MUSTAFIJUR RAHMAN v. The State of Assam & Ors.

BEFORE HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK

11.11.2022 ORDER Heard Mr. A R Bhuyan, learned counsel for the petitioner and Mr. R Mazumdar, learned Standing counsel, Education Department, Assam for the respondent Nos. 1 to

2. The petitioner has preferred this writ petition praying amongst others for a direction to the respondents in the Elementary Education Department of the State to regularize his service as a Grade-IV Chawkidar in Sirajul Haque High School, Kopatigaon, District – Darrang and also to dispose of his representation dated

20.09.2022 submitted before the Commissioner & Secretary, Secondary Education Department wherein he has prayed for regularization of his service and further, not to fill up the post of Grade-IV Chawkidar in said Sirajul Haque High School by way of recruitment drive by the respondents in the Secondary Education Department.

3. The petitioner in the interim has prayed not to disturb his service as the Grade- IV Chawkidar in said Sirajul Haque High School till regularization of his service.

4. It is stated that father of the petitioner Md. Abdus Sobhan served as a Grade-IV employee in said Silbari M.E. School under Darrang district and he on attaining the age of superannuation retired from service on 30.09.2012. After his retirement from said service, on the prayer of the petitioner the Managing Committee of the said M.E. School appointed the petitioner in said vacant post of Grade-IV Chawkidar and in pursuance of the same the petitioner is allegedly serving in the said M.E. school since

01.10.2012.

5. Pursuant to the order dated 07.11.2022 passed earlier in the present proceeding, Mr. Mazumdar, learned Standing counsel, Education Department informed that Silbari M.E. School, district – Darrang was brought under provincialisation on

17.10.1977 and that the State Government in the Secondary Education vide order No. Page No.# 3/6 ASE.1395/2016/Pt-I/79 dated 19.01.2018 amalgamated the said Silbari M.E. School with Sirajul Haque High School, a provincialised Higher Secondary School of the State.

6. It is also submitted by Mr. Mazumdar that the said vacant post of Grade-IV in Silbari M.E. School now amalgamated with the Sirajul Haque High School is yet to be filled up regularly.

7. Relying on the Paragraph 53 of the Constitution Bench Judgment of the Hon’ble Apex Court in the case of Secretary State of Karnataka and Ors. Vs Umadevi and Ors. (3), reported in (2006) 4 SCC 1, Mr. Bhuyan, learned counsel has submitted that as the petitioner has been rendering his service since 01.10.2012 for more than 10 years, appropriate steps should be taken by the State respondent authorities for regularization of his service.

8. In this regard Mr. Bhuyan, learned counsel has also placed a judgment passed by a Co-ordinate Bench of this Court in the case of Shahidur Rahman Vs. State of Assam [WP(C) No. 4770/2021, disposed of on 24.11.2021].

9. It is well settled that all such public posts are required to be filled up by following the provisions of Articles 14 and 16 of the Constitution of India and the relevant statutory Rules of recruitment in force as applicable. Therefore, any sanctioned vacant post in a Provincialised/Government Lower Primary/ Upper Primary/High/Higher Secondary is a public post.

10. In the case in hand, the post of Grade-IV Chawkidar in Silbari M.E. School fell vacant on 01.10.2012 after the retirement of the father of the petitioner on

30.09.2012.

11. Since the said Silbari M.E. School was brought under provincialisation w.e.f.

17.12.1977 under the provisions of the Assam Elementary Education (Provincialisation) Act, 1974 and the Assam Elementary Education (Provincialisation) Rules, 1977, as such the post of Grade-IV Chawkidar in Silbari M.E. School that fell vacant on 01.10.2012 after retirement of the father of the petitioner on 30.09.2012, being a public post, therefore, the Managing Committee and/or the School Authority of said Silbari M.E. School from the date of provincialisation of the said school, i.e. since 17.12.1977 has Page No.# 4/6 no jurisdiction, authority and/or power to fill up any such public post in the said school that too without following the relevant Rules of recruitment and violating the provisions of the Articles 14 and 16 of the Constitution.

12. It is also seen that without any advertisement and selection by the Management and the authority concerned of said Silbari M.E. School allowed the petitioner to serve as a Grave-IV Chawkidar w.e.f. 01.10.2012 in place of his father who retired as a Grave-IV Chawkidar from the same school on 30.09.2012. 13 Para 53 of the Constitution Bench judgment in the case of Umadevi (3) (Supra) noted above, reads as follows- “One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa , R.N. Nanjundappa12 and B.N. Nagarajan8 and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.”

14. Though the petitioner sought for regularization of his service as he served for Page No.# 5/6 more than 10 years since 01.10.2012 as a Grade-IV Chawkidar against the said public post in Silbari M.E. School that has been amalgamated with Sirajul Haque High School w.e.f 19.01.2018, but from the observation made in said Paragraph 53 by the Constitution Bench judgment of the Hon’ble Apex Court in the case of Umadevi (3) (Supra), noted above, it can be seen that only with regard to those persons serving in public post, appointed irregularly, prior to the rendering of the said judgment on

10.04.2006, the Hon’ble Court directed the authority concerned, to take one time measure for regularization of services of such employees appointed irregularly.

15. As already noted above that the petitioner was allowed to serve in said Silbari M.E. School by the school authorities of the said school without having any authority, jurisdiction and power and that too without any advertisement and selection, and therefore, the Court is of the opinion that considering his nature of appointment as Grade-IV Chawkidar against the said public post in Silbari M.E. School since

01.10.2012, now serving in the amalgamated Silbari High School w.e.f 19.01.2018 finding his appointment being in violation of the constitutional provisions, cannot be considered for regularization as the appointment of the petitioner in allowing him to serve in the said post cannot be considered to be an irregular appointment but it is a case of clear illegal appointment.

16. Moreover, in the later part of said Paragraph 53 of the Constitution Bench judgment in the case of Umadevi (3) (Supra), their Lordships of the Hon’ble Apex Court observed that “…… but there should be no further bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme”.

17. Mr. Mazumdar, learned Standing counsel, Education Department has also placed reliance in the case of Md. Abdul Bari Vs. State of Assam & Ors. reported in 1999 (3) GLT 31, wherein the Court laid down the concept that in case of a person appointed on honorary basis by the Managing Committee after provincialisation of the school, he/she is not eligible for regularization.

18. As already noted above that the petitioner was allowed to serve as a Grade-IV Page No.# 6/6 Chawkidar in the public post of Silbari M.E. School by its Managing Committee since

01.10.2012 and since said appointment of the petitioner in the said post being un- constitutional in nature, the prayer of the petitioner for a direction to the respondents in the Education Department to regularize his service cannot be considered and further, any such service rendered by the petitioner in the said public post of Grade-IV Chawkidar since 01.10.2012 in place of his father on his retirement on 30.09.2012 from the said post of said Silbari M.E. School, now amalgamated Silbari High School is illegal in nature.

19. With regard to the prayer of the petitioner for consideration of his representation dated 20.09.2022 submitted before the Commissioner & Secretary, Secondary Education Department which is pending for consideration, it is up to the State Government to disposed of the same in accordance with law.

20. Accordingly, this writ petition being devoid of merit, stands dismissed. JUDGE Comparing Assistant