High Court · 2009

By this common order, I propose to dispose of both the writ petitioners inasmuch as the material facts in both the petitions are similar and the proposi tion of law involved in the two cases are also not different. I have heard Mr. IH Saikia, learned counsel for the petitioners in both the writ petitions, and Mr. VM Thomus, learned Standing counsel, Education Department, a ppearing on behalf of the State respondents. By making this application under Article 226 of the Constitution of India, the t wo writ petitioners, who are admittedly dropped teachers, have sought for issuan ce of appropriate writ(s) commanding the respondents to regularize their service s. The material facts, giving rise to these two writ petitions are, in brief, thus: Both the petitioners were appointed as Assistant Teachers in Moriani High Schoo l, the date of appointment of the petitioner, in WP(C) No. 5294/2007, being 01-0 1-1994 and the date of appointment of the petitioner, in WP(C) No. 5295/2007, be ing 01-02-1994. Moriani High School was provincialised w.e.f. 01-08-1995. Resisting the writ petitions, the respondents contend that according to the rele vant Government Policy, a drop teacher’s service would be regularized subject to the condition that the teacher concerned had put in, at least, two years of con tinuous service in the school, which is provincialised. In the present two cases , as both the petitioners had worked for less than the prescribed period of two years before the provincialisation of their school, the petitioners are not, acc ording to the respondents, entitled to regularization of their services. In supp ort of this contention, the pleaded case of the respondent in Para 3 and 4 of th eir affidavit-in-opposition, read as under:- (cid:28)That the deponent begs to state that it has been policy decisions of the govern ment (as referred in Govt. letter No. EDN(LC) 26/2002/341/69) which has been ref lected in Memo No. EPMD.2/2003/3-A dtd. 21/1/2003, wherein it was a condition th at for regularization of services dropped teachers one should have at least two years of continuous service prior to the date of provincialisation of the school . The above policy decision which was taken as a common stand in the cases of dr ipped teachers in the affidavit filed by the State in WP(C) No. 5399/03 as refle cted in the judgment dtd. 1/9/03 passed by the Division Bench of this Hon’ble Hi gh Court in the batch of writ petitions in CR 1571/98 Jiban Ch. Deka & ors and 2 8 other writ petitions. In the aforesaid policy decision it was decided as one o f the conditions that for regularization of dropped teachers the teachers must p ut in at least two years of continuous service immediately proceding the taking over of the concerned schools by the Govt. Admittedly the writ petitioner does n ot possess two years of continuous service as Mariani High School was provincial ised w.e.f. 1/8/1995 and the writ petitioner was appointed as Assistant teacher by the Managing Committee of Mariani High School w.e.f. 1/2/1994. A copy of the policy decision dtd. 21/1/2003 and a copy of the judgment dtd. 1/9 /2003 passed in Jiban Ch. Deka & ors and 28 other writ petitions are annexed her eto and marked as annexure A and B respectively. 4. That the deponent begs to state that policy document dtd. 13/1/2003 has not been challenged till date and the Division Bench of this Hon’ble Court in it s judgment dtd. 1/9/2003 passed in CR No. 1571/98 Jiban Ch. Deka & ors and 28 ot her writ petitions directed that a committee will be constituted to consider the cases of dropped teachers district wise eligible for regularization. The said C ommittee has already prepared the list of district wise list of dropped teachers and submitted the same to the govt. But the name of the writ petitioner may not have figured in the list as he has failed to meet the criteria for consideratio n for regularization and as such his services could not be regularized. (cid:29) In the light of what has been pointed out by the respondents, it is clear that t he relevant policy of the Government requires that a teacher, whose service has not been regularized on provincialisation of school, would be entitled to regula rization of service provided that he has rendered two years of continuous servic e prior to the date of provincialisation of the school. This policy decision, th ough considered, in judicial proceedings, has not been deviated from. In such ci rcumstances, the petitioners cannot be said to have made out any case warranting exercise of this Court’s extraordinary jurisdiction under Article 226 of the Co nstitution of India. At the time of hearing of the writ petitions, it has been contended, on behalf of the petitioners, that service of some of the dropped teachers, who wer e similarly situated, have been regularized. While considering this aspect of th e submission, what needs to be pointed out is that before a Court holds an order or action passed by a State Government as discriminatory in nature, the Court m ust be satisfied that the benefit, which has been extended to the person concern ed, was legally available to such a person. If an order is passed or an action i s taken benefiting a person, who is, otherwise, not entitled to receive such a b enefit under the law, the High Court cannot, in the name of removing discriminat ion, issue a writ commanding the Government to perpetuate the illegality, which it might have committed by extending an illegal benefit to one of its employees. Because of what has been discussed and pointed out above, I find absolutely no m erit in any of the writ petitions. Both these applications fail and the same sha ll accordingly stand dismissed. The petitioners are, however, left at liberty to challenge the policy de cision of the Government, which requires two years of minimum service as a condi tion precedent for regularizing the service of a dropped teacher.