Amitava Roy, J.
1. The petitioner while assailing the decision of termination of his services as lecturer in Hindi of the Pramathesh Barua College, Gauripur (hereinafter referred to as the ‘College’) has sought for a writ of mandamus to the official respondents to adjust/regularize him against the regular vacancy in the post of Lecturer in Political Science in the same college following the retirement of Smti Reba Baruah in terms of the Government Office Memorandum No. B(2)H-97/2004/98 dated 17.7.2004 of the Education (Higher) Department, Govt. of Assam, Dispur. This Court while issuing notice on 5.6.2006 stayed the operation of the communication dated 27.5.2006 terminating his services. The interim order having been extended thereafter, he as on date, continues in office.
2. I have heard Mr. Pallav Bhowmik, learned Counsel for the petitioner, Mr. Manash R. Pathak, learned standing counsel, Education department for the respondent Nos. 1 and 2, Mr. D.C. Mahanta, Senior Advocate assisted by Ms. P. Bhattacharjee, Advocate for the College (respondent Nos 3 & 4) and Mr. A.S. Choudhury, Senior Advocate, assisted by Mr. I. Hussain, Advocate for the respondent No. 5.
3. The pleaded versions provide the foundational facts. The petitioner’s case is that, he is a Post Graduate in Hindi and thus eligible for appointment as a Lecturer in terms of the relevant norms of the University Grants Commission (hereinafter referred to as the ‘UGC’). Being aware of a vacancy in the post of lecturer in the department of Hindi of the College, he offered his candidature on 30.8.99 whereafter he was appointed as such on 9.11.1999 on temporary basis for a period of three months. He accordingly joined the post on 10.11.99. His initial terms was thereafter extended from time to time. In due course, the authorities of the College decided to initiate a selection process for appointment of a lecturer in the department of Hindi on a consolidated pay. In response to the advertisement published in the issue dated 23.1.2001 of the local daily Assam Tribune to the above effect, the petitioner along with others submitted their candidatures. He was thereafter interviewed by the Board constituted for the purpose and eventually the selection Board forwarded its recommendations where the petitioner topped the list. The Special Body of the College thereafter by its resolution dated 4.3.2001 acting on the recommendations appointed him as the lecturer in the department of Hindi and the appointment order was issued on 19.3.2001 by the Principal and Secretary of the College. There he was recruited against a non sanctioned post on a consolidated pay of Rs. 1000/-per month.
4. The department of Higher Education of the State by the Office Memorandum dated 17.7.2004 had outlined the modalities for allocation of vacant sanctioned posts of lecturer in deficit grants-in-aid Colleges of Assam to accommodate teachers working without the sanctioned posts by way of readjustment. The Office Memorandum while disclosing that the State government was not in a position to sanction any new post for such Colleges to accommodate the teachers serving without sanctioned posts referred to a cabinet decision wherein the procedure for adjustment of such serving College teachers was formulated. In terms thereof, vacant posts in a particular department lying in a grants-in-aid College in Assam could be allotted in order to facilitate accommodation of teachers in the same college who were working in the other departments without a valid sanctioned post, provided that, such teachers had been appointed by the respective Governing Body and after observing due procedure i.e. advertisement, selection and were possessed of UGC norms. This was also subject to the condition that the need for such adjustment was justified by the enrolment of that department of the college and further that the post was not considered essential for the department against which it was originally sanctioned. According to the petitioner, by the end of the year 2004, a post in the department of English fell vacant and thus became available for adjustment in terms of the said Office Memorandum. The respondent authorities, however, adjusted one Aminur Islam Sheikh, a lecturer in the department of Philosophy though he was much junior to him (petitioner). The petitioner representation on the issue failed to evoke any response.
It was thereafter that the Director of Higher Education, Assam by his communication dated 31.1.2006 required the Principal & Secretary of the College to submit necessary particulars pertaining to the teachers serving against non sanctioned posts and appointed after observing the due procedure and having UGC norms. On 23.2.2006, the Principal and Secretary of the College by his communication of the even date forwarded the said particulars wherefrom it was apparent that the petitioner was the senior most teacher amongst the duly selected lecturers with UGC norms and serving against non sanctioned posts in the College. The College was also in the meantime, provincialised along with other grants-in-aid Colleges in the State in view of the Assam College Employees (Provincialisation) Act, 2005 (hereinafter referred to as the ‘2005 Act’). In terms of the option available under Section 3(D) of the said statute, one Smti Reba Baruah, a selection grade lecturer in the department of Political Science in the College chose to go on retirement and accordingly submitted her pension papers.
5. Accordingly from February, 2006 on superannuation of Smti Reba Baruah, a sanctioned post of lecturer in the department of Political Science fell vacant and was available for utilization in terms of the Office memorandum dated 17.7.2004. The petitioner having came to learn of a move to divert the said post to the department of Mathematics to adjust the respondent No. 5 who is also junior to him in service, submitted a representation before the college authorities on 3.2.2006 for consideration of his candidature for such adjustment. While he was waiting for a favourable response, the petitioner was shocked and astounded to receive the impugned communication dated 27.5.2006 issued by the Principal & Secretary of the College terminating his services.
It was alleged therein that the petitioner had in the last assembly elections openly campaigned in favour of AUDF candidate which was not only in violation of the election code of conduct, but also impermissible under the relevant service rules, the College in the meantime, having been provincialised. The petitioner has pleaded that not only the imputation is unfounded, the decision was taken without affording any opportunity whatsoever to meet the same. He alleged the lack of bonafide and asserted it to be a ruse to pave the way for the respondent No. 5. His appeal to the college authorities remained unheeded and he was debarred from discharging his duties. Situated thus he approached this Court and by order dated 5.6.2006 his termination kept in abeyance.
6. During the pendency of the instant proceeding, the petitioner filed a miscellaneous application (Misc case No. 2644/2006) to bring on record further facts. It was inter alia asserted therein that though in terms of the Office Memorandum dated 17.7.2004 the vacant sanctioned post of lecturer in political science following superannuation to Smti Reba Baruah ought to have been diverted to hindi department which had the requisite permission and government concurrence since the establishment of the commerce stream of the Collage, the Governing Body thereof, had in its meeting held on 21.6.2006 resolved to accommodate the respondent No. 5 against the said post. This Court by its order dated 2.8.2006 restrained the transfer of the post of lecturer in political science to any other department and made the said order absolute on 7.8.2006 pending final decision in the writ petition.
7. The petitioner filed another misc application (Misc case No. 4640/2006), this time disclosing that the College authorities acting on a complaint submitted by the two students of the College against him had debarred him from taking classes. It was contended that though the petitioner and the other charged teacher on being asked had submitted a reply denying the allegations, he was singled out for the said treatment. The petitioner further complained of termination of his services on 27.11.2006 inspite of the order dated 5.6.2006 restraining his ouster. As disclosed in course of the arguments, the order dated 27.11.2006 was withdrawn on 13.12.2006.
8. No affidavit in opposition has been filed by any of the respondents. The respondent No. 5 however, filed an application for vacation and/or modification of the order dated 7.8.2006 passed in Misc case No. 2644/2006 injuncting diversion of the vacant post of lecturer in political science to any other department of the college. While alleging concealment and suppression of material facts, the respondent maintained that the College imparts education in Arts and Commerce disciplines. Whereas the Arts faculty was established in 1964 and was brought under deficit grants in aid system of the Government in 1969, the commerce section was established in 1979 and too was brought under the grants- in -aid system in 1984 with Mathematics one of the subjects. According to him, Hindi was introduced in the year 1999 without the permission of the Gauhati University (hereinafter referred to as the ‘University’), particularly on venture basis. Though the Executive council of the University later on granted the permission for opening the Three Years Degree course with 1st year class in Hindi in both Arts and Commerce streams by its resolution dated 27.9.2003, no concurrence of the government as required was accorded. On 25.11.1987, however, the subject of mathematics had received the government concurrence. The said respondent therefore contended that no lecturer could be regularised in Hindi and therefore, the question of conversion of the sanctioned post of lecturer of Political Science to one of Hindi as per Office Memorandum dated 17.7.2004 did not arise. He also referred to the resolution dated 21.6.2006 of the governing body of the college to divert the post of lecturer in political science to the department of mathematics for want of government concurrence for the department of Hindi. He further disclosed that on 24.6.2006 the Principal & Secretary of the College had forwarded the said resolution to the Director of Higher Education, Assam, who on 27.7.2006 had granted the approval thereof.
9. According to the said respondent, though the Principal & Secretary of the College thereafter by his letter dated 31.7.2006 sought the approval of the aforementioned state authority for his appointment, in view of the interim order of this Court, the same was not granted. While categorically denying that the Hindi department of the College enjoys government concurrence, the said respondent pleaded that the petitioner had no claim under the Office Memorandum dated 17.7.2004 and that he (respondent No. 5) being equipped with the UGC norms and having been duly selected, was entitled to be regularized against the vacant sanctioned post of lecturer of Political Science.
10. The petitioner in his counter while reiterating his pleaded stand asserted that, Hindi was being taught in the College since its inception in 1964 as a major Indian language. He admitted that though the Executive council of the University had granted permission for opening Hindi classes by its resolution dated 27.9.2003, the issue of state concurrence involving other departments of the College was pending with the government. He averred that the government concurrence granted in 1987 was amongst other for the subject mathematics in the commerce stream. According to him, besides said post in the commerce department, three other lecturers were teaching the same subject in the Arts departments without government concurrence. He claimed that the post of lecturer in mathematics held by the respondent No. 5 belongs to the Arts stream. While asserting that the post of lecturer in mathematics enjoying the government concurrence is held by Sri M.A. Sarkar, the petitioner contended that there was thus no intelligible criteria to treat him and the respondent No. 5 differently. As the petitioner was evidently senior to the respondent No. 5 in service, the sanctioned post of lecturer in political science ought to be diverted to the department of Hindi to accommodate him. He further asserted that being the lone lecturer of Hindi, he has to take more than 20 classes in a week and therefore as per the relevant government circular, he ought to be preferred for being regularized in terms of the Office Memorandum dated 17.7.2004. He asserted that the Director of Higher Education while granting approval to the resolution of the governing body over looked that the second post of lecturer in mathematics in the College did not have the government concurrence.
11. Mr. Bhowmik has urged that as the petitioner complies with all the necessary pre conditions ordained in the Office Memorandum dated 17.7.2004 for being regularized against the sanctioned post of lecturer in political science, the impugned decision of favouring the respondent No. 5 is apparently illegal, arbitrary and unconstitutional. As the respondent No. 5 is serving against a non sanctioned post of lecturer in Mathematics of the Arts stream of the College and the only sanctioned post in the subject in the commerce stream is presently held by Sri M.A. Sarkar, having regard to the service seniority of the petitioner, he is entitled to be preferred for regularization of his services. The petitioner and the respondent No. 5 being at par, in absence of government concurrence in the subjects of Hindi and Mathematics (Arts stream), there is no conceivable justification to deny him (petitioner) the benefit of the Office Memorandum dated 17.7.2004. The learned Counsel maintained that the impugned action is vitiated by irrelevant considerations and collateral purposes and is thus liable to be adjudged illegal, null and void. As the impugned order of termination of the petitioner’s service though visibly penal in nature, was not preceded by an opportunity of hearing, it besides being arbitrary and high-handed is void and inoperative in law being violative of the principles of natural justice.
12. Mr. Pathak appearing for the official respondents has argued that as the subject of Hindi in the College has no government concurrence, the petitioner’s claim based on the Office Memorandum dated 17.7.2004 is misconceived. As the respondent No. 5 is serving as a lecturer in a non sanctioned post in the commerce stream of the College, the resolution of the Governing Body thereof the accommodate him against the vacant post of lecturer in political science and the approval of the Director of Higher Education, Assam thereof, cannot be faulted with. The learned Standing counsel has produced the relevant official records.
13. Mr. Mahanta while reiterating the imputation of suppression of material facts, has urged that the resolution of the Governing Body to accommodate the respondent No. 5 for regularization in terms of the Office Memorandum dated 17.7.2004 was valid. In the facts and circumstances of the case as the subject Hindi does not have the government concurrence as required for want of the prescribed number of students of 80, the preferential claim registered by the petitioner for regularization of his services is fallacious, he contended. He maintained that in absence of any challenge to the resolution dated 21.6.2006 and the approval of the Director thereof, no plea having a bearing thereon ought to be entertained by this Court. The learned Senior counsel confirmed that the respondent No. 5 is serving as a lecturer against the non sanctioned post of mathematics in the commerce stream and he having satisfied the conditions of eligibility prescribed by the Office Memorandum dated 17.7.2004, was rightly identified to be entitled to the benefits thereunder. According to him, the services of the petitioner had been dispensed with for want of funds, but in view of the interim order of this Court, the order of termination had been withdrawn. He also placed for the perusal of the Court the relevant records of the College.
14. While maintaining the above, Mr. Choudhury has argued with reference to Clauses 8 & 9 of the Ordinance on Permission and Affiliation of Degree Colleges to the Gauhati University, 1997 (hereinafter referred to as ‘Ordinance’) as well as Section 21(G) of the Gauhati University Act, 1947 (hereinafter referred to as the ‘Act’) that as the subject Hindi has no government concurrence, the notion of non-sanctioned post as comprehended in the Office Memorandum dated 17.7.2004 vis-a-vis the said subject in the College was not available and therefore, the contentions to the contrary raised on behalf of the petitioner are patently untenable.
15. Two issues arise from the above factual matrix for adjudication. First, appertaining to the termination of the petitioner’s service and the second, his regularization under the Office Memorandum dated 17.7.2004. That the petitioner was appointed as a lecturer in Hindi in the Collage through a process of selection is not disputed. There is no wrangle at the Bar either that he possesses the prescribed UGC norms for the post. The decision to terminate his services as conveyed by the letter dated 27.5.2006 is evidently punitive in nature. There is no assertion on records that any opportunity to the petitioner had been afforded before visiting him therewith. By a subsequent communication dated 27.11.2006 during the pendency of the instant proceeding, he was relieved from the services of the College as the same were not required. The said decision was recalled on 13.12.2006 indicating that he had been released due to paucity of College funds. The petitioner’s appointment to a non-sanctioned post notwithstanding, any decision doing away with his services to be approved in law has to be unavoidably in accord with the tenets of fairness in action.
16. Having regard to the exercise on the basis of which the petitioner had been appointed, I am of the considered opinion that he deserved an opportunity to be heard before terminating his services. The impugned decision to the above effect therefore has to be held unsustainable in law. Consequently, the communication dated 27.5.2005 is hereby quashed.
17. The aspect of regularization as per the Office Memorandum dated 17.7.2004 now needs to be attended. The records produced disclose that the Deputy Secretary to the Govt. of Assam, Education Department by his letter No. AFH.213/85 dated 25.11.1987 addressed to the Director of Public Instruction, Assam, Guwahati conveyed the government concurrence to the permission/affiliation for imparting education in the specified subjects in the College, subject to the fulfillment of the conditions laid down by the Executive council of the University. In the list of subjects referred to in the said letter, while mathematics in the commerce stream is included, Hindi does not find place therein. In terms of the said letter therefore, the subject of mathematics in the commerce stream of the college had earned the government concurrence. It further transpires from the records that the Executive Council of the University on 27.9.2003 by its resolution No. 2003/12/162(4) decided that the College be granted permission for opening TDC 1st year classes in Hindi (MIL) in both Arts and Commerce streams for the session 2002-2003 on receipt of prior concurrence of State government as per Section 21(G) of the Act as amended. That one post of lecturer in Mathematics in the commerce stream had been sanctioned by the government is also demonstrated by order dated 16.6.1992 of the Director of Public Instruction, Assam.
18. The Ordinance framed under Section 23(e) of the Act provides inter alia the procedure for obtaining permission for opening new faculty or subject(s) in an existing College. Under Clause 8 thereof, if an affiliated college desires to open a faculty/new subject, the Governing Body thereof has to submit an application in the prescribed form with the fee to the Registrar of the University not later than 31st December of the year preceding year for which it intends to start the subject/subjects. Clause 9 requires that such request would be considered on merit on the basis of the satisfactory screening report submitted by the Inspector of Colleges and the concurrence of the State Government. When the College satisfies the conditions for opening the new faculty/subject(s), the Registrar of the University would cause inspection with the prior approval of the Vice-Chancellor. On receipt of satisfactory inspection report, the Affiliation Committee may after the scrutiny thereof recommend to the Executive Council for grant of permission for opening of the proposed faculty/subject in the College subject to receipt of concurrence of the State Government.
It is thus more than apparent that the concurrence of the State Government is an essential and indispensable pre condition for a valid and effective permission for starting the proposed faculty/subject in an existing College. It is evident from Clause 8 that the same essentialities have also been stipulated for a Government College.
19. The petitioner has candidly admitted that the issue of government concurrence visa-vis Hindi as well as mathematics for the Arts stream of the College is pending government concurrence. Obviously therefore, there is no valid permission as envisaged in the Ordinance as on date to start classes for imparting education of Hindi in the College. The records reveal the stand of the College that the Department of Mathematics in the commerce stream is manned by one lecturer on regular basis and that due to increase in enrolment and the resultant work load, the present staff strength is wholly inadequate. According to the College authorities, Hindi was introduced in the Institution in the year 1999 and the University had accorded its permission for starting the subject in TDC 1st year class subject to the prior concurrence of the State Government. It is their stand that neither the said subject has yet received government concurrence nor the enrolment in the department is satisfactory. The Principal cum Secretary of the College by letter dated 23.2.2006 forwarded to the Director of Higher Education, Assam the particulars of lecturers working against non-sanctioned posts. From the table appended thereto it appears that the petitioner and the respondent No. 5 are serving in the department of Hindi and Mathematics (Arts & Commerce) respectively. Apart therefrom, one Sajahan Ali and Inamul Mazid are also lecturers in Mathematics. Whereas, the enrolment for the session 2005-2006 in Three years Degree Course in Hindi is 24, it is 94 in Mathematics in Arts and Commerce. It further appears therefrom that the government concurrence for none of the subjects mentioned therein including Hindi and Mathematics had been obtained.
20. By a subsequent letter dated 14.8.2006 the Principal & Secretary of the College furnishing fresh particulars indicating inter alia that the subjects Assamese, Mathematics (Commerce), Philosophy, Banking (Commerce), Banking Commerce had government concurrence vide orders/letters referred to therein. The accompanying table discloses that Hindi and Mathematics had not been accorded State concurrence, but, the petitioner and the respondent No. 5 were shown to be working against non-sanctioned posts of Hindi and Mathematics (Commerce) respectively. The enrolment of students in the Three, years Decree course in the two subjects were disclosed as 19 and 94 for 2005-2006. From this letter it was therefore endeavoured to project that the respondent No. 5 was serving against the non sanctioned post in Mathematics in the commerce stream of the college and that the said subject had the government concurrence in terms of the letter No. AFH 213/85/102-A dated 25.11.1987 referred to hereinabove. Noticeably, the subjects, Assamese, Mathematics (Commerce), Banking (Commerce) and Banking Commerce were shown to have received government concurrence on 25.11.87 and Philosophy vide communication No. B(2) H 290/96/24/-A dated 14.6.1999. The disclosures in the table forwarded by the communication dated 14.8.2006 visibly are in conformity with the resolution taken on 21.6.2006 by the Governing Body of the College to the following effect:
The meeting goes through the details of the circular of the Govt. of Assam vide memo No. B(2) H 97/2003/98 dated 17th July 2005 circulated by the D.H.E. Assam vide letter No. G(B) Misc. 36/2003/61 dated 20 July 2004. In pursuance of the above circular the G.B. takes up the matter of filling up the vacant sanctioned post (5th post) in Political Science Vice-Retirement of Mrs. Reba Baruah, Lecturer, Sr. Gr. of the same department. As per Govt. circular stated above, Sri Sambhu Pandey, a senior most Lecturer among the non-sanctioned post working in the department of Hindi, a newly introduced subject having no Govt. concurrence cannot be readjusted against the said retired vacant post diverting it to Hindi department.
The G.B. therefore unanimously resolved that the said vacant post diverted to the department of commerce for its utilization in the subject of Mathematics as per requirement of the HOD commerce.
21. The records further reveal that the said resolution was forwarded to the Director of Higher Education, Assam to approve the same. The respondent No. 5’s regularization however, is on the hold in view of the interim order dated 7.8.2006 passed in Misc case No. 4140/2006.
22. Though manifestly, the particulars furnished on 14.8.2006 disclose that the respondent No. 5 is serving in the non-sanctioned post of Mathematics of the Commerce stream, a fact in departure from one as depicted in the table annexed to the letter dated 23.2.2006 by the same authority, in my view, it does not decisively tilt the balance in favour of the petitioner. Whereas, the respondent No. 5 on 23.2.2006 was shown to be serving as a lecturer in Mathematics (Arts and Commerce stream), it does not conclusively substantiate that he was serving in the capacity in the stream of the College. If the said respondent is considered to be serving in the commerce stream of the Institution in Mathematics, a fact not disputed by the State respondents, he cannot be treated to be at par with the petitioner vis-a-vis their entitlements for regularization under the Office Memorandum dated 17.7.2004.
23. Lack of government concurrence in face of the scheme of the Ordinance as viewed hereinabove renders the continuance of the subject/faculty lacking the same tentative, contingent and uncertain. Having regard to the objective sought to be achieved by the Office Memorandum dated 17.7.2004 a non-sanctioned post relatable to such a subject/faculty cannot be contemplated therein. The particulars furnished by the College authorities clearly demonstrate that the enrolment in Mathematics exceeds that of Hindi. The applicability of the Oridinace and its imperatives are not denied. In the face of the yardstick applied for preferring respondent No. 5 for the benefit under the Office Memorandum dated 17.7.2004, the considerations for the impugned decision cannot be impeached as absurd, irrational or illogical. As it is the resolution dated 21.6.2006 and the approval dated 27.7.2006 have not been assailed in the instant proceeding as required in law. Be that as it may, considering the relevant aspects examined as hereinabove, nothing much turns on the said omission. In the exercise of power of judicial review and the constricted scope of interference, I am of the view that tested on the parameters available therefor, the impugned decision of regularizing the respondent No. 5 against any vacant post of lecture of Political Science in the college does not merit interference of this Court.
24. The petition therefore is partly allowed. The decision to terminate the services of the petitioner as conveyed by letter dated 27.5.2006 is adjudged illegal, null and void. The resolution of the Governing Body dated 21.6.2006 of the College and the approval of the Director of Higher Education, Assam thereof as contained in the letter dated 27.7.2006 are left un interfered. The petition stands disposed in the above terms. Misc Case No. 4507/2006 stands allowed. The interim order dated 7.8.2006 passed in Misc Case No. 2644/2006 is vacated. No costs.