WP(C) 5184/2006 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY Heard Mr. AS Choudhury, learned Senior Counsel appearing for the petitioner and Mr. MR Pathak, learned Standing Counsel, Education department ap pearing for the respondents. 2) The petitioner, who was appointed as a subject teacher in Politi cal Science in the Moinul Haque Choudhury H.S. School, Sonabarigaht in the distr ict of Cachar by the managing committee of the school, challenges the order date d 21.10.2005 (Annexure-11) whereby the Commissioner & Secretary to the Govt. of Assam, Education department, has rejected the petitioner’s claim for regularizat ion/adjustment of his service. 3) On behalf of the petitioner, it is contended that at the time of his appointment, the managing committee of the schools were competent to select and appoint teachers in provincialised schools and since the petitioner was app ointed while the said decentralized procedure notified by the Govt. on 18.01.199 6 (Annexure-1) was operational, his appointment was made by the competent appoin ting authority and accordingly he should have been considered for adjustment in a regular vacancy, to enable him to receive his due salary. 4) The learned Senior counsel refers to Clause-11 of the Govt. Noti fication dated 18.01.1996 to show that only post-appointment approval from the D irectorate (Secondary) Education was envisaged for appointment by the managing c ommittee of teachers in Higher Secondary schools and considering the provision o f deemed approval, the petitioner’s appointment by the managing committee should be considered as one, made with the approval of the Director. 5) The learned counsel also refers to the direction given in the ea rlier round in WP'No.5773/2000 to show that the representation of the petitioner was required to be considered with compassion and the impugned order does not reflect the compassion of the authority. He contends that although a vacant po st of subject teacher in political science may not be available, an unutilized p ost of subject teacher in Geography was available in the school and the unutiliz ed post of Geography could have been converted, to regularize the service of the petitioner. 6) Mr. MR Pathak, learned Standing Counsel, Education, on the othe r hand submits that this Court in its earlier Judgment dated 09.02.2004 passed i n WP'No.5773/2000 has directed to consider the petitioner’s case in accordance w ith the Rules, Regulation and Guidelines of the Education Department and since the appointment was given by the managing committee in violation of the Rule 9 of the Assam Secondary Education (Provincialised) Service Rules, 1982 (hereinaft er referred to as the 1982 Rules ) which provides for recruitment by a District Level Selection Board, the claim for regularization of appointment given by the school managing committee, has rightly been rejected by the authority. 7) It is also pointed out by Mr. Pathak that decentralization of th e process of selection for making appointment to provincialized school notified on 18.01.1996 having been found to be contrary to the provision of the 1982 Rule s, was immediately withdrawn and accordingly the managing committee could not ha ve given appointment to the petitioner. In any event, in the absence of any vac ant post of subject teacher in Political Science, even if the managing committee is to act on the powers conferred by Notification dated 18.01.1996, could not h ave appointed the petitioner, by expecting conversion of the unutilized post of subject teacher of Geography since the power of conversion of post is not availa ble to the managing committee of provincialised schools. 8) Submitting that the Court on earlier occasion clearly held that no right has accrued to the petitioner by virtue of the appointment given by the managing committee against a non-existent post of second subject teacher in Pol itical Science and considering that the power of conversion of the unutilized po st of Geography lies with the State Government, an innocuous direction was given to the Govt. for considering the petitioner’s claim with compassion in accord ance with the the Rules, Regulation and Guidelines of the Education Department . Mr. Pathak further submits that since the 1982 Rules envisages appointment b y District Level Selection Board and not by managing committee of schools, the c laim of regularization of service of the petitioner, has been rightly rejected b y the impugned order dated 21.10.2005. 9) Assuming for the sake of analysis that the managing committees o n the strength of Notification dated 18.01.1996 were empowered to make the appoi ntment to posts in provincialised Higher Secondary schools, the power so granted to the managing committee can not be exercised, for making appointment when pos ts are not in existence. When managing committee is empowered to make appointme nt for a provincialised school, unless vacant posts are available, exercise of p ower of appointment by the managing committee has to be declared as without juri sdiction and without sanction of the Notification dated 18.01.1996 and according ly, I see no enforceable right in favour of the petitioner to seek regularizatio n of his service. 10) That apart, the petitioner seeks intervention of the Court by in voking compassion as the petitioner was made to serve on honorary basis withou t any remuneration and salary. But in a Court, compassion cannot get preceden ce over Law , and accordingly, I am of the view that legality of the appointmen t of the petitioner can’t ignore the Law that was prevalent at the time when the petitioner was appointed by the managing committee of the school. In this cont ext, Rule 9 of the 1982 Rules clearly provided that appointment to provincialis ed schools is to be made upon selection by District Level Selection Board and th erefore, the power conferred upon the managing committee through the Notificatio n dated 18.01.1996, is found to be inconsistent with the provisions of the 1982 Rules. 11) Accordingly, it has to be declared that the norms of appointmen t prescribed by the Notification dated 18.01.1996 cannot overwrite the norms of recruitment prescribed by the 1982 Rules. Since the appointment of the petition er was given by the managing committee, it has been rightly held in my opinion t hat such appointment has no sanctity of Law . 12) On the claim made by the petitioner for his un-paid salary, it i s reflected in the appointment order (Annexure-3) given to the petitioner that h e was appointed as the second subject teacher in Political Science and the said appointment can have legal effect for salary only if the proposal for converting the unutilized post of subject teacher in Geography to a post in Political Scie nce is accepted. Since the power of conversion does not vest on the managing c ommittee, the appointee was very much on notice that he was being appointed in a non-existent post and even then, he opted to join and serve as the second subj ect teacher in Political Science with the hope that, once the unutilized post ge ts converted, he will receive salary after regular appointment. But it is appa rent that the unutilized post has not been converted by the Govt. and unless a r egular post was available there cannot be any legitimate claim for payment of sa lary from the Government and the Public ex-chequer. 13) But since it was the managing committee which appointed the peti tioner against a non-existent post, if any salary claim is to be entertained, th e obligation to make such salary payment would lie on the appointing authority i .e., the managing committee and not against the Government and the Public ex-che quer. Accordingly, while rejecting the petitioner’s claim for salary from the P ublic ex-chequer, he is permitted to make a claim for salary payment from the c oncerned managing committee which gave him appointment to the non-existent post. 14) Since the petitioner was appointed through a procedure which has no sanctity of Law, I see no right of the petitioner for getting an order for r egularization/adjustment of his service in a regular post of subject teacher in Political Science in Moinul Haque Choudhury H.S. School, Cachar. It is declare d accordingly. 15) For the forgoing reasons, I see no merit in this writ petition a nd the same is accordingly dismissed.