High Court
Case Details
WP(C) 4578/2011 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY JUDGMENT AND ORDER(ORAL)
Legal Reasoning
Heard Mr. K.P. Sarma, learned Senior counsel appearing for the petitioners. The respondents are represented by Mr. S. Khound, Standing Counsel, BTC, Mr. U.K. G oswami, Standing Counsel, Education Department and Mr. B. Gogoi, Standing Counse l, Finance. 2.
Decision
The petitioners herein are working as Assistant Teachers in L.P. Schools of Kokrajhar and Chirang districts. Two of them, i.e. petitioner no.1 Narayan Mondal & petitioner no.2 Birlang Jwngma Bora are founder teachers who were appoi nted by the School Managing Committee (hereinafter referred to as ’the SMC’) bef ore their schools were provincialised. But the other petitioners are post provi ncialisation appointees, who are serving as honorary teachers after being appoin ted by the respective SMCs. 3. In order to streamline the procedure for regularisation/adjustment of dr opped and honorary teachers, the Govt. through the notification dated 21.06.2000 (Annexur4-2) constituted a task force for verification of teachers and district wise proposal was to be submitted to consider regularisation of the deserving d ropped and honorary teachers. The list of ineligible teachers and staff was als o required to be prepared, through the notified exercise. These petitioners earlier filed the WP(C) No.7123/2002 (Narayan Mondal a 4. nd 104 Ors. Vs. State of Assam and 2 Ors.) seeking direction for regularisation of their service as per the govt. policy. Through the order dated 22.11.2002 (A nnexure-4), the WP(C) No.7123/2002 was disposed of with a direction to the offic ial respondents to consider regularisation of the petitioners, as per the preval ent policy of the Government. 5. The Commissioner & Secretary to the Govt. of Assam, Education Department in pursuant to the court’s direction in the WP(C) No.7123/2002 considered the i nquiry report dated 20.09.2004 submitted by the Director of Elementary Education , Assam and also noted that the 105 posts allotted through the govt. communicat ion dated 12.02.2001 (Annexure-3), are still vacant. But since in the meantime as per the memorandum of settlement, the Bodoland Territorial Council (hereinaft er referred to as ’the BTC’) was constituted, consideration of the petitioners’ claim was ordered to be done by the BTC authorities. 6. Thereafter, the appointing authority i.e. the D.I. of Schools, Kokrahjar issued an order on 25.08.2005 (Annexure-7), whereby the service of 105 teachers were regularized w.e.f. 01.01.2005. The D.I’s order reflects that approval to the regularisation order was accorded by the BTC through the memo dated 10.08.2 005. It may be noted herein that on 10.08.2005 a speaking order was passed by t he Joint Secretary, BTC, Kokrajhar where the position of the BTC under the memor andum of settlement was noted and it was acknowledged that all State Government circulars are to be adhered to by the BTC, for making appointment to the vacant post. Accordingly, a decision was taken to order the Director of Education, BTC to move the Department of Finance (SIU) Govt. of Assam for approval to appointm ent/regularisation of service, of the 105 petitioners in the WP(C) No.7123/2002. But despite the regularisation order of 25.08.2005 (Annexure-7), the sal 7. ary of the petitioners could not be disbursed and accordingly the BTC authoritie s through the letter(s) dated 07.11.2005, 02.06.2006 & 04.08.2007 proposed to th e Assam Govt. for retention of the 105 posts of teachers allotted to the BTC on 12.02.2001 (Annexure-3). In the meantime, the D.I. of Schools, Kokrajhar, throu gh his letter dated 04.08.2007 (Annexure-10) requested for annual retention of 1 05 posts w.e.f. 01.01.2005, to give effect to the regularisation ordered for the dropped and honorary teachers. 8. Subsequently the process of regularisation of the 105 teachers was exami ned by the State’s Finance Department and the endorsement of 05.09.2009 of the J oint Secretary, Finance, (EC-III) Department shows that the petitioners were app ointed under a Centrally Sponsored Scheme, which lapsed in 2001. Accordingly the Finance Department advised the Education Department to appoint the petitioners against existing sanctioned posts in the Kokrajhar district after obtaining conc urrence of the Finance (SIU) Department. Simultaneously departmental proceeding was also recommended against the concerned I.A.S. officer who allotted the 105 posts to Kokrajhar district, through his order dated 12.02.2001(Annexure-3). 9. As a follow up to the advisory of the Finance Department, the Joint Se cretary to the Govt. of Assam Education (Planning) Department in his letter of 3 0.10.2009 (Annexure-13) advised the Director of Education, BTC to appoint the 10 5 petitioners of the WP(C) No.7123/2002 against existing sanctioned posts in Kok rajhar district and the BTC Director was also requested to submit proposal in pr escribed format, for approval of the Finance (SIU) Department for the appointmen t. This letter was issued with the concurrence of the Finance (EC-III) Departmen t. 10. In his belated response, the Director of Education, BTC through the impu gned letter dated 18.12.2010 (Annexure-14) informed the Govt. that 266 OBB teach ers were regularized/adjusted against the vacant posts in Kokrajhar district and proposal for appointment of 286 persons selected in 2006 was also forwarded for securing SIU approval. Therefore, taking into account these 266 + 286= 552 vac ancies, it was inferred that no vacant posts are available for adjustment of the 105 petitioners. 11. However the petitioners project that they are serving for last nearly 3 decades since 1986 as honorary/founder teachers in L.P. Schools of Kokrajhar dis trict and since the State government took a policy decision on 21.06.2000 (Annex ure-2) for regularisation/adjustment of deserving dropped and honorary teachers, their claim for regularisation was ordered to be considered by this court throu gh the WP(C) No.7123/2002. The D.I. of Schools, Kokrajhar through his order date d 25.08.2005 then regularized the petitioners with due approval of the BTC autho rities. From the green signal of the BTC authorities of 10.08.2005, the petition ers argue that their right to have their service regularized got crystallized, t hrough the regularisation order of 25.08.2005 issued by the competent authority. Referring to the then prevalent State Government’s policy to regularize 12. of the services of deserving honorary/founder teachers, Mr. K.P. Sarma, learned Sr. Counsel argues that logically the petitioners should have been regularized a gainst sanctioned vacant posts available with the BTC authorities and their inco rrect regularisation against posts which purportedly lapsed in 2001, cannot depr ive the petitioners of the benefit of regularisation. 13. Referring to the speaking order dated 10.08.2005 of the BTC authorities and also the communication(s) of 07.11.2005, 02.06.2006 and 04.08.2007 of the au thorities of the BTC, the petitioners argue that the BTC is now estopped from ob jecting to the regularisation of the long serving teachers by utilizing the avai lable 286 posts, to appoint those who allegedly were shortlisted, in a selection process of 2006. 14. Appearing for the respondent nos.5,6,7 & 8, Mr. S. Khound, Standing Coun sel, BTC, however contends that the regularisation of the dropped teachers is a policy decision of the Assam Government and the BTC is not obliged to execute th e State’s policy decision. He also submits that except 3, all the other petitio ners were appointed after provincialisation of their respective schools and acco rdingly they have no enforceable right to claim regularisation of service. 15. But Mr. U.K. Goswami, Standing Counsel, Education Department projects th at subsequently, the State Government decided not to regularize the service of t hose honorary teachers appointed after provincialisation of the schools and on t his basis, Mr. Goswami contends that the regularisation claim of the petitioners may not be justified. However, having regard to the court’s order in the WP(C) No.7123/2002 and the decision of the State’s Finance Department of 05.09.2009, M r. Goswami acknowledges the government’s advisory to appoint the petitioners, ag ainst valid sanctioned posts after proposal is approved by the Finance (SIU) Dep artment. 16. Representing the respondent No.3, the Standing Counsel, Finance Departme nt, Mr. B. Gogoi submits that regularisation should have been made only against valid sanctioned posts and since posts against which the petitioners were regula rized were not available, steps should now be taken as per the advisory issued b y the Finance Department on 05.09.2009. 17. The facts here indicates that the petitioners are serving since 1986/198 7 either as the 2nd founder teacher or as honorary teachers in their respective L.P. schools of Kokrajhar and Chirang district. The authority competent to give them regular appointment is the D.I. of Schools, who is an officer under the BTC . But unfortunately for the petitioners, the D.I. of Schools, Kokrajhar while i ssuing the regularisation order on 25.08.2005 (Annexure-7) took into account the 105 posts sanctioned by the Addl. Secretary, to the Govt. of Assam on 12.02.200 1 (Annexure-3) which was placed at the disposal of the D.I. of Schools, Kokrajha r. But later on it transpired that those posts had lapsed and were not available . In fact departmental proceeding was ordered against the officer who allotted t he 105 posts to Kokrajhar through his order of 12.02.2001(Annexure-3). But what is apparent from the regularisation order of the D.I. of School 18. s is that the order was issued with due approval of the BTC authorities. The spe aking order of 10.08.2005 of the BTC was for submission of proposal to the Finan ce (SIU) unit for according approval/concurrence for appointment of the petition ers, in pursuant to the court’s order dated 22.11.2002 in the WP(C) No.7123/2002 . But the D.I. of Schools straightway ordered for regularisation without Finance (SIU) approval and that too, as was revealed later, against such posts which co uld not have been utilized for regularisation. However, from the letter dated 18.12.2010 (Anneuxure-14) of the Directo 19. r of Education,, BTC it is apparent that other vacant posts are available and th erefore having regard to the speaking order of 10.08.2005 of the BTC authorities as well as the advisory of the Finance Department given on 05.09.2009, it is cl ear that a wrong procedure was adopted to regularize the service of teachers. Bu t obviously the mistake was committed by an officer under the BTC and the petiti oners did not have any role in choice of vacancies against which, they expected to be regularized. What is relevant here is that the State Government had taken a policy de 20. cision to regularize the services of the deserving honorary/founder teachers thr ough a process notified on 21.06.2000 (Annexure-2) and as was indicated in the s peaking order of 10.08.2005, the BTC is obliged to respect the Government’s poli cy decision. Therefore, considering the injustice suffered by the petitioners a nd the policy of regularisation which was then prevalent, and the peculiar facts in the present case, I am of the view that the petitioners’ case deserve consid eration as per the advisory given on 05.09.2009 by the State’s Finance Departmen t. The BTC authorities through the speaking order of 10.08.2005 had decided to regularize the service of the petitioners in the WP(C) No.7123/2002 and since th e petitioners were mistakenly regularized against non available posts and should have been regularized against the available vacancies, the respondents should t ake steps to regularize the petitioners against sanctioned and available vacanci es under the BTC authorities, through a regular process. This is found justifie d as the petitioners are found to be victimized because of a faulty process unde rtaken earlier by the BTC officials. As the petitioners are serving without a ny salary for last 26/27 years, the respondents are directed to take steps for r egularisation through due process against sanctioned and available vacancies. T his exercise be carried out expeditiously and preferably within 6 months. It is ordered accordingly. 21. A copy of this order be furnished to Mr. S. Khound, Standing Counsel, BT C, Mr. U.K. Goswami, Standing Counsel, Education Department and Mr. B. Gogoi, St anding Counsel, Finance as well as to the learned counsel representing the petit ioners. 22. The case is disposed of accordingly with the above direction without any order on cost.