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2018 DIGILAW 1249 (GAU)

LOVELY SINGHA v. STATE OF ASSAM

2018-08-24

M.R.PATHAK

body2018
JUDGMENT : MANASH RANJAN PATHAK, J. 1. Heard Mr. A Matin, learned counsel for the petitioner and Mr. A Deka, learned Standing Counsel, Elementary Education Department for the respondents Nos.1 and 2. Also heard Ms D. Das Barman, learned Govt. Advocate for the respondent Nos.4 and 5, Mr. P Nayak, learned Standing Counsel, Finance Department for the respondent No.10 and Mr. M. Khataniar, learned Standing Counsel, BTC for the respondent Nos.3 and 6 to 9. 2. Challenge in this writ petition is to the order dated 12.10.2012 passed by the Deputy Inspector of Schools, Mangaldai by which the appointment of the petitioner, Assistant Mistress in Chelimari Lower primary School was cancelled. 3. The petitioner contended that the then Director of Elementary Education, Assam by an order dated 26.03.1999 allotted post of primary school teachers in Mixed Medium Schools under the disposal of the Deputy Inspector of Schools, Mangaldai as per the list annexed to the said order stipulating certain conditions therein. The said list in the order dated 26.03.1999 contained the name of the petitioner for her appointment in Mahiakhat L P School along with the names of five others. 4. Pursuant to the said order dated 26.03.1999, the then Deputy Inspector of Schools, Darrang, Mangaldai by his order dated 04.12.1999 appointed the petitioner as a Stipendary Teacher in Mahiakhat L P School under Khoirabari Education Block of Darrang District with monthly stipend of Rs. 1,800/-. Accordingly petitioner joined her service on 06.12.1999. 5. It is stated that the petitioner was released from her said service by an order dated 19.05.2003 issued by the District Elementary Education Officer, Darrang, Mangaldai enabling her to undergo Junior Basic Training and she passed her said training in December 2003 from District Institute of Education and Training, Biswanath Chariali, District-Sonitpur. The petitioner further submitted that on completion of her said Junior Basic Training, the then Deputy Inspector of Schools, Darrang, Mangaldai by an order dated 03.05.2005 appointed her as an Assistant Mistress in said Mahiakhat LP School in the pay scale of pay Rs. 3130/- to Rs. 6600/- against a plan post of OBB (Operation Black Board) which was brought under nonplan. Subsequently, the Block Elementary Education Officer, Khoirabari Education Block by his order dated 01.06.2005 transferred the petitioner from said Mahiakhat LP School and posted her at Selaimari LP School under the same education block. 3130/- to Rs. 6600/- against a plan post of OBB (Operation Black Board) which was brought under nonplan. Subsequently, the Block Elementary Education Officer, Khoirabari Education Block by his order dated 01.06.2005 transferred the petitioner from said Mahiakhat LP School and posted her at Selaimari LP School under the same education block. Later, by an order dated 25.07.2008 passed by the Deputy Inspector of Schools, Darrang, Mangaldai her service was confirmed w.e.f. 01.12.2004. The petitioner also submitted that the then Deputy Inspector of Schools, Darrang, Mangaldai by an order dated 26.09.2012 brought 158 posts of teachers serving under OBB (CSS)(Centrally Sponsored Scheme) under non-plan post for the period from 01.03.2012 to 28.02.2013 that includes the name of the petitioner along with others. But, by the impugned order dated 12.10.2012 the Deputy Inspector of Schools, Darrang, Mangaldai terminated her service cancelling the said order dated 26.09.2012 without affording any opportunity of hearing. 6. Hence this writ petition by the petitioner for issuance of writ of Mandamus directing the respondents to withdraw and/or forebear from giving effect to the said order dated 12.10.2012. 7. The respondents in the BTC have filed their affidavits to which the petitioner has also filed her reply. 8. Mr. A Deka, learned Standing Counsel, Elementary Education appearing for the respondents submitted that appointment of the petitioner was in violation of the statutory recruitment rules and in violation of the provisions of Article 14 and 16 of the Constitution of India and therefore, the petitioner has no right for her said appointment. Mr. Deka also submitted that a Division Bench of this Court in Writ Appeal No. 79/2015 (Heramba Kr. Saikia and 50 Others -Vs- State of Assam and 7 Others) by its judgment and order dated 23.2.2017, have upheld such termination of the petitioners. 9. With effect from 19th March, 1979 the Assam Elementary Education (Provincialisation) Rules, 1977, a statutory Rule under Article 309 of the Constitution of India came into force, which regulates the recruitment and condition of service of teachers of the elementary schools which have been provincialised under the Assam Elementary Education (Provincialisation) Act, 1974. 10. 9. With effect from 19th March, 1979 the Assam Elementary Education (Provincialisation) Rules, 1977, a statutory Rule under Article 309 of the Constitution of India came into force, which regulates the recruitment and condition of service of teachers of the elementary schools which have been provincialised under the Assam Elementary Education (Provincialisation) Act, 1974. 10. Rule 3 of the said 1977 Rules relates to 'Method of Recruitment' which provides for appointment of teachers in provincialised elementary schools, both in upper primary as well as in the lower primary schools by way of direct recruitment after proper advertisement and selection through interview, test etc., wherein it is specified that appointment of selected candidates as teachers shall be made in order of merits only from the authenticated select list and any appointment given to persons outside the select list shall be ab-initio invalid except the appointment given on compassionate ground by the government as per the rules of the government and that the validity of the select list shall not extend beyond one year from the date of its publication. 11. Except the aforesaid mode of appointment by way of direct recruitment after advertisement and due process of selection, there is no other mode of appointment of teachers in provincialised elementary schools in the State. After the Right of Children to Free and Compulsory Education Act, 2009 came into force w.e.f. 1st April, 2010 said 1977 Rules was amended w.e.f. 25.10.2012 to keep the said Rules in conformity with the 2009 Act. 12. It is not the case of the petitioner that she was appointed as an Assistant Mistress in Mahiakhat L P School under Khoirabari Education Block of Darrang District on 04.12.1999 pursuant to the order dated 26.03.1999 after proper advertisement and selection in terms of said statutory recruitment Rules of 1977. It is also not the case of the petitioner that she was appointed on compassionate ground. 13. Apparently, from the annexures appended to the writ petition, the appointment of the petitioner as an Assistant Mistress in Mahiakhat L P School was in clear violation of said 1977 Rules. 14. It is also not the case of the petitioner that she was appointed on compassionate ground. 13. Apparently, from the annexures appended to the writ petition, the appointment of the petitioner as an Assistant Mistress in Mahiakhat L P School was in clear violation of said 1977 Rules. 14. The Hon'ble Supreme Court in cases of State of Orissa -Vs- Mamata Mohanty, (2011) 3 SCC 436 and Government of Andhra Pradesh -Vs- K. Brhmanand, (2008) 5 SCC 241 have held that that no person can be appointed without advertisement and participating in the selection process and mere continuance in service wrongly appointed in posts do not confer such appointee any right to claim any relief including salary and that 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. 15. It is settled that judicial discretion in mounding the relief cannot be exercised which encourages illegality or perpetuates an illegality. It is also settled that in exercise of writ jurisdiction or in exercise of judicial discretion statutory Rules cannot be violated, unless its legality is under challenge. 16. In the case of Food Corporation of India -Vs- Ashis Kumar Ganguly, (2009) 7 SCC 734 , the Hon'ble Supreme Court have held that "There cannot be any doubt whatsoever that a writ of or in the nature of mandamus can be issued only when existence of a legal right in the writ petitioner and a corresponding legal duty in the respondent are established. Where the administrative authority is conferred with a discretionary jurisdiction, the High Court, it was urged, ordinarily would not issue a writ of mandamus." 17. The Hon'ble Supreme Court in the case of State of M.P. -Vs- Sanjay Kumar Pathak, (2008) 1 SCC 456 have held that "The writ court should not, in absence of any legal right, act on the basis of sympathy alone." 18. In the case of Shesh Mani Shukla -Vs- District Inspector of Schools, Deoria, (2009) 15 SCC 436 , the Hon'ble Supreme Court have held that "It is true that the appellant has worked for a long time. His appointment, however, being in contravention of the statutory provision was illegal, and, thus, void ab initio. In the case of Shesh Mani Shukla -Vs- District Inspector of Schools, Deoria, (2009) 15 SCC 436 , the Hon'ble Supreme Court have held that "It is true that the appellant has worked for a long time. His appointment, however, being in contravention of the statutory provision was illegal, and, thus, void ab initio. If his appointment has not been granted approval by the statutory authority, no exception can be taken only because the appellant had worked for a long time. The same by itself, in our opinion, cannot form the basis for obtaining a writ of or in the nature of mandamus; as it is well known that for the said purpose, the writ petitioner must establish a legal right in himself and a corresponding legal duty in the State. Sympathy or sentiments alone, it is well settled, cannot form the basis for issuing a writ of or in the nature of mandamus." 19. The petitioner submitted that she was appointed by the Director of Elementary Education and the concerned Deputy Inspector of Schools, Darrang, Mangaldai. But that will not make the service of the petitioner as valid and legal as her appointment as Assistant Mistress was in violation of the relevant statutory recruitment Rules, that too without advertisement and selection in a public post. 20. With regard to such appointment made by concerned Government official in violation of recruitment Rules, the Hon'ble Supreme Court in the case of State of Haryana -Vs-Surinder Kumar, (1997) 3 SCC 633 have held as follows: "If any illegal actions have been taken by the officers after recruitment, it would be a grave matter of indiscipline by the officers and the higher authorities are directed to look into the matter and see that such actions are rectified, but that would not be a matter for this Court to give legitimacy to illegal acts done by the officers and to grant relief on the basis of wrong or illegal actions of superior officers. The appropriate authority would look into and take suitable disciplinary action against the erring officers and submit the report of the action taken and the result thereof to the Registry of this Court. 21. The appropriate authority would look into and take suitable disciplinary action against the erring officers and submit the report of the action taken and the result thereof to the Registry of this Court. 21. As the appointment of the petitioner was dehors the Rules of recruitment and her such appointment was void ab-initio, therefore, by the impugned order dated 12.10.2012 cancelling and terminating her service without affording any opportunity of hearing, no prejudice have been caused to her. In this regard, the issue has already been settled in the case of Mohd. Sartaj and Another -Vs- State if UP and others, (2006) 2 SCC 315 . 22. The petitioner has failed to place anything before the Court that she was duly appointed by way of advertisement, test, interviews and selection and following the provisions of statutory recruitment Rules. She has also failed to place before the Court that whether there is any provision for appointment of Assistant Teachers in provincialised Elementary Schools in the State without due process of advertisement and selection, except compassionate appointment. 23. For the reasons above and as the appointment of the petitioner is found to be patently illegal, without jurisdiction and ab-initio invalid, therefore, this Court is of the view that no such order can be passed exercising the writ jurisdiction to consider the prayer of the petitioner. 24. Accordingly, this writ petition being devoid of merit stands dismissed.