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2008 DIGILAW 229 (GAU)

Md. Edad Uddin v. State of Assam

2008-03-18

I.A.ANSARI

body2008
JUDGMENT I.A. Ansari, J. 1. By making this application under Article 226 of the Constitution of India, the petitioner has sought for issuance of appropriate writ(s) commanding the respondents to pay to the petitioner salary in respect of the post of Assistant Teacher of LP School w.e.f. 7.2.2001. 2. Put in a nut-shell, the petitioner's case is thus : The Managing Committee of 248 Nayagram LP School, Karimganj, appointed, on 12.6.1996, the petitioner as Assistant Teacher. This appointment, having been approved, on 24.6.1996, by the Deputy Inspector of Schools, Karimganj, the petitioner started working as Assistant Teacher in the said school. In course of time, on repeated representations made by the petitioner, an order was passed, on 7.2.2001 (Annexure 6 to the writ petition) by the then Deputy Inspector of Schools, Karimganj, whereby the petitioner, who had till then been working as honorary teacher in the said school, was adjusted against a post, which had fallen vacant due to retirement of its incumbent, Krishna Mohan Mallah, in 650 Ganga Hindi LP School, with explicit direction that the petitioner would receive stipend @ Rs. 1,800 per month. The order of adjustment, so made, was against a non-planned post. Notwithstanding the said order of adjustment, as the petitioner did not receive any salary, he has come to this court, with the present writ application, seeking reliefs as indicated hereinabove. 3. Resisting the writ petition, the State respondents contend to the effect, inter alia, that the petitioner was appointed as honorary teacher by the Managing Committee of 248 Nayagram LP School, Karimganj, which was provincialised, in terms of the provisions of the Assam Elementary Education Provincialisation Rules, 1977, as far back as in the year 1975, and, hence, on provincialisation of the said school, its Managing Committee could not have legally appointed any teacher inasmuch as appointment of teachers, in provincialised schools, have to be made by adhering to selection process which has to be conducted, and completed in terms of the provisions of the said Rules. The respondents, therefore, contend that the petitioner's honorary appointment by the Managing Committee did not bind the State Government. This apart, the order, dated 7.2.2001, aforementioned, which forms the basis of the petitioner's claim for salary, was, according to the respondents, an order of adjustment and not an order of regularisation. The respondents, therefore, contend that the petitioner's honorary appointment by the Managing Committee did not bind the State Government. This apart, the order, dated 7.2.2001, aforementioned, which forms the basis of the petitioner's claim for salary, was, according to the respondents, an order of adjustment and not an order of regularisation. Further more, points out the respondents, w.e.f. 6.12.1999, the Government of Assam, owing to financial crunch, had clamped a ban on the appointment of teachers against vacant posts without approval of the Finance Department and, in the present case, since no such approval was obtained before making the said order of adjustment, the order did not vest any right in the petitioner to claim salary. 4. Appearing on behalf of the petitioner, Mr. A.K. Goswami, learned Senior counsel, pointing to the judgment and order, dated 9.12.2004, passed in WP(C) No. 7333/2001, has submitted that in the said case,' this Court has held that payment of salary to a Government employee cannot be denied without any justifiably reason. Mr. Goswami has further pointed out that the policy decision of the Government till 29.9.2003 had been to approve and regularize the appointment of honorary teachers and since the petitioner's order of adjustment was made, on 7.2.2001, against a non-planned post, there is no valid reason for not treating the petitioner's appointment as a regular appointment in the post of Assistant Teacher of lower primary school. 5. Controverting the submissions made on behalf of the petitioner, Mr. I Islam, learned Standing counsel, Education Department, referring to this court's decision in Jahangir Alam and Ors. v. State of Assam and Ors. 2003 (3) GLT 544, has submitted that this Court has clearly held that on provincialisation of a lower primary school, its Managing Committee has no power to make appointment of any teacher and the appointment of such teachers, which are commonly known as honorary teachers, is for fortuitous in nature and does not create any right in them to seek regularization of their appointment. 6. While considering the present writ petition, it needs to be noted that the question formulated for its decision by the court, in Jahangir Alam (supra), was as under: Whether honorary teachers appointed by the Managing Committee of a provincialised school would have any legal or equitable right, for regulation of such appointment? 7. 6. While considering the present writ petition, it needs to be noted that the question formulated for its decision by the court, in Jahangir Alam (supra), was as under: Whether honorary teachers appointed by the Managing Committee of a provincialised school would have any legal or equitable right, for regulation of such appointment? 7. Having examined the scheme of the relevant provisions of the said rules and all other connected aspects of law, the court has, in no uncertain words, held that upon provincialisation of a lower primary school, its Managing Committee has no role to play in the appointment of teachers and, hence, appointment of teachers by the Managing Committee of such a provincialised schools, being contrary to the relevant statutory provisions, is wholly illegal and that the services rendered by such an honorary teacher, in such fortuitous circumstances, is distinguishable from regular service rendered by a teacher under the State. 8. In the face of clear declaration with regard to the role of the Managing Committee of a provincialised LP School, there can be no escape from the conclusion that even if the petitioner was appointed, on 12.6.1996, by the Managing Committee of the said school on honorary basis, his appointment was completely illegal and did not bind the State Government. As the petitioner's appointment was without adhering to the provisions of the relevant Rules, his service could not have been adjusted by the Deputy Inspector of Schools against a regular sanctioned and vacant post. Apart from the fact that the order of adjustment, dated 7.2.2001, is not an order of regularization, it is worth pointing out that there was no source of power, under the said Rules, for making such adjustment. When the source of power did not exist in favour of any adjustment or regularization of the petitioner's service as an Assistant Teacher, the mere fact that an order had been passed, on 7.2.2001, adjusting the petitioner's service against a regular vacant post does not vest, in the petitioner, any right, statutory or otherwise, to claim the status of a regularly appointed teacher. 9. What emerges from the above discussion is that the petitioner's initial appointment made by the Managing Committee of the said school, on 12.6.1996, does not saddle the State Government with the responsibility to make payment of salary of, a regularly appointed teacher to the petitioner. 9. What emerges from the above discussion is that the petitioner's initial appointment made by the Managing Committee of the said school, on 12.6.1996, does not saddle the State Government with the responsibility to make payment of salary of, a regularly appointed teacher to the petitioner. Notwithstanding, however, the fact that the order of adjustment, made in favour of the petitioner, is ex-facie illegal, the very fact that the petitioner has been allowed to render his service on the basis of such illegal appointment and no action has, admittedly, been token by the State Government against the Inspector of Schools, who had made the said order of adjustment, the petitioner's of service must be treated to have been realized by the State Government on contractual basis. Viewed thus, it is clear that the petitioner remains entitled to receive salary @ Rs. 1,800 per month until the time the order of adjustment, passed in his favour is 'withdrawn, cancelled or rescinded by the competent authority. 10. Because of what have been discussed and pointed out above, this writ petition partly succeeds. While the claim of the petitioner for a direction to the State respondents to make payment of salary to the petition treating him as a regular teacher or to direct regularization of his service is hereby turned down, the State respondents are hereby directed to make payment and continue to make payment to the petitioner @ Rs. 1,800 per month, w.e.f. 7.2.2001, until the time the State Government continues to let the petitioner render his services on the strength of the order, dated 7.2.2001, aforementioned. It shall, however, remain open to the State respondents to withdraw, cancel or rescind the said order of adjustment and, for this purpose, no notice to show cause is required to be given to the petitioner inasmuch as the nature or legality of the order of adjustment aforementioned has already been considered and determined in this writ petition. 11. With the above observations and directions, this writ petition shall stand disposed of. 12. No order as to costs. Petition disposed of.