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2012 DIGILAW 9 (GAU)

Rukiya Khatun v. State of Assam

2012-01-04

BIPLAB KUMAR SHARMA

body2012
JUDGMENT B.K. Sharma, J. 1. Heard Mr. J.I. Borbhuyan, learned counsel for the petitioners in W.P. (C) No. 5277/2010 as well as Mr. I.H. Saikia, learned counsel for the petitioners in W.P. (C) No. 3598/2010. I have also heard Mr. Sinha, learned SC, BTC. Both the writ petitions being on the same set of facts raising the same grievance, they have been heard together and are being disposed of by this common order. 2. According to the petitioners, they were regularly appointed as Assistant Teacher of L.P. Schools way back in 2001 (12.03.2001), but have not been paid their monthly salary. The prayer in the writ petition is to issue a direction to regularize their services and also to set aside and quash the Annexures-10 and 11 orders dated 26.052009 and 02.03.2009 by which it was conveyed that the very appointment of the petitioners were illegal. If the petitioners were regularly appointed, it is not understood as to why the petitioners have made a prayer for regularization of their services. 3. In the counter affidavit filed by the BTC, it has been stated that the petitioners were not appointed pursuant to any regular recruitment process and that they were illegally appointed against non-sanctioned and non-existent posts. It has also been stated that the petitioners were appointed without any approval of the BTC authority (erstwhile BAC) as well as the State Govt. The respondents have also placed reliance on the decision of the Apex Court reported in (2007) 5 SCC 65 , State of Manipur v. Y. Token Singh, in which the Apex Court held that if the claim is based on illegal appointment, the appointees are not entitled to receive any salary for the period during which they rendered work on the basis of such illegal appointment. 4. Thus in a nutshell, the stand of the BTC authority is that the appointments are non est and consequently there is no obligation on the part of the BTC authority to pay salary to the petitioners. 5. The petitioners have placed reliance on the judgment and order dated 21.06.2005 passed by this Court in a batch of writ petitions, first one being W.P. (C) No. 1118/2005, Bhabanai Choudhury & other v. State of Assam and other. The said case was not involving the present petitioners, although the petitioners have contended that the subject matter involved was one and the same. 6. The said case was not involving the present petitioners, although the petitioners have contended that the subject matter involved was one and the same. 6. By the said judgment a direction was issued to consider the case of the petitioners sympathetically for payment of salary. It was also provided that no arrear salary would be payable unless necessary budget allocation was made by the State Govt. Following the said decision, the petitioners involved in this writ petition approached this Court by filing two separate writ petitions, which are W.P. (C) No. 6394/2007 and W.P. (C) No. 8678/2005. While W.P. (C) No. 8678/2007 was disposed of providing that the case of the petitioners would be governed by the judgment dated 21.06.2005 and that payment of arrear salary would be considered only on release of the fund by the Govt., W.P. (C) No. 6394/2007 was disposed of with the same direction with the condition that the petitioners will have to come within the stipulated number of posts quantified as 355. 7. According to the BTC authorities, the petitioners did not come within the purview of said 355 position/posts but they were appointed far in excess of the sanctioned and existing posts. 8. I have considered the entire materials including the submissions advanced by the learned counsel for the parties. According to the petitioners there was an employment notice dated 27.02.2001. Annexure-1 is typed copy of the purported employment notice issued by the In-Charge D.I. of Schools, Bongaigaon. By the said employment notice applications were invited from the intending candidates so as to reach the office of the D.I. of Schools on or before 05.03.2001. The notice itself specified the dates of interview as 06.03.2001 and 07.03.2001. Thus it was highly improbable for the authority to conduct selection on the very next date of receipt of the applications without scrutinizing the same. That apart, the language employed in the notice itself depicts lack of authenticity of the same. Not only that, after conducting the selection on 06.03.2001 and 07.03.2001 the select list was published on 09.03.2001 by the purported selection committee in which even the places of employment were indicated against the names of the successful candidates. It is not understood as to how the selection committee could give appointment to the selected candidates and that too, indicating the schools of posting. 9. It is not understood as to how the selection committee could give appointment to the selected candidates and that too, indicating the schools of posting. 9. It will be pertinent to mention here that the very appointment orders issued in favour of the petitioners depict that they were not selected candidates. The appointments were made subject to discharge without notice and selection of "Sub-Divisional Advisory Board for Elementary Education, BAC." If the petitioners were regularly selected candidates, there was no necessity for their further selection by the Sub-Division Advisory Board for Elementary Education, BAC. It is in this context, the stand of the BAC/BTC in the counter affidavit that no approval of the authorities of the BTC/BAC was obtained, will have to be understood. The Apex Court in Mukesh Kumar Badoni v. State of Punjab, reported in (2008) 4 SCC 446, dealing the question of approval of competent authority in the matter of appointment field that unless express approval of the competent authority is granted, the appointee cannot be permitted to continue in services. 10. As per the requirement of the rules, the selections are to be conducted by the Sub-Divisional Advisory Board for Elementary Education for each district. In the instant case the employment notice was issued by the of Schools and thereafter on the very next date interview was conducted and the select list was published immediately thereafter. 11. Above apart, the stand of the respondents that the petitioners were appointed without any sanctioned posts, has not been denied by the petitioners involved in W.P. (C) No. 5277/2010. Mr. J.I. Borbhuyan, learned counsel for the petitioners in W.P. (C) No. 5277/2010 has produced a copy of the letter dated 24.11.2011 addressed to the petitioners directing them to file rejoinder affidavit to the affidavit in opposition filed by the BTC. However, the petitioners have chosen not to file any such rejoinder affidavit. 12. The petitioner having not controverted the stand of the BTC, it will have to be understood that they have admitted the stand of the BTC. In so far as W.P. (C) No. 3598/2010 is concerned, the petitioners have filed rejoinder affidavit to tile affidavit in opposition filed by the BTC. In the said rejoinder affidavit, it has been stated that they were selected by the Sub-Divisional Advisory Board for Elementary Education. In so far as W.P. (C) No. 3598/2010 is concerned, the petitioners have filed rejoinder affidavit to tile affidavit in opposition filed by the BTC. In the said rejoinder affidavit, it has been stated that they were selected by the Sub-Divisional Advisory Board for Elementary Education. If that be so, it is not understood as to why they have accepted the appointment orders which stipulated that such appointments were subject to selection of Sub-Divisional Advisory Board for Elementary Education. However, the petitioners have not produced any documents pertaining to their candidatures and call letters etc. 13. Above being the factual position of the matter, I have no hesitation to hold that the petitioners are the product of illegal appointments and consequently they cannot claim payment of salary. Both the writ petitions are dismissed. However, there shall be no order as to costs. Petition dismissed.