MASHRAF HUSSAIN LASKAR Vs. STATE OF ASSAM

JUDGEMENT

(1.) In this writ petition, the petitioners are claiming release of their arrear salaries, arrear allowances and current salaries and allowances from 2001 till date. The material facts of the case are that pursuant to the employment notice issued in sometime in the month of December, 1996 by the Director of Elementary Education, Assam (respondent 4), the Deputy Inspector of Schools, Silchar, Cachar District (respondent 6) invited applications from interested persons in the prescribed form for filling up vacancies of Elementary School teachers which were likely to occur in his establishment in that year. The petitioners herein numbering 115 of them, among others, applied for the posts in the prescribed form. The case of the petitioners is that they were eventually selected for interview and had duly appeared before the erstwhile Sub-Divisional Level Advisory Board for the interview. By the early 2000, the Sub-Divisional Level Advisory Board constituted for conducting the interview had finalized the list of successful candidates, which were then placed before the Sub-Divisional Level Advisory Board for Elementary Education for approval. The select list was thereafter approved by the Board. The names of all the petitioners figured in this select list. By the end of 2000 and 2001, the respondent No. 6 made adjustments/appointments against the available posts of Assistant Teacher on the basis of the select list. All the petitioners were adjusted/appointed to the substantive available vacant posts of Assistant Teachers by the respondent No. 6 at various provincialized L.P. Schools by issuing the appointment letters/memos. Since then, the petitioners have been continuously working as Assistant Teacher till date without any break, yet none of them have been paid any salary till now. Aggrieved by this, they filed several writ petitions before this Court, which directed the respondent No. 4 to make enquiry and pass appropriate orders for payment of salaries to the petitioners, if they were found to be entitled on the basis of such enquiry. Thereafter, on the pain of facing punishment for contempt of court, the Government ordered Magisterial enquiry by the Deputy Commissioner, Cachar on the appointment of the petitioners. The Deputy Commissioner, Cachar after the enquiry submitted his report to the State-respondents wherein he found that the appointment of 116 Assistant Teachers were genuine, and they were regularly attending their schools regularly. According to the petitioners, they are among these 116 Assistant Teachers. Out of the 116 Assistant Teachers named in that report, two Assistant Teachers, who are not the present petitioners, filed WP (C) No. 4549/2003 and WP (C) No. 4550/2003 for release of their salaries and for regularization of their services. The Deputy Commissioner, Cachar on 21.6.2004 wrote to the State Government for releasing the salaries of 180 L.P. School Teachers in compliance with the order of this Court and on the basis of the information submitted by the Circle Officer, Sadar, Silchar. The petitioners are among these 180 LP School Teachers.

(2.) It is also the case of the petitioners that the District Elementary Education Officer, Cachar (respondent 5) also wrote to the State Government on 26.12.2005 regarding release of the salaries of the 116 LP School Assistant Teachers named in the said report of the D.C., Cachar dated 11.7.2002 to comply with the order of this Court. The State Government on 19.1.2006 wrote back by requesting the respondent No. 5 to make a proposal in duly filled up SIU format for regularization and release of salary of the said 116 LP School Teachers. On 21.1.2006, the District Level Selection Committee, Silchar passed a resolution to utilize the services of 116 LP School Teachers to fill up an equal number of vacant posts and regularize their services in compliance with the order of this Court. The respondent No. 5 thereafter sent the proposal as asked for in the format of Finance SIU along with the list of 116 LP School Assistant Teachers. The State Government, however, asked the respondent No. 4 to make verification report regarding the genuineness of the posts and give his comment regarding the release of the salaries of the petitioners. To cut the long story short, the respondent No. 4 wrote to the State Government on 20-6-2008 vouching for the genuineness of the appointments of the petitioners and their regular attendance in the concerned schools so that their salaries could be released. In the meantime, WP (C) No. 4549/2003 and WP (C) No. 455/2003 were dismissed by this Court. The two writ petitioners filed W.A. No. 321/2008 before the Division Bench. The writ appeal was allowed by the Division Bench on 29-4-2010 by directing the State-respondents to pay the salaries of the two appellants within four weeks. The Division Bench, however, rejected the prayer for regularization of the services of the said appellants. It is the contention of the petitioners that as they are similarly situated, similar direction on payment of salaries should be passed in this case also.

(3.) The writ petition is opposed by the respondent authorities who have filed their affidavit-in-opposition through the Director of Elementary Education, Assam (respondent 4). The case of the answering respondent is that the petitioners were appointed as Honorary Teachers in their respective Schools by the concerned Managing Committees of the respective Schools after their provincialization and that under the provisions of the Assam Elementary Education (Provincialization) Rules, 1977 ("the Rules"), the Managing Committees have no power to make such appointment. It is the case of the answering respondent that in Jahangir Alam vs. State of Assam, 2003 3 GauLT 544it was held that after provincialization of a venture institution, the Managing Committee of such an institution cannot make such an appointment nor can such appointee claim regularization of his appointment. According to the answering respondent, as the appointments of the petitioners were made without authority of law and against non-sanctioned posts, no adjustment or regularization is tenable in law: no merit list was ever prepared by the concerned Sub-Divisional Level Selection Board as contemplated by the Rules. It is the further case of the answering respondent that during 1999-2000, particularly, since 6.12.1999, there had been a ban on recruitment in the Government Departments when the State Level Empowered Committee (SLEC) under the Finance Department was constituted. Under this dispensation, no advertisement, regularization, adjustment, etc. to any post could be made by any Department without the prior approval of the SLEC. The Secretary to the Government of Assam in the Education Department vide the WT message under memo No. B(3) S. 119/2001 dated 8.3.2001 had informed all District Elementary Education Officers/Deputy Inspector of Schools that the Government had decided to lift the ban only for the purpose of filling up the newly created posts under the Operation Black Board (OBB) Scheme of one year under the Central Government Sponsored Scheme.