WP(C) 791/2007 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA 1. The first writ petition being W.P.(C) No. 1140/04 was filed by t he single petitioner claiming regularization of service as M.E. school teacher a nd release of salary. Further prayer made in the writ petition is for CBI enquir y in respect of various orders of adjustments of services of the teachers, issue d by the respondent No. 5, i.e. the District Elementary Education Officer, Cacha r, Silchar. Having regard to the allegations made in the writ petition, this Cou rt while entertaining the writ petition by its order dated 30.03.04 directed for causing an enquiry by the Commissioner and Secretary to the Govt. of Assam in t he Education Department in respect of the allegations made in the writ petition. With much delay the enquiry was conducted. The other writ petitions are the off shoots of the enquiry report and the resultant orders passed thereafter. All of the writ petitions have been heard together and are being disposed of by this c ommon judgment and order. 2. The facts narrated in the writ petitions and the stand of the respondent s, briefly stated, are as follows: W.P.(C) No. 1140/04 3. The petitioner claims that he was selected by the Selection Board for a ppointment as Assistant Teacher in M.E./M.V./M.E.M. schools in Silchar Sub-Divis ion and Cachar District. However, nothing has been stated in the writ petition a s to the date of advertisement and selection etc. Mention has been made that the petitioner had earlier filed C.R. No. 2004/89 in which a prayer was made for a direction to release salary and to regularize the services. The writ petition was disposed of by order dated 05.01.94 with a direction to the respondents to e xamine the matter and then to take appropriate steps. 4. Although the writ petitioner has not chosen to give any particulars rel ating to said writ petition, the petition was called for by this Court and the s ame is on record. On perusal of the said writ petition, it appears that same was filed by the petitioner alongwith some others for a direction to appoint the pe titioners as Assistant Teacher in Middle School and to set aside and quash the o rder dated 20.06.89 (Annexure-F to the writ petition). The impugned order dated 20.06.89 was the order of appointment appointing altogether 6 teachers as M.E. S chool teachers pursuant to the selection by the Sub-Divisional Level Advisory Board for elementary Education. 5. As per the averments made in the said writ petition, the Director of Ele mentary Education Assam issued advertisement on 21.06.86 inviting applications f rom the eligible candidates for selection of Primary and Middle school teachers. According to the petitioner, he offered his candidature in response to the adve rtisement and upon interview etc., the selection committee prepared the list of the successful candidates. In paragraph-9 of the writ petition, it was stated th at the list was not published. However, further statement made was that the peti tioner could come to know that his name appeared in the list but the list was wi thheld by the Advisory Board. 6. As against the aforesaid position in respect of the select list of M.E. school teachers, the select list of Primary school teachers was published on 12. 10.87 which was put to challenge by filing writ petitions being C.R. Nos. 1130/8 7, 40/88, 52/88, 53/88 and 55/88 etc. on the ground that the select list was pre pared by the improperly constituted Advisory Board in violation of the statutory rules. According to the petitioner, he was one of the petitioners in the afores aid C.R. No. 1130/87 in which an interim order was passed on 02.11.87 directing the respondents not to act upon the select list of L.P. school teachers prepared for the particular constituency, i.e. Udarbund Constituency. 7. It is not understood as to why the petitioner being a candidate for appo intment as M.E. school teacher filed the writ petition in respect of the select list of L.P. school teacher. Be that as it may, it was contended in the writ pet ition that the petitioners involved in C.R. No. 1130/87 including the present pe titioner was appointed as Primary school teacher because of an understanding bet ween the petitioners and the D.I. of schools. They joined the respective schools on 02.07.88, but on the same date, their appointments were cancelled on the gro und that the appointments were obtained by threat. 8. The aforesaid situation led to filing of the writ petitions being C.R. N o. 1348/88, 1546/88 and 1572/88 etc. in which the cancellation of the appointmen ts were put to challenge. Further statement made in the writ petition was that t his Court allowed appointment of 230 selected candidates from the select list co mprising of 340 persons. According to the petitioners, appointments were made in unauthorized manner. There being excess appointment in violation of the order p assed by this Court, another writ petition being C.R. No. 1486/89 was filed. In the meantime, services of 70 teachers were terminated and the terminated teacher s filed the writ petition being C.R. No. 1751/89. 9. With the aforesaid statements, the grievance of the petitioners includin g the present petitioner was that the select list for M.E. school teachers was not published. Allegations were also made in respect of the purported irregulari ties committed for appointment of L.P. school teachers. The petitioner also refe rred to appointment letter dated 20.06.89 and stated that although the select l ist for M.E. school teachers was not published, but on the basis of unpublished select list, appointments were made. It is in the aforesaid backdrop of the case , the prayer of the petitioners as noticed above, was for regularization of his service and to cancel the appointment of others vide Annexure-F order dated 20.0 6.89 by which 6 persons were appointed as M.E. school teachers. 10. The writ petition was disposed of by judgment and order dated 05.01.94 w ith the following direction. The respondents No. 1 to 4 shall not appoint any person from outside the penal for the post of teacher in M.E. and M.V. school and at the same time, the respon dents shall consider the appointment of the petitioners if their names are inclu ded in the penal subject to availability of the vacancies 11. After the aforesaid order passed by this Court, the petitioner was appoi nted as Assistant Teacher of M.E. school vide Annexure-I order dated 09.09.94. T he petitioner has referred to order dated 25.06.96 passed in the writ petition b eing C.R. No. 5325/95 in which Annexures - 2 and 3 orders were passed directing release of the salaries of the petitioners including the present petitioner, if the claims were found to be correct upon appropriate enquiry. According to the p etitioner, inspite of aforesaid order of the Court, his service was not regulari zed/adjusted, nor his salary was released. On the other hand, the respondent No. 5 resorted to illegal action towards regularization/adjustment of the services of the teachers against the vacant posts. In this connection, the petitioner ha s annexed the Annexure-V order dated 30.06.01 in respect of adjustment of the se rvices of Shri Sahabuddin Laskar and Saytendra Ch. Deb, who are the petitioners in W.P.(C) No. 177/07 involved in this proceeding. It will be pertinent to menti on here that Annexure-V order dated 30.01.07 has been passed upon a reference to the orders passed by this Court in W.P.(C) No. 5085/2000 on 02.11.2000. Records of the said writ proceeding and the order dated 02.11.2000 do not reflect any s uch position, in fact the said writ petition was in respect of some other matte rs and did not pertain to Shri Sahabuddin Laskar and Shri Saytendra Ch. Deb. 12. There being serious allegations against the official respondents, more p articularly the respondents No. 4, 5 and 6, this Court directed for the aforesa id enquiry. Misc. Case No. 591/07 13. This application has been filed during the pendency of the writ petition urging not to give effect to the enquiry report prepared on the basis of the af oresaid order passed by this Court and the subsequent orders directing terminati on of the services of the teachers including that of the petitioner. It will be pertinent to mention here that no action was taken on the basis of the first ord er dated 30.03.04 passed in the writ petition by which direction was issued for causing an enquiry. This Court passed subsequent orders directing the compliance of the said order. It is on the basis of the such monitoring of the Court, the Commissioner and Secretary to the Govt. of Assam in the Education Deparjtment c aused the enquiry and the enquiry revealed illegal appointments and consequently services of such illegal appointees were dispensed with which included the peti tioner as well. Being aggrieved, he has filed the Misc. case, without, however, any formal amendment of the writ petition. W.P.(C) No. 177/07 14. This writ petition has been filed by the aforesaid Sahabuddin Laskar and Saytendra Ch. Deb whose services have been terminated pursuant to the aforesaid enquiry caused on the basis of the aforesaid direction of this Court. According to the petitioners, they were appointed as honorary teachers on 01.03.90 and 01 .02.84 respectively and their services were duly approved by the DEEO and D.I. o f schools respectively. According to the petitioners, their services were adjust ed by Annexure-2 order dated 30.01.01 passed by the DEEO, Cachar about which men tion has been made in the first writ petition in which it has been indicated tha t, the writ petition and the order which has been made the basis of such adjustm ent, do not pertain to the writ petitioners. Although initially the petitioners received their salaries, but their salaries were stopped from July, 2002 in view of the enquiry initiated in the matter of adjustment of their services. The pet itioners have referred to the aforesaid writ petition in this regard. They have annexed a copy of the enquiry report. The petitioners have also referred to the FIR lodged against them. On the basis of the enquiry conducted, the enquiry off icer has furnished his report indicating the illegal appointments of the petitio ners. It is in such a situation, the writ petition has been filed. W.P.(C) No. 791/07 15. This writ petition has been filed by five writ petitioners making a gri evance against the direction for dispensation of their services pursuant to the aforesaid enquiry conducted by the respondents. The services of the petitioners have been terminated by order dated 08.02.07 (Annexure-10). It is the stand of the petitioner that before terminating their services, they were not afforded wi th any opportunity of being heard. According to the petitioners, they were init ially appointed as honorary teachers in the year 1991-92 and thereafter on the b asis of the orders passed by this Court in W.P.(C) Nos. 4709/99, 6095/2000, 3468 /2000 and 4704/99 which were filed by the petitioners praying for regularization of their services, their services were adjusted against the vacant posts vide o rders dated 02.02.01, 05.02.01 and 17.02.01. Their salaries were stopped pursuan t to the order passed on 09.04.02 questioning the legality of their very appoint ments. Being aggrieved, they filed several writ petitions in which direction was issued for release of their salaries. Thereafter, the aforesaid enquiry was con ducted and on the basis of the reports furnished, their services have been dispe nsed with. W.P.(C) No. 942/07 W.P.(C) No. 1136/07 16. These writ petitions are on the same set of facts as in the aforesaid wr it petitions, i.e. W.P.(C) No. 791/07. STAND OF THE RESPONDENTS 17. According to the respondents, the services of the petitioners have been dispensed with since they were appointed illegally and without any sanction of l aw behind. It is their stand that in the process of purported adjustment/regular ization of the services of the petitioners, the recruitment rules was merrily fl outed. It has been stated in the affidavits that alongwith the petitioner in W. P.(C) No. 1140/04, 24 other teachers were appointed against non-existent post. A lthough their appointments mentioned about approval of the Chairman of the Sub-D ivisional Advisory Board, but in fact there was no such approval and/or meeting of the Board. Further there was also no approval of the State Level Empowered Co mmittee (S.L.E.C.). Further stand of the respondents is that the services of th e petitioners were adjusted/regularized on non-existent records. 18. In the aforesaid backdrop of the matter, it is for the decision of this Court as to whether the services of the petitioners have been dispensed with val idly. Before that, it will also have to arrived at, as to whether the petitione rs were appointed validly. 19. I have heard Mr. A.J. Atia, learned counsel for the petitioner in W.P.(C ) No. 1140/04. Ms. P. Chokraborty, learned counsel representing the petitioners in W.P.(C) No. 177/07 and Mr. A.M. Majumdar, learned Sr. counsel assisted by Mr. A.Y. Choudhury, learned counsel for the petitioners in W.P.(C) Nos. 791/07 and 942/07 and Mr. P. Talukdar, learned counsel appearing for the petitioner in W.P. (C) No. 1136/07. I have also heard Mr. V.M. Thomas, learned Standing counsel, Ed ucation Department. FINDINGS W.P.(C) No. 1140/04 20. As per the own admission of the petitioner, the select list pertaining t o M.E. School teacher was never published. In the writ petition filed by him in the year 1989, i.e. C.R. No. 2004/89, the order passed by this Court was not to make any appointment outside the select list of M.E. school teachers. Further di rection issued was to consider the appointment of the petitioners if their names were included in the select list. Thus, for appointment of the petitioner, the condition precedent was the inclusion of his name in the select list. The tenor of the pleadings of the writ petition has been noted above. Although the petiti oner was aspirant for the post of MV school teacher, but he made a challenge to the select list of L.P. school teacher. As per the statement made in CR No. 2004 /89, some kind of agreement was arrived at with the officials of the Education Department and it was on that basis he was appointed. It is not understood as to how the Education Department officials could arrive at an agreement for appoint ment of teachers. 21. Although the petitioner was appointed way back in 1994 (09.09.94), but a dmittedly no select list was published. If the petitioner was appointed pursuant to any selection against the particular vacancy as mentioned in the order of ap pointment, there could not have been any occasion for the petitioner to pray for regularization of his services. Thus, the petitioner himself was aware that he was not appointed validly. It is also not his case that the select list was publ ished and pursuant thereto he was appointed. The enquiry conducted as per the or der of this Court has revealed that the petitioner was appointed de hors the rec ruitment rules and if that be so, same cannot confer any right on the petitioner . The enquiry has further revealed that there was no selection worth name. 22. When the petitioner himself has admitted that the select list was not pu blished, he could not have been appointed. Had it been the case of valid appoint ment of the petitioner, he would received salary regularly from 1994. Although he was allegedly appointed in 1994, he was never paid his salary. Thus, in such a situation, no mandamus can be issued to regularize the services of the petitio ner. In the meantime, his service has been terminated pursuant to the enquiry co nducted in which it was found that his very appointment was illegal. If he was a ppointed illegally, any direction for payment of salary would imply regularizat ion of his illegal appointment. 23. The Apex Court in the case of State of Manipur vs. Y. Token Singh report ed in (2007) 5 SCC 65, dealing with illegal appointments and claim of salary by the illegal appointees, observed thus: 17. If the offers of appointments issued in favour of the respondents herein we re forged documents, the State could not have been compelled to pay salaries to them from the State exchequer. Any action, which had not been taken by an author ity competent therefore and in complete violation of the constitutional and lega l framework, would not be binding on the State. In any event, having regard to t he fact that the said authority himself had denied to have issued a letter, ther e was no reason for the State not to act pursuant thereto or in furtherance ther eof. The action of the State did not, thus, lack bona fides. 18. Moreover, it was for the respondents who had filed the writ petitions to prove existence of legal right in their favour. They had inter alia prayed for issuance of a writ of or in the nature of mandamus. It was, thus, for them to es tablish existence of a legal right in their favour and a corresponding legal dut y in the respondents to continue to be employed. With a view to establish their legal rights to enable the High Court to issue a writ of mandamus, the responden ts were obligated to establish that the appointments had been made upon followin g the constitutional mandate adumbrated in Articles 14 and 16 of the Constitutio n of India. They have not been able to show that any advertisement had been issu ed inviting applications from eligible candidates to fill up the said posts. It has also not been shown that the vacancies had been notified to the employment e xchange. 24. I, in the facts and circumstances of this case, do not see any arbitrari ness on the part of the State in its action directing cancellation of appointmen t of the petitioner. Consequently, the writ petition merits dismissal, which I a ccordingly do. W.P.(C) No. 177/07 25. According to the petitioners, they were appointed as honorary teachers and subsequently their services were regularized by Annexure-2 order dated 30.01 .07. When the very basis of the order of regularization is nonest, the order of regularization cannot give rise to any claim to the petitioners. The services of the petitioners were adjusted taking the name of the order dated 02.11.2000 pas sed by this Court in W.P.(C) No. 5085/2000. The said case is not related to the petitioners. Mr. V.M. Thomas, learned Standing counsel has produced the copy of the order passed in W.P. (C) No. 5085/2000. The said matter was in respect of s ome insurance claim. Thus, on the face of it, the very adjustment of the service s of the petitioners was based on forgery. The petitioners were given adequate o pportunity of being heard before dispensing with their services. The enquiry rep ort reveals that the petitioners could not produce any documents in support of t heir claim. Coupled with thus, the officer who allegedly passed the order of adj ustment dated 30.01.01, namely Shri J.U. Majumdar, DEEO, Cachar, now Inspector o f schools, Karimganj, has certified that his signature in the order of adjustmen t has been manipulated and the signature appearing in the order does not belong to him. 26. Apart from the above, the own documents produced by the petitioners depi ct forgery. The petitioners have annexed Annexure-I appointment letter dated 01. 02.84 issued by the Secretary of the School (Saidpur Janata M.E. school). On be ing asked to produce the resolution adopted toward his appointment, learned coun sel for the petitioners has produced the copy of the same which contains the sig nature of the Secretary of the School. The signatures appearing in both the docu ments of the same date, i.e. 01.02.84 differ from each other. Learned counsel fo r the petitioners, on being pointed out of the same, could not give any explanat ion. Thus, the whole basis of the claim of the petitioners is founded on manipu lation. This is precisely the reason as to why they could not produce any valid documents before the enquiry authority to substantiate their claim. 27. In view of the above, I do not find merit in the writ petition and accor dingly it is dismissed. W.P.(C) No. 791/07 W.P.(C) No. 942/07 W.P.(C) No. 1136/07 28. In all the writ petitions, the grievance of the petitioners is that the ir services have been dispensed with without providing any opportunity of being heard. Their services have been dispensed with by the impugned order dated 08.02 .07 on the ground that the selection procedure as envisaged in the recruitment r ules was not followed while making their appointments/adjustments. According to the petitioners, they were initially appointed as honorary teachers by the resp ective managing committee of the schools and subsequently their services were re gularized/adjusted by various orders. Their grievance is that they were not affo rded with any opportunity of being heard before terminating their services, but for which they could have apprised the authority about the real state of affair s. 29. During the course of hearing, learned counsel for the petitioners produc ed the documents to sustain their claim that they were initially appointed as ho norary school teachers and thereafter their services were regularized. The recor ds have revealed that some of the orders of regularization was by the same autho rity who allegedly regularized the services of the two petitioners in W.P.(C) No . 177/07. The signature appearing in the order dated 30.01.01 (Annexure-2 to W. P.(C) No. 177/07) by which the services of said two petitioners were regularized has been certified to be fictitious one, by the same very authority. The signat ure appearing in the forged order as well as in some of the orders of regulariza tion of the services of petitioners involved in these writ petitions, appeared t o be the same. If that be so, the question necessarily arises as to whether the signatures in the orders of adjustment/regularization of the services of at leas t some of the petitioners involved in these writ petitions are also forged and fictitious. 30. In the enquiry it was revealed that 25 teachers were illegally adjusted/ regularized. However, the enquiry officer in his report stated about verificatio n of the documents pertaining to 21 teachers out of 24 teachers. The enquiry rep ort also mentions about their adjustment/regularization against the valid vacant posts. It also mentions that the said teachers were initially appointed as hono rary teachers, but were dropped at the time of provincialisation of the school. However, according to the enquiry authority, the authority did not follow the pr ocedure relating to regularization/adjustment of 21 teachers. There is no clear cut finding that in fact the petitioners were appointed illegally. If the petit ioners’ appointments as honorary teachers before provincialisation of the school s are accepted, then they may have claim for regularization/adjustment of their services on availability of vacancies. 31. Apart from the above, the petitioners were also not afforded with any op portunity of being heard, before terminating their services. In that view of the matter, the case of the petitioners involved in these writ petitions requires f resh consideration of the respondents. Accordingly, the matter is remanded back to the Commissioner and Secretary to the Govt. of Assam in the Education (E) Dep artment for a fresh decision taking into account all the relevant materials ava ilable on record. The said Commissioner shall take assistance of his subordinate officers towards arriving at a just and proper decision. Needless to say that n o amount of malpractice in the matter of appointment in a department like Educat ion should be tolerated, but at the