Begum Lashkar & Ors Vs. State of Assam & Ors  INSC 536 (7
S. Rajendra Babu, & B.N. Agarawal. PATTANAIK,J.
this batch of appeals, the judgment of the Division Bench of Gauhati High Court
is under challenge.
Civil Appeal No. 278 of 1999, the appellants had been appointed as Assistant
Teachers of Primary Schools in the year 1990. But those appointments were
cancelled by the State Government, after giving show cause notice to the
appellants inasmuch as the appointments had been made, though no posts were
available and the appointments had been made, not in accordance with the
order of cancellation had been assailed in the High Court by filing writ
petition and the learned Single Judge by a cryptic order, without focusing
attention to the relevant criteria, allowed the same. The State had assailed
the legality of the order of the learned Single Judge by filing writ appeal and
the Division Bench having allowed the writ appeal and this Court against the
said order having granted special leave, the present appeal is before us.
Appeal Nos .296/99, 279-285/99 and 286/99 are by some of the teachers in the
primary schools, who were appointed on 29.9.94 and their services stood
terminated by the order dated 20th December, 1994. They filed writ petitions in the Gauhati High Court, which was pending
before the learned Single Judge. When the Division Bench was in session on writ
appeal filed by the State, as stated earlier, the said Division Bench withdrew
the writ petitions filed by the appellants from the Single Judge and disposed
them of, by the common order which is being assailed in these appeals.
Appeal Nos. 279-285/99 are also by some of the teachers, who were appointed and
whose services stood terminated and they had assailed the order of termination
by filing a writ petition before the learned Single Judge, which was brought
over by the Division Bench and disposed of, along with the batch of other
Appeal No. 287/99: In this appeal, the teachers before any order of
termination, apprehending termination had approached the High Court and while
the matter was pending before the learned Single Judge, the writ petition stood
transferred to the Division Bench and the Division Bench also disposed of the
same by the common order.
Appeal Nos. 288-294/99: The facts in these appeals are similar to the facts in
Civil Appeal No.
and in these appeals also, the order of the Division Bench of the Gauhati High
Court is under challenge.
Appeal No. 295/99: In this appeal against the order of termination, the
teachers had approached the High Court by filing a writ petition and the
learned Single Judge by his judgment dated 28th of April, 1994 in Civil Rule
No. 4280/91, dismissed the same. Against the said judgment of the learned
Single Judge, the teachers had carried appeal to the Division Bench and the
Division Bench by judgment dated 24th May, 1995, having dismissed the appeal, the appellants are before
this Court, special leave having been granted.
these appeals, the appellants claimed to have been appointed as Assistant
Teachers of different Primary Schools in the State of Assam. The recruitment to
the post of Primary Schools is governed by a set of rules called the Assam
Elementary Education (Provincialisation) Rules, 1977 (for short the Recruitment
Rules) which had been framed by the Governor of Assam in exercise of powers
conferred by Section 27 of the Assam Elementary Education(Provincialisation)
Act, 1974. The aforesaid Recruitment Rules provide for method of recruitment,
payment of liabilities of the Board and management of Elementary Schools. Rule
3 of the Recruitment Rules provides the method of recruitment. The said Rule 3
is extracted hereunder in extenso:
of recruitment. In the month of January every year the D.I. shall invite
applications in prescribed form for vacancies of elementary school teachers
which are likely to occur in the year in his establishment.
(a)A candidate shall be within the age limit on 1st January of the year of
recruitment as prescribed by Government.
Upper age limit shall be relaxed in favour of Scheduled Castes and Scheduled
Tribes as per Rules made by Government.
/High School /School Leaving Certificate Examination or any other examination
of equivalent standard shall be the minimum qualification for the post of
teacher in Lower Primary and Junior Basic Schools preference being given to
candidates trained in Senior Basic, Normal and Junior Basic Training Courses.
M.V. and Senior Basic Schools qualification shall be Matric, Normal or P.U. or Intermediate or its
A candidate shall furnish the certificates of character from (a)the Principal,
Academic Officer of the School/College last attended by the candidate and (b) a
respectable person who is well acquainted with (not related to) the candidate.
Committee. There shall be a Selection Committee in each educational sub- Division
to be constituted by the Sub-Divisional Level Advisory Board for Elementary
Education. The Chairman of the Sub-Divisional Level Advisory Board for
Elementary Education and the D.I.
Schools shall be the Chairman and Secretary of the Selection Committee
receipt of applications, the Selection Committee shall scrutinise the mark
sheets and other necessary testimonials of the candidates and prepare a list of
candidates for interview by the Selection Committee.
Selection Committee shall then finalise the list of successful candidates in
order of merit after interview and shall put up the list before the Board for
approval. While approving the list, the Board shall be guided by the declared
policies of the Government and instructions issued by the Government from time
approval of the list by the Board the same shall be sent to the Director of
Elementary Education for his final approval.
Deputy Inspector of Schools will appoint the selected candidates in order of
merit from the list approved by the Director of Elementary Education as and
when required as per Government Rules and Government instructions for the time
being in force.
list shall be valid for one year unless its validity is extended by Government.
There shall be reservation of posts for Scheduled Castes and Scheduled Tribes
as per Rules made by Government from time to time.
fitness. (a)A candidate shall be of sound health both physically and mentally
and free from organic defects or bodily infirmity likely to interfere with
his/her duties. (b)A candidate shall be required to undergo medical examination
and to produce a medical certificate of fitness.
appointed candidate may be required to undergo such in-service training as
Government may decide from time to time.
view of the allegations that large scale irregular appointments had been made
by some officers of the Government, without following the prescribed procedure,
the Division Bench of Gauhati High Court, while the writ appeals as well as the
writ petitions brought over by the Division Bench from the Single Judge of the
said High Court were pending, a direction had been issued by the High Court for
holding an inquiry and submitting a report in view of the alleged gross
mal-practices adopted in different Districts.
inquiring into the manner in which these appointments had been made, the
Inquiry Committee had submitted a report that the appointment of these teachers
had not been made in accordance with the statutory rules and without any
advertisement calling for applications and without any constitution of the
Selection Committee and without any interview, appointments had been made as
against the allotted posts under the orders of the then Chief Minister and
communicated by the then Director of Elementary Education and/or the Secretary
in the Education Department. The Division Bench of the Gauhati High Court came
to the conclusion that the initial appointment of these teachers itself was not
only in contravention of the statutory rules, but against all cannons of
fairness and the appointment letters were cancelled after giving show cause
notice, rules of natural justice having sufficiently complied with, and in such
circumstances, the initial appointment being dubious in nature, the issuance of
appointment letters will not confer any right on the appointees. Since the
Division Bench was hearing matters relating to appointment of Primary Teachers
in different Districts, it came to hold that the corrupt practices were not
confined to a particular District of the State but spread over the length and
breadth of the State right through Cachar, Jorhat, Darrang etc. and the large
number of back- door entries of teachers were made and appointed de hors the
Rules. Ultimately, therefore the Division Bench in the impugned judgment came
to the conclusion that:
appointments conceived in fraud and delivered in deceit cannot be regularised
was no selection, no interview, or fake or ghost interviews, tampering with
records and fabricating documents. In such circumstances as pointed out by the
Supreme Court in Krishan Yadav vs. State of Haryana, AIR 1994 SC 2166, an inference can be drawn that all was motivated by
extraneous considerations. The entire process of making appointments is
stinking. Really speaking, the moment posts were allotted to a particular
District, it was free play for all and the net result is these appointments.
norms of procedural fairness had been thrown to winds, the rules were given a
convenient go-bye. Article 14 and 16 of the Constitution violated with
impunity. These petitions are, therefore, liable to be dismissed and
accordingly dismissed with no order as to costs." The appeals filed by the
State, therefore, were allowed and in the cases where the writ petitions had
been dismissed by the learned Single Judge and the appeals had been preferred
by the teachers, those appeals stood dismissed. The State Government was
directed to streamline the process of selection at its earliest and while
making such selection, it was also further directed that these teachers would
get an opportunity to offer themselves as candidates, subject to their fulfilment
of conditions of eligibility and if necessary, the age should be relaxed, as
permissible under the Rules.
Sanjay Parikh, the learned counsel, appearing for the appellants in Civil
Appeal No. 278/99, vehemently contended before us that the poor teachers should
not be penalised, since they had been appointed against available vacant posts
by a competent authority and since they do possess the requisite qualification
for being appointed.
also vehemently contended that the order in favour of these teachers by the
learned Single Judge having been assailed by the State, after long delay of
eleven months and objection for condonation having been filed, the Division
Bench was not justified while interfering with the order of the learned Single
Judge and on that ground alone, the order of the Division Bench is liable to be
interfered with by this Court. He also further submitted that in view of the
fact that these teachers have been continuing for a considerable number of
years, this Court should direct for adjustment of equities in a manner as was
done by this Ors., 1997(2) SCC Page 1, so that while considering these teachers
for the posts pursuant to the directions of the Division Bench of the High
Court, due weightage should be given for the experience gained by these
teachers who had been teaching for a number of years. In support of this
contention, Mr. Parikh also relied upon a decision of this Ors., 1998(9) S.C.C.
71, wherein this Court had indicated that the appointees deserve sympathetic
consideration in getting appointment against sanctioned posts on humanitarian
consideration. The learned counsel also placed reliance on the judgment of this
Court in H.C.
High Court, Bangalore and Ors., 1991 Supp.(2) S.C.C. 421,
where-under this Court reviewed the earlier orders of the Court and treated the
services of the appointees to be regularly appointed.
Chandra, the learned senior counsel appearing for the appellants in C.A. No.
279-285/99 and C.A. No. 286/99, on the other hand contended that the teachers
involved in these appeals had applied for, pursuant to an advertisement in
Newspaper Dainik Azone and in fact 5474 teachers had been appointed under a
special project called Operation Black Board and for such appointments, the
provisions of the Recruitment Rules have no application. According to him, a
large scale appointments having been made and such appointments having been
made after entertaining applications, pursuant to an advertisement and after
considering the appointees suitable by an authority, their appointments could
not have been terminated and the Division Bench was in error in disposing of
the writ petitions filed by them without adverting to the special features of
the case, as narrated. According to Mr. Sudhir Chandra, so far as the
appointees in these appeals are concerned, there has neither been any back door
entry nor has there been any favouritism shown by the authorities, and
therefore, their appointments could not have been cancelled and /or terminated
within three months of the appointment.
M.N. Krishnamani, the learned senior counsel, appearing for the appellants in C.A.No.
287/99 also contended that the teachers involved in the said appeal had
approached the High Court, apprehending their termination and, therefore, their
writ petitions could not have been disposed of by the Division Bench by
bringing forth their case, without adverting to the grounds on which the
teachers approached the High Court, apprehending termination and he, therefore,
submitted that the matter should be remitted back to the learned Single Judge of
the Gauhati High Court.
Malhotra, appearing for the appellants in C.A. No. 295/99 on the other hand
contended that so far as the recruitment of the appellants in this appeal is
concerned, there was due advertisement and there was due selection and
appointments had been made by the Elementary Advisory Board and as such there
was substantial compliance of the provisions of the Recruitment Rules and
consequently, the appointments involved in the said appeal could not have been annuled
by the Division Bench.
view of different submissions made by different set of counsel, as referred to
earlier, we have examined in detail the report of the Inquiry Committee as well
as different orders passed by the High Court and it appears to us that no
special case had been made out by the appellants in C.A. No. 296/99, C.A. Nos.
279-285/99 and C.A. No.
in their writ petitions before the High Court, making out a case that these
appointments had been made under a special project called Operation Black Board
and as such, the provisions of the Recruitment Rules need not be complied with
and the appointments had been bona fide made by the competent authority and the
appointees possess the requisite qualification. Even in the special leave
petition in this Court, no such stand has been taken. In this view of the
matter, we are constrained to agree with the conclusions of the Division Bench
of the High Court that the appointments were made to posts of Assistant
Teachers of Primary Schools and such appointments are governed by the statutory
Recruitment Rules, which rules have been framed by the Governor in exercise of
the power conferred under the Assam Elementary Education (Provincialisation)
Act, 1974. We also do not find any substance in the argument of Ms. Indu Malhotra
that the appointments made in C.A. No. 295/99 were in substantial compliance of
the Recruitment Rules inasmuch as the judgment of the Division Bench clearly
indicates that the counsel appearing for the teachers conceded that the
appointments had been made on the vacant posts but the same were not done in
accordance with the provisions of Rule 3 of the Rules of 1977. In view of the
aforesaid concession of the appellants through their counsel before the
Division Bench, it would be difficult for us to entertain the contention of Ms.
Indu Malhotra that there has been substantial compliance of the provisions of
the Recruitment Rules. As has been stated earlier, while the matter was pending
before the Division Bench, the Court was persuaded to appoint an Inquiry
Committee, in view of the allegations of gross irregularities and illegalities
committed in the matter of appointment of teachers in different primary schools
in different Districts. The said Committee has gone into details and recorded
findings that the provisions of the Recruitment Rules have not at all been
High Court even has gone to the extent of recording a finding that there has
been no selection, no interview or even fake or ghost interviews and there has
been tampering of records and fabricating of documents. Since the appointments
to the posts are governed by a set of statutory rules, and the prescribed
procedure therein had not been followed and on the other hand appointments have
been made indiscriminately, immediately after posts were allotted to different
Districts at the behest of some unseen hands, such appointments would not
confer any right on the appointee nor such appointee can claim even any
equitable relief from any Court. That apart, the appointments stood annuled
hardly after six months from the date of appointments and the appointees cannot
claim to be continuing for an unusual long period, so as to claim a
humanitarian consideration in their case. The decisions cited by Mr. Parikh, in
support of his contention, not only do not support his contention but on the
other hand, appears to us to be against his contention. In Ashwani Kumars case,
1997(2) S.C.C.1, this Court in no uncertain terms held that as the appointments
had been made illegally and contrary to all recognised recruitment procedures
and were highly arbitrary, the same were not binding on the State of Bihar. This Court further went on to hold
in the aforesaid case that the initial appointments having been made contrary
to the statutory rules, the continuance of such appointees must be held to be
totally unauthorised and no right would accrue to the incumbent on that score.
The Court had also held that it cannot be said that principles of natural
justice were violated or full opportunity was not given to the employees
concerned to have their say in the matter before their appointments were
recalled and terminated. But, while dismissing the appeals, the Court had
issued certain directions as to how the appointments should be made in future
and how the case of the illegally recruited teachers should be dealt with. In
the facts and circumstances of the present case, we are unable to persuade
ourselves to give any such direction, other than the directions given by the
Division Bench of the High Court regarding condonation of over age inasmuch as
none of the appointees have been allowed to continue for any long period beyond
six months and wherever they have been allowed to continue, it is because of
the judgment of the learned Single Judge. In this view of the matter, question
of issuing any direction for adjustment of equities in favour of the appellants
would not arise. It may not be out of place to mention at this stage that even
though, the appointments made in favour of the appointees indicated clearly
that the appointment is purely temporary and can be terminated without any
notice but before cancellation of the appointments, the Government did issue
notice to the appointees and it is only after that, the termination orders had
been issued. In the aforesaid premises, we do not find any merit in any of
these appeals and the appeals accordingly fail and are dismissed, but in the
circumstances there will be no order as to costs.