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2007 DIGILAW 712 (GAU)

Boren Sarma v. State of Assam

2007-10-12

BIPLAB KUMAR SHARMA

body2007
JUDGMENT B.K. Sharma, J. 1. Strange are the ways, the Education Department, Govt., of Assam acts through its officers. The present proceeding is in respect of the claim of the petitioner for regularization of his service with retrospective effect which has arisen out of purported appointment of the petitioner as Music Teacher as per the endorsement of the Inspector of Schools, Kamrup District Circle, (KDC) Guwahati on the body of the representation made by the petitioner for his appointment as such. There is no separate order of appointment of the petitioner, but it is the endorsement on the body of the representation which is stated to be The appointment order of the petitioner. 2. The petitioner by his representation dated 22.04.92 addressed to the Inspector of Schools, KDC, made a prayer for his appointment as Music Teacher in the particular school called Phaguna Rabha High School, Jatia, Guwahati. His representation was forwarded by the Headmaster of the School with the endorsement "Recommended for consideration as Music Teacher is necessary". The endorsement was made on 23.04.92. On the same date the Inspector of Schools, KDC by his following endorsement made to the Headmaster of the School allowed the petitioner to work in the school as Music Teacher. The endorsement is reproduced below: Headmaster, Since the applicant is a B.Sc. and Sangeet Visharad, he may be allowed to work as Music Teacher in your school and his senior will be regularized on sanction of a post of Music teacher in the school. He will be able to take classes in Music and Science also. Sd/-Inspect of Schools Kamrup District Circle, Guwahati, 23.04.92. 3. In the writ petition the petitioner has stated his educational qualification including the degrees in Music. According to the petitioner pursuant to the aforesaid endorsement of the Inspector of Schools, KDC, he joined the school on 23.04.92 and has been serving in the school since then as Music and Science Teacher. However, he has not been paid his salary. According to the petitioner the post of Music Teacher is in existence, but he has not been appointed against the said post by the respondents. Time to time representations made by the petitioner having not yielded any result, he approached this Court by filing a writ petition being CR No. 2763/94 claiming regularization of his service. 4. According to the petitioner the post of Music Teacher is in existence, but he has not been appointed against the said post by the respondents. Time to time representations made by the petitioner having not yielded any result, he approached this Court by filing a writ petition being CR No. 2763/94 claiming regularization of his service. 4. The writ petition was disposed of by order dated 30.06.97 with the following direction: Considering the facts situation I am therefore of the view that in view of the averments made in the affidavit no further order would be needed to be passed by this Court. However, the authority shall take up the regularizationof the petitioner in conformity with the existing law as early as possible preferably within four months from today on receipt of the certified copy of this order. It is needless to say that till the post is regularized in accordance with law the petitioner shall not be ousted from service. (Emphasis supplied) 5. In the aforesaid proceeding an affidavit in opposition was filed by the Inspector of Schools stating that the petitioner was allowed to serve as Music Teacher in the school subject to the condition that the service of the petitioner would be regularized only on the sanctioning of the post in the school. It is on the basis of such stand, this Court observed that no apparent threat to alleged termination of service of the petitioner was discernible. 6. After passing the aforesaid order by this Court, the petitioner made time to time representations urging for regularization of his service. It is his case that since the post of Music teacher and another post of Science Teacher are lying vacant, the petitioner's service is required to be regularized against anyone of the said posts. 7. The respondents have filed their counter affidavit inter alia stating that no post of Music Teacher was sanctioned in the particular school. It is the further stand that no new post of Music Teacher would be sanctioned in future and thus there was no scope of sanctioning/allotting any post of Music Teacher in the school to accommodate the petitioner. 7. The respondents have filed their counter affidavit inter alia stating that no post of Music Teacher was sanctioned in the particular school. It is the further stand that no new post of Music Teacher would be sanctioned in future and thus there was no scope of sanctioning/allotting any post of Music Teacher in the school to accommodate the petitioner. The respondents have stated that the petitioner does not have any enforceable regal right for regularization, even if he has been continuing in the school on the basis of the aforesaid endorsement made by the then Inspector of Schools on the body of the representation made by the petitioner. 8. The petitioner has filed an affidavit in reply controverting the stand of the respondents that there is no sanctioned post of Music Teacher. According to the petitioner since he has been serving in the school as Music Teacher, the respondents are duty bound to regularize his service. In paragraph-6 of the affidavit in reply, the petitioner has virtually admitted that the post of Music Teacher was not sanctioned. By referring to the particular file maintained by the respondents, the petitioner has stated that at one stage, there was a move to regularize his service, but later on the move was withdrawn. It is the further stand of the petitioner that his appointment order was ready way back in April, 1993, but for the reasons best known to the respondents same was not formally issued. 9. I have heard Mr. B. Sarma, learned Counsel for the petitioner as well as Mr. V. M. Thomas, learned S.C., Education Department. During the course of hearing, Mr. Sarma produced the copy of the order dated 27.04.93 issued by the Director of Secondary Education, Assam sanctioning one post of Music Teacher in the school. However, such sanction and duration of the post was only for three months. It is the definite stand of the respondents that no post was sanctioned to the school permanently and that presently there is no scope for sanctioning any post of Music Teacher. 10. The petitioner has placed reliance on two decisions of this Court, one of which is CR No. 885/98 and the other is W.P. (C) No. 543/07. It is the definite stand of the respondents that no post was sanctioned to the school permanently and that presently there is no scope for sanctioning any post of Music Teacher. 10. The petitioner has placed reliance on two decisions of this Court, one of which is CR No. 885/98 and the other is W.P. (C) No. 543/07. By judgment and order dated 27.06.06 passed in CR No. 885/98, this Court directed the respondents to take steps towards regularization of service of the petitioner as Lecturer in the particular Law College. In the said case, the petitioner was appointed way back in 1987 pursuant to advertisement issued by the Director of Public Instructions, Govt. of Assam on 12.07.86. Although initial appointment of the petitioner was for a period of four months, but the same was extended from time to time and by the time the judgment was delivered, the petitioner had rendered about 20 years of service. It was in such circumstances, this Court issued direction for taking steps towards regularization of service of the petitioner in that case. The uninterrupted service of the petitioner before approaching this Court was also taken note of. 11. In the second case, the petitioner was first appointed as Lecturer in Assamese in the particular Junior College. His such appointment was by the authority of the college. Certain posts were sanctioned for regularization of service of the Lecturers of the Junior College. In the list of Lecturers, the petitioner's name was not included. There was a conscious decision of the Govt. to regularize the service of the Lecturers of the Junior Colleges who had been working against the non-sanctioned posts. It was in such circumstances, the direction was issued for regularization of service of the petitioner. 12. In the instant case, the petitioner was not appointed by issuing any order of appointment. The manner and method in which he was appointed is noted above. In Jahangir Alain v. State of Assam reported in 2003 (3) GLT544, it has been held that the honorary teachers appointed by the Managing Committees of the Provincialised Schools, irrespective of their length of service, do not have any right of regularization of service. In the instant case also, the petitioner was appointed after provincialisation of the school and that too by an endorsement on the body of the representation made by the petitioner. 13. In the instant case also, the petitioner was appointed after provincialisation of the school and that too by an endorsement on the body of the representation made by the petitioner. 13. The Rules of Recruitment holding the field at that point of time was the Assam Secondary Education (Provincialisation) Service Rules, 1982. Rule 7 provided for direct recruitment through advertisement and selection. The procedure envisaged in Rule-7 of the Rules was not admittedly followed towards appointment of the petitioner which is naturally violative of Articles 14 and 16 of the Constitution. Needless to say that in any public employment equal opportunity to all eligible candidates will have to be given. In the instant case, the petitioner was appointed by an endorsement on the body of the representation made by the petitioner and that too without any valid sanctioned post. The endorsement itself indicated the condition precedent of sanctioning the post of Music Teacher. Be that as it may, the endorsement of the Inspector of Schools was wholly unjustified and unauthorized. The Inspector could not have made such appointment in public institution taking the same to be his private property. 14. In the order of this Court passed in the earlier writ petition filed by the petitioner, direction was to regularize the service of the petitioner in conformity with the existing law. Thus, the order for regularization was not unqualified. If regularization was to be made in conformity with the existing law, naturally there will have to a valid sanctioned post. This Court cannot issue direction to the respondents to create/sanction the post of Music Teacher. As has been observed by the Apex Court in the case of Commissioner, Corporation of Madras v. Madras Corporation Teachers Mandram reported in (1997) I LLJ 708 SC, it is a well settled legal position that it is the legal or executive policy of the Government to create a post. The court is devoid of power to give such direction. Further the procedure laid down towards direct recruitment in the Recruitment Rules will also have to be followed. 15. Merely because the petitioner was the beneficiary of the endorsement made on the body of the representation, without there being any formal appointment order, the petitioner cannot claim regularization of his service with retrospective effect. If this is allowed, same will be in complete violation of the Rules. 15. Merely because the petitioner was the beneficiary of the endorsement made on the body of the representation, without there being any formal appointment order, the petitioner cannot claim regularization of his service with retrospective effect. If this is allowed, same will be in complete violation of the Rules. The respondents cannot be directed to violate the Rules. 16. If the respondents had taken any action in the matter towards regularization of service of the petitioner as contended by the petitioner, same cannot clothe the petitioner with any legal right for issuance of a writ of mandamus. This Court cannot issue any direction on the basis of the position which is based on illegality. As noted above, the direction of this Court was to consider for regularization of the service of the petitioner in conformity with the existing law. If law is to be followed, there cannot be any automatic regularization of service of the petitioner. 17. In the aforesaid circumstances, this Court is not in a position to issue direction to create post and then to regularize the services of the petitioner. Compassion on which Mr. Sarma, learned Counsel for the petitioner emphasized during the course of hearing, if accepted, would amount of encouraging and condoning the appointment unauthorisedly. The jurisdiction of this Court under Article 226 of the Constitution cannot be frittered away for such purpose. This Court cannot grant relief to the petitioner on humanitarian ground contrary to law. 18. The Apex Court in the case of khmedabad Municipal Corporation v. Virendra Kumar Jayartibhai Patel reported in (1997) II LLJ 765 SC observed thus: 5. The second reasoning given by the tribunal in issuing direction to the Corporation for absorbing the respondent in its permanent service which was not touched upon by the High Court is that the case of the respondent requires sympathetic consideration, as presumably the respondent has been visiting the Corporation's Clinic since early seventies, remains to be considered. As noticed earlier, the recruitment of the doctors in the Clinic run by the Corporation is made in accordance with the statutory rules and by no other method. Under the rules the vacancies are advertised for inviting applications from eligible candidates. After the applications are received the Selection Committee is constituted to select the candidates for appointment in the Corporation's Clinic. Only after the candidates are selected they are taken in the service. Under the rules the vacancies are advertised for inviting applications from eligible candidates. After the applications are received the Selection Committee is constituted to select the candidates for appointment in the Corporation's Clinic. Only after the candidates are selected they are taken in the service. It is also noticed earlier that respondent appeared before the Selection Committee but was not selected. Under such circumstances, there is no room for sympathy or equity in the matter of such appointment specially where the recruitment in service is governed by the statutory rules. If the reasoning given by the tribunal is accepted, the statutory recruitment rules would become nugatory or otiose and the department can favour any person or appoint any person without following procedure provided in the recruitments rules which would lead to nepotism and arbitrariness. Once the consideration of equity in the face of statutory rules is accepted then eligible and qualified persons would be sufferers as they would not bet any chance to be considered for appointment. The result would be that persons lesser in merit would get preference in the matter of appointment merely on the ground of equity and compassion. It is therefore not safe to bend the arms of law only for adjusting equity. We, therefore, find that the reasoning given by the tribunal that sympathy demands the absorption of the respondent in the service of the Corporation suffers from error of law. 19. For the foregoing reasons, no mandamus can be issued for regularization of service of the petitioner. The matter is left open for the respondent to be decided in accordance with law. 20. The writ petition is dismissed. There shall be no order as to costs. Petition dismissed.