ARAMUL HAQUE CHOUDHURY Vs. STATE OF ASSAM

JUDGEMENT

(1.) Heard Mr. A.S.Choudhury, learned Sr. Counsel for the petitioner, Mr. I.H.Hussain, learned counsel for the respondent No. 5 and Mr. V.M.Thomas, learned Standing Counsel for the Education Department. The case of the petitioner Aramul Haque Choudhury is that he has joined as Honorary Teacher in Moinul Haque Choudhury High Secondary School, hereinafter referred as `School`, sometime in the year 1992 and he was working as Second Subject Teacher in Economics. The School authority had send a proposal to the concerned department for sanction of Second Subject Teacher post in Political Science as well as in Economics. In the year 1995, a post of Second Subject Teacher in Economics in the said school was created by converting a post of Subject Teacher of Education lying vacant in the said School and accordingly the respondent No. 5, Shri Anjan Kanti Nath was transferred and posted at the said School. The services of the petitioner was discontinued and he claimed that he worked against leave vacancy for certain period. The School authorities also approached the competent authority for creation of a post of Second Subject Teacher in Political Science in the said School and while the proposal was still under consideration, vide a circular dated 18.1.96, the Managing Committee of the Schools have been authorized to select/appoint Subject Teacher in Higher Secondary Schools subject to the approval by the Director of Higher Education. The case of the petitioner is that pursuant to the above circular dated 18.1.96, the petitioner was appointed as a Second Subject Teacher in Political Science in the said School and he joined his duties on 16.3.96. The appointment letter was sent for approval but admittedly no such approval was given. It is however submitted by Shri Choudhury that as per the circular dated 18.1.96 it was provided that in case no approval is given within a period of 15 days it will be deemed that the appointment has been approved. There is also no dispute at the Bar that the circular dated 18.1.96 was subsequently withdrawn by the State Govt. in the same year 1996. The petitioner, however, submits that as he was appointed by the competent authority who had the power to make appointments, and as he is serving as a second Honorary Political Science Teacher, his services were required to be regularized.

(2.) It is further submitted that the post of Subject Teacher in Geography was lying vacant and the same was not filled up in the said school and the concerned authorities were moved for converting the said post of Subject Teacher in Geography to Second Subject Teacher in Political Science. Vide the order dated 20.11.99 the concerned authorities converted the unutilized post of Geography Teacher n the said School as Second Post of Subject Teacher in Economics and appointed the respondent No. 5 to that post. Hence, the fact remains that there is no post of Second Subject Teacher in Political Science.

(3.) Without entering into the controversy as to whether the Managing Committee of the School has the power to appoint persons to the post of Subject Teacher in a Higher Secondary School or not as per the 18th January, 1996 circular, we find that although the alleged appointment was made by the Managing Committee in March, 1996, it was against a non- existing post of Second Subject Teacher in Political Science. The post has not come into existence till today. It is however submitted that the unutilized post of Subject Teacher in Geography could have been converted. The power to convert lies with the State Govt. and this Court can not proceed on any hypothesis. We, therefore, hold that no right has accrued to the petitioner in view of the alleged appointment of 16.3.96 by the Managing Committee of the School against non-existing post. Accordingly, no Mandamus, as prayed for, can be issued.