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PETITIONER: NAZIRA BEGUM LASHKAR & ORS.

       Vs.

RESPONDENT: STATE OF ASSAM & ORS.

DATE OF JUDGMENT:       07/11/2000

BENCH: G.B. Pattanaik, S. Rajendra Babu, & B.N. Agarawal.

JUDGMENT:

L.......I.......T.......T.......T.......T.......T.......T.JJUDGMENT

PATTANAIK,J.

       In  this  batch  of appeals, the  judgment  of  the Division  Bench  of Gauhati High Court is under  challenge. In  Civil Appeal No.  278 of 1999, the appellants had  been appointed  as Assistant Teachers of Primary Schools in  the year  1990.   But those appointments were cancelled by  the State  Government,  after giving show cause notice  to  the appellants  inasmuch  as  the appointments had  been  made, though  no  posts were available and the  appointments  had been made, not in accordance with the prescribed procedure. The  order  of cancellation had been assailed in  the  High Court  by filing writ petition and the learned Single Judge by  a  cryptic  order, without focusing  attention  to  the relevant  criteria,  allowed  the   same.   The  State  had assailed  the  legality of the order of the learned  Single Judge  by filing writ appeal and the Division Bench  having allowed  the  writ appeal and this Court against  the  said order  having granted special leave, the present appeal  is before us.

       Civil Appeal Nos .296/99, 279-285/99 and 286/99 are by  some  of the teachers in the primary schools, who  were appointed on 29.9.94 and their services stood terminated by the  order  dated  20th December, 1994.   They  filed  writ petitions  in  the  Gauhati High Court, which  was  pending before  the learned Single Judge.  When the Division  Bench was in session on writ appeal filed by the State, as stated earlier,   the  said  Division   Bench  withdrew  the  writ petitions filed by the appellants from the Single Judge and disposed  them  of,  by  the common order  which  is  being assailed in these appeals.

       Civil  Appeal Nos.  279-285/99 are also by some  of the  teachers, who were appointed and whose services  stood terminated  and they had assailed the order of  termination by  filing a writ petition before the learned Single Judge, which  was brought over by the Division Bench and  disposed of, along with the batch of other appeals.

       Civil  Appeal  No.   287/99:  In this  appeal,  the teachers  before  any  order of  termination,  apprehending termination  had  approached the High Court and  while  the matter  was  pending before the learned Single  Judge,  the writ  petition stood transferred to the Division Bench  and

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the  Division Bench also disposed of the same by the common order.

       Civil  Appeal Nos.  288-294/99:  The facts in these appeals  are  similar  to  the facts in  Civil  Appeal  No. 278/99 and in these appeals also, the order of the Division Bench of the Gauhati High Court is under challenge.

       Civil  Appeal No.  295/99:  In this appeal  against the  order of termination, the teachers had approached  the High Court by filing a writ petition and the learned Single Judge  by  his judgment dated 28th of April, 1994 in  Civil Rule  No.   4280/91, dismissed the same.  Against the  said judgment  of  the  learned Single Judge, the  teachers  had carried appeal to the Division Bench and the Division Bench by  judgment  dated  24th May, 1995, having  dismissed  the appeal, the appellants are before this Court, special leave having been granted.

       In  all  these appeals, the appellants  claimed  to have  been  appointed  as Assistant Teachers  of  different Primary  Schools in the State of Assam.  The recruitment to the  post of Primary Schools is governed by a set of  rules called  the Assam Elementary Education  (Provincialisation) Rules,  1977 (for short the Recruitment Rules) which  had been  framed by the Governor of Assam in exercise of powers conferred   by   Section  27  of   the   Assam   Elementary Education(Provincialisation)  Act,  1974.    The  aforesaid Recruitment  Rules  provide  for   method  of  recruitment, payment  of  liabilities  of the Board  and  management  of Elementary  Schools.   Rule  3  of  the  Recruitment  Rules provides  the  method of recruitment.  The said Rule  3  is extracted hereunder in extenso:

       Rule  3.(i)Method of recruitment.  In the month of January  every year the D.I.  shall invite applications  in prescribed form for vacancies of elementary school teachers which are likely to occur in the year in his establishment.

       (ii)Age.   (a)A  candidate shall be within the  age limit  on  1st  January  of  the  year  of  recruitment  as prescribed by Government.

       (b)The  Upper age limit shall be relaxed in  favour of  Scheduled Castes and Scheduled Tribes as per Rules made by Government.

       (iii)Qualification.(a)Matriculation  /High   School /School  Leaving  Certificate  Examination   or  any  other examination  of  equivalent standard shall be  the  minimum qualification  for the post of teacher in Lower Primary and Junior  Basic Schools preference being given to  candidates trained  in Senior Basic, Normal and Junior Basic  Training Courses.

       (b)For M.V.  and Senior Basic Schools qualification shall  be  Matric, Normal or P.U.  or Intermediate  or  its equivalent.

       (iv)Character.   A  candidate   shall  furnish  the certificates  of character from (a)the Principal,  Academic Officer   of  the  School/College   last  attended  by  the candidate  and  (b)  a  respectable   person  who  is  well acquainted with (not related to) the candidate.

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       (v)Selection Committee.  There shall be a Selection Committee   in  each  educational   sub-  Division  to   be constituted  by the Sub-Divisional Level Advisory Board for Elementary  Education.  The Chairman of the  Sub-Divisional Level  Advisory Board for Elementary Education and the D.I. of  Schools  shall  be the Chairman and  Secretary  of  the Selection Committee respectively.

       (vi)On  receipt  of   applications,  the  Selection Committee  shall  scrutinise  the  mark  sheets  and  other necessary testimonials of the candidates and prepare a list of candidates for interview by the Selection Committee.

       The  Selection  Committee shall then  finalise  the list  of  successful  candidates in order  of  merit  after interview  and  shall put up the list before the Board  for approval.   While  approving the list, the Board  shall  be guided  by  the  declared policies of  the  Government  and instructions  issued  by the Government from time to  time. After  approval of the list by the Board the same shall  be sent  to the Director of Elementary Education for his final approval.

       The  Deputy  Inspector of Schools will appoint  the selected  candidates  in  order  of  merit  from  the  list approved  by  the Director of Elementary Education  as  and when  required  as  per  Government  Rules  and  Government instructions for the time being in force.

       The  list  shall be valid for one year  unless  its validity is extended by Government.

       (vii)Reservation.   There  shall be reservation  of posts  for  Scheduled  Castes and Scheduled Tribes  as  per Rules made by Government from time to time.

       (viii)physical fitness.  (a)A candidate shall be of sound  health  both physically and mentally and  free  from organic  defects  or bodily infirmity likely  to  interfere with  his/her duties.  (b)A candidate shall be required  to undergo  medical  examination  and  to  produce  a  medical certificate of fitness.

       (ix)An  appointed  candidate  may  be  required  to undergo  such in-service training as Government may  decide from time to time.

       In  view  of  the   allegations  that  large  scale irregular  appointments  had been made by some officers  of the Government, without following the prescribed procedure, the  Division  Bench of Gauhati High Court, while the  writ appeals  as well as the writ petitions brought over by  the Division Bench from the Single Judge of the said High Court were pending, a direction had been issued by the High Court for  holding an inquiry and submitting a report in view  of the  alleged  gross  mal-practices   adopted  in  different Districts.

       After  inquiring  into  the manner in  which  these appointments  had  been  made, the  Inquiry  Committee  had submitted  a report that the appointment of these  teachers had  not  been made in accordance with the statutory  rules and  without any advertisement calling for applications and without  any  constitution of the Selection  Committee  and

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without  any  interview,  appointments  had  been  made  as against  the  allotted posts under the orders of  the  then Chief  Minister  and communicated by the then  Director  of Elementary  Education and/or the Secretary in the Education Department.   The Division Bench of the Gauhati High  Court came  to  the  conclusion that the initial  appointment  of these  teachers itself was not only in contravention of the statutory  rules,  but against all cannons of fairness  and the  appointment  letters were cancelled after giving  show cause  notice, rules of natural justice having sufficiently complied  with,  and  in such  circumstances,  the  initial appointment  being  dubious  in  nature,  the  issuance  of appointment  letters  will  not  confer any  right  on  the appointees.   Since the Division Bench was hearing  matters relating  to  appointment of Primary Teachers in  different Districts,  it came to hold that the corrupt practices were not  confined  to  a particular District of the  State  but spread  over  the  length and breadth of  the  State  right through  Cachar, Jorhat, Darrang etc.  and the large number of  back- door entries of teachers were made and  appointed de  hors  the  Rules.  Ultimately, therefore  the  Division Bench in the impugned judgment came to the conclusion that:

       ...........the appointments conceived in fraud and delivered  in  deceit cannot be regularised  or  validated. There  was  no  selection, no interview, or fake  or  ghost interviews,   tampering   with   records  and   fabricating documents.   In  such circumstances as pointed out  by  the Supreme  Court in Krishan Yadav vs.  State of Haryana,  AIR 1994  SC  2166,  an  inference can be drawn  that  all  was motivated by extraneous considerations.  The entire process of  making appointments is stinking.  Really speaking,  the moment posts were allotted to a particular District, it was free play for all and the net result is these appointments. All  norms of procedural fairness had been thrown to winds, the  rules were given a convenient go-bye.  Article 14  and 16  of  the  Constitution violated  with  impunity.   These petitions  are,  therefore,  liable  to  be  dismissed  and accordingly dismissed with no order as to costs."

       The  appeals  filed by the State,  therefore,  were allowed  and in the cases where the writ petitions had been dismissed  by the learned Single Judge and the appeals  had been  preferred  by  the   teachers,  those  appeals  stood dismissed.  The State Government was directed to streamline the  process of selection at its earliest and while  making such  selection,  it was also further directed  that  these teachers  would  get an opportunity to offer themselves  as candidates,  subject  to their fulfilment of conditions  of eligibility and if necessary, the age should be relaxed, as permissible under the Rules.

       Mr.   Sanjay Parikh, the learned counsel, appearing for  the appellants in Civil Appeal No.  278/99, vehemently contended  before  us that the poor teachers should not  be penalised,  since they had been appointed against available vacant  posts  by a competent authority and since  they  do possess  the  requisite qualification for being  appointed. He  also  vehemently contended that the order in favour  of these  teachers  by  the learned Single Judge  having  been assailed  by  the State, after long delay of eleven  months and  objection  for  condonation  having  been  filed,  the Division Bench was not justified while interfering with the order of the learned Single Judge and on that ground alone, the  order of the Division Bench is liable to be interfered

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with by this Court.  He also further submitted that in view of  the fact that these teachers have been continuing for a considerable  number of years, this Court should direct for adjustment  of  equities  in a manner as was done  by  this Court  in  Ashwani Kumar and Ors.  Vs.  State of Bihar  and Ors.,  1997(2) SCC Page 1, so that while considering  these teachers  for  the posts pursuant to the directions of  the Division  Bench of the High Court, due weightage should  be given  for the experience gained by these teachers who  had been  teaching  for a number of years.  In support of  this contention, Mr.  Parikh also relied upon a decision of this Court  in Arun Kumar Rout and Ors.  Vs.  State of Bihar and Ors.,  1998(9) S.C.C.  71, wherein this Court had indicated that  the  appointees deserve sympathetic consideration  in getting   appointment   against     sanctioned   posts   on humanitarian  consideration.   The   learned  counsel  also placed  reliance  on  the judgment of this  Court  in  H.C. Puttaswamy  and  Ors.   Vs.  The Honble Chief  Justice  of Karnataka  High  Court, Bangalore and Ors.,  1991  Supp.(2) S.C.C.   421,  where-under this Court reviewed the  earlier orders  of  the  Court  and treated  the  services  of  the appointees to be regularly appointed.

       Mr.   Sudhir  Chandra, the learned  senior  counsel appearing  for  the appellants in C.A.  No.   296/99,  C.A. No.   279-285/99  and C.A.  No.  286/99, on the other  hand contended  that the teachers involved in these appeals  had applied  for,  pursuant  to an advertisement  in  Newspaper Dainik Azone and in fact 5474 teachers had been appointed under  a special project called Operation Black Board and for  such  appointments, the provisions of the  Recruitment Rules have no application.  According to him, a large scale appointments  having been made and such appointments having been  made after entertaining applications, pursuant to  an advertisement and after considering the appointees suitable by  an  authority, their appointments could not  have  been terminated and the Division Bench was in error in disposing of  the  writ petitions filed by them without adverting  to the  special features of the case, as narrated.   According to  Mr.  Sudhir Chandra, so far as the appointees in  these appeals are concerned, there has neither been any back door entry  nor  has  there been any favouritism  shown  by  the authorities,  and  therefore, their appointments could  not have  been cancelled and /or terminated within three months of the appointment.

       Mr.  M.N.  Krishnamani, the learned senior counsel, appearing  for  the  appellants  in  C.A.No.   287/99  also contended that the teachers involved in the said appeal had approached  the High Court, apprehending their  termination and,  therefore,  their writ petitions could not have  been disposed  of by the Division Bench by bringing forth  their case,  without  adverting  to  the  grounds  on  which  the teachers   approached   the    High   Court,   apprehending termination  and  he, therefore, submitted that the  matter should  be remitted back to the learned Single Judge of the Gauhati High Court.

       Ms.  Indu Malhotra, appearing for the appellants in C.A.   No.  295/99 on the other hand contended that so  far as  the  recruitment  of the appellants in this  appeal  is concerned,  there  was due advertisement and there was  due selection  and appointments had been made by the Elementary Advisory Board and as such there was substantial compliance

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of   the   provisions   of   the  Recruitment   Rules   and consequently,  the appointments involved in the said appeal could not have been annuled by the Division Bench.

       In  view of different submissions made by different set of counsel, as referred to earlier, we have examined in detail  the  report  of the Inquiry Committee  as  well  as different orders passed by the High Court and it appears to us that no special case had been made out by the appellants in  C.A.  No.  296/99, C.A.  Nos.  279-285/99 and C.A.  No. 286/99  in  their  writ petitions before  the  High  Court, making  out  a case that these appointments had  been  made under  a special project called Operation Black Board and as  such, the provisions of the Recruitment Rules need  not be  complied  with and the appointments had been bona  fide made  by the competent authority and the appointees possess the  requisite  qualification.  Even in the  special  leave petition  in this Court, no such stand has been taken.   In this  view of the matter, we are constrained to agree  with the  conclusions  of the Division Bench of the  High  Court that  the  appointments  were made to  posts  of  Assistant Teachers  of  Primary  Schools and  such  appointments  are governed  by  the statutory Recruitment Rules, which  rules have  been framed by the Governor in exercise of the  power conferred    under   the     Assam   Elementary   Education (Provincialisation)  Act,  1974.  We also do not  find  any substance  in  the argument of Ms.  Indu Malhotra that  the appointments  made in C.A.  No.  295/99 were in substantial compliance  of  the  Recruitment   Rules  inasmuch  as  the judgment  of the Division Bench clearly indicates that  the counsel  appearing  for  the  teachers  conceded  that  the appointments had been made on the vacant posts but the same were  not done in accordance with the provisions of Rule  3 of  the Rules of 1977.  In view of the aforesaid concession of the appellants through their counsel before the Division Bench,  it  would  be  difficult for us  to  entertain  the contention  of  Ms.   Indu  Malhotra that  there  has  been substantial compliance of the provisions of the Recruitment Rules.   As  has been stated earlier, while the matter  was pending  before the Division Bench, the Court was persuaded to appoint an Inquiry Committee, in view of the allegations of  gross irregularities and illegalities committed in  the matter  of  appointment  of teachers in  different  primary schools  in  different Districts.  The said  Committee  has gone into details and recorded findings that the provisions of  the  Recruitment Rules have not at all  been  followed. The  High Court even has gone to the extent of recording  a finding  that there has been no selection, no interview  or even  fake or ghost interviews and there has been tampering of  records  and  fabricating  of  documents.   Since   the appointments  to  the  posts  are  governed  by  a  set  of statutory  rules, and the prescribed procedure therein  had not  been followed and on the other hand appointments  have been  made  indiscriminately, immediately after posts  were allotted  to  different  Districts at the  behest  of  some unseen  hands, such appointments would not confer any right on  the  appointee  nor such appointee can claim  even  any equitable   relief  from  any   Court.   That  apart,   the appointments stood annuled hardly after six months from the date  of appointments and the appointees cannot claim to be continuing  for  an unusual long period, so as to  claim  a humanitarian  consideration  in their case.  The  decisions cited  by  Mr.  Parikh, in support of his  contention,  not only  do not support his contention but on the other  hand, appears  to  us to be against his contention.   In  Ashwani

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Kumars  case, 1997(2) S.C.C.1, this Court in no  uncertain terms held that as the appointments had been made illegally and  contrary to all recognised recruitment procedures  and were  highly  arbitrary, the same were not binding  on  the State  of Bihar.  This Court further went on to hold in the aforesaid  case  that the initial appointments having  been made  contrary  to the statutory rules, the continuance  of such appointees must be held to be totally unauthorised and no  right would accrue to the incumbent on that score.  The Court  had also held that it cannot be said that principles of  natural  justice were violated or full opportunity  was not  given to the employees concerned to have their say  in the  matter  before  their appointments were  recalled  and terminated.   But, while dismissing the appeals, the  Court had  issued  certain directions as to how the  appointments should  be made in future and how the case of the illegally recruited  teachers should be dealt with.  In the facts and circumstances  of  the  present  case,  we  are  unable  to persuade  ourselves to give any such direction, other  than the  directions  given  by the Division Bench of  the  High Court regarding condonation of over age inasmuch as none of the  appointees have been allowed to continue for any  long period  beyond  six  months  and wherever  they  have  been allowed  to continue, it is because of the judgment of  the learned Single Judge.  In this view of the matter, question of  issuing  any  direction for adjustment of  equities  in favour  of  the appellants would not arise.  It may not  be out of place to mention at this stage that even though, the appointments  made  in favour of the  appointees  indicated clearly that the appointment is purely temporary and can be terminated  without  any notice but before cancellation  of the  appointments,  the Government did issue notice to  the appointees  and  it  is only after  that,  the  termination orders  had been issued.  In the aforesaid premises, we  do not  find any merit in any of these appeals and the appeals accordingly   fail   and   are   dismissed,  but   in   the circumstances there will be no order as to costs.

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