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GAUHATI HIGH COURT
P.C.Phukan, J.
Nirmali Bora -Appellant
Versus
State of Assam -Respondent
W.P.(C) No. 8764,8492,8509,8507,8420, 8497, 8496, 8493, 8508, 8501, 8457, 8419, 8437, 7375, 8461, 8463, 7869, 8440, 8535, 6689, 7829, 7347, 8550, 850
Decided On : 08-04-2002
Operation Black Board - Regularisation of Services - 28.12.1996, 8.3.2001, 31.3.2002 - The court directed the Govt. of Assam to regularise the services of the writ petitioners appointed as teachers against the posts created under the Operation Blackboard Scheme by adjusting/absorbing them in regularly sanctioned posts/vacancies of Assistant Teachers of LP/Middle Schools of Assam in a phased manner and not to terminate their services pending such regularisation allowing them to continue in service beyond 31.3.2002 by sanctioning retention of these temporary posts created under the Operation Blackboard Scheme till completion of the process of such regularisation. The State respondents were further directed to pay the monthly salary to the writ petitioners along with arrears for the period they have been found actually rendering service as teachers in the respective schools, within three months from the date of this order. It was also open to the State Government to take necessary action following due procedure for termination of services in individual cases if, on enquiry any appointment is found to have been made "in violation of the guidelines like excess appointments or appointments in the manner other than the prescribed format".
Fact of the Case:
The petitioners applied for teaching positions in Assam schools in response to an advertisement. After the selection process, the State Government imposed a ban on any fresh appointment, leaving the advertised posts vacant. Subsequently, the State Government created temporary teaching posts under the Operation Black Board (OBB) Scheme, with a stipulation that the appointments would be temporary and would continue until 31.3.2002. The petitioners were appointed against these temporary posts and sought regularisation of their services in regularly sanctioned posts, and not to terminate their services pending regularisation.
Finding of the Court:
The court found that the State Government's decision to create temporary teaching posts under the OBB Scheme only for a limited period was unjustified, and the financial difficulties faced by the State Government could not be a ground for discriminating against the petitioners. The court directed the State Government to regularise the services of the petitioners and pay their salaries along with arrears for the period they had been actually rendering service as teachers.
Issues: The main issue was whether the State Government was justified in creating temporary teaching posts under the OBB Scheme only for a limited period, and whether the petitioners' appointments could be regularised in regularly sanctioned posts.
Ratio Decidendi: The court held that the State Government's decision to create temporary teaching posts only for a limited period and the financial difficulties faced by the State Government could not justify discriminating against the petitioners. The right to elementary education is a fundamental right and is not subject to the limit of economic capacity of the State.
Final Decision: The court directed the State Government to regularise the services of the petitioners and pay their salaries along with arrears for the period they had been actually rendering service as teachers.
As agreed to by learned counsel for the petitioners and learned Advocate General, Assam appearing for the State respondents, the above mentioned batch of writ petitions, raising the similar question of facts and law, are taken up for analogous hearing for final disposal and are being disposed of by this common judgment and order.
2. I have heard Mr P.K. Goswami, learned senior counsel for the petitioners in WP(C)Nos. 13, 14, 15, 16, 17, 18, 19, 20,21,22,23 and 8764 of 2001 as well as Mr A.M. Mazumdar, learned senior counsel appearing for the petitioners in WP(C) Nos. 8419, 8420, 8457, 8493, 8496, 8497, 8501, 8503, 8507, 8508 and 8509 of 2001. The learned counsel for the petitioners in the remaining writ petitions adopted the arguments advanced by learned counsel Mr P.K. Goswami and Mr. A.M. Mazumdar, I have also heard Mr A.K. Phookan, learned Advocate General, Assam appearing for the State respondents in all the writ petitions and Mr M. Sarania, learned Standing Counsel for the Bodoland Autonomous Council.
3. On 28.12.1996 the Director of Elementary Education, Assam issued an-advertisement (Annexure-1 to WP(C) No.-3764/2001) inviting applications from intending candidates for about 7500 posts of Assistant Teachers lying vacant in the provincialised MV/ME/ME Madrassa/Senior Basic/Junior Basic/Junior LP Schools of the different districts of Assam prescribing regular time scales of pay. The advertisement stated, inter alia, "The selection will be made on the basis of a test, qualification and experience. The selection will depend on previous experience as Assistant Teacher, marks secured in different examination and the oral test. The last date of submission of the applications is 26.1.1997". The petitioners accordingly submitted their applications. They appeared before the Sub-Divisional Level Advisory Boards for selection. But after the selection process was over, the State Government imposed a ban on any fresh appointment and posts advertised remained vacant.
4. Earlier, in 1987 the Union Ministry of Human Resources Development introduced the Centrally sponsored scheme of "Operation Black Board" ("OBB" for short) laying down the minimum level of facilities to be provided in all Primary Schools of the States such as provision for at least two teachers in every Primary School. On 28.4.98 the Govt. of Assam vide a letter (Annexure-8 to the WP(C) No. 8764/2001) created 4040 posts of Assistant Teachers in regular time scales of pay under the OBB Scheme stating therein that:
".... these posts will be abolished after the 9th Plan period is over and the incumbents will have to be adjusted/absorbed in existing vacancies as the Government of India will not reimburse the expenditure after end of the 9th Plan."
5. The 9th Plan ends on 31.3.2002. In paragraph 13 of the affidavit-in-opposition filed on behalf of the State respondents sworn by the Commissioner to the Govt. of Assam, Education Department, Dispur it is stated:
".... the teachers who were appointed against the 4040 OBB posts were adjusted against vacant posts in phases as per terms laid down during creation of the said posts. 2378 posts out of these 4040 posts were actually filled up and the rest of the posts were abolished."
6. About three years after creation of the first batch of 4040 posts under the OBB Scheme on 28.4.1998, the State Govt. by another letter dated 8-3-2001 (Annexure-2 to WP(C) No. 8764/2001) created 7066 posts of LP and Middle school Teachers under the OBB Scheme in the fixed pay of Rs. 1900/- per month for LP and Rs. 2,000/- for Middle Schools for a period from 8.3.2001 to 31.3.2002 on condition that :
"If the GOI is not agreed to continue these posts beyond the Ninth Plan period under CSS then these posts would stand abolished from 1.4.2002."
7. On the same day (8.3.2001) the State Govt. by a WT message (Annexure-5 to WP(C) No. 8764/2001) lifted the ban on appointment on fixed pay teachers of LP/ ME/MV/MEM schools created under the OBB Scheme only.
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