WP(C) 1585/2008 BEFORE THE HON’BLE MR JUSTICE A.K. GOSWAMI 1. The eight petitioners have filed this writ petit ion under Article 226 of the Constitution of India praying for a writ of mandamu s directing the respondents to regularise their service and to release their arr ears as well as current salaries with effect from 16-09-1996. 2. The case of the petitioners is that pursuant to an advertisement in local newspaper issued by the Education Department, Government of Assam in t he year 1991, inviting application from eligible candidates for appointment as A ssistant Teachers for Primary School, they had applied for the same. The Sub-Div isional Lower Primary Advisory Board that was constituted, on receipt of the app lications submitted by the candidates including the petitioners, had conducted i nterviews from 25-11-1991 to 03-12-1992 under the supervision of the respondent No.3. The petitioners were selected in such interview for appointment as Assista nt Teachers for Primary Schools at Hojai Sub-Division. Accordingly, the responde nt No.3 issued appointment orders to the petitioners in various Lower Primary Sc hools where there were vacancies due to expiry/retirement and transfer of teache rs, in the months of May, June, July and August of 1995 on a fixed pay of Rs. 90 0/- P.M., for a period of three months. It is, further, the case of the petition ers that they had, accordingly, joined as Assistant Teachers and their services were extended on 30-03-1996 until further order till a decision was taken by the Elementary Education Advisory Board, Hojai. 3. The petitioners have stated that they were not paid their salari es, and on the contrary, were issued orders by which their orders of appointment s were stayed until further order. The petitioners had approached this Court by means of a writ application, which was registered as Civil Rule No. 4946 of 1996 and this Court, by Judgment and order dated 31.3.1998, had disposed of the appl ication by setting aside the orders impugned as well as by giving a direction to the concerned authorities to pay their salaries. This Court also directed that the Government shall take early steps for filing up of the vacancies after re-ad vertisement and at the time of a regular selection, the cases of the petitioners , if applied for such posts, would be considered. However, the aforesaid directi on of this Court was not implemented and the petitioners are still working in th eir respective Schools in which they were initially appointed. An interview was held in pursuance of the letter dated 16-12-1998 in which all the petitioners ha d participated before the Sub-Divisional Screening Committee constituted to regu larise the services of those who were appointed on ad hoc basis. 4. It is further pleaded that the respondent No. 2 had forwarded a list dated 31.8.2002 containing the particulars of Lower Primary School Teachers whose names were referred to Monoharan Committee under Hojai Sub-Division and t he names of the petitioners also figured in the said list and their documents we re verified by the said Committee and their appointment was found to be legal. 5. In pursuance of W.T. Message dated 18.08.2005, the respondent No . 3 had furnished a list for regularisation of Lower Primary School Teachers by a letter dated 31.10.2005 and in such list, the names of the petitioners are the re. The respondent No. 3 had also made a list dated 31.12.2005 showing the vacan cy position of Lower Primary and Upper Primary Schools up to December, 2004 and the petitioners had submitted representation for adjusting their services agains t the vacant posts and for releasing their salaries and arrears. It is also stat ed by the petitioners that two out of the 22 petitioners in Civil Rule No. 4946 of 1996, namely, Gyasuddin Barbhuiyan and Mohan Chauhan were regularised and the y have also received their salaries. 6. The respondent No. 2 i.e. the Director of School Education, Assa m had filed an affidavit on the basis of a report submitted by the Deputy Inspec tor of Schools, Hojai, pursuant to an order dated 30.04.2009 passed by thi s Court. The affidavit recited that the petitioners were appointed on ad hoc basis for a period of three months by the Deputy Inspector of Schools, Ho jai on anticipated recommendation of the Sub-Divisional Advisory Board, Hojai an d their services were extended till decision was taken by the Sub-Divisional Adv isory Board, Hojai. The petitioners were not selected by the Sub-Divisional Leve l Education Advisory Board, Hojai. The services of the petitioners were disconti nued since 16.09.1996. There was an Employment Notice published on 02.12.2005 fo r filling up of the vacancies of Assistant Teachers in Lower Primary Schools and M.E./M.V./MEM Schools and it was not known whether the petitioners had applied in response to such Notice. The Sub-Divisional Selection Board, Hojai, in its me eting dated 13.11.1999 had prepared two selection lists approving appointment in the Lower Primary Schools as Primary Teachers and while the first list consiste d of 51 candidates, the second list comprised of 21 candidates and in the second list, the names of Gyasuddin Barbhuiyan and Mohan Chauhan figured and, accordin gly, they were appointed as Stipendiary Teachers of Lower Primary Schools. 7. It has also been pleaded that while the Government by a W.T. Mes sage dated 12.10.2005 directed the Deputy Inspector of Schools, Hojai, to furnis h a list with verification report of excess appointments between 1991-April, 199 6, the Deputy Inspector of Schools, Hojai, vide his letter dated 31.10.2005, for warded a list of teachers for regularisation. The Deputy Inspector of Schools, H ojai, had conducted an enquiry in the respective Schools of the petitioners to a scertain as to whether the petitioners are still working in the Schools and foun d that since the date of their discontinuance from service, they were left out o f their duties from the Schools. The out come of the enquiry in respect of all t he petitioners have also been incorporated in the affidavit. It is also poi nted out that the petitioner No. 2 and petitioner No.3 were not petitioners in C ivil Rule No. 4946 of 1996. 8. The writ petitioners have also filed an affidavit -in- reply to the affidavit-in-opposition filed by the respondent No. 2. In such reply, the pe titioners have stated that the stand of the respondent No. 2 is contrary and is not in conformity with the direction of this Court dated 31.03.1998 passed in Ci vil Rule No. 4946 of 1996. The report of the enquiry in respect of the petitione rs as detailed in paragraph 11 of the affidavit of the respondent No. 2 was cont ested and controverted, stating that such report has got no basis. In support of the fact that they are still working, they have made statements and in respect of most of the petitioners they have also annexed certificates to show that they are still working. 9. Heard Ms. S.P. Hussain, learned counsel for the petitioners. Als o heard D. Saikia, learned senior standing counsel appearing for the Education D epartment. 10. The learned counsel for the petitioners, drawing attention of th is Court to the Judgment dated 31.03.1998 passed in Civil Rule No. 4946 of 1996, submits that this Court had held that the orders impugned in the said petition i.e. 2 orders dated 16.09.1996 and the order dated 19.09.1996, by which the serv ices of the petitioners were stayed until further order, cannot be treated to be termination orders. By the said Judgment, though liberty was given to the respo ndent authorities to terminate the services of the petitioners in accordance wit h the relevant Rules, no termination orders have been issued and as a result, th e petitioners are still continuing in their services. The learned counsel has su bmitted that the petitioners having been appointed pursuant to an advertisement and selection, have been rendering their service for more than 15 years against vacant posts. The learned counsel further submits that though no statements had been made in the petition, the petitioners had also received salaries from the d ate of their initial joining from the months of May to August, 1995 till 16.9.19 96 and the same would be evident from the prayer made in the writ petition. She had also pointed out with reference to the statement of verification of teachers proposed to be regularised by the Government which was enclosed with the letter dated 31.10.2005 (Annexure-VI) to the writ petition, that there is no justifica tion for not regularising the services of the petitioners. It is, accordingly, c ontended that the respondent authorities are liable to be directed for regularis ation of their services and also to make payment of arrears salaries from 16.09. 1996 and also to pay the current salaries. 11. Mr. D. Saikia, learned senior standing counsel, Education Depart ment submits that the writ petitioner Nos. 2 & 3 were not the petitioners in the earlier round of litigation. The writ petitioners have not produced any documen t like select list etc. to lend legitimacy to their appointment. The Annexure-I series, which are the appointment orders of the petitioners, except the appointm ent order of the writ petitioner No.1, would indicate that the petitioners were appointed on the recommendation of the local M.L.A. and the president of Sub-Div isional Education Advisory Council and, therefore, the very basis of their entry into service is illegal. With regard to the writ petitioner No.1, the learned c ounsel submits that the order dated 30.03.2006 belies the contents of appointmen t order dated 25.05.1995 that there was a written recommendation from Sub-Divisi onal Educational Advisory Council for his appointment. Making a reference to the Judgment and order dated 31.03.1998 passed in Civil Rule No. 4946 of 1996, the learned counsel submits that this Court had directed for filling up of the vacan cies after re-advertisement, meaning thereby that the writ petitioners were no t in service. The learned counsel also argued that reading of the aforesaid Jud gment would make it clear that on the date of passing of the aforesaid Judgment, the writ petitioners were not in service. He has further contended that the Jud gment and order dated 31.05.1998 makes it clear that this Court required the Gov ernment to fill up the vacancies by regular selection after re-advertisement. Wh ile the liberty to terminate the services of the petitioners was given, it is no t necessary in the context of the appointment orders issued to the petitioners t o terminate their services, more so, when the orders impugned were not quashed a nd no direction for their continuance in service was passed. The writ petitioner s have not been able to establish a legal right enabling them to continue in ser vice, earn their salaries and have their services regularised, he submits. 12. Placing reliance on the Judgment of the Apex Court in (2009) 5 S CC 65 (State of Bihar versus Upendro Narayan Singh and others), the learned stan ding counsel brands the petitioners as the product of spoils system, disentitlin g them from obtaining equitable relief from this Court. He submits that though t he facts of this case are somewhat similar to the facts narrated in (iv), (vi), (vii), (x) and (xxxviii) in the case of Sudhendu Mohan Talukdar and others - ver sus - State of Assam and others, reported in 2006 (2) GLT 216, in view of the fa ct that the prayer of the petitioners in the earlier round of litigation for con tinuance of their services having not been granted, it is not necessary to send this case to the Committee which has been constituted to scrutinise the claim of the petitioners. The learned counsel submits that in Sudhendu Mohan Talukdar (S upra), this Court had held that there is no obligation on the part of the State to pay salaries to persons who are not validly appointed. He relies on the decis ion in the case of Ranjana Begum Laskar and another - versus- the State of Assam and others, reported in 2008 (4) GLT 278, to drive home the point that when the initial appointments are illegal and void, it is not always necessary to refer the matter to the Court appointed Committee. Relying on the decision in the case of Government of Andhra Pradesh and others -versus- K. Brahmanandam and others, reported in (2008) 5 SCC 241, the learned counsel contends that appointments ma de in violation of the mandatory provisions of statute is illegal, which cannot be regularised and as such issuance of a writ of mandamus for regularisation of the services of the petitioners would be in violation of the equality clause con tained in Articles 14 and 16 of the Constitution of India. The learned standing counsel also makes a reference to the case of Manashi Goswami -versus- State of Assam and others, reported in 2009 (1) GLT 729, to highlight that the State cann ot be held liable to pay the salaries to appointees made in violation of mandato ry provisions of the statute as no legal right had accrued to them. He also poin ts out that in Jagannath Kr. Dey and others -versus- State of Assam, reported in 2010 (3) GLT 632, this Court had wondered that unless there is an illegal emplo yment racket, it would not have been possible to make large scale illegal appoin tment by one person alone. He submits that in the instant case, materials on rec ord would demonstrate that mandatory provisions of Rule 3 of the Assam Elementar y Education ((Provincialisation) Rules, 1977, for short, the Rules, have been fl outed with impunity. 13. A perusal of the Judgment and order dated 31.3.1998 in Civil Rul e No. 4946/1996 indicates that the writ petitioners in the said case had prayed for quashing of the impugned Memo No. 1359-75 dated 16.9.1996, Memo No. D.I. (H) 147/95/1350-58 dated 16.9.1996 and Memo No. 1407-16 dated 19.9.1996 issued by t he Inspector of Schools, Hojai and for directing the respondents to allo w the petitioners to continue in service as School Teachers of Primary Schoo ls. This Court disposed of the writ petition with the following directions - The respondents shall pay to the petitioners for the period they were actually working as Assistant Teachers in the Schools subject to the verifications made b y the D.I. of Schools, Hojai. The impugned orders cannot be treated as terminati on orders. It shall be open to the respondents to terminate the services of the petitioners strictly in accordance with the relevant Rules. The Government shall take early steps for filling up vacancies after re-advertisement. Further, at the time of regular selection, the case of the petitioners, if they applied for such posts, shall be considered and there shall be relaxation of age limit to the extent of the period they have actually worked. 14. The appointment order dated 25.5.1995 of Mr. Biswajit Dey indica tes that he had been appointed on temporary basis on the written recommendation of Sub-Divisional Educational Advisory Council for a period of 3(three) months. His subsequent appointment order dated 30.1.1996 extended his service for a furt her period of three months with effect from 26.8.1995 to 24.11.1995, and thereaf ter, the order dated 30.3.1996 extended his service till receipt of the decision of the Educational Advisory Council. The order also recited that it was purely a temporary order and can be revoked at any time without citing any reason whats oever and without giving any prior notice to the incumbent. If there was recomm endation of the Sub-Divisional Educational Advisory Council as reflected in the order dated 25.5.1995, it is not understood as to why the appointment was extend ed till receipt of decision of the Sub-Divisional Educational Advisory Council. The appointment orders of Sabita Dey, Sukla Das, Kirindra Biswas, Dakshina Ranja n Das, Motiur Rahman, Moktar Ali and Fariz Ahmed Laskar demonstrate that such ap pointment orders were issued on the recommendation of the local MLA and/or the P resident of Sub-Divisional Educational Advisory Council. Rule 3 of the Rules pro vides for the stages beginning from inviting of applications to the appointment of the selected candidates in order of merit as assessed by the selection board constituted there under. The select list is to be forwarded to the Director of E lementary Education, Assam, by the selection board and on receipt of the same, t he Director of Elementary Education, Assam is required to authenticate such sele ct list and get it published in his own office notice board and also in that of Inspector of Schools, District Elementary Education Officer, Deputy Inspector of Schools and also in any other manner as the Government may deem fit. The nat ure of the appointment orders eloquently demonstrates that such appointment orde rs were not issued in accordance with law by following the prescription of Rule 3 of the Rules. No other materials have been produced by the writ petitioners to give even a semblance of legitimacy to their appointments. It is also noticea ble that this Court in Civil Rule No. 4946/1996 did not pass any order, either q uashing the orders impugned or directing the respondents to allow the petitioner s to continue in service as school teachers of Primary Schools, though prayed fo r. In fact, misleading and completely false statements have been made by the pe titioners that the orders impugned had been set aside by this Court. 15. The pronounced judicial opinion as would emerge from the authori ties cited at the bar is that appointments in public service has to be made in s trict compliance of the statutory Rules in force and if made in derogation and c ontravention of such Rules, the same would be void and non-est in law and conseq uently conferring no legal right to such an appointee to claim any salary and co ntinuance in service on the basis thereof, let alone regularization in service. In the context of the case, having regard to the true import of the Judgment dat ed 31.3.1998, not taking recourse to the option given to the respondents to term inate the services of the petitioners, will not change the complexion of the case to the benefit of the petitioners. When their entries into service is illeg al and void, the assertion of the petitioners that they are still continuing to serve the school, even assuming it to be correct, is, of no consequence. It woul d appear that the petitioners had, received salaries till 15.9.1996, i.e. immedi ately prior to the passing of the impugned orders staying their appointment orde rs. 16. The W.T. Message communicated by Memo No. EDN(KC)6/2005/119/90-A dated 12.8.2005 was issued by the Commissioner and Secretary, Education Departm ent to Inspector of Schools/District Elementary Education Officer/Deputy Inspect or of Schools requiring such officers to furnish list with verification report o f excess appointments between 1991 - April, 1996 in their respective Districts/S ub-Divisions, positively by 18.8.2005, to be initialled by them. The said W.T. M essage is also silent with regard to any regularisation proposed to be made by t he Government. Annexure-VI letter dated 31.10.2005 issued by the Deputy Inspecto r of Schools, Hojai, however, strangely and inexplicably recited that statements of verification of L.P. teachers are filled up as per prescribed pro-forma for the purpose of regularization by the Government. It is also mentionable that dat e of the W.T. Message was wrongly recorded as 18.8.2005 instead of 12.8.2005. 13 It is clear that there was no move by the Government to regularise the services of the petitioners, as contended by them. If anything, it only brings out the fa ct the petitioners were part of excess appointments made between 1991-April, 199 6. 17. For the reasons and discussions aforesaid, this Court is of the considered opinion that the claim of the petitioners for regularization of their services and claim of salary is not sustainable in law. Accordingly, the petiti on is dismissed. No costs.