ISHAQUE UDDIN MAZUMDAR AND ORS. Vs. STATE OF ASSAM AND ORS.
LAWS(GAU)-1994-4-17
HIGH COURT OF GAUHATI
Decided on April 28,1994

Ishaque Uddin Mazumdar And Ors. Appellant
VERSUS
STATE OF ASSAM And ORS. Respondents


Referred Judgements :-

R N NANJUNDAPPA VS. T THIMMIAH [REFERRED TO]
DIRECTOR OF TECHNICAL EDUCATION VS. K SITADEVI [REFERRED TO]


JUDGEMENT

M. Sharma, J. - (1.)THIS writ petition has come before this Court for hearing. The Government has not filed any affidavit nor produced any record, After hearing the learned Counsel at length I decide to dispose of the matter on merit of the petition.
(2.)DURING the course of argument Mr. A.K. Phukan, learned Counsel for the Petitioner submits that in Civil Rule No. 2307/91 some writ Petitioners prayed for a mandamus directing the Respondents to pay due salaries to the Petitioners. This Court vide order dated 13.8.91 finally disposed of the case directing the concerned Respondents to pay the due salaries to the Petitioners within a period of two months and further observed that if the appointment of the Petitioners were irregular then there will be no bar to terminate their services in accordance with law. Emboldened with that order, it is alleged, the Respondents terminated the present ten writ Petitioners from their services by order dated 30th September, 1991. The impugned termination order (Annexure -14 to the writ petition) indicates that after careful consideration of the reply to the show cause notice served upon the Petitioners it was found that the appointment of the Petitioners were irregular. The abovementioned Civil Rule No. 2307/91 which is said to be similar, with the present one, as Mr. Phukan urges, covers the present Writ Petitioner's case. Admittedly the Petitioners were appointed in some non sanctioned posts, that they did not face any interview, that they were not selected by any selection process as per existing statutory provisions contained in the Rules for appointment/recruitment of elementary school teachers and that all the Petitioners were appointed (Annexures -1 to 10 to the writ petition) in pursuance to the order of the Secretary, Education Dept, Govt. of Assam, by the Deputy Inspector of Schools, Slichar. The Petitioners is that after such appointment, the Petitioners are Government employees and as such valuable right to the posts has accrued to them and that the Petitioners are entitled to show cause notice and proper enquiry should have been held. It is further contended that though in name, a show cause notice was served on the Petitioners, they duly showed cause highlighting, their rights to the posts as being regularly appointed, after verification of all particulars pertaining to their eligibility and that the alleged notice dated 26.4.91 (Annexure -12 to the writ petition) is vague as at does not disclose any provision of Govt. Instructions being violated. Petitioners allege mala fide in issuing the notice of show cause.
The appointment letters of the Petitioners annexed with the writ petition show that Petitioner Nos. 1, 2, 3, 5, 6, 7, 8, 9, & 10 was appointed by the Respondent No. 5 in the posts caused vacant due to "retirement/expired" of the incumbent, on purely temporary basis and were appointed in pursuance of the order of the Secretary, Education Deptt. Govt. of Assam (Annexures No. 1, 2, 3, 5, 6, 7, 8, 9 and 10). Petitioner No. 3 was appointed due to high enrolment in the school (Annexure -4 to the writ petition).

(3.)AS visualised from the Annexures all the Petitioners were appointed by the Respondent No. 5, Deputy Inspector of Schools, Silchar on order of the Education Secretary, Govt. of Assam. It is also admitted fact that the schools in which Petitioners were appointed are provincialised schools. The admitted position of law is that after provincialisation of the Primary Schools, M.E. Schools and Madrassas recruitment to those schools has to be made under the provisions of the Assam Elementary Education (Provincialisation) Rules, 1977 (in short Rule, 1977) These Rules has been made in exercise of powers conferred by Section 27 of the Assam Elementary Education (Provincialisation) Act, 1974. Section 3 in Part -I of the Rules, 1977 is quoted below:
3. (i) Method of recruitment - In the month of January every year the DI shall invite applications in prescribed form for vacancies of elementary school teachers which are likely to occur in the year in his establishment.

(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 DI 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 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 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.

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