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Judgment
Heard Mrs. N. Saikia, counsel for the petitioners in all the writ petitions. Also heard Mr. A Deka, counsel for the Elementary Education
Department and Mr. S. Das, counsel for the WPT & BC Department as well as Mr. A. K. Bhuyan, counsel for the BTC and Mr. B. Gogoi, counsel
for the Finance Department. All these cases are being disposed of by this common judgment and order as the case basically pertains to a prayer
regularisation of the petitioers services and the setting aside of the termination of the petitioners’ services vide order dated 12.11.2004.
The petitioners in all these writ petitions have prayed for regularization of theirservices and for setting aside and quashing the impugned termination
order dated 12.11.2004, by which the BTC has taken a decision to terminate the services of the petitioners. The petitioners prayer for regularisation is
made on the ground that due to long years of service rendered by them, i.e. 19 to 20 years, a legal right to be regularised has accrued to them. With
regard to the impugned termination order dated 12.11.2004, the petitioners challange is that the same was not served upon them and they were not in
the knowledge of the existence of the same.
The petitioners’ case, in brief, is that in pursuance to an employment noticedated 31.03.1997, issued by the Deputy Inspector of Schools,
Udalguri, the petitioners were appointed as English Teachers in Bodo Medium L.P. Schools and LDA in M.E. and M.V. Schools under the Udalguri
Sub-Division and other Sub-Division under the BTC vide orders issued in the years 1997 and 1998 by the Deputy Inspector of Schools, Udalguri.
The petitioners’ counsel submits that the petitioners had prayed forregularization of their services and as the same was not done by the
respondent authority, the petitioners approached this Court praying for regularization of their services. The petitioners, thereafter, came to know that
the services of the petitioners had been terminated only when the BTC authority had submitted their affidavit-in-opposition. The petitioners had been
terminated on the basis of a decision taken by the Executive Council of the BTC, vide the impugned termination order dated 12.11.2004.
The petitioners have, accordingly, made a challenge to the impugned orderdated 12.11.2004, issued by the Joint Secretary, BTC, by which the
services of the petitioners have been terminated, on the ground that no termination order has been issued to the petitioners till date. Further, there
being regular sanctioned vacancies during the time of the selection process, the petitioners should have been appointed to regular post on a regular
basis.
The petitioners’ counsel also submits that the petitioners are working invarious schools till today and that the salaries had been paid to the
petitioners for services rendered, from the dates of their appointment till November, 2004, in the year 2015. However, no further salary has been paid
to the petitioners subsequent to November, 2004. The petitioners’ counsel further submits that the appointment of the petitioners was approved by
the Director and Secretary, Elementary Education Department, BTC.
The petitioners’ counsel thus prays for setting aside the impugned orderdated 12.11.2004, issued by the Joint Secretary, BTC.
Mr. A. K. Bhuyan, counsel for the BTC, submits that the appointment of thepetitioners was dehors Section 3 of the Assam Elementary Education
(Provincialization) Rules, 1977.
He further submits that the Deputy Inspector of Schools does not have thepower to issue the employment notice/advertisement calling for
candidates to fill up posts in provincialized schools. He also submits that the termination order dated 12.11.2004 has been served upon the petititoners.
He further submits that the very fact that the petitioners had not claimed their salaries for the period from December, 2004 onwards till the filing of the
present writ petition, which has been done after more than 10 years, goes to show that they were aware of the termination orders issued against them.
He also submits that the petitioners do not have any right to be regularizedas per the judgment of the Apex Court passed in the case of State Of
Karnataka â€"Vs- Uma Devi (3) reported in 2006 (4) SCC 1. He also submits that in a different case, i.e., WP(C) 2573/2012, the petitioners therein
had challenged the order dated 12.11.2004, which is also impugned in the present case. In WP(C) 2573/2012, the petitioners had also prayed for
regularization of their service. This Court disposed off WP(C) 2573/2012, vide order dated 17.08.2017, by holding at para 13 as follows:-
      “13. As can be seen, the litigants were aware of the termination order dated 12.11.2004 during the proceeding of the WP(C)
No.864/2009 and yet, they chose not to challenge the discharge order at that stage. Moreover, they failed to challenge the verdict in any higher court,
although their salary claim was restricted to the pre-termination period. In fact, the petitioners had filed the contempt case in respect of the Court's
judgment in the WP(C) No.864/2009 and the Director BTC has passed a speaking order, rejecting the salary claim of the school mothers. The
association has already challenged the speaking order through the WP(C) No.7804/2016 and the same is pending. Therefore, it may not be appropriate
in this case to comment on the reasons reflected in the speaking order, for rejecting the salary claim of the school mothers.â€
The counsel for the BTC thus submits that the appointment of the petitioners,being in violation of the Rules and as they have been appointed
against non sanctioned post, there is no question of regularizing their services.
Mr. B. Gogoi, counsel for the Finance Department, submits that thepetitioners are not entitled to regularization of their services as per the
decision of the Apex Court in State of Karnataka â€"vs- Uma Devi (3) reported in 2006 4 SCC 1, as para 53 of the said judgment cannot be made
applicable to the petitioners’ case.
I have heard the learned counsels for the parties.
The writ petitions that are being disposed of by this common order are of twocategories. One set of writ petitions deals only with the prayer for
regularization of the services of the petitioners and the other set of writ petitions is for regularisation of their service and for setting aside the
termination of the services of the petitioners on the basis of the order dated 12.11.2004, issued by the Joint Secretary, BTC. WP ( C) No. 2506 of
2017 is a writ petition filed by Lower Division Assistants working in different M.E. Schools in Udalguri district and they have made a prayer for
setting aside the termination order dated 12.11.2004 and for regularization of their services. The prayer in WP ( C) No. 1206 of 2016, WP ( C) No.
1427 of 2016, WP ( C) No. 1992 of 2016, WP ( C) No. 2004 of 2016 and WP ( C) No. 871 of 2016, which have been filed by English Teachers, is to
regularize their service as English Teachers. In respect of WP ( C) No. 1886 of 2017, WP ( C) No. 3266 of 2017, WP ( C) No. 3844 of 2016, WP (
C) No. 3865 of 2016, WP ( C) No. 4440Â of 2016, WP ( C) No. 5012 of
2016, WP ( C) No. 6250 of 2016 and WP ( C) No. 697 of 2018, the petitioners who are English Teachers, have prayed for setting aside the impugned
termination order dated 12.11.2004 and for regularization of their service.
15. The order dated 12.11.2004 issued by the Joint Secretary, BTC is reproduced below:-
                                             “O R D E R
     In pursuance of Executive Council’s Resolution of BTC No.4 dated 12.10.2004, the Bodoland Territorial Council is pleased to
terminate the services of all Mother Teachers, LP English Teachers, LD Asstts. In ME Schools and Councilised Teachers for which no posts have
been sanctioned by Government of Assam.
     The BTC in pursuant of the Executive Council’s Resolution stated above so decides that the BTC is not liable to pay the salaries of
these non-existent, non-sanctioned posts.
     In this connection, the erstwhile BAC’s Executive Council Resolution No.3 dated 01.11.96 approving the New Education Policy of
BAC did not follow the existing Educational Policy of Government of India and Government of Assam.
     This order will come into force with immediate effect.â€
Serial No: 6 of “Copy†of the above order dated 12.11.2014 states that “The Director of Education, BTC, Kokrajhar for favour of information
and necessary action. He will communicate the same to all the teachers/ employees accordinglyâ€.
WP ( C) No. 2506 of 2017 is being taken up in the first instance, inasmuch as,the petitioners therein are Lower Division Assistants, while the
petitioners in all the other writ petitions are English Teachers. During arguments, records of other cases have been called for and it has been found
that 8 out of 9 writ petitioners in WP ( C) no.2506 of 2017 had earlier filed WP ( C) No. 4819 of 2011 before this Court, praying for a direction to pay
the regular and arrear salary to the petitioners and to regularize their services. WP ( C) no.4819 of 2011 was dismissed by this Court as per order
dated 13.02.2012, which is as follows:
“Heard Mrs. N. Saikia, learned counsel for the petitioner as well as Mr. S. Khound, learned Standing Counsel, BTC. I have also heard Mr. H.K.
Barman, learned State Counsel, Assam, Mr. P.N. Goswami, learned Standing Counsel, Education and Mr. B. Gogoi, learned Standing Counsel,
Finance. By means of this writ petition, the petitioners have prayed for regularization of their services and payment of arrear salary. They were
appointed as Lower Division Assistant (LDA), mostly in the year 1998. Some were appointed in the year 2000 and 2001. The appointments orders
could reflect that they were appointed against non-sanctioned posts. A similar writ petition being WP(C) No. 8748/2005 (Ranjit Das & Ors. Vs. State
of Assam & Ors) has been disposed of by order dated 18.1.2012. In the said writ petition also, same very prayer was made i.e. arrear salary and
regularization of service. The petitioners involved in the said writ petition were appointed as LDA and Gardener in the year 1997-1998. As in the said
case, in the instant case also in the affidavit-in-opposition filed by the respondents No. 3 & 4, the order dated 12.1.2004 has been brought on record,
by which all such services were dispensed with. It was stipulated in the said order that the incumbents were not entitled to any salary as they were
illegally appointed against non-sanctioned posts. Following the said decision, this writ petition is also dismissed. However, if the petitioners are entitled
to receive any salary for the period they have worked under the respondents, the respondents may do the needful in this regard in accordance with
law. With the above observation, writ petition stands disposed of, without however, any order as to costs.â€
Though there is an error in the order dated 13.02.2012, wherein the date ofthe termination order is recorded as 12.01.2004, the same has to be
read as 12.11.2004. The said order dated 13.02.2012 passed in WPÂ (C ) No. 4819 of 2011 clearly shows that 8 out of 9 petitioners in WP ( C)
no.2506 of 2017, who were writ petitioners in WP ( C) No. 4819 of 2011. Accordingly, it can be presumed that they were well aware of the
termination of their services vide order dated 12.11.2004, in view of the order dt.13.02.2012 passed in WPÂ (C ) No. 4819 of 2011. Besides the
above, the petitioners in WP (C) No.4819 of 2011 filed an Appeal being WA No.73 of 2012, against the Judgment and order dated 13.02.2012 passed
in WP ( C) No. 4819 of 2011. In the writ appeal , the appellants stated in para-III (D) as follows: Points arose for decision before the learned Single
Judge: “Whether the letter dated 12.11.2004 was served or communicated to the petitioners.†The WA No. 73 of 2012 was dismissed vide order
dated 23.03.2012. Further, in the said order passed in WA No.73 of 2012, it was reflected as follows: “According to the council, these
appointments were terminated vide order dated 12.11.2004.†The above recording of the submissions of the counsels in the writ appeal also clearly
shows that the petitioners herein were well aware of the termination of their services by impugned termination order dated 12.11.2004. However, in
the present writ petition, i.e. WP( C) No. 2056 of 2017, the petitioners have taken a stand that they were never aware of the impugned termination
order dated 12.11.2004 and that they became aware of the same only when the respondents filed the affidavit in opposition.
The order dated 18.01.2012 passed in WP ( C) No. 8748 of 2005 states as follows:
           “Heard Mr. R.K. Talukdar, learned counsel for the petitioners as well as Mr. S. K hound, learned Standing Counsel,
BTC. I have also heard Mr. P.N. Goswami, learned Standing Counsel, Education Department. By means of this writ petition filed on 19.12.2005, the
petitioners have prayed for regularization of their services with further claim of arrear salary. The petitioners were appointed as LDA and Gardener
vide Annexure-3 orders passed in the year 1997-98. The orders will reflect that they were so appointed against non sanctioned post purely on
temporary basis on fixed pay. In the writ petition, the petitioners have referred to their engagement orders, but have not stated anything about the
orders dated 12.11.2004, by which, the BTC authority had dispensed with their services. The said order has been brought on record by annexing a
copy of the same in the affidavit-in-opposition filed by the respondents No. 3 and 4. While Mr. Talukdar, learned counsel for the petitioners has
emphasized on regularization of services of the petitioners, Mr. Khound, learned Standing Counsel, BTC has submitted that going by the very nature of
the appointment of the petitioners, there is no question of regularization of their services. In this connection, he has referred to the counter affidavit
filed by the respondents No. 3 and 4, in which it has been stated that the petitioners were appointed under the particular policy called New Education
Policy of the erstwhile BAC in the year 1997 along with the Mother Teachers, English Teachers and Malis (Gardeners). It has been stated that the
said policy was never approved by the Government of Assam and thus could not be continued and consequently, the services of the petitioner had to
be dispensed with by the said order dated 12.11.2004 issued under the sig nature of the Joint Secretary, BTC. I have considered the submissions made
by the learned counsel for the parties an d the entire materials on record. Admittedly the petitioners were appointed against nonsanctioned post as the
orders of appointment referred to above have clearly recorded that the petitioners were appointed against non-sanctioned post on purely temporary
basis. They were appointed against a particular education policy of the then BAC, but the Government of Assam never approved the same. In such a
situation, there is no question of continuation in service and accordingly their services were dispensed with by the aforesaid order passed by the BTC
authority. While filing the writ petition, the petitioners did not highlight anything in respect of the said order dated 12.11.2004 (Annexure-A to the
counter affidavit). The said order is also not under challenge in this proceeding. In view of the above, no relief can be granted to the petitioner.
Accordingly writ petition is dismissed. However, if the petitioners are entitled to receive any salary for the period they had worked under the
respondents, the respondents may do the needful in this regard in accordance with law.â€
In the case of K.D.Sharma â€"vs- Steel Authority of India Ltd. & Ors, reported in (2008) 12 SCC 481, the Apex Court has held at para-38 and
39 as follows:
The above principles have been accepted in our legal system also. As per settledlaw, the party who invokes the extraordinary jurisdiction of this
Court under Article 32 or of a High Court under Article 226 of the Constitution is supposed to be truthful, frank and open. He must disclose all
material facts without any reservation even if they are against him. He cannot be allowed to play `hide and seek' or to `pick and choose' the facts he
likes to disclose and to suppress (keep back) or not to disclose (conceal) other facts. The very basis of the writ jurisdiction rests in disclosure of true
and complete (correct) facts. If material facts are suppressed or distorted, the very functioning of Writ Courts and exercise would become impossible.
The petitioner must disclose all the facts having a bearing on the relief sought without any qualification. This is because, ""the Court knows law but not
facts"".
If the primary object as highlighted in Kensington Income Tax Commissioners iskept in mind, an applicant who does not come with candid facts
and `clean breast' cannot hold a writ of the Court with `soiled hands'. Suppression or concealment of material facts is not an advocacy. It is a jugglery,
manipulation, maneuvering or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the
material facts fairly and truly but states them in a distorted manner and misleads the Court, the Court has inherent power in order to protect itself and
to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the Court does
not reject the petition on that ground, the Court would be failing in its duty. In fact, such an applicant requires to be dealt with for contempt of Court
for abusing the process of the Court.â€
Eight out of the nine writ petitioners n WP ( C) No. 2506 of 2017, except forwrit petitioner no.7, were writ petitioners in WP ( C) No. 4819 of
2011 and appellants in WA No.73 of 2012. However, they have chosen to play hide and seek with respect to the above cases and the dismissal of the
said cases. They have blatantly taken the stand that they have come to know of the termination order dated 12.11.2004, only when the respondents
filed their affidavit in opposition. In view of the observation of the Apex Court in K.D. Sharma (supra) , this Court is not inclined to proceed any
further with WP ( C No. 2506 of 2016 as they have suppressed facts and tried to mislead the Court, besides their case having no merit, the same
is accordingly dismissed.
With regard to the other writ petitions, the question that arises is whether thepetitioners were appointed as per Rules and to regular sanctioned
posts. Further, whether the petitioners have any legal right for their services to be regularized and whether the impugned order dated 12.11.2004
mentioned above was communicated to the petitioners.
In the case of Dulu Devi â€"vs- State of Assam & Ors , reported in (2016) 1 SCC 622 and in Bachhittar Singh â€"vs- State of Punjab & Ors.
reported in (AIR 1963 395), the Apex Court has held that unless an order has been communicated to the person who would be affected by the
order, then only the State and that person can be bound by that order. Thus, an uncommunicated order of termination will be ineffective and cannot
have any force, as the same cannot be said to have been communicated.
The extract of Section 3 of the Assam Elementary Education (Provincialization)Rules, 1977, hereinafter referred to as the “1977 Rules,†is
reproduced below:-
  “3. (i) Method of recruitment â€"In the month of January every year the D. I. shall invite applications in prescribed form for vacancies of
elementary schools teachers which are likely to occur in the year in his establishment.
(ii) Age â€" (a) A candidate shall be within the age limit on 1st January of the year of recruitment as prescribed by the Government. (b) The upper
age limit shall be relaxed, in favour of Scheduled Castes and Scheduled Tribes as per Rules made by the Government.
(iii) Qualification. (a) Matriculation/High School/School Leaving CertificateExamination 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.  (b) For M.V. and Senior Basic Schools qualification shall be Matric, Normal or Intermediate or its
equivalent.
(iv) Character. A candidate shall furnish the certificates of character from(1) 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
(v) Selection Committee. There shall be a Selection Committee in eacheducational 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. of
Schools shall be the Chairman and Secretary of the Selection Committee respectively...........â€
A perusal of the Section-3 of the 1977 Rules shows that the Chairman of the Sub-Divisional Level Advisory Board for Elementary Education and
the Deputy Inspector of Schools are to be the Chairman and Secretary of the Selection Committee. In the present case, there is nothing to show that
the Selection Committee, which selected the petitioners as English Teachers of LP Schools, have been constituted in pursuance to Section 3 of the
1977 Rules.
In fact, the appointment orders of the petitioners show that they have been selected by the Managing Committee of the Schools, though the Schools
are provincialized schools, which is not permissible. The selection of the petitioners for appointment have been made in violation of Rule 3(V) of 1977
Rules and accordingly, no benefit can be given to persons who have been appointed dehors the rules, as no legal rights could have accrued to them.
A perusal of the Employment Notice dated 31.03.1997 shows that the post ofEnglish Teachers for provinciliazed LP Schools were to be filled up.
The Employment Notice also states that the posts of English Teachers would carry Rs.900/- per month as salary. The appointment orders of the
petitioners shows that petitioners have been appointed against non-sanctioned posts, at a fixed pay of Rs.900/- per month, w.e.f. the date of selection
of the candidates by the Managing Committee of the school.
The appointment orders of the petitioners clearly put to rest the issue of whetherthe petitioners were appointed against the sanctioned posts or
non-sanctioned posts. The appointment orders clearly states that the petitioners were appointed against non-sanctioned posts. In the case of State of
Karnataka â€"vs- Uma Devi (3) reported in (2006) 4 SCC 1, a Constitution Bench of the Apex Court held that appointments made without following
the due process or the Rules relating to direct appointment do not confer any right on the appointees and the Court cannot direct their absorption,
regularisation or re-engagement in order to make their services permanent. The Apex Court however made one exception to the above proposition in
paragraph -53, which is reproduced below:-
One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa
[1967 (1) SCR 128], R.N. Nanjundappa [1972 (1) SCC 409] and B.N. Nagarajan [1979 (4) SCC 507] and referred to in para 15 above, of duly
qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without
the intervention of orders of the courts or of tribunals. The question of regularization of the services of such employees may have to be considered on
merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of
India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure, the services of such irregularly
appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should
further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary
employees or daily wagers are being now employed. The process must be set in motion within six months from this date.
In the case of State of Karnataka â€"vs- M.L. Kesari & Ors, reported in (2010) 9 SCC 247, the Apex Court while interpreting paragraph 53 of
Uma Devi (3) (supra), held as follows:-
“It is evident from the above that there is an exception to the general principles against `regularization' enunciated in Umadevi, if the following
conditions are fulfilled :
(i) The employee concerned should have worked for 10 years or more in dulysanctioned post without the benefit or protection of the interim order of
any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service
voluntarily and continuously for more than ten years.
(ii) The appointment of such employee should not be illegal, even if irregular. Wherethe appointments are not made or continued against sanctioned
posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But
where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without
undergoing the process of open competitive selection, such appointments are considered to be irregular.â€
In the present case, as the appointment orders of the petitioners clearly shows thatthey were appointed against non-sanctioned posts, the prayer of
the petitioners for regularisation of their services cannot be granted in view of the law laid by the Apex Court in Uma Devi (3) (supra) and M.L
Kesari (supra).
Further, in WP (C) No.2573 of 2012 (All BTAD School, Mother Teachers Association & Another â€"vs- State of Assam & Ors), disposed
off by this Court vide order dated 17.08.2017 , the petitioners therein, who were Mother teachers, had prayed for regularisation of their services and
had also challenged the impugned termination order dated 12.11.2004, which is also impugned in the present case. This Court dismissed the writ
petition vide order dated 17.08.2017 and the operative portion of the order, which is at paragraphs 13 and 14, are reproduced below:-
“13.   As can be seen, the litigants were aware of the termination order dated 12.11.2004 during the proceeding of the WP(C) No.864/2009
and yet, they chose not to challenge the discharge order at that stage. Moreover, they failed to challenge the verdict in any higher court, although their
salary claim was restricted to the pre-termination period. In fact, the petitioners had filed the contempt case in respect of the Court's judgment in the
WP(C) No.864/2009 and the Director BTC has passed a speaking order, rejecting the salary claim of the school mothers. The association has already
challenged the speaking order through the WP(C) No.7804/2016 and the same is pending. Therefore, it may not be appropriate in this case to
comment on the reasons reflected in the speaking order, for rejecting the salary claim of the school mothers.
 Nevertheless, for the reasons recorded in the preceding paragraphs, the 2nd case by the same association on practically same cause of
action, would not in my view be maintainable. Therefore this writ petition is not entertained and is dismissed. No cost.
Further, this Court in WP (C) No. 2573 of 2012 had taken the impugned order dated 12.11.2014 to be the termination order.
This Court has also seen the records of WP (C) No.2800 of 2009, WP (C) No. 1855of 2012, WP ( C) No. 2573 of 2012, WP (C) No. 4234 of
2015, WP ( C) No. 4459 of 2015 and WP ( C ) No. 4461 of 2015, wherein the Mother Teachers, whose services had been terminated by the same
impugned order dated 12.11.2004 had EITHER prayed for setting aside the termination order or payment of arrear salaries. The prayer for setting
aside the termination order dated 12.11.2004 were rejected. All the above writ petitions were dismissed on different dates.
This Court also finds that a number of English Teachers had filed WP (C) No. 3441of 2010 (Dinesh Chandra Brahma & 189 Ors â€"vs- State of
Assam & Ors.) praying for payment of arrear salary from the date of their appointment till 12.11.2004 i.e. the date of the termination of their
services. In the said WP ( C) No. 3441 of 2010, no challenge has been made by the petitioners therein, with regard to the impugned termination order
dated 12.11.2004, though it has been categorically mentioned in the writ petition in paragraph-11, that they had rendered their services from the date of
appointment to the date of termination i.e. 12.11.2004.
Another group of English Teachers and Mother Teachers also filed WP (C)no.4567 of 2012 ( All BA Council L.P.School and English and Mother
Teachers Association & anr. â€"vs- State of Assam & Ors) in WP (C) No. 4567 of 2012. The prayer of the petitioners was for a direction to be
issued for payment of their arrear salary from 1998 till their termination, i.e. 12.11.2004. In WP (C) No.4567 of 2012, no prayer for setting aside the
termination order was made by the petitioners. In fact, paragraph-5 of the writ petition in WP ( C) No.4567 of 2012 states as follows:
“That the petitioner states that by Constitutional Amendment Act, 2003 (Act 44/2003) the Bodoland Territorial Council came into existence w.e.f
07/09/2003 and conferred power and functions under 6th Schedule of the Constitution of India. The Bodoland Territorial Council vide its resolution
No.4 dated 12.10.2004 terminated services of all mother teachers, L P English teachers, LD Assistant in M.E. Schools, Mali in High Schools illegally
and without giving notices.
The Bodoland Territorial Council herein after call “BTC†for easy reference and convenience.â€
 Though the date of the termination order is mentioned as 12.10.2004 in paragraph 5 of the writ petition, Annexure-8 of the said writ petition is the
impugned termination order dated 12.11.2004. WP(C) No. 4567 of 2012 was disposed off as not pressed by this Court vide order dated 05.09.2017.
The above clearly gives rise to an inference and implies that the respondents had issued the termination order dated 12.11.2004 to all the concerned
English Teachers, including the petitioners.Â
The appointment orders of the petitioners in WP (C) No.1427 of 2016, WP (C) No. 1992 of 2016, WP( C) No.3865 of 2016, WP ( C) No. 4440
of 2016, WP ( C) No. 6250 of 2016 and WP ( C) No. 697 of 2018 show that the petitioners were appointed against the nonsanctioned post. Further,
the appointment orders in WP ( C) No. 1260 of 2016, WP ( C) no.1427 of 2016, WP ( C) No.3266 of 2017, WP ( C) No.3865 of 2016, WP ( C) no.
5012 of 2016, WP ( C) no.6250 of 2016 and WP ( C) No.697 of 2018 shows that the appointments were made on the basis of the selection made by
the Managing Committee of the school. In the other appointment orders made in respect of the other petitioners in the other writ petitions, there is
nothing to show that the Selection Committee had selected them. It is not in dispute between the parties that the appointment of English Teachers
should have been done under Section 3 of the 1977 Rules. The appointment orders of the petitioner however, show that though the schools in
questions were provincialised schools, the petitioners were appointed on the basis of selections made by the School Managing Committee against
nonsanctioned posts.
In the case of Jahangir Alam â€"vs- State of Assam & Ors, reported n (2003) 3 GLT 544, this Court has settled the issue with regard to whether
honorary teachers appointed by the Managing Committed of a provincialised school would have any legal or equitable right for such appointment
and regularisation. This Court, on considering Rule -3 of the 1977 rules and Rule 7 of the Assam Secondary Education (Provincliasation) Rules, 1982
held that the Rules of 1977 as well as those of 1982 did not contemplate any role of the Managing Committee in the matter of appointment of teachers
in a provincialised school. This Court thus held that the service of those not appointed as per the above rules was fortuitous and there was no power to
regularise such appointments under the Rules. The extract of paragraph-10 of the Judgment passed by the Court in Jahangir Alam is reproduced
below:
“ The Rules of 1977 as well as those of 1982 , as referred to in the preceding paragraph, do not contemplate any role of the Managing Committee
in the matter of appointment of teachers. The aforesaid Rules having provided for appointments in a particular manner by a specified authority upon
due selection by a duly constituted Selection Board, the appointment of the petitioners made by the Managing Committees are clearly contrary to the
provisions of the statutory enactment in force. The service rendered by the petitioners, therefore, must be held to have been rendered in fortuitous
circumstances as distinguished from regular service rendered under the State. Appointments made in departure to the Rules in force and services
rendered on basis of such appointments cannot be understood to cast any obligation on the part of the State to regularize such appointments. In fact no
power to regularize such appointments is discernible under the Rules. The office memorandums issued in the years 1979, 1986 and 2001, reliance on
which have been placed by the petitioners, would be of no consequence whatsoever, as the aforesaid office memorandums, even during the period
when they remained in force, cannot be understood to have introduced a procedure or to have conferred a power when they remained in force, cannot
be understood to have introduced a procedure or to have conferred a power in contra- distinction to the procedure prescribed and the power conferred
by the stature.â€
Keeping in view the Judgment of this Court in Jahangir Alam, it is clear that theappointment of the petitioners herein (English Teachers) have been
made on the basis of a selection made by the Managing Committee of the School, which is dehors the rules. Accordingly, no legal right accrues to the
petitioners to enable them to continue in the post in which they were illegally appointed. Further, it is surprising that though the petitioners have not
been given their salary from December, 2004, none of the petitioners, in any of the writ petitions being decided, have made a prayer for release of
their current and arrear salary. This further gives rise to an inference that the petitioners were aware of the termination order dated 12.11.2004.
Various writ petitions that have been dismissed earlier, were filed by Mother Teachers, LDA and English Teachers, as the impugned termination order
dated 12.11.2004 had affected hundreds of Mother Teachers, LP English Teachers, LDA in ME Schools and Councillor Teachers. It is unbelievable
that the termination order dated 12.11.2004, which had wide ramifications in the land under the control of BTC, were not known to the petitioners,
inasmuch as, while hundreds of persons have unsuccessfully challenged the Impugned termination order as stated in the foregoing paragraphs, the
petitioners herein were all blissfully unaware of the said order.
As the impugned termination order dated 12.11.2004 has been upheld by thisCourt in many cases, this Court is of the considered view that the
petitioners were well aware of the existence of the termination order dated 12.11.2004. Besides the above, this Court finds that the present case is hit
by delay and laches. The petitioners were given their pay in 2015, for the period from 1997-1998 till November, 2004. However, they have not made
any claim for payment of salary from the month of December, 2004 onwards in any of the above writ petitions.
In view of the reasons cited above, this Court does not find any merit in the writpetitions and they are accordingly dismissed.