Page No.# 1/17

GAHC010063672021

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : WP(C)/3770/2021

DIBYAJYOTI BORAH AND 4 ORS

S/O SRI KAMAL CHANDRA BORAH

RESIDENT OF VILLAGE KHANGIA

PS PULIBOR, DIST JORHAT ASSAM

2: DR. GOURI GOUTAM BORTHAKUR

S/O BUDHINDRA NATH BORTHAKUR

RESIDENT OF VILLAGE RAJOTIA GOAN

MALOU ALI

PS JORHAT

ASSAM

3: DR. RUPAM JYOTI NATH

S/O LATE UTSHAV NATH

RESIDENT OF BARPARA

BONGAIGAON

ASSAM

4: DR. JYOTISHMOY BORAH

S/O LATE DINA KANTA BORAH

RESIDENT OF VILLAGE AND PO HATBOR

PS JAKHALABANDHA

DIST NAGAON

ASSAM

5: SMTI DHIRU BARMAN

W/O DIPANKAR MEDHI

RESIDENT OF KAKOIJANA

BONGAIGAON

PS ABHAYAPURI

ASSA Page No.# 1/17

GAHC010063672021

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : WP(C)/3770/2021

DIBYAJYOTI BORAH AND 4 ORS

S/O SRI KAMAL CHANDRA BORAH

RESIDENT OF VILLAGE KHANGIA

PS PULIBOR, DIST JORHAT ASSAM

2: DR. GOURI GOUTAM BORTHAKUR

S/O BUDHINDRA NATH BORTHAKUR

RESIDENT OF VILLAGE RAJOTIA GOAN

MALOU ALI

PS JORHAT

ASSAM

3: DR. RUPAM JYOTI NATH

S/O LATE UTSHAV NATH

RESIDENT OF BARPARA

BONGAIGAON

ASSAM

4: DR. JYOTISHMOY BORAH

S/O LATE DINA KANTA BORAH

RESIDENT OF VILLAGE AND PO HATBOR

PS JAKHALABANDHA

DIST NAGAON

ASSAM

5: SMTI DHIRU BARMAN

W/O DIPANKAR MEDHI

RESIDENT OF KAKOIJANA

BONGAIGAON

PS ABHAYAPURI

ASSA

Page No.# 2/17

VERSUS

THE STATE OF ASSAM AND 3 ORS

REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.

OF ASSAM, HIGHER EDUCATION TECHNICAL DEPT. SACHIVALAYA,

DISPUR, GUWAHATI 06

2:THE DIRECTOR OF TECHNICAL EDUCATION

ASSAM

KAHILIPARA

GUWAHATI 19

3:THE JORHAT INSTITUTE OF SCIENCE AND TECHNOLOGY

REPRESENTED HEREIN BY ITS PRINCIPAL

SOTAI

PO CHENIJAN

DIST JORHAT

ASSAM

785010

4:THE BINESWAR BRAHMA ENGINEERING COLLEGE

REPRESENTED HEREIN BY ITS PRINCIPAL

BIJULEEBARI

PO CHANDRAPARA

DIST KOKRAJHAR

ASSAM

78337

Advocate for the Petitioner : MR S BORTHAKUR

Advocate for the Respondent : SC, HIGHER EDU

Linked Case : WP(C)/5610/2022

JYOTISHMOY BORAH AND 2 ORS.

S/O LATE DINA KANTA BORAH

VILL. AND P.O.- HATBOR

P.S.- JAKHALABANDHA

DIST.- NAGAON

ASSAM.

Page No.# 3/17

2: DR. RUPAM JYOTI NATH

S/O LATE UTSHAV NATH

R/O BARPARA

BONGAIGAON

P.S.- BONGAIGAON

DIST.- BONGAIGAON

ASSAM.

3: DHIRU BARMAN

W/O DIPANKAR MEDHI

R/O KAKOIJANA

BONGAIGAON

P.S.- ABHAYAPURI

DIST.- BONGAIGAON

ASSAM.

VERSUS

THE STATE OF ASSAM AND 2 ORS.

REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM

HIGHER EDUCATION TECHNICAL DEPTT.

SACHIVALAYA

DISPUR

GUWAHATI- 06.

2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM

HIGHER EDUCATION (TECHNICAL) DEPTT.

DISPUR

GUWAHATI- 781006.

3:THE DIRECTOR OF TECHNICAL EDUCATION

ASSAM

KAHILIPARA

GUWAHATI- 19.

------------

Advocate for : MR S BORTHAKUR

Advocate for : SC

HIGHER EDU appearing for THE STATE OF ASSAM AND 2 ORS.

Linked Case : WP(C)/1162/2023

DR. BHASKAR JYOTI SARMAH AND 5 ORS.

Page No.# 4/17

SON OF JITENDRA NATH SARMAH

BHAGAWATIPARA

TITABAR

JORHAT- 785630.

2: BARNALI DAS

DAUGHTER OF LATE BIMAL KANTI DAS

SOUTH HAIBAR GAON

LMD ROAD

P.O.- HAIBARGAON

NAGAON- 782002.

3: DR. PARASA HAZARIKA

DAUGHTER OF ARUN CH. HAZARIKA

E-7

CSIR NEIST COLONY

PULIBOR

JORHAT- 785001.

4: MD. IMTIAZ ALAM

SON OF MAHAMMAD ALI

SUNDARBARI NEAR MASJID

HOUSE NO. 22

WARD NO. 2

ASSAM SISHU KALYAN ROAS

JALUKBARI

GUWAHATI- 781014.

5: ANGSHUMAN GOSWAMI

SON OF MANOJ KUMAR GOSWAMI

TULSI SHARMA PATH

NEAR JONAKI SANGHA SCHOOL

DHALAR SATRA JAIL ROAD

JORHAT- 785001.

Page No.# 5/17

6: DR. PRATIBHA BORAH

DAUGHTER OF LATE TULARAM BORAH

FLAT NO. 4A

DIAMOND PLAZA

MALOCUALI TINIALI

JORHAT- 785001.

VERSUS

THE STATE OF ASSAM AND 3 ORS.

REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.

OF ASSAM

HIGHER EDUCATION DEPARTMENT

TECHNICAL DEPARTMENT

ASSAM SACHIVALAYA

DISPUR

GUWAHATI-6.

2:THE DIRECTOR OF TECHNICAL EDUCATION

ASSAM

KAHILIPARA

GUWAHATI-19.

3:THE JORHAT INSTITUTE OF SCIENCE AND TECHNOLOGY

REPRESENTED HEREIN BY ITS PRINCIPAL

SOTAI

P.O.- CHENIJAN

DIST.- JORHAT

ASSAM

PIN- 785010.

4:THE ACCOUNTANT GENERAL ( A AND E)

ASSAM

BELTOLA

GUWAHATI- 29.

Page No.# 6/17

B E F O R E

Hon’ble MR. JUSTICE SANJAY KUMAR MEDHI

Advocates for the petitioners : Shri S. S. Goswami, Advocate.

Shri S. Borthakur, Advocate.

Advocates for the respondents : Shri A. R. Tahbildar, SC, Higher Education.

Shri R. Boro, Advocate, AG,

Shri R. Sensua, Advocate (R-4)

Date of hearing : 16.05.2024

Date of Judgment : 16.05.2024

Judgment & Order

All these three writ petitions being connected, are taken up for an

analogous hearing and are being disposed of by this common judgment and

order.

2. The issue is primarily related to a protection of pay of the petitioners owing

to certain developments in the management of the establishments where they

were employed. The establishments in question are two educational institutions

namely the Jorhat Institute of Science and Technology, Jorhat (erstwhile Jorhat

Science College) and the Bineswar Brahma Engineering College in the district of

Kokrajhar. For the sake of convenience, the background of the two

establishments which would be relevant for the adjudication of these cases are

separately mentioned as hereunder.

3. The erstwhile Jorhat Science College was converted to the Jorhat Institute

Page No.# 7/17

of Science and Technology (JIST) vide a notification dated 18.11.2008 issued by

the Higher Education (Technical) Department, Govt. of Assam. Subsequently, a

Society was formed through a Memorandum of Association (MoA) called the

Jorhat Institute of Science and Technology dated 20.07.2009. The aforesaid

Society was registered under the Societies Registration Act, 1860. The

petitioners have highlighted Clause 3 (iv) whereby the action to appoint

employee/personnel in the Society was to be done after prior approval of the

State Government. As per Clause-4, General Body and the membership was

notified, in which out of 10 members, 5 are senior personnel of the

Government, two Heads of Department of the College, two eminent social

workers and one Principal of the Institute as Member Secretary. The Chief

Secretary of the State of Assam was to be the Chairman of the Governing Body

and as per Clause-6, the Chairman would preside over all the meetings of the

Governing Body. Attention of the Court has also been drawn to Clause 9 (iii)

whereby the duties, salaries, allowances and other service conditions of the

officers and employees of the Society are to be fixed with the prior approval of

the State Government. Under Clause-17, the names of the Members of the First

Governing Body of the Society have also been given which is as per Clause-4

mentioned above.

4. After formation of the Society, the Higher Education Department had

created various posts vide Communication dated 20.08.2009 addressed to the

Accountant General, Assam which includes 37 numbers of posts of Lecturers

and one post of Librarian in the same pay scale. The Governing Body, in its

meeting held on 09.10.2009 had adopted the most of the Rules and Regulations

of the State Government along with the AICTE and UGC Norms and Guidelines.

The said meeting had also constituted and approved a Selection Committee for

Page No.# 8/17

holding a recruitment process for filling up the post which were created vide the

notification dated 20.08.2009. It has been stated that the said Selection

Committee would be for selection to posts equivalent to Gazetted posts in the

Government. Pursuant thereto, an advertisement was issued on 12.12.2009 for

various posts including the post of Lecturers in various disciplines. The said

advertisement was issued by none other than the Director of Technical

Education, Assam. The petitioners pertaining to the JIST who had offered their

candidatures were selected and accordingly appointed vide order dated

04.08.2010 issued by the Additional Chief Secretary to the Government of

Assam, Education Higher (Technical) Department on behalf of the JIST Society.

It is the contention of the petitioners that all benefits under the AICTE, UGC

including increments were given to the petitioners from the date of their

appointments.

5. The controversy however had started with a notification dated 30.12.2016

issued by the Higher Education (Technical) Department, whereby the

administrative control of the JIST was brought under the Government of Assam,

Higher Education (Technical) Department. It has been notified that the College

will thereafter come under the category of full-fledged Government Engineering

College. By the said notification, it may be noted that the Society was dissolved

in terms of paragraph 16 of the MoA. It was further stipulated that the affairs of

the College would henceforth be conducted as per the Rules and Regulations of

the State of Assam. The Governing Body of the JIST had accordingly resolved

that on such administrative taking over of control, the Government will

incorporate all the decisions in various meetings to take the liabilities of the JIST

Society in the interest of public.

Page No.# 9/17

6. Before such taking over, another advertisement was issued on 26.07.2012

by the APSC for filling up of the remaining vacancies which were initially created

by the Communication dated 20.08.2009 and accordingly in the year 2014,

certain appointments were made. However, a communication was issued by the

Higher Education (Technical) Department on 02.01.2018 to the Accountant

General, Assam stating thereby that the services of the incumbents in the JIST

were regularized with effect from 30.12.2016. It is contended that such decision

or the factors considered were not informed to the petitioners. It has also been

informed that on the aforesaid issue the APSC selected candidates had filed

WP(C) No. 6238/2015. Be that as it may, vide a Communication dated

21.09.2018, the candidates who were selected through APSC were granted pay

protection whereas such benefits have not been given to the petitioners. Vide a

Communication dated 16.08.2022 though notional increments to the petitioners

have been granted by taking the date from 30.12.2016, it is the case of the

petitioners that the issue regarding pay protection has not been resolved and

they had been denied of such benefits. The petitioners have accordingly prayed

for a direction to give them the benefit of pay protection which they were

getting in December, 2016 and also for a direction to hold them eligible to

appear in Career Advancement Schemes from the date of their initial

appointments.

7. With regard to the other establishment, namely, Bineswar Brahma

Engineering College (hereinafter the BBEC) the issue is analogous and only

certain factual aspects are different which is noted herein below briefly.

8. The BBEC was brought under Society mode on 15.07.2009. Posts were

created vide communication dated 05.12.2009. Advertisement was made in

Page No.# 10/17

December, 2009 followed by the appointment orders on 04.08.2010 and

25.11.2010 both issued by the Addl. Chief Secretary to the Govt. of Assam. The

Administrative control was taken away on 30.12.2016 and letters dated

20.03.2018 and 11.04.2018 were issued to Accountant General informing about

regularization of services. Pay Protection was conferred to APSC appointed

candidates vide communication dated 25.03.2022.

9. I have heard Shri S. S. Goswami, learned counsel for the petitioners in

WP(C) No. 1162/2023 whereas Shri S. Borthakur, learned counsel appears for

the petitioners in WP(C) Nos. 3770/2021 and 5610/2022. I have also heard Shri

A. R. Tahbildar, learned Standing Counsel, Higher Education Department, Shri R.

Boro, learned counsel appearing on instructions of Shri C. Baruah, learned

Standing Counsel, Accountant General, Assam. Shri R. Sensua, learned counsel

has appeared for respondent no. 4 in WP(C) No. 3770/2021.

10. It has been clarified that there are 6 petitioners in WP(C) No. 1162 of

2023, who are of from JIST. On the other hand, out of the 5 petitioners in

WP(C) No. 3770/2021, 2 out of the JIST and 3 from the BBEC.

11. Shri Goswami, the learned counsel for the petitioners has formulated his

arguments in the following manner:-

(i) The existing Jorhat Science College was converted into a Society by a

conscious decision of the Government of Assam.

(ii) The MoA to constitute the Society under the Societies Registration Act,

1860 would show that the entire control and management of the Society was

under the Government.

Page No.# 11/17

(iii) The Governing Body was constituted of Members, majority of which were

high officials of the Government of Assam and the Chairman was the Chief

Secretary of the State who was to preside over all the meetings of the

Governing Body.

(iv) All matters relating to the Society including appointments/duties to be

assigned, salaries etc. were to be made only with prior approval of the

Government.

(v) The posts in question were duly created by the Higher Education

Department vide Communication dated 20.08.2009.

(vi) The Selection Committee was duly constituted which is equivalent for

selection to Gazetted posts in the Government.

(vii) The advertisement for recruitment dated 12.12.2009 was issued by the

Director of Technical Education, Assam.

(viii) The appointment orders in question were issued on 04.08.2010 by the

Addl. Chief Secretary, Govt. of Assam In-charge of Education (Higher)

Department.

(ix) While the administrative control of the JIST was brought under the

Government of Assam vide the notification dated 30.12.2016, by the said

notification, the Higher Education (Technical) Department had also exercised the

power of dissolving the Society.

(x) The minutes of the meeting of the Governing Body had resolved that all

decisions of the Society were to be incorporated by the Government and also

Page No.# 12/17

take care of the liability of the Society.

(xi) The personnel, who were recruited through the APSC vide advertisement

dated 26.07.2012 was at a stage when the Society was yet to be taken over by

the Government and therefore there cannot be any difference with the services

rendered and the connected issues, only because of the change in the mode

through which the recruitment was done.

(xii) While the personnel appointed through the APSC at a time when the

Institute was still under the Society has been given pay protection, such pay

protection and other benefits could not have been deprived to the petitioners.

12. The learned counsel for the petitioners has submitted that the aforesaid

impugned action is clearly discriminatory and hit by Article 14 of the

Constitution of India. Shri Goswami, the learned counsel has fairly submitted

that the petitioners are not aggrieved by such pay protections given to the

persons who were recruited through the APSC, the concerns and claims is for an

equal treatment so far as the petitioners are concerned. It is submitted that

there is no intelligible differentia between the persons recruited through the

APSC and the petitioners who were recruited by a duly constituted Selection

Committee which was competent to make selection for Gazetted posts in the

State of Assam. It is submitted that the mode of recruitment which was

admittedly through a due process cannot be a factor to have been taken into

consideration for the aspect of grant of pay protection.

13. In support of his submission, Shri Goswami, the learned has placed

reliance upon the case of Pranab Kumar Deka & Ors Vs State of Assam &

Ors reported in (2016) 1 GLR 391. In the said judgment, the Article 14 and

Page No.# 13/17

its facets have been elaborately explained, the relevant portion of which is

extracted herein below:-

“32. Question for consideration is whether such a classification is a reasonable one or

whether such a classification would be violative of Article 14 of the Constitution of

India?

33. Article 14 provides that the State shall not deny to any person equality before the

law or equal protection of the laws within the territory of India.

34.Right to equality is a basic feature of our Constitution. Any treatment of equals

unequally will be a breach of the equality clause and thus violative of such basic

feature. Article 14 forbids class legislation but it does not forbid reasonable

classification of persons etc. for the purpose of achieving specific objective. For a

classification to be reasonable, the following two tests must be fulfilled:-

1. The classification should not be arbitrary. It must be based on an intelligible

differentia which clearly distinguishes the persons or things grouped together as

one category from the others left out of it.

2. The differentia which is adopted as the basis of classification must have a

rational or reasonable nexus with the object sought to be achieved. In other

words, there must be a live link or nexus between the intelligible differentia

based on which the classification is made and the object sought to be achieved.

35. Article 14 together with Articles 19 and 21 of the Constitution have received the

maximum attention of the Apex Court as these articles form the core of our

constitutional values. Article 14 has been explained and interpreted in several leading

decisions of the Supreme Court. It is not necessary to revisit all those decisions at this

stage. However, adverting to the doctrine of classification, it needs to be pointed out

that the Apex Court has sounded a note of caution by pointing out that the doctrine of

classification is only a subsidiary rule evolved by the Courts to give practical content to

the doctrine of equality. The Supreme Court has warned against over-emphasis on the

doctrine of classification as it may erode or impeach upon Article 14 itself making it

ineffective. In the recent Constitution Bench decision in Subramaniun Swamy (Supra),

all the principles governing Article 14 have been succinctly culled out and restated.

After surveying the case laws governing the subject, the Apex Court observed as

follows :-

“70. Undoubtedly, every differentiation is not a discrimination but at the

same time, differentiation must be founded on pertinent and real

differences as distinguished from irrelevant and artificial ones. A simple

physical grouping which separates one category from the other without

any rational basis is not a sound or intelligible differentia. The separation

or segregation must have a systematic relation and rational basis and the

object of such segregation must not be discriminatory...................”

Page No.# 14/17

14. Shri Borthakur, the learned counsel appearing in the other two writ

petitions has endorsed the contentions and submissions of Shri Goswami,

learned counsel. He has however additionally drawn the attention of this Court

to the Calculation Chart prepared and annexed in his petition. Attention of this

Court has also been drawn to a Note dated 07.12.2018 issued by the Principal,

BBEC wherein for one of the petitioners, it has been stated that while he was

drawing a gross salary of Rs.63,318/- (Rupees Sixty Three Thousand Three

Hundred Eighteen) in November, 2016 his gross amount was fixed @ Rs.

52,488/- (Rupees Fifty Two Thousand Four Hundred Eighty Eight) on taking

over.

15. Shri Borthakur, learned counsel has also placed reliance upon the case of

State of Gujarat & Anr. Vs Raman Lal Keshav Lal Soni & Ors. reported in

(1983) 2 SCC 33 on the aspect of discrimination.

16. Shri A. R. Tahbildar, learned Standing Counsel of the Department has

however defended the impugned action. He has contended that the

appointment of the petitioners were stated to be temporary and were to be as

per the Rules of the Society. By drawing the attention of this Court through the

affidavit-in-opposition filed in WP(C) No. 1162/2023, the learned Standing

Counsel has submitted that selection of the petitioners by a Selection

Committee cannot be held to be equivalent to the selection made by the APSC

and therefore the present claim is not justified. It is also contended that the

regularization of the services of the petitioners were done only in the year 2016

and therefore the claim for pay protection for the earlier period is not justified.

17. Shri Boro, the learned counsel representing the Accountant General,

Assam and Shri R. Sensua, learned counsel for the respondent no. 4 (BBEC) in

Page No.# 15/17

WP(C) No. 3770/2021 submit that they will not have a major role in the present

controversy.

18. In rejoinder, both Shri Goswami and Shri Borthakur, learned counsel have

submitted that the respective Societies did not have their own Rules and they

had adopted all the relevant Rules of the Govt. of Assam and the AICTE and

UGC Norms and Guidelines. As such, the prayer made in the writ petitions are

fully justified in which appropriate orders are liable to be issued.

19. The rival submissions have been duly considered and the materials placed

before this Court have been carefully examined.

20. There is no manner of doubt that both the educational institutions were at

the relevant point of time in Society mode. However, it would be relevant to

examine the composition and functioning of such Society. The materials on

record would show that the Governing Body of the Society was constituted by

high officials of the Government of Assam and the Chairman was none other

than the Chief Secretary of the State and all meetings of the Governing Body

were to be presided by the Chief Secretary. The matters relating to

appointment, duties and salaries were all to be done with prior approval of the

Government. The posts for the respective Institutions run by the Society were

created by the Higher Education Department vide Communications to the

Accountant General, Assam. The recruitment in which the petitioners had

participated and were selected were by duly constituted selection committee

which were for Gazetted posts in the Government. The advertisements through

which the petitioners could offer their candidatures and were subsequently

appointed were issued by the Director of Technical Education and the

appointments were also made by the said Department. Therefore, for all

Page No.# 16/17

practical purpose, the Societies in question were under the absolute control of

the Government. However, the said aspect may not be of much relevance for

the purpose of determining the issue in the present case.

21. The case of discrimination has been sought to be established between the

petitioners in these cases vis-à-vis certain other recruitees in the said

establishment who were recruited through an advertisement by the APSC. It is

however to be noted is that the process initiated through the APSC were of a

period before taking over of the respective Societies by the Government. The

crucial issue regarding the protection of pay cannot be connected or related to

the agency through which the recruitments were done. After all, the Societies

were admittedly not a private body but were wholly controlled by the

Government and each and every functioning of the Society were to be done

only with prior approval of the Government.

22. Therefore, while the benefit of pay protection has been given to the set of

employees who were inducted through the APSC while the establishments were

still under the Society, such benefits cannot be denied to the petitioners. It has

been brought to the notice of this Court by a note prepared by the Principal

regarding the gross difference of fixation of pay at the time when the

establishments in question were taken over by the Government from the

Society. The protection of pay is a basic right of an employee when he shifts

from one Government Organization to another through proper channel. Further

in the instant case, there was not even any change of the establishment and it

was only a change of the management. As stated above, such change was only

formal in nature as for all practical purposes, the erstwhile Societies were also

wholly controlled and run by the Government.

Order downloaded on 04-08-2025 10:07:12 PMPage No.# 17/17

23. Under the aforesaid facts and circumstances and the discussions made

above, this Court is of the considered opinion that the differentiation of the

petitioners vis-à-vis the candidates who were appointed through the APSC in the

year 2014 which is much before the taking over of the establishment by the

Government in the year 2016 is clearly discriminatory. In any case, the

petitioners cannot be denied the benefits of protection of pay on such taking

over by the Government even if the aspect of discrimination is overlooked. In

the considered opinion of this Court, claim for a pay protection can be

independently adjudicated and in the instant case such right clearly appears to

have been violated.

24. Consequently, the writ petitions are allowed by directing grant of pay

protections and the consequential holding of the petitioners to be eligible for

Career Advancements Scheme from the date of initial appointment is made out.

Which is to be done expeditiously and in any case, within a period of 4 (four)

months from the date of receipt of a certified copy of the order.

25. Writ petitions accordingly stand allowed.

26. No order as to cost.

JUDGE

Comparing Assistant