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2018 DIGILAW 1251 (GAU)

SYED JALALUDDIN AHMED v. STATE OF ASSAM

2018-08-24

M.R.PATHAK

body2018
ORDER : MANASH RANJAN PATHAK, J. 1. Heard Mr. A Mannaf, learned counsel for the petitioner and Mr. S K Ghosh, learned Standing counsel, Secondary Education for the official respondent Nos. 1 to 3. 2. Though notice on the respondent No. 4 was served by Regd. Post with A/D and the Registry received back the A/D card but the said respondent did not appear in the matter. 3. The issue involved in this writ petition is for regularisation and adjustment of the service of the petitioner as an Assistant Teacher in provincialised High School in the district of Nalbari considering his past service and the communications made by the Director of Secondary Education, Assam. 4. The petitioner is an Arts Graduate and also a Post Graduate in the subject of Assamese. In a leave vacancy of Nazimuddin Ahmed, an Assistant Teacher of Asomi High School, Balijar, a provincialised High School in the district of Nalbari, who went for B.Ed. training, the then in-charge Inspector of Schools of Nalbari District Circle, Nalbari by an order dated 16.09.1998 appointed the petitioner as an Assistant Teacher in the said School for a specific period, in the scale of pay of Rs. 1375/- to Rs. 3375/- per month with other allowances as admissible under the rules with effect from the date of his joining. Said order of the IS, Nalbari dated 16.09.1998 specified that said appointment of the petitioner shall be terminated automatically on the re-joining of the deputed teacher or on the eve of the next summer vacation, whichever is earlier (Annexure-3 to the petition). But such appointment of the petitioner was without any advisement and selection. 5. Such service of the petitioner against the said leave vacancy in Asomi High School, Balijar came to an end after ten months. Thereafter, the petitioner filed an application before the Managing Committee of the said High School to allow him to render service in it and the said Managing Committee by its resolution dated 04.07.1999 allowed the petitioner to work as an Assistant Teacher in said High School on honorary basis observing that in future he would be given preference in the matter of appointment in the said school (Annexure-3 to the petition). 6. 6. The Inspector of Schools of Nalbari District Circle, Nalbari by an order dated 08.01.2004 appointed the petitioner as an Assistant Teacher in the said Asomi High School, Balijar in the graduate scale of pay of Rs. 3580/- to Rs. 8750/- per month with other allowances as admissible under the rules with effect from 01.02.2002 until further order against the vacant post at Kharua Milan High School, vice one Sri. Anil Sarma, Assistant Teacher retired (Annexure-5 to the petition). Said order also reflects that the said vacant post was originally created on 19.11.1991 and retained by the Government vide order date 05.07.2003. Even on this occasion the appointment of the petitioner was without any advisement and selection. 7. It is stated by the petitioner that he received salary up to 31.12.2003 and from July, 2006 his regular salary along with similarly placed teachers in Nalbari District was stopped and all such deprived teachers of Nalbari District formed an association in the name of Nalbari Zila Banchita Sikshak Karmachari Santha and approach the concerned authorities demanding their salaries and regularisation/adjustment of their service. In that regard, the petitioner also stated that the then Director of Secondary Education, Assam as well as the Inspector of Schools, Nalbari wrote to the State Government in the Secondary Education Department (Annexures - 6 series and 7 to the petition). 8. Placing Annexure-8 of the writ petition, the petitioner submitted that similarly placed teacher in the Kamrup District has been regularised/adjusted as an Assistant Teacher by the respondents in the Education Department in Gauhati Refinery High School. 9. As nothing progressed, hence this writ petition by the petitioner for issuance of writ of Mandamus directing the respondents herein to regularise/adjustment the service of the petitioner considering the said communications at Annexures - 6 series and 7 to the petition pending before the Government and also considering the long rendering of service by him. 10. 9. As nothing progressed, hence this writ petition by the petitioner for issuance of writ of Mandamus directing the respondents herein to regularise/adjustment the service of the petitioner considering the said communications at Annexures - 6 series and 7 to the petition pending before the Government and also considering the long rendering of service by him. 10. The respondent, Director of Secondary Education, Assam has filed an affidavit in the matter clarifying its stand stating that as part of the law laid down by Hon'ble Division Bench of this Court in the case of Abdul Bari v. State of Assam and Others, reported in 1999 (3) GLT 31 as well as in the case of Jahangir Alom v. State of Assam and Others, decided by Hon'ble Single Judge, reported in 2000 (3) GLT 544, a School Managing Committee of a provincialised school has no authority to appoint any person or teacher in such provincialised school even on honorary basis after the concerned school is provincialised and that service of such teachers cannot be regularised. 11. The respondent in the Education Department also stated that in the case of Ranjana Begum Laskar v. State of Assam and Others, reported in 2008 (4) GLT 278, have held that the honorary teachers appointed by the Managing Committee in provincialised school are not entitled to salary even for the period they have rendered service. 12. Relying on the decisions of the Hon'ble Supreme Court in cases of State of Orissa v. Mamata Mohanty, reported in (2011) 3 SCC 436 and Government of Andhra Pradesh v. K. Brhmanand, reported in (2008) 5 SCC 241 the respondents submitted that no person can be appointed without advisement 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. 13. The respondents submitted that since the appointment of the petitioner is in violation of the statutory recruitment rules and the law laid down by the Court, as such petitioner's service cannot be regularised and his salary for the past service cannot be paid. 14. 13. The respondents submitted that since the appointment of the petitioner is in violation of the statutory recruitment rules and the law laid down by the Court, as such petitioner's service cannot be regularised and his salary for the past service cannot be paid. 14. To regulate the recruitment and conditions of service of persons to the Assam Secondary Education (Provincialised) Service including Teachers of provincialised High and Higher Secondary Schools, the State Government formulated the Assam Secondary Education (Provincialised) Service Rules, 2003, a statutory Rule under Article 309 of the Constitution of India, which came into force w.e.f. 12.08.2003. 15. Rule 8 of said 2003 Rules provides for 'Recruitment to the post of Graduate Teachers of the provincialised High/Higher Secondary and Multipurpose School and selection procedure' and Rule 8(1) of said 2003 Rules stipulates that: "the Recruitment to the post of Graduate Teachers in provincialised High/Higher Secondary and Multipurpose Schools shall be made by direct recruitment in the manner provided in the Sub-Rules of said Rule 8. 16. Prior to the coming into the force of the Assam Secondary Education (Provincialised) Service Rules, 2003 on 12.08.2003, to regulate the recruitment and conditions of service of Teachers of the High and Higher Secondary Schools, which have been provincialised under the Assam Secondary Education (Provincialisation) Act, 1977, the State Government formulated the Assam Secondary Education (Provincialised) Service Rules, 1982 was in force w.e.f. 29.05.1982 to 11.08.2003, which was also a statutory recruitment Rules under Article 309 of the Constitution of India and Rule 6 of said 1982 Rules stipulated the 'Method of the Recruitment' and it read that - Recruitment of teacher of provincialised High and Higher Secondary School shall be made by the direct recruitment only, on the basis of advertisement, test and interviews to be conducted by the District Level Selection Board and the State Level Selection Board, respectively. 17. Rule 8 (10) of said 2003 Rules provides that: "no appointment in any manner shall be made by any authority except in accordance with procedure prescribed in the provisions of said Rule 8. 18. 17. Rule 8 (10) of said 2003 Rules provides that: "no appointment in any manner shall be made by any authority except in accordance with procedure prescribed in the provisions of said Rule 8. 18. Regarding appointment of teachers in provincialised Secondary Schools in the State, both under the 1982 Service Rules during its force and under the 2003 Service Rules, presently in force, provide for direct recruitment only, after proper advertisement and selection and both the Service Rules are totally silent on any other mode of appointment of teachers in such provincialised secondary schools. 19. In the present case appointment of the petitioner dated 16.09.1998 against a lean vacancy of an Assistant Teacher of Asomi High School, Balijar, a provincialised High School in the district of Nalbari, made by the then in-charge Inspector of Schools of Nalbari District Circle, Nalbari as well as the subsequent order dated 08.01.2004 made by the Inspector of Schools, Nalbari appointing the petitioner as an Assistant Teacher in said Asomi High School, Balijar in the graduate scale of pay of Rs. 3580/- to Rs. 8750/- per month with other allowances as admissible under the rules with effect from 01.02.2002 until further order against a post that fell vacant at Kharua Milan High School due to retirement of its Assistant Teacher, Anil Sarma, were without any advertisement and selection, in violation of the provisions of the relevant statutory recruitment Rules. 20. Petitioner has stated that the respondents in the Education Department by an order dated 01.04.2010 regularised/adjusted the service of one Smti. Usha Devi a teacher of Gauhati Refinery High School in Kamrup District (Annexure-8 of the writ petition) and the petitioner claiming to be similarly placed to the said teacher, submitted that his case for regularisation/adjustment should be considered and the appropriate writ and necessary direction should be issued to the respondents in that regard. 21. Post of an Assistant Teacher in a provincialised school in the State including the post of Assistant Teacher in such School is a public post, where salary is to be paid from public exchequer. In the present case the appointment of the petitioner was made in violation of the statutory recruitment Rules of 2003 and in violation of the provisions of Article 14 and 16 of the Constitution of India, without any advertisement and selection. In the present case the appointment of the petitioner was made in violation of the statutory recruitment Rules of 2003 and in violation of the provisions of Article 14 and 16 of the Constitution of India, without any advertisement and selection. Therefore, any such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order. 22. 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. 23. The Hon'ble Supreme Court in the case of Chandigarh Admn. v. Jagjit Singh, reported in (1995) 1 SCC 745 have observed as follows: "Generally speaking, the mere fact that the respondent-authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent-authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law - indeed, wherever it is possible, the Court should direct the appropriate authority to correct such wrong orders in accordance with law - but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. The illegal/unwarranted action must be corrected, if it can be done according to law - indeed, wherever it is possible, the Court should direct the appropriate authority to correct such wrong orders in accordance with law - but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent-authority to repeat the illegality, the Court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law. Of course, if in case the order in favour of the other person is found to be a lawful and justified one it can be followed and a similar relief can be given to the petitioner if it is found that the petitioners' case is similar to the other persons' case. But then why examine another person's case in his absence rather than examining the case of the petitioner who is present before the Court and seeking the relief. Is it not more appropriate and convenient to examine the entitlement of the petitioner before the Court to the relief asked for in the facts and circumstances of his case than to enquire into the correctness of the order made or action taken in another person's case, which other person is not before the case nor is his case. In our considered opinion, such a course - barring exceptional situations - would neither be advisable nor desirable. In other words, the High Court cannot ignore the law and the well accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and legal, in accordance with relevant legal principles. The orders and actions of the authorities cannot be equated to the judgments of the Supreme Court and High Courts nor can they be elevated to the level of the precedents, as understood in the judicial world." 24. Each case must be decided on its own merits, factual and legal, in accordance with relevant legal principles. The orders and actions of the authorities cannot be equated to the judgments of the Supreme Court and High Courts nor can they be elevated to the level of the precedents, as understood in the judicial world." 24. In the case of Food Corporation of India v. Ashis Kumar Ganguly, reported in (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." 25. The Hon'ble Supreme Court in the case of State of M.P. v. Sanjay Kumar Pathak, reported in (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." 26. In the case of Shesh Mani Shukla v. District Inspector of Schools, Deoria, reported in (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." 27. From the above it is clear that recruitment of teacher in provincialised High and Higher Secondary School are to be made by way of direct recruitment only, that too on the basis of advertisement, test, interviews and selection. From the above it is clear that recruitment of teacher in provincialised High and Higher Secondary School are to be made by way of direct recruitment only, that too on the basis of advertisement, test, interviews and selection. Except the same there is no other mode of recruitment of teachers in provincialised Secondary Schools in the State. Moreover, since the 1982 Rules and thereafter 2003 Rules came in to force, the recruitment of teachers in provincialised Secondary Schools in the State are guided by statutory recruitment Rules only. 28. The petitioner has failed to place anything before the Court that he was duly appointed after an advisement and selection following the provisions of statutory recruitment Rules. He has also failed to place before the Court that whether there is any provision for appointment of Assistant Teachers in provincialised Secondary Schools in the State without due process of advertisement and selection, except compassionate appointment. It is not the case of the petitioner that he was appointed on any compassionate ground under the guidelines made by the Personnel Department of the State. 29. From the above and the submission made by the respondent, Director of Secondary Education, Assam in its affidavit filed in the case, apparently, the appointment of the petitioner as an Assistant Teachers in said Asomi High School, Balijar in the district of Nalbari was in violation of said 2003 statutory recruitment Rules. 30. As the appointment of the petitioner is patently illegal, without jurisdiction and abinitio invalid, therefore, in exercise of writ jurisdiction, neither order can be passed to regularise and/or adjust his service nor any direction can be issued to pay salary to him from the State Exchequer. 31. For the reasons above and as the appointment of the petitioner as an Assistant Teacher in provincialised secondary school is in contravention of the provisions of 2003 Rules, a statutory recruitment Rules, the same being illegal and therefore void ab initio, this writ petition being devoid of merit stands dismissed.