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2008 DIGILAW 231 (GAU)

Sajal Bhattacharjee v. State of Assam

2008-03-19

I.A.ANSARI

body2008
JUDGMENT I.A. Ansari, J. 1. By this common order, I propose to dispose of both the writ petitions inasmuch as the material facts in both the petitions are similar and the proposition of law involved in the two cases are also not different. 2. I have heard Mr. I.H. Saikia, learned Counsel for the Petitioners in both the writ petitions, and Mr. V.M. Thomas, learned Standing Counsel, Education Department, appearing on behalf of the State Respondents. 3. By making this application under Article 226 of the Constitution of India, the two writ Petitioners, who are admittedly dropped teachers, have sought for issuance of appropriate writ(s) commanding the Respondents to regularize their services. 4. The material facts, giving rise to these two writ petitions are, in brief, thus: Both the Petitioners were appointed as Assistant Teachers in Moriani High School, the date of appointment of the Petitioner, in W.P.(C) No. 5294/2007, being 01.01.1994 and the date of appointment of the Petitioner, in W.P.(C) No. 5295/2007, being 01.02.1994. Moriani High School was provincialised w.e.f. 01.08.1995. 5. Resisting the writ petitions, the Respondents contend that according to the relevant Government Policy, a drop teacher's service would be regularized subject to the condition that the teacher concerned had put in, at least, two years of continuous service in the school, which is provincialised. In the present two cases, as both the Petitioners had worked for less than the prescribed period of two years before the provincialisation of their school, the Petitioners are not, according to the Respondents, entitled to regularization of their services. In support of this contention, the pleaded case of the Respondent in Para 3 and 4 of their affidavit-in-opposition, read as under: That the deponent begs to state that it has been policy decisions of the Government (as referred in Govt. letter No. EDN(LC) 26/2002/341/69) which has been reflected in Memo No. EPMD.2/2003/3-A dtd. 21.1.2003, wherein it was a condition that for regularization of services of dropped teachers one should have at least two years of continuous service prior to the date of provincialisation of the school. The above policy decision which was taken as a common stand in the cases of dropped teachers in the affidavit filed by the State in W.P.(C) No. 5399/03 as reflected in the judgment dtd. The above policy decision which was taken as a common stand in the cases of dropped teachers in the affidavit filed by the State in W.P.(C) No. 5399/03 as reflected in the judgment dtd. 1.9.03 passed by the Division Bench of this Hon'ble High Court in the batch of writ petitions in C.R. 1571/98 Jiban Ch. Deka and Ors. and 28 other writ petitions. In the aforesaid policy decision it was decided as one of the conditions that for regularization of dropped teachers the teachers must put in at least two years of continuous service immediately preceding the taking over of the concerned schools by the Government. Admittedly the writ Petitioner does not possess two years of continuous service as Mariani High School was provincialised w.e.f. 1.8.1995 and the writ Petitioner was appointed as Assistant teacher by the Managing Committee of Mariani High School w.e.f. 1.2.1994. A copy of the policy decision dtd. 21.1.2003 and a copy of the judgment dtd. 1.9.2003 passed in Jiban Ch. Deka and Ors. and 28 other writ petitions are annexed hereto and marked as annexure-A and B respectively. 4. That the deponent begs to state that policy document dtd. 13.1.2003 has not been challenged till date and the Division Bench of this Hon'ble Court in its judgment dtd. 1.9.2003 passed in C.R. No. 1571/98 Jiban Ch. Deka and Ors. and 28 other writ petitions directed that a committee will be constituted to consider the cases of dropped teachers district wise eligible for regularization. The said committee has already prepared the list of district wise list of dropped teachers and submitted the same to the Government. But the name of the writ Petitioner may not have figured in the list as he has failed to meet the criteria for consideration for regularization and as such his services could not be regularized. 6. In the light of what has been pointed out by the Respondents, it is clear that the relevant policy of the Government requires that a teacher, whose service has not been regularized on provincialisation of school, would be entitled to regularization of service provided that he has rendered two years of continuous service prior to the date of provincialisation of the school. This policy decision, though considered, injudicial proceedings, has not been deviated from. This policy decision, though considered, injudicial proceedings, has not been deviated from. In such circumstances, the Petitioners cannot be said to have made out any case warranting exercise of this Court's extraordinary jurisdiction under Article 226 of the Constitution of India. 7. At the time of hearing of the writ petitions, it has been contended, on behalf of the Petitioners, that service of some of the dropped teachers, who were similarly situated, have been regularized. While considering this aspect of the submission, what needs to be pointed out is that before a Court holds an order or action passed by a State Government as discriminatory in nature, the Court must be satisfied that the benefit, which has been extended to the person concerned, was legally available to such a person. If an order is passed or an action is taken benefiting a person, who is, otherwise, not entitled to receive such a benefit under the law, the High Court cannot, in the name of removing discrimination, issue a writ commanding the Government to perpetuate the illegality, which it might have committed by extending an illegal benefit to one of its employees. 8. Because of what has been discussed and pointed out above, I find absolutely no merit in any of the writ petitions. Both these applications fail and the same shall accordingly stand dismissed. 9. The Petitioners are, however, left at liberty to challenge the policy decision of the Government, which requires two years of minimum service as a condition precedent for regularizing the service of a dropped teacher.