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2008 DIGILAW 860 (GAU)

Musaraf Hussain Laskar v. State of Assam

2008-12-19

AMITAVA ROY

body2008
JUDGMENT Amitava Roy, J. 1. The Petitioners seek annulment of the resolution dated 22.11.2006 of the District Level Selection Committee, Cachar, recalling its earlier decision for utilization of 116 posts of L.P. School Teachers to accommodate persons in compliance of the orders of this Court as well as the consequential letter dated 13.12.2006 issued by the District Level Education Officer, Cachar District, Silchar. A writ of mandamus has also been prayed for directing the Respondents to adjust their services against the aforementioned posts. 2. I have heard Mr. D.K. Das, learned Counsel for the Petitioners and Mr. U.K. Goswami, learned Standing Counsel, Education Department, for the Respondents. Also heard Mr. Sarma, learned Counsel for the Respondent No. 7. 3. The Petitioners pleaded version in short is that they are qualified to be appointed as Assistant Teachers in the L.P. Schools of the State. They having applied for such appointments, the Managing Committees of the Schools in which vacancies existed appointed them on honorary basis with the prior approval of the District Elementary Education Officer, Cachar. This, the Petitioners asserted, was by various orders passed between 7.2.1994 and 12.3.1994. Accordingly the Petitioners joined their respective posts and started rendering their services on honorary basis. 4. The Deputy Inspector of Schools, Cachar, subsequent thereto by orders dated 22.2.2001 appointed them in the aforementioned capacity against regular substantive capacities in various L.P. Schools as set out in the petition. Their grievance is that though they had been rendering devoted and unstinted services their salary was not paid inspite of several representations. They, therefore, approached this Court with W.P. (C) 5088/2001 which was disposed of on 27.9.2001 requiring the Director of Elementary Education, Assam, to enquire into the issue and pass appropriate orders for payment of salary to them in case they were found entitled thereto in law. As the Respondents were found failing to comply with the aforementioned direction, the Petitioners instituted a contempt proceeding being Contempt Case No. 84/2002 in which it was contended on behalf of the Respondents that the appointments of the petitioners were not as per law and that therefore they were not entitled to their salary. 5. As this was sought to be contended based on two communications dated 6.4.2002 and 30.5.2002 of the Deputy Inspector of Schools, Silchar, and Director of Elementary Education, Assam, respectively, the Petitioners impugned the same in W.P. (C) 3747/2002. 5. As this was sought to be contended based on two communications dated 6.4.2002 and 30.5.2002 of the Deputy Inspector of Schools, Silchar, and Director of Elementary Education, Assam, respectively, the Petitioners impugned the same in W.P. (C) 3747/2002. This Court on 14.7.2002 while issuing rule in the interim restrained the Respondents from disturbing their service conditions until further orders. The Respondents were thereby required to allow the Petitioners to continue in service and pay their monthly salary. 6. The Petitioners have pleaded that meanwhile a magisterial enquiry was ordered on the issue of appointment of Petitioners and others and in the report dated 16.12.2002 submitted 116 such teachers were identified including the Petitioners. 7. In its meeting dated 21.1.2006 of the District Level Selection Committee, Cachar, constituted by the Government it was inter alia resolved that out of 704 posts earmarked for the L.P Schools of the State, 116 therefrom be utilized vis-a-vis the teachers identified in the enquiry in compliance of the orders of this Court. As a follow up step, the District Level Education Officer, Cachar, forwarded the names and particulars of the said 116 L.P. School Teachers for approval as well as release of the salary. While the matter rested at that the District Level Selection Board, Cachar, in its meeting held on 22.11.2006 adopted the impugned resolution. 8. The Education Department in its affidavit affirmed by the Under Secretary to the Government of Assam, Education (Elementary) Department has dismissed the appointment of the Petitioners by the Managing Committees of their Schools to be illegal and dehors the relevant Rules i.e. the Assam Elementary Education (Provincialisation) Rules, 1977 (hereafter referred to as the Rules). It has been asserted that after the provincialisation of the said schools, the Managing Committees thereafter had no authority to appoint the Petitioners as honorary teachers by disregarding the Rules. It was also alleged that the appointments of the Petitioners had been against non-existent posts. The Petitioners' claim for salary and regularization of service was therefore dismissed as untenable and misconceived. 9. Reiterating the above stand in sub-stance, the Finance Department has further contended that at the relevant time the approval of the State Level Empowered Committee was an essential precondition for valid appointment which had not been obtained. 10. Mr. The Petitioners' claim for salary and regularization of service was therefore dismissed as untenable and misconceived. 9. Reiterating the above stand in sub-stance, the Finance Department has further contended that at the relevant time the approval of the State Level Empowered Committee was an essential precondition for valid appointment which had not been obtained. 10. Mr. Das has argued that the initial appointment of the Petitioners having been made with the approval of the District Elementary Education Officer, Cachar, and further they having been duly appointed thereafter by the Deputy Inspector of Schools against vacant sanctioned posts they are entitled in law to the salary against the Services rendered by them and, therefore, the impugned resolution as well as the consequential steps in connection therewith are liable to be adjudged illegal, null and void. This Court by order dated 14.6.2002 passed in W.P. (C) 3747/2002 having required the Respondents to retain the Petitioners in service and release their salary, the State action assailed is also in contumacious disregard thereof, he urged. The learned Counsel further argued that the Petitioners having been identified to be accommodated for regularization against available vacant posts of L.P. School teachers of the State in terms of the earlier resolution of the District Level Selection Committee, Cachar, the impugned resolution in supersession thereof and that too on extraneous considerations is palpably illegal, arbitrary and unfair and is liable to be interfered with in the interest of justice. As the Petitioners are academically and otherwise qualified for the posts in which they are positioned at present, a writ of mandamus ought to be issued directing regularization of their services thereat and release of their salary, arrear and current, he pleaded. In the alternative, Mr. Das contended that in the facts and circumstances of the case, the Managing Committees of the Schools be required to release the salary of the Petitioners. To buttress his arguments Mr. Das has placed his reliance on the decision of the Apex Court in Government of A.P. v. K. Brahmanandam (2008) 5 SCC 241. 11. The learned Counsel for the Respondents in unison have urged that as the initial entry of the Petitioners is conspicuously illegal being in infraction of the Rules, their claimed continuance in the posts per se would not endow them with any right to salary or regularization of their services. 11. The learned Counsel for the Respondents in unison have urged that as the initial entry of the Petitioners is conspicuously illegal being in infraction of the Rules, their claimed continuance in the posts per se would not endow them with any right to salary or regularization of their services. The resolution dated 21.1.2006 of the District Level Selection Committee, Cachar, deciding to adjust 116 L.P. School Teachers of the State against the posts available, in the above premise, is wholly inconsequential, they urged. To reinforce their contentions, the learned Counsel has placed reliance on a decision of the Apex Court in Nazira Begum Laskar v. State of Assam (2001) 1 SCC 143 and of this Court in Jahangir Alam v. State of Assam 2003 (3) GLT 544. 12. I have extended my due consideration to the rival pleadings and the arguments founded thereon. That the Petitioners had been initially recruited by the Managing Committees of their Schools subsequent to the provincialisation thereof is not in dispute. There is no wrangle at the bar either that the appointments in the posts involved is governed by the Rules which in categorical and emphatic terms lay down the procedure to be observed therefor. It is not the case of the Petitioners that any process had been undertaken in terms of the Rules fructifying in their appointments. Rule 3 of the Rules, which outlines the method of recruitment, does not assign any role of the Managing Committee of such a school in the matter of appointment to the post involved. The approval of the District Elementary Education Officer, Cachar, following which the Petitioners claim that they were appointed by the Managing Committee is also of no significance whatsoever no such contingency being contemplated by Rule 3. 13. This Court in Jahangir Alam and Ors. (supra), while dwelling on the issue of any legal or equitable right of honorary teachers appointed by Managing Committee of provincialised schools for their regularization had held in the negative. It was further held that for the appointments made in departure from the Rules, any service rendered on the basis thereof cannot cast any obligation on the State to regularize the same. Viewed from the perspective of legitimate expectation as well it was propounded that any representation or action on which such expectation is formed must be by an authority competent and such representation cannot be contrary to law. Viewed from the perspective of legitimate expectation as well it was propounded that any representation or action on which such expectation is formed must be by an authority competent and such representation cannot be contrary to law. It was concluded that the approval granted in the case of some of the Petitioners therein and the recommendations for their regularization being not authorized by any provisions of law involved, the doctrine of legitimate expectation was of no avail. 14. Having regard to the contextual facts, I do not feel persuaded to take a different view. The order dated 22.2.2001 of the Deputy Inspector of Schools adjusting the Petitioners against existing vacant posts in view of the above background does not validate the Petitioners' entry in the service so as to ripen in any right to claim regularization. 15. Noticeably as on date there is no order of this Court directing regularization of the Petitioners' services. By the order dated 27.9.2001 passed in W.P. (C) 5088/2001, the concerned State authority was required to enquire into their claim for salary to be disbursed only if found entitled thereto in law. They were however by an interim order dated14.6.2002 passed in W.P. (C) 3747/2002 allowed to continue in their respective posts and the Respondents were directed to pay their monthly salary. As the order would reveal the arrangement devised thereby was subject to further orders of this Court. 16. Though the resolution dated 21.1.2006 of the District Level Selection Committee, Cachar, discloses a decision to fill up 116 vacant L.P. School Teachers of the State in compliance of the orders of this Court and that in the list appended to the letter dated 8.2.2006 of the District Elementary Education Officer, Cachar, the names of the Petitioners figure therein, in the considered opinion of this Court, in the face of the incurable vitiation, in the Petitioners initial recruitment this would by no means act as an estoppel against the Respondents to take a view in alignment with the mandate of the Rules. Viewed in this perspective, the impugned resolution dated 22.11.2006 of the District Level Selection Committee, Cachar, cannot be repudiated as illegal and unsustainable in law. Viewed in this perspective, the impugned resolution dated 22.11.2006 of the District Level Selection Committee, Cachar, cannot be repudiated as illegal and unsustainable in law. Its resolution dated 21.1.2006 and the letter dated 8.2.2006 forwarding the names of the Petitioners and others included within the 116 incumbents cannot, in the teeth of the Rules, generate any legitimate expectation in them to be applied against the Respondents. Admittedly the Respondents have taken an unequivocal stand that the Petitioners' appointments are illegal as far back as in 2002. The impugned action, in the facts and circumstances of the case, cannot be denounced to be in violation of any order of this Court as well. 17. The Apex Court in Nazira Begum, (supra) while responding to the plea of Appellants appointed as Assistant Teachers of the Primary Schools of the State allegedly de hors the Rules and against non-existent posts held with reference to an enquiry report demonstrating such failing held that such appointments neither conferred any right on the appointee nor entitled them to any equitable relief from any Court. It also recounted its decision in Ashwani kumar v. State of Bihar (1997) 2 SCC 1 that initial appointments being in contrary to statutory rules, no right would accrue on that score. The Petitioners plea for regularization and salary for the services rendered by them vis-a-vis the State therefore was not sustained. 18. The decision of the Apex Court in Government of Arunachal Pradesh v. K. Brahmanandam in the present facts and circumstances is also of no avail, the Managing Committees of the respective schools not having been impleaded in the instant proceeding. Significantly their Lordships in their rendering therein had observed that appointments made in violation of the mandatory provisions of a statute would be illegal and thus void. It was held that such an illegality cannot be ratified or regularized. It was pronounced in no uncertain terms that the liability of the State to pay salary to a teacher would arise provided the provision of the statutory Rules are complied with. Their Lordships held that right to claim salary must arise under a contract or under a statute. The principle of quasi contract applied in the reported decision requiring the school authority involved to pay the salary of the Respondent teachers was also held inapplicable to the State. Their Lordships held that right to claim salary must arise under a contract or under a statute. The principle of quasi contract applied in the reported decision requiring the school authority involved to pay the salary of the Respondent teachers was also held inapplicable to the State. On a totality of the considerations as hereinabove, I find no merit in the petition, which is accordingly rejected. No costs.