High Court · 2009

Name ment-appoint against substantive vacancy e Kopahtoli Primary School, Dhemaj Shri Kusha Kanta Dutta (Petitioner No. 1) i on 6/3/1984 By D.I. of Schools, Dhemaji, pur suant to the letter dated 26/2/1999 of the Director of Elementary Education, Ass Rs. 1185/- - Rs. 2395/- am. Headmaster, Kapahtali L.P. School, Dhemaji. Smt. Taruni Handique (petitioner No. 2) Hahsora L.P. School on 9/5/1981 CR 756/9 3 and 1/4/1993 By D.I. of Schools, Dhemaji, in compliance of the order dated 11 /11/1993 of the Joint Director of Elementary Education, Assam. Assistant Teache r in Akajan L.P. School, Dhemaji. Assistant Teacher in Padumoni L. P. School, Dhemaji. Missing Adikalison L.P. School o Shri Mohan Chandra Ngaty (petitioner No. 3) By D.I. of Schools, Dhemaji, in n 1/3/1989 compliance of the order dated 4/9/1995 of the Director of Elementary Education, Time scale of pa Assam. Assistant Teacher in Kamchibam L.P. School, Dhemaji. CR 7383/94 and 19/10/1994 12/9/1981 y after completion of basic training course from May 2000. ur Baleswari L.P. School, Laipulia, Dhemaji. Shri Chandiram Narah (petitioner No. 4) Balkate Dilphung L.P. School, Dhemaji on By D.I. of Schools, Dhemaji, in complian ce of the order dated 20/10/1995 of the Director of Elementary Education, Assam. Assistant Teacher, Bhehpara L.P. School, Dhemaji. Headmaster, Bahb ari L.P. School, Sisibargaon Revenue Circle, Dhemaji. Smti. Maloti Handique (petitioner No. 5) hemaji in the year 1981. CR 97/94 and 15/9/1994 Headmaster, Ramp CR 1637/89 and 15/2/1991 Sripani LP. School, Dhemaji. Gergeri Kapahtali L.P. School, D Appointed by the Sanctioned regul Assistan ar scale of pay and allowed to cross efficiency bar on 13/6/2007. t Teacher in Gergeri Kapahtali L.P. School. Tarajan Dhunaguri L.P. School, on 1/9/19 Shri Pradip Sarma, (petitioner No. 6) 82 By D.I. of Schools, Dhemaji, in compliance of th CR 806/93 and 1/9/1982 e order dated 15/7/1993 of the Director of Elementary Education, Assam. Assistan t Teacher in Patiri L.P. School, Dhemaji. Time scale of pay after completi on of basic training course. Obtained certificate on 23/6/2006. Assistant Teache r in Patiri L.P. School, Dhemaji. D.I. of Schools, Dhemaji. The petitioners have contended that they have being rendering th 5. eir services without any blemish till date. As their salary had been withheld fr om the month of September, 2007, they made necessary enquiries and were informed that their names appear in the list of 752 teachers determined to have been app ointed against non-existent posts in the Dhemaji Sub-Division in the year 1989. According to them, though necessary clarifications have been provided by the jur isdictional Deputy Inspector of Schools to the Director of Elementary Education, Assam, that 39 teachers including the petitioners had been released their salar y in view of their fresh appointments after 1989, for no justifiable reason they stand deprived of their legal dues. WP(C) 2811/2008 The petitioners claim to have passed the H.S.L.C. examination an 6. d contend to be possessed of the requisite qualification to be appointed as Assi stant Teachers of the L.P. Schools of the State. They assert that following thei r selection by the competent authority, they had been appointed as Assistant Tea chers of various schools by the Deputy Inspector of Schools, Dhemaji, consequent upon which they have joined their posts and are rendering their services. To be tter appreciate their service particulars at a glance, the same are furnished he reinbelow. Year of selection Board conducting the Selection f 1994 Sub-Divisional Level Advisory Board, Dhe 1994 Sub-Divisional Level Advisory Board, Dhe Smti. Karabi Baruah (Handique) 1994 Sub-Divisional Level Advisory Bo Smti. Bijoy Lakhi Pegu Smti. Padmawati Taid Smti. Binumai Gohain Name Petitioner or L.P. Schools Post 1. 2. 3. ard, Dhemaji 4. 5. 6. 7. 8. 9. Smti. Nilima Gogoi Sri Duleswar Gogoi Smti. Lichi Dutta Smti. Indu Baruah Smti. Nibedita Gogoi 1994 Sub-Divisional Level Advisory Board, Dhe 1994 Sub-Divisional Level Advisory Board, Dhe 1994 Sub-Divisional Level Advisory Board, Dhe 1994 Sub-Divisional Level Advisory Board, Dhe 1994 Sub-Divisional Level Advisory Board, Dhe 1994 Sub-Divisional Level Advisory Board, Dhe 10. 11. 12. 13. 14. 15. 16. 17 Smti. Anjali Chutia 1994 Sub-Divisional Level Advisory Board, Dhe Smti. Padma Devi 1994 Sub-Divisional Level Advisory Board, Dhe 1994-95 Sub-Divisional Level Selection Board, Dh Sri Lohit Saikia Quota reserved for sons and daughters of retired teachers Sri Rama Kanta Doley Quota reserved for sons and daughters of retired teachers Smti. Ranju Gogoi Quota reserved for sons and daughters of retired teachers Smti. Kanmai Deori Quota reserved for sons and daughters of retired teachers Smti. Nanima Chutia 1992 1994-95 Sub-Divisional Level Selection Board, Dh 1994-95 Sub-Divisional Level Selection Board, Dh 1994-95 Sub-Divisional Level Selection Board, Dh Sub-Divisional Level Advisory Board, Dhe Sri. Tuleswar Deori Retired vacancy in Dhemaji District 1995 Sub-Divisional Level Advisory Board, Dhe

7. The petitioners have admitted that their earlier appointments in the year 1989 in various L.P. Schools had been cancelled in the year 1992. They have maintained that in the meantime they have completed their basic training c ourse and are enjoying regular time scale of pay. According to them, their servi ces have also been confirmed by the competent authority from the date of passing of the basic training and that the petitioners No. 7, 8 and 16 have in the mean while been promoted to the post of Headmaster. Their grievance is that their sal aries have been withheld from August, 2007 on the ground that they had been earl ier appointed in the year 1989 and that the payment of the salary of 752 teacher s identified to have been appointed against non-existent posts has been decided to be stopped. They have similarly contended that the Deputy Inspector of School s, Dhemaji, though on verification have clarified that the petitioners’ claim fo r salary is genuine, appropriate steps have not been taken for the release there of. WP(C) 3044/2008 8. The petitioners, nine in numbers are peeved by the non-payment o f their salary from the month of September, 2007. They iterate that being qualif ied to be appointed as L.P. School teachers they had applied in response to an e mployment notice issued by the Director of Elementary Education, Assam. They the reafter appeared in an interview held on 16/10/1986 conducted by a duly constitu ted Selection Committee. In the select list dated 19/12/1989 published for Dhaku akhana Sub-Division of Lakhimpur district, they were empanelled and thereafter a ppointed against clear vacant posts available due to the retirement of the earli er incumbents. Though they were duly appointed on 19/12/1989 their salary was no t disbursed till 1997. The stalemate cleared with the regularization of their se rvices by the order bearing Memo No. 6107-15 dated 30/9/1996 of the Deputy Inspe ctor of Schools, Dhakuakhana, from the respective dates of their joining and fol lowing the necessary budget allocation, their salary was released. The same havi ng been held up suddenly again from the month of September, 2007, on enquiries, they were informed that as the services of the teachers illegally appointed in t he year 1989 have been terminated in the year 1992 payment of salary has been st opped. WP(C) 3437/2008

9. According to the petitioners, they having been selected in the y ear 1986-87 were accordingly appointed as Assistant Teacher under memo No. 20067 /850 dated 19/12/1989 of the Deputy Inspector of Schools, Dhemaji. The petitione r No. 1 was appointed and posted at Betoni Gaon L.P. School and petitioner No. 2 at Bkakat Kaibatta L.P. School and since then they are rendering their services without any break. Their services were confirmed vide order No. DIS/DMJDE-19/98 -99 and DE/19/97-98/6829-33 dated 18/6/1999 and 25/9/98 of the Deputy Inspector of Schools, Dhemaji w.e.f. 18/12/1994 and 19/12/1994 respectively. They claim th at their service books have been opened and deductions are being made from their salary for contribution to the respective GPF accounts. They contend to be not in receipt of their salary from October, 2007 and assert that the respondent aut horities when enquired of the reason have failed to provide any satisfactory rea son therefor. WP(C) 2735/2008 The petitioners have pleaded that they being qualified to be app 10. ointed as Assistant Teachers in the L.P. Schools were initially inducted on temp orary basis or against leave vacancies and as they lacked in the necessary train ing as prescribed, their appointment on regular basis appeared to be elusive. Th ey along with others approached this Court with WP(C) 2921/87 which was disposed of on 25/4/1998 observing that untrained teachers were not totally debarred fro m appointments and directed consideration of the cases of the petitioners. As th e respondent authorities still omitted to consider their cases they instituted C ont. Case (C) No. 105/98 and by order dated 6/10/98, this Court directed the res pondents therein not to act in violation of the orders passed in CR 2921/1987. T he petitioners were thereafter, pursuant to the orders passed at the appropriate administrative levels, appointed on various dates in the year 1992-93 against s anctioned vacancies on regular basis. This Court by order dated 18/6/1990 in the above contempt petition having directed payment of their salary, the same was r eleased to them. Their service particulars in brief are as hereinbelow. Place of posting Sonarigaon L.P. School Sonarigaon L.P. School Date of appointment-authority 30/10/1993, Deputy Inspector of Name Shri Lekhan Borgohain, Petitioner No. 1. Schools, Dhemaji. Smti. Dipamani Gogoi, Petitioner No. 2. 5/11/1992, Deputy Inspector of Schools, Dhemaji. Sri Shyamanta Saikia, Petitioner No. 3. 5/11/1992, Deputy Inspector of Schools, Dhemaji. Smti. Trishna Bora, Petitioner No. 4 Dhemaji Amguri L.P. School Smti. Arunima Chetia, Petitioner No. 5, 5/11/1992, Deputy Inspector of Schools, Dhemaji No. 2 Deogharia L.P. School Smti. Tongila Chutia, Petitioner No. 6 Dhemaji Naharani L.P. School 5/11/1992, Deputy Inspector of Schools, 12/5/1993, Deputy Inspector of Schools, Anochapari L.P. School The petitioners have insisted that thereafter their services wer 11. e confirmed in their respective posts, service books were opened and they were a lso allowed to cross the efficiency bar. According to them, they have also succe ssfully undergone the Sarbasiksha Training Course imparted by the District Insti tute of Educational Training (DIET), Bordoloni and Dhemaji. Their salary from th e month of August, 2007, having been withheld, the Deputy Inspector of Schools, Dhemaji, on being confronted could not furnish any persuasive reason except disc losing that their names were included in the list of 752 teachers who have been discovered to be appointed against non-existent posts. WP(C) 3076/2008 12. The petitioners have averred that the Government of Assam, with a view to promote Tai Language introduced the same in the L.P. Schools and with the objective of selecting eligible candidates for teaching the same had request ed the Purbanchal Tai Sahitya Sabha to conduct the interview of selecting suitab le candidates for appointments. Accordingly the said Body selected 50 persons in cluding the petitioners 1 to 3. The Director or Elementary Education Assam, afte r necessary approval on 31/12/1993 forwarded the list of recommended candidates for appointment. The Deputy Inspector of Schools, Dhemaji, thereafter appointed them on various dates whereafter they joined their duties and have been performi ng their duties to the satisfaction of all concerned. They claimed to have also passed the basic training course from the District Institute of Educational Trai ning (DIET), Biswanath Chariali, and have been accorded regular time scale of pa y. According to them, their services have also been normalized from plan to non- plan sector by order dated 17/2/2004. 13. The progression of facts vis-à-vis the petitioner No. 4, 5 and 6 culminating in their appointments as claimed by them is projected hereinbelow. Date of appointment Post/quota Confirmation Name of petitioner Name of school Scale Shri Ranjan Chutia (Petitioner No. 3) ’s son Shri Naba Changmai (Petitioner No. 5) 16/9/1998 w.e.f. 12/5/1996 16/9/1998 10/12/1989 Quota of retired teacher Majgaon L.P. School Rs. 470/- - Rs. 820/- 19/05/1992 Kechukhana L.P. School Compassionate ground Rs. 1065/- - Rs. 2015/- Shri Keshab Dutta (Petitioner No. 6). 16/06/1995 the Government of Assam for the U.L.F.A. militants y School, presently Headmaster of Nilakh Co-operative L.P. School. ary teacher at a monthly stipend of Rs. 900/-. Rehabilitation scheme of Perabhari Primar Stipendi

14. The respondents have neither filed their counter nor have produc The petitioners have averred that they have in the meantime been confirmed in service, their service books have been opened and they have also b een allowed to cross the efficiency bar. They also claim to have undergone the S arbasiksha Training Course imparted by the District Institute of Educational Tra ining (D.I.E.T.), Biswanath Chariali, Bordoloni and Dhemaji. Their grievance is that their salary has been withheld from the month of August, 2007 on the purpor ted ground that their names are included in the list of 752 teachers allegedly a ppointed against non-existent posts. The petitioners, however, admit that their earlier appointments in the year 1989 in some L.P. Schools had been cancelled be fore their subsequent induction to the present schools in which they are serving . They contend that the Deputy Inspector of Schools, Dhemaji, by his official co rrespondences though have clarified that their claim for salary is genuine, the higher authorities have turned a blind eye thereto to their great prejudice and sufferings. 15. ed the records. 16. Mr. Mazumdar has urged that the appointments of the petitioners having been made against regular vacancies pursuant to the orders of this Court, they by no means, can be identified with those said to have been inducted again st non-existent vacancies and, therefore, the reason professed by the respondent s as a justification for withholding their salary being ex-facie fallacious and frivolous, an appropriate writ ought to be issued to redress their grievance. As the appointments of the petitioners, by no means, as is demonstrable by the att endant facts, can be said to have any perceptible nexus with those of the 752 al legedly illegally appointed teachers, the impugned action of the respondents in denying the petitioners their salary is illegal, arbitrary, unfair and unconstit utional and is liable to be adjudged as such. Mr. Mazumdar has urged that it bei ng obvious as well from the clarifications provided by the Deputy Inspector of S chools, Dhemaji, that the petitioners’ claim for salary is authentic, the impass ive disposition of the higher authorities is a demonstration of imperious displa y of executive fiat mutilative of the basic tenets of fair play in State action. As the petitioners are admittedly rendering their services, their appointments not having been terminated as on date, the respondents are constitutionally obli ged to pay their salary, he urged. 17. Mr. Borthakur while endorsing the above has contended that as in the meantime the services of the petitioner have been regularized and they have been treated to be such for all intents and purposes, the justification assigne d by the respondents to withhold their salary being on the face of it purported and unreal is liable to be rejected in limine.

18. Mr. Mahanta has argued that the appointments of the petitioners being valid and accepted to be so for which they had been earlier paid their sal ary for the services rendered, the endeavour on the part of the respondents to a ssociate them with the allegedly illegally appointed teachers of 1989, besides b eing wholly indefensible in law and on facts lacks in bonafide as well. As the p etitioners are admittedly rendering their services, the said respondents are con stitutionally committed to release their salary, he pleaded. Mr. Talukdar while subserving to the above submissions has accen 19. ted upon the undue hardship and privation that accost the petitioners, due to un fair and unjust denial of their legitimate dues and has entreated judicial inter vention for succour. Per contra, learned Standing Counsel, Education Department, has 20. insisted that as the names of the petitioners on enquiries have been included in the list of 752 teachers detected to have been appointed against non existent p osts, no direction for payment of their salary ought to be made and that the res pondents may be permitted to make further scrutiny for an appropriate decision o n the issue. Mr. Goswami underlined that as the process has been initiated to pu rge the system of illegal appointments and stem unwarranted drainage of State ex chequer, a circumspective and regulated approach is required in public interest. I have extended my due consideration to the pleadings and the do 21. cuments available as well as the arguments advanced. Absence of a counter on beh alf of the official respondents or the records notwithstanding, it cannot be gai nsaid that the petitioners’ entitlement for salary would assuredly be contingent on the validity of their initial appointments and not their mere continuance in service. Recruitment to the post involved being mandatorily required to be made in conformity with the Assam Elementary Education (Provincialisation) Rules, 19 77 (hereafter for short referred to as the Rules), any departure therefrom or al teration or modification of the mode of induction prescribed thereby would indub itably be invalid unless sanctioned by the provisions thereof. The Rules being a n yield of the constitutional empowerment of the Governor under Article 309, it would enjoy a primacy so much so that any contravention or denudation thereof in exercise of executive fiat per se would be impermissible unless legitimized by it. 22. Viewed from that perspective, the issues raised for judicial scr utiny would thus have to be assayed on legally approved parameters. The letters dated 12/10/2007 and 17/6/2008 of Deputy Inspector of Schools, Dhemaji, recommen ding release of their salary by implication and relied upon by most of the petit ioners as acknowledgment of the validity of their claim would by no means be dec isive, if otherwise nonest on the touchstone of the Rules. 23. The petitioners’ averments demonstrate the reason for non-paymen t of their salary to be their inclusion in the list of 752 teachers allegedly ap pointed against non-sanctioned posts in the then Dhemaji Sub-Division of the Nor th Lakhimpur District in the year 1989. The petitioners per contra have endeavou red to establish that some of them though initially appointed in the year 1989, their appointments had been cancelled whereafter they were validly recruited ane w and, therefore, cannot be bracketed with those professed to have been appointe d against non-existent posts. They thus contend that they have been wrongly asso ciated with them. The reasons in full for non-disbursement of the petitioners’ s alary, however, are not forthcoming for the failure of the respondents to file t heir affidavit and/or the records. Nevertheless in the estimate of this Court, a s the posts are lodged in public offices and State revenue is involved, the peti tioners ipso facto are not entitled to a direction as prayed for on default sans any adjudication.

24. The petitioners in WP(C) 2651/2008 insist that as their appointm ents are in compliance of the directions of this Court in various writ proceedin gs instituted by them, not only are the respondents obliged in law to release th eir salary, withholding of the same is contumacious in content. A Division Bench of this Court in Smt. Kunjalata Gogoi and others versus State of Assam and othe rs, 1993 (1) GLJ 278 while dilating on inconveniences and hardship of the honora ry teachers serving in L.P. Schools in the Dhemaji District, figuring as petitio ners therein evolved a criteria of 10 years of service to confer on them the ben efit of regular appointment. Thereby, the petitioners, as identified on the appl ication of the said norm, were directed to be appointed as regular teachers from the month of March, 1991, to be paid their salary therefrom. The State authorit ies were left at liberty to work out the modalities vis-à-vis the period of 10 y ears for the purpose of pension and other retiral benefits. The cases of other p etitioners who failed to meet the test so applied, were not accorded any relief.

25. Though a plain reading of the decision so rendered does not uneq uivocally proclaim enunciation of any principle for uniform application, it tran spires that in individual cases thereafter following this determination similar directions were issued. The petitioners in WP(C) 2651/2008 citing various such o rders have pleaded a right to receive salary as regular incumbents in service. T heir appointment orders also contain reference amongst others of such orders of this Court. Though the petitioner No. 4, Shri Chandi Ram Narah initially had sta ted that his appointment was in compliance of the order dated 15/9/1994 passed b y this court in CR 97/94 of this Court, by an additional affidavit, he has clari fied that the order ought to be dated 19/5/1994 and that the mistake had crept i n inadvertently in his appointment order as well. In the face of the Rules, which in categorical and emphatic term 26. s lay down the procedure for recruitment of teachers to the Elementary Schools o f the State, the rendering in Smt. Kunjalata Gogoi, supra, cannot be construed t o be prescriptive of an additional mode therefor by way of amendment/modificatio n of the statutory provisions. The criteria formulated and applied to the incumb ents seeking adjudication in the case reported could not have been intended for uninhibited and general application dehors the Rules. The fact that in individua l cases thereafter, by invoking the same precept, identical reliefs had been gra nted does not detract from the above proposition. This court on a compassionate evaluation of the attending facts and circumstances devised a rough and ready me asure to tide over the distressful lot of the then serving honorary teachers in the exercise of its equitable jurisdiction. By no means and the text of the deci sion does not proclaim either that it was desired to be acted upon as an alterna tive or added course of recruitment to the service otherwise governed by the Rul es. Any other interpretation would spell supercession of the Rules to a limited extent though, which could never had been contemplated by this Court. The bindin g effect of the orders passed in individual cases, on an analysis of the accompa nying facts by the State authorities, however, cannot be doubted. 27. This view stands reinforced by the rendering in Abdul Bari (MD) versus State of Assam and others, 1999 (3) GLT 31 wherein a Division Bench of th is Court ruled that the decision in Smt. Kunjalata Gogoi, supra, did not lay dow n any rule of law permitting a deduction in favour of accrual of right in the ho norary teachers for being appointed on regular basis. The decision, it was held, was rendered on the basis of suggestions offered by the Counsel of both the sid es on being invited by the Court and that though those were short of concessions , the basis of the decision was akin to that. 28. Incidentally the appointments of the petitioners in WP(C) 2651/2 008 claimed to be pursuant to the orders of this Court as above are after the ye ar 1989. The documents evidencing passing of the training course and grant of re gular scale of pay to some of them have also been appended to the writ petitions . Documents to establish that a few of them have in the meantime been regularize d in service and have been allowed to cross the efficiency bar have also been br ought on record. Prima facie, therefore, these petitioners, in the opinion of th is Court, subject to materials to the contrary cannot be said to have been appoi nted against non-existent posts or be otherwise comprehended as illegal appointe es. 29. Though appointment orders of the petitioner No. 1, 2 and 3 in WP (C) 2811/2008 has a reference of a selection, those of the other petitioners do not bear any indication whatsoever thereof. The petitioners No. 4 to 11 and 13 h ad been appointed as stipendiary teachers at a monthly stipend of Rs. 900/-. The appointment orders of petitioner No. 12, 14, 15, 16 and 17 clearly indicate tha t the same had been dehors any selection as mandated by the Rules. Though the do cuments annexed to the writ petition disclose that some of them shown to be sele cted in their appointment orders have in the meantime passed the junior basic tr aining course and have been favoured with regular scale of pay, in the teeth of the Rules, no direction ought to be issued without further verification of their service profile for release of their salary as claimed. These petitioners in ab sence of regular selection as enjoined by the Rules cannot be entitled to their salary only on passing the junior basic training course or for having earlier ex tended the benefit of a pay scale. 30. The petitioners in WP(C) 3044/2008 have in clear terms averred t hat their appointments are dated 19/12/1989. Copies of their appointments orders produced in course of their arguments also endorse the above plea. This assumes significance in view of the stated inclusion of their names in the list of 752 teachers appointed in the year 1989 against non-existent post. The order dated 1 3/3/1996 of the Deputy Inspector of Schools, Dhakuakhana, regularizing their ser vices subject to the condition that they would have to complete the junior basic training course within three years cannot be accepted to be of any conclusive r elevance, their appointment orders being conspicuously silent of any selection p rescribed by the Rules before their recruitment thereby. The document, Annexure 7, evidencing budget allocation for payment of their salary for the period 20/12 /1989 to 30/8/1996 also ipso facto does not attest the validity of their appoint ments. 31. Likewise the appointment orders of the petitioners in WP(C) 3437 /2008 also dated 19/12/1989 do not wear a modicum of the compliance of the Rules as a testimony of the validity thereof. Though documents have been appended to the petition to demonstrate their confirmation in services, initiation of P.F. A ccounts and Service Books, in the opinion of this Court, unless their induction is established to be in conformity of the Rules, these are of no determinative w orth. 32. Though the appointment orders of the petitioners in WP(C) 2735/2 008 are construed to be in compliance of the orders dated 25/4/1998 passed in C. R. 212/1987 and 18/6/1990 passed in COP(C) 105/1988, a perusal thereof (Annexure A and D to the writ petition) does not reveal any direction to the said effect. Whereas in the first order, this Court had observed against any bar in the appo intment of untrained teachers qua Sr. Basic, Normal and Junior Basic Training co urses as required under Rule 3(iii) of the Rules, though preference is to be acc orded to the candidates trained in such courses, in the latter the concerned res pondents were directed to pay the salary and allowances of the petitioners in th e contempt proceeding from the date of their appointment within the time frame f ixed thereby. No direction for appointment of the petitioners dehors the Rules i s discernible in any of the orders. In a way, therefore, the presupposition of a ny such direction as mentioned in their appointment orders appears to be erroneo us. The materials on record do not evidence the appointments of the petitioners in accordance with the Rules. The documents evidencing confirmation of the petit ioner No. 1, 4 and 5 in service in face of the above do not further their case f or salary. 33. The petitioner No. 1, 2 and 3 in WP(C) 3076/2008 claim appointme nts on the basis of selection conducted by the Purbanchal Tai Sahitya Sabha, an entity to which no such role is ascribed by the Rules. The appointment order of petitioner No. 4 is conspicuously silent of any selection under the Rules preced ing it. The appointment order of petitioner No. 5 though indicates to be on comp assionate ground does not per se evidence compliance of the procedure prescribed therefor. The order of appointment of the petitioner No. 6 dated 16/6/1995 by i tself reveals that no selection had been held. As a matter of fact, the inductio n of this petitioner appears to be on the basis of a Government circular to faci litate rehabilitation of the members of a militant organization named therein. W hereas such a wholesome endeavour in public interest on the part of a Government in our democratic polity, ought to be endorsed, the same by no means can be con ceded a dominion over a statutorily prescribed scheme unless sanctioned thereby. The State sponsored initiatives how so ever salutary for deft governance would be eventually subversive of public interest, if liquidatory of the constitutiona lly mandated ordainments. The Rules having been framed in exercise of constituti onally conferred legislative powers, any executive policy confrontative therewit h cannot be assigned an extinctive superiority. The appointments of the petition ers, therefore, need be scrutinized for their validity and tenability of their c laim for salary in the touchstone of the Rules. The documents testifying grant o f time scale of pay to petitioner No. 1 and 2 and confirmation of petitioner No. 4 and 5 in service in the above view of the matter are of no conclusive bearing . 34. Rule 3 of the Rules dealing with the method of recruitment of te achers of the elementary schools outline in meticulous details, the stagewise pr ogression of the exercise to be undertaken for such appointments. It proclaims a public participatory process with advance intimation of the initiation thereof to culminate with a select list prepared in order of merit of the contending can didates. The aspirants are to be selected on the basis of their testimonials and interviews and the appointments are to be made from the list authenticated by t he Director of Elementary Education, Assam. Any appointment from outside the sel ect list, the Rules predicate, would be invalid except those provided on compass ionate ground by the Government as per the Rules framed in that regard. A well p ropounded paradigm with statutory edicts has thus been codified for rigorous com pliance thereof subject, however, to the power of relaxation exercisable by the Government in eventualities enumerated in Rule 7. Adherence to the enacted proce dure of recruitment as embodied in Rule 3 otherwise is an inflexible essentialit y and any unauthorized departure wherefrom would be at the pain of invalidation of the process or any order or action occasioned thereby. 35. The principles expounded by the Apex Court in M. P. State Coop. Bank Ltd., Bhopal, versus Nanuram Yadav and others, (2007) 8 SCC 264 to obligato rily inform appointments to public office are demonstrably apt at this juncture and amply deserves extraction. (cid:28)(1) the rules/government circulars and without advertisement or inviting application s from the open market would amount to breach of Articles 14 and 16 of the Const itution of India. Regularization cannot be a mode of appointment. (2) (3) An appointment made in violation of the mandatory provisions of the stat ute and in particular, ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured The appointments made without following the appropriate procedure under by taking recourse to regularization. Those who come by back door should go through that door. (4) (5) No regularization is permissible in exercise of statutory power conferre d under Article 162 of the Constitution of India if the appointments have been m ade in contravention of the statutory rules. (6) (7) The court should not exercise its jurisdiction on misplaced sympathy. If the mischief played is so widespread and all pervasive, affecting the result, so as to make it difficult to pick out the persons who have been unlawf ully benefited or wrongfully deprived of their selection, it will neither be pos sible nor necessary to issue individual show cause notice to each selectee. The only way out would be to cancel the whole selection. When the entire selection is stinking, conceived in fraud and delivered (8) in deceit, individual innocence has no place and the entire selection has to be set aside. (cid:29) 36. The binding dicta, amongst others prohibit regularization of an appointment otherwise illegal, being in transgression of the mandatory provision s of a statute in exercise of power conferred under Article 162 of the Constitut ion of India. While reiterating that regularization cannot be an accepted mode o f appointment, their Lordships ruled that appointments made without following th e appropriate procedure under the rules/government circulars and without adverti sement or inviting applications from the open market would be violative of Artic le 14 and 16 of the Constitution of India and cautioned a Court against exercise of its jurisdiction on misplaced sympathy.

37. Noticeably there is yet no refutation of the fact that the petit ioners are rendering their services as on date. As alluded hereinabove, appointm ent of some prima facie appear to be in compliance of the orders of the Court as well as on the basis of selection held. Be that as it may, having regard to the nature of the proceedings and the inherent limitations in the extent of probe i nto factual details, it is not possible for this Court to arrive at any unhesita nt conclusion with regard to their entitlements of salary as claimed. The materi als on record are not adequate enough to sustain the claim made and facts and ci rcumstances warrant further verification of the records for an appropriate decis ion. The omission on the part of the respondents to offer their count 38. er or to produce the records is an appalling failure of State. While recording m y strong displeasure on this inexplicable default on the part of the respondents which has the potential of undermining the process of administration of justice deserving judicial censure, in my estimate, having regard to the interest of th e State revenue, the best course advisable would be, to remit the issue to the a ppropriate State authorities for due verification of the petitioners’ claim for salary as made and take a decision in accordance with law. Ordered accordingly. 39. The Commissioner and Secretary to the Government of Assam, Educa tion (E & S) Department, would cause immediate steps to be taken in this regard. Needless to say, the petitioners, in view of their stake in the matter would be afforded all reasonable opportunities of participating in the process. The afor ementioned State authority would, if felt necessary, delegate the exercise to an y subordinate competent departmental authority preferably the Director of Elemen tary Education, Assam, to conduct the process. In doing so, the enquiring author ity would examine all relevant records, with due opportunity to the petitioners and determine the issue on the basis thereof as well as the backdrop of the obse rvations made hereinabove. The exercise, as ordered, should be completed within a period of two months from the date of receipt of certified copy of this order and the resultant decision would be communicated to the petitioners forthwith th ereafter. Needless to say, in case the petitioners or any one or more of them ar e found entitled to their dues, immediate steps would be taken to disburse the s ame. Any slackness or failure to comply with the directions made hereinabove wou ld be viewed very seriously occasioning stringent actions against the erring aut horities. The petitions stand disposed in the above terms. No costs.