WP(C) 125/2011 BEFORE THE HON’BLE MR. JUSTICE U.B. SAHA The petitioners made a prayer for direction to the respondent authority to initi ate the regular process of recruitment for regularization of service of the peti tioners as Assistant Teachers. Heard Mr. P.K. Deka, learned counsel appearing for the petitioners as we ll Mr. M.R. Pathak, learned Standing Counsel, Education Department appearing for the respondent Nos.1,2 and 3. Also heard Mr. B.C. Saikia, learned Government Ad vocate appearing for the respondent No.4. As agreed to by the learned counsel appearing for the parties and consid ering the nature of the prayer in the writ petition, this matter has been taken up for final disposal at the motion stage. The petitioners, three (3) in numbers who were appointed as Assistant Teachers in the year 2007 vide resolution dated 5.4.2007 by the Managing Committee of Kaliprasad M.V. School, Sealtek, Cachar, Silchar being the said school was provincialised in the year 1978, Since their a ppointment they have been performing their duties. The Headmaster of the aforesa id school informed the respondent Nosa.2 and 4, i.e. the Director of Elementary Education, Assam and the Deputy Commissioner, Cachar, Silchar. It is also the ca se of the petitioners that in provincialisation school, the Managing Committee h as no power to appoint any teacher inasmuch as in provincialisation school, the teacher must be appointed through due selection process in terms of the provisio n of the rules. A since long time, the State Government has not taken any step f or regular recruitment and in view of the reduced strength of the teaching staff , the activity of the school has been badly affected. The further case of the pe titioners is that the learned Single Judge of this Court in the case of Jahangir Alom and Others reported in 2003 (3) GLT 544, decided that the teachers appoint ed by the Managing Committee of a provincialised school would have any legal or equitable right for regularization in such appointment. A writ appeal was filed in this regard and the Division Bench of this Hon’ble Court vide its judgment an d order dated 14.11.2006 in W.A. No.52 of 2004, though upheld the decision of th e Single Judge of this Court but observed that in terms of the Office Memorandum dated 21.1.2004, preferences be given to the honorary teachers while considerin g appointment through regular process taking the queue from the aforesaid judgme nt. Mr. P.K. Deka, learned counsel appearing for the petitioners submits tha t admittedly the petitioners were not appointed by the respondents-authority but by the Managing Authority of the school in the year 2007 and their case is full y covered by the decision of this Court in the case of Jahangir Alom and Others (Supra) as well as the judgment of a Division Bench of this Court in Mrs. Farida Sultana Vs. State of Assam and others reported in W.A. No.52 of 2004. He also s ubmits that the Deputy Commissioner, respondent No.4 and the Director of Element ary Education Officer, Cachar, Silchar, respondent No.2 are not answering the le tter of the Headmaster of the school of the petitioners dated 19.12.2009 and 27. 4.2009 respectively who were in the school and the salary bill of the seven (7) Assistant Teachers including the present petitioner. Mr. Pathak, l;earned Standing Counsel, Education Department submits that the petitioners are not entitled any salary from the Government of Assam partic ularly from the Education Department being their appointment was contrary to the scheme of the Government. He further submits that the case of the petitioners a rte even not covered by the judgment of the learned Single Judge in the case of Jahangir Alom and Others (Supra) and the decision of the Division Bench in the c ase of Mrs. Farida Sultana (Supra), Division Bench nowhere in its judgment direc ted the State Government to initiate regular recruitment for regularization of t he service of the petitioner in that case. The court only passed order taking no te of the Government6 decision inter-alia that Government on considering the ser vices rendered by the honorary teachers have however, decided to given them pref erences in appointment in the form of relaxation of age for their experience at the time of filling up vacancies through regular selection in future., also dire cted the Government claim of the appellant of that case seeking preference in te rms of the Office Memorandum dated 21.1.2004 shall be duly taken into considerat ion by the authorities as and when the appellant’s case is required to be consid ered meaning thereby the liberty is given to the State Government to consider th eir case in-accordance with their term and the law enforced relating to the pref erence in appointment in the form of relaxation of age for their experience. The case in hand is in no way covered by the Division Bench as in this case, the pe titioner asking for initiating recruitment process for regularization of their s ervices, court cannot direct the State Government to initiate recruitment and th e regularization of the services of the petitioners dehorse of the rules applica ble for appointment of teachers in a provincialisation school. His further conte ntion is that the petitioners were appointed by the Managing Committee of the Sc hool on honorary basis violating the norms prescribed by the State Government. T herefore, the State Government is in no way liable to regularize the services of the petitioners and pay of the salary as the Managing Committee is taking their services without prior permission from the State Government as required under s cheme. It is the Managing Authority whon has to give their salary from their own fund. As it appears from the record that the Headmaster of the school has writt en two letters one on 10.112009 (Annexure-5) another is on 19.12.2009 (Annexure- 6) to the Director of Elementary Education, Assam and Deputy Cachar, which are a ccording the petitioners are pending, therefore, it will be proper for this cour t not to express any opinion about the merit of the case though the court is to the extent. According to the submissions of Mr. Pathak, it will be better to dis pose of the representation with a direction to the respondent No.2 as well as re spondent No.4 to dispose of the letter of the Headmaster as stated above within a period of two (2) months from the date of receipt of the order of this Court a long with the copy of the writ petition. Being the recruitment is within the dom ain of the State Government or the Managing Committee of the school, the court h as no power to direct them either to initiate the process for recruitment or to regularize the services of the petitioners and similarly situated persons. It is also settled position of law that creation and abolition of posts is within the domain of the employer only when the employer appointed a person arbitrary unre asonable and with bad fate or terminated in violation of law then only court can interfere with the order of the litigation of the employer i.e. the case herein . The petitioners are directed to serve a copy of a letter dated 10.11.200 9 (Annexure-5) to the writ petition and the letter dated 19.12.2009 (Annexure-6) to the writ petition respectively to the respondent within fifteen (15) days fr om today. With the aforesaid direction and observations, the writ petition is disp osed of.