High Court
Case Details
WP(C) 4896/2011 BEFORE THE HON’BLE MR. JUSTICE HRISHIKESH ROY Heard Mr. R.P. Sarmah, the learned Senior Counsel appearing for some of the writ petitioners. On behalf of the other writ petitioners, arguments are adv anced by Advocates Ms. N. Saikia, Mr. M.P. Sarma, Ms. B. Bhuyan, Mr. B. Ramchiar y, Mr. U.K. Das, Ms. K. Devi and Mr. P. Sarma and others. The respondents are re presented by Mr. D. Das, the learned Senior Counsel, assisted by Ms. M. Bordoloi , Standing Counsel, BTC. The State Government authorities are represented by Mr. U.K. Goswami, Standing Counsel, Education.
Legal Reasoning
2. These are cases of teachers of L.P./M.E. Schools in the Bodoland Autonom ous Council (BAC) jurisdictional area. The petitioners were appointed by the DEE O/DI of Schools, Nalbari and their services were terminated by the Director of E ducation, BTC (earlier BAC). The teachers were appointed sometime in the year 19 99 and when they were discharged at the first instance, this Court having consid ered that no opportunity was afforded to the appointees quashed their removal. B ut the authorities were given the liberty to take appropriate decision after aff ording reasonable opportunity to the affected persons. 3. llowing statement of allegations : Thereafter show-cause-notices were issued containing by and large the fo Your appointment was not preceded by the procedure of advertisement, int Your appointment was made during the period of ban on appointment impose (cid:28) & & & & & Upon enquiry it is found that your appointment has been made de-horse th e Rules and as such you are hereby directed to show cause as to why your service s may not be terminated with immediate effect for the following charges/allegati ons levelled against you. (a) erview and selection as envisaged by the Rules. (b) d by the Government of Assam. (c) The approval and clearance of the State Level Empowered Committee which was pre-requisite for appointment was not obtained prior to issuing your appoint ment letter and even thereafter. (d) uthority. (e) (f) f your appointment. Sd/- You have been appointed against a non-sanctioned and non-existent post. No Salary bill was either prepared or drawn in your name from the date o Your appointment was never approved by the erstwhile BAC/the competent a Director of Education Bodoland Territorial Council, Kokrajhar (cid:29) The noticees gave their reply and after considering the response, the im pugned termination orders have been issued in pursuant to which, cases have been filed by the aggrieved teachers.
Legal Reasoning
4. The BTC authorities defend the termination by contending that 3 tainted officials Mr. G.N. Haloi, Mr. A. Choudhury and Mr. S.N. Sarma who were serving a s the D.I. of Schools/DEEO, Nalbari at the relevant time had made large scale il legal appointments without approval of the erstwhile Bodoland Autonomous Council (BAC) Authorities and having noticed that more than 1300 illegal appointees wer e made by these 3 officials, in furtherance to show-cause-notices and considerat ion of the replies of the affected teachers, their services were terminated. 5. The challenge made by a group of terminated teachers was considered by t his Court and through a judgment dated 2.7.2010 in a batch of writ petitions, th is Court in Jagannath Kr Dey vs. The State of Assam reported in 2010 (3) GLT 632 dismissed the cases filed by the terminated teachers. Placing reliance on this judgment, it is argued by the respondents that since these petitioners are also on the same footing, similar order may be passed against them. However the Advocates appearing for the petitioners project that they ha 6. ve fresh points to argue and accordingly after putting the parties on notice on 21.3.2013, the (cid:28)new (cid:29) arguments advanced from the petitioners’ side, is being con sidered through this judgment. 7.1 The petitioners firstly contend that they were appointed in pursuant to the advertisement issued in January, 1997 by the Director of Elementary Educatio n, Assam, advertising 7500 posts of Assistant Teachers and accordingly it is arg ued that the view taken by the Court in Jagannath Kr Dey (supra) that the appoin tments were made without any advertisement, is a wrong conclusion. 7.2 Petitioners next submit that they were appointed after being selected by the Sub-Divisional Advisory Board and services of some of the appointees were s ubsequently regularized and accordingly the Counsel argue that it can’t be said that the petitioners were appointed illegally without due process. 7.3 The Advocates for the petitioners project the legitimacy of the appointm ent-process and they argue that appointments given in pursuant to due selection can’t be considered to be illegal as they were appointed against sanctioned post s and at worst, they can be considered as irregular appointees and in that event , they deserve to continue in service. 7.4. As the termination order(s) were issued by the Director of Education, BT C, it is argued by the petitioners that since they were appointed by the then D. I. of Schools/DEEO, Nalbari, who are officers under the Assam Government, the te rmination of such appointees couldn’t have been ordered, by an authority under t he BTC. 7.5 The Education Policy of the interim Bodoland Executive Council annexed a s Annexure-1 in the WP(C) NO.5087/2009 is projected by the Counsel to contend th at the appointments were made in accordance with the procedure prescribed by the Education Policy applicable at the relevant period and since the petitioners we re selected by the Nalbari Sub-Divisional Advisory Board, the character of their appointments should be considered to be legitimate, and not illegal. 8. On the 1st point urged by the petitioners about the appointment being ma de in pursuant to the advertisement issued in January, 1997, it is apparent that this very argument was advanced earlier during the hearing of the earlier batch of cases relating to terminated teachers. In Jagannath Kr Dey (supra) this Cou rt after noticing the fact that the advertisement was not issued for the Autonom ous Council area vacancies and was issued for other posts by the Director of Ele mentary Education, Assam and bearing in mind the specific exclusion Clause in th e advertisement i.e (cid:28)this employment notice is not applicable for Autonomous Cou ncil Area, Karbi Anglong and NC Hill District (cid:29), the Court concluded that (cid:28) & & & &.. advertisement wasn’t meant for the posts of LP and ME School teachers in BAC (cid:29). Since petitioners do not refer to any other advertisement there is no scope to t ake a positive view on the process of recruitment of the petitioners. 9. On the next point urged by the petitioners about appointment being regul arly made as they were duly selected by the Sub-Divisional Advisory Board as per the notification dated 11.2.1999, it must be noted that the role of the Sub-Div isional Board was only advisory and appointment had to be preceded by approval o f the competent authority of the BAC. In this case, approval wasn’t accorded for appointment of any of the persons short-listed by the Sub-Divisional Advisory B oard. This aspect was duly considered by the Court in the judgment in Jagannath Kr Dey (supra) and it was held that approval was not accorded by the competent a uthority of the BAC, for appointment of the candidates short-listed by the Sub-D ivisional Board. Accordingly the Court concluded that appointments were not mad e in accordance with the prescribed procedure. Therefore this issue is already d ecided by the Court. 10. Section 3 of the Assam Elementary Education (Provincialization) Rules, 1 977 lays down the procedure for appointment and it is clearly reflected in Rule 3 that vacancies should be advertised in newspapers to enable the interested can didates to apply. The manner of selection is also prescribed by the Rules. The p repared select list is required to be submitted to the competent authority of th e BAC for the vacancies within the BAC area and the select list is required to b e authenticated by the competent authority. The select list should then be publi shed and only thereafter with due approval, appointment can be made. But in the present process, neither was there any advertisement nor the vacancies were noti fied for open participation in the selection. The approval of the competent auth ority of BAC was never obtained for the appointments. In such circumstances, it is apparent that appointments were made by disregarding the Rules and the petiti oners were beneficiaries of an illegal process. Since Rules were disregarded and vacancies were not advertised and selection was not made as per the prescribed procedure and since the select list wasn’t approved and concurrence for appoint ment wasn’t given by the competent authority of the BAC, such appointments in my opinion has to be characterized as illegal. 11. The petitioners herein were beneficiaries of backdoor appointment and it is clear that large scale appointments were made through non-legitimate proces s. In Jagannath Kr Dey (supra) this Court took into account the appointments mad e by Mr. G.N. Haloi, Mr. S.N. Sarma and Mr. A. Chowdhury, the then DI/DEEO, Nalb ari and the Court described the illegal activity as a (cid:28)racket (cid:29) in Nalbari Distri ct where the appointing authorities had misused their position and made large sc ale illegal appointments. Considering the degree of illegitimacy of the process, the appointments can’t be considered to be irregular but has to be declared as illegal on all counts. Here not only were the Rules infringed but arbitrary and unfair action leading to denial of fair opportunity mandated by Article 14 and 1 6 in matters of public appointment, was violated. 12. On the challenge to the termination orders urged on the ground that peti tioners were appointed by Assam Government officials and not by the Autonomous C ouncil authorities, it must be borne in mind that in the year 1999, the BAC was at a nascent stage and the concerned D.I. and the DEEO at Nalbari were dischargi ng dual responsibilities. They were the appointing authority under the Assam Gov ernment and simultaneously they were also the appointing authority for teachers in schools in BAC area. Moreover it is the common case of all the petitioners th at they were selected by Sub-Divisional Level Selection Board which was constitu ted for the vacancies in the Autonomous Council schools. Therefore, merely becau se the concerned appointing authorities discharged dual function as appointing a uthority, it can’t be said that the petitioners appointments were made by a non- BAC appointing authority. The appointing officers were subject to administrative control by the autonomous council authorities in respect of their power for t he vacancies within BAC area and accordingly the argument made by the petitione rs that the petitioners termination can only be ordered by the State Government officials is not found tenable and the same is accordingly rejected. 13. The Education Policy of the interim Bodoland Executive Council and the N otification dated 25.6.1999 issued by the BAC authorities clearly show that the select list prepared by the Advisory Board is to be forwarded to the BAC (Educat ion) for due approval. Only after approval is accorded, appointment of the selec ted candidates is permissible. In the present case, it is nobody’s case that the select list prepared by the Advisory Board was ever approved nor it is submitte d by anyone that appointment approval was accorded by the competent authority of the BAC. This aspect was specifically considered in Jagannath Kr Dey (supra) by the learned Judge. As regards the constitution of the Advisory Board which sele cted the petitioners, it must be noted that the prescribed Advisory Board had mu ltiple Members headed by a Chairman. But it was noted in the earlier judgment th at the select list wasn’t signed by any of the members of the Advisory Board and only signature on the so called select list was that of the Chairman. Thus the select list wasn’t considered to be valid. 14. Referring to the softening stand of the BTC towards the terminated teach ers, Mr. R.P. Sarmah, the learned Senior Counsel submits that recently the BTC a uthorities have written to the State Government on 6.9.2012 for regularizing the services of the illegal appointees of BTAD areas. On this aspect, since this Co urt’s scrutiny is confined to the legitimacy of the appointment and the terminat ion process, the subsequent correspondence from the autonomous council and the S tate Government doesn’t have a bearing on the legal issue projected before the C ourt. Accordingly on the strength of the recent correspondence of the Secretary of the BTC to the State Government, I see no scope to take a different view than the one taken in Jagannath Kr Dey (supra). 15. In the earlier batch of cases, this Court found that appointments were m ade de-hors the Rules and termination was affected after show cause notices were issued and affording hearing to the affected teachers. After all materials were considered, this Court held that teachers were unauthorizedly appointed without clearance of the competent authority of the autonomous council and the so calle d select list was never approved. In fact that genuineness of the list was doubt ed as it didn’t have the signature of any of the 24 members of the advisory boar d. Interview boards prescribed by Rule 3 wasn’t constituted. The Court noted tha t everything was done by the very same person i.e. the D.I. of Schools, right fr om unauthorisedly approving and forwarding the so called select list and issuing appointment orders. Other authorities required to be associated with the proces s were kept out of the loop. The vacancies for the posts within autonomous counc il’s jurisdiction were never advertised in newspaper and steps were not taken to give wide publicity for the employment process, as contemplated by the Rules. D ifferent format of the appointment orders were scrutinized by the Court to concl ude that they were the (cid:28)creation of some unscrupulous officials including the th en D.I. of Schools (cid:29). The process through which appointments were made was descri bed as (cid:28)racket (cid:29) by the Court in Jagannath Kr Dey (supra). When these aspects wer e noticed, the Court didn’t see any ground to interfere with the termination ord er. Today although the lawyers for the petitioners submitted that they have (cid:28)new (cid:29) points to argue, the Court finds that bulk of the so called (cid:28)new (cid:29) arguments we re already presented in the earlier round only to be rejected by the Court in Ja gannath Kr Dey (supra) after due consideration. 16. However on the salary claim of the terminated teachers, no specific orde r was passed on that occasion. Some of the terminated teachers have not been pai d their salary and accordingly they seek direction for payment of their arrear s alary. In this context, Mr. D. Das, the learned Senior Counsel submits that the BTC has taken the stand that salary till the date of termination, would be paid. This is the right approach of the respondent as due wages for service rendered shouldn’t be withheld. Accordingly the Court directs the BTC to ensure disbursa l of the arrear salary of the petitioners till the date the termination orders w ere issued. It is ordered accordingly. 17. Having regard to the foregoing discussion and considering the reasoning given in Jagannath Kr Dey (supra) where, practically all aspects of the argument s of the terminated teachers were dealt by the learned Judge, with which I am in respectful agreement, this Court is inclined to concur with the conclusion in J agannath Kr Dey (supra). Consequently the cases are dismissed without any order on cost.