2020 Supreme(Gau) 400

GAUHATI HIGH COURT
Mir Alfaz Ali, J.
Dekter Gadi - Appellant
Versus
State of Arunachal Pradesh - Respondent
Writ Petition (Civil) No. 152 of 2018
Decided On : 04-03-2020

The appointment of the petitioners against regular vacancies of TGT and PRT in violation of the statutory rules governing the appointment was illegal and violative of Articles 14 and 16 of the Constitution, and as such, they would not be entitled to protection under Article 311 of the Constitution.

Headnote:

REGULARIZATION/APPOINTMENT - ARUNACHAL PRADESH TEACHERS' ELIGIBILITY TEST (APTET) AND CENTRAL TEACHERS' ELIGIBILITY TEST (CTET) - WITHDRAWAL OF REGULARIZATION - VIOLATION OF ARTICLE 311 OF THE CONSTITUTION - PRINCIPLE OF NATURAL JUSTICE - ARTICLE 14 AND 16 OF THE CONSTITUTION - EDUCATION RULES, 2010 - APPOINTMENT AND CONDITION OF SERVICE OF TRAINED GRADUATE TEACHERS (TGT) AND PRIMARY TEACHERS (PRT) - CONTRACTUAL TEACHERS UNDER SARVA SHIKSHA ABHIYAN (SSA) SCHEME - POLICY DECISION OF THE GOVERNMENT - DOCTRINE OF OCCUPIED FIELD - REASONING IN ORDERS - JUDICIAL REVIEW - WRIT OF MANDAMUS - VOID ORDERS - SUBORDINATE LEGISLATION - DELEGATED LEGISLATION - RULE-MAKING AUTHORITY - CONDITIONS OF SERVICE - VIGILANCE DEPARTMENT - CHIEF MINISTER - SECRETARY, EDUCATION - SECRETARY, VIGILANCE - OFFICE NOTE - OFFICE RECORD - FILE NOTING - APPOINTMENT LETTERS - CABINET APPROVAL - OFFICE FILES - ARBITRARY APPOINTMENT - ANOMALIES - OFFICE NOTE - APPROVAL OF THE MINISTER - APPOINTMENT HURRIEDLY - COMPLAINT - VIGILANCE ENQUIRY - SUBSTANTIAL REASON - PRINCIPLE OF NATURAL JUSTICE - WRIT OF PROHIBITION - VOID APPOINTMENT - ILLEGAL ORDER - RESTORATION OF ILLEGAL ORDER - CONFIRMATION OF OFFICIALS - VOID ORDER - REDUCTION IN RANK - PUNISHMENT - ARTICLE 311(2) OF THE CONSTITUTION - INDEPENDENT APPOINTING AUTHORITY - CONTRACTUAL TEACHERS - TERMS AND CONDITIONS OF APPOINTMENT.

Fact of the Case:

The petitioners were appointed on a contractual basis as Assistant Teachers and Junior Teachers respectively under the scheme of Sarva Shiksha Abhiyan (SSA). The Assistant Teachers were appointed for teaching students of Class I to IV and junior teachers were appointed for teaching students of Class VI to VIII. Approximately 6850 teachers in both categories, i.e., Assistant Teachers and Junior Teachers were appointed on a contractual basis under the SSA in the State of Arunachal Pradesh and such appointment started from the year 2003. On 21-06-2017 the Chief Minister of Arunachal Pradesh announced a proposal for appointment of approximately 1000 nos. of contractual teachers working under the SSA by way of regularization in a phased manner, against the regular vacancies in the Department of Education. Pursuant to such announcement, the Joint Director, Elementary Education, Govt. of Arunachal Pradesh directed the Deputy Directors of Schools, Education Department of various districts to furnish the list of the contractual teachers working under the SSA scheme, who have cleared the Arunachal Pradesh Teachers'' Eligibility Test or Central Teachers Eligibility Test (APTET/CTET). Accordingly, district-wise list of such teachers working under the SSA, who were found suitable for regularization was prepared, which was approved by the Government of Arunachal Pradesh vide the U.O. No. 279 dated 07-12-2007. On the basis of the said approval of the Government, all the petitioners (122 in numbers), who were working under the SSA, on contractual basis, were regularized and appointed against the permanent vacancies. At the relevant time there were only 122 regular vacancies, of which 63 for Trained Graduate Teachers (TGT) and 59 for Primary Teachers (PRT). On the basis of such regularization all the petitioners have joined their new posts of trained graduate teachers as well as primary teachers respectively after resigning from their existing posts of contractual teachers under the SSA scheme. In the meantime, a representation dated 18-12-2017 was filed by one Jumpe Keyu (Respondent No. 18), who was also an APTET qualified contractual teacher under the SSA, alleging that the regularization and appointment against regular vacancies were done on the basis of pick and choose basis and without following any procedure and also without maintaining seniority. Upon receiving the representation submitted by Jumpe Keyu, who claimed to have represented all the TET qualified teachers working under the SSA, the Chief Secretary of the State of Arunachal Pradesh made a note on the representation, stating that the allegations made therein were serious and directed the Secretary, Department of Education to submit a detailed report on the said representation. After 3(three) days of submitting the representation, the Secretary, Vigilance Department wrote a letter dated 21-12-2017 to the Secretary, Education, Govt. of Arunachal Pradesh stating that the Vigilance Department was examining the matter pertaining to regularization of 122 nos. of contractual teachers working under the SSA and Chief Minister also vide order dated 21-12-2017 asked to withdraw the order of regularization of said 122 nos. of SSA teachers. Accordingly on the same day, i.e., on 21-12-2017, the Secretary, Education Department passed an order withdrawing the earlier order of regularization dated 07-12-2017, whereby, the petitioners were regularized against vacancies of 63 trained graduate teachers and 59 primary teachers. Aggrieved by the said order withdrawing the order of regularization, the petitioners have filed the present series of writ petitions.

Finding of the Court:

The appointment of the petitioners against regular vacancies of TGT and PRT in violation of the statutory rules governing the appointment was illegal and violative of Articles 14 and 16 of the Constitution, and as such, they would not be entitled to protection under Article 311 of the Constitution. Therefore, the question of violation of Article 311 of the Constitution does not arise.

Issues: Whether the impugned orders withdrawing the regularization/appointment of the petitioners was violative of Article 311 of the Constitution ?

Ratio Decidendi: 1. The appointment of the petitioners as TGT and PRT by way of regularization was illegal and violative of the Education Rules, 2010 governing the appointment and condition of service of the TGT and PRT. 2. The appointment of the petitioners was also violative of Article 14 and 16 of the Constitution. 3. When the rule governing the appointment and condition of service is made either under Article 309 of the Constitution or under any statute made by the legislature, such rule cannot be superseded by any executive instruction or policy decision of the govt. under Article 162 of the Constitution. 4. A policy decision of the Govt. or even a Scheme under Article 162 of the Constitution shall not prevail over statutory rules. 5. Any departmental letter or executive instruction cannot prevail over statutory rule and constitutional provisions. 6. Any appointment, thus, made without following the procedure would be ultravires. 7. The impugned orders were not illegal as authority did not record any reason for taking such a drastic action of withdrawing the regularization/appointment of the petitioners and therefore, non-recording of reason in the orders vitiates the orders of withdrawal. 8. The impugned order cannot be held to have been vitiated for want of recording reason. 9. When the order of regularization/appointment of the petitioners, TGT and PRT respectively, was illegal and void for being contrary to the rule and violative of the Article 14 & 16 of the Constitution, there could not be any other alternative, but to withdraw/cancel the regularization/appointment of the petitioners, and as such, the question of giving opportunity to the petitioners of being heard or following the principles of natural justice would have been empty formalities. 10. Issuance of writ striking down the order impugned, would in the present case obviously amount to perpetuate the previous illegal action.

Final Decision: All the writ petitions stand dismissed.