JUDGMENT AND ORDER : T. Vaipei, J. The question which falls for consideration in this writ petition is whether the cases of the petitioners fall within the exception carved out in para 53 of State of Karnataka and others Vs. Uma Devi (3), (2006) 4 SCC 1 as explained in State of Karnataka and others Vs. M.L. Kesari and others, (2010) 9SCC 247 for regularisation of their services as a one-time measure or not? 2. Before proceeding further, I will first briefly refer to the facts of the case as pleaded by the petitioners. In response to the advertisement issued by the respondent authorities, both of them applied for the posts of Assistant Teacher in L.P. Schools. They appeared before the Selection Committee and were duly selected by the then Sub-Divisional Level Elementary Advisory Board in respect of Udalguri Sub-Division. On their selection, the Deputy Inspector of Schools, Udalguri appointed them as Assistant Teacher of Nagajani L.P. School in the year 1995 against CRC deputation vacancies of Kadam Ali and Md. Jilul Haque in the fixed pay of Rs. 900/- per month. The Deputy Inspector of Schools, Udalguri by the order dated 19-12-1997 and dated 18-12-1997 extended their appointments till the return of the deputed Assistant Teachers. In the year 2001, both the petitioners filed WP(C) No. 7374 of 2001 for regularisation of their services. This Court by the order dated 1-5-2002 directed the respondent authorities to consider the petitioners for the regularisation against any existing vacant posts or posts that may fall vacant in future as WP(C) No. 4518 of 2011 Page 3 of 12 teachers as they had been working till then if they were having the requisite qualification for such regularization. 3. It is also the case of the petitioners that in apparent compliance with the directions of this Court, the Deputy Inspector of Schools, Udalguri issued the order dated 18-10-2004 allowing the petitioner No. 1 to draw a monthly salary against the vacancy caused by the retirement/transfer of Md. Saif Ali, Head Master/Asst. Teacher of Pub Kumarapara LP School in the usual pay till finalisation of the court cases. Likewise, the same authority issued the order dated 18-12-2004 allowing the petitioner No. 2 to draw the monthly salary against the vacancy caused by the retirement/transfer of one Messar Ali, Headmaster of Pachin Bahabari LP School with the usual pay till finalisation of the court case. Likewise, the same authority issued the order dated 18-12-2004 allowing the petitioner No. 2 to draw the monthly salary against the vacancy caused by the retirement/transfer of one Messar Ali, Headmaster of Pachin Bahabari LP School with the usual pay till finalisation of the court case. Thereafter, the Additional Director of Elementary Education, Assam issued the order dated 20-5-2005 deputing the petitioners to undergo Jr. Basic Training with effect from 1-4-2005 and placed them at DTC Dalgaon. Both the petitioners completed the Primary Training Course in the month of September, 2005 and were placed in B-Grade in the result announced on 2-2-2006, but they have not been paid the regular time scale of pay till now. 4. According to the petitioners, the Deputy Inspector of Schools, Udalguri in his letter dated 26-4-2006 addressed to the respondent No. 2 submitted a proposal for allowing the petitioners to enjoy a regular time scale of pay as they had passed the Junior Basic Training in the year 2006. When the regular pay scale was not paid to them immediately, they approached this Court again in WP(C) No. 5148 of 2008, and this Court by the order dated 10-12-2008 directed the petitioners to submit a representation before the Committee constituted by this Court in Sudhendu Mohan Talukdar Vs. State of Assam and ors, 2006 (2) GLT 216 for dealing with their cases in terms of the directions contained therein. In compliance with the directions of this Court, the Deputy Inspector of Schools, Udalguri by the letter dated 21-5- 2009 submitted the details of the service particulars of both the petitioners to the respondent No. 2 for necessary action. The respondent No. 1 thereafter in purported compliance with the aforesaid direction of this Court placed the matter before the Expert Committee. 5. At this stage, it may be noted that the Expert Committee after examining the cases of the petitioners in their report dated 1-2-2009 simply concluded that "The claim of the petitioners is for their time scale of pay w.e.f. 17-1-2006." On going through the report of the Expert Committee, it is evident that no independent findings were made by them; on the contrary, their findings were merely based on the report (as evident from the expression used therein "as reported by") of the Deputy Inspector of Schools, Udalguri. The fact that the petitioners had undergone the Jr. The fact that the petitioners had undergone the Jr. Basic Training is not, however, disputed by them. To revert to the case of the petitioners, the respondent No. 1, instead of allowing the petitioners to enjoy a regular pay scale, issued the impugned order dated 30-7-2011 holding that the claim of the petitioners did not have any merit for payment of salary and, therefore, rejected their claims. It is the contention of the petitioners that similarly situated persons such as Md. Mahibul Islam, Thalthali LP School, who had been appointed against a deputation vacancy on 6-12-1995 was allowed to enjoy a regular pay scale of Rs.3,130-6,600/- per month with effect from 6-5-2005: the petitioners have thus been subjected to hostile discrimination by denying similar treatment. This is how this third round of litigation is initiated by the petitioners in this writ petition. 6. The writ petition is contested by the respondent authorities by filing their affidavit-in-opposition through the respondent No. 1. It is pointed out by the answering respondent that the service conditions of the teaching and non-teaching staff of provincialized LP and Upper Primary Schools including the method of recruitment are governed by the provisions of the Assam Elementary Education (Provincialization) Services Rules, 1977, which came into force with effect from 16-3-1977. It is averred by the answering respondent that the appointment letters of the petitioners did not reveal that they were ever appointed pursuant to such advertisement: they have also failed to show as to when such advertisement was made or for how many posts such advertisement was made or for which posts they had applied or when and where they were called for interview or when such select list was published or what was their merit positions in the select list. 7. According to the answering respondent, the Sub-Divisional Elementary Education Advisory Board was required to conduct the selection and publish the select list for regular sanctioned posts only; there is nothing in their appointment letters to show that any selection was made for filling up regular vacant posts. It is thus contended by the respondent authorities that the petitioners were irregularly/illegally appointed against C.R.C. deputation vacant posts. It is thus contended by the respondent authorities that the petitioners were irregularly/illegally appointed against C.R.C. deputation vacant posts. The answering respondent submits that extension/continuation of the appointments of the petitioners against CRC deputation vacancies till the rejoining by the deputationists by the Deputy Inspector of Schools, Udalguri is against the established principle of law and is contrary to the Office Memorandum dated 19-7-1997: there is no question of advertising the deputation vacancies. 8. No mandamus was issued by this Court in WP(C) No. 7374 of 2001 directing the respondent authorities to appoint the petitioners against the rules in force. The fact that the petitioners were asked to undergo Basic Training by the Addl. Director of Elementary Education, Assam and that they successfully underwent the training cannot validate their otherwise illegal appointments unless their inductions to services were proved to be in conformity with statutory rules in force. Therefore, the claim of the petitioners for regular pay scale has no force. It is further contended by the answering respondent that the adjustment of the petitioners against some posts under the guise of implementing court's order when their entry into service was not in accordance with law cannot confer any right upon them to claim regular pay scale: the right to claim salary must be supported by contract or by statute. The State-respondents have no obligation to pay salary to the petitioners who had been appointed in violation of law, and no legal right to regular pay scale could accrue to them. The writ petition has no merit and is liable to be dismissed. These are the sum and substance of the case projected by the respondent authorities. 9. In answer to the counter-affidavit filed by the respondent authorities, the petitioners filed their reply affidavit wherein the Office Memorandum dated 19-7-1997 is not applicable to their case inasmuch as they were appointed in 1995 before the issue of the said Office memorandum and they were appointed against deputation vacancies and were never sent on deputation to any WP(C) No. 4518 of 2011 Page 7 of 12 corporation or company as mentioned therein. It is true that the two deputationists rejoined their respective posts after their repatriation, but, due to shortage of teacher and in view of non-filling up of sanctioned vacant posts, the petitioners, who were duly selected by the Selection Committee in terms of the advertisement, have been allowed to continue against the sanctioned posts in the respective schools. An additional affidavit has also been filed by the petitioners wherein they offered to produce the advertisement in question. The said advertisement appearing in "Dainik Asam" in its issue dated September 3, 1991 inviting applications for filling up, among others, 7606 posts of Assistant Teacher of Primary Schools (Stipendiary) in respect of the Elementary Education Department, Assam. 10. The first contention of Mrs. N. Saikia, the learned counsel for the petitioners, is that the posts for which the petitioners seek regularisation were duly advertised and, that too, against sanctioned posts, for which they are also qualified, apart from passing Junior Basic Training in the year 2006, and no legal impediments are there any more to deny regularisation of their services. According to the learned counsel, the report of the Expert Committee comprising of the Commissioner & Secretary, Education Department, Assam, Deputy Secretary of the same Department, Joint Secretary, Finance Department, Senior Financial Adviser, Education Department, Director, Elementary Education and Director, Secondary Education, did not question the legality of their selection and appointment, but rejected the prayer of the petitioners for regularization; this clearly shows that the impugned decision dated 30-7-2011 of the respondent No. 1 is arbitrary, discriminatory and cannot be sustained in law. She points out that the petitioners have been continuing against sanctioned posts for the last over 10 years and have completed Junior Basic Training and their services are, therefore, entitled to be regularised with regular scale of pay of Assistant Teacher of LP School and in accordance with the principles laid down in Uma Devi (3) (supra). She further submits that the cases of the petitioners and that of Mohibul Islam and Abdul Mannan, who have been paid a regular scale of pay, cannot be differentiated from similarly situated persons enjoying the same scale of pay. 11. Per contra, Mr. She further submits that the cases of the petitioners and that of Mohibul Islam and Abdul Mannan, who have been paid a regular scale of pay, cannot be differentiated from similarly situated persons enjoying the same scale of pay. 11. Per contra, Mr. R. Mazumdar, the learned Standing Counsel for the Education (Elementary) Department, Assam, opposes with vehemence the submissions of the learned counsel for the petitioners by contending that there is absolutely no evidence to show that the initial appointments of the petitioners are legal; this is not a case of irregular appointments. Referring to the said report of the Expert Committee, the learned standing counsel maintains that they merely concluded that the claim of the petitioners was for their time scale of pay w.e.f. 17-01-2006 and did not make any recommendation in that behalf and, as such, the respondent No. 1 has rightly rejected the claim of time scale of pay to them. It is further argued by the learned standing counsel that the petitioners were admittedly not appointed against sanctioned posts but were appointed against the vacancies caused by the deputation of the incumbents, who were to be filled up by them as and when they were repatriated by the borrowing Department; no vested right to remain in such vacancies could ever accrue to the petitioners. He further submits that the payment of regular time scale of pay to some teachers such as Mohibul Islam and Abdul Mannan dehors the rules do not confer the right to claim similar benefits by the petitioners; the law is well-settled that past illegal actions cannot be used as a precedent for claiming similar relief. He, therefore, strenuously urges this Curt to dismiss the writ petition, which is totally devoid of merit. 12. Before proceeding further, it will be beneficial to refer to the exception contained in para 53 of Uma Devi (3) (supra), which is as under: 6. This Court in Umadevi (3) : (2006) 4 SCC 1 further held that a temporary, contractual, casual or a daily-wage employee does not have a legal right to be made permanent unless he had been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution. This Court however made one exception to the above position and the same is extracted below: (SCC p. 42, para 53) "53. One aspect needs to be clarified. This Court however made one exception to the above position and the same is extracted below: (SCC p. 42, para 53) "53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa AIR 1967 SC 1071 : (1967) 1 SCR 128 , R.N. Nanjundappa (1972) 1 SCC 409 and B.N. Nagarajan (1979) 4 SCC 507 : 1980 SCC (L&S) 4 and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of 1 the courts or of tribunals and should further ensure that regular recruitment's are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date." (emphasis in original) 7. It is evident from the above that there is an exception to the general principles against "regularisation" enunciated in Umadevi (3)1, if the following conditions are fulfilled: (i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. (ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. (ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular. 8. Umadevi (3) : (2006) 4 SCC 1 casts a duty upon the Government or instrumentality concerned, to take steps to regularise the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a one-time measure. Umadevi (3)1 directed that such one-time measure must be set in motion within six months from the date of its decision (rendered on 10-4-2006). 13. The fact remains that the petitioners were selected for the posts of Assistant Teachers by the then Sub-Divisional Elementary Education Advisory Board, Udalguri in response to the advertisement published in Dainik Asam in its issue dated 3-9- 1991 for some probable vacancies of 7606 posts of Assistant Teachers of Primary Schools (Stipendiary). Just because they were not immediately appointed against sanctioned posts against which the petitioners were selected by the Primary Elementary Education Advisory Board, Udalguri but were subsequently appointed against the vacancies of deputationists, does not mean that they were illegally appointed, if they have been found to be continuously working against other sanctioned posts after the repatriation of the said deputationists. In fact, once it is found that the petitioners have been found to be continuously working against the posts of Headmaster of Pub Kumarpara LP School and Pachim Bahabari LP School respectively which were lying vacant after the retirement of the incumbents, they can at the most be said to be irregularly appointed. It is not the case of the respondent authorities that the petitioners are not eligible for the post of Assistant Teacher of LP Schools. Apparently, the misfortune of the petitioners has been caused by their refusal to appoint them after their due selection by the Sub-Divisional Elementary Education Advisory Board, Udalguri, for which they cannot be faulted with: they should have been given the appointments before the expiry of the select list. Apparently, the misfortune of the petitioners has been caused by their refusal to appoint them after their due selection by the Sub-Divisional Elementary Education Advisory Board, Udalguri, for which they cannot be faulted with: they should have been given the appointments before the expiry of the select list. The Expert Committee vide its report dated 1-12-2009 also did not dispute the case of the petitioners. From the indisputable facts, which emerged from appreciation of the various documents brought on record, it can be truly said that the petitioners come within the purview of the exception to the general principles against "regularization" enunciated in Umadevi, (2006) 4 SCC 1 . 14. For the reasons stated in the foregoing, this writ petition is disposed of by directing the respondent authorities to find out, as one time measure, as to whether the petitioners have actually been continuing as Assistant Teachers of LP Schools against sanctioned posts for more than ten years, and if they are so found, they shall consider regularising their services against those sanctioned posts with regular time scale of pay admissible to the post of Assistant Teacher of LP School. The entire exercise shall be carried out within a period of two months from the date of receipt of this judgment. No costs.