WP(C) 3437/2008 BEFORE HON’BLE THE MR. JUSTICE AMITAVA ROY The factual settings though present peripheral variations, havin g regard to the commonness of the grievance conveyed thereby the respondents bei ng also the same, the petitions were analogously heard and this adjudication wou ld answer the issues raised. 2. I have heard Mr. D. Mazumdar, learned Counsel for the petitioner s in WP(C) 2651/2008, WP(C) 2735/2008 and WP(C) 3076/208, Mr. S. Barthakur, lear ned Counsel for the petitioners in WP(C) 2811/2008, Mr. K.K. Mahanta, learned Co unsel for the petitioners in WP(C) 3044/2008 and Mr. P. Talukdar, learned Counse l for the petitioners in WP(C) 3437/2008. Mr. U.K. Goswami, appeared for the Sta te respondents. 3. To appropriately comprehend the competing arguments, an abridged version of the pleaded cases of the petitioners petition wise is imperative. Th e State respondents have abstained from presenting their pleadings. WP(C) 2651/2008 4. The petitioners’ claim to be academically qualified for being ap pointed as Assistant Teachers in L.P. Schools of the State. They were initially on the basis of their candidature appointed in such capacity in various L.P. Sch ools on honorary basis in the District of Dhemaji by their respective Managing C ommittees. As inspite of the services rendered, they, in view of the nature of t heir appointment were not paid any salary and further steps were not taken for r egularization of their services, they approached this Court with writ petitions in the year 1989 praying for a writ of mandamus for necessary redress. By a comm on judgment and order dated 15/2/1991, several writ petitions being CR 1637, 163 8, 1748, 1926 of 1989 were disposed of with a direction to the State respondents to regularize the services of the honorary teachers who had served for more tha n 10 years. The petitioner No. 5, Smt. Malati Handique, was one of the petitione rs in CR 1637/99. The other petitioners followed suit and were granted similar r eliefs by this Court. All of them were thereby finally appointed as Assistant Te achers in various L.P. Schools in Dhemaji District against substantive vacancies . Their appointment particulars for a ready reference are provided in the table below. Name Appointment as honorary teacher Writ petition and order Order of appoint ment-appoint against substantive vacancy Post in which appointed Pay scal e Present posting Shri Kusha Kanta Dutta (Petitioner No. 1) Kopahtoli Primary School, Dhemaj i on 6/3/1984 CR 3057/91 and 3/12/1992 By D.I. of Schools, Dhemaji, pur suant to the letter dated 26/2/1999 of the Director of Elementary Education, Ass am. Assistant Teacher, Kopahtoli L.P. School Rs. 1185/- - Rs. 2395/- Headmaster, Kapahtali L.P. School, Dhemaji. Smt. Taruni Handique (petitioner No. 2) Hahsora L.P. School on 9/5/1981 CR 756/9 3 and 1/4/1993 By D.I. of Schools, Dhemaji, in compliance of the order dated 11 /11/1993 of the Joint Director of Elementary Education, Assam. Assistant Teache r in Akajan L.P. School, Dhemaji. Assistant Teacher in Padumoni L. P. School, Dhemaji. Shri Mohan Chandra Ngaty (petitioner No. 3) Missing Adikalison L.P. School o n 1/3/1989 CR 7383/94 and 19/10/1994 By D.I. of Schools, Dhemaji, in compliance of the order dated 4/9/1995 of the Director of Elementary Education, Assam. Assistant Teacher in Kamchibam L.P. School, Dhemaji. Time scale of pa y after completion of basic training course from May 2000. Headmaster, Ramp ur Baleswari L.P. School, Laipulia, Dhemaji. Shri Chandiram Narah (petitioner No. 4) Balkate Dilphung L.P. School, Dhemaji on 12/9/1981 CR 97/94 and 15/9/1994 By D.I. of Schools, Dhemaji, in complian ce of the order dated 20/10/1995 of the Director of Elementary Education, Assam. Assistant Teacher, Bhehpara L.P. School, Dhemaji. Headmaster, Bahb ari L.P. School, Sisibargaon Revenue Circle, Dhemaji. Smti. Maloti Handique (petitioner No. 5) Gergeri Kapahtali L.P. School, D hemaji in the year 1981. CR 1637/89 and 15/2/1991 Appointed by the D.I. of Schools, Dhemaji. Sripani LP. School, Dhemaji. Sanctioned regul ar scale of pay and allowed to cross efficiency bar on 13/6/2007. Assistan t Teacher in Gergeri Kapahtali L.P. School. Shri Pradip Sarma, (petitioner No. 6) Tarajan Dhunaguri L.P. School, on 1/9/19 82 CR 806/93 and 1/9/1982 By D.I. of Schools, Dhemaji, in compliance of th e order dated 15/7/1993 of the Director of Elementary Education, Assam. Assistan t Teacher in Patiri L.P. School, Dhemaji. Time scale of pay after completi on of basic training course. Obtained certificate on 23/6/2006. Assistant Teache r in Patiri L.P. School, Dhemaji. 5. The petitioners have contended that they have being rendering th eir services without any blemish till date. As their salary had been withheld fr om the month of September, 2007, they made necessary enquiries and were informed that their names appear in the list of 752 teachers determined to have been app ointed against non-existent posts in the Dhemaji Sub-Division in the year 1989. According to them, though necessary clarifications have been provided by the jur isdictional Deputy Inspector of Schools to the Director of Elementary Education, Assam, that 39 teachers including the petitioners had been released their salar y in view of their fresh appointments after 1989, for no justifiable reason they stand deprived of their legal dues. WP(C) 2811/2008 6. The petitioners claim to have passed the H.S.L.C. examination an d contend to be possessed of the requisite qualification to be appointed as Assi stant Teachers of the L.P. Schools of the State. They assert that following thei r selection by the competent authority, they had been appointed as Assistant Tea chers of various schools by the Deputy Inspector of Schools, Dhemaji, consequent upon which they have joined their posts and are rendering their services. To be tter appreciate their service particulars at a glance, the same are furnished he reinbelow. Petitioner Name Year of selection Board conducting the Selection f or L.P. Schools Post 1. Smti. Bijoy Lakhi Pegu 1994 Sub-Divisional Level Advisory Board, Dhe maji 2. Smti. Binumai Gohain 1994 Sub-Divisional Level Advisory Board, Dhe maji 3. Smti. Karabi Baruah (Handique) 1994 Sub-Divisional Level Advisory Bo ard, Dhemaji 4. Smti. Padmawati Taid 1994 Sub-Divisional Level Advisory Board, Dhe maji 5. Smti. Nilima Gogoi 1994 Sub-Divisional Level Advisory Board, Dhe maji 6. Sri Duleswar Gogoi 1994 Sub-Divisional Level Advisory Board, Dhe maji 7. Smti. Lichi Dutta 1994 Sub-Divisional Level Advisory Board, Dhe maji 8. Smti. Indu Baruah 1994 Sub-Divisional Level Advisory Board, Dhe maji 9. Smti. Nibedita Gogoi 1994 Sub-Divisional Level Advisory Board, Dhe maji 10. Smti. Anjali Chutia 1994 Sub-Divisional Level Advisory Board, Dhe maji 11. Smti. Padma Devi 1994 Sub-Divisional Level Advisory Board, Dhe maji 12. Sri Lohit Saikia 1994-95 Sub-Divisional Level Selection Board, Dh emaji Quota reserved for sons and daughters of retired teachers 13. Sri Rama Kanta Doley 1994-95 Sub-Divisional Level Selection Board, Dh emaji Quota reserved for sons and daughters of retired teachers 14. Smti. Ranju Gogoi 1994-95 Sub-Divisional Level Selection Board, Dh emaji Quota reserved for sons and daughters of retired teachers 15. Smti. Kanmai Deori 1994-95 Sub-Divisional Level Selection Board, Dh emaji Quota reserved for sons and daughters of retired teachers 16. Smti. Nanima Chutia 1992 Sub-Divisional Level Advisory Board, Dhe maji 17 Sri. Tuleswar Deori 1995 Sub-Divisional Level Advisory Board, Dhe maji Retired vacancy in Dhemaji District 7. The petitioners have admitted that their earlier appointments in the year 1989 in various L.P. Schools had been cancelled in the year 1992. They have maintained that in the meantime they have completed their basic training c ourse and are enjoying regular time scale of pay. According to them, their servi ces have also been confirmed by the competent authority from the date of passing of the basic training and that the petitioners No. 7, 8 and 16 have in the mean while been promoted to the post of Headmaster. Their grievance is that their sal aries have been withheld from August, 2007 on the ground that they had been earl ier appointed in the year 1989 and that the payment of the salary of 752 teacher s identified to have been appointed against non-existent posts has been decided to be stopped. They have similarly contended that the Deputy Inspector of School s, Dhemaji, though on verification have clarified that the petitioners’ claim fo r salary is genuine, appropriate steps have not been taken for the release there of. WP(C) 3044/2008 8. The petitioners, nine in numbers are peeved by the non-payment o f their salary from the month of September, 2007. They iterate that being qualif ied to be appointed as L.P. School teachers they had applied in response to an e mployment notice issued by the Director of Elementary Education, Assam. They the reafter appeared in an interview held on 16/10/1986 conducted by a duly constitu ted Selection Committee. In the select list dated 19/12/1989 published for Dhaku akhana Sub-Division of Lakhimpur district, they were empanelled and thereafter a ppointed against clear vacant posts available due to the retirement of the earli er incumbents. Though they were duly appointed on 19/12/1989 their salary was no t disbursed till 1997. The stalemate cleared with the regularization of their se rvices by the order bearing Memo No. 6107-15 dated 30/9/1996 of the Deputy Inspe ctor of Schools, Dhakuakhana, from the respective dates of their joining and fol lowing the necessary budget allocation, their salary was released. The same havi ng been held up suddenly again from the month of September, 2007, on enquiries, they were informed that as the services of the teachers illegally appointed in t he year 1989 have been terminated in the year 1992 payment of salary has been st opped. WP(C) 3437/2008 9. According to the petitioners, they having been selected in the y ear 1986-87 were accordingly appointed as Assistant Teacher under memo No. 20067 /850 dated 19/12/1989 of the Deputy Inspector of Schools, Dhemaji. The petitione r No. 1 was appointed and posted at Betoni Gaon L.P. School and petitioner No. 2 at Bkakat Kaibatta L.P. School and since then they are rendering their services without any break. Their services were confirmed vide order No. DIS/DMJDE-19/98 -99 and DE/19/97-98/6829-33 dated 18/6/1999 and 25/9/98 of the Deputy Inspector of Schools, Dhemaji w.e.f. 18/12/1994 and 19/12/1994 respectively. They claim th at their service books have been opened and deductions are being made from their salary for contribution to the respective GPF accounts. They contend to be not in receipt of their salary from October, 2007 and assert that the respondent aut horities when enquired of the reason have failed to provide any satisfactory rea son therefor. WP(C) 2735/2008 10. The petitioners have pleaded that they being qualified to be app ointed as Assistant Teachers in the L.P. Schools were initially inducted on temp orary basis or against leave vacancies and as they lacked in the necessary train ing as prescribed, their appointment on regular basis appeared to be elusive. Th ey along with others approached this Court with WP(C) 2921/87 which was disposed of on 25/4/1998 observing that untrained teachers were not totally debarred fro m appointments and directed consideration of the cases of the petitioners. As th e respondent authorities still omitted to consider their cases they instituted C ont. Case (C) No. 105/98 and by order dated 6/10/98, this Court directed the res pondents therein not to act in violation of the orders passed in CR 2921/1987. T he petitioners were thereafter, pursuant to the orders passed at the appropriate administrative levels, appointed on various dates in the year 1992-93 against s anctioned vacancies on regular basis. This Court by order dated 18/6/1990 in the above contempt petition having directed payment of their salary, the same was r eleased to them. Their service particulars in brief are as hereinbelow. Name Date of appointment-authority Place of posting Shri Lekhan Borgohain, Petitioner No. 1. 30/10/1993, Deputy Inspector of Schools, Dhemaji. Sonarigaon L.P. School Smti. Dipamani Gogoi, Petitioner No. 2. 5/11/1992, Deputy Inspector of Schools, Dhemaji. Sonarigaon L.P. School Sri Shyamanta Saikia, Petitioner No. 3. 5/11/1992, Deputy Inspector of Schools, Dhemaji. Anochapari L.P. School Smti. Trishna Bora, Petitioner No. 4 5/11/1992, Deputy Inspector of Schools, Dhemaji Amguri L.P. School Smti. Arunima Chetia, Petitioner No. 5, 5/11/1992, Deputy Inspector of Schools, Dhemaji No. 2 Deogharia L.P. School Smti. Tongila Chutia, Petitioner No. 6 12/5/1993, Deputy Inspector of Schools, Dhemaji Naharani L.P. School 11. The petitioners have insisted that thereafter their services wer e confirmed in their respective posts, service books were opened and they were a lso allowed to cross the efficiency bar. According to them, they have also succe ssfully undergone the Sarbasiksha Training Course imparted by the District Insti tute of Educational Training (DIET), Bordoloni and Dhemaji. Their salary from th e month of August, 2007, having been withheld, the Deputy Inspector of Schools, Dhemaji, on being confronted could not furnish any persuasive reason except disc losing that their names were included in the list of 752 teachers who have been discovered to be appointed against non-existent posts. WP(C) 3076/2008 12. The petitioners have averred that the Government of Assam, with a view to promote Tai Language introduced the same in the L.P. Schools and with the objective of selecting eligible candidates for teaching the same had request ed the Purbanchal Tai Sahitya Sabha to conduct the interview of selecting suitab le candidates for appointments. Accordingly the said Body selected 50 persons in cluding the petitioners 1 to 3. The Director or Elementary Education Assam, afte r necessary approval on 31/12/1993 forwarded the list of recommended candidates for appointment. The Deputy Inspector of Schools, Dhemaji, thereafter appointed them on various dates whereafter they joined their duties and have been performi ng their duties to the satisfaction of all concerned. They claimed to have also passed the basic training course from the District Institute of Educational Trai ning (DIET), Biswanath Chariali, and have been accorded regular time scale of pa y. According to them, their services have also been normalized from plan to non- plan sector by order dated 17/2/2004. 13. The progression of facts vis-à-vis the petitioner No. 4, 5 and 6 culminating in their appointments as claimed by them is projected hereinbelow. Name of petitioner Date of appointment Post/quota Confirmation Name of school Scale Shri Ranjan Chutia (Petitioner No. 3) 10/12/1989 Quota of retired teacher ’s son 16/9/1998 Majgaon L.P. School Rs. 470/- - Rs. 820/- Shri Naba Changmai (Petitioner No. 5) 19/05/1992 Compassionate ground 16/9/1998 w.e.f. 12/5/1996 Kechukhana L.P. School Rs. 1065/- - Rs. 2015/- Shri Keshab Dutta (Petitioner No. 6). 16/06/1995 Rehabilitation scheme of the Government of Assam for the U.L.F.A. militants Perabhari Primar y School, presently Headmaster of Nilakh Co-operative L.P. School. Stipendi ary teacher at a monthly stipend of Rs. 900/-. 14. The petitioners have averred that they have in the meantime been confirmed in service, their service books have been opened and they have also b een allowed to cross the efficiency bar. They also claim to have undergone the S arbasiksha Training Course imparted by the District Institute of Educational Tra ining (D.I.E.T.), Biswanath Chariali, Bordoloni and Dhemaji. Their grievance is that their salary has been withheld from the month of August, 2007 on the purpor ted ground that their names are included in the list of 752 teachers allegedly a ppointed against non-existent posts. The petitioners, however, admit that their earlier appointments in the year 1989 in some L.P. Schools had been cancelled be fore their subsequent induction to the present schools in which they are serving . They contend that the Deputy Inspector of Schools, Dhemaji, by his official co rrespondences though have clarified that their claim for salary is genuine, the higher authorities have turned a blind eye thereto to their great prejudice and sufferings. 15. The respondents have neither filed their counter nor have produc ed the records. 16. Mr. Mazumdar has urged that the appointments of the petitioners having been made against regular vacancies pursuant to the orders of this Court, they by no means, can be identified with those said to have been inducted again st non-existent vacancies and, therefore, the reason professed by the respondent s as a justification for withholding their salary being ex-facie fallacious and frivolous, an appropriate writ ought to be issued to redress their grievance. As the appointments of the petitioners, by no means, as is demonstrable by the att endant facts, can be said to have any perceptible nexus with those of the 752 al legedly illegally appointed teachers, the impugned action of the respondents in denying the petitioners their salary is illegal, arbitrary, unfair and unconstit utional and is liable to be adjudged as such. Mr. Mazumdar has urged that it bei ng obvious as well from the clarifications provided by the Deputy Inspector of S chools, Dhemaji, that the petitioners’ claim for salary is authentic, the impass ive disposition of the higher authorities is a demonstration of imperious displa y of executive fiat mutilative of the basic tenets of fair play in State action. As the petitioners are admittedly rendering their services, their appointments not having been terminated as on date, the respondents are constitutionally obli ged to pay their salary, he urged. 17. Mr. Borthakur while endorsing the above has contended that as in the meantime the services of the petitioner have been regularized and they have been treated to be such for all intents and purposes, the justification assigne d by the respondents to withhold their salary being on the face of it purported and unreal is liable to be rejected in limine. 18. Mr. Mahanta has argued that the appointments of the petitioners being valid and accepted to be so for which they had been earlier paid their sal ary for the services rendered, the endeavour on the part of the respondents to a ssociate them with the allegedly illegally appointed teachers of 1989, besides b eing wholly indefensible in law and on facts lacks in bonafide as well. As the p etitioners are admittedly rendering their services, the said respondents are con stitutionally committed to release their salary, he pleaded. 19. Mr. Talukdar while subserving to the above submissions has accen ted upon the undue hardship and privation that accost the petitioners, due to un fair and unjust denial of their legitimate dues and has entreated judicial inter vention for succour. 20. Per contra, learned Standing Counsel, Education Department, has insisted that as the names of the petitioners on enquiries have been included in the list of 752 teachers detected to have been appointed against non existent p osts, no direction for payment of their salary ought to be made and that the res pondents may be permitted to make further scrutiny for an appropriate decision o n the issue. Mr. Goswami underlined that as the process has been initiated to pu rge the system of illegal appointments and stem unwarranted drainage of State ex chequer, a circumspective and regulated approach is required in public interest. 21. I have extended my due consideration to the pleadings and the do cuments available as well as the arguments advanced. Absence of a counter on beh alf of the official respondents or the records notwithstanding, it cannot be gai nsaid that the petitioners’ entitlement for salary would assuredly be contingent on the validity of their initial appointments and not their mere continuance in service. Recruitment to the post involved being mandatorily required to be made in conformity with the Assam Elementary Education (Provincialisation) Rules, 19 77 (hereafter for short referred to as the Rules), any departure therefrom or al teration or modification of the mode of induction prescribed thereby would indub itably be invalid unless sanctioned by the provisions thereof. The Rules being a n yield of the constitutional empowerment of the Governor under Article 309, it would enjoy a primacy so much so that any contravention or denudation thereof in exercise of executive fiat per se would be impermissible unless legitimized by it. 22. Viewed from that perspective, the issues raised for judicial scr utiny would thus have to be assayed on legally approved parameters. The letters dated 12/10/2007 and 17/6/2008 of Deputy Inspector of Schools, Dhemaji, recommen ding release of their salary by implication and relied upon by most of the petit ioners as acknowledgment of the validity of their claim would by no means be dec isive, if otherwise nonest on the touchstone of the Rules. 23. The petitioners’ averments demonstrate the reason for non-paymen t of their salary to be their inclusion in the list of 752 teachers allegedly ap pointed against non-sanctioned posts in the then Dhemaji Sub-Division of the Nor th Lakhimpur District in the year 1989. The petitioners per contra have endeavou red to establish that some of them though initially appointed in the year 1989, their appointments had been cancelled whereafter they were validly recruited ane w and, therefore, cannot be bracketed with those professed to have been appointe d against non-existent posts. They thus contend that they have been wrongly asso ciated with them. The reasons in full for non-disbursement of the petitioners’ s alary, however, are not forthcoming for the failure of the respondents to file t heir affidavit and/or the records. Nevertheless in the estimate of this Court, a s the posts are lodged in public offices and State revenue is involved, the peti tioners ipso facto are not entitled to a direction as prayed for on default sans any adjudication. 24. The petitioners in WP(C) 2651/2008 insist that as their appointm ents are in compliance of the directions of this Court in various writ proceedin gs instituted by them, not only are the respondents obliged in law to release th eir salary, withholding of the same is contumacious in content. A Division Bench of this Court in Smt. Kunjalata Gogoi and others versus State of Assam and othe rs, 1993 (1) GLJ 278 while dilating on inconveniences and hardship of the honora ry teachers serving in L.P. Schools in the Dhemaji District, figuring as petitio ners therein evolved a criteria of 10 years of service to confer on them the ben efit of regular appointment. Thereby, the petitioners, as identified on the appl ication of the said norm, were directed to be appointed as regular teachers from the month of March, 1991, to be paid their salary therefrom. The State authorit ies were left at liberty to work out the modalities vis-à-vis the period of 10 y ears for the purpose of pension and other retiral benefits. The cases of other p etitioners who failed to meet the test so applied, were not accorded any relief. 25. Though a plain reading of the decision so rendered does not uneq uivocally proclaim enunciation of any principle for uniform application, it tran spires that in individual cases thereafter following this determination similar directions were issued. The petitioners in WP(C) 2651/2008 citing various such o rders have pleaded a right to receive salary as regular incumbents in service. T heir appointment orders also contain reference amongst others of such orders of this Court. Though the petitioner No. 4, Shri Chandi Ram Narah initially had sta ted that his appointment was in compliance of the order dated 15/9/1994 passed b y this court in CR 97/94 of this Court, by an additional affidavit, he has clari fied that the order ought to be dated 19/5/1994 and that the mistake had crept i n inadvertently in his appointment order as well. 26. In the face of the Rules, which in categorical and emphatic term s lay down the procedure for recruitment of teachers to the Elementary Schools o f the State, the rendering in Smt. Kunjalata Gogoi, supra, cannot be construed t o be prescriptive of an additional mode therefor by way of amendment/modificatio n of the statutory provisions. The criteria formulated and applied to the incumb ents seeking adjudication in the case reported could not have been intended for uninhibited and general application dehors the Rules. The fact that in individua l cases thereafter, by invoking the same precept, identical reliefs had been gra nted does not detract from