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2014 DIGILAW 547 (GAU)

Mashraf Hussain Laskar v. State of Assam

2014-05-20

TINLIANTHANG VAIPHEI

body2014
JUDGMENT Tinlianthang Vaiphei, J. 1. In this writ petition, the petitioners are claiming release of their arrear salaries, arrear allowances and current salaries and allowances from 2001 till date. The material facts of the case are that pursuant to the employment notice issued in sometime in the month of December, 1996 by the Director of Elementary Education, Assam (respondent 4), the Deputy Inspector of Schools, Silchar, Cachar District (respondent 6) invited applications from interested persons in the prescribed form for filling up vacancies of Elementary School teachers which were likely to occur in his establishment in that year. The petitioners herein numbering 115 of them, among others, applied for the posts in the prescribed form. The case of the petitioners is that they were eventually selected for interview and had duly appeared before the erstwhile Sub-Divisional Level Advisory Board for the interview. By the early 2000, the Sub-Divisional Level Advisory Board constituted for conducting the interview had finalized the list of successful candidates, which were then placed before the Sub-Divisional Level Advisory Board for Elementary Education for approval. The select list was thereafter approved by the Board. The names of all the petitioners figured in this select list. By the end of 2000 and 2001, the respondent No. 6 made adjustments/appointments against the available posts of Assistant Teacher on the basis of the select list. All the petitioners were adjusted/appointed to the substantive available vacant posts of Assistant Teachers by the respondent No. 6 at various provincialized L.P. Schools by issuing the appointment letters/memos. Since then, the petitioners have been continuously working as Assistant Teacher till date without any break, yet none of them have been paid any salary till now. Aggrieved by this, they filed several writ petitions before this Court, which directed the respondent No. 4 to make enquiry and pass appropriate orders for payment of salaries to the petitioners, if they were found to be entitled on the basis of such enquiry. Thereafter, on the pain of facing punishment for contempt of court, the Government ordered Magisterial enquiry by the Deputy Commissioner, Cachar on the appointment of the petitioners. The Deputy Commissioner, Cachar after the enquiry submitted his report to the State-respondents wherein he found that the appointment of 116 Assistant Teachers were genuine, and they were regularly attending their schools regularly. According to the petitioners, they are among these 116 Assistant Teachers. The Deputy Commissioner, Cachar after the enquiry submitted his report to the State-respondents wherein he found that the appointment of 116 Assistant Teachers were genuine, and they were regularly attending their schools regularly. According to the petitioners, they are among these 116 Assistant Teachers. Out of the 116 Assistant Teachers named in that report, two Assistant Teachers, who are not the present petitioners, filed WP (C) No. 4549/2003 and WP (C) No. 4550/2003 for release of their salaries and for regularization of their services. The Deputy Commissioner, Cachar on 21.6.2004 wrote to the State Government for releasing the salaries of 180 L.P. School Teachers in compliance with the order of this Court and on the basis of the information submitted by the Circle Officer, Sadar, Silchar. The petitioners are among these 180 LP School Teachers. 2. It is also the case of the petitioners that the District Elementary Education Officer, Cachar (respondent 5) also wrote to the State Government on 26.12.2005 regarding release of the salaries of the 116 LP School Assistant Teachers named in the said report of the D.C., Cachar dated 11.7.2002 to comply with the order of this Court. The State Government on 19.1.2006 wrote back by requesting the respondent No. 5 to make a proposal in duly filled up SIU format for regularization and release of salary of the said 116 LP School Teachers. On 21.1.2006, the District Level Selection Committee, Silchar passed a resolution to utilize the services of 116 LP School Teachers to fill up an equal number of vacant posts and regularize their services in compliance with the order of this Court. The respondent No. 5 thereafter sent the proposal as asked for in the format of Finance SIU along with the list of 116 LP School Assistant Teachers. The State Government, however, asked the respondent No. 4 to make verification report regarding the genuineness of the posts and give his comment regarding the release of the salaries of the petitioners. To cut the long story short, the respondent No. 4 wrote to the State Government on 20-6-2008 vouching for the genuineness of the appointments of the petitioners and their regular attendance in the concerned schools so that their salaries could be released. In the meantime, WP (C) No. 4549/2003 and WP (C) No. 455/2003 were dismissed by this Court. The two writ petitioners filed W.A. No. 321/2008 before the Division Bench. In the meantime, WP (C) No. 4549/2003 and WP (C) No. 455/2003 were dismissed by this Court. The two writ petitioners filed W.A. No. 321/2008 before the Division Bench. The writ appeal was allowed by the Division Bench on 29-4-2010 by directing the State-respondents to pay the salaries of the two appellants within four weeks. The Division Bench, however, rejected the prayer for regularization of the services of the said appellants. It is the contention of the petitioners that as they are similarly situated, similar direction on payment of salaries should be passed in this case also. 3. The writ petition is opposed by the respondent authorities who have filed their affidavit-in-opposition through the Director of Elementary Education, Assam (respondent 4). The case of the answering respondent is that the petitioners were appointed as Honorary Teachers in their respective Schools by the concerned Managing Committees of the respective Schools after their provincialization and that under the provisions of the Assam Elementary Education (Provincialization) Rules, 1977 ("the Rules"), the Managing Committees have no power to make such appointment. It is the case of the answering respondent that in Jahangir Alam vs. State of Assam, 2003 (3) GLT 544 it was held that after provincialization of a venture institution, the Managing Committee of such an institution cannot make such an appointment nor can such appointee claim regularization of his appointment. According to the answering respondent, as the appointments of the petitioners were made without authority of law and against non-sanctioned posts, no adjustment or regularization is tenable in law: no merit list was ever prepared by the concerned Sub-Divisional Level Selection Board as contemplated by the Rules. It is the further case of the answering respondent that during 1999-2000, particularly, since 6.12.1999, there had been a ban on recruitment in the Government Departments when the State Level Empowered Committee (SLEC) under the Finance Department was constituted. Under this dispensation, no advertisement, regularization, adjustment, etc. to any post could be made by any Department without the prior approval of the SLEC. Under this dispensation, no advertisement, regularization, adjustment, etc. to any post could be made by any Department without the prior approval of the SLEC. The Secretary to the Government of Assam in the Education Department vide the WT message under memo No. B(3) S. 119/2001 dated 8.3.2001 had informed all District Elementary Education Officers/Deputy Inspector of Schools that the Government had decided to lift the ban only for the purpose of filling up the newly created posts under the Operation Black Board (OBB) Scheme of one year under the Central Government Sponsored Scheme. 4. It is also the case of the answering respondent that since December, 1999, the State-respondents have stopped any new advertisement for filling up of regular vacancies in any provincialized schools: they never have instructed the Education Department to direct the District authorities and Sub-Divisional Level Advisory Board to prepare any select list for filling up any vacant sanctioned posts. According to the answering respondent, it transpire that some cyclostyled appointment orders were issued by the Deputy Inspector of Schools (Mr. B.C. Sharma) on various dates i.e. on 22.2.2001, 25.2.2001 and 28.2.2001 during the said period of ban on appointment obviously for his personal gain and without following the due process of selection prescribed by the Rules. The appointment orders relied upon by the petitioners are not valid in law: no merit list was ever prepared by the District Level Selection Committee as revealed by the records available in the Office of the District Elementary Education Officer, Cachar, Silchar inasmuch as such preparation would be a departure from Rule 3(1) of the Rules and cannot be acted upon. It is, therefore, contended by the answering respondent that inasmuch as the appointments of the petitioners are illegal and without any sanctioned posts, the question of payment of salaries to them does not arise, and the writ petition is, therefore, liable to be dismissed. 5. Unfolding his submissions, Mr. K.K. Bhattacharjee, the learned counsel for the petitioners, maintains that the petitioners were selected and appointed by the Government of Assam in accordance with the Rules, and their services were utilized by them for more than 12 years since 2001 without paying any salary to them: non-payment of their salaries under such circumstances will amount to violation of Article 21 of the Constitution and the Indian Contract Act, 1872. According to the learned counsel, all the petitioners are the only bread earners in their family, who are now made to suffer untold miseries and hardships by denying them their past and current salaries. It is the contention of the learned counsel that non-consideration of the grievances of the petitioners is most illegal and arbitrary, and they have already exhausted all the remedies available to them under the law and, as such, this is a fit case for invoking the extraordinary and equity jurisdiction of this Court under Article 226of the Constitution. To fortify his submissions, the learned counsel relies on the following decisions of the Apex Court: State of Karnataka vs. Uma Devi & Others, (2006) 4 SCC 1 (paras 24 and 55) and Govt. of A.R. & Others vs. K. Brahmanandam & Others, (2008) 5 SCC 241. 6. Refuting the contentions of the learned counsel for the petitioners, Mr. D. Saikia, the learned Additional Advocate General, Assam, who is assisted by Mr. J. Abedin, the learned standing counsel for Education Department, contends that when the appointments of the petitioners are vague, without verification of particulars, in violation of Government directives and without selection and without sanctioned posts, the question of regularizing their services or of paying their salaries does not arise. It is the contention of the learned AAG that the petitioners have miserably failed to produce any evidence to show that they had actually participated in the selection process made in accordance with the Rules or that the posts claimed by them were duly advertised or that there were select lists showing their merit positions. He further submits that as the petitioners were obviously appointed by the Managing Committee of the Schools after provincialization of their Schools, that too, without the knowledge or approval of the State-respondents and in violation of the recruitment rules, the mere continuance of their services does not confer upon them the right to claim salaries, past or current or both: the State cannot be burdened with the responsibility for payment of salary to the petitioners, whose appointments were demonstrably a nullity and against the due process of law. He draws support for his contentions from the following decisions of the Apex Court: MP State COOP Bank Ltd., Bhopal vs. Nanuram Yadav, (2007) 8 SCC 264 , State of Manipur vs. Y. Token Singh, (2007) 5 SCC 66, State of Orissa vs. Mamta Mohanta, (2011) 3 SCC 436 , Surinder Prasad Timari vs. UP Rajya Krishi Utpadan Mandi Parishad & Others, (2006) 7 SCC 684 , Sudendu Mohan Talukdar vs. State of Assam, 2006 (2) GLT 216. He, therefore, strenuously urges this Court to dismiss the writ petition. 7. The various submissions made by the learned counsel appearing for the rival parties have been given my thoughtful consideration. Perhaps aware of the defects in their appointments, the petitioners have wisely refrained from claiming regularization of their services. Even for the purpose of claiming their past salaries, in my opinion, I have no hesitation to hold that the petitioners are not entitled to them inasmuch as they are merely the beneficiaries of cyclostyled/fake appointment orders. A number of documents are annexed by them to the writ petition, which runs into 252 pages, but these documents are conspicuous by the absence of any copy of the advertisement inviting applications for filling up the post of Assistant Teachers allegedly held by them, of the select/merit list prepared in accordance with the extant rules or of the documents showing the existence of sanctioned posts for the same. Ass already noticed, this Court in Jahangir Alam) (supra) held that after provincialization, the Managing Committee of a venture institution cannot make such an appointment nor can such appointee claim regularization of his appointment. 8. That the Managing Committee of a venture institution cannot make such an appointment is evident from Rule 3(i)(a) of the Rules, which, read with Rule 3(iv), empower the Selection Committee constituted thereunder to make the recruitment. Rule 7 deals with the powers and function of the Managing Committee of the provincialized schools, but the recruitment of teaching staff of such schools is not one of them. This is inevitable in view of the fact that once the venture school is provincialized, the liability for payment of the salary and allowances of the teaching staff transferred to the State-respondents. This is inevitable in view of the fact that once the venture school is provincialized, the liability for payment of the salary and allowances of the teaching staff transferred to the State-respondents. In spite of this, if the Managing Committee proceeded to appoint the petitioners, the State-respondents are well within their right not to pay the salary of the teaching staff appointed by the Managing Committee in contravention of Rule 3 of the Rules. In fact, the petitioners can claim their salary only from the Managing Committees. Time and again, the Apex Court has held that illegal appointees cannot claim salary. If any authority is needed, I may conveniently refer to the observations of the Apex Court in K. Brahmanandam case (supra), which read thus: "14. The liability of the State to pay salary to a teacher appointed in the recognised schools would arise provided the provisions of the statutory rules are complied with, subject to just exception. The right to claim salary must arise under a contract or a statute. If such a right arises under a contract between the appointee and the institution, only the latter would be liable therefore. Its right in certain situation to claim reimbursement of such salary from the State would arise only in terms of the law as was prevailing at the relevant time. If the State in terms of the statute is not liable to pay the salary to the teachers, no legal right accrues in favour of those who had been appointed in violation of mandatory provisions of the statute or statutory rules." For the reasons stated in the foregoing, there is no merit in this writ petition, which is hereby dismissed. The parties are, however, directed to bear their respective costs. Petition dismissed.