posts for which approval of the Finance Department had been obtained. As in the previous writ petition, the petitioners are entitled to the same relief. The impugned circular dated 10-9-2012 (Annexure-M) is hereby quashed. The respondent authorities are, therefore, directed to consider regularization of the services of the petitioners against the posts of Grade-IV in various High and Higher Secondary Schools with the regular time scale of pay. The entire exercise shall be carried out within a period of three months from the date of receipt of this judgment.
4.W.P.(C) No. 5888 of 2012
15. In this writ petition, the petitioners numbering five of them, are challenging the same circular dated 12-9-2012 issued by the Director of Secondary Education, Assam (respondent 3) initiating the recruitment process for filling up the vacant sanctioned posts of Grade-III and Grade-IV posts under the Directorate of Secondary Education, Assam. As in the previous writ petition, the petitioners were appointed as Grade-IV employee on ad hoc basis by the respondent No. 3 on different dates between 1992 and 1995. They were also paid their salaries till 1996. The petitioners belong to different districts such as Golaghat district, Kamrup district, Sonitpur district and Sivasagar district of Assam. They have been continuously working in their posts for at least the last 15 years without the protection of court or tribunal. They are otherwise qualified for the post of Grade-IV and were appointed against sanctioned posts. The names of the petitioners with their detail particulars are reproduced below:
Sl Petitioners Name Schools Name Date of No appointment 1 Sri Prabin Bora Indrani High School 27.1.1994 2 Sri Subhash Seal Narengi High School 25.1.1996 3 Sri Mohendra Das Dekargaon High School 9.8.1994
4 Sri Dimbeswar Neog Borpatradola High School 23.5.1994
5 Smti Niroda Gogoi Santak High School 23.1.1995
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16. As in the previous writ petition, the impugned circular dated 12-9- 2012 is hereby quashed. Consequently, the respondent authorities are directed to consider the regularization of the services of the petitioners against the posts of Grade-IV with regular time scale of pay. The exercise shall be completed within a period of three months from the date of receipt of this judgment.
5. W.P.(C) No. 3196 of 2015
17. This writ petition is filed by three petitioners, who were appointed by as Grade-IV employees on ad hoc basis in High and Higher Secondary Schools on different dates between 1992 and 1995 and were their salaries up to 1996. Their particular details are as follows:
Sl Petitioners Name Schools Name Date of No appointment 1 Sri Hima Buragohain Simaluguri Girls H.S School 25.8.1994 Chetia 2 Sri Tileswar Dutta Nazira Girls Higher 1.12.1994 Secondary School 3 Sri Tayab Ali Geleky High School 29.9.1993
18. As in WP(C) No. 2921 of 2015, they are also aggrieved by the circular dated 5-5-2015 issued by the Inspector of Schools, Sivasagar district directing all the Principals/Headmasters of provincialized High and Higher Secondary Schools to initiate recruitment for filling up seven post of Laboratory Bearer and one hundred and thirty-six Grade-IV posts in their schools. In the case at hand also, the petitioners were initially appointed against vacant posts of Grade-IV on ad hoc basis in various High and Higher Secondary Schools of Sivasagar district. It is not the case of the respondent
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authorities that they are not qualified for the posts. The petitioners have also rendered more than ten years of continuous service in their respective posts without the benefit or protection of the interim order of any court or tribunal except after 4-10-2012 (by which time they had already completed more than years of continuous service). Under the circumstances, as in the previous cases, the time has come for the State respondents to take a one time measure to regularize the services of the petitioners against the posts against which they are hitherto working. In the view that I have taken, the impugned decision contained in the circular dated 5-5-2015 cannot be sustained in law.
19. The offshoot of the foregoing discussion is that this writ petition succeeds. The impugned circular dated 5-5-2015 (Annexure-13) issued by the respondent No. 5 is, therefore, quashed. Consequently, the respondent authorities are directed to consider regularization of the services of the petitioners against the posts of Grade-IV with regular time scale of pay in the various High and Higher Secondary Schools of Sivasagar District. The entire exercise shall be completed within a period of three months from the date of receipt of this judgment.
JUDGE
Alam
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