DISTRICT – MAJULI

IN THE GAUHATI HIGH COURT

(THE HIGH COURT OF ASSAM, NAGALAND,
MIZORAM, ARUNACHAL PRADESH)
(CIVIL EXTRA - ORDINARY JURISDICTION)

WRIT PETITION (C) No. ….……/2022

Arup Kumar Borah
….………………….Petitioner
-Vs-

The State of Assam & Ors

………………..Respondents

SYNOPSIS
Filed by

Advocate

LIST OF DATES
Sl. No. Date Particulars
1
2
3
4
5
6
7
8
 2

9
Filed by

Advocate

DISTRICT – MAJULI
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND,
MIZORAM, ARUNACHAL PRADESH)
(CIVIL EXTRA - ORDINARY JURISDICTION)

WRIT PETITION (C) No. ….……/2022

Arup Kumar Borah
….………………….Petitioner
-Vs-

The State of Assam & Ors

………………..Respondents

INDEX
Sl Annexure Particulars Page
No. No
1 Petition
2 Affidavit
3 Annexure – 1.

4 Annexure - 2
5 Annexure- 3
6 Annexure -4
 3

7 Annexure 5 &
5A
8 Annexure -6
9 Annexure -7
10 Annexure- 8
11 Annexure -9
12 Annexure -10
13 Annexure -11
14 Annexure -12
15 Annexure -13
16 Annexure -
14
17 Annexure -15

Filed by

Advocate
 4

DISTRICT – MAJULI
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND,
MIZORAM, ARUNACHAL PRADESH)
(CIVIL EXTRA - ORDINARY JURISDICTION)

WRIT PETITION (C) No. ….……/2022

Matter:
Category/code:
Bench: Civil Bench

To,
The Hon’ble Mr. Justice Sudhanshu Dhulia M.A, LL. B,
the Chief Justice of the Hon’ble Gauhati High Court and his
Lordships other companion justices of the said court.

IN THE MATTER OF
A Petition under Article 226 of the
Constitution of India for issuance of
a writ in the nature of mandamus
and/or certiorari and/or any other
statutory rights of the land in force
- AND –
IN THE MATTER OF
Violation of Article 14, 16 & 21 of
the Constitution of India.
- AND –
 5

IN THE MATTER OF
For enforcement of the petitioner’s
right as guaranteed in Part III and
IV of the Constitution of India and
any statutory right of the land in
force.
-AND-
IN THE MATTER OF
Violation of Sections 2(u) and
6(1)(d) of The Assam Education
( Provincialisation of Services of
Teachers and Re - Organisation of
Educational Institutions ) Act, 2017
-AND-
IN THE MATTER OF
Provincializing the services of as
many as 28 teaching and non
teaching employees of Pub Majuli
College, Bongaon, District - Majuli;
vide Order No.
PC/HE/VEB.EDNL.(57)/3/2014/25
dated 26.05.2014 issued by the
Respondent No.2 under the
provisions of Section 4(1) of The
Assam Venture Educational
Institution ( Provincialisation of
Service ) Act, 2011 as amended in
2012 in pursuance of Govt.
 6

Sanctioned order AHE.587/2013/9

dated 29.05.2014 wef 14.08.2013;
whereby the name of the
petitioner principal was left out in
spite of meeting all the requisite
eligibility criterias and discharging
the duties as the founder principal
of Pub Majuli College, Bongaon,
District - Majuli
-AND –
IN THE MATTER OF
The Letter No. AHE.98/2014/3
dated 24.03.2014 regarding
provincialisation of service of the
Principal yet to be qualified of newly
provincialized degree colleges of
Assam issued by the Deputy
Secretary, Government of Assam.
-AND –
IN THE MATTER OF
In pursuance of the letter dated
24.03.2014, the Respondent No.2
vide letter No.
PC/HE/COL.1/2014/321 dated
7.11.2014 directed the petitioner to
prefer his option either to opt for
the post of Assistant Professor or to
 7

continue as Principal without the

provincialisation of his services.
-AND –
IN THE MATTER OF
Resolution No.1 of the GB meeting
held on 4.02.2015 resolved to
propose to the Director, Higher
Education Asaam to appoint the
petitioner as Assistant Professor
( Senior Most ) against vacant post
in the Pub Majuli College, Bongaon,
District - Majuli. -
– AND –
IN THE MATTER OF
On acquiring a P.hd degree in
Sociology from Sunrise University,
Alwar being notified on 19.05.2016;
the President of the Governing Body
of the Pub Majuli College, Bongaon,
District - Majuli, forwarded the P.hd
degree of the Petitioner to the
Respondent No.2 for inclusion of his
name as a qualified Assistant
Professor.
-AND-
IN THE MATTER OF
Application dated 17.06.2017
forwarded to Respondent No.2 by
 8

the Petitioner for provincialising his

services in a format with a treasury
challan.
-AND –
IN THE MATTER OF
Vide Letter No.
PC/HE/PROV./2/20121/93 dated
05.02.2021 the Respondent No.2 on
exercising the power conferred
under Section 4(1) of The Assam
Education ( Provincialisation of
Services of Teachers And
Reorganization of Educational
Institutions ) Act, 2017 amended in
2018 and in pursuance of the Govt.
Sanction Order No.
AHE.1010/2019/PT/49 dated
1.02.2021 and NO. HAHE
490/2020/25 dated 1.02.2021
services of 3 employees of Pub
Majuli College, Bongaon, District -
Majuli have been provincialised
w.e.f 1.01.2021 including Petitioner
in Serial No.1 as “Tutor” at a fixed
pay scale of Rs. 36,000 p.m.
-AND -
 9

IN THE MATTER OF
Letter No. DA.81A/2015/190 dated
10.01.2022, the Director of
Accounts and Treasuries, Assam
directed all the treasury officers to
forward the names of all the
employees retired and expired who
are covered under the NPS scheme
for getting benefit of DCGR.
- AND –
IN THE MATTER OF
Representation dated 02.02.2022
addressed to the Director of Higher
Education, Assam to include the
name of the tutors including the
name of the Petitioner in the NPS to
facilitate for getting benefit of
DCRG; in pursuance of the letter
dated 10.01.2022 issued by the
Director of Accounts & Treasuries,
Assam.
- AND-
IN THE MATTER OF
Violation of principle of natural
justice and administrative fair play.
- AND –
 10

IN THE MATTER OF
Arup Kumar Borah, age 60 years
S/O – Late Nabin Borah
R/O - Bongaon
P.O – Bongaon
District- Majuli, Assam,
Pin – 785110
..………………. Petitioner
-Vs-
1. The State of Assam represented by
the Commissioner and Secretary
Higher Education Department,
Assam Secretariat, Block C, Ground
Floor

2. The Director of Higher Education,

Assam, Kahilipara, Guwahati -19.

3. The Director of Accounts and

Treasuries, Assam, Dispur,
Guwahati - 6

4. The Governing Body of Pub Majuli

College, Bongaon, District - Majuli
Pin Code: 785110

5. University Grant Commision,

represented by Secretary, Bahadur
 11

Shah Zafar Marg, New Delhi -

110002

………………..Respondents

The humble petition of the above-

named petitioner
MOST RESPECTFULLY SHOWETH –
By this application under Article 226 of the
Constitution of India, the petitioner is praying for issuance
of a writ in the nature of mandamus directing the
respondent authorities to appoint the petitioner who is the
Founder Pricipal of Pub Majuli College ( M.A, M.Phil and
P.hd in Sociology ) to the post of Regular Assistant
Professor of Pub Majuli College, Bongaon, Majuli with
notional benefits and /or pass such other order/orders or
directions as your lordships may deem fit and proper. The
facts leading to the present case are as follows –

1. That the petitioner is a citizen of India, aged 60 years

and permanent resident of Village and Post Office -
Bongaon, District- Majuli, Assam, Pin – 785110 and
as such he is entitled to all rights, protections and
privileges guaranteed to citizens under the
Constitution of India.

2. That, the petitioner is currently working as an

Founder Principal at Pub Majuli College and holds a
M.A , M.Phil and P.hd degree in Sociology and has
 12

been discharging his duties without any blemish at

the said college from his date of joining i.e
01.08.1990.

The copy of the letter dated

30.07.2019 issued by the Governing
Body of the Pub Majuli College;
whereby the petitioner was
appointed as the Principal of the
said college is annexed herewith as
ANNEXURE – 1 and 1A.

3. That the petitioner in order to advance his academic

career pursued M.A in Sociology from Dibrugarh
University and thereafter from the Institute of
Advanced Studies in Education University, Rajasthan
securing First Division. Thereafter he obtained M.Phil
in Sociology from Vinayaka Missions University,
Salem, Tamilnadu and in pursuance thereof was
awarded M.Phil in Sociology by the said University on
15.12.2009.

The copy of the certificate dated

15.12.2009 issued by the Vinayaka
Missions University, Salem, Tamil
Nadu; whereby the petitioner was
awarded M.Phil ( Sociology ) is
 13

annexed herewith as ANNEXURE –

2 Series.

4. That the petitioner in order to advance his academic

career further decided to pursue Ph.D and in it’s
meeting held on 20.08.2012, the Governing Body of
the Pub Majuli College, Bongaon, Majuli allowed the
petitioner to take the Ph.D degre for his career
advancement and further held that the Council had
No Objection in allowing the petitioner to complete
his Ph.D coursework.

The copy of the G.B Resolution on

No Ojection for Ph.D Programme
dt. 20.08.2012 is annexed herewith
as ANNEXURE – 3.

5. That it is relevant to state here that the said Pub

Majuli College, Bongaon, Majuli was provincialized in
August 2013 as a Arts Degree College.

6. That in the meantime the Respondent No.1 vide

Letter No. Ahe.98/2014/3 dated 24.03.2014 wrote to
the Respondent No.2 stating that the existing
Principals ( which includes the petitioner herein ) who
are yet to be qualified as per the UGC norms may
exercise either of the following two options for
regularisation of their services-
 14

a. The existing Principals of newly

provincialized colleges without UGC norms
may be proposed for regularization subject to
financial concurrence as Assistant Professors if
they otherwise qualify as Assistant Professors
and the post is available in the particular
college as per the schedule appended to the
Act. However, they would not be able to claim
the posts of Principals upon confirmation as
Assistant Professors and shall have to sign a
bond to this effect accordingly; or

b. If he/she does opt for (a) above then

he/she may continue as Principal of the
College under total administrative function of
the Governing Body as per provision
mentioned in Clause 4(3) of the Assam
Venture Educational Institutions
( Provincialisation of Services ) Act, 2011.
His/Her service condition prior to
provincialisation of the college shall continue.
However such Principals shall not have any
financial power including power of DDO. Only
the senior most regular faculty member of the
College shall execrise all financial power
including that of DDO in addition to his/her
duties. Further, on obtaining the relevant
 15

qualifications as per UGC/State Govt. Norms

within the stipulated period of 5 years or
earlier, steps to be taken to provincialize
his/her services as Principal.

The copy of the letter dated

24.03.2014 issued by the
Respondent No.1 regarding
provincialisation of services of
Principals ( yet to qualify ) of newly
provincialised degree colleges of
Asam is annexed herewith as
ANNEXURE – 4.

7. Thereafter, the Respondent No.2 vide Order

No.PC/HE/VEN.EDNL.(57)/3/2014/25 dated
26.05.2014 in exercise of the authority under Section
4(1) of the Assam Venture Educational Institutions
( Provincialisation of Services ) Act, 2011 as amended
in 2012 & 2013 provincialised the services of 28
employees of Pub Majuli College, Bongaon, Majuli
with effect from 14.08.2013 to the exclusion of the
petitioner herein.

The copy of the order dated

26.05.2014 issued by the
Respondent No. 2 provincialising the
services of 28 employees of Pub
 16

Majuli College, Bongaon, Majuli with

effect from 14.08.2013 is annexed
herewith as ANNEXURE – 5.

8. That on a bare perusal of the order dated 26.05.2014

issued by the Respondent No. 2 provincialising the
services of 28 employees of Pub Majuli College and
the Statement showing the eligibility of posts and
persons eligible for provincialization of services as per
the Assam Venture Educational Institutions
( Provincialisation of Services ) Act, 2011; several
such employees were provincialized who were
similarly placed as the petitioner as-far-as holding the
M.Phil degree was concerned. In fact 2 individuals
namely Dilip Baruah and Uttam Saikia who had also
secured their M.Phil from the same university and
same year as the petitioner ( i.e from Vinayaka
Missions University, Salem, Tamil Nadu in the year
2009 ) were in the list of 28 employees of Pub Majuli
College who were provincialized to the post of Asst.
Professor to the exclusion of the petitioner.

The copy of the Statement showing

the eligibility of posts and persons
eligible for provincialization of
services as per the Assam Venture
Educational Institutions
( Provincialisation of Services ) Act,
 17

2011 is annexed herewith as

ANNEXURE – 6 Series.

9. That it is also pertinent to mention here that the

Respondent No.5 in it’s 472nd meeting held on
27.09.2010 had taken a resolution that all candidates
having M.Phil degree on or before 10th July, 2009
shall remain exempted from the requirement of NET
for the purpose of appointment as lecturer/Assistant
Professor. And in spite of the said resolution taken by
the Respondent No.5, the Respondent No.2 did not
provincialize the petitioner to the post of Asst.
Professor who had in fact secured his M.Phil degree
on June 2009 i.e before the cut-off date of 10th July,
2009 as laid down by the Respondent No.5.

The copy of the 472nd meeting held

on 27.09.2010 by the Respondent
No.5 is annexed herewith as
ANNEXURE – 7.

10. That in pursuance of the aforesaid

communication dated 24.03.2014 ( kindly refer to
Annexure - 4 ), the Respondent No. 2 wrote to the
petitioner on 7.11.2014; to give his option as to
whether he desired to opt for the post of Asst.
Professor or to continue as Principal ( without
 18

provincialisatin of services ) till the time framework is

provided by the Assam Venture Educational
Institutions ( Provincialisation of Services ) Act, 2011
and as amended in 2012 and 2013.

11. That in pursuance thereof the Respondent No.

4 Council in pursuance of the communication dated
24.03.2014 ( kindly refer to Annexure - 4 ) proposed
to the Respondent No.2 that the petitioner who is the
Founder Principal of the Pub Majuli College, Majuli be
appointed to the post of Assistant Professor against
the vacant post in the college vide Resolution No.1
dated 1.02.2015.

The copy of the letter dated

7.11.2014 issued by the Respondent
No. 2 and the Resolution No.1 dated
1.02.2015 issued by the Respondent
No. 4 is annexed herewith as
ANNEXURE – 8 and 8A.

12. That after obtaining a No Ojection Certificate

from the Respondent No. 4 Council for Ph.D
Programme ( kindly refer to Annexure - 3 ). The
petitioner pursued his Ph.D from Sunrise University
Alwar and was duly awarded with the degree of
‘’Doctor of Philosophy’’ in Sociology on 20.05.2016.
The petitioner begs to state that he was a regular
 19

on-campus student who had registred a total of 72%

attendance in his course work programme. And
thereafter, the petioner had also notified the
Respondent No. 4 council about the same.

The copy of the Ph.D notification;

Provisional and Course Work
Certicate and the submission of
Ph.D details to the Respondent No.
4 is annexed herewith as
ANNEXURE – 9 series.

13. That in pursuance thereof the Respondent No.4

Council vide letter dated 26.11.2016 wrote to the
Respondent No.2 recommending the petitioner’s
name to be included in the qualified list for
provincialisation of his service qua his Ph.D
documents. The petitioner herein also vide letter
dated 29.11.2016 requested the Respondent No.2 to
appoint him as a regular Principal of Pub Majuli
College as per the Assam Venture Institution
Provincialisation Act, 2011; since he was now a Ph.D
degree holder.
The copy of the letter dated
26.11.2016 and letter dated
29.11.2016 is annexed herewith as
ANNEXURE – 10 and 10A.
 20

14. That the petitioner had

15.
16.
17.
18.
19.
20.
21. That Article 14 and Article 16(1) are closely
connected. They deal with individual rights of the
person. Article 14 demands that the "State shall not
deny to any person equality before the law or the
equal protection of the laws". Article 16(1) issues a
positive command that "there shall be equality of
opportunity for all citizens in the matters relating to
employment or appointment to any office under the
State".

30. That it has been held repeatedly by the Hon’ble

Supreme Court that sub-clause (1) of Article 16 is a
facet of Article 14 and that it takes its roots from Article
14. The said sub- clause particularizes the generality
in Article 14 and identifies, in a constitutional sense
"equality opportunity" in matters of employment and
appointment to any office under the State. The word
'employment' being wider, there is no dispute that it
takes within its fold, the aspect of promotions to posts
above the stage of initial level of recruitment. Article
16(1) provides to every employee otherwise eligible for
 21

promotion or who comes within the zone of

consideration, a fundamental right to be "considered"
for promotion. Equal opportunity here means the right
to be "considered" for promotion. If a person satisfies
the eligibility and zone criteria but is not considered for
promotion, then there will be a clear infraction of his
fundamental right to be "considered" for promotion,
which is his personal right. "Promotion" based on equal
opportunity and 'seniority' attached to such promotion
are facets of fundamental right under Article 16(1).

36. That, there is no efficacious, alternative remedy

available to the petitioner and the remedy sought for
will be just fit and proper if the same is granted to the
petitioner by this Hon’ble Court.

37. That the petitioner demanded justice but same has

been denied to him.

38. That this petition has been filed for bonafide reasons
and for ends of justice.

In these premises aforesaid, it

is therefore prayed that your
lordships may graciously be pleased
to admit this petition, call for the
records, issue rule, calling upon the
Respondents to show cause as to
 22

why a writ of mandamus should not

be issued as prayed for.
And to show cause as to why
a direction should not be issued
directing the respondent authorities
to appoint the petitioner who is the
Founder Pricipal of Pub Majuli
College ( M.A., P.hd ) to the post of
Regular Assistant Professor of Pub
Majuli College, Bongaon, Majuli and
duly grant him the
notional benefits arising from the
date of order dated 5.02.2021
whereby the services of 2
employees of Pub Majuli College
were provincialized to the post of
Assistant Professor to the exclusion
of the petitioner.
And after entering of the
parties cause and causes being
shown your lordships may be
pleased to pass such other order/
orders as your lordships may deem
may deem fit and proper.

And for this act of kindness the petitioner as in your duty

bound shall ever pray.
 23

AFFIDAVIT
I, Shiv Sankar Deka, age 57 years, S/O Late Manik
Chandra Deka, R/O - Village Chandkuchi P.O - Chandkuchi
District- Nalbari, Assam, Pin – 781 334, do hereby solemnly
affirm and state as follows :
 24

1. That I am the petitioner in the instant case and as

such I am fully conversant with the facts and
circumstances of the case and being competent to
swear in this affidavit.

2. That the statements made in this affidavit in

para………………………………………are true to best my
knowledge, belief and the statements made in
para…………………………….being matter of records are
true to my information derived from the records
which I belief to be true and the rest are my humble
submissions before this Hon’ble court.
-OATH –

I Swear that this declaration is true, that it conceals

nothing and that no part of its false, so help me god.

And I sign this affidavit on this ……..day of February,

2022 at Guwahati.

Identified by

Advocate