Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 1500 (GAU)

Md. Taizuddin Ahmed v. State of Assam

2015-12-08

MICHAEL ZOTHANKHUMA

body2015
JUDGMENT : Heard Mr. T.R. Sarma, learned counsel for the petitioner. Also heard Mr. U.K. Goswami, learned Standing Counsel, Secondary Education Department, appearing for the respondent Nos. 1, 2 and 3. 2. The learned counsel for the petitioner submits that the petitioner was appointed on 18.04.1992 as Assistant Teacher in Janata High School (Bihampur) in the scale of pay of Rs. 1357/- to Rs. 3,375/- per month vide order dated 18.04.1992, issued by the Inspector of Schools, NDC, Nalbari, Assam. The petitioner’s counsel submits that the petitioner was not given salary from the month of April, 2006 and he was not allowed to work in the school with effect from May, 2006. The petitioner’s counsel submits that on enquiry, the petitioner came to learn that the Inspector of School, NDC, Nalbari had written a letter dated 07.09.2006 to all Principals/Headmasters of High/Higher Secondary Schools, NDC, Nalbari stating that some of the head of institutions have not yet discontinued the services of honorary teachers in spite of repeated instructions issued. The letter dated 07.09.2006 directs the heads of institutions not to allow the services of honorary teachers to continue. 3. The petitioner’s counsel also submits that the Headmaster cum Secretary, Janata High School issued letter dated 11.12.2006 to the Inspector of Schools, NDC, Nalbari stating that the petitioner had been appointed by the Inspector of Schools on 18.04.1992 and had been serving from the date of joining in the said school till date. The learned counsel also states that the petitioner’s salary was stopped with effect from April 2006 as his post was not regularized and GP Fund number was not obtained. 4. The petitioner’s counsel submits that the petitioner was duly selected by the Selection Board and as he has been in service without any termination order being issued to him, the respondents cannot be allowed to stop his salary and not allow him to rejoin his work in the manner that has been done. The petitioner’s counsel submits that the petitioner was not given any notice before stoppage of salary. He accordingly prays that the respondent authorities should be directed to allow the petitioner to rejoin his service as a teacher and direct the authorities to pay his regular salary and allowances as per law with effect from April, 2006. 5. Mr. The petitioner’s counsel submits that the petitioner was not given any notice before stoppage of salary. He accordingly prays that the respondent authorities should be directed to allow the petitioner to rejoin his service as a teacher and direct the authorities to pay his regular salary and allowances as per law with effect from April, 2006. 5. Mr. U.K. Goswami, learned Standing Counsel, Secondary Education, Assam submits that a perusal of the appointment order of the petitioner makes it clear that the appointment of the petitioner has not been done as per Rules. He also submits that no selection process has been followed as is clear from the appointment order dated 18.04.1992. He thus submits that as per the decision of the Hon’ble Apex Court in the case of State of Orissa Vs. Mamata Mohanty, reported in (2011) 3 SCC 436 , the petitioner is not entitled to any salary, in as much as no advertisement or due selection process had been held prior to his appointment. 6. I have heard the learned counsels for the parties. 7. The order dated 18.04.1992 is reproduced below: “ORDER :- Subject to the selection of D.L.S.B. Nalbari Md. Taizuddin Ahmed, B.A. is hereby appointed on purely temporary basis to act as Assistant Teacher in Janata High School (Bihampur) in the scale of pay of Rs. 1375/- to Rs. 3375/- p.m. plus other allowances as admissible under rules with effect from the date of his joining a newly provincialised High School (Addl. Sanctioned post). The above appointment may be terminated at any time.” 8. A perusal of the appointment order goes to show that the appointment of the petitioner is subject to selection by the DLSB, Nalbari. In other words, no selection process has been made prior to the appointment of the petitioner. In the case of the State of State of Orissa Vs. Mamata Mohanty, reported in (2011) 3 SCC 436 , the Hon’ble Supreme Court has held in paragraphs 35 and 36 as follows: “35. At one time this Court had been of the view that calling the names form employment exchange would curb to certain extent the menace of nepotism and corruption in public employment. But, later on, it came to the conclusion that some appropriate method consistent with the requirements of Article 16 should be followed. At one time this Court had been of the view that calling the names form employment exchange would curb to certain extent the menace of nepotism and corruption in public employment. But, later on, it came to the conclusion that some appropriate method consistent with the requirements of Article 16 should be followed. In other words there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly. Even if the names of candidates are requisitioned from employment exchange, in addition thereto it is mandatory on the part of the employer to invite applications from all eligible candidates from the open market by advertising the vacancies in newspapers having wide circulation or by announcement in radio and television as merely calling the names from the employment exchange does not meet the requirement of the said article of construction. (Vide Delhi Development Horticulture Employees’ Union V. Delhi Admn., State of Haryana V. Piara Singh, Excise Supdt. V. K.B.N. Visweshwara Rao, Arun TEwari V. Zila Mansavi Shikshak Sangh, Binod Kumar Gupta V. Ram Ashray Mahoto, National Fertilizers Ltd. V. Somvir Singh, Telecom District Manager V. Keshab Deb, State of Bihar V. Upendra Narayan Singh and State of M.P. V. Mohd. Abrahim.) 36. Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the employment exchange or putting a note on the notice board, etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Article 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit.” 9. In the case of Uma Devi Vs. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit.” 9. In the case of Uma Devi Vs. State of Karnataka, reported in (2006) 4 SCC 1 , the Supreme Court has held that there should be a proper selection process and persons who come through the backdoor should leave by the backdoor. 10. In view of the above decisions of the Hon’ble Apex Court and as the order date 18.04.1992 suggests that no selection process was held prior to the appointment of the petitioner, I am of the opinion that the present petition cannot be allowed. Accordingly, the same is dismissed. However, liberty is given to the petitioner to approach the Director of Secondary Education, Assam with his grievance by filing a representation, if so advised, within a period of two weeks from today, if the petitioner can produce any document to show that a proper selection process had taken place in pursuance to an advertisement, which led to the appointment order dated 18.04.1992 being issued. If a proper selection process was held prior to the appointment of the petitioner as stated above, the Director of Secondary Education, Assam shall consider the petitioner’s grievance within a period of 2 months thereafter.