WP(C) 5692/2006 BEFORE THE HON’BLE MR. JUSTICE IA ANSARI By making this application under Article 226 of the Constitution of Indi a, the petitioner has sought for issuance of appropriate writ(s) commanding the respondents to pay to the petitioner salary in respect of the post of Assistant Teacher of LP School w.e.f. 07-02-2001. 2. Put in a nut-shell, the petitioner’s case is thus: The Managing Committe e of 248 Nayagram LP School, Karimganj, appointed, on 12-06-1996, the petitioner as Assistant Teacher. This appointment, having been approved, on 24-06-1996, by the Deputy Inspector of Schools, Karimganj, the petitioner started working as A ssistant Teacher in the said school. In course of time, on repeated representati ons made by the petitioner, an order was passed, on 07-02-2001 (Annexure 6 to th e writ petition) by the then Deputy Inspector of Schools, Karimganj, whereby the petitioner, who had till then been working as honorary teacher in the said scho ol, was adjusted against a post, which had fallen vacant due to retirement of it s incumbent, Krishna Mohan Mallah, in 650 Ganga Hindi LP School, with explicit d irection that the petitioner would receive stipend @ Rs. 1,800/- per month. The order of adjustment, so made, was against a non-planned post. Notwithstanding th e said order of adjustment, as the petitioner did not receive any salary, he has come to this Court, with the present writ application, seeking reliefs as indic ated hereinabove. 3. Resisting the writ petition, the State respondents contend to the effect , inter alia, that the petitioner was appointed as honorary teacher by the Manag ing Committee of 248 Nayagram LP School, Karimganj, which was provincialised, in terms of the provisions of the Assam Elementary Education Provincialisation Rul es, 1977, as far back as in the year 1975, and, hence, on provincialisation of t he said school, its Managing Committee could not have legally appointed any teac her inasmuch as appointment of teachers, in provincialised schools, have to be m ade by adhering to a selection process, which has to be conducted and completed in terms of the provisions of the said Rules. The respondents, therefore, conten d that the petitioner’s honorary appointment by the Managing Committee did not b ind the State Government. This apart, the order, dated 07-02-2001, aforementione d, which forms the basis of the petitioner’s claim for salary, was, according to the respondents, an order of adjustment and not an order of regularisation. Fur ther-more, points out the respondents, w.e.f. 06-12-1999, the Government of Assa m, owing to financial crunch, had clamped a ban on the appointment of teachers a gainst vacant posts without approval of the Finance Department and, in the prese nt case, since no such approval was obtained before making the said order of adj ustment, the order did not vest any right in the petitioner to claim salary. 4. Appearing on behalf of the petitioner, Mr. AK Goswami, learned Senior co unsel, pointing to the judgment and order, dated 09-12-2004, passed in WP(C) No. 7333/2001, has submitted that in the said case, this Court has held that paymen t of salary to a Government employee cannot be denied without any justifiably re ason. Mr. Goswami has further pointed out that the policy decision of the Govern ment till 29-09-2003 had been to approve and regularize the appointment of honor ary teachers and since the petitioner’s order of adjustment was made, on 07-02-2 001, against a non-planned post, there is no valid reason for not treating the p etitioner’s appointment as a regular appointment in the post of Assistant Teache r of lower primary school. 5. Controverting the submissions made on behalf of the petitioner, Mr. T Is lam, learned Standing counsel, Education Department, referring to this Court’s d ecision in Jahangir Alam & Ors. -vs- State of Assam & Ors, reported in 2003 (3) GLT 544, has submitted that this Court has clearly held that on provincialisatio n of a lower primary school, its Managing Committee has no power to make appoint ment of any teacher and the appointment of such teachers, which are commonly kno wn as honorary teachers, is for fortuitous in nature and does not create any rig ht in them to seek regularization of their appointment. 6. While considering the present writ petition, it needs to be noted that t he question formulated for its decision by the Court, in Jahangir Alam (supra), was as under:- Whether honorary teachers appointed by the Managing Committee of a provincialis ed school would have any legal or equitable right for regularization of such app ointment? 7. Having examined the scheme of the relevant provisions of the said Rules and all other connected aspects of law, the Court has, in no uncertain words, he ld that upon provincialisation of a lower primary school, its Managing Committee has no role to play in the appointment of teachers and, hence, appointment of t eachers by the Managing Committee of such a provincialised schools, being contra ry to the relevant statutory provisions, is wholly illegal and that the services rendered by such an honorary teacher, in such fortuitous circumstances, is dist inguishable from regular service rendered by a teacher under the State. 8. In the face of clear declaration with regard to the role of the Managing Committee of a provincialised LP School, there can be no escape from the conclu sion that even if the petitioner was appointed, on 12-06-1996, by the Managing C ommittee of the said school on honorary basis, his appointment was completely il legal and did not bind the State Government. As the petitioner’s appointment was without adhering to the provisions of the relevant Rules, his service could not have been adjusted by the Deputy Inspector of Schools against a regular sanctio ned and vacant post. Apart from the fact that the order of adjustment, dated 07- 02-2001, is not an order of regularization, it is worth pointing out that there was no source of power, under the said Rules, for making such adjustment. When t he source of power did not exist in favour of any adjustment or regularization o f the petitioner’s service as an Assistant Teacher, the mere fact that an order had been passed, on 07-02-2001, adjusting the petitioner’s service against a reg ular vacant post does not vest, in the petitioner, any right, statutory or other wise, to claim the status of a regularly appointed teacher. 9. What emerges from the above discussion is that the petitioner’s initial appointment made by the Managing Committee of the said school, on 12-06-1996, do es not saddle the State Government with the responsibility to make payment of sa lary of a regularly appointed teacher to the petitioner. Notwithstanding, howeve r, the fact that the order of adjustment, made in favour of the petitioner, is e x facie illegal, the very fact that the petitioner has been allowed to render hi s service on the basis of such illegal appointment and no action has, admittedly , been taken by the State Government against the Inspector of Schools, who had m ade the said order of adjustment, the petitioner’s of service must be treated to have been realized by the State Government on contractual basis. Viewed thus, i t is clear that the petitioner remains entitled to receive salary @ Rs. 1,800/- per month until the time the order of adjustment, passed in his favour, is withd rawn, cancelled or rescinded by the competent authority. 10. Because of what have been discussed and pointed out above, this writ pet ition partly succeeds. While the claim of the petitioner for a direction to the State respondents to make payment of salary to the petitioner treating him as a regular teacher or to direct regularization of his service is hereby turned down , the State respondents are hereby directed to make payment and continue to make payment to the petitioner @ Rs. 1,800/- per month, w.e.f. 07-02-2001, until the time the State Government continues to let the petitioner render his services o n the strength of the order, dated 07-02-2001, aforementioned. It shall, however , remain open to the State respondents to withdraw, cancel or rescind the said o rder of adjustment and, for this purpose, no notice to show cause is required to be given to the petitioner inasmuch as the nature or legality of the order of a djustment aforementioned has already been considered and determined in this writ petition. 11. With the above observations and directions, this writ petition shall sta nd disposed of. 12. No order as to costs.