Judgment · High Court · 2012

The application in M.C. 2496/2011 discloses that this Court by its order dated 13.7.2009 passed in a series of writ petitions, the lead case being WP(C) 1048/2004, taking note of the report submitted by the High Powered Committee co nstituted by it, identified, amongst others, the issues of regularisation of OBB Teachers and of the illegally and irregularly appointed teachers in the provinc ialised Elementary Schools of the State. While dealing in particular with the is sue of regularisation of illegally and irregularly appointed teachers, this Cour t in this order, amongst others, observed with reference to the report of the Hi gh Powered Committee that even if all the OBB Teachers were to be appointed agai nst available vacancies in one go, there would still be vacancies for regularisa tion of all illegally and irregularly appointed teachers numbering 3281. Referen ce has also been made in the application to the order dated 31.7.2009 in the sam e proceedings wherein it was recorded that the issue with regard to regularisati on of OBB Teachers (2173 of the group of 4040 and 5790 of the group of 7066) as well as of 3281 irregularly/ illegally appointed teachers and the need for furt her recruitment of teachers in the Elementary Schools along with other connected issues were then pending before the State Government. In the attendant circums tances this Court vide this order dated 31.7.2009 restrained the State responden ts from making further recruitment of teachers in the Elementary Schools of the State without its leave pending finalization of the issues highlighted in the or der dated 13.7.2009 by the State Cabinet. The applicant has further averred of the order dated 2.3.2010 passed in WP(C) 10 48/2004 leaving it to the State Government to frame a policy in accordance with law for eventual accommodation of 3281 illegally appointed teachers who, as th e records revealed, had been identified on field verification, to be working . T he order dated 5.3.2010 sought to be modified and/or suitably altered was, there after, passed in the accompanying WP(C) (Taken Up) 1457/2010. It was recited the rein that the Cabinet on 10.12.2009 had taken a decision for phasewise regularis ation of the OBB teachers and that in the first phase all 2173 teachers of the g roup of 4040 were included along with 1814 teachers belonging to the group of 70 66, thus, totaling 3987 out of 7963 (2173 + 5790). By the aforementioned order, this Court permitted the State Government to complete the process of regularisat ion of these 3987 teachers within a time frame of two months from that date lea ving it to the State Cabinet to take an appropriate decision to the same effect in respect of the remaining OBB Teachers. While according this permission, this Court being mindful of the interest of the remaining 3976 teachers (7963-3987) s temming from its order dated 1.7.2008 passed in WA 376/2002, restrained the Stat e Government from making further recruitment of teachers in Upper Primary and Lo wer Primary Schools of the State be it on regular, ad-hoc or contractual basis w ithout taking its leave. The application of the State of Assam reveals in the above factual backdrop that pursuant to the orders of this Court, in different phases 1986 OBB teachers (ou t of the group of 4040) in various provincilaised Upper Primary Schools of Assam and 5677 teachers (out of the group of 7066) in various provincialised Elementa ry Schools were regularized in December, 2010. Additionally, 218 dropped teacher s have been appointed in the month of July, 2011 in terms of the order passed in MC 252/2011 in WP(C) (Taken Up) 1457/2010. Emphasis has been laid with reference to the Right of Children to Free and Compu lsory Education Act, 2009 (for short, hereinafter referred to as ’the Act’) to p lead that in terms of the mandate contained therein not only the State Governmen t has to follow the qualification prescribed by the National Council for Teacher Education (NCTE) Regulation for appointment of teachers in elementary schools , prescribing further the requirement of passing the Teachers’ Eligibility Test (TET), having regard to the Teacher-Pupil Ratio (for short, ’TPR’) in the elemen tary schools as incorporated in the Schedule to the Act as well as Section 19 an d 25 thereof, fresh recruitment to these schools are imperatively indispensable in order to meet these legislative sanctions. In its additional affidavits seeking to supplement these assertions, the State a pplicant has brought on record the fact that meanwhile the Cabinet on 26.2.2011 has approved the proposal of the Education Department for constituting Screenin g Committees to examine the cases of the irregularly appointed teachers working since 1991 without any break till date to facilitate a decision for their regula risation or otherwise. It has been stated further that in deference to this deci sion, Office Memorandum bearing No. ELC.WP(C)1048/2004/988/Pt.II/22 dated 15.11. 2011 has been issued prescribing the constitution of such Screening Committees a nd also the guidelines for the functioning thereof. In terms of this Office Memo randum Screening Committees are, amongst others, required to scrutinize and exam ine the relevant records, interview the teachers and submit reports within a per iod of six months from their constitution, whereafter, an appropriate decision w ould be taken by the State Cabinet. In the additional affidavit dated 10.1.2012, it has been stated on oath that the estimated number of irregularly appointed teachers is 3813 with the following b - - 3147 666 reak-up: Lower Primary Schools Upper Primary Schools The State applicant, however, has maintained that this number is likely to get r educed following the scrutiny by the Screening Committees in terms of the Office Memorandum dated 15.11.2011 in view of the stringent parameters contained there in. According to the State applicant, only those teachers who possess the requis ite educational qualification and whose appointment letters were actually issued by the competent authority on verification of the official records even though those were in excess of the number of sanctioned posts at the relevant time woul d actually be eligible for consideration for regularisation of their services an d judged by this yardstick the eventual number of deserving irregularly appointe d teachers is not likely to exceed 2000. Highlighting that the State of Assam ha s taken a decision also to create sufficient number of supernumerary posts, if n eed be, to regularize the services of such deserving eligible irregular teachers on the completion of the on-going screening process in terms of the Office Memo randum dated 15.11.2011, the State applicant has averred that the process of scr utiny has since been initiated and the consequential steps have already been tak en bearing in mind the outer limit of time of six months for completion thereof. While disclosing that the total number of available posts for recruitment on reg ular basis as on date is 18,351 excluding the vacant posts of teachers in the Ka rbi Anglong Autonomous District Council area, the State applicant has divulged t hat the Government presently intends to appoint about 50,000 teachers on contrac tual basis to meet the exigencies of the situation generated by the promulgation of the Act. That a process has also been initiated to create adequate number of regular posts to meet the requirements of this enactment has been underlined as well. The application further discloses that presently there are 35,065 Lower P rimary and 5863 Upper Primary Schools (Government and provincialised) in the Sta te with the following enrolments : Lower Primary Schools Upper Primary Schools - - 29,83,939 10,31,244 Referring to the prescriptions of the Act qua the enrolment of teachers for the elementary schools, the State applicant has indicated that having regard to the present incumbency there is a shortfall of 95,159 teachers. That for the State Government’s failure to recruit teachers against 28,793 posts sanctioned by the Central Government under the Sarba Shiksha Abhiyan Mission, no further po st has been sanctioned for the 2011-2012 Plan and that the said available vacant posts are likely to lapse if not filled up at the earliest has also been mentio ned. The State applicant has also disclosed that with the teachers in position, 5048 Lower Primary Schools are without a single teacher and 7691 Schools are run ning with one teacher which, in terms of the requirements of the Act, depicts th at 12,739 schools are suffering from acute shortage of teachers to the great pre judice of the children in violation of their fundamental right to education. In the above factual scenario the prayer for leave to appointment teache rs on ad-hoc, regular or contractual basis has been made. The Council in its application while emphasizing that all the eligible O BB Teachers of the Lower Primary/ Upper Primary Schools situated within its area have since been regularized, it has sought the leave of this Court to complete the process of selection initiated in the year 2005 in Middle and Primary School s of its four districts as referred to in its letter dated 24.1.2011 (Annexure-C ) addressed to the Commissioner & Secretary to the Govt. of Assam, Education (E) Department. According to it, though the selection has otherwise been completed by the Advisory Boards constituted for the purpose, the results thereof could no t be published due to lack of approval of the SIU. That many such posts are lyin g vacant since 1999 and thereafter due to retirement and demise of the employees resulting in acute shortage of teaching and non-teaching staff has been emphasi zed. Its failure to elicit a response in this regard from the State respondent h as also been referred to. Abiding by the respective pleadings as recited hereinabove, the learned counsel for the applicants have insisted for the reliefs prayed for therein. Th e learned Additional Advocate General, Assam has submitted as well that all OBB Teachers of both the groups have since been regularized. This Court by its order dated 21.12.2011 had required the State applican t to file an affidavit disclosing inter alia :- i) uld come within the purview of the Cabinet decision dated 26.2.2011. ii) the number of posts available to accommodate both categories of teachers the estimated number of illegally/ irregularly appointed teachers who wo i.e., a) 1; and b) ht for. deserving illegally and irregularly appointed teachers working since 199 those to be recruited through the fresh process for which leave was soug The underlying purpose of the queries is to obviate the possibility of a conflic t of interest in the near future between these two groups of teachers leading to multiplicity of litigation and consequent frustration of the endeavours to reso lve the lingering controversy consternating the Department. The additional affidavit dated 10.1.2012 of the State applicant in particular d iscloses that the estimated number of illegally/ irregularly appointed teachers in the elementary schools as on date is 3813 and that this figure is likely to g et reduced following the process of scrutiny by the Screening Committees as con templated vide the Office Memorandum dated 15.11.2011. The parameters and the pr ocedure to be followed by the Screening Committees as reflected in this Office M emorandum have also been noticed by us. On an assessment made by the State applicant, the eventual number of the deservi ng illegally/ irregularly appointed teachers entitled for regularisation would n ot exceed 2000. Further the disclosure that a decision has been taken by the Sta te of Assam to create sufficient number of supernumerary posts, if need be, to r egularize the services of such deserving illegally/ irregularly appointed teache rs cannot also be lost sight of. The averments based on the prescriptions of the Act, be it relatable to the norms of enrolment vis-à-vis the teachers of elemen tary schools and the teacher-pupil ratio also ought not to be brushed aside as i rrelevant or inconsequential. The statement with regard to the shortfall of teac hers in the elementary schools for the present in absence of any material to the contrary cannot be overlooked as well in the greater public interest. Vis-à-vis the selection process initiated in the year 2005 for the vacant posts of teaching and non-teaching staff of the Middle and Primary Schools located wit hin the four districts of the Council areas as referred to in the letters dated 24.1.2011 and 28.1.2011 (Annexure-C and D to M.C. No.3244/2011), it is submitted at the Bar that writ proceedings in connection therewith are pending. These po sts, as would be evident from the additional affidavit dated 10.1.2012, are incl uded in the available posts for recruitment on regular basis numbering 18,351. Having regard to the stated on-going process of scrutiny by the Screening Commit tees in terms of the Office Memorandum dated 15.11.2011 and on a cumulative cons ideration of the averments available from the present pleadings and the document s on record, it is ordered as follows:- 1) Pending completion of the process undertaken by the Screening Committees as above, the State applicant is accorded liberty to initiate a process for fre sh recruitment on regular basis of teachers in elementary schools of Assam again st the available 18,351 posts minus- i) 3813 posts (3147 in Lower Primary Schools and 666 in Upper Primary Schoo ls). This will be in addition to the decision of the State Government to create sufficient number of supernumerary posts, if need be to regularize the deserving illegally/ irregularly appointed teachers. ii) Posts of elementary school teachers for which, as claimed by the Council , selection process had been initiated in the year 2005 and is pending finaliza tion. 2) The selection process initiated by the Council in the year 2005 vis-à-vi s the posts as referred to in the letters dated 24.1.2011 and 28.1.2011 would a bide by the adjudication pending before this Court on the same issue. No leave to complete the same for the present is granted to the Council. The restraint on recruitment of teachers in the elementary schools of Assam as c ontained in the order dated 5.3.2010 passed in WP(C) (Taken Up) 1457/2010 is rel axed only to the extent as indicated hereinabove. Both the Misc. cases are accordingly disposed of.