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2025 DIGILAW 1650 (GAU)

Sasanka Bujar Baruah v. State of Assam

2025-09-26

NELSON SAILO

body2025
JUDGMENT : NELSON SAILO, J. 1. All the writ petitions are being disposed of by this common judgment and order since the issues involved are common and similar. 2. Heard Ms. G Goswami, learned counsel for the petitioners. Also heard Mr. K Gogoi, learned Standing Counsel, Higher Education Department appearing for the said Department as well as the Assam Engineering Service Recruitment Board, Mr. S Das, learned Standing Counsel, Higher Education Department appearing for the said Department as well as Mr. PP Dutta, learned Standing Counsel, Assam Public Service Commission (APSC). 3. At the outset, it may be noted herein that not all the petitioners remain as the contesting petitioners since some of the petitioners are said to have secured regular appointments. The contesting petitioners in WP(C) 1264/2023 are petitioner Nos. 1, 3, 5, 7, 8 and 16. The contesting petitioners in WP(C) 1267/2023 are petitioner Nos. 10, 11, 12, 15, 23, 24, 32 and 33. The contesting petitioners in WP(C) 1271/2023 are petitioner Nos. 2 and 6. The contesting petitioner in WP(C) 1275/2023 is only petitioner No. 1. 4. By filing these writ petitions, the petitioners have challenged the 2 (two) impugned notices both dated 21.02.2023 by which online applications have been invited for recruitment to the vacant posts of Lecturers both Technical and Non-Technical in the Polytechnics under the Higher Education (Technical) Department, Government of Assam and which was issued by the Assam Engineering Service Recruitment Board (hereinafter referred to as the Board) in so far as the posts in which they have been appointed earlier has been advertised. 5. The case of the petitioners is that an Advertisement was issued by the Director of Technical Education, Assam on 25.02.2020 for appointment to the post of Lecturers, Technical and Non-Technical in the 5 (five) newly established Polytechnics at Tinsukia, Morigaon, Chirang, Udalguri and Hailakandi to be filled up under Regulation 3(f) of the Assam Public Service Commission (Limitation of Functions) Regulations, 1951 (hereinafter referred to as “The Regulations”) in the scale of pay and grade pay as indicated in the advertisement. The appointment was to be made purely on ad-hoc basis for a period of 4 (four) months as per Regulation 3(f) of the Regulations. According to the petitioners, they responded to the advertisement and after going through the rigors of the selection process, they were appointed as Lecturers in appropriate scale of pay, vide Notification dated 22.02.2021. The appointment was to be made purely on ad-hoc basis for a period of 4 (four) months as per Regulation 3(f) of the Regulations. According to the petitioners, they responded to the advertisement and after going through the rigors of the selection process, they were appointed as Lecturers in appropriate scale of pay, vide Notification dated 22.02.2021. Although their appointments were shown to be for a period of 4 (four) months only with posting in the colleges/institutions shown against each of their names w.e.f. their joining, their appointments continued beyond the said period of 4 (four) months. Subsequently, after about 10 (ten) months of their appointments, in terms of their initial appointments and the Cabinet decision dated 24.11.2021, an ex post facto approval was given to their appointments made under Regulation 3(f) of the Regulations. While the petitioners were continuing as such, to their surprise, the impugned 2 (two) Notices both dated 21.02.2023 came to be issued by the Board inviting online applications for recruitment to the vacant posts of Lecturers, Technical and Non- Technical, including the posts occupied by the petitioners. Aggrieved, with such an action, the petitioners have approached this Court through the 4 (four) writ petitions. 6. Ms. G Goswami, learned counsel for the petitioners submits that 260 (two hundred sixty) posts for the 5 (five) polytechnics have been created and sanctioned by the Governor of Assam, which was communicated by the Joint Secretary to the Government of Assam, Higher Education (Technical Department) to the Accountant General (A&E), Assam, vide Communication dated 05.03.2021. That it is against such sanctioned posts that the petitioners have been appointed and therefore, their appointments cannot be considered as an appointment made under Regulation 3(f) of the Regulations. The learned counsel, referring to Regulation 3(f) of the Regulations submits that the same can be adopted/invoked when an appointment is to be made by direct recruitment to a temporary post created in a service due to exigency and when reference to the Assam Service Public Commission (hereinafter referred to as the Commission) would cause undue delay. She submits that if the post has been sanctioned for or is likely to last for more than 4 (four) months, the Commission has to be consulted as soon as possible in terms of Sub Clause 3 of Article 320 of the Constitution of India. She submits that if the post has been sanctioned for or is likely to last for more than 4 (four) months, the Commission has to be consulted as soon as possible in terms of Sub Clause 3 of Article 320 of the Constitution of India. Since the posts have already been created in the instant case, the appointment of the petitioners cannot be considered as one under Regulation 3(f) of the Regulations. She also submits that the respondents themselves have given an ex post facto approval to the appointment of the petitioners and therefore, they are to be considered as Lecturers appointed on regular basis and faculty members of the 5 (five) polytechnics for all purposes. 7. The learned counsel also submits that the petitioners have been appointed in the appropriate scale of pay and grade pay as per the All India Council for Technical Education (AICTE) norms. Referring to the Approval Process Handbook 2024-2025 to 2026-2027 of the AICTE, the learned counsel submits that the same provides for the appointment of Principal/Director and Faculty of the Institutions on regular basis in order to maintain the standards of the Institutions. She submits that the institution can only avail of the services of contractual faculties under extra ordinary circumstances including Court cases, etc and that too, for a short duration only. Although the petitioners have been shown to be appointed under Regulation 3(f) of the Regulations, but they have undergone the rigors of selection and have continued in their services beyond the period prescribed under Regulation 3(f) of the Regulations and therefore, their appointments cannot be treated as an appointment under Regulation 3(f) of the Regulations only. 8. The learned counsel submits that during the pendency of the writ petitions although all the faculty members appointed under Regulation 3(f) of the Regulations have been released, but this Court, vide Order dated 20.03.2023 has made it clear that any appointment made pursuant to the impugned Advertisement both dated 21.02.2023 would be subject to the outcome of the writ petitions. Therefore, even if selection and appointments have been made in terms of the impugned Advertisement, the same cannot come in the way of granting a proper relief to the petitioners. 9. The learned counsel in support of her submissions reliesupon the following authorities:- (i) Asomi Gogoi (Dr.) Vs. State of Assam &Ors. 2022 (6) GLT 389. (ii) Sheo Narain Nagar & Ors. Vs. 9. The learned counsel in support of her submissions reliesupon the following authorities:- (i) Asomi Gogoi (Dr.) Vs. State of Assam &Ors. 2022 (6) GLT 389. (ii) Sheo Narain Nagar & Ors. Vs. State of Uttar Pradesh & Anr.(2018) 3 SCC 432. (iii) Order dated 30.01.2024 of the Supreme Court of India in Civil Appeal Nos.____ of 2024 arising out of SLP(C) Nos. 22241-42 of 2016. (Vinod Kumar & Ors. etc Vs. Union of India & Ors.) (iv) Jaggo Vs. Union of India &Ors.2024 SCC OnLine SC 3826, and (v) Order dated 04.02.2025 passed by the Supreme Court of India in SLP(C) No. 2868/2018 (Union of India, represented by Government of Puducherry & Anr. Vs. K. Velajagan & Ors.) 10. The learned counsel for the petitioners submits that the Notification dated 15.12.2021 by which the ex post facto approval has been given to the appointment of the petitioners as Lecturers in 5 (five) polytechnics has to be considered and understood in terms of what has been provided in the said Notification and not by the explanation given in the affidavit-in-opposition of the respondent/Department. In this connection, the learned counsel relies upon the Apex Court decision rendered in Mohinder Singh Gill Vs. Chief Election Commission, New Delhi , reported in 1978 (1) SCC 405 . The learned counsel thus submits that the terms and conditions of the appointment of the petitioners cannot be governed by the nomenclature in their appointment orders and that they are to be considered as regular appointees under the AICTE norms for all intent and purposes. 11. Mr. K Gogoi, learned Standing Counsel, Higher Education Department as well as the Board submits that the prayer made in the writ petitions in absence of any interim order passed by this Court has only become infructuous. He submits that in fact all the petitioners have participated by responding to the impugned Advertisement issued vide the 2 (two) Notices both dated 21.02.2023. Some of the petitioners were successful and have secured their appointments, while some of them could not succeed. At any rate, the learned counsel submits that the petitioners themselves were aware of the fact that their appointments under Regulation 3(f) of the Regulations were only temporary and for a short duration, in view of the urgency of having Lecturers to manage the 5 (five) newly established Polytechnics. At any rate, the learned counsel submits that the petitioners themselves were aware of the fact that their appointments under Regulation 3(f) of the Regulations were only temporary and for a short duration, in view of the urgency of having Lecturers to manage the 5 (five) newly established Polytechnics. The learned counsel, referring to the Advertisement dated 25.02.2020 submits that it was clearly provided in the said Advertisement that the post of Lecturers both Technical and Non-Technical were to be filled up under Regulation 3(f) of the Regulations and that the appointments would be purely on ad-hoc basis for a period of 4 (four) months in terms of the Regulations. In terms of the said Advertisement, selection and recruitments were made purely on temporary basis and for a period of 4 (four) months, vide Notification dated 22.02.2021. He submits that after the year 2021, the Commission has been replaced by the Board for making recruitment to the posts under the Assam Technical Education Service Rules, 1981(hereinafter referred to as the Rules of 1981). The learned counsel submits that Rule 5 to Rule 10 of the Rules of 1981 provides for the mode and manner in which recruitment is to be made to the Assam Technical Education Service. Since the Advertisement dated 25.02.2020 was only for the purpose of making appointment under Regulation 3(f) of the Regulations, the process for regular recruitment to the Government Polytechnics in Assam both Technical and Non- Technical was initiated by the Board, vide the impugned Notices dated 21.02.2023. The petitioners clearly acknowledging their nature of engagement under Regulation 3(f) of the Regulations also participated in the selection process. Having participated in the process, they cannot be said to have any grievance against the fresh recruitment process. The learned counsel submits that the petitioners may have rendered their services ever since their initial appointment under Regulation 3(f) of the Regulations but that by itself does not give them right to continue as a regular member of the faculties of the Polytechnics until and unless they are appointed by due process in terms of the Rules of 1981 by the Board. The learned counsel submits that the petitioners and all other similarly appointed under Regulation 3(f) of the Regulations have been released, vide Notification issued by the Secretary to the Government of Assam, Higher Education Department on 28.05.2025. The learned counsel submits that the petitioners and all other similarly appointed under Regulation 3(f) of the Regulations have been released, vide Notification issued by the Secretary to the Government of Assam, Higher Education Department on 28.05.2025. Therefore, considering the manner in which they have been appointed under Regulation 3(f) of the Regulations, the petitioners cannot have any legitimate grievance against the respondents. He thus submits that the writ petitions are without merit and therefore they should be dismissed. In support of his submissions, the learned counsel has relied upon the following authorities:- (i) Ganesh Digamber Jambhrunkar & Ors. Vs. State of Maharashtra & Ors., 2023 SCC OnLine SC 1417. (ii) Dr. Netramoni Baruah & Ors. Vs. State of Assam, represented by the Additional Chief Secretary & Ors., 2025 SCC OnLine Gau 1078. (iii) Union of India (UOI) & Ors. Vs. Mahendra Singh, MANU/SC/0919/2022. (iv) Dr. Biplab Singha Vs. State of Assam, represented by the Commissioner and Secretary & Ors., 2025 SCC OnLine Gau 1077. (v) The State of Gujarat & Ors. Vs. R.J. Pathan & Ors., (2022) 5 SCC 394 . (vi) Saurav Jyoti Parasor & Ors. Vs. State of Assam & Ors., (2022) 6 GLR 308. (vii) Nabin Ch. Bordoloi Vs. State of Assam & Ors., 2003 (2) GLT 147. (viii) Debabrat Borgohain& 19 Ors. Vs. Dilip Hazarika & Ors., 1996 (3) GLT 310 (ix) Pranjit Kumar Das Vs. State of Assam & Ors., 1995 1 GLR 229 (x) Anup Kumar Das (Dr.) Vs. Sanjib Kakati (Dr.) & Ors., 2000 (1) GLT 429 (xi) Judgment dated 19.08.2025 passed by the Supreme Court of India in Civil Appeal No(s). 8558/2018 (Dharam Singh & Ors. Vs. State of U.P. & Anr.) (xii) Judgment dated 22.08.2025 passed by the Supreme Court of India in SLP(C) No. 1347/2024 (Shah Samir Bharatbhai & Ors. Vs. The State of Gujarat & Ors.). 12. Mr. PP Dutta, learned Standing Counsel, APSC submits that the APSC is only a formal party and that since 2021 recruitments to the Assam Technical Education Service is being done by the Board and the APSC has no say in the matter. 13. I have heard the submissions made by the learned counsels for the rival parties and I have also perused the materials available on record. 14. 13. I have heard the submissions made by the learned counsels for the rival parties and I have also perused the materials available on record. 14. The issue to be decided is as to whether the petitioners having been appointed after following the process of selection pursuant to the Advertisement dated 25.02.2020 can be considered as regular appointees and be continued with their service against the post in which they were appointed in the scale of pay and grade pay given to them despite the fact that they had been appointed under Regulation 3(f) of the Regulations. Further, since they had been appointed against a sanctioned post and have continued in their service for more than 4 (four) years, their appointments cannot be regulated in terms of Regulation 3(f) of the Regulations since the appointment under the Regulations is purely on ad-hoc basis and for a period not extending 4 (four) months. 15. For better appreciation, Regulation 3(f) of the Regulations may be extracted hereunder:- “(f) when an appointment is to be made by direct recruitment to a temporary post created in a service if it is necessary in the public interest that the appointment should be made immediately and reference to the Commission would cause undue delay; provided that if the post has been sanctioned for, or is likely to last for more than four months, the Commission shall as soon as possible, be consulted in all matters mentioned in sub-clause (3) of Article 320 of the Constitution.” 16. From the above extract, it may be seen that when an appointment by way of direct recruitment has to be made on urgent basis on a temporary post and in public interest, the appointment can be made under Regulation 3(f) of the Regulations without reference to the Commission. However, if the post has been sanctioned for and is likely to last for more than 4 (four) months, the Commission should be consulted in all matters as per Article 320 of the Constitution of India. It may therefore be seen that an appointment made under Regulation 3(f) of the Regulations is due to the urgent nature of the case and for which reference to the Commission would cause undue delay and therefore, the same is waived. The appointment, however, would be for a short duration only. 17. It may therefore be seen that an appointment made under Regulation 3(f) of the Regulations is due to the urgent nature of the case and for which reference to the Commission would cause undue delay and therefore, the same is waived. The appointment, however, would be for a short duration only. 17. In the present case, upon the establishment of 5 (five) polytechnics at Tinsukia, Morigaon, Chirang, Udalguri and Hailakandi and to make them functional from August, 2020 under the Directorate of Technical Education, Assam, an Advertisement for recruitment to the post of Lecturers, Technical and Non-Technical and also Senior Instructors was issued on 25.02.2020 by providing that the posts will be filled up under Regulation 3(f) of the Regulations in the scale of pay and grade pay, as admissible. It was further provided that the appointment will be purely on ad-hoc basis for a period of 4 (four) months as per Regulation 3(f) of the Regulations. 18. In continuation to the Advertisement dated 25.02.2020, the essential criteria for the said recruitment was published, vide Notice dated 25.02.2020. The petitioners responded to the Advertisement and they came to be selected and appointed, vide Notification dated 22.02.2021. The Notification provided that the appointment was temporary and under Regulation 3(f) of the Regulations and in the scale of pay for a period of 4 (four) months. Further, the appointments were purely temporary and the appointees were liable to be terminated at any time without notice and without assigning any reason thereof. Although the petitioners, who were said to be appointed for a period of 4 (four) months only but their appointments continued beyond the said period. Not only that, vide Notification dated 15.12.2021 ex post facto approval of their appointments under Regulation 3(f) of the Regulations was notified. 19. It may be seen that the Advertisement for recruitment under Regulation 3(f) of the Regulations was floated on 25.02.2020, whereas the sanction of the Governor of Assam for creation of 260 (two hundred sixty) posts for the 5 (five) newly established polytechnics was conveyed to the Accountant General, Assam by the Joint Secretary to the Government of Assam, Higher Education (Technical) Department on 05.03.2021. The contention of the petitioners that their appointments cannot be considered to be a temporary appointment under Regulation 3(f) of the Regulations since they have been appointed against sanctioned posts does not appear to be the correct position, in view of the fact that they were appointed under Regulation 3(f) of the Regulations, vide Notification dated 22.02.2021, whereas the posts came to be sanctioned by the Governor of Assam in terms of the Communication dated 05.03.2021. It is true that the petitioners have continued in their service beyond the period of 4 (four) months, but the same by itself cannot change the nature and character of their appointments. 20. It is also the stand of the petitioners that their appointments have been approved ex post facto as per the Cabinet decision, which held its meeting on 24.11.2021 and therefore, the same amounts to the confirmation of their appointments also appears to be not the correct position. It may again be seen that an Advertisement was made on 25.02.2020 for making recruitment under Regulation 3(f) of the Regulations and the selection and appointment came to be made, vide Notification dated 22.02.2021. Without there being any mention as to whether there was any sanctioned posts or otherwise, it was only on 05.03.2021 that the sanction of the Governor of Assam for creation of 260 (two hundred sixty) posts for the 5 (five) newly established polytechnics came to be conveyed and in order to regularise the temporary appointments made under Regulation 3(f) of the Regulations, the ex post facto approval was given in terms of the Cabinet decision dated 24.11.2021, vide Notification dated 15.12.2021. Therefore, just because the appointment of the petitioners lasted for more than 4 (four) months from the initial appointment, the same would not mean that they have been regularly appointed against a sanctioned post and the same gives them a right to continue in their appointed posts. 21. As may been seen Regulation 3(f) of the Regulations provides that if the post has been sanctioned for and is likely to last for more than 4 (four) months, the Commission has to be consulted as soon as possible in terms of Article 230(3) of the Constitution of India. 21. As may been seen Regulation 3(f) of the Regulations provides that if the post has been sanctioned for and is likely to last for more than 4 (four) months, the Commission has to be consulted as soon as possible in terms of Article 230(3) of the Constitution of India. The temporary appointment of the petitioners and other similarly situated persons under Regulation 3(f) of the Regulations was followed by the sanction of creation of 260 (two hundred sixty) posts for the 5 (five) polytechnics on 05.03.2021 and in terms of the second proviso to Regulation 3(f) of the Regulations, filling up the sanctioned posts in terms of the relevant provisions of the Rules by consulting the Commission or the Board has been necessitated. Since the Commission has been replaced by the Board, notice for recruitment was therefore, issued by the Board on 21.02.2023 separately for Lecturers Technical and for Lecturers Non-Technical. The petitioners although aggrieved by the same, apparently have all participated in the recruitment process which therefore, goes to show that they themselves are aware about the status of their appointments under Regulation 3(f) of the Regulations. 22. Let us now refer to the authorities relied upon by the learned counsel for the petitioners. A co-ordinate Bench of this Court in Asomi Gogoi (Dr.) (supra) has held that the condition precedent in making an appointment under Regulation 3(f) of the Regulations would be that the same cannot be against a permanent sanctioned post already in existence and can be invoked only in a situation where the administrative authorities are of the view that for the purpose of administrative exigency, posts beyond the permanent sanctioned post are required to be created and such posts on being created would last for a period lesser than 4 (four) months and for which, no consultation with the APSC would be required. However, in the instant case, as may be noticed, the advertisement was not preceded by any post/posts being sanctioned or created. The petitioners were appointed on 22.02.2021 and the posts were subsequently sanctioned on 05.03.2021. Therefore, the referred case is not found to be applicable in the instant case. Similarly, the cases of Sheo Narain Nagar (supra) and Vinod Kumar (supra) are clearly distinguishable on facts. The instant petitioners were appointed by invoking Regulation 3(f) of the Regulations and the exercise and application of which is not challenged by the petitioners. Therefore, the referred case is not found to be applicable in the instant case. Similarly, the cases of Sheo Narain Nagar (supra) and Vinod Kumar (supra) are clearly distinguishable on facts. The instant petitioners were appointed by invoking Regulation 3(f) of the Regulations and the exercise and application of which is not challenged by the petitioners. The case of Jaggo (supra) also cannot be applied to the instant case, in view of the fact that the nature of appointment under Regulation 3(f) of the Regulations itself is a temporary appointment. The petitioners may have continued for an extended period of time but it does not give them the right to be confirmed or regularised. 23. The case of Mohinder Singh Gill (supra) relied upon by the learned counsel for the petitioners is also found to be not applicable to the instant case, in view of the fact that the sequence of events, as to how the recruitment was done and creation and sanction of posts were done subsequently, as reflected in paragraphs 17 to 19 of this judgment is not a fact in dispute. Therefore, it cannot be said that the respondents have sought to supplement their stand by way of an affidavit as was held to be not permissible in Mohinder Singh Gill (supra). It may also be stated herein that the petitioners have participated in the subsequent advertisement and some of them have been successful in securing their appointments while some were not. 24. Therefore, upon due consideration of the matter in its entirety, I do not find any merit in the writ petitions. Having come to such a conclusion, reference to remaining authorities is found to be not necessary. 25. In the result, all the writ petitions are dismissed while leaving the parties to bear their own costs.