High Court · 2010

Heard Mr. A.K. Goswami, learned senior counsel assisted by Mr. A.R. Bhu yan, learned counsel for the petitioners. Also heard Mr. M.R. Pathak, learned S tanding Counsel, Education Department. 2. By means of this writ petition filed by the petitioners numbering 94, it has been prayed that the respondents be directed to pay salary to the petitione rs stated to be payable from 2001. At the very outset, Mr. Goswami, learned cou nsel for the petitioners has submitted that some of the writ petitioners had the occasion to approach this Court by filing WP(C) No.6930/2001 making the same pr ayer. The said writ petition was disposed of by the following order :- (cid:28)28.9.2001 Heard Mrs. B. Devi, learned Counsel for the writ petitioner and also Mr. A. Thak ur, learned counsel for the State Respondents. The case of the petitioners in brief is that their services were adjusted/appoi nted by the orders passed on 22.2.2001 (Annexure-6 to 28) by the Deputy Inspecto r of Schools, Silchar. Their grievance is that despite being adjusted/ appointed , their pay and allowances have not been paid as yet. This petition is disposed of with a direction to the respondents, particularly t he Commissioner and Secretary to the Government of Assam, Education Department t o examine the claim of the writ petitioners and to make payment of the amount if any found payable to them on such examination provided they were duly appointe d by the competent authority in accordance with the provisions of law. The exerc ise in this behalf be undertaken and completed within a period of two months fro m the day when a copy of this order is furnished to him by the writ petitioners. No costs. (cid:29) (Emphasis added).

3. From the above order, what is seen is that the petitioners involved in t he said writ petition were entitled to receive salary only if they were duly app ointed by the competent authority in accordance with the provisions of law and o therwise not. In State of Manipur v. Y. Token Singh, reported in (2007) 5 SCC 6 5 and State of A.P. v. K. Brahmanandam, reported in (2008) 5 SCC 241, the Apex C ourt has held that if the candidates are appointed de hors the Recruitment Rules , mere continuance in service will not entitle the incumbents to receive salary.

4. The petitioners in support of their claim for salary, have also placed r eliance on the Division Bench judgment of this Court dated 29.4.2010 passed in W .A. No.321/2008 (Ranjana Begum Laskar & Anr. v. State of Assam). The petitioner s claim that the issue involved in the said appeal is identical to the issue inv olved in this case. However, since some of the petitioners had already approache d this Court by filing the earlier writ petition about which mention has been ma de, their case will be governed by the order passed in the said writ petition qu oted above. Be it stated here that in the Division Bench judgment referred to ab ove also, it has been categorically held in paragraphs 12 and 15 that there bein g infraction of Rule 3 (1) of the Rules in question, it is difficult to adjudge the appointments of the appellants involved therein to be valid. The petitioner s were also appointed along with the said appellants and thus, their appointment s were also not valid. For a ready reference, paragraph 12 and 15 of the said j udgment is quoted below:- (cid:28)12. idered. That the appellants were initially appointed by the managing committees of their respective schools on honorary basis and that too after the provinciali zation of their institutions is an admitted fact. Whereas they claim that their services had been validly regularized in terms of the aforementioned order of th e Deputy Inspector of Schools, Cachar, Silchar in accordance with law, the State respondents contend to the contrary asserting that the same is in gross violati The pleadings of the parties and the rival arguments have been duly cons on of the Rules. That the State respondents have wavered in their stand on the i ssues seeking adjudication in the writ proceedings is writ large from the affida vits as well as official communications brought on record from time to time. Tha t the Deputy Commissioner, Cachar, Silchar following an investigation into the r elevant facts as ordered had returned the finding that the appellants had in fa ct been rendering services in their respective schools a revelation, not serious ly disputed by the State respondents. They have concentrated on the invalidity o f their induction and continuance in service on the plea of contravention of the Rules. Noticeably the merit list now sought to be relied upon by the appellants was not a part of records of the writ proceeding and thus, logically the learne d Single Judge could not have taking the same into consideration. His findings a nd conclusions therefore, are dehors the said document. 15. The above notwithstanding, in the teeth of the unamenable prescription o f Rule 3(1) of the Rules we find it difficult to adjudge the appointments of the appellant to be valid. The aforementioned provision of the Rules having in clea r terms outlined the procedure for appointment recognized in law, no substitute thereof can either be contemplated or countenanced. To this extent the finding o f the learned Single Judge is sustained. However, it having been held that the i nduction and the continuance of the appellants are not wholly dehors any process of evaluation of their suitability, in the face of their assertion of continuan ce in service, we are inclined to issue appropriate direction to the State respo ndents to examine their claim for salary and other allowances admissible in law for the services rendered by them. This is also in view of the fact that the Sta te respondents though seek to brand their continuance in service as wholly illeg al and unauthorized had without any demur utilized the same for public good. (cid:29)

5. Apart from the above, in paragraph 16 of the Division Bench judgment, it has been held that the determination made in the appeal shall not be construed to be precedent in future as the adjudgement has been caused in the unique facts and circumstances of the case. By the said judgment, it was provided that the respondents should consider the case of the appellants for payment of salary in accordance with law. As to what is the legal position, has been noted above.

6. The petitioners have stated in the writ petition (paragraph 12) that the y were appointed as honorary teachers. However, no appointment order has been an nexed to the writ petition. The orders on which the petitioners have placed reli ance, are all regarding adjustment against the existing vacant post. There is no such mode of recruitment in the Recruitment Rules. This aspect of the matter ha s been dealt with by this Court in the judgment reported in (2009) 2 GLT 159 (Mu saraf Hussain Laskar v. State of Assam & Ors.), wherein referring to Rule 3 of t he Assam Elementary Education (Provincialization) Rules, 1977, it has been held that the adjustment of service being not in purview of Rule 3, the D.I. of Scho ols, adjusting the services of the petitioners involved therein was illegal.

7. Another aspect of the matter is that when the petitioners were appointed as honorary teachers, the schools were already provincialized one. As has been held by this Court in Jahangir Alam & Ors v. State of Assam and others reported in (2003) 3 GLT 544, the appointments made by the Managing Committee of the sch ools, which are already provincialized, are illegal and cannot give rise to any kind of right towards regularization/adjustment of services.

8. Mr. Pathak, learned Standing Counsel, Education Department has also plac ed reliance on the order of this Court dated 11.6.2010 passed in WP(C) No.3293/2 010 (Shia Mohammed Ali v. State of Assam & Ors.) in which rejecting the claim of the petitioners for payment of salary from 1996, it was held that such claim wa s barred by principles of limitation, delay and latches. Following the said deci sion, this Court passed similar order on 2.11.2010 in WP(C) No.6184/2010 (Binod Saharia v. State of Assam & Ors).

9. Although the petitioners has placed reliance on the aforesaid Division B ench judgment, the appellants/ petitioners involved in the said appeal, had file d the writ petition wayback in 2003 but the present petitioners barring the one s, who had earlier filed WP(C) No.6930/2001, mentioned above, never approached t his Court, It is submitted that some of the petitioners had also filed other wri t petitions owever, since some of the petgitioners had also approached this Cour t by filing t he ear lier writ petition mention of which in or around some time . As to what was the outcome of the said writ petitions has been indicated abov e. The petitioners involved in the said writ petitions are also the petitioners in the instant case. They have filed the writ petitions with the same prayer an d with the prayer for same relief.

10. ion and accordingly the writ petition is dismissed. For all the aforesaid reasons, I do not find any merit in the writ petit