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2019 DIGILAW 488 (GAU)

Ramani Kalita v. State of Assam

2019-04-22

A.K.GOSWAMI, A.S.BOPANNA

body2019
JUDGMENT : A.K. Goswami, J. Heard Mr. R.C. Saikia, learned counsel for the appellant and Mr. S.K. Ghosh, learned standing counsel, Education (Secondary) Department, appearing for respondent Nos.13. Despite service of notice, the respondent No.4 i.e. the Headmaster of Banbhag Khata Dihjari High School has not entered appearance. 2. The case of the appellant in short is that pursuant to an advertisement issued by the Managing Committee of the Banbhag Khata Dihjari High School for the post of Hindi Teacher, he had responded to the same. The appellant along with other candidates had appeared for written test and viva-voce and he had secured first position and to that effect a resolution was taken by the Managing Committee on 07.11.2004. Thereafter, the appellant was appointed on honorary basis in the post of Hindi Teacher, which had fallen vacant on 31.08.2003 due to retirement of the Hindi Teacher and accordingly he had joined the school. Later on, by an order dated 31.12.2004, the Inspector of Schools, Nalbari District Circle had allowed the appellant to draw his monthly salary against the retirement vacancy, which had fallen vacant due to retirement of Md. Chand Mohammad Ali on 31.08.2003. While the appellant was serving in the school, the salary of the appellant was stopped w.e.f. 01.01.2006. However, the appellant continued to serve the school and when the respondents issued an advertisement dated 07.01.2011 showing the post held by the appellant as a vacant post, he approached this Court by filing a writ petition, which was numbered as WP(C) No.597/2011 and this Court had suspended the advertisement by an order dated 02.02.2011. Subsequently, the Headmaster of the school again issued an advertisement on 29.01.2014 calling for applications from intending candidates for filling up 2(two) posts of Science Graduate Teachers and one post of Hindi Teacher. 3. Being aggrieved, the appellant approached this Court by filing a writ petition, registered as WP(C) No.902/2014. Subsequently, the Headmaster of the school again issued an advertisement on 29.01.2014 calling for applications from intending candidates for filling up 2(two) posts of Science Graduate Teachers and one post of Hindi Teacher. 3. Being aggrieved, the appellant approached this Court by filing a writ petition, registered as WP(C) No.902/2014. The instant appeal is against the judgment and order dated 28.08.2017 passed by the learned Single Judge in the said writ petition, whereby the writ petition filed by the appellant praying for quashing the advertisement dated 29.01.2014 so far as it relates to the post of Hindi Teacher in Banbhag Khata Dihjari High School as well as for a direction to the respondent Nos.2 and 3 to act upon the selection made by the Selection Committee and subsequent appointment order dated 27.11.2004 issued by the Secretary of the Banbhag Khata Dihjari High School was dismissed. 4. The learned Single Judge held that the Selection Committee constituted by the Managing Committee, was not in conformity with Rule 8(c) of the Assam Secondary Education (Provincialised) Service Rules, 2003 and that without obtaining approval as required under Rule 8(d) & 8(e), the Managing Committee had appointed the appellant, although the Managing Committee had no authority to appoint and therefore, the appointment made by the Managing Committee is illegal and as such no direction can be made to the State respondents to pay salary of the appellant. 5. Mr. Saikia has submitted that the appellant was serving on honorary basis in a venture school (a term generally used for a category of school which is set up by the public of a locality and which is not provincialised) called J.M. Bujarbarua High School and when the advertisement was issued for the post of Hindi Teacher in Banbhag Khata Dihjari High School, which is a provincialised school, he had submitted his application. 6. 6. He submits that the Selection Committee was duly constituted and on being selected, the appellant was appointed by the Managing Committee and if in the process of such selection and appointment, there was any shortcoming in the constitution of the Selection Committee and the manner in which the appointment order was issued, the appellant having been allowed to draw salary subsequently, infirmity, if any, must be deemed to have been ignored by the authority and in that circumstance, the respondents acted illegally in stopping the salary of the appellant and at the same time, continuing to extract service. He, however, submits that the appellant had stopped going to the school after passing of the impugned order by the learned Single Judge. 7. That the learned counsel submits that the appellant having continued to serve the school for more than 10 years without any interruption, he is entitled to regularization in terms of paragraph 53 of the judgment rendered in the case of Secretary, State of Karnataka Vs. Umadevi and others, reported in (2006)4 SCC 1 . Mr. Saikia also submits that non-payment of salary to the appellant in the facts and circumstances of the case is violative of Article 23 of the Constitution of India. It is also emphasized by him that service of the appellant was not terminated by the authorities and therefore, the appellant is entitled to salary on the basis of the appointment order dated 27.11.2004. 8. To demonstrate that he had been working in the school, Mr. Saikia has drawn the attention of the Court to certificates dated 27.12.2010, 10.09.2012 and 03.01.2013 issued by the respondent No.4. He has further submitted by drawing attention of the Court to the letter dated 16.02.2017 of the Inspector of Schools, Nalbari District Circle that request was made by him for appointment of the appellant in view of service rendered by the appellant in a valid sanctioned post following due process of selection. 9. Mr. Saikia has also placed reliance in the case of Ranjana Begum Laskar and another Vs. State of Assam and others, reported in 2008(4) GLT 278, judgment dated 18.03.2015 passed in WA No.301/2012 and other connected appeals and the judgment of the Patna High Court in the case of Dinesh Thakur Vs. State of Bihar, with particular reference to paragraphs 25 and 27. 10. Mr. State of Assam and others, reported in 2008(4) GLT 278, judgment dated 18.03.2015 passed in WA No.301/2012 and other connected appeals and the judgment of the Patna High Court in the case of Dinesh Thakur Vs. State of Bihar, with particular reference to paragraphs 25 and 27. 10. Mr. S.K. Ghosh, learned standing counsel, Education (Secondary) Department, on the other hand, has submitted that no interference is called for with the judgment under appeal as the learned Single Judge, on due consideration of the relevant provisions of the 2003 Rules and also taking note of the fact that the Managing Committee had no right to appoint a teacher in a provincialised school, had rightly dismissed the writ petition. It is submitted by him that the earlier writ petition filed by the writ petitioner, being WP(C) No.597/2011, also came to be dismissed due to non-prosecution. It is further submitted by him that the Selection Committee was not constituted in terms of the 2003 Rules and in such circumstance, only on the ground that the In-Charge Inspector of Schools, Nalbari District Circle had issued the order dated 31.12.2004 making arrangement for payment of salary to the appellant, which is, in any view of the matter, an unauthorized action in absence of any appointment order being issued by the State, the appellant would not be entitled to claim salary from the State. 11. We have considered the submissions of the learned counsel for the appearing parties and have perused the materials available on record. 12. At the outset, it will be relevant to take note of Rule 8(c), (d) & (e) of the 2003 Rules, as it existed at the relevant time. They read as follows: "Rule 8 XXXX (c) The School Selection Committee for selection of Post Graduate/Graduate and Non-teaching staff of the school shall be as follows:- Chairman : The President of the Managing Committee Member : (a) One teacher to be nominated by the Managing Committee (b) One parent to be nominated by the Managing Committee Member Secretary: The Principal/Head Master of the School, i.e. the Secretary of the Managing Committee. In the School Selection Committee, there shall be one more member besides four in the Committee, who shall be subject expert in case of selection of Post-Graduate Teachers and Graduate Teachers wherever necessary." (d) The District Approval Committee for accordance of approval of the panel of selection for Graduate Teacher and Intermediate Teacher made by the School Selection Committee shall be as follows:- Chairman : Deputy Commissioner of the District Member-Secretary : Inspector of Schools Member : District Elementary Education Officer; (e) After approval of the panel of the selected candidates by the District Approval Committee, the Inspector of Schools shall appoint the selected candidates in order of merit from the approved select list observing all formalities to fill up the reserved quotas. Any appointment made from outside the select list shall ab-initio be invalid except appointment made on compassionate ground by the Government; XXXX" 13. The Selection Committee constituted by the School vide Resolution No.4 of the Managing Committee meeting held on 24.10.2004 consists of 7 members. The President of the Managing Committee is not a member of the Selection Committee; no parent was also nominated by the Managing Committee. 3 members of the Managing Committee, one retired Headmaster of a different school, one retired teacher of a different school, the Headmaster and one teacher of the school were the members. Based on selection made by the said Committee, the appellant was appointed on honorary basis in the post of Hindi Teacher against the retirement vacancy of Md. Chand Mohammad Ali, the retired Hindi Teacher. 14. Evidently, the School Selection Committee is not constituted, as rightly held by the learned Single Judge, in accordance with Rule 8(c) of the 2003 Rules. That apart, selection made by such Selection Committee was also not sent for approval of the District Approval Committee as required under Rule 8(d). Only after approval by the District Approval Committee, the Inspector of Schools is required to appoint the selected candidate in terms of Rule 8(e). Giving a total go- by to the provisions of the 2003 Rules relating to appointment, the Managing Committee, on its own, appointed the appellant on honorary basis, meaning thereby that he would not be entitled to any pay and allowances. 15. This Court in the case of Jahangir Alam and others Vs. Giving a total go- by to the provisions of the 2003 Rules relating to appointment, the Managing Committee, on its own, appointed the appellant on honorary basis, meaning thereby that he would not be entitled to any pay and allowances. 15. This Court in the case of Jahangir Alam and others Vs. State of Assam and others, reported in 2003(3) GLT 544, had held that the Managing Committee of a provincialised school, like the one in hand, has no legal authority to make any appointment and such appointees by virtue of the service rendered, are not entitled to be regularized. 16. When no appointment order by the Inspector of Schools was issued appointing the appellant, it is not understood on what basis the In-Charge Inspector of Schools had passed the order dated 31.12.2004 making salary arrangement for the appellant. The salary of the appellant having been stopped subsequently w.e.f. 01.01.2006, the appellant did not approach this Court raising any grievance and had approached this Court only in the year 2011 in WP(C) No.902/2014 when an advertisement dated 07.01.2011 was issued. Stoppage of salary was a clear indication that on the basis of appointment given by the Managing Committee, the appellant was not entitled to salary from the State. 17. When no order of appointment was issued by the Inspector of Schools, termination of service of the appellant by the Inspector of Schools also would not arise. From the certificate dated 10.09.2012 issued by the Headmaster, it appears that the name of the appellant was dropped from the school routine from 2011 and the respondent No.4 had asked him not to continue in the school. It is also indicated therein that on the request of students taking Hindi as a subject, he was taking Hindi classes. 18. If the Managing Committee, which has no authority to appoint any teacher, had tacitly allowed the appellant to continue in the school, by reason of such rendering of service, no right accrues to the appellant to claim salary from the State. The appellant was also aware that the Managing Committee had appointed him, though not legally entitled to, only on honorary capacity. 19. The appellant was also aware that the Managing Committee had appointed him, though not legally entitled to, only on honorary capacity. 19. In paragraph 53 of Umadevi (supra), the Supreme Court had laid down that in case of irregular appointment (not illegal appointments), if duly qualified persons in duly sanctioned vacant posts had continued to work for 10 years or more without the intervention of orders of Courts or of Tribunals, the question of regularization of services of such employees may have to be considered. In Dinesh Thakur (supra), the Patna High Court, following the judgment in Umadevi (supra), had held that as the appointments of the petitioners therein were irregular and as they had been continuing for a long duration of more than 10 years in sanctioned posts, their cases may be considered for regularization as a one-time measure. The Patna High Court had held that if there has been substantive compliance of the procedure of appointment, though not stricto senso compliance, the appointments fall in the category of irregular appointment and it is in this light, the appointment of the petitioners had been considered to be irregular and as the petitioners had rendered service for more than 20 years, it was observed that the judgment rendered in Umadevi (supra) will apply. 20. In Ranjana Begum Laskar (supra), it was held that any appointment made by an authority not empowered under the Rules, an adjustment/regularization made against posts not available or sanctioned and in violation of the provisions of the statutory Rules, would fall in the category of void appointments giving rise to no obligation on the part of the State to pay any salary to such appointees and that no writ or direction can be issued compelling the State to pay salary to the petitioners therein, even for the services rendered. Liberty was, however, granted to seek enforcement of their claims in a Civil Court of competent jurisdiction. 21. In the instant case, by no stretch of imagination, can it be said that the appointment of the appellant is an irregular appointment. Liberty was, however, granted to seek enforcement of their claims in a Civil Court of competent jurisdiction. 21. In the instant case, by no stretch of imagination, can it be said that the appointment of the appellant is an irregular appointment. There is no order of the appointing authority appointing the appellant and the appointment was made by the Managing Committee, who had no authority to make any appointment and, therefore, in the present facts and circumstances, the appointment being given by an authority, which is not a functionary of the State and which is not competent to make any appointment, the case of the appellant is a case of wholly unauthorized and illegal appointment qua the provision of 2003 Rules. That there was sanctioned post available at the time of making such appointment is inconsequential. 22. The judgment rendered in WA No.301/2012 and connected appeals is clearly distinguishable in the facts of the present case. The factual matrix as can be seen from the judgment dated 18.03.2015 is that the services of the petitioners therein were regularized, they having been appointed during 1992 to 1995 and they were continued to be paid salary till July, 2007. In paragraph 9 of the said judgment, it is observed that it is an admitted fact that all the respondents in the appeals are continuously working as teachers and their salaries were being paid by virtue of the Courts order. It was in that context when the salary was not paid from July, 2007, this Court had observed that the writ petitioners were entitled to their salaries. 23. In view of the above discussion, we find no merit in this appeal and accordingly, the appeal is dismissed.