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2009 DIGILAW 666 (GAU)

State of Assam v. Laksheswar Talukdar

2009-09-14

AMITAVA ROY

body2009
JUDGMENT Amitava Roy, J. 1. The State of Assam hereby seeks a review of the judgment and order dated 27.6.2006 passed in CR 885/98 thereby directing the respondents mentioned therein to take immediate steps for the regularisation of the service of the writ petitioner/opposite party as Lecturer of B.R.M. Law College, Guwahati, and to release to him all consequential service benefits within a period of one month from the date of receipt of the certified copy of the order. 2. I have heard Mr. V.M. Thomas, Learned Counsel for the review applicant and Mr. Nair, Learned Counsel for the writ petitioner/opposite party. 3. According to the review applicant, while the process for regularisation of the services of the writ petitioner was pending being pursued by the official respondents in deference to the directions of this Court, the Bar Council of India following a surprise visit to the College required the institution by its notice dated 9.7.2008 to show cause, in the face of certain deficiencies/infirmities as to why the affiliation granted to it should not be withdrawn. The review applicant has asserted that one of such infirmities as enumerated in the said notice as is contained in Clause (iv) is as hereunder. (iv). That the full-time teachers must not be allowed to carry on legal practice, Principal must ensure that full-time teachers are given an option either to remain in the profession or to leave the legal profession to become full-time lecturers in which case they furnish proof of surrendering their Advocate's Licence. 4. Being faced with the above, by letter dated 19.7.2008, the Government of Assam in the Education(H) Department apprised the writ petitioner of the contents of the said notice and requested him to surrender his Advocate's Licence. The latter, however, by his reply dated 22.7.2008 declined to do so justifying his stand on the basis of the Advocate's (Right to Take up Law Teaching) Rules, 1979 ('the Rules'). Situated, thus, the review is sought for. According to the applicant, refusal of the writ petitioner to surrender his Advocate's licence is an insurmountable impediment to actualize the process of regularisation in terms of the directions of this Court as else the affiliation of the College would be in jeopardy. No affidavit in opposition has been filed by the writ petitioner/opposite party. 5. Mr. According to the applicant, refusal of the writ petitioner to surrender his Advocate's licence is an insurmountable impediment to actualize the process of regularisation in terms of the directions of this Court as else the affiliation of the College would be in jeopardy. No affidavit in opposition has been filed by the writ petitioner/opposite party. 5. Mr. Thomas has emphatically urged that as regularisation of the services of the petitioner would signify his employment as a full-time Lecturer which is clearly impermissible in terms of the Bar Council directives and, therefore, in the facts and circumstances of the case, in the greater interest of the institution, the judgment and order involved ought to be reviewed. In the alternative, he has urged that as even in terms of the Rules, a practising advocate can take up teaching in law for a period not exceeding three hours a day tent amounting to part time employment, regularisation of the services of the petitioner as a full-time Lecturer is not countenanced thereby and, therefore, the direction to that effect ought to be recalled. In support of his submissions, Mr. Thomas has placed reliance on a decision of Delhi High Court in Anees Ahmed and Anr. v. University of Delhi and Anr. AIR 2002 Delhi 440. 6. Responding to the above, Mr. Nair has maintained that the insistence on the part of the State Government for the surrender of the petitioner's Advocate licence as a necessary pre-condition for implementation of the directions of this Court is per se illegal, arbitrary and unreasonable and is liable to be adjudged as such. Referring to the Section 49A of the Advocate's Act, 1961 ('the Act'), the Learned Counsel has urged that the Rules framed by the Central Government thereunder have an overriding effect on any enactment made by the Bar Council but repugnant thereto and, that therefore, in terms of Rule 3 of the Rules, the State respondents are obliged in law to regularise the services of the petitioner subject to the constraints as contained therein. Pointing out that the plea now taken by the review applicant had not been urged at any earlier point of time and that on the face of the records, it is untenable in the face of the above provisions of the Act and the Rules, Mr. Nair has asserted that the application lacks in substance and ought to be rejected in limine. Nair has asserted that the application lacks in substance and ought to be rejected in limine. He has endeavoured to distinguish the rendering in Anees Ahmed (supra), on facts. 7. The pleaded facts and the arguments advanced have been duly noted. The background in which the writ petitioner had approached this Court in the earlier round of litigation is not in dispute. Noticeably no affidavit in opposition had been filed by the respondents in CR 885/98 wherein the Assam Public Service Commission as well as the Principal of the College were party respondents. 8. The writ petitioner who is a Post Graduate in Law from Gauhati University had responded to an advertisement issued by the Director of Public Instructions, Government of Assam, on 12.7.1986 in the local daily "The Sentinel" inviting applications interalia for the post of Lecturer in Government Law College on ad hoc basis. The petitioner having complied with the conditions of eligibility laid down therein, was, by notification dated 3.10.1987 following a selection, appointed as a whole time Lecturer of the College under Rule 3(1) of the Assam Public Service (Ad hoc) Appointment Rules, 1986, for a period of four months. The term of his initial appointment was thereafter extended from time to time till 3.3.2005. The writ petitioner, however, continued to render his services even thereafter but his pay and allowances were released only up to 3.3.2005. He implored the concerned authorities repeatedly for the regularisation of his services. All such entreaties having failed to yield any result, he approached this Court for redress. By an interim order passed on 26.2.1998, the respondents were restrained from terminating the services of the petitioner. He, therefore, continued as before. 9. By the judgment and order under review, this Court directed the Secretary to the Government of Assam, Education(H) Department, Secretary to the Government of Assam, Personnel Department, Director of Public Instructions, Assam, Dispur, Guwahati, and the Principal of the College to cause immediate steps to be taken for the regularisation of the petitioner's services as a Lecturer of the College and to release to him all consequential service benefits. A period of one month from the date of receipt of the order was outlined for the completion of the process. A direction to the State respondents to process his claim for pay and allowances from 3.3.2005 was also issued. 10. A period of one month from the date of receipt of the order was outlined for the completion of the process. A direction to the State respondents to process his claim for pay and allowances from 3.3.2005 was also issued. 10. In making this determination, the court noticed that at the relevant time when the petitioner was appointed to the post of Lecturer of the College, he was qualified there for and that his induction was preceded by a duly conducted selection. This Court observed that the continuance of the petitioner in the post following the extension of his initial term of appointment from time to time demonstrated the satisfaction of the authorities concerned about the quality and indispensability of his service and, therefore, holding that the inaction on their part to respond to his appeals for regularisation was unjustified, an appropriate writ and or direction was called for to assuage his grievance. 11. The review application discloses a stand that necessary steps meanwhile had been taken for the regularisation of the services of the petitioner as directed by this Court. The review applicant seeks to represent that the show-cause notice of the Bar Council of India requiring that a practising advocate seeking full-time employment in the College ought to surrender his advocate's licence as a necessary pre-requisite is a prohibitive hindrance to the completion of the exercise already undertaken to regularise the petitioner's services and that if pursued contrary to the said enjoinment, there is a risk of the affiliation of the College being cancelled. 12. This Court, as alluded hereinabove, had directed the regularisation of the petitioner's services, in view of the exceptional fact situation recorded. As on date, the findings of this Court with regard to the eligibility and suitability of the petitioner to have his services regularised as a Lecturer of the College are not in assailment. Regularisation, as is no longer res integra, is not a mode of appointment to any service. It is a process for effacing infirmities, if any, in the process thereof and/or to replenish the deficiencies in connection therewith. The parties are not in issue that the Rules have been framed by the Central Government in exercise of its statutory power under Section 49Aof the Act. There is no wrangle at the Bar either of its overriding effect as is attested by Sub-section (4) thereof. The parties are not in issue that the Rules have been framed by the Central Government in exercise of its statutory power under Section 49Aof the Act. There is no wrangle at the Bar either of its overriding effect as is attested by Sub-section (4) thereof. The letter No. STBC-15/1986 dated 13.5.1986 of the Secretary, Bar Council of India, contains an extract of the resolution No. 4/1986(LE) of the Legal Education Committee of the Council and approved by it to the effect that Rule 3 relates to and protects the rights of the practising advocates to take up the teaching of law in any educational institution but does not entitle a fulltime law teacher to be enrolled as an advocate. This resolution of the Bar Council of India is in absolute alignment of the letter and spirit of Rule 3 of the Rules. Even the contents of Clause (iv) of the show-cause notice referred to hereinabove do not detract from the essence of Rule 3, 13. A plain reading of Sub-rule 3(1) of the Rules with the opening non-obstante clause predicates the prerogative of a practising Advocate to take up teaching of law in any educational institution which is affiliated to a University within the meaning of the University Grants Council Act, 1953 so long as the period of such teaching does not exceed three hours in a day. Sub-rule (2) clarifies that such employment would be deemed for the purposes of the Act and the Rules, made thereunder, a part time employment irrespective of the manner in which such employment is described or remuneration receivable (whether by way of fixed amount or on the basis of time scale of pay). This statutory provision while acknowledging a preponderant right of a practising Advocate to take up the teaching of law, restricts the period of such avocation to three hours a day and further defines that such an employment would be a part time one irrespective of the manner in which it is designated or the remuneration therefore is receivable. This statutory provision while acknowledging a preponderant right of a practising Advocate to take up the teaching of law, restricts the period of such avocation to three hours a day and further defines that such an employment would be a part time one irrespective of the manner in which it is designated or the remuneration therefore is receivable. Apart from the overriding status of the Rules and apparent recognition of the right of a practising advocate to take up teaching of law, Rule 3 in no uncertain terms construes such an engagement to be a part time employment for the purpose of the Act and the Rules independent of the manner in which it is nomenclatured or the remuneration there for is payable. 14. In response to the submission made by Mr. Nair on the basis of a class routine of the College to authenticate that the petitioner, as on date, is required to take only two classes of duration of 45 minutes each which is well within the ceiling of three hours Mr. Thomas has drawn the attention of this Court to the guidelines of the U.G.C. prescribing the work load of teacher in full employment to be not less than 40 hours a week in an academic year. Be that as it may, having regard to the directions issued in the judgment and order sought to be reviewed, there is nothing to discern there from that the process directed to be undertaken vis-a-vis the petitioner was intended to be in disregard to any relevant legal provision or orders or directions having the force of law. 15. Though the Rules were framed in the year 1979, the writ petitioner had been allowed to continue as a fall time lecturer for all intents and purposes since his appointment vide the notification dated 3.10.1987 which incidentally discloses his recruitment as a whole time lecturer of the College. 16. In the above factual and legal spectrum, the contention of the review applicant founded on the essentiality of surrender of the writ petitioner's Advocates licence to be an indispensable step for the regularisation of his services does not commend for acceptance. It is always open for the concerned authorities to pass appropriate orders with regard to the regularisation of the petitioner's service as directed by this Court in accordance with the legal provisions governing the issue. It is always open for the concerned authorities to pass appropriate orders with regard to the regularisation of the petitioner's service as directed by this Court in accordance with the legal provisions governing the issue. The word "part time employment" applied in Sub-rule (2) of Rule 3, in the estimate of this Court, does not come in the way of the process of regularisation, in view of the unambiguous clarifications provided therein. The materials on record do not disclose any effort on the part of the review applicant to further the issue of regularisation of the petitioner's services with the Bar Council of India in these lines. 17. In the face of the unequivocal ordainments of Rule 3 of the Rules, the plea of the review applicant against the permissibility of administering the process of regularisation of the petitioner's service on the plea urged cannot be sustained. The decision in Anees Ahmed, supra, which reiterates the restriction on the teaching hours of a practising advocate as embodied in Rule 3 of the Rules, does not advance the case of the petitioner. In the result, the review application lacks in merit and is rejected. Application dismissed