WPC No.5002/2012 Page 1 of 21

THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM AND

ARUNACHAL PRADESH)

Writ Petition (C) No. 5002 OF 2012

Kamrup District Siksha Sarathi (I) Association, Represented by its President and Secretary, namely, 1. Shri Surjya Kumar Boro, Son of Lt. Pulin Chandra Boro, Village-Batakuchi, P.O.-Digaru, District-Kamrup (M), Assam, President, Kamrup District Siksha Sarathi (I) Association. 2. Shri Khiralal Boro, Son of Shri Arjun Boro, Village-Malaybari, P.O.-Malaybari, District-Kamrup, Assam, General Secretary, Kamrup District Siksha Sarathi (I) Association. ………… Petitioners

-Versus-

1. State of Assam, Represented by the Secretary to the Govt. of Assam, Education Department, Dispur, Guwahati-6. 2. Assam Sarba Siksha Abhijan Mission, Represented by its Mission Director, Kahilipara, Guwahati – 19. 3. Director of Elementary Education, Assam, Kahilipara, Guwahati-19. 4. Deputy Commissioner, Kamrup (M), Guwahati. 5. District Elementary Education Officer-cum- District Mission Coordinator, Kamrup, Assam. ….…… Respondents

WPC No.5002/2012 Page 2 of 21

BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY

HON’BLE MR. JUSTICE UJJAL BHUYAN HON’BLE MR. JUSTICE PARAN KUMAR PHUKAN

For the petitioners : Mr. KN Choudhury, Sr. Advocate. Mr. BK Kashyap, Advocate. For the respondents : Mr. PN Goswami, Standing Council, SSA. Date of Hearing : 12.09.2017. Date of Judgment : 26.10.2017.

Judgment & Order

Ujjal Bhuyan, J

Heard Mr. KN Choudhury, learned Senior Counsel assisted by Mr. BK

Kashyap, learned counsel for the petitioners and Mr. PN Goswami, learned

Standing Counsel, Education Department for the respondents.

02. This matter is before us in the Full Bench following the referral order

passed by the learned Single Judge on 30.09.2015.

03. In this writ petition, Kamrup Zilla Siksha Sarathi (I) Teachers Association,

represented by its President and Secretary, namely, Sri Surjya Kumar Boro and Sri

Khiralal Boro, respectively is the petitioner. Petitioner represents Siksha Sarathis of

Kamrup district and has preferred the present writ petition in representative

capacity highlighting the grievance of the Siksha Sarathis of Kamrup district and

seeks the following reliefs: -

a direction to the respondents to formulate a scheme

for absorption of the Siksha Sarathis in any regular post or

capacity under the State as in the case of Siksha Karmis in

Assam as well as in the case of similarly situated employees

in the State of Karnataka, Tamil Nadu, West Bengal, Tripura,

Arunachal Pradesh etc.

WPC No.5002/2012 Page 3 of 21

In other words, the prayer made is for directing the respondents to

formulate a scheme for absorption of the Siksha Sarathis in the State of Assam

in regular service of the State.

04. Facts relevant for adjudication of the case have been summed up by the

learned Single Judge in the referral order dated 30.09.2015. For ready reference,

relevant portion of the referral order dated 30.09.2015 dealing with the facts of the

case are extracted as under: -

“ 2. It would appear that Government of India in the Ministry of Human Resource Development Department, Department of Elementary Education & Literacy, introduced a programme for Universal Education in India under the 9th Five Year Plan with the nomenclature “SARVA SIKSHA ABHIJAN” (“SSA” for short) aiming to achieve the long cherished goal of “Universalization of Elementary Education (UEE) through a time bound integrated approach in partnership with States to change the face of the Elementary Education to all children in the age group of 6-14 years of age by 2010. The objective of SSA is that all children must complete 5 years of primary schooling by 2007; all children must complete 8 years of schooling by 2010; focussing emphasis on education for life; must bridge all gender and social category gaps at primary stage by 2007 and at elementary education level by 2010 as well as universal retention by 2010. The statute mandates the financial resource and responsibility for implementation of the scheme for which a sum of ?60,000 crores was estimated from the Central Budget and State Level Departments for the next ten years, which would be worked out after finalization of District Level Elementary Education Plans. The financial norms as has been provided initially under the statute, is to be shared by the Central and State Governments in 85:15 during the 9th Plan, 75:25 during the 10th Plan and thereafter by 50:50. The financial norms further provide that regarding sharing of costs, undertaking had to be taken from the State Government. Similar principle has been laid down in the statute as regards support for teachers' salary. Thus, the process under the SSA, which started during the 9th Plan period, is a continuous process and would carry on spontaneously. 3. According to the petitioners, they were appointed under the aforesaid scheme in 2004 after having been selected and appointed through a regular selection procedure

WPC No.5002/2012 Page 4 of 21

where all eligible candidates applied: they are not backdoor entries and were thus selected through a process consistent with Articles 14 and 16 of the Constitution of India. As to the manner in which they were appointed on contractual basis for a period of eleven months and how they continue remain there till now are pleaded by them in para 10 of their writ petition, which are reproduced hereunder:

“10. That the appellants beg to state that thereafter advertisement was made in the Newspapers for filling up of posts of Shiksha Sarathis-I, on the terms and conditions set forth above. The petitioners had duly applied for the posts of Shiksha Sarathis-I, and on being found eligible, they were all selected by the Selection Committee. They have been appointed on merit basis against one teacher school as Shiksha Sarathi for which they had to sign a contract agreement with the School Management Committee for engagement for a period of 11 (eleven) months. However, although the agreements were signed on 13-9-2004, virtually their engagements continued up to 2010 and even as on date the petitioners are continuing to render service.”

4. It is the contentions of the petitioners that they have been rendering their services for the last 7/8 years and have undergone training and acquired the necessary experience. The State Government is quite aware of the policy of the Central Government that the SSA is a continuous process and that they cannot simply discontinue the services of the existing Shiksha Sarathis and/or replace them by another of persons by taking the plea of their contractual appointment with artificial break after every 11 months, and instead may frame a scheme for reglarisation of their services as has been provided in the statute of SSA of Tripura, Arunachal Pradesh, West Bengal, Punjab, etc. It is interesting to note that the State-respondents in their affidavit-in-opposition dated 26-2-2015 do not deny that the essential part of the pleading of the petitioners that the petitioners were appointed as Shiksha Sharathi after the posts were duly advertised and they underwent due selection process consistent with Articles 14 and 16 of the Constitution. True, they were given only contractual appointment for a period of eleven months.”

WPC No.5002/2012 Page 5 of 21

05. Learned Single Judge, however, noted that in Writ Appeal No.222/2012

(Arup Kumar Bhuyan Vs. State of Assam), a Division Bench of this Court had

rejected the plea of regularisation of Siksha Sarathis.

06. At this stage, it may be mentioned that Arup Kumar Bhuyan and similarly

situated Siksha Sarathis had approached this Court for regularisation of their

service by filing a writ petition. Learned Single Judge had dismissed the writ

petition by holding that since appointment of the Siksha Sarathis was for a fixed

period, no right to seek regularisation accrued in their favour. Learned Single

Judge relied on an earlier decision of this Court dated 07.02.2012 in WP(C)

No.3743/2011 (Budheswar Gayary Vs. State of Assam). Arup Kumar

Bhuyan and others thereafter preferred writ appeal, which was registered as WA

No.222/2012. By order dated 03.08.2012, a Division Bench of this Court dismissed

the writ appeal by holding that since the order of the learned Single Judge was

based on an earlier judgment of this Court, which was consistent with the decision

of the Supreme Court in State of Karnataka Vs. Umadevi, reported in (2006)

4 SCC 1, no ground was made out to interfere with the order of the learned Single

Judge.

07. The writ petition has been contested by the respondents by filing counter-

affidavit. Respondents have relied upon the Division Bench order dated

03.08.2012. It is contended that prayer made in the present writ petition has

already been rejected by this Court. Writ petition raises disputed questions of fact

of civil nature. Sarba Siksha Abhiyan Mission (SSA) is a registered society

mandated to implement the schemes of the Central Government. Therefore, SSA

cannot frame a scheme for absorption of the petitioners. Petitioners had joined

their contractual services after agreeing to the terms and conditions of such

engagement. As such, they cannot claim absorption or regularisation of their

services. Individual agreements governing the engagement of Siksha Sarathis

contained an arbitration clause to decide a dispute of the nature raised by the

petitioners in the present writ petition.

WPC No.5002/2012 Page 6 of 21

08. Learned Single Judge thereafter extensively referred to the decision of the

Supreme Court in Umadevi (supra), more particularly, paragraphs 52, 53 and 54

thereof.

09. Learned Senior Counsel appearing for the petitioners contended that after

the Division Bench judgment dated 03.08.2012, Supreme Court in the case of

Nihal Singh Vs. State of Punjab, reported in (2013) 14 SCC 65 has clarified

that Umadevi (supra) was dealing with appointments made without following any

rational procedure in the lower rungs of various services of the Union and the

States and that Umadevi (supra) would apply only where persons were initially

chosen to be appointed to the exclusion of eligible candidates. Relying upon Nihal

Singh (supra), it was contended that if a selection process is designed in the

context of any situation prevailing at the relevant point of time in a manner where

all eligible candidates could apply and be considered, such a process cannot be

said to be irrational or in violation of Articles 14 and 16 of the Constitution.

Reference was also made to the decision of the Supreme Court in Amarendra

Kumar Mohapatra Vs. State of Orissa, reported in (2014) 4 SCC 583. It was

contended that the State in exercise of its executive as well as legislative powers

can frame a regularisation scheme. Therefore, these two decisions of the Supreme

Court, namely, the decisions in Nihal Singh (supra) and Amarendra Kumar

Mohapatra (supra) would make it clear that Umadevi (supra) is not a

proposition on the power of the executive or the legislature in framing a scheme

for regularisation of persons appointed by due process of recruitment consistent

with Articles 14 and 16 of the Constitution.

10. Learned Standing Counsel appearing for SSA, however, contended that the

issue agitated by the petitioners was already decided in Arup Kumar Bhuyan

(supra), which decision would operate as res judicata between the parties in the

present proceeding.

11. Responding to such submissions, it was contended on behalf of the

petitioners that where the earlier decision is altered by a competent authority,

which includes the Supreme Court, the earlier decision will not operate as res

WPC No.5002/2012 Page 7 of 21

judicata between the parties. In this connection, learned Senior Counsel for the

petitioners relied upon the following Supreme Court decisions : -

i) Mathura Prasad Bajoo Jaiswal Vs. Dossibai NB

Jeejeebhoy, (1970) 1 SCC 613;

ii) Nand Kishore Vs. State of Punjab, (1995) 6 SCC

614.

12. Learned Single Judge agreed with the contentions of learned counsel for

the petitioners by holding that in Mathura Prasad Bajoo Jaiswal (supra),

Supreme Court has held that when the law is altered since the earlier decision,

earlier decision will not operate as res judicata between the same parties. Learned

Single Judge also quoted extensively from the decision in Nihal Singh (supra)

and, thereafter passed the following order : -

“ 10. After giving my anxious consideration to the submission advanced by the learned counsel appearing for the rival parties, it is my considered opinion that much water has flown down River Brahmaputra since the decision in Uma Devi case and that the basis of the decision of the writ appellate court in Arup Kumar Bhuyan case appears to have been removed by Nihal Singh case, which has succinctly clarified the power of the State to formulate a scheme for regularisation of contractual appointees/daily wage earners who were appointed against sanctioned posts. This calls for re-examination of Arup Kumar Bhuyan case, for which a larger bench may be constituted. Let this writ petition be placed before the Hon'ble Chief Justice (Acting) for appropriate decision.”

13. Thus learned Single Judge took the view that the very basis of the decision

in Arup Kumar Bhuyan (supra) was removed by Nihal Singh (supra) and

therefore, the decision in Arup Kumar Bhuyan (supra) is required to be re-

examined for which a larger Bench may be constituted. Thereafter, the Full Bench

had been constituted to decide the case.

14. Mr. KN Choudhury, learned Senior Counsel while reiterating the

submissions made before the learned Single Judge, has also submitted a written

argument. While relying on the already cited decisions, additionally he has placed

WPC No.5002/2012 Page 8 of 21

reliance in the case of State of Jammu & Kashmir Vs. District Bar

Association, (2017) 3 SCC 410.

15. On the other hand, Mr. PN Goswami, learned Standing Counsel, SSA has

raised two fold objection to the prayer made by the petitioners. The first objection

relates to res judicata in respect of which he submits that the earlier Division

Bench decision in Arup Kumar Bhuyan (supra) has finally decided the issue

raised by the petitioners and the same cannot be reopened again. Secondly, on the

issue of regularisation, he submits that appointments of the petitioners were

contractual in nature for 11 months which they had accepted; therefore,

petitioners cannot seek regularisation of their service. In this connection, he has

placed reliance on the following decisions: -

i) Nazira Begum Laskar Vs. State of Assam, (2001) 1

SCC 143;

ii) A Uma Rani Vs. Registrar Co-operative Societies,

(2004) 7 SCC 112;

iii) State of Karnataka Vs. ML Kesari, (2010) 9 SCC

247;

iv) Rumi Gogoi (Hazarika) Vs. State of Assam, 2012

(4) GLT 1001.

16. Submissions made by learned counsel for the parties have received the due

consideration of the Court. All the decisions cited at the Bar have been considered.

17. Before we proceed to deal with the case on merit, we have thought it

appropriate to deliberate upon the referral order at the outset. We have already

extracted paragraph 10 of the referral order dated 30.09.2015. A careful analysis

of the referral order, as extracted above, would indicate that learned Single Judge

had taken the view that since the decision in Umadevi (supra), which was the

basis of the decision in Arup Kumar Bhuyan (supra), there has been much

change in the judicial thinking as would be evident from the decision in Nihal

Singh (supra) thereby removing the very basis of the decision in Arup Kumar

Bhuyan (supra) and, therefore, this calls for re-examination of Arup Kumar

WPC No.5002/2012 Page 9 of 21

Bhuyan (supra), for which a larger Bench may be constituted. Thus, learned

Single Judge had doubted the correctness of the decision in Arup Kumar Bhuyan

(supra). At this stage, we may note that Arup Kumar Bhuyan (supra) was a

Division Bench decision and its correctness was doubted by a Single Bench, who

thereafter made the reference.

18. Ordinarily, a Single Bench is bound by the decision of a Division Bench.

Even in case of a co-ordinate bench, a subsequent Division Bench cannot take a

divergent view. It may express disagreement with the views of the previous

Division Bench and, thereafter, may make a reference to the Chief Justice on the

administrative side for constitution of a larger Bench to examine the correctness of

the previous co-ordinate bench decision. In the case of a Division Bench or a larger

Bench decision, a Single Bench is bound by the same. This is not only on account

of the doctrine of binding precedent, but is based on sound public policy.

19. However, having said so, we also have to bear in mind that learned Single

Judge after doubting the correctness of the Division Bench decision in Arup

Kumar Bhuyan (supra) in the context of the changed legal position as

highlighted in the case of Nihal Singh (supra), had referred the case to the

Hon’ble Chief Justice (Acting) on the administrative side for constitution of a larger

Bench. A larger Bench having been constituted and having heard the matter at

considerable length, during which newer dimension of the litigation unfolded, we

feel that it would only be just and proper for this larger Bench to decide the case

on its own merit.

20. Before we proceed further, it would be appropriate to examine the nature

of appointment of the petitioners. Though learned Single Judge has referred to the

same in paragraph 3 of the referral order, we would like to deal with it at some

length. As per the scheme introduced by the Govt. of India, Ministry of Human

Resources and implemented by the Sarba Siksha Abhiyan Mission, one Siksha

Sarathi would be appointed in all One Teacher Schools for the purpose of

spreading education, more particularly for children in the age group of 6 years to

14 years. This scheme was introduced in the year 2003. As per this scheme, each

WPC No.5002/2012 Page 10 of 21

of the single teacher Government/provincialised LP Schools would be provided with

one Siksha Sarathi, who would be engaged for a period of 11 months from the

date of signing of an agreement between the concerned School Managing

Committee and the concerned Siksha Sarathi. Likewise, there would be an

agreement between the School Managing Committee and the representative of

Assam Sarba Siksha Abhiyan Mission. Siksha Sarathi would receive a monthly

honorarium of Rs. 1,500.00, which would be paid by the School Managing

Committee; who in turn would be responsible for monitoring the performance of

the Siksha Sarathi. Agreement with the concerned Siksha Sarathi may be

terminated by the Assam Sarba Siksha Abhiyan Mission if his performance was

found to be not satisfactory on the basis of report received either from the School

Managing Committee or from the functionaries of Assam Sarba Siksha Abhiyan

Mission. Selected Siksha Sarathis would have to undergo an induction level training

to be organized by Assam Sarba Siksha Abhiyan Mission and anyone who

abstained from such training or did not complete the training in a satisfactory

manner, his/her agreement would be liable to be cancelled. The deed of

agreement between Siksha Sarathi and School Managing Committee would stand

terminated on completion of 11 months with effect from the date of signing of the

agreement. Siksha Sarathis would have no claim for renewal or extension of their

terms of engagement.

21. The scheme also provided for a detailed procedure regarding appointment

of Siksha Sarathis. On receipt of approval from the State office of Assam Sarba

Siksha Abhiyan Mission, the concerned Deputy Commissioner would notify the list

of eligible schools/educational institutions block wise with intimation to all the

stakeholders. After such notification, Deputy Commissioner would convene a

meeting of the District Boards of Education to discuss the scheme for engagement

of Siksha Sarathi. Likewise, Presidents of Gaon Panchayats would convene meeting

with all stake holders, including the Presidents, Secretaries and one member of all

the School Managing Committees. Such meetings would finalize the procedure of

receiving application forms and would authorize one person to receive application

forms on behalf of the School Managing Committee. Minutes of the meetings were

required to be recorded with circulation to the participating members. Likewise,

WPC No.5002/2012 Page 11 of 21

complete record of applications received would have to be maintained by the

authorized person. The concerned School Managing Committee would have to

make wide publicity regarding selection of Siksha Sarathi by putting up notice in

different places, including in the concerned school. Such notice should contain

information relating to necessary qualifications for engagement as Siksha Sarathi,

date and venue of selection etc. Be it stated that to be eligible to be appointed as

Siksha Sarathi in such a school, the candidate was required to hail from the same

Gaon Panchayat in which the school is situated. The notice should clearly mention

that engagement of Siksha Sarathi was on contract basis for a period of 11 months

only. School Managing Committee under the Chairmanship of the Gaon Panchayat

President would examine and scrutinize the application forms received immediately

on the next day following the last date fixed for receiving applications and

thereafter, recommend the person to be engaged as Siksha Sarathi through a

resolution signed by not less than 2/3rd of the members of the School Managing

Committee. In the resolution, names of all the applicants, including rejected ones,

should be mentioned along with reasons for their rejection. Original copy of such

resolution was required to be submitted to the Block Mission Office along with the

application form of the selected candidate in original. Block Mission Office shall

compile the list of selected candidates received from all the School Managing

Committees and forward it to the District Mission Office along with resolutions of

the School Managing Committee. District Mission Office would thereafter approve

the list of Siksha Sarathis to be engaged and communicate its approval to the

Block Mission Offices mentioning therein the schedule for induction level training of

the selected Siksha Sarathis. Block Mission Office shall thereafter hold a meeting

with the President and Secretary of the concerned School Managing Committee

and get the deeds of agreement signed between the respective School Managing

Committees and the Siksha Sarathis indicating therein the training schedule.

22. As per educational qualification prescribed, a candidate should have the

minimum educational qualification of Higher Secondary pass i.e., Class-XII pass

from any recognized board, council or organization. If a candidate who had

completed Pre-Service Teacher Education (PSTE) was available, he/she should be

selected irrespective of marks secured in the Higher Secondary examination.

WPC No.5002/2012 Page 12 of 21

Otherwise, candidates having higher marks in the Higher Secondary examination

would be selected. There would be relaxation in the case of tea garden areas;

relaxation being up-to matriculation. In case of a female candidate having requisite

qualification, she would be given preference. If thereby more than one candidate

having equal marks or having completed PSTE became available, the concerned

School Managing Committee would decide on the basis of the marks obtained in

PSTE and also consider other factors, such as, experience of teaching etc.

23. Pursuant to such scheme, Assam Sarba Siksha Abhiyan Mission vide its

communication dated 25.07.2003 directed initiation of selection process.

Thereafter, advertisements were issued in terms of the scheme for appointment of

Siksha Sarathis. Petitioners had responded to such advertisements and thereafter

they had applied for appointment as Siksha Sarathi. After following the due

procedure, they were found eligible and consequently, selected by the School

Managing Committee for appointment as Siksha Sarathi in One Teacher Schools

whereafter, they had signed contract agreement with the respective School

Managing Committees for engagement as Siksha Sarathi for a period of 11

months. It is stated that although individual agreements were signed on

13.09.2004, their engagement as Siksha Sarathi was continued much beyond 11

months and even on the date of filing of the writ petition, they were serving as

Siksha Sarathis. After their engagement, they had also undergone the training as

prescribed under the Scheme.

24. Having noticed the above, we may now briefly examine the Constitution

Bench decision in Umadevi (supra). In Umadevi (supra), Supreme Court was

concerned with non-adherence to the constitutional scheme of employment by the

Government and its instrumentalities, more particularly, in the lower rungs of the

service, thereby resorting to illegal appointments without following the proper

appointment procedure. Not only such illegal appointments were made, but such

appointments were allowed to be continued year after year, thereby depriving

persons qualified for such jobs from applying and denying them due opportunity to

compete for the posts. Supreme Court was also concerned with the role of the

Constitutional Courts issuing occasional directions and writs of mandamus for

WPC No.5002/2012 Page 13 of 21

regularizing the appointment of such persons. While strongly deprecating such

practice, Supreme Court held that the executive or for that matter the Court in

appropriate cases would have only the right to regularize an appointment made

after following the due procedure, even though a non-fundamental element of that

recruitment process or procedure had not been followed. It was clarified that such

right would not extend to directing regularisation of an appointment made in clear

violation of the constitutional scheme and the statutory rules made in that behalf.

Supreme Court clarified that merely because a temporary employee or a casual

wage worker has continued for a time beyond the terms of his appointment, he

would not be entitled to be absorbed in regular service or made permanent merely

on the strength of such continuance if the original appointment was not made by

following a due process of selection as envisaged by the relevant rules. Sounding a

note of caution, Supreme Court observed that High Courts acting under Article 226

of the Constitution should not ordinarily issue directions for absorption,

regularisation or permanent continuance, unless the recruitment itself was made in

a regular manner and in terms of the constitutional scheme. Supreme Court further

held that when a person enters a temporary employment or gets engagement as a

contractual or casual worker and the engagement is not based on proper selection

as recognised by the relevant rules or procedure, he is aware of the consequences

of the nature of his appointment. Such a person cannot invoke the theory of

legitimate expectation for being confirmed in the post when an appointment to the

post could be made only by following the proper procedure.

25. After declaring so, Supreme Court made one exception. The exception that

was carved out was in respect of irregular appointments and not illegal

appointments of duly qualified persons in duly sanctioned vacant posts where the

employee concerned had continued to work for 10 years or more, but without the

intervention of the Courts or of the Tribunals. Question of regularisation of the

services of such employees may have to be considered on merit in the light of the

principles settled by the Supreme Court in the cases of State of Mysore Vs. SV

Narayanappa, AIR 1967 SC 1071; RN Nanjundappa Vs. T Thimmiah,

(1972) 1 SCC 409 and BN Nagarajan Vs. State of Karnataka, (1979) 4

SCC 507.

WPC No.5002/2012 Page 14 of 21

26. Having regard to the above, Supreme Court directed the Union of India,

State Governments and their instrumentalities to take steps to regularize as a

onetime measure the services of such irregularly appointed employees who have

worked for 10 years or more in duly sanctioned posts but not under the cover of

orders of the Courts or Tribunals. The process was directed to be set in motion

within six months of the judgment.

27. This onetime measure provided by the Supreme Court in Umadevi (supra)

was explained in detail by the Supreme Court in the later judgment in ML Kesari

(supra), which may not be necessary to be gone into in this proceeding.

28. Suffice it to say, the issue before the Supreme Court in Umadevi (supra)

was illegal appointments made by the State in the lower rungs of the services

without following the due process of recruitment and continuing such illegal

appointments for varying periods of time. While deprecating such practice,

Supreme Court made it abundantly clear that there is no question of regularisation

of such illegal appointments, be it on contractual basis or on temporary basis or as

daily rated workers and also clarified that the Constitutional Courts would not be

empowered to direct regularisation of such illegal appointments because such

illegal appointments were made in violation of Article 14 of the Constitution as well

as in violation of the constitutional scheme of recruitment to public service and a

Constitutional Court is not expected to perpetuate such an illegality by issuing

directions for regularisation.

29. Therefore, strictly speaking Umadevi (supra) covers cases where the

appointments were not made following the due recruitment process. But would

Umadevi (supra) create a bar in respect of regularisation of the services of

persons who were appointed by following the procedure prescribed? Would

Umadevi (supra) apply in a case where a particular manner of recruitment is

prescribed where all eligible candidates could apply and their candidatures

considered whereafter, the selection was made which was followed by the

appointments, be it temporary, casual, part-time or contractual?

WPC No.5002/2012 Page 15 of 21

30. In the case of Nihal Singh (supra), Supreme Court was considering claim

of Special Police Officers to bring them within the regular service of the State in

the State of Punjab. Because of large scale disturbances in the State of Punjab in

the 1980s, which the State found it difficult to handle with the available police

personnel, State of Punjab resorted to recruitment of Special Police Officers under

section 17 of the Police Act, 1861. These appointments continued for a long period

of time. The services of Special Police Officers were placed at the disposal of the

Banks for ensuring their security and in return, the Banks undertook the financial

burden of the Special Police Officers. Petitioners had approached the High Court of

Punjab and Haryana seeking directions for regularisation of their service by filing

writ petition. The writ petition was disposed of by directing consideration of the

case of the petitioners in accordance with law by passing a speaking order. The

concerned Senior Superintendent of Police thereafter passed a speaking order

rejecting the claim of the petitioners. Writ petition filed assailing the aforesaid

order of the Senior Superintendent of Police came to be dismissed by the High

Court of Punjab and Haryana. Thereafter, the matter went to the Supreme Court.

On behalf of the State, it was specifically argued that in the light of the

Constitution Bench decision in the case of Umadevi (supra), relief sought for by

the petitioners could not be granted. Supreme Court noted that though the

appointments were made under section 17 of the Police Act, 1861, such

appointments continued for decades and posed the question as to whether the

Supreme Court could compel the State of Punjab to create posts and absorb the

petitioners into the services of the State on a permanent basis consistent with the

Constitution Bench decision in Umadevi (supra).

31. In the process of answering this question, Supreme Court examined the

ratio decidendi of Umadevi (supra). It was noted that the entire issue in

Umadevi (supra) pivoted around the fact that the State had initially made

appointments without following any rational procedure envisaged under the

scheme of the Constitution in the matter of public appointments. While recognizing

the authority of the State to make temporary appointments, Supreme Court,

however, declared that regularisation of the employment of such person, which

was made without following any rational procedure, cannot become an alternative

WPC No.5002/2012 Page 16 of 21

mode of recruitment to public posts. Uma Devi (supra) further declared that

jurisdiction of the Constitutional Courts may not be exercised to compel the State

or to enable the State to perpetuate an illegality. Applying the principles laid down

in Umadevi (supra), Supreme Court found that initial appointment of the

petitioners in Nihal Singh (supra) was made in accordance with the statutory

procedure contemplated under the Police Act, 1861 by a conscious decision taken

at the highest level of the State. Such appointments could not be categorized as

illegal or irregular. It was not a case where petitioners were arbitrarily chosen to

the exclusion of other eligible candidates. Such a process of selection was

sanctioned by law under section 17 of the Police Act, 1861. Observing that neither

the State of Punjab nor the Public Sector Banks could continue such a practice

consistent with their obligation to function in accordance with the Constitution, it

was held that sanction posts do not fall from heaven; State has to create them by

a conscious choice on the basis of some rational assessment of the need.

Judgment in Umadevi (supra) cannot become a licence for exploitation by the

State and its instrumentalities. Accordingly, Supreme Court directed the State of

Punjab to regularize the services of the petitioners by creating necessary posts.

32. In Amarendra Kr. Mahapatra (supra), the issue which was considered

by the Supreme Court was the constitutional validity of Orissa Service of Engineers

(Validation of Appointment) Act, 2002 whereby re-appointment of 881 ad-hoc

Assistant Engineers belonging to Civil, Mechanical and Electrical Engineering wings

of the State Engineering Service were validated, notwithstanding the fact that all

such appointments were in breach of the Orissa Service of Engineering Rules,

1941. The High Court of Orissa had struck down the said legislation on the ground

that the same violated the fundamental rights guaranteed to the writ petitioners

under Articles 14 and 16 of the Constitution. Clarifying that the legislation under

challenge was not a validating Act as it purported to be but was an enactment that

regularised the appointment of graduate stipendiary Engineers working as ad-hoc

Assistant Engineers as Assistant Engineers. While upholding the constitutionality of

the impugned legislation, Supreme Court held that by the said legislation the State

directed regularisation of the Engineers. In that context, it was held that while

WPC No.5002/2012 Page 17 of 21

regularisation scheme can be framed by the Government in exercise of its

executive power, the same can also be done by way of legislation.

33. Again in the case of District Bar Association (supra), a three Judge

Bench of the Supreme Court analysed the decision in Umadevi (supra) and

highlighted the essence of the said judgment. Supreme Court was of the view that

Umadevi (supra) dealt firstly with the right claimed by temporary employees to be

regularised in service on the basis of long continuance, legitimate expectation,

employment under the State and the Directive Principles. The second issue dealt

with was whether Courts would be justified in issuing directions for regularisation

based on such features. On both counts, Umadevi (supra) held against temporary

employees. But most importantly, it was highlighted that Umadevi (supra) was

not an authority for the proposition that the executive or the legislature cannot

frame a scheme for regularisation. It was held that Uma Devi (supra) does not

denude the State or its instrumentalities from framing a scheme for regularisation.

34. Therefore, the position which emerges is that the State either by way of

executive action or by way of legislation can frame a scheme for regularisation of

service of temporary employees, provided the temporary appointments were made

by following a rational recruitment procedure in which all eligible candidates had

the opportunity to participate.

35. Viewed in that context, there is certainly an alteration of the legal position,

firstly by the case of Nihal Singh (supra), then by the case of Amarendra

Kumar Mohapatra (supra) and finally by the case of District Bar Association

(supra) that the State is not denuded of the power to frame a scheme for

regularisation of service of temporary or such category of employees. Therefore,

there is a clear shift in the legal position from the time when Arup Kumar

Bhuyan (supra) was decided by the Division Bench by holding that the learned

Single Judge had only relied upon a previous decision of this Court in Budheswar

Gayary, which was consistent with the decision in Umadevi (supra). In such a

situation, the previous decision in Arup Kumar Bhuyan (supra) may no longer

act as a bar to have a fresh look at the claim of the petitioners in the light of the

change in the legal position, as discussed above.

WPC No.5002/2012 Page 18 of 21

36. In Mathura Prasad Bajoo Jaiswal (supra), Supreme Court held that a

decision on an issue of law will act as res judicata in a subsequent proceeding

between the same parties if the cause of action of the subsequent proceeding be

the same as in the previous proceeding, but not when the cause of action is

different or when the law has since the earlier decision been altered by a

competent authority.

37. In Nand Kishore (supra), Supreme Court held that it is a competent

authority within the above expression; because Supreme Court is not merely the

interpreter of the law as existing but much beyond that. Supreme Court as a wing

of the State is by itself a source of law. The law is what the Supreme Court says it

is.

38. Thus in view of the above, the position which emerges is that if there is a

change in law since the earlier decision, principle of res judicata would not be

applicable. Therefore, taking an overall view of the matter, we are of the

considered opinion that in view of the altered judicial position since Umadevi

(supra) was rendered, as discussed above, the decision in Arup Kumar Bhuyan

(supra) would no longer act as res judicata in taking an independent decision in

the present proceeding. That apart, Arup Kumar Bhuyan (supra) was decided by

a Bench of two Hon’ble Judges. Having a larger strength, this Bench certainly has

the authority and competence to re-examine the legal position while dealing with

the case of the petitioners notwithstanding the decision in Arup Kumar Bhuyan

(supra).

39. We have already examined the nature of appointment of Siksha Sarathis.

Siksha Sarathis are not teachers. They act as assistants to the single teacher in

schools manned by a single teacher. For appointment of teachers in Primary

Schools, we have the Assam Elementary Education (Provincialisation) Rules, 1977

framed in exercise of powers conferred by the proviso to Article 309 of the

Constitution of India. Conditions of recruitment of Assistant Teachers, constitution

of Selection Committee, procedure for selection and appointment etc. have all

been provided in the said Rules. It is evident that Siksha Sarathis were not

appointed by following the provisions of Assam Elementary Education

WPC No.5002/2012 Page 19 of 21

(Provincialisation) Rules, 1977; because they were not appointed as teachers.

Their appointments were in the nature of assistant to the single teacher. A

separate mode of recruitment was prescribed under the scheme with different

eligibility criteria. Notwithstanding the enactment of National Council for the

Teachers’ Education Act, 1993 and the Right of Children to Free and Compulsory

Education Act, 2009, Siksha Sarathis were appointed albeit for a period of 11

months, but which has been continued since then. In such a scenario, petitioners

certainly cannot claim regularisation as teachers because they do not have the

qualification of teachers and they were not recruited as teachers. To that extent,

the decision in Rumi Gogoi (Hazarika) (supra) relied upon by Mr. Goswami,

learned Standing Counsel would not be applicable to the facts and circumstances

of the present case because in Rumi Gogoi (Hazarika) (supra), Education

Volunteers appointed as Siksha Mitras under the Education Guaranteed Scheme

(EGS) in EGS centres claimed regularisation as teachers following upgradation of

EGS centres to Lower Primary Schools, which was not accepted by the Court and

rightly so; because Siksha Mitras did not possess the qualification of teachers and

they were not recruited by following the procedure for recruitment of teachers.

40. The other decisions cited by learned Standing Counsel are also not strictly

on the point; because those decisions deal with claim to continuance in service or

regularisation where the appointments were found to be contrary to the Rules.

41. Having noticed the above, we find that Government of Tripura has granted

enhanced remuneration to different categories of contractual staff of SSA engaged

in the State of Tripura. Similarly, in the State of West Bengal, beneficial measures

have been taken and improved conditions of service have been provided to Para

Teachers appointed by SSA in West Bengal. As per document annexed to the writ

petition, a Para Teacher in West Bengal is paid consolidated monthly remuneration

of Rs.7,425.00, which engagement would continue till the age of superannuation

whereafter, the incumbent would receive one time gratuity of Rs.1,00,000.00. It

appears that similar provisions have been made in the State of Tamil Nadu as well

as in the neighbouring State of Arunachal Pradesh.

WPC No.5002/2012 Page 20 of 21

42. Reverting back to the case of Siksha Sarathi, we find that notwithstanding

their initial engagement for 11 months, their engagements have continued for

more than a decade now; as a matter of fact, their engagement is now in the

second decade, which clearly indicates the necessity and utility of Siksha Sarathis

as assistants to the teachers.

43. In the recent decision in the case of State of Assam Vs. Sri Upen Das,

WA No.45/2014, decided on 08.06.2017, a Division Bench of this Court was

examining claim of the respondents who were muster roll workers, work charged

workers and casual workers to regularisation of service with consequential

benefits, such as, pension etc.. Learned Single Judge had directed the State to

consider regularisation of the services of the respondents in terms of Cabinet

decision taken on 22.07.2005 by framing an appropriate policy/scheme. While

setting aside the judgment of the learned Single Judge, the Division Bench noted

that State Government had agreed not to terminate the muster roll, work charged

and similarly placed employees working since last more than 10 years (not in

sanctioned post) till their normal retirement age except on disciplinary ground or

on ground of criminal offence. The Division Bench also noted that the State

Government had agreed to enlist such employees in health and accidental and

death insurance schemes to be prepared in consultation with the State Cabinet.

Appreciating the stand of the State, the Division Bench directed immediate

implementation of the above measures; further directing the State to pay minimum

pay scale to such categories of employees w.e.f. 01.08.2017. Relevant portion of

the decision dated 08.06.2017 is extracted hereunder: -

“ 22. It is, however, heartening to learn that the State Government has agreed not to terminate the Muster Roll, Work Charged and similarly placed employees working since last more than 10 years (not in sanctioned post) till their normal retirement, except on disciplinary ground or on ground of criminal offences. The State Government has also agreed to enlist such employees in Health and Accidental and Death Insurance Scheme, which will be prepared in consultation with the State Cabinet. We appreciate this positive stand of the State Government taken as welfare measures for the betterment and security of the employees, in question. We, accordingly, direct the State Government to

WPC No.5002/2012 Page 21 of 21

implement the measures without further delay. Besides this, we, in the light of decision of the Supreme Court in State of Punjab vs. Jagjit Singh, (2017) 1 SCC 148, also direct the State Government to pay minimum of the pay scale to Muster Roll workers, Work Charged workers and similarly placed employees working since last more than 10 years (not in sanctioned post) with effect from 1.8.2017.”

44. Therefore, having regard to the grievance expressed by the petitioners and

the discussions made above, we are of the view that it would meet the ends of

justice if similar benefit as granted to the muster roll, work charged and similarly

placed employees working since last more than 10 years (not in sanctioned posts)

is extended to the Siksha Sarathis. Accordingly, we direct the State to consider

framing a scheme for the Siksha Sarathis on the above lines, which decision shall

be taken within a period of 6 weeks from today.

45. The reference is answered accordingly.

46. Consequently, the writ petition is allowed in the above terms. No costs.

Judge Judge Judge BIPLAB