WP(C) 5002/2012. Gauhati High Court
| Case Number | WP(C) 5002/2012 |
| Judgement Date | October 26, 2020 |
| Court | Gauhati High Court |
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 1 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. I n 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 2 of 21
I n 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 3 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 4 of 21
05. Learned Single Judge, however, noted that in Writ Appeal No.222/ 2012
( Ar u p Kum ar Bh u yan Vs. St at e 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 ( Bu dhesw ar Gayar y Vs. St at e 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 St at e of Karn at ak a Vs. Um adevi , 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 counteraffidavit. Respondents have relied upon the Division Bench order dated
03.08.2012. I t 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. I ndividual 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 5 of 21
08. Learned Single Judge thereafter extensively referred to the decision of the
Supreme Court in Um adevi (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 Nih al Sin gh Vs. St at e of Pu n j ab , reported in ( 2013) 14 SCC 65 has clarified
that Um adevi (supra) was dealing with appointments made without following any rational procedure in the lower...
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