WRIT PETITION 6177/2010 on 28 December 1996

Conclusion

Heard Mr. DCK Hazarika, learned counsel for the petitioners and Mr. N Sarma, learned Standing Counsel, Education (Ele.) Department, Assam for the respondents. Subject matter of the writ petition relates to cancellation of appointment of the petitioners as Assistant Teacher in Middle English (ME) Schools under Dharmapur Constituency in the district of Nalbari.

Petitioners have filed the writ petition along with two additional-affidavits subsequently filed to project their case.

According to the petitioners, an advertisement was issued on 28.12.1996 for filling up the post of Assistant Teacher in ME Schools in the State of Assam. Being eligible, petitioners applied pursuant to the said advertisement. Petitioners were informed by the District Elementary Education Officer, Nalbari that interview would be held on 09.03.2001 and 10.03.2001. Accordingly, they appeared in the interview. Thereafter, by separate orders dated 23.03.2001, petitioners were appointed as Assistant Teacher. It is stated that following their appointments, petitioners joined their respective schools and started discharging their duties. At that stage, order dated 19.07.2001 was passed by the Director of Elementary Education, Assam. As per the said order, it was decided to cancel the appointmentof teachers made during the period w.e.f. 01.03.2001 in Nalbari district. The said order was passed on the ground of illegalities made in the appointments as well as on the ground of appointments being made in excess of sanctioned vacancies. Thereafter, District Elementary Education Officer, Nalbari passed consequential order on 21.07.2001 cancelling all appointments in ME Schools made w.e.f. 01.03.2001.

Such cancellation of appointments led to filing of a large number of writ petitions before this Court, including WP(C) No.5668/2001 filed by the petitioners. All the writ petitions were heard together and were disposed of by a common judgment and order dated 04.12.2001. This Court directed the State Govt. to initiate an inquiry in order to determine the genuineness of the select list and to identify the candidates who were genuinely selected thereby allowing them to join their respective schools as per appointment orders issued earlier which were cancelled by the authority.

It is stated that following such inquiry, District Elementary Education Officer,Nalbari had informed the Secretary to the Govt. of Assam in the Education Department that 105 Operation Black Board (OBB) teachers were appointed legally in the year 2001, but in addition, 475 numbers of excess appointments were made. The 105 legally appointed teachers included 30 in respect of Dharmapur Constituency.

Since no concrete steps were taken by the authority, petitioners again approached this Court by filing WP(C) No.8299/2004 challenging their termination and alsoseeking regularization of their service. The said writ petition was disposed ofvide order dated 12.12.2007 by directing the respondents to take an appropriatedecision in the matter.

Alleging non-compliance of such order, contempt petition being Cont. Case (C) No.469/2008 was filed. Court was informed that Inquiry Committee was reconstitutedvide notification dated 27.07.2009. This court by order dated 04.09.2009 had observed that since the Inquiry Committee had been reconstituted, case of the petitioners should be considered expeditiously and on that basis contempt petition was closed.

Alleging deliberate inaction, petitioners again filed Cont. Case(C) No.6/2010 before this Court. However, the Court was informed on 06.10.2010 that the Inquiry Committee had submitted its report dated 13.08.2010 and in the inquiry report, it was stated that names of the petitioners did not appear in any of the documents to show that they were regularly selected for appointment. Granting liberty tothe petitioners to challenge the legality and validity of the inquiry finding in a separate proceeding, the aforesaid contempt petition was closed vide order dated 06.10.2010.

Thereafter, the present writ petition has been filed challenging the legality and correctness of the report of the Inquiry Committee dated 13.08.2010. Additionally, the orders of the Director dated 19.07.2001 and District Elementary Education Officer dated 21.07.2001 have also been put to challenge. In the additional-affidavit filed by the petitioners on 03.09.2013, petitioners have brought on record certain documents obtained through Right to Information Act, 2005 (RTI) pertaining to the approval of select list of Assistant Teacher ofME Schools in Nalbari district, including Dharmapur Constituency. It is contended that as per instructions given by the District Elementary Education Officer, Nalbari, petitioners were selected by the Sub-Divisional Elementary Education Advisory Board, Nalbari and appointed against 30 vacancies in Dharmapur Constituen cy.

In the second additional-affidavit filed by the petitioners on 11.12.2013, it isstated that the relevant record available in the office of District Elementary Education Officer, Nalbari, in respect of which petitioners obtained informationunder the RTI, would show that selection and appointment of the petitioners were genuine and there was no justification for cancellation of their appointment. An affidavit has been filed on behalf of respondent No.1. Stand taken in the affidavit is that recruitment and conditions of service of teachers in provincialised elementary schools are governed by a set of statutory Acts and Rules, namely,Assam Elementary Education (Provincialisation) Act, 1974 and Assam Elementary Education (Provincialisation) Rules, 1977. Director of Elementary Education, Assam had issued an advertisement on 28.12.1996 for filling up 7500 vacancies in thepost of Assistant Teacher in the provincialised LP/ME Schools etc. in the Stateof Assam. In view of acute financial crisis and ban on appointments, the selection process could not be proceeded. However, the State Level Empowered Committeeconstituted by the Finance Department, Govt. of Assam made it clear that no appointments could be made by any department under the State Govt. without its prior approval. It is stated that though petitioners claimed that they were appointed in the month of March, 2001 as per approval of the Sub-Divisional Level Advisory Board, no interview was conducted by the District Elementary Education Officer, Nalbari. They were appointed by the then District Elementary Education Officer, Nalbari, Sri AC Choudhury, without obtaining prior approval of the higher authority.

Finance Department had granted sanction on 08.03.2001 for appointment of 7066 numbers of Assistant Teacher in provincialised elementary schools under OBB schemeon fixed pay for a fixed period. But the Finance Department did not lift the ban imposed for regular appointment, including appointment of Assistant Teacher inprovincialised elementary schools in Assam. State Govt. in the Education Department did not direct the district authorities and the Sub-Divisional Level Advisory Boards to prepare any select list for filling up of regular vacant sanctionedposts, but direction was issued only to appoint Assistant Teachers in provincialised elementary schools under OBB 7066 category. On verification, it was found that the then Deputy Inspector of Schools and District Elementary Education Officer, Nalbari had appointed the petitioners in the month of March, 2001 without any authority or prior permission from the higher authority. In addition, it was found that out of 7066 posts earmarked for appointment under the OBB scheme, 266 posts were earmarked for LP Schools and 135 postswere earmarked for ME Schools in Nalbari district. Against the allotted 266 and135 posts for Nalbari district, the then District Elementary Education Officer,Nalbari, Sri AC Choudhury, and the then Deputy Inspector of Schools, Sri Girin Haloi appointed 419 Nos. of teachers in ME Schools and 4510 Nos. of teachers in LP Schools respectively. Because of such illegal appointments in large numbers, complaints came to be received from various quarters which led to holding of inq uiry by the Deputy Commissioner, Nalbari. On 24.04.2001 original documents were seized by the office of Deputy Commissioner whereafter, inquiry report was submitted on 11.06.2001.

As per the report, Sri AC Choudhury himself appointed 419 numbers of teachers inME Schools against the 135 allotted sanctioned posts without obtaining any approval from the higher authority of the Education Department. It was physically not possible to segregate the illegal appointees from the genuine appointees and, therefore, Govt. of Assam in the Education Department passed order dated 04.07.2001 issuing direction to the Director of Elementary Education, Assam to cancel all the illegal appointments. Consequently, Director of Elementary Education issued the impugned order dated 19.07.2001 followed by order dated 21.07.2001, passed by the District Elementary Education Officer, Nalbari. Following orders passed by this Court in the year 2001 and in the year 2007 on writ petitions filed by the terminated teachers, including the petitioners, Inquiry Committee was constituted and subsequently reconstituted to verify genuineness of appointments made in March, 2001 under OBB 7066 scheme in Nalbari district.Inquiry Committee it its meeting held on 13.08.2010, on scrutiny of the relevant materials found the appointments of the petitioners to be doubtful. It was also found that petitioners were in service for 4 months only i.e., from March, 2001 to 16.07.2001 for which they did not receive salary. Mr. Hazarika, learned counsel for the petitioners submits that appointment of the petitioners as Assistant Teacher in ME Schools under Dharmapur Constituency inNalbari district was genuine and, therefore, they could not be clubbed with illegal appointees. Hence termination of their services were illegal. Respondents should segregate the genuine appointees from the illegal appointees whereafter the appointments of the genuine candidates should be restored. This is not an impossible task for the respondents.

Arguments

On the other hand, learned Standing Counsel submits that despite sincere effortsby the authorities, it is not possible to segregate the good from the bad. Inquiry Committee did not find any such document to suggest genuineness of selectionand appointment of the petitioners. In view of large number of anomalies committed by the district authorities of Nalbari during the same period when the petitioners were appointed, it is neither feasible nor practicable to make an endeavour to segregate the good from the bad and thereafter to declare the petitioners to be genuine candidates. View taken that the appointments of the petitioners were not genuine, in the facts and circumstances of the case, cannot be faulted. Approach of the respondents is justified and, therefore, no interference is called for.

Submissions made by learned counsel for the parties have been considered. Also perused the record.

The first order passed by the Director of Elementary Education, Assam on 19.07.2001 may be adverted to at the outset.

As per the said order, a magisterial enquiry was conducted by the office of Deputy Commissioner, Nalbari regarding illegal appointments made in ME Schools in Nalbari district. It is stated that as per the inquiry report, a large number of teachers were appointed dehors any Government sanction and allotment. The then in-charge District Elementary Education Officer, Nalbari, Sri AC Choudhury, made 419 appointments of Assistant Teacher in Middle Schools against 135 sanctioned vacancies. Since 284 illegal appointments were made, Government took a decision that such illegally appointed teachers, appointed against non-existent posts and without any budget provision, could not be allowed to continue their service. Accordingly, instructions in this regard were issued on 04.07.2001 to cancel the illegal and excess appointments. The Director also stated that it was humanly impossible to separate a few legally appointed teachers from the large number of illegally appointed teachers. Therefore, it was decided to cancel the appointments made by Sri AC Choudhury w.e.f. 01.03.2001. Accordingly, District Elementary Education Officer, Nalbari was directed to cancel all such appointments made with immediate effect.

Thereafter District Elementary Education Officer, Nalbari issued the consequential cancellation order dated 21.07.2001.

The Inquiry Committee, constituted to verify the genuine teachers appointed in March, 2001 under OBB scheme in Nalbari district, on scrutinizing the record noticed that the registers and files did not contain any proceeding or select list duly signed by the Chairman or members of the Sub-Divisional Level Advisory Board, Nalbari in connection with the appointments. All records were found in photo-stat form and no original documents were found. The Committee also verified the claims of the 27 petitioners and on verification, it was found that names of noneof the 27 petitioners were found in the record. No document relating to their appointments could be located in the record. Therefore, the Committee opined thatthe appointment of the petitioners appeared to be doubtful.

Respondent No.1 in his affidavit has described in detail the illegal appointments made by the then District Elementary Education Officer, Nalbari and Deputy Inspector of Schools, Nalbari. As already noticed above, Sri AC Choudhury, the then District Elementary Education Officer himself appointed 419 numbers of teachersin ME Schools against the allotted 135 sanctioned posts. Specific averments have been made that it was physically not possible to separate the illegal appointees from the genuine appointees.

Petitioners were terminated from service way back in the year 2001. The appointments made during the period when the petitioners were appointed have been found to be grossly illegal being made far in excess of the sanctioned allotted posts and without any interview. Even the Inquiry Committee noted that appointments ofthe petitioners were found to be doubtful. Therefore, segregating the legally appointed teachers from the illegally appointed teachers was not possible. In such circumstances, acceding to the prayer made by the petitioners at this juncture, 15 years after their termination, would neither be just nor proper, more so with the facts staring at the face.

In such circumstances, this Court, in exercise of its writ jurisdiction under Article 226 of the Constitution of India, is not inclined to issue any mandamus for quashing the cancellation order and for reinstatement of the petitioners. That being the position, writ petition is dismissed but without any order as to costs.