Gauhati High Court
Md Hamidur Rahman vs The State Of Assam And Ors on 25 August, 2015
Author: T. Vaiphei
Bench: T. Vaiphei
IN THE GAUHATI HIGH COURT
(High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Writ Petition (C) No. 3655 of 2010
1) Md. Hamidur Rahman, Son of Lutfur Rahman,
Resident of village Lezam, P.O-Chunari,
Dist- Goalpara, Assam.
............ Petitioner
- Versus -
1) The State of Assam, represented by the Commissioner &
Secretary to the Government of Assam, Education
(Secondary) Department, Dispur, Guwahati-6.
2) The Commissioner & Secretary to the Government of
Assam, Education (Secondary) Department, Dispur,
Guwahati-6.
3) The Commissioner & Secretary to the Government of
Assam, Finance Department, Dispur, Guwahati-6.
4) The Expert Committee represented by its Member
Secretary, O/o the Commissioner & Secretary to the
Government of Assam, Education (Secondary)
Department, Dispur, Guwahati-6.
5) The Under Secretary to the Government of Assam,
Education (Secondary) Department, Dispur, Guwahati-6.
6) The Director of Secondary Education, Assam,
Kahilipara, Guwahati-19.
7) The Sub-Committee for Scrutiny of claims for salary of
teachers represented by The Director of Secondary
Education, Kahilipara, Guwahati-19.
8) The Inspector of Schools, Goalpara District Circle,
Goalpara.
WP(C) No. 3655/2010 Page 1 of 8
9) The Treasury Officer, Goalpara.
10) The Principal, Lakhipur Higher Secondary School,
Goalpara, Assam.
........ Respondents
BEFORE HON'BLE MR. JUSTICE T. VAIPHEI For the petitioner: Mr. M. Dutta, Advocate For the respondents: Mr. U.K. Goswami, SC, Second. Edu. Deptt.
Date of Hearing : 04-08-2015
Date of Judgment: 25-08-2015
JUDGMENT & ORDER (CAV)
In this writ petition, the petitioner is challenging the termination of his service and seeking payment of his salaries, past and present as he continues to discharge his duties in the post of Assistant Teacher of Lakhipur Higher Secondary School.
2. The facts of the case, as pleaded by him, in a nutshell, are that he is a post graduate in Assamese and is eligible to be appointed as Subject Teacher. He had applied for the post of Assistant Teacher in the year 1999, was called for the interview, appeared before the Interview Board and was selected whereafter the respondent No. 8 issued the order dated 30-11-1999 appointing him as senior Hindi Teacher of Lakhipur Higher Secondary School in the pay scale of ₹3,580-8750 pm plus other admissible allowances against the lien vacancy of one Mohammad Abu Taleb, senior Hindi Teacher of the same school. He joined the post on 1- 12-1999 and discharged his duty thereafter. His post was subsequently converted into General post vice one Chakreshwar Kakati a retired A/T and transferred to the same school vide the order dated 17-6-2003 and WP(C) No. 3655/2010 Page 2 of 8 joined the post on 7-7-2003. However, he received his salary only up to November, 2003 whereafter payment of his salary was suddenly stopped. He then submitted his representation dated 7-4-2004 to the respondent No. 8 for release of his withheld salaries through his Principal. The respondent No. 8 thereafter referred the representation of the petitioner to the respondent No. 6 for necessary action. Another representation dated 19-11-2004 was also submitted by him to the respondent No. 8 seeking redressal of his grievances. In the meantime, the respondent No. 8 informed the petitioner through the communication dated 13-4-2005 that interview for the vacant posts of Post Graduate Secondary Teachers for the same school would be held on 20-4-2005 in the Office of the respondent No. 6 and asked him to appear in the said interview. He duly appeared in the interview, but the fate of this interview is not known till now. In the meanwhile, he approached this Court in WP(C) No. 49/2006 praying for release of his salaries from December, 2003 including current salary. This Court by the order dated 6-4-2006 disposed of the writ petition directing that all the matters pertaining to payment of salaries should be referred to the Expert Committee constituted for the purpose.
3. In the meantime, another advertisement was published in the newspaper on 25-8-2007 inviting application for the posts of post graduate teachers in provincialized Higher Secondary Schools. He duly applied for one of such posts and appeared in the selection process but nothing came out of this selection process. In the meanwhile, the said Expert Committee constituted a Sub-Committee headed by the respondent No. 8. The petitioner appeared before the Sub-Committee which ultimately submitted its report holding that the adjustment of the petitioner against the regular vacancy was without any selection and his appointment was, as such, irregular and that his pay due from December, 2003 up to the date when his service was terminated should be released. The Expert Committee in its meetings held on 19-11-2008 and 25-11-2008 recommended the termination of his service and payment of his salary for the period actually served. The respondent No. 6 then issued the order dated 7-7-2009 terminating his service. The respondent No. 8, however, by WP(C) No. 3655/2010 Page 3 of 8 the letter dated 24-7-2009 sought for modification of the said termination order against which the respondent No. 6 sought for clarification from the respondent No. 8 vide his letter dated 5-9-2009. On the basis of the clarification furnished by the respondent No. 8, the respondent No. 6 referred the case of the petitioner to the State Government for examination and necessary action. However, the State Government by the letter dated 31-5-2010 conveyed through the respondent No. 5 that its regret fir its inability to reconsider the case of the petitioner rejected his claim. The petitioner claims that he is yet to receive any order of his termination from service till now and is still discharging his duty till now. In the meantime, he was appointed as Scrutiniser of Data Capture Format under RMSA, Goalpara with effect from 30-10-2009. He is, therefore, aggrieved by the action of the State-respondent in extracting his service without paying his salaries till now.
4. The writ petition is opposed by the State-respondents, who, through the respondent No. 6, filed their counter-affidavit. It is asserted by the answering respondent that the petitioner is unable to produce any document to show that he was selected in the year 1999: he merely stated that he temporarily appointed as Hindi Teacher against a lien vacancy because of which he prayed for conversion to the post of Assistant Teacher (Craft-in-Tailoring) which fell vacant w.e.f. 31-8-2002. He was, however, called for interview for the post of Post Graduate Teacher in the year 2005 in pursuance of the letter dated 13-4-2005 of the Inspector of Schools, which is illegal as the said interview was meant only for regularly selected teachers having post graduate degree. According to the answering respondent, he was illegally converted to the general Assistant Teacher post without following any rules and procedure and could not, therefore, claim salaries for that post. The case of the petitioner along with other similarly situated cases were referred to the Expert Committee in pursuance of the order dated 6-4-2006, the Committee rejected his case and recommended termination of his service immediately. The committee, however, recommended payment of his salary w.e.f. December, 2003 till the date of termination of his service. The service of the petitioner was WP(C) No. 3655/2010 Page 4 of 8 accordingly terminated by the order dated 7-7-2009 of the respondent No.
6. His prayer for payment of salary for the service rendered by him in the past was duly considered by the Government, but the same was rejected vides the letter dated 31-5-2010 of the Under Secretary, Education Department, Government of Assam. It is submitted by the answering respondent that in view of several pronouncement of the law made by the Apex Court as well as this Court, if the initial appointments are contrary to the statutory rules, such appointments do not confer any right on the appointees to claim salary from public exchequer or regularization of service. In the instant case, according to the answering respondents, since the petitioner was illegally appointed to the post of Assistant Teacher, he is not entitled to receive any salary. The answering respondent, therefore, contends that the writ petition, being devoid of merit, is liable to be dismissed.
5. The petitioner filed his reply affidavit wherein he claims that the respondents have been utilizing his service even after the filing the writ petition by him. He was associated with the Assembly election process in the year 2011 and was asked to fill up his Identity Card. His order of appointment dated 30-3-2011 would show that he was appointed as the Presiding Officer. On 27-5-2011, he was entrusted with the duty of KRP of RMSA, Goalpara by the Inspector of Schools, GDC, Goalpara. On 16-11- 2011, the Principal of Lakhimpur H.S.S. School was informed about the deputation of the petitioner in connection with the selection of Post-Matric and Pre-Matric Scholarship for the minority students of Goalpara district. He was deputed from KPP training by the District Programme Coordinator- cum-Inspector of Schools, Goalpara vide the order dated 21-5-2012. He was engaged in the Laptop distribution ceremony to meritorious students vide the order dated 21-9-2012 and was also asked to attend SMDC training scheduled w.e.f. 20-12-2012 to 12-1-2013 vide the order dated 17-12-2012. By the order dated 20-2-2014 issued by the Inspector of Schools, GDC, Goalpara, he was entrusted with the task of coordination during the distribution of Note Book Computer Set under the Chief Minister Special Award-2013 to meritorious students securing 2nd Division WP(C) No. 3655/2010 Page 5 of 8 of certain percentage of marks. Thus, according to the petitioner, as his services has been and is still utilized by the respondent-authorities, he is entitled to salaries for the services rendered by him.
6. The basic contention of Mr. M. Dutta, the learned counsel for the petitioner, is that since the petitioner has been uninterruptedly rendering service to the State-respondents from December, 2003 till now, he is not only entitled to past and current salaries but also regularization of his service considering the number of years of service already rendered by him in different capacities. He, further, submits that the Expert Committee wrongly recommended termination of his service on the mistaken assumption that he was not appointed after undergoing due selection process. Per contra, Mr. U.K. Goswami, the learned standing counsel for the Education (Secondary) Department, Assam, strenuously argues that when the petitioner could not show that he was initially appointed in accordance with the recruitment rules by undergoing due process of selection, the question of his entitlement to salaries for the service rendered by him does not and cannot arise: if an order is bad in its inception, it does not get sanctioned at a later stage. He maintains that the concept of adverse possession of lien on post or holding over is not applicable to service jurisprudence and continuation of a person wrongly appointed on post does not create any right in his favour. To fortify his submissions, he relies on the decision of the Apex Court in State of Orissa v. Mamata Mohanty, (2011) 3 SCC436.
7. The pleadings of the rival parties and the arguments advanced by their respective counsels have been carefully examined by me. At the outset, I cannot but observe that there is absolutely no evidence to show that the petitioner was appointed as Assistant Teacher at any given time by undergoing due process of recruitment conducted by the State- respondents. From his initial appointment order itself, it can be seen that he was merely appointed against the lien vacancy of the incumbent (one Abu Tuleb, Senior Hindi Teacher of Lakhipur Higher Secondary School) and his period of appointment was co-terminus with the return of the WP(C) No. 3655/2010 Page 6 of 8 incumbent to his original post, namely, the temporarily post held by the petitioner. Again, the order dated 17-6-2003 issued by the Inspector of Schools, GDC, Goalpara indicates that it was on his own request, the post held by him was converted into General post (whatever that may mean) and was transferred (??) in the same school in his own grade vice one Chakreshwar Kakati, who had retired from service. In my opinion, the kind of appointment claimed by the petitioner on the basis of the aforesaid orders, to say the least, confused and confounded me and is possibly unknown in the service jurisprudence. All that I can say is that the initial appointment and the subsequent appointment of the petitioner to the post of Assistant Teacher were never made in accordance with the recognized recruitment process and were made de hors the rules and are, accordingly, void ab initio. The question as to whether such illegal appointment can confer the right to claim salary for the service rendered and seek regularization of such service have come up for consideration before the Apex Court in Mamata Mohanty case (supra) and was decided in the following manner:
"36. Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the employment exchange or putting a note on the notice board, etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance with the said constitutional requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit.
Order bad in inception WP(C) No. 3655/2010 Page 7 of 8
37. It is a settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefits. If an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non est and have to be necessarily set aside. A right in law exists only and only when it has a lawful origin. (Vide Upen Chandra Gogoi v. State of Assam16, Mangal Prasad Tamoli v. Narvadeshwar Mishra 17 and Ritesh Tewari v. State of U.P.18)
38. The concept of adverse possession of lien on post or holding over are (sic) not applicable in service jurisprudence. Therefore, continuation of a person wrongly appointed on post does not create any right in his favour. [Vide M.S. Patil (Dr.) v. Gulbarga University 19.]
8. For the reasons stated in the foregoing, there is no merit in this writ petition, which is, therefore, dismissed, but by directing the parties to bear their respective costs.
JUDGE Alam 16 (1998) 3 SCC 381: 1998 SCC (L&S) 872: AIR 1998 SC 1289 17 (2005) 3 SCC: AIR 2005 SC 1964 18 (2010) 10 SCC 677: (2010) 4 SCC (Civ) 315: AIR 2010 SC 3823 19 (2010) 10 SCC 63: (2010) 2 SCC (L&S) 785: AIR 2010 SC 3783 WP(C) No. 3655/2010 Page 8 of 8