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2007 DIGILAW 788 (GAU)

Vanlaizauya Royte v. State of Mizoram

2007-12-05

H.N.SARMA

body2007
JUDGMENT H.N. Sarma, J. 1. Describing the action of the State respondents, in appointing the private respondents as 'Education Volunteers' in different primary schools in the State of Mizoram, as arbitrary and whimsical exercise of power without any authority of law giving a total go by to the statutory Recruitment Rules and ignoring the cases of the petitioners, this present writ petition has been filed by the President and Secretary of the Pre Service Teachers Association, Mizoram. 2. The aforesaid Association represents the causes of its members totaling 130 who are all residents of Mizoram and are qualified to hold the post of teacher in different L.P. Schools in the State of Mizoram. 3. Heard Mr. C. Lalramzava, learned Counsel for the petitioner and Mr. N. Sailo, learned Addl. Advocate General, Mizoram for the respondents. 4. As indicated above, the matter relates to the alleged illegal appointment/engagement of the private respondents as teachers branding them 'Education Volunteers' in different primary schools in the State. The pleaded case of the petitioners'. Association, inter alia, is that all the members of the petitioners' Association are duly qualified to hold such post of teacher in different primary schools. The appointment and conditions of service of primary teachers are regulated and guided by a set of statutory rules framed under Article 309, known as "Mizoram Education & Human Resources Development Department (School Education) (Group 'B' post) Recruitment Rules, 2003". Rule 4 of the said Rules provides that the age limit, qualification and other matters relating the said post shall be as specified in columns 5-14 of the First Schedule of the Rule. At column 8 of the 1st schedule, qualification for appointment as Primary Teacher is provided as follows: (1) Higher Secondary School Leaving Certificate/Pre-University Certificate and above with Diploma/Certificate in Teachers Education of a duration of not less than 2 years or Bachelor of Elementary Education (B. EL. Ed) (2) Working knowledge of Mizo language up to Middle School Standard. For Nepali/Gorkha Primary School the candidate should possess Nepali as one of the subject either in High School Leaving Certificate or + 2 Level. 5. All the petitioners, apart from having Higher Secondary School Leaving Certificate/Pre-University pass Certificate, also hold the Diploma/Certificate in Teachers Education of 2 years duration imparted by the District Institutes of Education and Training ('DIET'). These facts are not in dispute. 6. 5. All the petitioners, apart from having Higher Secondary School Leaving Certificate/Pre-University pass Certificate, also hold the Diploma/Certificate in Teachers Education of 2 years duration imparted by the District Institutes of Education and Training ('DIET'). These facts are not in dispute. 6. The petitioners having obtained necessary qualifications for being appointed as primary school teacher approached the authority for their appointment by filing different representations before the appropriate authority in power. The copies of such representations are annexed as Annexure Nos. 21, 22, 23 and 28 to this writ petition. The authorities, instead of appointing teachers as per the Recruitment Rules, have adopted a method to engage some, unqualified persons as teachers branding them as 'Education Volunteers'. Accordingly, adopting such procedure, the private respondents were engaged as 'Education Volunteers' vide order under Memo No. A.12019/1/02-DTE (EDS) dated 5th July, 2006 and similar other orders of the same date. The said engagement initially was up to 12.12.2006 but subsequently the engagement was further extended till 12.12.2007 vide Order dated 10.1.2007 which have been annexed as Annexure Nos. 31 to 39 to this writ petition. Although the petitioners raised various objections before the authority against such appointment of primary teachers as 'Education Volunteers', and their further extension, authority paid no heed to consider their grievances. 7. A counter has been filed on behalf of the respondents. The stand of the respondents is that due to financial constraints, the State Govt. is not in a position to appoint such teachers on regular basis as per Recruitment Rules and hence 'Education Volunteers' have been appointed in a fixed pay for a fixed period. Further stand of the respondents/authorities is that due to ban on recruitment of teachers in terms of the MOU entered with the Central Govt. no regular employment can be provided on the one hand and on the other hand these schools should not allowed to go without having adequate number of teachers and in such a situation engagement of 'Education Volunteers' had to be made by the Govt. 8. The learned Counsel for the petitioner contends, inter alia, is that the State Govt. having framed necessary Recruitment Rules under Article 309 for appointment of teachers, such engagement of the teachers should be made only as per the said statutory Rules. 8. The learned Counsel for the petitioner contends, inter alia, is that the State Govt. having framed necessary Recruitment Rules under Article 309 for appointment of teachers, such engagement of the teachers should be made only as per the said statutory Rules. Although the respondents have been designated as 'Education Volunteers' and appointed on fixed pay they are engaged only to impart education in the primary schools and the State authorities cannot adopt a procedure outside the scope of the Rules to appoint the private respondents who even do not possess the essential qualifications prescribed under the Rules. It is also contended that there is a relaxation to the ban on recruitment of the teachers in terms of the letter written to the Secretary, Government of Mizoram from the Prime Minister's Office dated 7.2.2005 which clarifies that restriction in the appointment of teachers in the Education department and employees in the health sectors the bar imposed is not applicable in the North Eastern States and the State of Jammu & Kashmir. Again vide letter dated 15.2.2005, the Joint secretary (State Finances), Govt. of India also re-iterated such relaxation in the recruitment of teachers in the Education Department of the North Eastern States. Learned Counsel contends that in the aforesaid manner the authority not only flouted the Recruitment Rules but also acted in a most arbitrary and discriminatory manner depriving the members of the petitioners' Association from getting suitable jobs as primary school teacher, for which they have undergone two years pre-service training. 9. Mr. Sailo, learned Addl. A.G. has, however, re-iterated the stand of the Govt. as reflected in the counter affidavit. On specific query of the court as to whether the engagement of the private respondents as 'Education Volunteers' would be extended after the expiry of the current period, i.e., beyond 12.12.2007, learned Counsel, submitted that no such clear cut instruction has been provided to him by the authorities. 10. The undisputed facts as disclosed from the pleading of the parties are that the members of the petitioners' Association are duly qualified to hold the post of primary school teacher in the State of Mizoram as prescribed in the Rules. Apart from the basic educational qualification, they have also got necessary Pre-Service Training undergoing Diploma course for two years imparted by 'DIET' and has obtained such Diploma after successful completion of the course. 11. Apart from the basic educational qualification, they have also got necessary Pre-Service Training undergoing Diploma course for two years imparted by 'DIET' and has obtained such Diploma after successful completion of the course. 11. The private respondents, however, preferred not to contest this proceeding in spite of service of notice. 12. Record does not disclose anything that the private respondents are qualified to hold the post. It is submitted by the learned Counsel for the petitioner that none of the private respondents are Diploma holders and have acquired necessary Pre-Service Training of not less than two years which is an essential condition for consideration for recruitment to the post of primary teachers. There is yet another aspect of the matter. Before engaging the private respondents as 'Education Volunteers', no advertisement was made nor any selection/recruitment process was followed by the authorities. They were simply picked up by the authorities and on what basis they were engaged, has not made known to this Court. Although the learned Addl. Advocate General strenuously contended that due to bar on recruitment the authority has adopted such procedure to engage the 'Education Volunteers' in the primary schools, the same cannot be accepted in view of the relaxation of such bar in the matter of recruitment in the Education Department as reflected from the letter from the Prime Minister's Office dated 7.2.2005 and the letter from the Joint Secretary (State Finances) dated 15.2.2005 written to the Chief Secretary of the State. Regarding the financial constraints which is also projected as a ground for adopting such procedure, the engagement order of the private respondents disclose that the expenditure payable on account of such engagement is payable to the Head: 2202 General Education. (O1)-Elementary Education, 102 (O1)-Govt. P/S (NON-PLAN), 101 (01) (01) - Salary. The aforesaid allocation of expenditure discloses that the expenditure to be born in the engagement of the private respondents as 'Education Volunteers' are debitable from Non-Plan Head of the State budget. In such a situation, it is difficult to conceive that financial constraints, the appointment of primary school teachers on regular basis in terms of the Recruitment Rules, would stand on the way of the authorities. Mr. Lalramzava has categorically stated that the petitioners are even agreeable if the situation so demands, to be appointed as primary school teacher on fixed pay as may be decided by the State Govt. Mr. Lalramzava has categorically stated that the petitioners are even agreeable if the situation so demands, to be appointed as primary school teacher on fixed pay as may be decided by the State Govt. but the authority cannot be permitted to flout the Recruitment Rules and engage unqualified persons as teachers by giving a new nomenclature as 'Education Volunteers' a term foreign to the Rules. The said submission of Mr. Lalramzava, in my considered opinion, has substance. In this connection reliance placed on the decision of the Apex Court rendered in Secretary, State of Karnataka and Ors. v. Uma Devi (3) and Ors. (2006) 4 SCC 1 , by the learned Counsel has relevance. Paragraphs 3, 2G and 43 of the said judgment are quoted herein below: 3. A sovereign Government, considering the economic situation in the country and the work to be got done, is not precluded from making temporary appointments or engaging workers on daily wages. Going by a law newly enacted, the National Rural Employment Guarantee Act, 2005, the object is to give employment to at least one member of a family for hundred days in a year, on paying wages as fixed under that Act. But, n regular process of recruitment or appointment has to be resorted to, when regular vacancies in posts, at a particular point of time, are to be filled up and the filling up of those vacancies cannot be done in a haphazard manner or based on patronage or other considerations. Regular appointment must be the rule. 26. With respect, why should the State be allowed to depart from the normal rule and indulge in temporary employment in permanent posts. This Court, in our view, is bound to insist on the State making regular and proper recruitments and is bound not to encourage or shut its eyes to the persistent transgression of the rules of regular recruitment. The direction to make permanent the distinction between regularization and making permanent, was not emphasized here can only encourage the State, the model employer, to flout its own rules and would confer undue benefits on a few at the cost of many waiting to complete. With respect, the direction made in para 50 of SCO of Piara Singh is to some extent inconsistent with the conclusion in para 45 of SCO therein. With respect, the direction made in para 50 of SCO of Piara Singh is to some extent inconsistent with the conclusion in para 45 of SCO therein. With great respect, it appears to us that the last of the directions clearly runs counter to the constitutional scheme of employment recognized in the earlier part of the decision. Really, it cannot be said that this decision has laid down the law that all ad hoc, temporary or casual employees engaged without following the regular recruitment procedure should be made permanent. 43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of out Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment, it has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire, any right. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire, any right. The High Courts acting under Article 226 of the Constitution should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the court, which we have described as "litigious employment" in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the by passing of the constitutional and statutory mandates. 13. It is also not in dispute that the private respondents were appointed as 'Education Volunteers' against regular vacancy. In fact, the respondents/authorities, on making relevant queries under the Right to Information Act, has replied to the petitioners on 4 8.2006 to that effect. The said reply is quoted in its entirety for ready reference: (English Translation) Office of the Presta: Mizoram No. F.23012/1/05-DTE.(EDN)Pt/2 To Dated the 4th August 2006. The Secretary Pre-Service Teacher's Association Mizoram, Aizawl. Subject: Matters regarding Education Volunteer. Reference: Your letter No. A.027/07/06/PRESTA, dated 24.7.2006. Sir, In response to your letter as given above I would like to clarify as follows: (1) The newly recruited Education Volunteers hove were recruited against the regular vacancies. (2) The Education Volunteers have been recruited for the purpose of teaching in the rural primary schools with inadequate number of teachers. Reference: Your letter No. A.027/07/06/PRESTA, dated 24.7.2006. Sir, In response to your letter as given above I would like to clarify as follows: (1) The newly recruited Education Volunteers hove were recruited against the regular vacancies. (2) The Education Volunteers have been recruited for the purpose of teaching in the rural primary schools with inadequate number of teachers. (3) The period of engagement of those teachers/education volunteers will be till 13.12.2006. (4) They have not been recruited as regular teachers but as Education volunteers with an honorarium of Rs. 2,800 PM unlike Regular Teachers. (5) As they are not Regular Primary Teachers they have not been recruited in accordance with the Recruitment Rules for Primary schools Teachers. Their recruitment is through the guidelines issued by the Govt. (copies enclosed for ready reference). Yours, etc. Sd/- (J.H. Zoena) State Public Information Officer & Deputy Director (Hindi) Directorate of School Education. Mizoram: Aizawl 14. It is true that the decision of the State Govt. whether to appoint a person in a vacant post is to be made or not, is to be given due weightage. But in the instant case as observed above, the relevant facts disclose that such a decision to engage as 'Education Volunteer' was taken by the authority on irrelevant consideration and on nonexistent ground. The posts against which the petitioners were appointed are all regular vacancies and although they were/engaged till 13.12.2006 the same was extended up to 12.12.2007 and they are still continuing. The learned Addl. Advocate General also raised a issue that the private respondents are appointed/recruited from the village or nearby village where the school is situated as well as in rural areas where the regular teachers do not want to serve in such interior places. But in any considered opinion that cannot be the ground to engage people by violating the Recruitment Rules. Any person appointed in any post is bound to serve wherever he is posted inasmuch as a person so appointed is a Govt. servant for all purposes and is bound to follow the necessary instruction of employer and may be posted in any place of the State which is a condition of service. The respondents are not permitted by law to engage a person in the post that too having no basic qualification to hold the post on such ground. servant for all purposes and is bound to follow the necessary instruction of employer and may be posted in any place of the State which is a condition of service. The respondents are not permitted by law to engage a person in the post that too having no basic qualification to hold the post on such ground. 'Education Volunteers' are to do the same function as primary teacher and by giving different nomenclature, a separate class cannot be created to do the same function. As observed by the Apex Court in Uma Devi's case (supra) a regular process of recruitment or appointment has to be resorted to, when regular vacancies in posts are to be filled up as per Recruitment Rules and such regular appointment must be the Rule. The financial constraints as raised to be the reason for such appointment cannot be accepted in view of the fact that the expenditure for such engagement is debatable from the non-plan budget which indicates that there has been budgetary provisions for payment of salary of such teachers and the post of these teachers are not newly created but are existing regular vacancies in the department. The petitioners by possessing necessary essential qualification as well as by getting Pre-Service Training for a period of not less than two years and by obtaining Diploma from the recognized institution have got right to be considered for the post of teachers in a primary schools and they cannot be deprived of by engaging a set of person who do not have such basic qualification as per Recruitment Rules, in the fashion as aforesaid. 15. The statements of the respondents made in the counter affidavit as well as submissions made by the learned Addl. Advocate General clearly go to show that the State Respondents is keenly interested to see that all the primary schools in the State are running without having adequate number of teachers as per the national standard of student teacher ratio and in that view, it appears that the private respondents were engaged as 'Education Volunteers'. However, in the above discussion that cannot be allowed flouting the relevant statutory rules on the face of having adequate numbers of qualified candidates as per the Recruitment Rules and the State Government is bound to consider this aspect of the matter. 16. However, in the above discussion that cannot be allowed flouting the relevant statutory rules on the face of having adequate numbers of qualified candidates as per the Recruitment Rules and the State Government is bound to consider this aspect of the matter. 16. It is needless to say that the primary education is now recognized and is on of the fundamental rights under our Constitution and the State Govt. is bound to follow the procedure in filling up the vacant posts of teachers in the primary schools. 17. Accordingly, in view of the above discussion, I hold that the private respondents were not legally engaged/appointed as 'Education Volunteers' and do not have any right to continue further. The respondents/authorities are directed not to extend the engagement of the private respondents or any other 'Education Volunteers' beyond 12.12.2007 and the post in question are be filled up in terms of the Recruitment Rules. 18. The writ petition stands allowed, to the extent indicated above. Petition allowed.