Nihar Ranjan Roy and 11 Ors v. The State of Assam and 4 Ors

ORDER

08.09.2023 Heard Mr. J Abedin, learned counsel for the petitioners and Mr. P N Sharma, learned Standing counsel, Department of School Education, Assam for the respondent Nos. 1 to 4. Page No.# 5/8 Also heard Mr. P Nayak, learned Standing counsel, Finance Department, Assam for the respondent No. 5.

¶2As contended by the petitioners, they were appointed in the first quarter of 1994 as Assistant Teachers in various provincialised upper primary schools on the approval of the concerned Advisory Board in the district of Bongaigaon.

¶3Initially for a certain period of time they received their monthly salaries, which later stopped.

¶4It is also contended by the petitioners that out of 505 Teachers in the district of Bongaigaon approved by the concerned Advisory Board in the year 1993-94, only 125 Teachers were given regular appointment, leaving out the petitioners and other such Teachers as they were found to be in excess/appointed against non-existent posts.

¶5Petitioners herein are silent as to when the relevant advertisement was issued, in which they participated and got selected.

¶6However, they have annexed their appointment orders issued in the month of February, 1994, which itself indicate that they were appointed against newly created posts.

¶7Pursuant to an order issued by a Division Bench of this Court, the State Government in the Education Department constituted 5 Zonal Committees, invited applications from such Teachers serving in various Provincialised/Government Upper Primary/Lower Primary Schools of the State partly receiving salary/without receiving salary since 1991-2001.

¶8Pursuant to such advertisement, petitioners herein applied before the Directorate of Elementary Education, Assam.

¶9The committee concerned accordingly verified those applications of the petitioners and placed those before the appropriate Zonal Committee.

¶10The concerned Zonal Committee after due verification recommended the names as per the process of verification.

¶11The State Government in the Elementary Education Department categorized 3 types of Teachers, (i) Teachers having the requisite educational training like Normal/ D.El.Ed./B.Ed. etc. serving in non-existent posts or appointed in excess, (ii) Teachers without having the Page No.# 6/8 requisite educational training of Normal/D.El.Ed./B.Ed. etc. and (iii) Teachers might/might not having the requisite educational training of Normal/ D.El.Ed./B.Ed. etc., but serving in non-existent posts in excess without there being any selection.

¶12The matter was placed before the Cabinet and the Cabinet accordingly considered the cases of such three types of Teachers recommended by the concerned Zonal Committees.

¶13For the first type of Teachers, the Cabinet took a decision to appoint them as regular Teachers against vacant sanctioned posts in the respective districts under the concerned zones.

¶14The second type of Teachers without having the requisite educational training were appointed as Tutors in a fixed salary till acquiring of such training of D.El.Ed. and the third category of Teachers found to be illegal were not considered for appointments.

¶15The petitioners herein belong to the second category of Teachers and pursuant to the Cabinet decision of the State Government and the State Government in the Education Department vide No. B(3) S427/2001/3 dated 04.01.2002 and pursuant to the approval of the State Government vide communications No. EDN(LC)27/2016/150/Pt-II/511 dated

21.01.2021 and No. EDN (LC)27/2016/150/Pt-III/518 dated 27.01.2021; the Director of Elementary Education, Assam by an order issued under No. EMA.B.17/2021/276 dated

30.01.2021 accommodated the petitioners as Tutors in a post personal in nature that will cease to exist as and when the petitioners retires from service/resigns from the said posts during service/expires during service, with due approval of the Finance Department of the State in a fixed pay and accommodated them against a provincialised Upper Primary School in the district of Bongaigaon with certain conditions w.e.f. 01.11.2020.

¶16Though the petitioners accepted their terms of accommodation as Tutors and were posted in different provincialised and upper primary schools in terms of their consideration as Tutors issued by the Director of Elementary Education, Assam on 30.01.2021, but the petitioners have filed this writ petition on 30.08.2023 after accepting their terms and conditions of accommodation as Tutors, praying amongst others, for a direction the respondent authorities to (i) modify the orders of accommodation dated 30.01.2021, so far it relates to fixed salary provided to them as per the Act of 2017 as well as the conditions Page No.# 7/8 imposed upon them not to claim for any benefits in respect of past services rendered prior to

01.11.2020, (ii) make necessary arrangements to grant Scale of Pay to them with other service benefits as admissible to the Government employees of the State of Assam and (iii) exclude them from the purview of the Act of 2017 being not applicable for them and to re-fix their salary in appropriate Scale of Pay as admissible under the relevant laws.

¶17It is to be noted herein that the petitioners have been considered for accommodation after the directions issued by the Division Bench of this Court and in pursuance of the Cabinet decision of the State Government.

¶18However, those orders of the Division Bench of this Court passed long back have attained finality, not being challenged by any of such incumbents, accepting their appointments as Tutors.

¶19Further, in the case in hand, the petitioners have not challenged the Cabinet decision of the State Government, by which though being appointed in excess against non-existent posts, being benevolent considered to accommodate them against fixed pay salary, not having the requisite educational qualification.

¶20It is to be noted herein that the petitioners' only contention is that since they were considered under the Assam Elementary Education (Provincialisation) Rules, 1977 earlier; they should have been considered not under the Assam Education (Provincialisation of Services of Teachers and Re-organization of Educational Institutions) Act, 2017 but under the earlier Rules.

¶21However, while the Cabinet took that decision to consider the cases of the petitioners and others, said 1977 Rules was not in force, as the said 2017 Rules came into force w.e.f.

05.05.2017.

¶22It is well settled that any appointment made in excess without advertisement against any non-existent posts cannot be termed as valid appointment as provided under Articles 14 & 16 of the Constitution of India and the case of the petitioners are under the category of excess appointment and/or appointment against non-existent posts.

¶23As the Cabinet decision to consider the case of the petitioners to accommodate them as Tutors under the provisions of the said 2017 Act is not under challenge, the Court is not Page No.# 8/8 inclined to consider the prayers of the petitioners made herein and accordingly, this writ petition stands dismissed.

¶24However, the petitioners are at liberty to approach the appropriate forum, if they are aggrieved with the said Cabinet decision of the Government, if so advised, accommodating them as Tutors in a fixed pay of salary.

JUDGE Comparing Assistant

PageoNo.#o1/8 GAHC010193032023 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/5128/2023o NIHARoRANJANoROYoANDo11oORSo SONoOFoSRIoBHUPENoRAY,o VILL.oCHOITAKI,oP.O.DEOHATI,o P.S.oABHAYAPURI,o DIST.oBONGAIGAON,oASSAM,o PINo-o783384 2:oMAINULoHOQUE oSONoOFoLT.oMOHIJUDDINoSHEIKH o VILLAGEo-oRAGHUNANDANPUR o P.O.oBOITAMARI oP.S.oABHAYAPURI o DIST.oBONGAIGAON oASSAM oPIN-783389 3:oBHADRESWARoADHIKARY oSONoOFoLT.oJADAVoCH.oADHIKARY o VILL.oBECHIMARI oP.O.oBOITAMARI o P.S.oABHAYAPURI o DIST.oBONGAIGAON oASSAM oPIN-783389 PageoNo.#o2/8 4:oABUoBAKKERoSIDDIQUEoMONDOL oSONoOFoEAKUBoALIoMONDOL o VILL.oDHONTOLA oP.O.oDHONTOLAoBAZAR o DIST.oBONGAIGAON oASSAM oPIN-783372 5:oRAZIAoKHATUN oD/OoABUoNASIRoAHMEDo VILL.oNANKARGAON oP.O.oDHANTOLAoBAZARo DIST.oBONGAIGAON oASSAM oPIN-783372 6:oHIMMAToSINGoADHIKARY oSONoOFoLT.oKAMESWARoADHIKARY o VILL.oPANCHAGAON oP.O.oDHONTOLAoBAZARo DIST.oBONGAIGAON oASSAM oPIN-783372 7:oABDULoKHALEQUE oSONoOFoLT.oNAYEBoALI o VILLAGEo-oCHATPARAo(CHAR) o P.O.oANDoP.S.oJOGIGHOPA o DIST.oBONGAIGAON oASSAM oPIN-783372 8:oDHIRENoCH.oRAY oSONoOFoLT.oBAHADURoCH.oRAY o VILL.oAMTOLA oP.O.NORTHoSALMARA o PageoNo.#o3/8 DIST.oBONGAIGAON oASSAM oPIN-783383 9:oNARUDDINoAHMED oSONoOFoLT.oUMOTULLAHoSK o VILL.oOUDUBI oP.O.oKHELUAPARA o P.S.oJOGIGHOPA o DIST.oBONGAIGAON oASSAM oPIN-783371 10:oJAHARoALI oSONoOFoLT.oJURANoALI o VILL.oOUDUBI oP.O.oKHELUAPARA o P.S.oJOGIGHOPA o DIST.oBONGAIGAON oASSAM oPIN-783371 11:oNURoMEHERUNoNESSA oW/O.oABEDoALI o VILL.oISWARJHARIoP.O.oMAJERALGA o DIST.oBONGAIGAON oASSAM oPIN-783388 12:oTULASHIoDEVI oD/O.oNIRENDRAoNARAYANoDEV o VILL.oJOLAKHATA oP.O.oDHONTOLAoBAZAR o DIST.oBONGAIGAON oASSAM oPIN-78337o Page No.# 4/8 VERSUS THE STATE OF ASSAM AND 4 ORS REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF ASSAM, DEPARTMENT OF SCHOOL EDUCATION, DISPUR, GUWAHATI - 781006 2:THE DIRECTOR OF ELEMENTARY EDUCATION ASSAM KAHILIPARA GUWAHATI-781019 3:THE DEPUTY INSPECTOR OF SCHOOLS BONGAIGAON DIST. BONGAIGAON ASSAM PIN-783380 4:THE DISTRICT ELEMENTARY EDUCATION OFFICER (DEEO) BONGAIGAON DIST. BONGAIGAON ASSAM PIN-783380 5:THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF ASSAM FINANCE DEPARTMENT DISPUR GUWAHATI - 78100 Advocate for the Petitioner : MR J ABEDIN Advocate for the Respondent : SC, ELEM. EDU BEFORE HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK