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2008 DIGILAW 807 (GAU)

Ataur Rahman v. Siraj Uddin

2008-11-20

BIPLAB KUMAR SHARMA, J.CHELAMESWAR

body2008
JUDGMENT B.K. Sharma, J. 1. The appellants who were the private, respondents in the writ petition have filed this appeal, being aggrieved by the judgment and order passed in the writ petition allowing the writ petition, in which the appointment of the appellants as the Subject Teachers was under challenge. 2. The basic grievance in the writ petition filed by 8 petitioners on 24.8.2001, who are the respondents in this appeal, was that no notice and/or advertisement was issued towards appointment of the appellants in the year 1998 (12.7.1998) in the school namely A.A. Latif Girls High School and that they were appointed on pick and choose basis to the deprivation of the writ petitioners as they were also eligible for consideration for such appointment. 3. According to the writ petitioners, there was no question of appointment of the appellants in 1998 inasmuch as there was no admission into Higher Secondary Classes till 2001. It was only on 5.7.2001, of the High School was upgraded to a Higher Secondary School. Referring to the Regulations on Recognition of Higher Secondary and Junior College, it was contended that, since the permission to open Higher Secondary Classes in the High School was required to be obtained from the Higher Secondary Council, Assam, the posts ought to have been advertised before filling up the same through the appellants without taking recourse to such established procedure. 4. The private respondents, i.e., the appellants in their counter affidavit denied the contentions raised in the writ petition. It was inter alia contended that the Managing Committee of the school in its meeting held in 1993 made proposal to upgrade the school to a Higher Secondary School. In the affidavit, it was stated that an advertisement was issued on 14.7.1996 inviting applications for appointment of teachers in different subjects in the Higher Secondary Section of the school, which was still at the venture stage. In the advertisement, it was indicated that all the posts were temporary and honorary. 5. A general meeting of the school was called and held on 11.5.1998, which adopted various resolutions towards upgradation of the High School to a Higher Secondary School, formation of a Managing Committee and appointment of teachers in the Higher Secondary Section of the school which was at the venture stage. 5. A general meeting of the school was called and held on 11.5.1998, which adopted various resolutions towards upgradation of the High School to a Higher Secondary School, formation of a Managing Committee and appointment of teachers in the Higher Secondary Section of the school which was at the venture stage. Another meeting was held on 27.5.1998 in which, in consideration of the advertisement issued in the year 1996, a decision was taken to complete the selection process by the duly constituted Selection Committee. 6. After the aforesaid developments, another meeting of the Managing Committee was held on 9.6.1998, in which the Selection Committee presented the list of selected teachers for appointment in the Higher Secondary Section of the school. It is through this process, the appellants were appointed in the year 1998. The appellants were appointed in anticipation of the permission to open the higher Secondary classes. Subsequently by Annexure-H letter dated 28.3.2001, annexed to the counter affidavit, the Government of Assam in the Education (Secondary) Department accorded approval towards upgradation of the High Schools indicated in the letter, which included the A.A. Latif Girls High School as well. A request was also made to make proposal for creation of posts, etc. 7. By. Annexure-H letter dated 28.3.2001 issued by the Higher Secondary Education Council to the school on the subject of upgradation of provincialised High School to H.S. School conveyed that the council accords permission to start H.S. Classes in provincialised High Schools after fulfillment of the condition that at least one whole time qualified teacher in each subject proposed to be introduced must be appointed by competent authority before classes are started. It was further conveyed that the council was not in a position to accord permission to the school to start H.S. 1st year class unless the subject teachers were duly appointed by the competent authority. A request was made to apprise the council as to whether appointments had already been made. 8. After the aforesaid letter dated 28.3.2001, the authority of the school sent the list of teachers already appointed. Thus, in the affidavit, it was the case of the respondents that since the appellants were duly appointed facilitating necessary permission for opening the H.S. classes, they were entitled to continue in their services. 9. 8. After the aforesaid letter dated 28.3.2001, the authority of the school sent the list of teachers already appointed. Thus, in the affidavit, it was the case of the respondents that since the appellants were duly appointed facilitating necessary permission for opening the H.S. classes, they were entitled to continue in their services. 9. The learned Single Judge by the impugned judgment and order dated 7.4.2004 has held that since the school was a provincialised one, the rules relating to appointment, i.e., Assam Secondary Education (Provincialisation) Service Rules, 1982 ought to have been followed towards appointment of the appellants. It has been held that since the appointments were not made following the procedure prescribed under the rules, the appointments of the appellants were bad in law. The learned Single Judge issued direction for making fresh appointments, resultant effect of which is the dispensation of the services of the appellants, who were appointed in 1998. 10. We have heard Mr. A.M. Buzarbaruah, learned Counsel for the appellants as well as Mr. V.M. Thomas, learned Standing Counsel, Education Department. We have also heard Mr. I. Hussain, learned Counsel representing the respondents/writ petitioners. We have given our anxious consideration to the submissions made by the learned Counsel as well as the materials on record. 11. The only grievance raised in the writ petition was that the impugned appointments were made without any advertisement and that the appellants were appointed through backdoor in violation of the laid down norms for such appointment. In the counter affidavit filed by the appellants, the copy of the advertisement dated 14.7.1996 was duly enclosed. It will have to be born in mind that though the High School was a provincialised one, but so far as the Higher Secondary section and/or classes are concerned, the same was at the venture stage and thus, any appointment made in respect of the said section and/or classes, the rules of recruitment, i.e., the Assam Secondary Education (Provincialisation) Service Rules, 1982 was not applicable. In fact, that was also not the contention of the respondents/petitioners in their writ petition. 12. In paragraph 4 of the writ petition, the petitioners have stated that they having come to know that the school would be upgraded to Higher Secondary School, they alongwith some other similarly situated persons were expecting advertisement to be issued for filling up the posts pertaining to Higher Secondary section. 12. In paragraph 4 of the writ petition, the petitioners have stated that they having come to know that the school would be upgraded to Higher Secondary School, they alongwith some other similarly situated persons were expecting advertisement to be issued for filling up the posts pertaining to Higher Secondary section. While the appellants duly responded to the advertisement issued by the Managing Committee of the school, the respondents/writ petitioners did not do so. In the general meeting held in respect of the school on 11.5.1998, the matter relating to upgradation of the school to that of Higher Secondary level was discussed. In that meeting, the Executive Committee of the school was also constituted with the further decision to appoint Subject Teachers. 13. The aforesaid meeting dated 11.5.1998 was followed by the Executive Committee meeting held on 27.5.1998 and in the meeting, upon a reference to the aforesaid advertisement, decided to complete the selection process. Thereafter, another Executive Committee meeting was held on 9.6.1998 in which the select list submitted by the Selection Committee was discussed. After such discussion, necessary approval was accorded for appointment of the appellants as Subject Teachers in various subjects. The school authority pursued the matter relating to opening of the Higher Secondary section, although in the meantime, the appellants were appointed. It will be pertinent to mention here that even in the year 1996 (24.9.1996), the Assam Higher Secondary Education Council asked the school authority to deposit fee of Rs. 750 by way of demand draft alongwith full particulars of the school in the prescribed proforma. By Annexure-H letter dated 28.2.2001 annexed to the counter affidavit, the Government of Assam in the Education Department conveyed to the Director of Secondary Education regarding approval of the Government towards upgradation of the school to that of Higher Secondary School without, however, providing any posts. That was followed by Annexure-I letter dated 28.3.2001 conveying the decision of the council about according permission to start H.S. Classes on fulfillment of the condition that at least one whole time qualified teacher in each subject must be appointed. 14. From the above, it will be seen that it was a condition precedent to appoint teachers for the Higher Secondary classes towards consideration of the proposal for upgradation of the school to that of Higher Secondary school. The school authority acted in that direction since 1996 and observed all the formalities. 14. From the above, it will be seen that it was a condition precedent to appoint teachers for the Higher Secondary classes towards consideration of the proposal for upgradation of the school to that of Higher Secondary school. The school authority acted in that direction since 1996 and observed all the formalities. Eventually, on fulfilment of the conditions, most important of which was the appointment of teachers in each subject, the Government accorded permission. The appellants were appointed towards fulfilment of that condition. The appointment of the appellants was never opposed by any of the authorities. However, it was only after the permission was accorded to open the Higher Secondary classes, the writ petitioners filed the writ petition on 24.8.2001 challenging the very appointment of the appellants made way back in 1998. It is not the case of the petitioners that they were not aware of the appointment of the appellants in the year 1998. 15. During the course of hearing, learned Counsel for the respondents/writ petitioners argued that as per the provisions of the aforesaid regulation of 1989, the school authority was to follow the procedure laid down towards opening Higher Secondary classes. The said regulation lays down the procedure for establishing a new Higher Secondary school and so also for upgrading and/or starting additional stream or subject. As per the regulation, application for such upgradation is to be submitted by the Headmaster/Principal of the school to the State Government and the Sponsor shall be the Managing Committee of the school unlike proposed new Higher Secondary school in which case the sponsor shall be the State Government. Such application is to be accompanied by prescribed fee. Such application is to indicate the fulfillment of initial requirements as detailed in Appendix-I to the regulation. 16. As per the Appendix, there must be public demand on real need with adoption of resolution, etc. The school authority is permitted to appoint regular teaching staff on ad hoc basis until regular appointments are made in the corresponding posts. As per the regulation, there must be Subject Teachers in each section and other office staff. In the instant case, the council insisted upon the school authority for appointment of Subject Teachers and in fact the same was made the condition precedent for according permission to open the Higher Secondary section. As per the regulation, there must be Subject Teachers in each section and other office staff. In the instant case, the council insisted upon the school authority for appointment of Subject Teachers and in fact the same was made the condition precedent for according permission to open the Higher Secondary section. If the school authority acted towards fulfillment of the said condition by way of appointing the appellants after issuing necessary advertisement, no fault can be attributed towards such appointment. It is the common knowledge and the prevalent practice and procedure being followed that the Managing Committee of a venture school is empowered to make appointment of teachers and other office staff and it is such teachers and office staff, who are favoured with the benefit of provincialisation of their services in the event of State Government deciding to provincialise the services. 17. The appointments of the appellants have been interfered with by the learned Single Judge, primarily on the ground that the aforesaid Rule of 1982 was not followed while they were appointed. The said rules were applicable in case of appointment in provincialised High and Higher Secondary School and not in respect of appointment relating to classes still at the venture stage. The recruitment procedure, about which the learned Single Judge has mentioned in the impugned judgment and order pertain to appointment in provincialised schools. In the instant case, admittedly, the Higher Secondary section and/or classes is still at the venture stage. Only the permission to open classes has been granted without sanctioning any posts as will be evident from Annexure-H letter dated 28.2.2001. 18. What has emerged from the aforesaid position is that the school was allowed to start Higher Secondary classes without sanctioning any post with the condition that qualified teachers were already appointed against each subject. It was towards fulfillment of that end, the appellants were appointed. Further, when there was no posts sanctioned, there was no question of following the recruitment procedure laid down in the rules of 1982 which was applicable for making appointment in provincialised school and not in respect of section and/or classes still at the venture stage. Thus in our considered view, the teamed Single Judge fell in error in interfering with the appointments of the appellants applying the test of 1982 Rules while in the given facts and circumstances the said rules were not at all applicable. Thus in our considered view, the teamed Single Judge fell in error in interfering with the appointments of the appellants applying the test of 1982 Rules while in the given facts and circumstances the said rules were not at all applicable. The Regulation on which the learned Counsel for the respondents/writ petitioners has placed reliance is also of no help to their case. 19. For all aforesaid reasons, we are inclined to interfere with the impugned judgment and order dated 7.4.2004 passed by the learned Single Judge in WP(C) No. 6067/2001. Consequently, the Writ Appeal is allowed and resultantly the Writ Petition stands dismissed. The appellants will be entitled to continue with their engagements till such time regular appointments are made in the corresponding posts in terms of Clause 6 of Appendix-II of the Regulation. 20. Writ appeal is allowed. There shall be no order as to costs. Appeal allowed.