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2010 DIGILAW 124 (GAU)

Jita Moni Bhattacharyya v. State of Assam

2010-02-18

AMITAVA ROY

body2010
JUDGMENT Amitava Roy, J. 1. In challenge in particular, is the order dated 27.2.2008 passed by the Director, Higher Education, Assam rejecting the petitioner's prayer for regularization of her services as Librarian, Biswanath College, the office in which she had been officiating since the retirement of its earlier incumbent. 2. I have heard Mr. U. Bhuyan, learned Counsel for the petitioner and Mr. U.K. Goswami, learned Standing Counsel, Education department for the official respondents. In spite of the service of notice of the proceeding, the College remains unrepresented. 3. The pleaded case of the petitioner in short, is that, pursuant to a selection process initiated by the authorities of the aforementioned college, the petitioner was appointed against a non-sanctioned post of Assistant Librarian and she having been joined the same on 2.1.1998, continued as such till she was entrusted with the additional charge of the office of the Librarian of the institution that had fallen vacant on 31.12.2003 following the retirement of the regular incumbent thereof. 4. According to the petitioner, the authorities of the college being satisfied with her services in both the capacities, resolved to appoint her on regular basis against the vacant post of Librarian and to that effect, the Governing Body of the college took a resolution on 22.1.2005. As per the requirement of the relevant Rules, the resolution was forwarded to the Director of Higher Education, Assam for approval. The latter refused to accord the same and instructed the college authorities to advertise the post. The petitioner being aggrieved, approached this Court with WP(C) No. 1350/2007 which was disposed of on 6.12.2007 requiring the Director of Higher Education, Assam to consider her case afresh more particularly, in terms of the Office Memorandum dated 17.7.2004 contemplating regularization of the services of the incumbents of deficit grants in aid colleges in the State as comprehended therein. As the said authority could not complete the process in time as directed, the petitioner again approached this Court with Contempt case (C) No. 122/2008. During the pendency of the said proceeding, the Director of Higher Education, Assam through his affidavit filed on 16.9.2008 disclosed that meanwhile, he had passed an order on 6.12.2007 rejecting the case of the petitioner. As referred to hereinabove, this order forms the subject-matter of challenge in the instant proceeding. 5. During the pendency of the said proceeding, the Director of Higher Education, Assam through his affidavit filed on 16.9.2008 disclosed that meanwhile, he had passed an order on 6.12.2007 rejecting the case of the petitioner. As referred to hereinabove, this order forms the subject-matter of challenge in the instant proceeding. 5. In substance, the said departmental authority declined to accede to the petitioner's request for regularization of her services in terms of the Office Memorandum dated 17.7.2004 being of the view that the same was not applicable to the post of Assistant Librarian and/or Librarian of the institution of the kind as envisaged therein. The fact that the post of Librarian is governed by the relevant norms prescribed by the University Grants Commission and carries the UGC scale of pay was also noticed in the said order. 6. While reiterating the above stand, in his affidavit in the instant proceeding, the Director of Higher Education, Assam, in his additional pleading has contended that the post of Librarian of the deficit colleges (now provincialised since 2005) carries the UGC pay scales since January, 1973 and that the same has to be filled up by open advertisement by the candidates therefrom fulfilling the conditions of eligibility as prescribed by the Commission. 7. Mr. Bhuyan has urged that though the O.M. dated 17.7.2004 evidently applies to the teachers of deficit grants in colleges of the State for the purpose of regularization of their services, it is in spirit extendable to the post of Librarian as well and therefore, the rejection of the petitioner's claim for regularization of her services in the said post is untenable in law and on facts. Without prejudice to the above, the learned Counsel has further urged that in absence of any statutory Rules or norms or guidelines prescribed by any authority specifying direct recruitment to the post of Librarian to be the only mode of appointment, the petitioner who otherwise possesses all necessary qualifications relatable thereto, having regard to her past service experience as well ought to be directed to be considered to elevated to that post. Mr. Bhuyan has argued that the impugned order which overlook this relevant consideration, is arbitrary besides being unfair and unjust and is liable to be interfered with by this Court. 8. Mr. Mr. Bhuyan has argued that the impugned order which overlook this relevant consideration, is arbitrary besides being unfair and unjust and is liable to be interfered with by this Court. 8. Mr. Goswami, on the other hand, has maintained that though the Assam College Employees (Provincialisation) Act, 2005 ('the Act') more particularly, Section 6 thereto dealing with the selection and appointment of employees of teaching and non-teaching posts in any non-government colleges in the State in receipt of deficit grants in aid (since provincialised) do not in clear terms mandate the filling up the post of Librarian by direct recruitment alone, considering the fact that the said post carries the UGC scale of pay, the view taken by the concerned departmental authority cannot be denounced as illogical and therefore, no interference in the exercise of this Court's power of judicial review ought to be made. 9. The rival and competing arguments advanced have met the due consideration of this Court. There is no denial of the fact that the petitioner who had been initially engaged as the Assistant Librarian of the College through a selection has since 16.8.2004 been holding the additional charge of the post of Librarian as well. There is no serious dispute also to her claim of being possessed of the necessary conditions of eligibility for the post of Librarian in terms of the prevalent UGC norms. She therefore, in other words, is eligible to be considered for the post of Librarian. 10. A bare perusal of the Office Memorandum dated 17.7.2004 which predominantly deals with the issue of regularization of the services of Lecturers in the deficit grants in colleges working against non-sanctioned post though recruited through a selection, the same per se does not seem to cover any other post of such institutions. As the said O.M. embody a policy decision of the State consciously taken being informed with all relevant considerations, this Court is of the view that in absence of any indication permitting flexibility of its application to the cases not otherwise expressly comprehended therein, any endeavour to do so would mean curial legislation impermissible in law. 11. In any view of the matter, the plea raised on behalf of the petitioner seeking invocation of the O.M. dated 17.7.2004 for regularization of her services as Librarian of the college involved even otherwise, does not commend for acceptance. 11. In any view of the matter, the plea raised on behalf of the petitioner seeking invocation of the O.M. dated 17.7.2004 for regularization of her services as Librarian of the college involved even otherwise, does not commend for acceptance. Noticeably, the said O.M. contemplates regularization of services of an incumbent in the post of Lecturer serving against a non-sanctioned post against a sanctioned one in the same grade. As the substantive appointment of the petitioner admittedly is in the post of Assistant Librarian, conceptually as well, the said O.M. has no application in her case for regularization of her services in the higher post of Librarian. 12. That the post of Librarian of the college carries the UGC scale of pay and, therefore, essentially, the holder thereof ought to satisfy the norms prescribed by the Commission, is also not in dispute. In absence of any prescription of any statutory Rules restricting the mode of appointment only by promotion, in the estimate of this Court, the view taken by the Director of Higher Education, Assam requiring the same to be filled up by direct recruitment cannot be said to be in violation of any enjoinment of law, binding executive instructions or administrative guidelines. Logically, the plea of the Director of Higher Education, Assam is essentially one which would eventuate a wider plane of competition for assessing the eligible candidates by applying the test of comparative suitability. On an overall consideration as above, in absence of any binding legislative stipulation, or any executive instruction or administrative guideline having the force of law to the contrary, the insistence on the part of the Director of Higher Education, Assam to fill up the post of Librarian of the college through direct recruitment, cannot be per se impeached as illegal, arbitrary or in defiance of logic. Having regard to the limited scope of scrutiny and interference by this Court in exercise of its powers under Article 226 of the Constitution of India, in my opinion, no interference with the impugned order is called for. 13. Having regard to the limited scope of scrutiny and interference by this Court in exercise of its powers under Article 226 of the Constitution of India, in my opinion, no interference with the impugned order is called for. 13. The above notwithstanding, as the petitioner asserts that she as on date fulfils the conditions of eligibility prescribed by the University Grants Commission for the said post, it is considered appropriate to leave her at liberty, if so advised, to pray for condonation of her over age vis-a-vis the criteria to this effect if to be prescribed for direct recruitment. In other words, if a process of direct recruitment is initiated for filling up the said post and the petitioner offers her candidature therefor, it would be open to her to submit an appropriate representation to the concerned authorities for condonation to her over age. This is more so, as Mr. Bhuyan points out in course of the arguments that considering the normal qualifying age of the candidates for the post involved, the petitioner by this time, has crossed the upper age limit. Needless to say, that if such a representation is submitted, the authority concerned, having regard to the petitioner's past service experience in the post, would deal with the same with compassion and pragmatism. 14. The petition stands closed in the above terms. No costs.