Saiful Islam vs State of Assam and Others

A.K. Patnaik, J.—In this application under Article 226 of the Constitution, the Petitioner, Md. Saiful Islam, has prayed for quashing the order dated 3.11.97 of the Secretary to the Government of Assam, Education Department, by which the Petitioner''s representation to regularise his services as a lecturer in the Moirabari College and grant him UGC scale of pay has been rejected.

The relevant facts briefly are that the Petitioner has been working as a lecturer History Department of the Moirabari College prior to 11.1.96. With effect from 11.1.96, the Moirabari College was brought under the Deficit System of Grant-in-aid, and the services of different lecturers working in the said Moirabari College were regularised by order dated 23.9.96 of the Director of Higher Education, Assam. As per the statement annexed to the said order dated 23.9.96 of the Director of Higher Education, Assam, lecturers of different subjects were given the pay scale ofRs. 2200-4000/-p.m. as per the UGC norms. By the said order dated 23.9.96 of the Director of Higher Education, however, services of the Petitioner were not regularised and as a result he continued to draw the fixed pay of Rs. 800/- p.m. Aggrieved, the Petitioner filed a writ petition, being Civil Rule No. 1999/97 which was disposed of with the direction to the Director ofHigher Education, Assam, tp consider the case of the Petitioner and after obtaining approval from the Government pass appropriate orders within two months of the receipt of the representation from the Petitioner. The Petitioner then submitted a representation dated 20.5.97 before the Director of Higher Education, Assam, stating therein that he was appointed as a Tutor in the Department of History in Moirabari College on 16.9.87 and his appointment as such was approved with effect from 9.12.88. He was appointed as a lecturer in the same post by Resolution No. 8 of the Governing Body of the college on 18.3.89 and that the Principal of Moirabari College had forwarded the joining report of the Petitioner on 17.2.97. Along with the said representation dated 20.5.97, the Petitioner enclosed all necessary documents and requested the Director of Higher Education, Assam, to take steps to approve his appointment as a lecturer in Moirabari College. The Director of Higher Education, Assam, then wrote a letter to the Secretary to the Government of Assam, Education (Higher) Department, stating therein, inter alia, that the Petitioner was appointed as a Tutor in the Department of History by the College authority of the Moirabari College on 16.9.87 while he was not a PG degree holder and he obtained his PG degree on 29.11.88 with 52.75% marks and the Governing Body of the College in its Resolution No. 8 dated 18.3.89 regularised the services of the Petitioner as a lecturer in History Department with effect from 9.12.88.

In the said letter, the Director of Higher Education further stated that the Moirabari College was taken under the Deficit System of Grant-in-aid with effect from 11.1.96, but the appointment of the Petitioner could not be regularised as a lecturer in History along with other lecturers as he did not have the present UGC norms of 55% marks in Master Degree. But subsequently a list of under-qualified teachers was submitted to the Government for necessary action under letter dated 22.1.97 where the particulars of the Petitioner were also included along with others which was still under consideration of the Government, and requested the Government to take necessary action on the proposal dated 22.1.97 along with the case of Md Saiful Islam. The secretary to the Government of Assam, Education Department, then considered the case of the Petitioner and by order dated 3.11.97 held on the basis of the materials before him that the Petitioner joined as a lecturer in History in Moirabari College on 20.3.89 and therefore was not entitled to get UGC scale of Rs. 2200-4000/- p.m. which was available to the lecturers of different colleges in Assam who had been appointed and joined before 15.12.88. Aggrieved by the said order dated 3.11.97, the Petitioner has moved this Court in the present Civil Rule for appropriate relief.

Mr A.C. Buragohain, learned Counsel appearing for the Petitioner, submitted that Annexures-''A'', ''B'', ''C'', ''D'', ''E'', ''F'', ''G'' and ''H'' to the writ petition would clearly show that the Petitioner was initially appointed as a Tutor in the Department of History in Moirabari College by order dated 9.9.87 as by then he had only completed MA (Previous) and had not acquired MA Degree. But on completion of his MA Degree with 52.75% marks in November/88, he was appointed as a lecturer in History in the said college with effect from 9.12.88 and his date of joining as such lecturer in the Department of History was taken as 9.12.88. According to Mr Buragohain therefore the secretary to the Government of Assam, Education Department, was not at all right in coming to the finding that the Petitioner had been appointed and had joined as a lecturer in the College after 15.12.88 and was therefore not entitled to UGC scale of pay of Rs. 2200- 4000/- p.m. Mr Buragohain further submitted that by order dated 24.12.96 of the Government of Assam, Education epartment, a copy of which has been iuinexed to the writ petition as Annexure-''E'', the services of under-qualified teachers in fixed pay of Rs. 2200/- p.m. plus other allowances as admissible under the Rules were approved by the Government and the statement of 11 under-qualified teachers of different colleges who were granted fixed pay of Rs. 2200/- p.m. with effect from 11.1.96 was attached to the said order. The said statement would show that 2 out of 11 under-qualified lecturers had secured less marks than the Petitioner and 2 out of the said under-qualified lecturers had secured same marks as that of the Petitioner in the MA Examinations and that the Government acted in an arbitrary and discriminatory manner in not approving the services of the Petitioner in fixed pay of Rs. 2200/- p.m. with effect from 11.1.96 and the whole action of the State Government was violative of the rights of equality in matters of public employment under Articles 14 and 16 of the Constitution.

In reply, Mr T.C. Chutia, learned Junior Government Advocate, Assam, relied on the averments in the affidavit in-opposition filed by the Respondent No. 2 as well as annexures thereto to show than the Petitioner actually joined as a lecturer in History in the Moirabari College on 20.3.89 and not with effect from 9.12.88 as claimed by him. He further contended that the UGC norms whereunder only persons having 55% marks in MA could be appointed as lecturers in the concerned subjects were accepted by the Government of Assam on 15.12.88 and hence the Petitioner who was appointed and joined as a lecturer in Moirabari College after 15.12.88 was not entitled to the fixed pay of Rs. 2200/- p.m. plus other allowances. Mr Chutia also produced before the Court a copy of the order dated 15.12.88 of the Government of Assam, Education (Personnel) Department by which the UGC norms were accepted.

On a reading of the impugned order dated 3.11.97 of the Secretary to the Government of Assam, Education Department, it appears that he has arrived at a finding that the Petitioner joined as a lecturer in Moirabari college on 20.3.89 after closely scrutinizing the records of the college including the original proceeding book of the Governing body of the college and the particulars of teaching staff furnished by the principal of Moirabari College to the Department, copies of which have been annexed to the affidavit-in-opposition of the Respondent No. 2 as Annexure-III, IV and V. The said finding of fact recorded by the Secretary, Education, Government of Assam on materials before him that the Petitioner joined as a lecturer in history in the Moirabari College on 20.3.89 cannot be disturbed by this Court in exercise of its power of judicial review under Article 226 of the Constitution because the Court does not act as an appellate authority in respect of such finding of fact by an administrative authority. Moreover, the Petitioner appeared to have himself submitted his joining report on 21.3.89 to the principal, Moirabari College, a copy of which has been annexed to the affidavit-in-opposition of Respondent No. 2 as Annexure-II which indicates that the Petitioner joined as a lecturer in the Department of History in the aforesaid college on 21.3.89 pursuant to the resolution dated 18.3.89 of the Governing Body of the college.

But the fact that the Petitioner joined as a lecturer in Moirabari College on 20/21. 3.89 cannot by itself deprive him of the benefit of the fixed pay of Rs. 2200/- p.m. plus other allowances as admissible under the Rules which has been granted by the Government to other 11 under-qualified lecturers with effect from 11.1.96. The reason advanced by the Secretary, Education, Government of Assam in the impugned order dated 3.11.97 and by the Respondent No. 2 in the affidavit-in-opposition for not granting the Petitioner the said benefit of fixed pay of Rs. 2200/-p.m. was that he had joined as a lecturer in the Moirabari College after 15.12.88 on which date the Government adopted the UGC norms for appointment of lecturers which prescribed that only Post-Graduates with 55% marks were eligible to be appointed as lecturers of different subjects. But what the Respondents and in particular the Secretary to the Govt, of Assam, Education Department have failed to appreciate was that by order dated 15.12.88 the Government applied UGC norms and introduced the scheme of revised pay scales for University and college teachers of Universities and non-Government Colleges under deficit system of grant-in-aid and that the said order dated 15.12.88 did not apply to Non-Government Colleges such as the Moirabari College which was not under the deficit system of grant-in-aid as on 15.12.88. Paragraphs 2 and 3 of the said order dated 15.12.88 of the Government of Assam, Education (Personnel) Department are quoted herein below:

The State Government have decided to introduce the scheme of revised pay scales for University and college teachers as recommended by the University Grants Commission in the Universities and Non-Government colleges under deficit system of grant-in-aid (Except Medical, Agricultural, Veterinary Science Colleges and Agriculture Universities). Accordingly, sanction of the Governor of Assam is accorded to the introduction of the following revised scales of pay for teachers of Universities and Non- Government Colleges under deficit system of grant-in-aidCexcluding Medical. Agricultural, Veterinary Science and Agri. Universities) of this state with effect from 1st January, 1986, subject to the conditions mentioned hereinafter. These scales are, however, not applicable to the teachers who have been appointed against a fixed pay and not against a regular scale of pay.

All appointments to be made henceforth shall be in observance of the norms laid down under Government of India, Ministry of Human Resource Development, Department of Education Communication No. F.I-21/87-UI dated 17.6.87 and subsequent Central Government decision communicated vide No. F.1-21/87-UI dated 20.9.88 as the payment of Central assistance for implementation of this scheme is also subject to the condition that the entire scheme of revision of pay scale together with and the conditions attached to it is implemented by the State Government as a composite scheme. This implies inter alia that the age of superannuation for teachers should be 60 years and thereafter no extension in service should be given. (Copies of Government of India''s letter dated 17.6.87 and 20.9.88 are enclosed). You are requested to submit proposal for Government approval, procedure to be followed for making fresh appointments. No fresh recruitment may be made without approval of such procedure. (Emphasis supplied)

Paragraph 3 read with paragraph 2 of the aforesaid order dated 15.12.88 of the State Government would show that after 15.12.88 no appointment of a lecturer could be made to a non-Government college under deficit system of grant-in-aid unless he satisfied the UGC norms laid down under the Government of India Communications dated 17.6.87 and 2(sic).9.88. But since the said order dated (sic).12.88 did not apply to a non-Government college which was not under the deficit system of grant-in-aid, such as Moirabari college, the Governing Body of the said College could appoint lecturers which did not satisfy the said norms until the said College was brought under the deficit system of grant-in-aid. On 20.3.89, the Governing Body of the Moirabari College therefore could appoint the Petitioner as a lecturer in History in the College even though he did not have 55% marks in M.A. as per the aforesaid norms and the order dated 15.12.88 of the Government of Assam, Education Department (Personnel) was not a bar for such appointment of the Petitioner as a lecturer in History. Having been so appointed as a lecturer in History in Moirabari College and having joined and worked as such lecturer in History upto 11.1.96 with effect from which the said college was brought under deficit system of grant-in-aid, the Government cannot refuse to regularise the services of the Petitioner and grant him the fixed pay of Rs. 2200/- p.m. Plus other allowances as admissible under the Rules that was granted to other under-qualified lecturers with effect from 11.1.96 on the ground that he was appointed after 15.12.88 and he did not have 55% marks in MA prescribed by the U.G.C. norms. In fact, such actions of the Government in not regularising the services of the Petitioner and in not granting the fixed pay of Rs. 2200/- p.m. plus other allowances as admissible under the Rules to the Petitioner who had secured 52.75% marks in MA while regularising the services of other lecturers who had secured less than 52.75% as indicated in the statement annexed to Annexure E to the writ petition and granting them a fixed pay of Rs. 2200/- p.m. were discriminatory and arbitrary and violative of the rights of the Petitioner under Articles 14 and 16 of the Constitution.

For the reasons stated above, I quash the impugned order dated 3.11.97 of the Secretary to the Govt. of Assam, Education Department, and direct the Respondents to regularise the services of the Petitioner and grant him the fixed pay of Rs. 2200/- p.m. plus other allowances as admissible under the Rules with effect from 11.1.96. The writ petition is allowed with the aforesaid directions. However, considering the entrie facts and circumstances of the case, the parties shall bear their own costs.