High Court · 2012

02. I have heard Mr. I.H. Saikia, learned counsel for the review app licants and Mr. M.R. Pathak, learned Standing Counsel, Education Department, Ass am for the opposite party.

03. The review applicants are 10 out of the writ petitioners in WP(C ) No.6331/2003. They instituted this writ proceeding contending that they had be en appointed as stipendiary teachers in various Lower Primary Schools of the Sta te at a stipend of Rs.900/- per month in the year 1993 following a selection. They, thereafter, duly joined their posts and started rendering their services. They were however not deputed for Junior Basic Training as mentioned in their ap pointment letters. Their services having been abruptly terminated in the year 1 997, they approached this Court with Civil Rule No.5644/1997, which was disposed of on 06.04.2000, thereby, interfering with the order of termination of their s ervices with a direction for their reinstatement. It was clarified that they wou ld not be entitled to back wages from the date of their termination i.e. 13.11.1 997 till the date of their reinstatement. The State respondents, therein were h owever ordered to release their pay and allowances from the date they had joined till their services were terminated. They were accordingly taken back in servic e on 17.09.2002. Alleging that though, subsequent thereto, they rendered their s ervices without any break, they were neither regularized nor was their pay relea sed, they approached this Court with WP(C) 6331/2003. The State respondents, in their affidavit, affirmed by the Secre 04. tary of the Education Department, admitted that the writ petitioners/review appl icants had been appointed as stipendiary teachers in the year 1993 and that thei r stipend was released up to 31.05.1994. The same was withheld in terms of the decision of the Government to that effect vis-à-vis all stipendiary teachers who had been appointed in excess or against non-existent posts on/or after 01.01.19 93. According to the State respondents, the writ petitioners/review applicants had been serving against non-existent posts for which they were not deputed for the Junior Basic Training and their services were ultimately terminated in the y ear 1997, pursuant to the orders of this Court passed in Civil Rule No.2455/99 a nd Civil Rule No.2466/99. They averred that the reinstatement of the writ petit ioners/review applicants pursuant to the order dated 06.04.2000 passed in Civil Rule No.5644/97 was against non-existent posts for which as well their stipend c ould not be released. This Court by order dated 26.08.2003 passed in WP(C) No.6331/2003, while issuing Rule directed payment of the current salary of the writ petitioners on regular basis, WP(C) No.8397/2004 was filed later by other teachers claiming that they are equally placed. As the records would reveal, as in spite of the order date d 26.08.2003 payment of the current salary of the writ petitioners was not made, orders were passed in succession in terms whereof, a Committee was constituted, which in its meeting held on 10.06.2008 following an inquiry recorded that the writ petitioners/review applicants though had appeared in the interview conducte d by the Sub-Divisional Level Advisory Board, Karimganj in the year 1992, they w ere not selected by it. However, the then Director of Elementary Education, Ass am hand picked and accommodated them. Appointment orders in their favour were a lso issued in violation of the provisions of the Assam Elementary Education (Pro vincialisation), Rules, 1977 (hereinafter for short referred to as the Rules). T hat pursuant to the order dated 06.04.2000 passed in Civil Rule No.5644/97, the then Deputy Inspector of Schools, Karimganj reinstated the writ petitioners/revi ew applicants against the non-existent posts and that consequentially their sala ry could not be released was also determined by the Committee.

05. This Court by order dated 05.02.2009 drew up a proceeding under the Contempt of Court (Gauhati High Court) Rules, 1977 registered as Cont. Case No. (C) (Suo Moto) 66/09 and directed the same to be listed along with COP (C) N o.717/04 to be adjudicated upon separately. Suffice it to mention that these co ntempt proceedings have stemmed, from this Court’s prima facie perception of und ue and unjustifiable slackness of the concerned respondent authorities in comply ing with the order dated 26.08.2003 passed in the interim directing them to rele ase the current salary of the writ petitioners/review applicants. Further refer ence to these proceedings at this stage is inessential.

06. Be that as it may, during the pendency of the aforementioned wri t proceedings, by order dated 16.02.2009 of the Director, In charge, Elementary Education, Assam, the writ petitioners/review applicants were adjusted and po sted in vacant posts as referred to therein on a fixed pay of Rs.1800/- per mont h.

07. In the above backdrop of pleadings, this Court rejected the writ petitioners’/review applicants’ claim for regularization and/or continuance in service on the following grounds: (a) None of the appointment orders of the writ petitioners/revie w applicants did mention that they had been selected in any process undertaken u nder the Rules; (b) According to the Committee constituted by the Court, though, the writ pe titioners/review applicants had participated in a selection contemplated by the Sub Divisional Level Advisory Board, Karimganj in the year 1992 they were not se lected but were subsequent thereto illegally picked up for appointment; (c) he Rules and thus non est in law; The order dated 06.04.2000 passed in Civil Rule No.5644/97 interfering w (d) ith the termination of their services and directing their reinstatement was rend ered without any adjudication of the aspect of validity or otherwise of their in itial recruitment; (e) s is a finding of fact recorded by a Committee constituted by the Court. They were however declared to be entitled to their pay/stipend as due in law for The appointments of the writ petitioners/review applicants were dehors t Their initial induction in service had been in contravention of the Rule the services rendered by them since 17.09.2002 without any discrimination. The records reveal that following this determination, by order d 08. ated 11.06.2009, the Secretary to the Govt of Assam, Education (E), Department r equired the Director of the Elementary Education, Assam to release pay/stipend o f the writ petitioners in WP(C) No.6331/2003 and WP(C) No.8397/2004 immediately and pass necessary orders to discontinue their services. The order dated 11.06. 2009 was independently assailed by the review applicants in WP(C) No.2600/2009 i nter alia on the ground that meanwhile, in terms of a decision of the State Cabi net taken on 12.02.2004, their services had been regularized as a matter of pol icy. By order dated 02.07.2009, this Court declined to interfere and instead on a prayer made on their behalf, the review applicants were allowed to withdraw t he writ petition and leave was granted to them to seek review of the judgment an d order dated 15.05.2009. The review applicants, however preferred an appeal be ing WA No.219/2009 against the order dated 02.07.2009 which stood disposed on 17 .07.2009 leaving them at liberty to seek review of the judgment and order dated 15.05.2009. The instant application has thus been filed. By order dated 23.05.2 011 issued by the Director, Elementary Education, Assam, the review applicants h ave been discontinued from their services. Mr. Saikia has urged with reference to the Cabinet decisions dat 09. ed 22.02.2004 and 26.02.2011 that it having been decided thereby, in principle, to consider the absorption of teachers who had been working since 1991 without a ny break after following due procedure and in accordance with the judicial prono uncements, the decision dated 15.05.2009 ought to be suitably reviewed to facili tate this exercise vis-à-vis the review applicants. According to the learned co unsel, the review applicants having been reinstated in service pursuant to the o rder dated 06.04.2000 passed in C.R. No.5644/97, their termination having been h eld to be illegal, the finding recorded in the decision dated 15.05.2009 to the effect that their appointments are dehors the Rules, is untenable and ought to b e recalled.

10. The learned Standing Counsel, Education Department, has submitte d that the Cabinet decisions per se have no relevance as a ground for review of the decisions dated 15.05.2009. Further as would be apparent from the order dat ed 06.04.2000 passed in Civil Rule No.5644/97, as correctly recorded in the deci sion dated 15.05.2009, the same does not signify validity of the appointment on the touchstone of the Rules.

11. Upon hearing the learned counsel for the parties and on a consid eration of the materials on record, I am inclined to sustain the plea taken on b ehalf of the opposite party. This Court having determined the issues raised in WP(C) No.6331/2003 and WP(C) No.8397/2004 on merits, on a due consideration of a ll relevant aspects, the Cabinet decisions now sought to be pressed into service do not constitute in law a ground for review thereof. The instant Cabinet deci sions which embody the State’s policy on the issue of regularization of service of excess teachers in its Schools cannot in the comprehension of this Court deci de the course of judicial adjudication based on facts and law. It would be up t o the State respondents, in the face of the Cabinet decisions to decide the appr opriate steps in terms thereof but the application thereof (Cabinet decisions) t o recall a curial verdict is incomprehensible. The order dated 06.04.2000 passe d in Civil Rule No.5644/97 as the text thereof would reveal directed reinstateme nt of the review applicants in service as their removal was in the teeth of an i nterim order to the contrary passed in Civil Rule No.3342/97. This was dehors a ny analysis of relevant facts and law bearing on the legality or otherwise of th eir appointments in service at the time of their induction, thereto. This as wel l is of no relevance as a ground for review of the judgment and order dated 15.0 5.2009. The petition, therefore, lacks in merit and is dismissed. The aforementioned Misc. Cases are also closed accordingly. No costs.