WP(C) 3936/2007 BEFORE HON BLE MR. JUSTICE AMITAVA ROY JUDGMENT AND ORDER(CAV) The petitioners, who are honorary teachers in various L.P. schools located in the Kokrajhar district of the State seek redress against the cancella tion of the order dated 26.6.2007 of the Director of Education, Bodoland Territo rial Council ( for short, hereafter referred to as the ’BTC’) regularizing their services as Assistant Teachers in their respective institutions. By order dated 3.8.2007 while issuing notice of motion, this Court had directed maintenance o f status quo of their service conditions as on that date. The petitioners claim that on the basis thereof, they have been rendering their services till date wi thout break. 2. I have heard Mr AJ Atia, learned counsel for the petitioners, Mr S Khoun d, learned Standing Counsel, BTC and Mr B Choudhury, learned Standing Counsel, F inance Department, Govt. of Assam. 3. The petitioners have introduced themselves to be the permanent resident s of Bodoland Autonomous Territorial Areas of the Kokrajhar district and have cl aimed themselves to be eligible for appointment to the post of Assistant Teache r in L.P. School in terms of the norms prescribed by the Assam Elementary Educa tion (Provincialization) Rules, 1977 ( for short, hereafter referred to as the ’ Rules’). Their categorical case is that, they were appointed as Assistant Teach ers by the Managing Committees of their respective L.P. Schools on various date s after provincialisation of the said institutions. As inspite of the notificati on under Memo No. B(3) 5-549/96/207-A dated 21.6.2000 issued by the Govt. of A ssam in the Education Department providing a scheme for regularization of the se rvices of honorary/dropped teachers, the respondent authorities appeared to be indifferent and apathetic to their cause, the petitioners had approached this C ourt with WP( C) No.7542/2002 praying for an appropriate writ and/or direction for regularization of their services in accordance therewith. This writ petiti on was disposed of vide judgment and order dated 29.11.2002 which was modified b y the order dated 13.12.2002 passed in Misc Case No.1689/2002 whereby the respo ndent Nos 2 and 3 therein were directed to consider the case of the petitioners for regularization of their services as Assistant Teachers in L.P. Schools in Kokrajhar district in accordance with the relevant government policy and also in conformity with the order dated 18.9.2002 passed in WP( C) No.1976/2000. In t he process that followed in response to the aforementioned decision of this Cour t, the Deputy Inspector of Schools, Kokrajhar by his letter No.DIS/KOK/HIGH CO URT/LP/2004/3037 dated 1.12.2004 submitted a statement showing the particulars of 37 dropped and honorary teachers including the petitioners with the Secreta ry to the Govt. of Assam, Education( Elementary) Department for necessary acti on. The Commissioner and Secretary to the Govt. of Assam, Education Departmen t vide Memo No. ELC/COP/331 /2003/ 581/106 dated 4.8.2005 laid the matter with the authorities of the Bodoland Territorial Council (hereafter referred to as th e ’BTC’) for taking necessary action as per the existing rules as well as the d irections contained in the aforementioned judgment and order of this Court. Sub sequent thereto, the Joint Secretary, BTC vide his Memo No.BTC/Edn (El).127/2005 /126 dated 12.9.2005 instructed the Director of Education, BTC to move the Gove rnment of Assam, Finance (SIU) Department for financial approval/concurrence o f vacancies for appointment of the petitioners indicating the availability of posts for them. The proposal was resubmitted by the Director of Education, BTC vide his letter dated 24.4.2006 with the Commissioner & Secretary to the Govt. of Assam, Education Department reiterating the same request. It was after a lap se of several months that the Commissioner and Secretary to the Govt. of Assam, Education(Elementary) Department by his order under Memo No.ELC/COP( C)331/200 3/581/125 dated 2.4.2007 recorded a departure from the earlier decision contai ned in the letter dated 4.8.2005 observing that as the initial appointments o f the petitioners were against non existent posts by the Managing Committees o n honorary basis, examination of their cases to ensure that their appointments h ad been made against existing vacant posts and in accordance with the procedure prescribed by the rules ought to be undertaken. Thereafter, however, vide orde r No.DE/BTC/KOK/E/CC/10/05/121 dated 26.6.2007 of the Director of Education, BT C, Kokrajhar, their services were regularized at a monthly stipend of Rs.800/- with the observation that they will get the full scale of pay on successful co mpletion of training as mentioned therein. It was thereafter that by the impugn ed letter dated 2.7.2007 and the order dated 3.7.2007 their regularization was cancelled. 4. During the pendency of the present proceeding, the Finance Department of the State accorded its approval for the regularization of the services of 3 7 Assistant Teachers of L.P. Schools including the petitioners appointed agains t the existing sanctioned posts as proposed by the Director of Education, BTC, K okrajhar. It is evident from the affidavit-in-opposition filed on behalf of the Finance department through its Commissioner and Secretary, Respondent No.7. 5. The petitioners by their additional pleadings have brought on record the Educational Policy embodied in the notification dated 9.12.96 adopted by t hen Bodoland Autonomous Council authority whereunder all of them claim to have been selected against the vacant posts in their respective schools. They however , admitted that though in terms of the said policy, the selection was to be app roved by the authorities mentioned therein, most unjustifiably the same had not been accorded. They also complained that their salary had not been released th ough they had been rendering their services without any blemish. 6. The Secretary of Education, BTC and the Director of Education, BTC in th eir individual affidavits have pleaded in unison that the petitioners except th e petitioner Nos 9 and 10 namely, Smti Nina Basumatary and Sri Shyamal Khaklary could not be considered as dropped teachers in terms of the government notificat ion dated 21.6.2000 as all of them had been appointed by the Managing Committees of their school after the provincialisation thereof. Referring to the letter da ted 2.3.2007 and 7.6.2007 of the concerned authorities of the Education Departme nt of the State, the answering respondents contended against any right of the pe titioners ( except the petitioner Nos 9 and 10) to claim regularization of the ir services having regard to the manner of their initial appointment. According to the respondents, the order dated 26.6.07 issued by the Director of Education, BTC in the facts and circumstances is untenable in law and thus had been right ly cancelled by the impugned letter dated 2.7.2007 and the order dated 3.7.2007. 7. In his additional affidavit, the respondent No.4 while reaffirming t he above stand has referred to the order dated 29.11.2010 of the Secretary, BT C, Kokrajhar in endorsement thereof with a direction to the Director of Educatio n, BTC, Kokrajhar to cause steps tobe taken to fill up the existing vacancies i n accordance with the extant rules and procedure. Reference has also been made in his additional counter to the decision rendered by this court in Abdul Bari (MD) vs. State of Assam & Ors, 1999(3) GLT 31 and Jahangir Alam & Ors vs. State of Assam and Ors, 2003(3 ) GLT 544. That the educational policy relied upon by the petitioners had been cancelled in terms of the order No.BTC/Edn.(El).63/04/4 2 dated 12.11.2004 of the Joint Secretary , BTC , Kokrajhar has also been asser ted. 8. Mr Aita has urged that the petitioners having been appointed following a selection in terms of the educational policy in force at all relevant times, they were entitled in law for regularization of their services as per the noti fication dated 21.6.2010 as well as the orders dated 29.11.2002 and 13.12.2002 passed by this court in WP( C) No.542/2002 and Misc Case No.1689/2002 respective ly. The learned counsel insisted that the Finance Department of the State havin g on a threadbare scrutiny of all relevant aspects accorded sanction to the regu larization of the services of the petitioners against the posts held by them, t he impugned orders are patently illegal and are liable to be interfered with. A ccording to Mr Atia, the BTC having consciously regularized the services of t he petitioners vide order dated 26.6.2007 of the Director of Education, BTC, it is estopped in law to resile from their orientation and on that count as well, the impugned decision is liable to be adjudged illegal, discriminatory and null and void. In support of his argument, Mr Aita placed reliance on the decision o f the Apex Court in U.P. State Electricity Board vs. Pooran Chandra Pandey and Ors, rendered in Civil Appeal No.3765 of 2001. 9. While, the learned Standing counsel, Finance Department affirmed the approval for the regularization of the services of the petitioners by his depart ment, the learned Standing counsel, BTC adhered to the pleaded contention of thi s respondent. Reiterating that in the facts and circumstances of the case, the p etitioners having been appointed as honorary teachers by the Managing Committees of their respective schools after provincialization thereof, they have no right in law to claim regularization of their services, the decisions of this court rendered in Abdul Bari(Supra) and Jahangir Alam and Ors(Supra) were pressed into service. 10. The pleadings of the parties and the arguments advanced have received the due consideration of this Court. That the petitioners (except the petitione r Nos 9 and 10) had been appointed by the Managing Committees of their schools s ubsequent to the provincialisation thereof is a matter of record. The pleaded ca se of the petitioners is that they had been so appointed after the provincializ ation of their institutions. Their initial appointment therefore had not been i n accordance with the provisions of the Rules. Not only their appointment letter s are not on record, it is admitted as well on their part that their selection under the education policy of the then BAC had not been approved by the concerne d authorities as mentioned therein. 11. This court by order dated 13.12.2002 passed in Misc case No.1689/200 2 in WP( C) No.542/2002 had only directed consideration of their cases for regu larization in accordance with the relevant government policy. No direction for r egularization of their services was made without reference to the attendant fact s and the rules otherwise applicable. It is not the case of the petitioners that the prescriptions of the Rules do not apply to them. 12. That the petitioners, except Nira Basumatary and Shyamlal Khaklary h ad been appointed by the Managing Committees of the schools after the provincial ization thereof, had been noticed by the Commissioner and Secretary to the Govt. of Assam, Education Department in his letter dated 4.8.2006 whereby, the issue was laid with the BTC for taking necessary action as per the existing rules. Th e same view was iterated by this authority in his order dated 2.3.2007. In the t eeth of the above, the order dated 26.6.2007 of the Director of Education, BTC, Kokrajhar regularizing the services of all the petitioners as well as the approv al accorded by the Finance Department of the State per se do not remedy the inf irmity in the appointment of the petitioners at the first instance. This court i n a Division Bench in the case of Abdul Bari( MD) (Supra) while decided against the regularization of the services of the incumbents selected and appointed in violation of the provisions of Assam Secondary Education (Provincialised) Serv ice Rules, 1982 , a Hon’ble Single Judge in the case of Jahangir Alam and Ors (Supra) held the same view vis a vis, the Assam Elementary Education (Provincial isation) Rules, 1977. In this decided case, the petitioners therein had been ap pointed in different LP/ME/MV/High/Higher secondary schools by the Managing Comm ittees thereof after the institutions had been provincialised. The decision of t he Apex Court in U.P. State Electricity Board (Supra) is clearly distinguishable on facts. The petitioners therein were daily wage employees of a Cooperative Electricity Supply Society. The society had been taken over by the U.P. State El ectricity Board and it was decided that the daily wage employees of the society who were being taken over by the Board would start working under it in the s ame manner and position. The Board thus had taken a decision to regularize the services of its employees working on daily wage basis. No requirement of complia nce of any statutory rules as an indispensable prerequisite for regularization o f the services was involved. 13. On a totality of all considerations as recited hereinabove, this C ourt is of the unhesitant opinion that the challenge to the impugned orders lack s substance. The petition therefore is dismissed. The respondent authorities how ever would take necessary steps for regularization of the services of the petiti oner Nos 9 and 10, namely, Smti Nira Basumatary and Shri Sghyamlal Khaklary with out undue delay with all consequential benefits. It is made clear that, if the petitioners are rendering their services, their salary and other allowances as due to them in law would be released to them forthwith. No costs.