WP(C) 6045/2005 BEFORE HON’BLE MR JUSTICE AMITAVA ROY JUDGMENT AND ORDER The petitioners seek judicial intervention for their alleviation from th e lingering distress following the denial of their pay since 24/4/1998. They see k a writ of mandamus ordering retention of the posts held by them w.e.f. 1/3/20 02 to facilitate disbursement thereof and release of other service entitlement s. 2. I have heard Mr. U. K. Nair, learned Counsel for the petitioner and Mr. M. R. Pathak, learned Standing Counsel, Education Department, for the of ficial respondents. 3. The pleaded versions of the parties have to be recorded briefly to better appreciate the rival submissions seeking scrutiny. The petitioners cla im to have been initially appointed as Assistant Teachers in various Middle Engl ish Schools located within the territorial limits of Morigaon District in the St ate of Assam under the centrally sponsored scheme Operation Black Board in the year 1998. According to them, they are all academically and otherwise qualified to hold the post and have since their appointments been discharging their duties to the best of their capabilities. They have averred that the Government of Ass am, vide letter No. EPD/08/6/96/156 dated 24/4/1998 of the Director of Elementar y Education, Assam, sanctioned 120 posts of Assistant Teachers under the aforeme ntioned scheme for the above named District. These posts were out of 4040 posts created under the aforementioned centrally sponsored scheme from which the Gove rnment of Assam filled up 2851 leaving 1189 unutilized till date. These 2851 p osts were filled up in two phases of 2378 and 390 respectively. The petitioners have claimed that their services were regularized in the second phase. Though it was earlier contemplated that the posts under the scheme created during the cur rency of the 9th Plan period would stand abolished, thereafter the Government of India in consultation with the Ministry of Finance eventually decided to extend its sanction therefor for one more plan period i.e. the 10th Plan period under the Sarva Siksha Abhijan (hereafter referred to as the SSA) vide its DO No. F.5- 15/2000-OB dated 10/2/2003 of the Ministry of Human Resource Development, Depart ment of Elementary Education etc., Government of India. 4. The petitioners have maintained that out of the 120 posts located in the District of Morigaon, 97 were included in the first list of 2378 candida tes and the remaining 23 in the second. The petitioners were adjusted against th e second lot of 23 posts in the said District. As contemplated, the Central Gove rnment contributed its share of 75% of the dough towards the salary liabilities of the teachers under the scheme on a financial year basis on the submission of the proposal by the State Government as regards the amount likely to be expende d by it in that regard. According to the petitioners, the Government of India r eleases the amount for the actual number of posts utilized and retained under th e scheme and the Government of Assam correspondingly also issue orders from time to time retaining the same on the basis of the actual utilization thereof. In o ther words, the Central Government in releasing the amount due from its end, doe s so following the computation thereof on the basis of the retention orders of t he Government of Assam in the Education Department and the finance proposals in respect of the teachers qua actual utilization of posts. 5. Accordingly , the Government of Assam in the Education Departmen t vide its letter No. PMA.337/95/Pt.-1/581 dated 22/1/2003 conveyed its sanction towards retention of 390 posts of Assistant Teachers created vide order dated 2 4/4/1998 under the above scheme. Thereby the retention was accorded from the dat es of appointments till 28/2/2002 and District wise break up of the teachers was also mentioned in the said order/letter. The posts of the petitioner were also included in the aforesaid number. The petitioners have alleged that though the a mounts due from the Government of India for the 9th Plan period towards payment of the salary of the teachers under the scheme had been released and received by the Government of Assam, their entitlements from the date of their initial appo intments have been withheld albeit payment of salaries of similarly situated tea chers has already been made. Subsequent thereto the Government of Assam issued r etention orders No. EE (Plan) 20/2004/3 dated 4/2/2004 vis-à-vis the 120 posts s anctioned for the District of Morigaon for the period 1/3/2002 to 29/2/2004. How ever, by another order dated 12/2/2004 of the Director of Elementary Education, Assam, this order of retention was kept in abeyance. Thereafter though the Gover nment of Assam renewed the retention order of 2365 posts w.e.f. 1/3/2004 to 28/2 /2005 vide order No. P.M.55/2-3/Pt./555 dated 12/4/2005, the names of the petiti oners were excluded. They have asserted that the Government of India in the me antime has sanctioned and released an amount of Rs. 3,91,49,000/- in favour of t he Government of Assam for meeting the salary liabilities of teachers serving u nder the Operation Black Board scheme for the financial year 2002-2003 and the s ame has been placed at the disposal of the Mission Director, SSA. 6. The petitioners have averred that the Government of Assam for th e financial year 2003-04 has in the meantime submitted another proposal to the G overnment of India for release of funds to facilitate payment of salary of 2851 teachers under the above scheme which also has since been deposited with it (Gov ernment of Assam). An amount of Rs. 20,52,72,000/- in the meantime has also been released by the Government of India for utilization by the Government of Assam towards payment of salary of 2851 teachers under the OBB scheme for the year 200 4-05 and has been placed at the disposal of the Mission Director, SSA. The Execu tive Director, SSA, in response to a request from the Education Department of th e State has in the meantime deposited the aforementioned amount with the Governm ent of Assam as is evident from the letter No. SSA/Acctts/AT/Salary/OB/IX/733/20 03/9120 dated 29/3/2005. As inspite of the above, the petitioners’ salary from t he dates of their regularization i.e. 24/4/98 has not been released, they seek redress contending that the impugned inaction and/or refusal on the part of the State respondents is grossly arbitrary and un-constitutional. By an additional affidavit filed by them, the petitioners while bringing on record the fact that an amount of Rs. 1,18,14,962/- would be requir ed to meet their claim of arrear and current salary for the period 24/4/1998 to 28/2/2006, they have reiterated that the Government of India has been regularly sanctioning and releasing amounts for payment of salary of 2851 teachers appoin ted under the OBB Scheme in the State of Assam on the basis of certificate of ut ilization thereof by the latter. They have also referred to a requisition made b y the Government of Assam, Education (E and S) Department to the Mission Directo r, SSA, to deposit in the State Exchequer an amount of Rs. 20,52,72,000/- being the State/Central share for payment of salary of 2851 Assistant Teachers appoint ed under the scheme in response to which the Chief Accounts Officer, SSA, vide h is communication dated 16/9/2005 had intimated the Director of Elementary Educat ion, Assam, that the aforementioned sum had been deposited as desired on 15/9/20 05. The amount though available and adequate for payment of salaries of all 2851 teachers for the financial year 2005-06 which includes the petitioners, the Dir ector of Elementary Education, Assam, by his communication dated 27/9/2005 made provision for such payment for the incumbents of only 97 posts in Morigaon Distr ict excluding them. The petitioners have reinforced their pleadings by another affidavit asserting inter alia that in the meantime the SSA has also deposited w ith the Government of Assam the amount received from the Central Government towa rds payment of salary of 2851 such teachers for the financial year 2006-07. Refe rence has also been made to an order dated 5/2/2007 passed in Misc. Case No. 318 /2008 arising out of WP(C) 271/2003 directing the State respondents to release t he salary of the members of the petitioner association mentioned therein of whic h the present petitioners are also constituents. The petitioners have sought to emphasize that the factum of release of salary by the Central Government for a ll the 2851 posts which include those held by them is a clear indicator of reten tion thereof continuously w.e.f. 24/4/1998 belying any justification whatsoever to deny them their pay and allowances inspite of unqualified and devoted service s rendered by them. 7. The respondent No. 2, Director of Elementary Education, Assam, i n his affidavit while contending that the petitioners had not been selected by t he concerned Sub-Divisional Level Advisory Board for appointment as Assistant Te achers in provincialised Upper Primary/M.E. Schools of Morigaon District, has av erred that though the Government of Assam initially by letter No. EPD/OB/6/96/15 6 dated 24/4/1998 of the District Elementary Education Officer, Morigaon, allott ed 120 posts of Assistant Teachers for the above district subsequent thereto vid e letter No. PMA.637/95/Pt-I/530 dated 3/9/2002 only 97 of such posts were retai ned for a period upto 28/2/2002 excluding the 23 posts claimed to be held by the petitioners. Pointing out that the petitioners claimed to be dropped teachers w hose services had been provincialised/regularized pursuant to the order dated 13 /11/1998 passed by the Division Bench of this Court in WA 474/97 arising out of CR 283/97, Sri Karuna Kalita and others versus State of Assam and others, the an swering respondent has enumerated the pre-requisites prescribed by the Assam Ele mentary Education (Provincialisation) Rules, 1977, (hereafter referred to as the Rules) stipulating the conditions to be enforced for retention of teachers in v enture schools. According to this respondent, after adjustment of the petitioner s, several complaints were received alleging that they were actually not dropped teachers academic qualifications and other conditions of eligibility entitling them to have their services regularized/provincialised under the Rules. Accord ingly, the Government vide letter No. PMA.337/95/Pt./45 dated 20/11/2002 directe d the Director of Elementary Education, Assam, to conduct an enquiry and submit a report. Consequently an enquiry was held by the Joint Director of Elementary E ducation, Assam, who submitted a report on 20/8/2004 after visiting the schools concerned and thoroughly examining all relevant records. Extracts of the report have been set out in the affidavit pleading disqualification of the petitioners for regularization/provincialisation of their services primarily on two counts namely(1) non-completion of two years of continuous services and (2) deficienc y in academic qualification (for some of them) at the time of taking over of the venture schools involved. The answering respondent, however, has disclosed tha t the report in the meantime has been placed before the appropriate authorities of the Government and is pending consideration. According to him, the proposal f or renewal of the sanction of 23 posts under the scheme held by the petitioners could not be initiated in this background. Because of the shortcomings of the pe titioners as disclosed by the enquiry, the said authority has asserted against t enability of their claim made in the instant proceeding. 8. The respondent No. 3 and 4 i.e. the District Elementary Educatio n Officer, Morigaon, and the Assistant Director of SSA, Guwahati, in their separ ate affidavits, however, have authenticated the fact of the regularization of th e petitioners services in the year 1998 against posts created under the OBB sche me. While affirming the allotment of 120 posts thereunder for the Morigaon Distr ict by the Director of Elementary Education, Assam, vide letter No. EPD/OB/6/96/ 156 dated 24/4/1998, the deponents have reiterated regularization of the service s of the petitioners against 23 such posts in the 2nd phase undertaken for the p urpose. While endorsing that the services of the petitioners as above had been r etained w.e.f. 24/4/1998 to 28/2/2002, it has been averred that their salary cou ld not be released for want of retention of their post thereafter. 9. In their affidavit in reply, the petitioners have emphatically u rged that their services as dropped teachers having been regularized against san ctioned posts under the OBB scheme in compliance of the directions issued by the Court in WA 474/1997, their selection by the Sub-Divisional Level Selection Boa rd, Morigaon, as pleaded by the respondents is inessential. Referring to the jud gment and order dated 13/11/1998 passed in the aforementioned writ appeal, they have insisted that thereby the State respondents were not only directed to compl ete the process of regularization/provincialisation of services of the dropped A ssistant Teachers numbering 1123 but also kept it open for the State respondents to do so vis-à-vis those who had been left out at the time of provincialisation of the respective schools in the year 1991-92. According to them, their associa tion had duly, along with others, furnished their names and particulars to the Director of Elementary Education, Assam, who being satisfied after a thorough ve rification with regard to their eligibility, regularized/provincialised their services. In addition they have contended, that the provisions of the Rules rel ied upon by the respondents were not applicable to them and were enforceable aga inst only those teachers who were regularized at the time of provincialisation o f their respective schools. They have alleged unwarranted intervention of the l ocal Member of Legislative Assembly to be the underlying reason for the impassiv e disposition of the State respondents vis-à-vis their service entitlements due in law to their great detriment and prejudice. Several instances of teachers lac king in two years of continuous service prior to provincialisation of their scho ols have been cited who have been favoured with pay and allowances in terms of t he judgment and order dated 13/11/1998 passed in WA 474/97. According to them, t he teacher student ratio referred to in the report being recorded as on the date of the enquiry and not as on that of provincialisation of the institution, it was wholly insignificant and , that continuous service of two years prior to the provincialisation of the respective schools not being an indispensable pre-cond ition as is sought to be projected by the respondents, the plea based thereon is frivolous. The petitioners have sought to draw sustenance for this stand from t he judgment and order dated 25/8/2003 passed by this Court in Jiban Chandra Deka versus State of Assam and others. 10. Mr. Nair in the above setting of pleadings has arduously contend ed that as funds are being continuously released by the Central Government for p ayment of the salary of the incumbents of the posts including the petitioners on the basis of certificates of utilization thereof by the Government of Assam an d as admittedly they (Petitioners) are rendering their services without any brea k since 24/4/1998, there is no conceivable justification to either deny them the ir dues or retention of their posts w.e.f. 1/3/2002 till date and, therefore, it is a fit case where a writ of mandamus ought to be issued to the respondents to take immediate corrective steps to redress their (petitioners) grievance. The l earned Counsel has urged that as the petitioners services have been regularized/ provincialised in deference to the order dated 13/11/1998 passed in WA 474/1997, the reservation expressed by the respondents vis-à-vis the retention of their p osts and their eligibility is per se fallacious in the contextual facts and is l iable to be negated. Their services having been regularized as per the direction of this Court, no objection what so ever sanctioned in law in the face of admit ted rendering of services by them can justify the impugned inaction on the part of the State respondents, he urged. Pointing out that no demur had ever been exp ressed against the appointment of the petitioners and/or the regularization/pro vincialisation of the services at any earlier point of time, the report submitte d after the conclusion of the purported enquiry in which they were not associate d in any manner ought not to be taken cognizance of, he pleaded. The learned Co unsel dismissed the contention based on student teacher ratio as revealed by the report as inconsequential as the facts and figures relatable thereto did not pe rtain to the date of provincialisation of the petitioners’ institutions. Relyin g on the decision of this Court in Jiban Chandra Deka, supra, Mr. Nair asserted that dropped teachers were all those whose services had not been regularized/p rovincialised at the time of taking over of their schools being ineligible in te rms of the stipulations contained in Rule 5 of the Rules but did not include tho se who could not be retained though eligible on the basis thereof. In this regar d, he referred to the District wise seniority list of dropped teachers of provin cialised ME/MV/MEM Schools prepared by the High Power Committee in terms of the guidelines laid down by this Court in the above verdict containing inter alia th e names of incumbents who on the date of provincialisation of their respective s chools were short of two years continuous services otherwise prescribed by Rule 5. 11. Refuting the above, Mr. Pathak has insisted that it would be m ore than apparent from the report submitted following the enquiry directed by th e department that the petitioners were not eligible to be retained in service an d, therefore, they are not entitled to have their services regularized or salary as claimed by them. Contending that in terms of the judgment and order dated 13 /11/1998 passed in WA 474/97, the departmental authorities are within their righ t to verify the service particulars of the incumbents concerned, the learned Sta nding Counsel urged that at present only 2173 teachers under the 4040 OBB scheme are in position. He apprised this Court that the District wise seniority list o f dropped teachers relied upon by the petitioners have not yet been acted upon a s a further scrutiny is underway to examine as to whether the teachers empanelle d therein truly deserve to have their services regularized/provincialised in ter ms of Rule 5 of the Rules. 12. The contentious pleadings and the competing arguments have been duly considered. That 120 posts under the centrally sponsored scheme above name d had been allotted to the district of Morigaon in the year 1998 by the letter d ated 24/4/1998 of the Director of Elementary Education, Assam, is not in dispute . Though the respondent No. 2 with reference to the letter No. PMA.637/95/Pt.-I/ 530 dated 3/9/2002 has emphasized on the retention of only 97 posts therefrom up to 28/2/2002 insisting that the remaining 23 posts had thus been excluded it overlooks the letter dated 22/1/2003 of the Joint Secretary to the Government of Assam, Education (Planning) Department, conveying the sanction of the Governor of Assam to the retention of 390 posts of Assistant Teachers of upper primary sc hools for a period w.e.f. dates of their appointment upto 28/2/2002 in the annex ures whereof providing the breakup of the incumbents, 23 posts against the distr ict of Morigaon have been indicated. Incidentally the respondent No. 3 and 4 in their individual affidavits have confirmed the retention of the petitioners’ ser vices w.e.f. 24/4/1998 to 28/2/2002 by the Government of Assam. However, though by Memo No. EE(Plan) 20/2004/3 dated 4/2/2004 of the Director of Elementary Education, Assam, retention of the said 120 posts fo r the periods 1/3/2002 to 28/2/2003 and 1/3/2003 to 29/2/2004 was renewed, the s aid decision was kept in abeyance by the Memo No. EE (Plan) 20/2004/40 dated 12/ 2/2004 of the same authority. The materials on record therefore proclaim in favo ur of the retention of posts of the petitioner for the period 24/4/1998 to 28/2/ 2002. Since thereafter, further retention of their posts has not been allowed an d as is evidenced from the affidavit of the respondent No. 2, a final decision a t the appropriate administrative level on the report of the enquiry conducted by the Joint Director of Elementary Education, Assam, is awaited. 13. In the process of provincialisation of 1255 Middle English Schoo ls and M.E. Madrassas of the State w.e.f. 19/11/1991, several posts of teachers were dropped, triggering off a series of parleys between the representative as sociation of the affected serving incumbents namely All Assam Middle English Tea chers Association and the appropriate State authorities centering around a deman d of releasing/ creating 2641 posts to regularize/provincialise the equal number of left out teachers and to sanction funds to meet their monthly salary. Eventu ally the writ jurisdiction of this Court was invoked to pursue the remedy by ins tituting CR 2833/97, which was, however, dismissed on 25/6/1997. In the appeal b eing WA 474/97 preferred by the writ petitioners i.e. (1) Sri Karuna Kalita, so n of Sri Bhagiram Kalita, General Secretary of the Assam Middle English School T eachers’ Association, Khanapara (2) General Secretary of All Assam Teachers’ Ass ociation, Khanapara, Guwahati-22 , a Division Bench of this Court by order dated 12/6/1998 by way of an interim measure interdicted the State authorities from filling up 1123 posts out of 4040 posts in the upper primary schools created und er the OBB scheme sponsored by the Central Government. During the pendency of th e appeal this Court having been apprised that the Government was contemplating s teps to regularize the services of 1123 M.E. Schools and M.E. teachers on whose behalf the above appeal had been filed by the concerned Association and it hav ing taken note of the orders dated 13/10/1998 and 27/10/1998 of the Secretary to the Government of Assam, Education Department, and the Departmental Mminister a s well as the letter dated 19/11/1998 of the Joint Secretary to the Government o f Assam, Education Department, to the said effect disposed of the appeal with th e following operative directions on 13.11.1998. In view of the aforesaid developments, we dispose of this appeal with a directi on that the process of regularization/provincialisation of 1123 teachers dropped at the time of provincialisation of ME and ME Madrassas during the year 1991-92 would be completed within a period of three months from today. & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & For the purpose of enabling the Government to complete a process of reg ularization/provincialisation, the appellants association will furnish all neces sary documents and particulars including names of concerned assistant teachers t o the Director of Elementary Education, Assam, within 2 weeks from today. It wil l be open for the State Government to consider regularization/provincialisation of Assistant teachers dropped at the time of provincialisation of M.E. and M.E. Madrassas during the year 1991-92 in addition to 1123 Assistant teachers in case they find genuineness in the claims of such additional assistant teachers. The determination of the learned Single Judge was set aside. 14. As the above extracts would unequivocally evince, the posts inv olved were those under the 4040 OBB Scheme and that this Court while directing t he State respondents to complete the process of regularization/provincialisatio n of 1123 teachers dropped at the time of taking over of the Middle English scho ols and Madrassas during the year 1991-92 within a period of three months left t hem (State respondents) at liberty to consider the issue of regularization/provi ncialisation of Assistant Teachers of identical institutions during the same tim e in addition to the 1123 incumbents in case their claims were ascertained to be genuine. To facilitate the completion of the process as directed, the appella nt association was required to furnish all necessary documents and particulars