Gauhati High Court
WP(C)/7163/2023 on 14 August, 2025
GAHC010276822023
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
WP(C) No. 7163/2023
Rofiqul Islam,
S/o Late Jonab Ali,
Vill-Pajabandha, PO-Tukura,
PS-Agia, Dist.-Goalpara, Pin-783216.
......Petitioner.
-Versus-
1. The State of Assam,
Represented by the Chief Secretary, Govt. of Assam,
Dispur, Guwahati-6.
2. The Secretary to the Govt. of Assam,
Education (Higher) Department,
Dispur, Guwahati-6.
3. The Principal Secretary to the Govt. of Assam,
Finance Department,
Dispur, Guwahati-6.
4. The Additional Secretary to the Govt. of Assam,
Higher Education Department, Dispur, Guwahati-6.
5. The Director of Higher Education,
Assam, Kahilipara, Guwahati-19.
6. The Principal-cum-Secretary, Habraghat Mahavidyalaya,
Krishnai, Dist.-Goalpara, Assam, Pin-783126.
7. The Governing Body,
Habraghat Mahavidyalaya, Krishnai,
Represented by its President,
Dist.-Goalpara, Assam, Pin-783126.
WP(C) 7163/2023 Page 1 of 32
8. Shri Arun Dev Boro,
Lecturer, in the Department of English (Contractual),
Habraghat Mahavidyalaya, Krishnai,
Dist.-Goalpara, Assam.
......Respondents.
For the Petitioner : Mr. M.U. Mondal,
Ms. N. Nasrin,
Mr. K. Islam,
Mr. A. Alim Sk.,
Mr. A.W. Mondal. ......Advocates.
For the Respondents : Mr. K. Gogoi, SC, Higher Education,
Ms. K. Phukan, GA, Assam,
Mr. A. Chaliha, SC, Finance.
......Advocates.
BEFORE
HON'BLE MR. JUSTICE ROBIN PHUKAN
Date of Hearing : 16.05.2025
Date of Judgment : 14.08.2025
JUDGMENT AND ORDER
Heard Mr. M.U. Mondal, learned counsel for the petitioner. Also
heard Ms. K. Phukan, learned Junior Government Advocate, Assam,
appearing for the respondent No.1, Mr. K. Gogoi, learned standing
counsel for the respondents in Higher Education Department and Mr. A.
Chaliha, learned standing counsel for the respondent in Finance
Department.
WP(C) 7163/2023 Page 2 of 32
2. In this petition, under Article 226 of the Constitution of India, the
petitioner has challenged the order dated 05.10.2023 (Annexure-52) and
to direct the respondent No. 2 and 3 not to give effect to the said order
and also to direct the respondent authority to pay minimum scale of pay
to the petitioner in the light of the decision of Hon'ble Supreme Court in
the case of State of Punjab & Ors. v. Jagjit Singh & Ors.,
reported in (2017) 1 SCC 148.
3. The background facts, leading to filing of these writ petitions, are
briefly stated as under:-
"The petitioner, namely, Md. Rofiqul Islam was appointed as Tutor
in English department, at Habraghat Mahavidyalaya, Krishnai on
15.07.2005, as per resolution No.9, dated 18.05.2005, by the
Governing Body of the said college and he joined there on
20.07.2005, and since then he had worked there, till 25.03.2006,
on lump sum payment. Thereafter, vide order dated 25.03.2006,
he was appointed as part-time lecturer in English, in the said
college, with the stipulation that his service should be regularized
by the Governing Body in due course and he has been working as
Lecturer and also as Invigilator w.e.f. 2006, till date and his
present salary is Rs.5,200/- per month.
His pleaded case is that on 05.07.2011, an advertisement
was published by the Principal I/C, Habraghat Mahavidyalaya for
filling up the post of Assistant Professor in English. Pursuant to the
said advertisement, he had applied for the post and appeared in
the interview held on 18.09.2011. As per performance sheet,
prepared in the said interview, he secured 3rd position in the select
list, dated 18.09.2011. Thereafter, the candidates who had secured
WP(C) 7163/2023 Page 3 of 32
1st and 2nd position, namely, Khandakar Shahin Ahmed and Nripen
Nath got appointment in some other colleges. But, vide resolution
dated 17.11.2011, the interview dated 18.09.2011, was cancelled
by the Governing Body of the said college on the ground of fault of
the Expert Body and the Governing Body and he has no role to play
in the same. The said resolution dated 17.11.2011, was
communicated to the petitioner, vide letter, dated 17.05.2013.
Thereafter, vide letter dated 04.12.2015, issued by the
Director of Higher Education, Assam, the Principal of the Habraghat
Mahavidyalaya was permitted to publish advertisement for the post
of Assistant Professor in English, which is reserved for OBC/MOBC.
But the said post was advertised on 05.07.2011, as unreserved and
thereafter, on 10.01.2016, fresh advertisement was issued by the
Principal of the said college making reservation for OBC/MOBC of
the said post without finalizing the earlier selection process held on
18.09.2011. Then, the petitioner has challenged the advertisement
dated 10.01.2016, in WP(C) No.437/2016 and vide interim order
dated 01.02.2016, the interview process was suspended by this
Court. Thereafter, in WP(C) No.5304/2021, this Court vide order
dated 06.10.2021, had observed that the petitioner had accrued a
legal right in view of the decision of Hon'ble Supreme Court in the
case of Secretary, State of Karnataka & Ors. v. Umadevi
(3) & Ors., reported in (2006) 4 SCC 1 and thereafter, this
Court was pleased to direct the Higher Education Department,
Assam, to consider the representation dated 16.01.2020, filed by
the petitioner and to pass a reasoned order, within a period of
2(two) months. Thereafter, vide order dated 25.02.2022, the
WP(C) No.437/2016, was disposed of in view of the order, dated
WP(C) 7163/2023 Page 4 of 32
06.10.2021, passed by this Court in WP(C) No.5304/2021, by
holding that no separate order was required to be passed in view
of the final order dated 06.10.2021, in the said writ petition.
Thereafter, on 22.10.2021, the order dated 06.10.2021
passed in WP(C) No.5304/2021 and on 28.02.2022, the order
dated 25.02.2022, passed in WP(C) No.437/2016, were
communicated to the Director of Higher Education. But, the same
failed to evoke any response in respect of regularization of his
service. Thereafter, the petitioner had initiated one contempt case,
being Cont.Cas(C) No.123/2022, and the same was closed vide
order dated 26.07.2022, in view of the order dated 18.07.2022.
Thereafter, the petitioner has challenged the speaking order dated
18.07.2022, in WP(C) No.5045/2022, and by interim order dated
05.08.2022, it was directed the respondent authorities not to fill up
the post of Assistant Professor in English at Habraghat
Mahavidyalaya.
The petitioner has also submitted one memorandum to the
Chief Minister, Assam, on 01.10.2022, but the same also failed to
evoke any response and being aggrieved, the petitioner
approached this Court by filing the present WP(C) No.7163/2023
challenging the order dated 05.10.2023, passed by the Secretary to
the Govt. of Assam, Higher Education Department, pursuant to the
order passed in WP(C) No.1785/2023, with a prayer to direct the
respondent authorities particularly the respondent Nos.2 and 3 not
to give effect of the impugned speaking order dated 05.10.2023
issued by the respondent No.2 and/or to direct the respondent
authorities to pay minimum scale of pay to the petitioner in view of
the decision of Hon'ble Supreme Court in the case of State of
WP(C) 7163/2023 Page 5 of 32
Punjab & Ors. v. Jagjit Singh & Ors., reported in (2017)
1 SCC 148 and in WP(C) No.5045/2022, the petitioner has
challenged the order dated 18.07.2022 passed by the Director of
Higher Education, Assam, Kahilipara, Guwahati, in view of the
order passed by this Court on 06.10.2021, in WP(C) No.5304/2021.
The petitioner has challenged the resolution dated
02.08.2022, adopted by the Governing Body, Habraghat
Mahavidyalaya, Krishnai not to allow the petitioner to continue in
department of English, and also to direct the respondent
authorities, particularly the respondent Nos.6 and 7 not to give
effect of the same. But, vide order dated 31.03.2023, in WP(C)
No.1785/2023, this Court has held that the impugned resolution
No.8, dated 02.08.2022 adopted by the Governing Body, Habraghat
Mahavidyalaya, shall be subject to the order passed in the writ
petition or in appeal filed by the petitioner before the Commissioner
& Secretary to the Govt. of Assam, Higher Education Department.
It is also to be noted here that the petitioner had filed an
appeal before the Secretary, Higher Education Department,
Government of Assam for regularization of his service as lecturer in
the English department of Habraghat Mahavidayalaya, Krishnai in
view of the order dated 06.10.2021, passed in WP(C)
No.5304/2021, and the order dated 25.02.2022 in WP(C)
No.437/2016, passed by this Court. But, vide impugned order
dated 05.10.2023 (Annexure-52) the said appeal was dismissed.
4. The respondent authorities have filed their affidavit-in-opposition.
In the affidavit-in-opposition, filed by the respondent No.2, the Secretary
WP(C) 7163/2023 Page 6 of 32
to the Govt. of Assam, a stand has been taken that the Principal of
Habraghat Mahavidyalaya, Krishnai, vide order dated 15.07.2005,
appointed the petitioner as Lecturer in the department of English on
contractual basis w.e.f. 20.07.2005, as per resolution of the Governing
Body of the college dated 18.05.2005 and he was appointed against a
non-existent post/without sanctioned post and as such, the Government
has no role to play regarding the internal arrangement of the college
authority. The college was a deficit college, receiving Government grant
by the respective college authority, against the non-sanctioned post and
without having any Government concurrence to the petitioner's post, he
was appointed. In Assam, colleges were provincialized by an Act, namely,
the Assam College Employees (Provincialization) Act, 2005 and the
Government of Assam has framed the Assam College Employees
(Provincialization) Rules, 2010 to regulate the conditions of service of the
provincialized colleges and neither the Act nor the Rules provides for any
provision for regularization of service of Lecturer appointed by college
authority on part-time basis/contractual basis against the non-sanctioned
post and that selection and appointment of teaching and non-teaching
staff in provincialized colleges are governed by Section 6 of the 2005 Act
and Rule 4, 5 and 7 of the 2010 Rules and the concerned authority
cannot give a go by to the statutory provisions mentioned above and
when a statute requires a thing to be done in a particular manner, it has
to be done in that manner only and not in any other way.
4.1. Another stand, taken by the respondent No.2, is that the
Government of Assam, Higher Education Department has issued one
Office Memorandum, vide No.B(2)H.97/2003/98, dated 17.07.2004, and
adopted a policy to accommodate the teachers working against non-
sanctioned posts, but the said O.M. was an onetime measure adopted by
WP(C) 7163/2023 Page 7 of 32
the Government to address the grievances of a specific group of
Lecturers working in non-sanctioned posts in different deficit grants-in-aid
colleges by way of adjustment and since the said O.M. dated 17.07.2004,
was purpose-specific, therefore, once objective of the said O.M. dated
17.07.2004, was achieved, the Government vide another Office
Memorandum No.B(2)H.97/2003/135, dated 12.10.2004, stipulated that
no college under the deficit grants-in-aid system should engage any
person as Lecturer where no sanctioned post exists and pursuant to O.M.
dated 17.07.2004 after final verification, a list of 354 nos. of teachers
appointed by different colleges against non-sanctioned posts, was
prepared on 22.04.2010 and the name of the petitioner did not find
mention in the said list and the said list was prepared and submitted to
the Government as per direction issued by this Court vide order dated
14.05.2009 passed in WP(C) No.1103/2009 and WP(C) No.724/2009 and
those persons whose names appeared in the said list, are only eligible for
adjustment as per O.M. dated 17.07.2004 and the petitioner was not
within the same category/specific group of Lecturers who were
considered under the O.M. dated 17.07.2004 and as such, the said O.M.
dated 17.07.2004 does not offer any scope of regularization/adjustment
of service of the petitioner against valid sanctioned post and besides the
petitioner does not have the required eligibility norms to be
appointed/regularized/adjusted as Lecturer (Assistant Professor) since the
petitioner does not possess NET/SLET, which is mandatory for a teaching
position and there can be no exemption, as claimed by the petitioner, for
those with only M.Phil qualification obtained on or before 10.07.2009,
and as per resolution adopted by the UGC in their 471st and 472nd
meeting held on 12.08.2010 and 27.09.2020, respectively, that all
candidates having M. Phil degree on or before 10.07.2009 shall remain
WP(C) 7163/2023 Page 8 of 32
exempted from the requirement of NET for being appointed as
Lecturer/Assistant Professor has not been accepted by the Government of
India in view of the letter dated 03.11.2010 issued by the Ministry of
Human Resource Development.
4.2. And that the regularization of service of the petitioner will also not
come within the condition laid down by the Hon'ble Supreme Court in the
case of Umadevi (3)(supra), which was further clarified in the case of
State of Karnataka & Ors. v. M.L. Kesari & Ors., reported in
(2010) 9 SCC 247, in view of the fact that the petitioner was not
appointed against any sanctioned post and the petitioner had not worked
for 10 years as on 10.04.2006, i.e. the date of decision of Umadevi
(3)(supra), and that the claim of the petitioner for minimum scale of
pay will also not come within the conditions laid down by the Hon'ble
Supreme Court in the case of Jagjit Singh (supra), and that the
petitioner was not engaged by the Government as temporary employee,
but appointed by the college authority, that too against a non-
existent/non-sanctioned post, thereby violating the O.M. No.B(2)
H.97/2003/135 dated 12.10.2004, which stipulates that no college under
the deficit grants-in-aid system should engage any person as Lecturer
where no sanctioned post exists and under such circumstances, it is
contended to dismiss this petition.
5. The petitioner has filed his reply to the affidavit-in-opposition filed
by the respondent No.2, where it has been stated that he was appointed
vide order dated 15.07.2005, as per resolution No.9 of the Governing
Body of the college and his service was extended on need based, for
greater interest of the college, as well as of the department and his
service may be regularized through the proper process, with due approval
of the Governing Body and accordingly, he has been continuing his
WP(C) 7163/2023 Page 9 of 32
service w.e.f. 20.07.2005, till date, and the entire exercise was done by
the Governing Body of the college as per Rule 18 and 19(iv) of the Assam
Aided College Management Rules, 1976, Rule 18(iv) of the Assam Non-
Government College Rules, 2001, Rule 4(3), 5(b)(ii) of the Assam Aided
College Employees Rules, 1960 and Rule 3 and 5 of the Assam Aided
Colleges (Under Deficit System) Employees Gratuity Rules, 1992 and as
such, the petitioner is entitled to be regularized and/or entitled to the
minimum scale of pay till regularization of his service as Lecturer in the
department of English at Habraghat Mahavidyalaya, Krishnai.
5.1. It is further contended that the provision of Assam College
Employees (Provincialization) Act, 2005 and the Assam College
Employees (Provincialization) Rules, 2010 are not applicable in the case
of the petitioner on the ground that the said Act and Rules were notified
in the Assam Gazette on 23.12.2005, and 22.11.2010, respectively. But
the petitioner was appointed on 15.07.2005, instead the Assam Aided
College Management Rules, 1976, the Assam Non-Government College
Management Rules, 2001, the Assam Aided College Employees Rules,
1960 and the Assam Aided Colleges (Under Deficit System) Employees
Gratuity Rules, 1992 are applicable and he is entitled to be regularized
and till regularization he is entitled to the benefit of minimum scale of pay
in view of the decision of Hon'ble Supreme Court in Jagjit Singh
(supra), and that equal pay for equal work is mandate under Article 14
and 16 of the Constitution of India as decided by the Hon'ble Supreme
Court in catena of decisions and therefore, it is contended to allow these
petitions considering the 20 years of continuous service rendered by the
petitioner.
6. Mr. Mondal, learned counsel for the petitioner submits that the
petitioner was appointed in the year 2005 as per Assam Aided College
WP(C) 7163/2023 Page 10 of 32
Management Rules, 1976 under Rule 18 and 19 and also under the
Assam Aided College Employees Rules, 1960 under Rule 4(iii) and that
the petitioner has rendered 20 years of continuous service and he is
entitled to be regularized and till the regularization, he is entitled to
receive minimum scale of pay in view of the decision of Hon'ble Supreme
Court in the case of Jagjit Singh (supra), and that as contended by
the respondent authorities, the Assam College Employees
(Provincialization) Act, 2005 and the Assam College Employees
(Provincialization) Rules, 2010 are not applicable in the case of the
petitioner as the same were notified in the Assam Gazette on 23.12.2005
and 22.11.2010, whereas the petitioner was appointed on 15.07.2005
and he joined on 20.07.2005 and as such, the aforementioned Act and
Rules are not applicable in case of the present petitioner. And under such
circumstances, Mr. Mondal submits that the impugned order, dated
05.10.2023, and also the order dated 18.07.2022, are arbitrary and
illegal, the same are required to be set aside and quashed.
6.1. In support of his submission, Mr. Mondal has referred the following
decisions:-
(i) State of Assam vs. Upen Das & Ors., reported in 2020
(5) GLT 605;
(ii) Jaggo vs. Union of India & Ors. [SLP(C)
No.11086/2024]; and
(iii) State of Punjab & Ors. vs. Jagjit Singh & Ors.,
reported in (2017) 1 SCC 148.
7. Per contra, Mr. Gogoi, learned standing counsel for the Higher
Education Department has vehemently opposed the petition. Mr. Gogoi
submits that the petitioner was appointed as Tutor and that the Rules
WP(C) 7163/2023 Page 11 of 32
referred by Mr. Mondal, is not applicable in the present case and Section
4 of the Assam Aided College Management Rules, 1976 provides for
method of recruitment and all temporary appointment of Lecturers and
Professors have to be approved by the Director of Public Instruction (DPI)
and that the Assam College Employees (Provincialization) Act, 2005 and
the Assam College Employees (Provincialization) Rules, 2010 are
applicable in the case of the petitioner and that he was appointed against
non-sanctioned post and the O.M. dated 17.07.2004 is not applicable in
the case of the petitioner, as the same was onetime exercise undertaken
by the state respondents, in view of two decisions of this Court and that
the decision referred by Mr. Mondal, in the case of Jaggo (supra) is
not applicable and under such circumstances, Mr. Gogoi has contended to
dismiss this petition.
7.1. In support of his submission, Mr. Gogoi has referred the following
decisions:-
(i) Abdul Wahid v. State of Assam & Ors., reported in
2018 (5) GLT 801;
(ii) Mohan Nath v. State of Assam & Ors. [WP(C)
No.7124/2017, decided on 20.06.2022];
(iii) Mizanor Rahman v. State of Assam & Ors., reported in
2012 (1) GLT 520 (Full Bench);
(iv) Om Prakash Sah v. State of Assam & Ors. [WP(C)
No.8035/2017, decided on 29.01.2024]; and
(v) State of Madhya Pradesh v. R.D. Sharma & Anr.,
reported in (2022) 13 SCC 320.
WP(C) 7163/2023 Page 12 of 32
8. Having heard the submission of learned counsel for both the
parties, I have carefully gone through this petition and the documents
placed on record and also carefully gone through the decisions referred
by learned Advocates of both the parties.
9. The basic facts herein this petition are not in dispute. The
petitioner was initially appointed as Tutor in English department in
Habraghat Mahavidyalaya, Krishnai as per resolution No.9, dated
18.05.2005, of the Governing Body of the said college and having been
appointed on 15.07.2005, he joined on 20.07.2005 and he worked in said
the capacity till 25.03.2006, on which he was appointed as part-time
Lecturer by the Governing Body of the said college and also working till
date on payment of lump sum amount Rs.5,200/- per month. He has also
been working as invigilator w.e.f. 2006, till date.
10. It also appears that the petitioner had applied for the post of
Lecturer in English which was advertised on 05.07.2011 by the Principal,
Habraghat Mahavidyalaya and he also appeared in the interview board on
18.09.2011 and he was placed at 3rd position as per selection list, dated
18.09.2011. The two persons who had secured position Nos.1 and 2 in
the selection process did not join, and as such he ought to have been
considered for being appointed in the said post. But, the Governing Body
of the said college, vide resolution dated 17.11.2011 has cancelled the
interview held on 18.09.2011 and thereafter, vide letter dated
04.12.2015, the Principal of the said college was permitted to publish
advertisement for the post of Assistant Professor (English) reserved for
OBC/MOBC.
11. However, the said post was advertised on 05.07.2011, as
unreserved and the advertisement dated 10.01.2016 published by the
WP(C) 7163/2023 Page 13 of 32
Principal was challenged in the WP(C) No.437/2016 and vide interim
order dated 01.02.2016 the interview process was suspended and the
said writ petition was disposed of vide order dated 25.02.2022, in view of
the order passed on 06.10.2021 in WP(C) No.5304/2021.
12. It also appears that the petitioner has filed one appeal before the
Director of Higher Education, Assam, but the same was dismissed vide
order dated 18.07.2022, and the same is challenged in the WP(C)
No.5045/2022, and vide order dated 05.08.2022, it was directed not to fill
up the post of Assistant Professor in English of Habraghat Mahavidyalaya.
The petitioner has filed several representations to the Education Minister
and also to the Chief Minister, but the same failed to evoke any response.
13. A careful perusal of the speaking order dated 05.10.2023, which is
being challenged in the WP(C) No.7163/2023, it appears that the prayer
of the petitioner for regularization was rejected primarily on the ground
that the Assam College Employees (Provincialization) Act, 2005 and the
Assam College Employees (Provincialization) Rules, 2010, there is no
provision for adjustment/regularization of the Lecturers, who were
working against non-sanctioned posts and the college teachers in the
provincialisation college shall be filled up by direct recruitment by
following selection process and that the Office Memorandum
No.B(2)H.97/2003/98, dated 17.07.2004, adopted a policy to
accommodate the teachers working against non-sanctioned posts, and
that the name of the petitioner did not figure in the final seniority list
prepared by the respondent authorities and the said O.M. is an onetime
measure to address the grievance of a specific group of lecturers.
14. Perusal of the speaking order dated 18.07.2022, same stand has
been taken that the petitioner was appointed against non-existent/non-
WP(C) 7163/2023 Page 14 of 32
sanctioned post and that the O.M. dated 17.07.2004, is not applicable in
case of the petitioner, as it was an onetime measure to address the
grievance of a specific group of lecturers and another O.M. was issued,
being O.M. No.B(2)H.97/2003/135, dated 12.10.2004, wherein it was
stipulated that no college under the deficit grants-in-aid system should
engage any person as lecturer where no sanctioned post exists and the
Assam College Employees (Provincialisation) Act, 2005 and the Assam
College Employees (Provincialisation) Rules, 2010 are governing the field
and laying down the procedure to be followed while making appointment
to the post of Assistant Professor and there is no scope for application of
administrative guidelines and as such, the prayer of the petitioner was
rejected.
15. Now, the question is whether the petitioner will be governed by the
Assam College Employees (Provincialisation) Act, 2005 and the Assam
College Employees (Provincialization) Rules, 2010 or by the Assam Aided
College Management Rules, 1976 and the Assam Non-Government
College Rules, 2001 and the Assam Aided College Employees Rules, 1960
and the Assam Aided Colleges (Under Deficit System) Employees Gratuity
Rules, 1992.
16. Though the respondent authorities have taken a categorical stand
that the petitioner is governed by the Assam College Employees
(Provincialisation) Act, 2005 (Act of 2005, for short) and the Assam
College Employees (Provincialisation) Rules, 2010 (Rules of 2010, for
short), yet, it appears that the Act of 2005 was notified in the Assam
Gazette on 23.12.2005, and the Rules of 2010 was notified in the official
Gazette on 22.11.2010, and indisputably the petitioner was appointed on
15.07.2005, and he joined on 20.07.2005, and that being so, the Act of
2005 and the Rules of 2010 are not applicable in case of the present
WP(C) 7163/2023 Page 15 of 32
petitioner as there is no provision for retrospective effect of the
aforementioned Act and the Rules. And that being so, the petitioner will
be governed by the Assam Aided College Management Rules, 1976 and
the Assam Non-Government College Rules, 2001 and the Assam Aided
College Employees Rules, 1960 and the Assam Aided Colleges (Under
Deficit System) Employees Gratuity Rules, 1992.
17. It is a fact that there is one O.M. issued by the respondent
authorities dated 12.10.2004, being O.M. No.B(2)H.97/2003/135, wherein
stipulation was made that no college under the deficit grants-in-aid
system should engage any person as Lecturer where no sanctioned post
exists, but while the Rules mentioned herein above are in force and being
statutory Rules, the provision made therein cannot be supplemented by
the Office Memorandum. If it is provided in the Rules, then the Office
Memorandum, which is an executive order, cannot supplement the same.
18. I have also carefully gone through the decisions referred by
learned Advocates of both the parties. In the case of Jagjit Singh
(supra), the issue for consideration before the Hon'ble Supreme Court
was:-
": whether temporarily engaged employees (daily-
wage employees, ad hoc appointees, employees
appointed on casual basis, contractual employees
and the like), are entitled to minimum of the
regular pay scale, along with dearness allowance
(as revised from time to time) on account of
their performing the same duties which are
discharged by those engaged on regular basis,
against sanctioned posts? ".........
19. Thereafter, considering some of its earlier decisions, Hon'ble
Supreme Court has deduced the following principles :-
WP(C) 7163/2023 Page 16 of 32
42.1. The "onus of proof" of parity in the duties
and responsibilities of the subject post with the
reference post under the principle of "equal pay
for equal work" lies on the person who claims it.
He who approaches the court has to establish that
the subject post occupied by him requires him to
discharge equal work of equal value, as the
reference post (see- Orissa University of
Agriculture & Technology v. Manoj K. Mohanty,
(2003) 5 SCC 188, U.T. Chandigarh,
Admn. v. Manju Mathur, (2011) 2 SCC 452 : (2011)
1 SCC (L&S) 348], SAIL v. Dibyendu Bhattacharya,
(2011) 11 SCC 122 and National Aluminium Co.
Ltd. v. Ananta Kishore Rout, (2014) 6 SCC 756).
42.2. The mere fact that the subject post
occupied by the claimant is in a "different
department" vis-à-vis the reference post does not
have any bearing on the determination of a claim
under the principle of "equal pay for equal
work". Persons discharging identical duties
cannot be treated differently in the matter of
their pay, merely because they belong to
different departments of the Government
(see Randhir Singh v. Union of India, (1982) 1
SCC 618 and D.S. Nakara v. Union of India, (1983)
1 SCC 3050).
42.3. The principle of "equal pay for equal
work", applies to cases of unequal scales of pay,
based on no classification or irrational
classification (see- Randhir Singh v. Union of
India, (1982) 1 SCC 618). For equal pay, the
employees concerned with whom equation is sought,
should be performing work, which besides being
functionally equal, should be of the same quality
and sensitivity (see - Federation of All India
WP(C) 7163/2023 Page 17 of 32
Customs and Central Excise Stenographers v. Union
of India, (1988) 3 SCC 91], Mewa Ram
Kanojia v. All India Institute of Medical
Sciences, (1989) 2 SCC 235, Grih Kalyan Kendra
Workers' Union v. Union of India, (1991) 1 SCC
619] and S.C. Chandra case [S.C. Chandra v. State
of Jharkhand, (2007) 8 SCC 279).
42.4. Persons holding the same rank/designation
(in different departments), but having dissimilar
powers, duties and responsibilities, can be
placed in different scales of pay and cannot
claim the benefit of the principle of "equal pay
for equal work" (see - Randhir Singh v. Union of
India, (1982) 1 SCC 618, and State of
Haryana v. Haryana Civil Secretariat Personal
Staff Assn., (2002) 6 SCC 72). Therefore, the
principle would not be automatically invoked
merely because the subject and reference posts
have the same nomenclature.
42.5. In determining equality of functions and
responsibilities under the principle of "equal
pay for equal work", it is necessary to keep in
mind that the duties of the two posts should be
of equal sensitivity, and also, qualitatively
similar. Differentiation of pay scales for posts
with difference in degree of responsibility,
reliability and confidentiality, would fall
within the realm of valid classification, and
therefore, pay differentiation would be
legitimate and permissible (see -Federation of
All India Customs and Central Excise
Stenographers v. Union of India, (1988) 3 SCC 91
and SBI v. M.R. Ganesh Babu, (2002) 4 SCC 556).
The nature of work of the subject post should be
the same and not less onerous than the reference
WP(C) 7163/2023 Page 18 of 32
post. Even the volume of work should be the same.
And so also, the level of responsibility. If
these parameters are not met, parity cannot be
claimed under the principle of "equal pay for
equal work" (see - State of U.P. v. J.P.
Chaurasia, (1989) 1 SCC 121) and Grih Kalyan
Kendra Workers' Union v. Union of India, (1991) 1
SCC 619.
42.6. For placement in a regular pay scale, the
claimant has to be a regular appointee. The
claimant should have been selected on the basis
of a regular process of recruitment. An employee
appointed on a temporary basis cannot claim to be
placed in the regular pay scale (see Orissa
University of Agriculture & Technology v. Manoj
K. Mohanty, (2003) 5 SCC 188).
42.7. Persons performing the same or similar
functions, duties and responsibilities, can also
be placed in different pay scales. Such as --
"selection grade", in the same post. But this
difference must emerge out of a legitimate
foundation, such as -- merit, or seniority, or
some other relevant criteria (see -State of
U.P. v. J.P. Chaurasia, (1989) 1 SCC 121).
42.8. If the qualifications for recruitment to
the subject post vis-à-vis the reference post are
different, it may be difficult to conclude that
the duties and responsibilities of the posts are
qualitatively similar or comparable (see Mewa
Ram Kanojia v. All India Institute of Medical
Sciences, (1989) 2 SCC 235) and State of
W.B. v. Tarun K. Roy, (2004) 1 SCC 347. In such
a case the principle of "equal pay for equal
work" cannot be invoked.
WP(C) 7163/2023 Page 19 of 32
42.9. The reference post with which parity is
claimed under the principle of "equal pay for
equal work" has to be at the same hierarchy in
the service as the subject post. Pay scales of
posts may be different, if the hierarchy of the
posts in question, and their channels of
promotion, are different. Even if the duties and
responsibilities are same, parity would not be
permissible, as against a superior post, such as
a promotional post (see Union of India v. Pradip
Kumar Dey, (2000) 8 SCC 580] and Hukum Chand
Gupta v. ICAR, (2012) 12 SCC 666.
42.10. A comparison between the subject post and
the reference post under the principle of "equal
pay for equal work" cannot be made where the
subject post and the reference post are in
different establishments, having a different
management. Or even, where the establishments are
in different geographical locations, though owned
by the same master (see -Harbans Lal v. State of
H.P., (1989) 4 SCC 459. Persons engaged
differently, and being paid out of different
funds, would not be entitled to pay parity (see -
Official Liquidator v. Dayanand, (2008) 10 SCC 1.
42.11. Different pay scales, in certain
eventualities, would be permissible even for
posts clubbed together at the same hierarchy in
the cadre. As for instance, if the duties and
responsibilities of one of the posts are more
onerous, or are exposed to higher nature of
operational work/risk, the principle of "equal
pay for equal work" would not be applicable. And
also when the reference post includes the
WP(C) 7163/2023 Page 20 of 32
responsibility to take crucial decisions, and
that is not so for the subject post (see -
SBI v. M.R. Ganesh Babu, (2002) 4 SCC 556).
42.12. The priority given to different types of
posts under the prevailing policies of the
Government can also be a relevant factor for
placing different posts under different pay
scales. Herein also, the principle of "equal pay
for equal work" would not be applicable (see -
State of Haryana v. Haryana Civil Secretariat
Personal Staff Assn., (2002) 6 SCC 72).
42.13. The parity in pay, under the principle of
"equal pay for equal work", cannot be claimed
merely on the ground that at an earlier point of
time the subject post and the reference post,
were placed in the same pay scale. The principle
of "equal pay for equal work" is applicable only
when it is shown, that the incumbents of the
subject post and the reference post, discharge
similar duties and responsibilities (see -State
of W.B. v. W.B. Minimum Wages Inspectors Assn.,
(2010) 5 SCC 225).
42.14. For parity in pay scales under the
principle of "equal pay for equal work", equation
in the nature of duties is of paramount
importance. If the principal nature of duties of
one post is teaching, whereas that of the other
is non-teaching, the principle would not be
applicable. If the dominant nature of duties of
one post is of control and management, whereas
the subject post has no such duties, the
principle would not be applicable. Likewise, if
the central nature of duties of one post is of
WP(C) 7163/2023 Page 21 of 32
quality control, whereas the subject post has
minimal duties of quality control, the principle
would not be applicable (see -U.T. Chandigarh,
Admn. v. Manju Mathur, (2011) 2 SCC 452.
42.15. There can be a valid classification in the
matter of pay scales between employees even
holding posts with the same nomenclature i.e.
between those discharging duties at the
headquarters, and others working at the
institutional/sub-office level (see Hukum Chand
Gupta case [Hukum Chand Gupta v. ICAR, (2012) 12
SCC 666), when the duties are qualitatively
dissimilar.
42.16. The principle of "equal pay for equal
work" would not be applicable, where a
differential higher pay scale is extended to
persons discharging the same duties and holding
the same designation, with the objective of
ameliorating stagnation, or on account of lack of
promotional avenues (see -Hukum Chand
Gupta v. ICAR, (2012) 12 SCC 666.
42.17. Where there is no comparison between one
set of employees of one organisation, and another
set of employees of a different organisation,
there can be no question of equation of pay
scales under the principle of "equal pay for
equal work", even if two organisations have a
common employer. Likewise, if the management and
control of two organisations is with different
entities which are independent of one another,
the principle of "equal pay for equal work" would
not apply (see S.C. Chandra case [S.C.
Chandra v. State of Jharkhand, (2007) 8 SCC 279 :
WP(C) 7163/2023 Page 22 of 32
(2007) 2 SCC (L&S) 897 : 2 SCEC 943] and National
Aluminium Co. Ltd. case [National Aluminium Co.
Ltd. v. Ananta Kishore Rout, (2014) 6 SCC 756 :
(2014) 2 SCC (L&S) 353] ).
20. Thereafter, Hon'ble Supreme Court, in paragraph No.60 and 61 has
held as under:-
"60. Having traversed the legal parameters with
reference to the application of the principle of
"equal pay for equal work", in relation to
temporary employees (daily-wage employees, ad hoc
appointees, employees appointed on casual basis,
contractual employees and the like), the sole
factor that requires our determination is,
whether the employees concerned (before this
Court), were rendering similar duties and
responsibilities as were being discharged by
regular employees holding the same/corresponding
posts. This exercise would require the
application of the parameters of the principle of
"equal pay for equal work" summarised by us in
para 42 above. However, insofar as the instant
aspect of the matter is concerned, it is not
difficult for us to record the factual position.
We say so, because it was fairly acknowledged by
the learned counsel representing the State of
Punjab, that all the temporary employees in the
present bunch of appeals were appointed against
posts which were also available in the regular
cadre/establishment. It was also accepted that
during the course of their employment, the
temporary employees concerned were being randomly
deputed to discharge duties and responsibilities
which at some point in time were assigned to
WP(C) 7163/2023 Page 23 of 32
regular employees. Likewise, regular employees
holding substantive posts were also posted to
discharge the same work which was assigned to
temporary employees from time to time. There is,
therefore, no room for any doubt, that the duties
and responsibilities discharged by the temporary
employees in the present set of appeals were the
same as were being discharged by regular
employees. It is not the case of the appellants,
that the respondent employees did not possess the
qualifications prescribed for appointment on
regular basis. Furthermore, it is not the case of
the State that any of the temporary employees
would not be entitled to pay parity on any of the
principles summarised by us in para 42
hereinabove. There can be no doubt, that the
principle of "equal pay for equal work" would be
applicable to all the temporary employees
concerned, so as to vest in them the right to
claim wages on a par with the minimum of the pay
scale of regularly engaged government employees
holding the same post.
61. In view of the position expressed by us in
the foregoing paragraph, we have no hesitation in
holding that all the temporary employees
concerned, in the present bunch of cases would be
entitled to draw wages at the minimum of the pay
scale (at the lowest grade, in the regular pay
scale), extended to regular employees holding the
same post."
21. In the case of Jaggo(supra), Hon'ble Supreme Court has dealt
with the issue of regularization in para No.10 as under:-
WP(C) 7163/2023 Page 24 of 32
"10. Having given careful consideration to the
submissions advanced and the material on record,
we find that the appellants' long and
uninterrupted service, for periods extending well
beyond ten years, cannot be brushed aside merely
by labelling their initial appointments as part-
time or contractual. The essence of their
employment must be considered in the light of
their sustained contribution, the integral nature
of their work, and the fact that no evidence
suggests their entry was through any illegal or
surreptitious route."
22. Thereafter, in para No.20 of the said judgment, Hon'ble Supreme
Court has held as under:-
20. It is well established that the decision in
Uma Devi (supra) does not intend to penalize
employees who have rendered long years of service
fulfilling ongoing and necessary functions of the
State or its instrumentalities. The said judgment
sought to prevent backdoor entries and illegal
appointments that circumvent constitutional
requirements.However, where appointments were not
illegal but possibly "irregular," and where
employees had served continuously against the
backdrop of sanctioned functions for a
considerable period, the need for a fair and
humane resolution becomes paramount. Prolonged,
continuous, and unblemished service performing
tasks inherently required on a regular basis can,
over the time, transform what was initially ad-
hoc or temporary into a scenario demanding fair
regularization. In a recent judgment of this
Court in Vinod Kumar and Ors. Etc. Vs. Union of
India & Ors. reported in (2024) 1 SCR 1230, it
was held that held that procedural formalities
WP(C) 7163/2023 Page 25 of 32
cannot be used to deny regularization of service
to an employee whose appointment was termed
"temporary" but has performed the same duties as
performed by the regular employee over a
considerable period in the capacity of the
regular employee. The relevant paras of this
judgement have been reproduced below:-
"6. The application of the judgment in Uma
Devi (supra) by the High Court does not fit
squarely with the facts at hand, given the
specific circumstances under which the
appellants were employed and have continued
their service. The reliance on procedural
formalities at the outset cannot be used to
perpetually deny substantive rights that
have accrued over a considerable period
through continuous service. Their promotion
was based on a specific notification for
vacancies and a subsequent circular,
followed by a selection process involving
written tests and interviews, which
distinguishes their case from the
appointments through back door entry as
discussed in the case of Uma Devi (supra).
7. The judgement in the case Uma Devi
(supra) also distinguished between
"irregular" and "illegal" appointments
underscoring the importance of considering
certain appointments even if were not made
strictly in accordance with the prescribed
Rules and Procedure, cannot be said to have
been made illegally if they had followed the
procedures of regular appointments such as
conduct of written examinations or
interviews as in the present case."
WP(C) 7163/2023 Page 26 of 32
21. The High Court placed undue emphasis on the
initial label of the appellants' engagements and
the outsourcing decision taken after their
dismissal. Courts must look beyond the surface
labels and consider the realities of employment:
continuous, long-term service, indispensable
duties, and absence of any mala fide or
illegalities in their appointments. In that
light, refusing regularization simply because
their original terms did not explicitly state so,
or because an outsourcing policy was belatedly
introduced, would be contrary to principles of
fairness and equity.
22. The pervasive misuse of temporary employment
contracts, as exemplified in this case, reflects
a broader systemic issue that adversely affects
workers' rights and job security. In the private
sector, the rise of the gig economy has led to an
increase in precarious employment arrangements,
often characterized by lack of benefits, job
security, and fair treatment. Such practices have
been criticized for exploiting workers and
undermining labour standards. Government
institutions, entrusted with upholding the
principles of fairness and justice, bear an even
greater responsibility to avoid such exploitative
employment practices. When public sector entities
engage in misuse of temporary contracts, it not
only mirrors the detrimental trends observed in
the gig economy but also sets a concerning
precedent that can erode public trust in
governmental operations.
23. Thereafter, in para No. 27 of the said judgment, Hon'ble Supreme
Court has summed up the principle as under:-
WP(C) 7163/2023 Page 27 of 32
27. In light of these considerations, in our
opinion, it is imperative for government
departments to lead by example in providing fair
and stable employment. Engaging workers on a
temporary basis for extended periods, especially
when their roles are integral to the
organization's functioning, not only contravenes
international labour standards but also exposes
the organization to legal challenges and
undermines employee morale.By ensuring fair
employment practices, government institutions can
reduce the burden of unnecessary litigation,
promote job security, and uphold the principles
of justice and fairness that they are meant to
embody. This approach aligns with international
standards and sets a positive precedent for the
private sector to follow, thereby contributing to
the overall betterment of labour practices in the
country."
24. In this context, it becomes necessary to refer to the decision of
Hon'ble Supreme Court in Umadevi (3) (supra). In the said case, in
para No.44 and 48, Hon'ble Supreme Court has held as under:-
"44. The concept of "equal pay for equal work"
is different from the concept of conferring
permanency on those who have been appointed on
ad hoc basis, temporary basis, or based on no
process of selection as envisaged by the rules.
This Court has in various decisions applied the
principle of equal pay for equal work and has
laid down the parameters for the application of
that principle. The decisions are rested on the
concept of equality enshrined in our
Constitution in the light of the directive
principles in that behalf. But the acceptance of
that principle cannot lead to a position where
WP(C) 7163/2023 Page 28 of 32
the court could direct that appointments made
without following the due procedure established
by law, be deemed permanent or issue directions
to treat them as permanent. Doing so, would be
negation of the principle of equality of
opportunity. The power to make an order as is
necessary for doing complete justice in any
cause or matter pending before this Court, would
not normally be used for giving the go-by to the
procedure established by law in the matter of
public employment. ... It would not be just or
proper to pass an order in exercise of
jurisdiction under Article 226 or 32 of the
Constitution or in exercise of power under
Article 142 of the Constitution permitting those
persons engaged, to be absorbed or to be made
permanent, based on their appointments or
engagements. Complete justice would be justice
according to law and though it would be open to
this Court to mould the relief, this Court would
not grant a relief which would amount to
perpetuating an illegality.
***
48. It was then contended that the rights of the
employees thus appointed, under Articles 14 and
16 of the Constitution, are violated. It is
stated that the State has treated the employees
unfairly by employing them on less than minimum
wages and extracting work from them for a pretty
long period in comparison with those directly
recruited who are getting more wages or salaries
for doing similar work. The employees before us
were engaged on daily wages in the department
concerned on a wage that was made known to them.
There is no case that the wage agreed upon was
not being paid. Those who are working on daily
WP(C) 7163/2023 Page 29 of 32
wages formed a class by themselves; they cannot
claim that they are discriminated as against
those who have been regularly recruited on the
basis of the relevant rules. No right can be
founded on an employment on daily wages to claim
that such employee should be treated on a par
with a regularly recruited candidate, and made
permanent in employment, even assuming that the
principle could be invoked for claiming equal
wages for equal work. There is no fundamental
right in those who have been employed on daily
wages or temporarily or on contractual basis, to
claim that they have a right to be absorbed in
service. As has been held by this Court, they
cannot be said to be holders of a post, since, a
regular appointment could be made only by making
appointments consistent with the requirements of
Articles 14 and 16 of the Constitution. The
right to be treated equally with the other
employees employed on daily wages, cannot be
extended to a claim for equal treatment with
those who were regularly employed. That would be
treating unequals as equals. It cannot also be
relied on to claim a right to be absorbed in
service even though they have never been
selected in terms of the relevant recruitment
rules. The arguments based on Articles 14 and 16
of the Constitution are therefore overruled.”
(emphasis supplied)
25. In the case in hand, indisputably, the petitioner has been rendering
his services more than 20 years. And indisputably, his monthly salary is
Rs.5,200/- per month. On the other hand, his counterparts are receiving
regular scale of pay. As held in the case of Jagjit Singh (supra) the
sole factor that requires for determination is, whether the petitioner is
WP(C) 7163/2023 Page 30 of 32
rendering similar duties and responsibilities as were being discharged by
regular employees holding the same/corresponding posts. And applying
the parameters laid down in paragraph No.42 of the said decision, this
Court is satisfied to hold that the petitioner has been discharging the
similar duties and responsibilities like those of regular lecturers. And that
being so, the principle of “equal pay for equal work” as summarised by
Hon’ble Supreme Court in para No.42 above, is clearly applicable in the
present case. Thus, this Court is of the considered opinion that the ratio
laid down by Hon’ble Supreme Court in the case of Jagjit Singh
(supra) and also in the case of Jaggo (supra) and in the case of
Umadevi (3)(supra), clearly covers the case of the petitioner.
26. Under such circumstances, this Court is of the view that the
impugned order dated 05.10.2023 fails to withstand the legal scrutiny.
The same was passed in contravention of the principle of natural justice,
without affording an opportunity of being heard to him. And accordingly,
the same stand set aside and quashed.
27. I have carefully gone through the decisions referred by Mr. Gogoi,
the learned standing counsel for the respondents in Higher Education
department. There is no quarrel at the Bar about the proposition of law
laid down in the said decisions. But, the same proceeds on their own
facts, which are clearly distinguishable from the present case, and as
such, the same are not applicable in all force to the facts and
circumstances herein this case. Though Mr. Gogoi has laid much
emphasis on the decision of Hon’ble Supreme Court in the case of R.D.
Sharma (supra), yet, in the said case, the petitioner had retired in the
year 2001 and he claimed benefit on the basis of Rules, which was
amended in the year 2008. Mr. Gogoi has laid emphasis upon the
observation made in the said decision that the equation of post and
WP(C) 7163/2023 Page 31 of 32
determination of pay scales is the primary function of the executive and
not the judiciary and therefore, ordinarily courts will not enter upon the
task of job evaluation, which is generally left to the expert bodies like the
Pay Commissions, yet the said observation does not fit squarely with the
fact at hand, given the specific circumstances, under which the petitioner
herein was employed and continued in service since 2005, on a nominal
pay.
28. Taking note of the decision of Hon’ble Supreme Court in the case
of Jagjit Singh (supra) and Jaggo (supra), and also in the case of
Umadevi(3)(supra), this Court is inclined to direct the respondent
authorities to grant minimum scale of pay of lecturer, to the petitioner.
29. In terms of above, this writ petition stands disposed of. The parties
have to bear their own costs.
JUDGE
Comparing Assistant
WP(C) 7163/2023 Page 32 of 32
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