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2016 DIGILAW 706 (GAU)

Anandaram Lahary v. State of Assam

2016-08-01

M.R.PATHAK

body2016
ORDER : M.R. Pathak, J. 1. Heard Mr. BC Choudhury, learned counsel appearing for the petitioner and Ms. A Bora, learned standing counsel for Secondary Education Department for the respondent Nos. 1 and 2. Also heard Mr. M Khataniar, learned standing counsel for BTC. It is stated that as per order No. BAC/ELE-42/95-96/64-(a), dated 09.12.1996 of the Joint Secretary of erstwhile Bodoland Autonomous Council, Kokrajhar; the then Inspector of Schools, Nalbari District Circle, Nalbari vide his order under Memo No. BAC/EST-3/DEP/97/5329-99 dated 21.11.1997 appointed the petitioner as Lower Division Assistant in Barbari Nehru High School on fixed pay of Rs.1200/- per month out of Bodo Autonomous Council's fund. 2. The petitioner submitted that since he is serving till date as LDA in the said Barbari Nehru High School, therefore prayed for a necessary direction to the respondent for regularisation of his service as LDA in the sanctioned post of LDA that is lying vacant in the said school. 3. Mr. M.K. Khataniar, learned standing counsel BTC submitted that the petitioner was initially appointed as LDA on fixed pay of Rs. 1200/- per month out of the then Bodoland Autonomous Council (BAC) fund under a particular scheme, that was subsequently discontinued. Mr. Khataniar placed before the Court that the authorities of erstwhile BAC while approving the New Education Policy of BAC neither followed the existing Educational Policy of the Central Government nor that of State Government of Assam and therefore, the authorities of Bodoland Territorial Council (BTC) on 12.10.2004 took a resolution to terminate the services of all such including the LD As like the petitioner appointed under BAC Scheme as no posts were sanctioned by the State Government as such BTC is not liable to pay the salaries of such nonexistent, non-sanctioned post. Mr. Khataniar has also pointed out before the Court that the petitioner herein has not denied the fact that his appointment was under a scheme of the erstwhile BAC authorities which was discontinued and against non-existent & non-sanctioned post. 4. Mr. Khataniar has also pointed out before the Court that the petitioner herein has not denied the fact that his appointment was under a scheme of the erstwhile BAC authorities which was discontinued and against non-existent & non-sanctioned post. 4. The Assam Secondary Education (Provincialisation of Services) Rules, 2003, as amended; a statutory rule under Article 309 of the Constitution of India, with regard to recruitment of teaching and non-teaching staff in a provincialised High/Higher Secondary Schools of the State, provides for direct recruitment of LDA in provincialised Secondary schools in the State and such vacant post of LDA in provincialised High/Higher Secondary school needs to be filled up through due process of advertisement and selection. 5. In National Fertilizers Ltd. v. Somvir Singh, reported in (2006) 5 SCC 493 , Hon'ble Supreme Court have held that - "Regularisation, is not a mode of appointment and if appointment is made without following the rules, the same being a nullity and the question of confirmation of an employee upon the expiry of the purported period of probation would not arise." 6. The Hon'ble Apex Court in the case of A. Umarani v. Co-operative Societies, reported in (2004) 7 SCC 112 , have laid down that- "Regularisation, is not and cannot be the mode of recruitment by any "State" within the meaning of Article 12 of the Constitution of India or anybody or authority governed by a statutory Act or the Rules framed thereunder. It is also now well settled that an appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularisation. Once the employees are employed for the purpose of scheme, they do not acquire any vested right to continue after the project is over." 7. With regard to appointees under a Scheme and/or a Project of the State or Central Government or its undertakings, the Hon'ble Supreme Court in the case of Mehar Chand Polytechnic v. Anu Lamba, reported in (2006) 7 SCC 161 have held that - "The respondents did not have legal right to be absorbed in service. They were appointed purely on temporary basis. They were appointed purely on temporary basis. It has not been shown by them that prior to their appointments, the requirements of the provisions of Articles 14 and 16 of the Constitution had been complied with. Admittedly, there did not exist any sanctioned post. The Project undertaken by the Union of India although continued for some time was initially intended to be a time-bound one. It was not meant for generating employment. It was meant for providing technical education to the agriculturalists. In the absence of any legal right in the respondents, the High Court, thus, in our considered view, could not have issued a writ of or in the nature of mandamus." 8. In the present case it is not the case of the petitioner that prior to issuance of the said offer of appointment any vacancy existed or the same was notified to the employment exchange and or duly advertised. It is also not the case of the petitioner that he was recruited in terms of the statutory rules and/or upon compliance with the requirements envisaged under Articles 14 and 16 of the Constitution of India. Further, it is also not the case that prior to his appointment any advertisement was issued enabling the eligible candidates to file applications to those posts of LDAs or the vacancies were duly notified by various means including the employment exchange. The petitioner on his own showing was appointed without any selection; on a fixed pay out of BAC fund and as such petitioner's recruitment being not to a sanctioned and regular post he cannot claim regularisation in service. 9. It is already settled that an appointment under a scheme, comes to an end immediately after closer of such scheme. For the reasons above, this Court find no merit in the instant writ petition to regularize the sendee of the petitioner in the vacant regular sanctioned post of LDA in Barbari Nehru High School without due process of law and as per the relevant recruitment Rules noted above. Accordingly, this writ petition stands dismissed.