Gauhati High Court
Kamrup District Siksha Sarathi (I) ... vs The State Of Assam And Ors on 26 October, 2017
Author: Ujjal Bhuyan
Bench: Hrishikesh Roy, Ujjal Bhuyan, Paran Kumar Phukan
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM AND
ARUNACHAL PRADESH)
Writ Petition (C) No. 5002 OF 2012
Kamrup District Siksha Sarathi (I) Association,
Represented by its President and Secretary, namely,
1. Shri Surjya Kumar Boro,
Son of Lt. Pulin Chandra Boro,
Village-Batakuchi, P.O.-Digaru,
District-Kamrup (M), Assam,
President, Kamrup District Siksha
Sarathi (I) Association.
2. Shri Khiralal Boro,
Son of Shri Arjun Boro,
Village-Malaybari, P.O.-Malaybari,
District-Kamrup, Assam,
General Secretary, Kamrup District
Siksha Sarathi (I) Association. ............ Petitioners
-Versus-
1. State of Assam,
Represented by the Secretary to the Govt. of Assam,
Education Department, Dispur, Guwahati-6.
2. Assam Sarba Siksha Abhijan Mission,
Represented by its Mission Director, Kahilipara,
Guwahati - 19.
3. Director of Elementary Education,
Assam, Kahilipara, Guwahati-19.
4. Deputy Commissioner,
Kamrup (M), Guwahati.
5. District Elementary Education Officer-cum-
District Mission Coordinator,
Kamrup, Assam. .......... Respondents
WPC No.5002/2012 Page 1 of 21
BEFORE HON'BLE MR. JUSTICE HRISHIKESH ROY HON'BLE MR. JUSTICE UJJAL BHUYAN HON'BLE MR. JUSTICE PARAN KUMAR PHUKAN For the petitioners : Mr. KN Choudhury, Sr. Advocate.
Mr. BK Kashyap, Advocate.
For the respondents : Mr. PN Goswami, Standing Council, SSA.
Date of Hearing : 12.09.2017.
Date of Judgment : 26.10.2017.
Judgment & Order
Ujjal Bhuyan, J
Heard Mr. KN Choudhury, learned Senior Counsel assisted by Mr. BK Kashyap, learned counsel for the petitioners and Mr. PN Goswami, learned Standing Counsel, Education Department for the respondents.
02. This matter is before us in the Full Bench following the referral order passed by the learned Single Judge on 30.09.2015.
03. In this writ petition, Kamrup Zilla Siksha Sarathi (I) Teachers Association, represented by its President and Secretary, namely, Sri Surjya Kumar Boro and Sri Khiralal Boro, respectively is the petitioner. Petitioner represents Siksha Sarathis of Kamrup district and has preferred the present writ petition in representative capacity highlighting the grievance of the Siksha Sarathis of Kamrup district and seeks the following reliefs: -
a direction to the respondents to formulate a scheme for absorption of the Siksha Sarathis in any regular post or capacity under the State as in the case of Siksha Karmis in Assam as well as in the case of similarly situated employees in the State of Karnataka, Tamil Nadu, West Bengal, Tripura, Arunachal Pradesh etc. WPC No.5002/2012 Page 2 of 21 In other words, the prayer made is for directing the respondents to formulate a scheme for absorption of the Siksha Sarathis in the State of Assam in regular service of the State.
04. Facts relevant for adjudication of the case have been summed up by the learned Single Judge in the referral order dated 30.09.2015. For ready reference, relevant portion of the referral order dated 30.09.2015 dealing with the facts of the case are extracted as under: -
" 2. It would appear that Government of India in the Ministry of Human Resource Development Department, Department of Elementary Education & Literacy, introduced a programme for Universal Education in India under the 9th Five Year Plan with the nomenclature "SARVA SIKSHA ABHIJAN" ("SSA" for short) aiming to achieve the long cherished goal of "Universalization of Elementary Education (UEE) through a time bound integrated approach in partnership with States to change the face of the Elementary Education to all children in the age group of 6-14 years of age by 2010. The objective of SSA is that all children must complete 5 years of primary schooling by 2007; all children must complete 8 years of schooling by 2010; focussing emphasis on education for life; must bridge all gender and social category gaps at primary stage by 2007 and at elementary education level by 2010 as well as universal retention by 2010. The statute mandates the financial resource and responsibility for implementation of the scheme for which a sum of ?60,000 crores was estimated from the Central Budget and State Level Departments for the next ten years, which would be worked out after finalization of District Level Elementary Education Plans. The financial norms as has been provided initially under the statute, is to be shared by the Central and State Governments in 85:15 during the 9th Plan, 75:25 during the 10th Plan and thereafter by 50:50.
The financial norms further provide that regarding sharing of costs, undertaking had to be taken from the State Government. Similar principle has been laid down in the statute as regards support for teachers' salary. Thus, the process under the SSA, which started during the 9th Plan period, is a continuous process and would carry on spontaneously.
3. According to the petitioners, they were appointed under the aforesaid scheme in 2004 after having been selected and appointed through a regular selection procedure WPC No.5002/2012 Page 3 of 21 where all eligible candidates applied: they are not backdoor entries and were thus selected through a process consistent with Articles 14 and 16 of the Constitution of India. As to the manner in which they were appointed on contractual basis for a period of eleven months and how they continue remain there till now are pleaded by them in para 10 of their writ petition, which are reproduced hereunder:
"10. That the appellants beg to state that thereafter advertisement was made in the Newspapers for filling up of posts of Shiksha Sarathis-I, on the terms and conditions set forth above. The petitioners had duly applied for the posts of Shiksha Sarathis-I, and on being found eligible, they were all selected by the Selection Committee. They have been appointed on merit basis against one teacher school as Shiksha Sarathi for which they had to sign a contract agreement with the School Management Committee for engagement for a period of 11 (eleven) months. However, although the agreements were signed on 13-9-2004, virtually their engagements continued up to 2010 and even as on date the petitioners are continuing to render service."
4. It is the contentions of the petitioners that they have been rendering their services for the last 7/8 years and have undergone training and acquired the necessary experience. The State Government is quite aware of the policy of the Central Government that the SSA is a continuous process and that they cannot simply discontinue the services of the existing Shiksha Sarathis and/or replace them by another of persons by taking the plea of their contractual appointment with artificial break after every 11 months, and instead may frame a scheme for reglarisation of their services as has been provided in the statute of SSA of Tripura, Arunachal Pradesh, West Bengal, Punjab, etc. It is interesting to note that the State-respondents in their affidavit-in-opposition dated 26-2- 2015 do not deny that the essential part of the pleading of the petitioners that the petitioners were appointed as Shiksha Sharathi after the posts were duly advertised and they underwent due selection process consistent with Articles 14 and 16 of the Constitution. True, they were given only contractual appointment for a period of eleven months."
WPC No.5002/2012 Page 4 of 2105. Learned Single Judge, however, noted that in Writ Appeal No.222/2012 (Arup K um ar Bhuyan Vs. State of Assam ), a Division Bench of this Court had rejected the plea of regularisation of Siksha Sarathis.
06. At this stage, it may be mentioned that Arup Kumar Bhuyan and similarly situated Siksha Sarathis had approached this Court for regularisation of their service by filing a writ petition. Learned Single Judge had dismissed the writ petition by holding that since appointment of the Siksha Sarathis was for a fixed period, no right to seek regularisation accrued in their favour. Learned Single Judge relied on an earlier decision of this Court dated 07.02.2012 in WP(C) No.3743/2011 (Budhesw ar Gayary Vs. State of Assam ). Arup Kumar Bhuyan and others thereafter preferred writ appeal, which was registered as WA No.222/2012. By order dated 03.08.2012, a Division Bench of this Court dismissed the writ appeal by holding that since the order of the learned Single Judge was based on an earlier judgment of this Court, which was consistent with the decision of the Supreme Court in State of K arnataka Vs. Um adevi , reported in (2006) 4 SCC 1, no ground was made out to interfere with the order of the learned Single Judge.
07. The writ petition has been contested by the respondents by filing counter- affidavit. Respondents have relied upon the Division Bench order dated 03.08.2012. It is contended that prayer made in the present writ petition has already been rejected by this Court. Writ petition raises disputed questions of fact of civil nature. Sarba Siksha Abhiyan Mission (SSA) is a registered society mandated to implement the schemes of the Central Government. Therefore, SSA cannot frame a scheme for absorption of the petitioners. Petitioners had joined their contractual services after agreeing to the terms and conditions of such engagement. As such, they cannot claim absorption or regularisation of their services. Individual agreements governing the engagement of Siksha Sarathis contained an arbitration clause to decide a dispute of the nature raised by the petitioners in the present writ petition.
WPC No.5002/2012 Page 5 of 2108. Learned Single Judge thereafter extensively referred to the decision of the Supreme Court in Um adevi (supra), more particularly, paragraphs 52, 53 and 54 thereof.
09. Learned Senior Counsel appearing for the petitioners contended that after the Division Bench judgment dated 03.08.2012, Supreme Court in the case of Nihal Singh Vs. State of Punjab , reported in (2013) 14 SCC 65 has clarified that Um adevi (supra) was dealing with appointments made without following any rational procedure in the lower rungs of various services of the Union and the States and that Um adevi (supra) would apply only where persons were initially chosen to be appointed to the exclusion of eligible candidates. Relying upon Nihal Singh (supra), it was contended that if a selection process is designed in the context of any situation prevailing at the relevant point of time in a manner where all eligible candidates could apply and be considered, such a process cannot be said to be irrational or in violation of Articles 14 and 16 of the Constitution. Reference was also made to the decision of the Supreme Court in Am arendra K um ar M ohapatra Vs. State of Orissa , reported in (2014) 4 SCC 583. It was contended that the State in exercise of its executive as well as legislative powers can frame a regularisation scheme. Therefore, these two decisions of the Supreme Court, namely, the decisions in Nihal Singh (supra) and Am arendra K um ar M ohapatra (supra) would make it clear that Um adevi (supra) is not a proposition on the power of the executive or the legislature in framing a scheme for regularisation of persons appointed by due process of recruitment consistent with Articles 14 and 16 of the Constitution.
10. Learned Standing Counsel appearing for SSA, however, contended that the issue agitated by the petitioners was already decided in Arup K um ar Bhuyan (supra), which decision would operate as res judicata between the parties in the present proceeding.
11. Responding to such submissions, it was contended on behalf of the petitioners that where the earlier decision is altered by a competent authority, which includes the Supreme Court, the earlier decision will not operate as res WPC No.5002/2012 Page 6 of 21 judicata between the parties. In this connection, learned Senior Counsel for the petitioners relied upon the following Supreme Court decisions : -
i) M athura Prasad Bajoo Jaisw al Vs. Dossibai NB Jeejeebhoy , (1970) 1 SCC 613;
ii) Nand Kishore Vs. State of Punjab , (1995) 6 SCC 614.
12. Learned Single Judge agreed with the contentions of learned counsel for the petitioners by holding that in M athura Prasad Bajoo Jaisw al (supra), Supreme Court has held that when the law is altered since the earlier decision, earlier decision will not operate as res judicata between the same parties. Learned Single Judge also quoted extensively from the decision in Nihal Singh (supra) and, thereafter passed the following order : -
" 10. After giving my anxious consideration to the submission advanced by the learned counsel appearing for the rival parties, it is my considered opinion that much water has flown down River Brahmaputra since the decision in Uma Devi case and that the basis of the decision of the writ appellate court in Arup Kumar Bhuyan case appears to have been removed by Nihal Singh case, which has succinctly clarified the power of the State to formulate a scheme for regularisation of contractual appointees/daily wage earners who were appointed against sanctioned posts. This calls for re-examination of Arup Kumar Bhuyan case, for which a larger bench may be constituted. Let this writ petition be placed before the Hon'ble Chief Justice (Acting) for appropriate decision."
13. Thus learned Single Judge took the view that the very basis of the decision in Arup K um ar Bhuyan (supra) was removed by Nihal Singh (supra) and therefore, the decision in Arup K um ar Bhuyan (supra) is required to be re- examined for which a larger Bench may be constituted. Thereafter, the Full Bench had been constituted to decide the case.
14. Mr. KN Choudhury, learned Senior Counsel while reiterating the submissions made before the learned Single Judge, has also submitted a written argument. While relying on the already cited decisions, additionally he has placed WPC No.5002/2012 Page 7 of 21 reliance in the case of State of Jam m u & K ashm ir Vs. District Bar Association , (2017) 3 SCC 410.
15. On the other hand, Mr. PN Goswami, learned Standing Counsel, SSA has raised two fold objection to the prayer made by the petitioners. The first objection relates to res judicata in respect of which he submits that the earlier Division Bench decision in Arup K um ar Bhuyan (supra) has finally decided the issue raised by the petitioners and the same cannot be reopened again. Secondly, on the issue of regularisation, he submits that appointments of the petitioners were contractual in nature for 11 months which they had accepted; therefore, petitioners cannot seek regularisation of their service. In this connection, he has placed reliance on the following decisions: -
i) Nazira Begum Laskar Vs. State of Assam , (2001) 1 SCC 143;
ii) A Um a R ani Vs. Registrar Co-operative Societies , (2004) 7 SCC 112;
iii) State of K arnataka Vs. M L K esari , (2010) 9 SCC 247;
iv) Rum i Gogoi (Hazarika) Vs. State of Assam , 2012 (4) GLT 1001.
16. Submissions made by learned counsel for the parties have received the due consideration of the Court. All the decisions cited at the Bar have been considered.
17. Before we proceed to deal with the case on merit, we have thought it appropriate to deliberate upon the referral order at the outset. We have already extracted paragraph 10 of the referral order dated 30.09.2015. A careful analysis of the referral order, as extracted above, would indicate that learned Single Judge had taken the view that since the decision in Um adevi (supra), which was the basis of the decision in Arup K um ar Bhuyan (supra), there has been much change in the judicial thinking as would be evident from the decision in Nihal Singh (supra) thereby removing the very basis of the decision in Arup K um ar Bhuyan (supra) and, therefore, this calls for re-examination of Arup K um ar WPC No.5002/2012 Page 8 of 21 Bhuyan (supra), for which a larger Bench may be constituted. Thus, learned Single Judge had doubted the correctness of the decision in Arup K um ar Bhuyan (supra). At this stage, we may note that Arup K um ar Bhuyan (supra) was a Division Bench decision and its correctness was doubted by a Single Bench, who thereafter made the reference.
18. Ordinarily, a Single Bench is bound by the decision of a Division Bench. Even in case of a co-ordinate bench, a subsequent Division Bench cannot take a divergent view. It may express disagreement with the views of the previous Division Bench and, thereafter, may make a reference to the Chief Justice on the administrative side for constitution of a larger Bench to examine the correctness of the previous co-ordinate bench decision. In the case of a Division Bench or a larger Bench decision, a Single Bench is bound by the same. This is not only on account of the doctrine of binding precedent, but is based on sound public policy.
19. However, having said so, we also have to bear in mind that learned Single Judge after doubting the correctness of the Division Bench decision in Arup K um ar Bhuyan (supra) in the context of the changed legal position as highlighted in the case of Nihal Singh (supra), had referred the case to the Hon'ble Chief Justice (Acting) on the administrative side for constitution of a larger Bench. A larger Bench having been constituted and having heard the matter at considerable length, during which newer dimension of the litigation unfolded, we feel that it would only be just and proper for this larger Bench to decide the case on its own merit.
20. Before we proceed further, it would be appropriate to examine the nature of appointment of the petitioners. Though learned Single Judge has referred to the same in paragraph 3 of the referral order, we would like to deal with it at some length. As per the scheme introduced by the Govt. of India, Ministry of Human Resources and implemented by the Sarba Siksha Abhiyan Mission, one Siksha Sarathi would be appointed in all One Teacher Schools for the purpose of spreading education, more particularly for children in the age group of 6 years to 14 years. This scheme was introduced in the year 2003. As per this scheme, each WPC No.5002/2012 Page 9 of 21 of the single teacher Government/provincialised LP Schools would be provided with one Siksha Sarathi, who would be engaged for a period of 11 months from the date of signing of an agreement between the concerned School Managing Committee and the concerned Siksha Sarathi. Likewise, there would be an agreement between the School Managing Committee and the representative of Assam Sarba Siksha Abhiyan Mission. Siksha Sarathi would receive a monthly honorarium of Rs. 1,500.00, which would be paid by the School Managing Committee; who in turn would be responsible for monitoring the performance of the Siksha Sarathi. Agreement with the concerned Siksha Sarathi may be terminated by the Assam Sarba Siksha Abhiyan Mission if his performance was found to be not satisfactory on the basis of report received either from the School Managing Committee or from the functionaries of Assam Sarba Siksha Abhiyan Mission. Selected Siksha Sarathis would have to undergo an induction level training to be organized by Assam Sarba Siksha Abhiyan Mission and anyone who abstained from such training or did not complete the training in a satisfactory manner, his/her agreement would be liable to be cancelled. The deed of agreement between Siksha Sarathi and School Managing Committee would stand terminated on completion of 11 months with effect from the date of signing of the agreement. Siksha Sarathis would have no claim for renewal or extension of their terms of engagement.
21. The scheme also provided for a detailed procedure regarding appointment of Siksha Sarathis. On receipt of approval from the State office of Assam Sarba Siksha Abhiyan Mission, the concerned Deputy Commissioner would notify the list of eligible schools/educational institutions block wise with intimation to all the stakeholders. After such notification, Deputy Commissioner would convene a meeting of the District Boards of Education to discuss the scheme for engagement of Siksha Sarathi. Likewise, Presidents of Gaon Panchayats would convene meeting with all stake holders, including the Presidents, Secretaries and one member of all the School Managing Committees. Such meetings would finalize the procedure of receiving application forms and would authorize one person to receive application forms on behalf of the School Managing Committee. Minutes of the meetings were required to be recorded with circulation to the participating members. Likewise, WPC No.5002/2012 Page 10 of 21 complete record of applications received would have to be maintained by the authorized person. The concerned School Managing Committee would have to make wide publicity regarding selection of Siksha Sarathi by putting up notice in different places, including in the concerned school. Such notice should contain information relating to necessary qualifications for engagement as Siksha Sarathi, date and venue of selection etc. Be it stated that to be eligible to be appointed as Siksha Sarathi in such a school, the candidate was required to hail from the same Gaon Panchayat in which the school is situated. The notice should clearly mention that engagement of Siksha Sarathi was on contract basis for a period of 11 months only. School Managing Committee under the Chairmanship of the Gaon Panchayat President would examine and scrutinize the application forms received immediately on the next day following the last date fixed for receiving applications and thereafter, recommend the person to be engaged as Siksha Sarathi through a resolution signed by not less than 2/3rd of the members of the School Managing Committee. In the resolution, names of all the applicants, including rejected ones, should be mentioned along with reasons for their rejection. Original copy of such resolution was required to be submitted to the Block Mission Office along with the application form of the selected candidate in original. Block Mission Office shall compile the list of selected candidates received from all the School Managing Committees and forward it to the District Mission Office along with resolutions of the School Managing Committee. District Mission Office would thereafter approve the list of Siksha Sarathis to be engaged and communicate its approval to the Block Mission Offices mentioning therein the schedule for induction level training of the selected Siksha Sarathis. Block Mission Office shall thereafter hold a meeting with the President and Secretary of the concerned School Managing Committee and get the deeds of agreement signed between the respective School Managing Committees and the Siksha Sarathis indicating therein the training schedule.
22. As per educational qualification prescribed, a candidate should have the minimum educational qualification of Higher Secondary pass i.e., Class-XII pass from any recognized board, council or organization. If a candidate who had completed Pre-Service Teacher Education (PSTE) was available, he/she should be selected irrespective of marks secured in the Higher Secondary examination.
WPC No.5002/2012 Page 11 of 21Otherwise, candidates having higher marks in the Higher Secondary examination would be selected. There would be relaxation in the case of tea garden areas; relaxation being up-to matriculation. In case of a female candidate having requisite qualification, she would be given preference. If thereby more than one candidate having equal marks or having completed PSTE became available, the concerned School Managing Committee would decide on the basis of the marks obtained in PSTE and also consider other factors, such as, experience of teaching etc.
23. Pursuant to such scheme, Assam Sarba Siksha Abhiyan Mission vide its communication dated 25.07.2003 directed initiation of selection process. Thereafter, advertisements were issued in terms of the scheme for appointment of Siksha Sarathis. Petitioners had responded to such advertisements and thereafter they had applied for appointment as Siksha Sarathi. After following the due procedure, they were found eligible and consequently, selected by the School Managing Committee for appointment as Siksha Sarathi in One Teacher Schools whereafter, they had signed contract agreement with the respective School Managing Committees for engagement as Siksha Sarathi for a period of 11 months. It is stated that although individual agreements were signed on 13.09.2004, their engagement as Siksha Sarathi was continued much beyond 11 months and even on the date of filing of the writ petition, they were serving as Siksha Sarathis. After their engagement, they had also undergone the training as prescribed under the Scheme.
24. Having noticed the above, we may now briefly examine the Constitution Bench decision in Um adevi (supra). In Um adevi (supra), Supreme Court was concerned with non-adherence to the constitutional scheme of employment by the Government and its instrumentalities, more particularly, in the lower rungs of the service, thereby resorting to illegal appointments without following the proper appointment procedure. Not only such illegal appointments were made, but such appointments were allowed to be continued year after year, thereby depriving persons qualified for such jobs from applying and denying them due opportunity to compete for the posts. Supreme Court was also concerned with the role of the Constitutional Courts issuing occasional directions and writs of mandamus for WPC No.5002/2012 Page 12 of 21 regularizing the appointment of such persons. While strongly deprecating such practice, Supreme Court held that the executive or for that matter the Court in appropriate cases would have only the right to regularize an appointment made after following the due procedure, even though a non-fundamental element of that recruitment process or procedure had not been followed. It was clarified that such right would not extend to directing regularisation of an appointment made in clear violation of the constitutional scheme and the statutory rules made in that behalf. Supreme Court clarified that merely because a temporary employee or a casual wage worker has continued for a time beyond the terms of his appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. Sounding a note of caution, Supreme Court observed that High Courts acting under Article 226 of the Constitution should not ordinarily issue directions for absorption, regularisation or permanent continuance, unless the recruitment itself was made in a regular manner and in terms of the constitutional scheme. Supreme Court further held that when a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the nature of his appointment. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following the proper procedure.
25. After declaring so, Supreme Court made one exception. The exception that was carved out was in respect of irregular appointments and not illegal appointments of duly qualified persons in duly sanctioned vacant posts where the employee concerned had continued to work for 10 years or more, but without the intervention of the Courts or of the Tribunals. Question of regularisation of the services of such employees may have to be considered on merit in the light of the principles settled by the Supreme Court in the cases of State of M ysore Vs. SV Narayanappa , AIR 1967 SC 1071; R N Nanjundappa Vs. T Thim m iah , (1972) 1 SCC 409 and BN Nagarajan Vs. State of K arnataka , (1979) 4 SCC 507.
WPC No.5002/2012 Page 13 of 2126. Having regard to the above, Supreme Court directed the Union of India, State Governments and their instrumentalities to take steps to regularize as a onetime measure the services of such irregularly appointed employees who have worked for 10 years or more in duly sanctioned posts but not under the cover of orders of the Courts or Tribunals. The process was directed to be set in motion within six months of the judgment.
27. This onetime measure provided by the Supreme Court in Um adevi (supra) was explained in detail by the Supreme Court in the later judgment in M L K esari (supra), which may not be necessary to be gone into in this proceeding.
28. Suffice it to say, the issue before the Supreme Court in Um adevi (supra) was illegal appointments made by the State in the lower rungs of the services without following the due process of recruitment and continuing such illegal appointments for varying periods of time. While deprecating such practice, Supreme Court made it abundantly clear that there is no question of regularisation of such illegal appointments, be it on contractual basis or on temporary basis or as daily rated workers and also clarified that the Constitutional Courts would not be empowered to direct regularisation of such illegal appointments because such illegal appointments were made in violation of Article 14 of the Constitution as well as in violation of the constitutional scheme of recruitment to public service and a Constitutional Court is not expected to perpetuate such an illegality by issuing directions for regularisation.
29. Therefore, strictly speaking Um adevi (supra) covers cases where the appointments were not made following the due recruitment process. But would Um adevi (supra) create a bar in respect of regularisation of the services of persons who were appointed by following the procedure prescribed? Would Um adevi (supra) apply in a case where a particular manner of recruitment is prescribed where all eligible candidates could apply and their candidatures considered whereafter, the selection was made which was followed by the appointments, be it temporary, casual, part-time or contractual?
WPC No.5002/2012 Page 14 of 2130. In the case of Nihal Singh (supra), Supreme Court was considering claim of Special Police Officers to bring them within the regular service of the State in the State of Punjab. Because of large scale disturbances in the State of Punjab in the 1980s, which the State found it difficult to handle with the available police personnel, State of Punjab resorted to recruitment of Special Police Officers under section 17 of the Police Act, 1861. These appointments continued for a long period of time. The services of Special Police Officers were placed at the disposal of the Banks for ensuring their security and in return, the Banks undertook the financial burden of the Special Police Officers. Petitioners had approached the High Court of Punjab and Haryana seeking directions for regularisation of their service by filing writ petition. The writ petition was disposed of by directing consideration of the case of the petitioners in accordance with law by passing a speaking order. The concerned Senior Superintendent of Police thereafter passed a speaking order rejecting the claim of the petitioners. Writ petition filed assailing the aforesaid order of the Senior Superintendent of Police came to be dismissed by the High Court of Punjab and Haryana. Thereafter, the matter went to the Supreme Court. On behalf of the State, it was specifically argued that in the light of the Constitution Bench decision in the case of Um adevi (supra), relief sought for by the petitioners could not be granted. Supreme Court noted that though the appointments were made under section 17 of the Police Act, 1861, such appointments continued for decades and posed the question as to whether the Supreme Court could compel the State of Punjab to create posts and absorb the petitioners into the services of the State on a permanent basis consistent with the Constitution Bench decision in Um adevi (supra).
31. In the process of answering this question, Supreme Court examined the ratio decidendi of Um adevi (supra). It was noted that the entire issue in Um adevi (supra) pivoted around the fact that the State had initially made appointments without following any rational procedure envisaged under the scheme of the Constitution in the matter of public appointments. While recognizing the authority of the State to make temporary appointments, Supreme Court, however, declared that regularisation of the employment of such person, which was made without following any rational procedure, cannot become an alternative WPC No.5002/2012 Page 15 of 21 mode of recruitment to public posts. Um a Devi (supra) further declared that jurisdiction of the Constitutional Courts may not be exercised to compel the State or to enable the State to perpetuate an illegality. Applying the principles laid down in Um adevi (supra), Supreme Court found that initial appointment of the petitioners in Nihal Singh (supra) was made in accordance with the statutory procedure contemplated under the Police Act, 1861 by a conscious decision taken at the highest level of the State. Such appointments could not be categorized as illegal or irregular. It was not a case where petitioners were arbitrarily chosen to the exclusion of other eligible candidates. Such a process of selection was sanctioned by law under section 17 of the Police Act, 1861. Observing that neither the State of Punjab nor the Public Sector Banks could continue such a practice consistent with their obligation to function in accordance with the Constitution, it was held that sanction posts do not fall from heaven; State has to create them by a conscious choice on the basis of some rational assessment of the need. Judgment in Um adevi (supra) cannot become a licence for exploitation by the State and its instrumentalities. Accordingly, Supreme Court directed the State of Punjab to regularize the services of the petitioners by creating necessary posts.
32. In Am arendra K r. M ahapatra (supra), the issue which was considered by the Supreme Court was the constitutional validity of Orissa Service of Engineers (Validation of Appointment) Act, 2002 whereby re-appointment of 881 ad-hoc Assistant Engineers belonging to Civil, Mechanical and Electrical Engineering wings of the State Engineering Service were validated, notwithstanding the fact that all such appointments were in breach of the Orissa Service of Engineering Rules, 1941. The High Court of Orissa had struck down the said legislation on the ground that the same violated the fundamental rights guaranteed to the writ petitioners under Articles 14 and 16 of the Constitution. Clarifying that the legislation under challenge was not a validating Act as it purported to be but was an enactment that regularised the appointment of graduate stipendiary Engineers working as ad-hoc Assistant Engineers as Assistant Engineers. While upholding the constitutionality of the impugned legislation, Supreme Court held that by the said legislation the State directed regularisation of the Engineers. In that context, it was held that while WPC No.5002/2012 Page 16 of 21 regularisation scheme can be framed by the Government in exercise of its executive power, the same can also be done by way of legislation.
33. Again in the case of District Bar Association (supra), a three Judge Bench of the Supreme Court analysed the decision in Um adevi (supra) and highlighted the essence of the said judgment. Supreme Court was of the view that Um adevi (supra) dealt firstly with the right claimed by temporary employees to be regularised in service on the basis of long continuance, legitimate expectation, employment under the State and the Directive Principles. The second issue dealt with was whether Courts would be justified in issuing directions for regularisation based on such features. On both counts, Um adevi (supra) held against temporary employees. But most importantly, it was highlighted that Um adevi (supra) was not an authority for the proposition that the executive or the legislature cannot frame a scheme for regularisation. It was held that Um a Devi (supra) does not denude the State or its instrumentalities from framing a scheme for regularisation.
34. Therefore, the position which emerges is that the State either by way of executive action or by way of legislation can frame a scheme for regularisation of service of temporary employees, provided the temporary appointments were made by following a rational recruitment procedure in which all eligible candidates had the opportunity to participate.
35. Viewed in that context, there is certainly an alteration of the legal position, firstly by the case of Nihal Singh (supra), then by the case of Am arendra K um ar M ohapatra (supra) and finally by the case of District Bar Association (supra) that the State is not denuded of the power to frame a scheme for regularisation of service of temporary or such category of employees. Therefore, there is a clear shift in the legal position from the time when Arup K um ar Bhuyan (supra) was decided by the Division Bench by holding that the learned Single Judge had only relied upon a previous decision of this Court in Budhesw ar Gayary , which was consistent with the decision in Um adevi (supra). In such a situation, the previous decision in Arup K um ar Bhuyan (supra) may no longer act as a bar to have a fresh look at the claim of the petitioners in the light of the change in the legal position, as discussed above.
WPC No.5002/2012 Page 17 of 2136. In M athura Prasad Bajoo Jaisw al (supra), Supreme Court held that a decision on an issue of law will act as res judicata in a subsequent proceeding between the same parties if the cause of action of the subsequent proceeding be the same as in the previous proceeding, but not when the cause of action is different or when the law has since the earlier decision been altered by a competent authority.
37. In Nand K ishore (supra), Supreme Court held that it is a competent authority within the above expression; because Supreme Court is not merely the interpreter of the law as existing but much beyond that. Supreme Court as a wing of the State is by itself a source of law. The law is what the Supreme Court says it is.
38. Thus in view of the above, the position which emerges is that if there is a change in law since the earlier decision, principle of res judicata would not be applicable. Therefore, taking an overall view of the matter, we are of the considered opinion that in view of the altered judicial position since Um adevi (supra) was rendered, as discussed above, the decision in Arup K um ar Bhuyan (supra) would no longer act as res judicata in taking an independent decision in the present proceeding. That apart, Arup K um ar Bhuyan (supra) was decided by a Bench of two Hon'ble Judges. Having a larger strength, this Bench certainly has the authority and competence to re-examine the legal position while dealing with the case of the petitioners notwithstanding the decision in Arup K um ar Bhuyan (supra).
39. We have already examined the nature of appointment of Siksha Sarathis. Siksha Sarathis are not teachers. They act as assistants to the single teacher in schools manned by a single teacher. For appointment of teachers in Primary Schools, we have the Assam Elementary Education (Provincialisation) Rules, 1977 framed in exercise of powers conferred by the proviso to Article 309 of the Constitution of India. Conditions of recruitment of Assistant Teachers, constitution of Selection Committee, procedure for selection and appointment etc. have all been provided in the said Rules. It is evident that Siksha Sarathis were not appointed by following the provisions of Assam Elementary Education WPC No.5002/2012 Page 18 of 21 (Provincialisation) Rules, 1977; because they were not appointed as teachers. Their appointments were in the nature of assistant to the single teacher. A separate mode of recruitment was prescribed under the scheme with different eligibility criteria. Notwithstanding the enactment of National Council for the Teachers' Education Act, 1993 and the Right of Children to Free and Compulsory Education Act, 2009, Siksha Sarathis were appointed albeit for a period of 11 months, but which has been continued since then. In such a scenario, petitioners certainly cannot claim regularisation as teachers because they do not have the qualification of teachers and they were not recruited as teachers. To that extent, the decision in R um i Gogoi (Hazarika) (supra) relied upon by Mr. Goswami, learned Standing Counsel would not be applicable to the facts and circumstances of the present case because in R um i Gogoi (Hazarika) (supra), Education Volunteers appointed as Siksha Mitras under the Education Guaranteed Scheme (EGS) in EGS centres claimed regularisation as teachers following upgradation of EGS centres to Lower Primary Schools, which was not accepted by the Court and rightly so; because Siksha Mitras did not possess the qualification of teachers and they were not recruited by following the procedure for recruitment of teachers.
40. The other decisions cited by learned Standing Counsel are also not strictly on the point; because those decisions deal with claim to continuance in service or regularisation where the appointments were found to be contrary to the Rules.
41. Having noticed the above, we find that Government of Tripura has granted enhanced remuneration to different categories of contractual staff of SSA engaged in the State of Tripura. Similarly, in the State of West Bengal, beneficial measures have been taken and improved conditions of service have been provided to Para Teachers appointed by SSA in West Bengal. As per document annexed to the writ petition, a Para Teacher in West Bengal is paid consolidated monthly remuneration of Rs.7,425.00, which engagement would continue till the age of superannuation whereafter, the incumbent would receive one time gratuity of Rs.1,00,000.00. It appears that similar provisions have been made in the State of Tamil Nadu as well as in the neighbouring State of Arunachal Pradesh.
WPC No.5002/2012 Page 19 of 2142. Reverting back to the case of Siksha Sarathi, we find that notwithstanding their initial engagement for 11 months, their engagements have continued for more than a decade now; as a matter of fact, their engagement is now in the second decade, which clearly indicates the necessity and utility of Siksha Sarathis as assistants to the teachers.
43. In the recent decision in the case of State of Assam Vs. Sri Upen Das , WA No.45/2014, decided on 08.06.2017, a Division Bench of this Court was examining claim of the respondents who were muster roll workers, work charged workers and casual workers to regularisation of service with consequential benefits, such as, pension etc.. Learned Single Judge had directed the State to consider regularisation of the services of the respondents in terms of Cabinet decision taken on 22.07.2005 by framing an appropriate policy/scheme. While setting aside the judgment of the learned Single Judge, the Division Bench noted that State Government had agreed not to terminate the muster roll, work charged and similarly placed employees working since last more than 10 years (not in sanctioned post) till their normal retirement age except on disciplinary ground or on ground of criminal offence. The Division Bench also noted that the State Government had agreed to enlist such employees in health and accidental and death insurance schemes to be prepared in consultation with the State Cabinet. Appreciating the stand of the State, the Division Bench directed immediate implementation of the above measures; further directing the State to pay minimum pay scale to such categories of employees w.e.f. 01.08.2017. Relevant portion of the decision dated 08.06.2017 is extracted hereunder: -
" 22. It is, however, heartening to learn that the State Government has agreed not to terminate the Muster Roll, Work Charged and similarly placed employees working since last more than 10 years (not in sanctioned post) till their normal retirement, except on disciplinary ground or on ground of criminal offences. The State Government has also agreed to enlist such employees in Health and Accidental and Death Insurance Scheme, which will be prepared in consultation with the State Cabinet. We appreciate this positive stand of the State Government taken as welfare measures for the betterment and security of the employees, in question. We, accordingly, direct the State Government to WPC No.5002/2012 Page 20 of 21 implement the measures without further delay. Besides this, we, in the light of decision of the Supreme Court in State of Punjab vs. Jagjit Singh, (2017) 1 SCC 148, also direct the State Government to pay minimum of the pay scale to Muster Roll workers, Work Charged workers and similarly placed employees working since last more than 10 years (not in sanctioned post) with effect from 1.8.2017."
44. Therefore, having regard to the grievance expressed by the petitioners and the discussions made above, we are of the view that it would meet the ends of justice if similar benefit as granted to the muster roll, work charged and similarly placed employees working since last more than 10 years (not in sanctioned posts) is extended to the Siksha Sarathis. Accordingly, we direct the State to consider framing a scheme for the Siksha Sarathis on the above lines, which decision shall be taken within a period of 6 weeks from today.
45. The reference is answered accordingly.
46. Consequently, the writ petition is allowed in the above terms. No costs.
Judge Judge Judge
BIPLAB
WPC No.5002/2012 Page 21 of 21