Phanindra Dutta vs Harendra Nath Das Ors.

D.N. Chowdhury, J.—This appeal is directed against the judgment and order dated 6.6.1997 passed by the learned Single Judge in Civil Rule No. 2823/96 setting aside the order of appointment of the Appellant as Subject Teacher in Assamese and directed the Respondents to appoint the Respondent No. 1 in place of the Appellant. The Respondent No. 1 was the Petitioner in Civil Rule No. 2823/96 who sought for quashing the Notification dated 25.3.96 (Annexure-7 to the Civil Rule) by which the Director Secondary Education, Assam conveyed the approval of five Subject Teachers among others as Subject Teacher of the State Government including the name of the Appellant who was arrayed as Respondent No. 5 in the Civil Rule. In addition the Respondent No. 1, the Petitioner sought for a further direction on the Respondents/Authorities to approve the name of the Writ Petitioner (Respondent No. 1 hereinafter referred to) as the Subject Teacher in place of the Appellant.

The Respondent No. 1 pleaded inter-alia that coming to know of the facts that the second post of Assamese Subject Teacher was lying vacant in the Swahid Rauta Madan Higher Secondary School (hereinafter referred to as School) he approached the Government for seeking prior approval of the Government for being appointed to the said post. By the Communication dated 19.5.94 the Deputy Secretary to the Government of Assam, Education (Secondary) Department forwarded the name of Respondent No. 1 to the Principal, Swahid Rauta Madan H.S. School, Barpeta for taking appropriate action for his appointment as subject teacher. On the strength of the said communication dated 19.5.94 the Principal of the School appointed the Respondent No. 1 regularly on 19.5.94 as Subject Teacher in Assamese II in the School subject to the approval of the higher authority concerned with the direction to join in the post with immediate effect. Pursuant thereto, the Respondent No. 1 had joined in the Post in the School on 19.5.94. It was further pleaded that the Assistant Inspector of Schools, Barpeta District Circle, Barpeta forwarded the proposal along with necessary documents received from the Principal in the School praying for approval of the appointment of the Respondent No. 1 as Subject Teacher in 2nd Assamese post. It was also averred that the Government of Assam took a policy decision for upgrading 82 High Schools into Higher Secondary Schools with the creation of different categories of posts and the School in question was amongst one of those Schools which was decided by the State Government for upgradation in terms of the aforesaid policy decision. On the strength of the said decision the School in question was provincialised as Higher Secondary School and following such upgradation 9 (nine) posts including 2 (two) posts in Subject Teachers in Assamese were allotted to the School by communication dated 12.3.96. On the strength of the above order the Petitioner was working as 2nd Assamese Subject Teacher in the school with the expectation that his name would be approved as a 2nd Assamese Subject Teacher in the School. But to his surprise the Respondent No. 5 (Appellant herein) was approved as Subject Teacher in Assamese in the School vide a communication dated 25.3.96 (Annexure-7 of the Civil Rules). It was pleaded inter alia that the Appellant was working as an Assistant Teacher in the High School Section and was not at all working as Subject Teacher like the Respondent No. 1 in the School. According to the Respondent No. 1 the Appellant started to teach at the Higher Secondary Section of the School only after receipt of the letter dated 25.3.96 and the result of the purported order of the Appellant led to the ouster of the service of the Respondent No. 1 as Subject Teacher. According to the Respondent No. 1 his name was omitted at the last stage and instead of approving his name the Appellant who was not even a teacher in the Higher Secondary Section was incorporated by hand strucking off his name by pen. The pleading of the Respondent No. 1 in this respect is extracted below:

...The Petitioner on learning that instead of his name being approved as a 2nd Subject Teacher of Assamese, the name of Respondent No. 5 has been approved made inquiries in the office of the Director of Secondary Education, Assam as to the reasons for omitting his name and instead approving the name of Respondent No. 5 who was not even a teacher in the Higher Secondary Section of the School. In the process the Petitioner to his utmost astonishment has learnt that in respect of Swahid Rauta Madan Higher Secondary School in Barpeta District which is indicated against serial No. 34 of the list prepared by the office of the Director of Secondary-Education, just after the name of Vice-Principal, his name was shown as approved with the indication of 19.5.95 as his date of joining but subsequently for some extraneous consideration his name has been struck off by pen and the name of Respondent No. 5 Shri Phanindra Dutta has been incorporated by hand in the said document.

The name of the Petitioner along with his date of appointment being type written can clearly be made out in the said approval granted in respect of teachers of Swahid Rauta Madan Higher Secondary School and the action appears to be a handi-work of some interested person in the office of the D.S.E. who are working to further the interest of the Respondent No. 5 who cannot certainly have a better claim than the Writ Petitioner, who has been working as a Subject Teacher in Higher Secondary level of the School since 19.5.94.

Your Petitioner craves leave to produce before this Hon''ble Court a photostat copy of the relevant portion of the approval documents prepared by the office of the D.S.E. indicating the interpolation, at the time of hearing of the present Petition.

... That your Petition humbly states that being a 2nd Subject Teacher appointed to the School as far back as on 19.5.94, and 2 posts having been sanctioned for the School as Assamese Subject Teacher, the name of the Petitioner ought to have been approved by the Director of Secondary Education as a Subject Teacher in Assamese of the concerned School. But by a process of interpolation the name of the Writ Petitioner has been struck down in the approval list and instead the name of Respondent No. 5 who was not even teaching Higher Secondary classes of the School has been inserted in place of the Writ Petitioner arid by and through such process of interpolation, the Respondent authorities are seeking to oust the Petitioner from his service and also his legitimate claim for being appointed to the sanctioned post of Subject Teacher in the said School. The impugned action of the Respondents is wholly unauthorised and illegal and cannot be supported under any circumstances in view of the fact that interpolation and fabrication has been resorted to by the Respondent authorities to oust the Petitioner from his service and to bring the Respondent No. 5 in place of the Writ Petitioner....

The Respondent contested the case and filed their affidavits. Respondent No. 4 and 5 filed joined affidavit and questioned the manner of appointment of the Writ Petitioner (Respondent No. 1) and stated that Writ Petitioner was never served in the School as 2nd Subject Teacher in Assamese at any point of time. The Respondent No. 5 (Appellant herein) pleaded that he was appointed on 1.3.71 as an Asstt. Teacher in the School in undergraduate scale and he availed graduate scale from 12.1.76, which was approved by the Inspector of Schools on 16.7.76 and the service of the Respondent No. 5 was confirmed as such on 1.3.88 by the authority. At that time the Respondent No. 5 was graduate and he also passed M.A. in Assamese on 27.12.93 (sic). The School was provincialised on 2.10.77 and in the first phase the Respondent No. 5 along with others became the teachers of the provincialised school and also became the Government servant u/s 3 of the provincialisation Act. The School was declared Higher Secondary School on 9.11.92 without financial benefit and the Respondent No. 5 became the Subject Teacher in Assamese on 23.11.92 in the said School. In support of his contention the Respondent No. 5 enclosed the service book showing the upgradation of his post with effect from 14.3.93 vide resolution dated 14.3.92 of the Managing Committee. The Managing Committee of the School also requested the authority to appoint as many as 14 teachers in the proposed School and also to forward the said resolution to the authority concerned. The Respondent No. 4, the Principal of the School sent the names of teachers with statements of their particulars, the date of joining, etc. and in the said list 3 names of Assamese Teachers were cited as Assamese Teachers. The following names were sent as Assamese Teachers:

...

Phanindra Dutta, M.A. (Assamese) MIL (Assamese) Respondent No. 5

Pabitra Kumar Roy (2nd Post) in Assamese.

Monoranjan Sarma-3rd Post in Assamese

...

According to the Respondents, out of those three nominees, the Respondent No. 5 and one Monoranjan Sarma, were appointed, as Assamese Teacher in the Higher Secondary School and the name of Sri Pabitra Kumar Roy whose name was also forwarded by the Managing Committee approached the High Court for his redress against appointment of Monoranjan Sarma as the second teacher and moved this Court by way of writ petition which was pending before this High Court. By order dated 25.3.96, the appointment of the Appellant (Respondent No. 5) as well as Mr. Monoranjan Sarma was approved vide communication dated 25.3.96 and both of them were functioning as such in the School. The Respondents also stated that the then Principal-in-Charge, Shri Hem Chandra Khataniar who retired on 28.2.96, issued the purported order of appointment in favour of the Respondent No. 1 as an Asstt. Teacher in the School after his retirement. The Managing Committee did not allow him to join in the School vide its resolution dated 21.6.94. The State Government did not file any affidavit. The writ petition was ordered for hearing and the learned Single Judge upon hearing the parties and upon considering the available materials on record, found that the Respondent No. 5 (Appellant) was over-aged when the impugned order of appointment on 25.3.96. The learned Single Judge observed that without relaxing the age of the Appellant, he could not have been appointed to the post and accordingly, appointment of the Appellant as the Subject Teacher was quashed and in his place, Respondent No. 1 was ordered to be appointed. However, the learned Court left it open to the authority to consider as to whether there could be any scope of relaxation of age of the Respondent (Appellant herein) in the facts and circumstances of the case. But under no circumstances, it could be done without relaxing the age of the Appellant. Hence the writ appeal.

The Respondent No. 1 claimed his appointment on the basis of communication sent by the Deputy Secretary to the Govt. of Assam, Education (Secondary) Department on 19.5.94 which reads as follows:

... No. D(3)S.272/94/10

Dated Kahilipara, the 19th May, 1994

From: Shri R. Ahmed ACS,

Deputy Secretary to the Govt. of Assam.

To The Principal, Swahid Rauta Madan HS School, Barpeta.

Sub: Regarding appointment of Subject Teacher in Assamese.

Sir,

I am directed to forward herewith the petition in original as submitted by Shri Harendra Nath Das for taking appropriate action as per rule.

Yours faithfully Sd/- Deputy Secy, to the Govt, of Assam, Education Deptt....

A copy of the above communication was endorsed to the Respondent No. 1. The Headmaster of the School sent the following letter to the Respondent No. 1 which reads as follows:

Date 19.5.94

...

To:

Shri Harendra Nath Das, M.A.

Village-Akaya

District-Barpeta, Assam.

Dear Sir,

As per direction of the Deputy Secretary to the Government of Assam, Education Deptt., vide letter No. B(3)S 272/94/10-A dated Kahilipara the 19th May ''94 you are hereby appointed regularly as Subject Teacher in Assamese II in Swahid Routa Madan Higher Secondary, Bhotanta Saderi (illegible) subject to approval of the higher authority concerned.

You are also requested to join in your post with immediate effect.

...

By Annexure-4 dated 19.5.94 the Respondent No. 1 submitted his joining report. The Appellant was initially appointed as Assistant Teacher on 1.3.71 in the School and thereafter he was given graduate scale from 12.1.76 which was approved by the Inspector of Schools on 16.7.76. Though in the affidavit of the Respondents 4 and 5 the Respondent No. 5 was shown as Master Degree holder from 27.12.93. The Appellant (Respondent No. 5) stated that it was an inadvertent typographical mistake and referred to the service book annexed to the Writ Petition as well as the additional reply to the affidavit on behalf of the Respondent No. 1 wherein the Respondent No. 1 also stated that the Appellant obtained M.A. degree in Assamese on 27.12.83. By a resolution of the Managing Committee of the School dated 14.3.93 proposed to forward 14 (fourteen) teachers and staff with communication to the departmental authority to appoint them to run the School smoothly. In the said list the name of the Appellant was shown at SI. No. 1 amongst the Subject Teacher, who was proposed to be appointed Mr. B.K. Sharnia. the learned Counsel appearing on behalf of the Appellant has submitted that the Respondent No. 1 as writ Petitioner since sought for a writ of mandamus commanding the Respondents to approve his appointment as Subject Teacher in Assamese, it was incumbent upon him to show and establish his right to gel approval to the post on the strength of a lawful appointment. The learned Counsel pointing out to the communication dated 19.5.94, has submitted that the Deputy Secretary to the Govt, of Assam only forwarded the petition in "original" as submitted by the Respondent No. 1 for taking action as per rules, but under no stretch of imagination, the above communication could be treated for a direction of appointment of the Respondent No. 1 as the Subject Teacher in the School. Mr. Sharma also pointed out that the Government took a policy decision to upgrade 82 High Schools including the School-in-question into Higher Secondary Schools on 10.1.96 and the order of creation of posts including the creation of two posts of Subject Teachers in Assamese in the School-in-question, was issued only on 12.3.96 vide Annexure-6 of the writ petition. The said communication, assuming that the person who signed the appointment letter on 19.5.94 was in service (according to Mr. Sharma, he was superannuated on 28.2.94) could not have been treated as a letter of appointment in the absence of a vacancy of a Subject Teacher in Assamese. The said letter relied by die Petitioner as an appointment letter did not carry any weight. Mr. Sarma firstly submitted that there was no direction of the Deputy Secretary as referred to by the'' Headmaster/Principal in his appointment letter dated 19.5.94 and secondly, the Headmaster was not the authority to issue appointment letter in the absence of sanction of the Managing Committee which was functioning at that time, that too in the absence of any vacancy to that effect. Mr. Sharma, the learned Counsel also submitted that on that date, the School-in-question was a Non-Government Secondary School and the Managing Committee was the only authority to appoint person only against existing vacancy. Neither the Government of Assam nor the Headmaster had any authority on that date to appoint a Subject Teacher in a Non-Government aided School. Mr. Sharma, the learned Counsel submitted that in the absence of any valid letter of appointment in favour of the Petitioner, the Court was not justified in issuing a mandamus to the Respondents for the approval of the Petitioner''s purported appointed.

Mr. Sharma, the learned Counsel next submitted that there was no materials before the learned Single Judge who held that the Appellant was not eligible to hold the post and set aside the appointment of the Appellant on the ground of over-age. The learned Counsel, Mr. Sharma, submitted that the Appellant has spent best part of his life in the School-in-question since 1971 and the concerned authority lawfully appointed him as Subject Teacher (1st) in Assamese since the school was functioning as a Higher Secondary School. The Managing Committee duly recommended his name by its resolution for absorbing him in a regular post on provincialisation of the School against one of the sanctioned posts in Assamese. The Respondents considering all the aspects of the matter, duly conveyed the Government approval. The communication dated 25.3.96, which was relied in the case, was only one of the inter-departmental communications of the Deputy Secretary to the Principal of the School. The said communication also referred to the communication of the Government bearing No. B(3)H.667/94/97 Dt. 18.1.96 as well as the letter No. PHA/282/92/pt-v/III dt. 29.2.96. By the communication dated 18.1.96, it was already ordered that the appointments were to be made as per the rules and existing norms. The above communication only conveyed the approval of the State Government for being appointed as Subject Teacher approved vide the Government letter dated 29.2.96. The Governmental authority is presumed to have acted regularly and in conformity with the law in the absence of any contrary materials. Mr. Sharma, the learned Counsel for the Appellant also submitted that the cancellation of the very appointment of the Appellant on the above ground was, therefore, not justified in law.

Mr. H. Roy, the learned Counsel appearing on behalf of the Respondent No. 1 in his usual persuasive manner concentrated his argument in support of the judgment and order of the learned Single Judge. Mr. Roy, the learned Counsel referring to the relevant rules, submitted that the Appellant on the date on which his approval was granted, admittedly was over-aged; therefore, his appointment could not have been approved without the relaxation of his age in conformity with the Service Rules.

On the survey of the factual matrix, it thus transpires that the order of appointment dated 19.5.94, in favour of the Respondent No. 1 (writ Petitioner) on the strength of the communication issued by the. Deputy Secretary, cannot be treated as lawful. Under what circumstances the Deputy Secretary to the Govt. of Assam was directed to forward the petition of the Respondent No. 1 as referred to in the communication to the Principal for taking appropriate action, was not explained by the Petitioner, There was no discernible ground for the Deputy Secretary, for that matter, for the Government to put its Oar in the matter of recruitment in a non-Governmental institution. The communication was sent on 19.5.94 and on the same day, the Headmaster issued the letter appointing the Respondent No. 1 regularly as Subject Teacher in Assamese on the purported direction of the Deputy Secretary though in fact, there was no direction of the Deputy Secretary. No material of whatsoever nature was disclosed as to the legal authority of the Headmaster to appoint a Subject Teacher-that too on a regular basis. The Headmaster of a Non-Government Aided School could not have acted on his own without die due authorisation of the Managing Committee under the law and as per the existing norms and practice. Besides, the said letter itself mentioned the appointment of the Respondent No. 1 subject to the approval of the higher authority concerned. No such post facto approval even was shown to have been made in favour of the appointment of the Respondent No. 1. Mr. Roy, the learned Counsel for the Respondent No. 1, when asked by us for any other supporting materials to sustain his appointment, fairly submitted that save and except those two documents, he was not in possession of any other materials in defence of his claim to the post.

The writ Petitioner knocked the door of the Court for a peremptory order in the nature of mandamus commanding the Respondents to do its legal duty. A writ of mandamus is not like that of the Certiorari or a writ of prohibition, which are used whenever an inferior authority unlawfully exercised its jurisdiction or exceeded its bounds. A writ of mandamus may be issued to compel the authority to perform its lawful obligation entrusted under the law. Such a direction can be issued to any person who is under a duty imposed by the Statute or by law to do a particular act. The legal right to compel the performance of a public duty must rest with the person who seeks a writ of mandamus. He must show that he possesses a legal right to insist on such performance. In such a case, he or she must show that he or she possesses a legal right to the performance of a legal duty. In the absence of any lawful order in support ofthe recruitment of the Respondent No. 1, the question of issuing a direction for approval of such appointment was not legally permissible. Before adjudicating the issue involved in the case, it may be pertinent to recall the relevant provisions of the Assam Secondary. Education (Provincialised) Service Rules, 1982 which reads as follows:

3 Class and cadre. (1) The service shall consist of the following Grades, namely-

Grade-I

Grade-II:

(i) Headmaster or Headmistress of High School, hereinafter called Headmaster only (Non-Gazetted).

(ii)...

(iii)...

(iv) Subject Teacher or Post-Graduate Teacher of Higher Secondary and Multipurpose School, hereinafter called Post-Graduate Teacher only (Non-Gazetted).

Grade-III....

The method of recruitment. Recruitment to the posts of Post-Graduate Teacher in Grade-II Cadre, Graduate Teacher in Grade-IV Cadre, Senior Classical Teacher or Senior Hindi Teacher in Grade V cadre and Junior Teacher in Grade VI or Junior Classical Teacher or Junior Hindi Teacher in Grade VII Cadre of the service shall be made by direct recruitment only and the recruitment to the posts of Headmaster, Superintendent or Vice-Principal in Grade-II cadre and the posts in Grade-III Cadre of the service shall be made by promotion in the manner hereinafter prescribed:

Provided that for recruitment to vacancies in different institutions in the post of Post-Graduate Teacher, the Graduate Teachers serving in the institution and having the requisite educational qualification and minimum 2 years continuous teaching experience as such teacher and the Junior teachers serving in the institution and having the requisite educational qualification and minimum 5 years continuous teaching experience as such teacher and for the recruitment to the posts of Graduate Teacher, the Junior Teachers serving in the institution and having the requisite educational qualification and minimum 3 years continuous teaching experience as such teacher shall get priority over other candidates;

Provided further that notwithstanding anything contained in Sub-rule(1) of Rule regarding the maximum age limit for direct recruitment, in the case of the serving teachers having the requisite educational qualification and experience as prescribed in the foregoing proviso, the maximum upper age limit shall be 45 years and such candidates if recruited shall be entitled to get their pay protected.

Qualification for direct recruitment. (1) Age. A candidate for direct recruitment to the Service, other than serving teacher, shall be within the age limit of 21 years and maximum 30 years on the first day of January of the year of recruitment....

Relaxation. When the Government is satisfied that operation of any of these rules may cause undue hardship in any particular case, it may dispense with or relax the requirement of that rule to such extent and under such conditions as it may consider necessary for dealing with such a case in just and equitable manner; provided that the case of any person shall not be dealt with in any manner less favourable to him than that provided in any of these rules.

We have already indicated above the statutory provisions in respect of appointment of a subject teacher of a secondary school. The appointment of the Respondent No. 1 (writ Petitioner) fell short of a licit appointment on the face of the rules of recruitment as conferring a legally enforceable right on him. We have given our anxious consideration on the matter, however, on the basis of the materials on record, we could not find any justifiable ground for issuance of a writ of mandamus on the Respondent-authorities commanding them to approve the purported order of appointment in favour of the Respondent No. 1, Harendra Nath Das. In the facts and circumstances of the case, the impugned direction of the learned Single Judge to appoint the writ Petitioner (Respondent No. 1 in the appeal) is not sustainable in law and the said direction is accordingly liable to be quashed.

Admittedly, on 25.3.96, the Appellant exceeded fortyfive years of age. The communication dated 25.3.96, also indicated the Government direction for making appointment as per rules. The said communication only conveyed the names of the Subject Teachers/Demonstrators against the posts approved by the Education Department''s communication dated 29.2.96. The above dispatch also comprised the direction for making appointment as per rules. The Government while exercising its Statutory power, it is presumed, that it acts with responsibility and in conformity with the rules that it framed. In addition, the authority was armed with the relaxation clause as incorporated in Rule 15 of the Rules. Rule 15 clothed the authority with the discretion of relaxation-a power coupled with the duty to avoid injustice and inequities with a view to promote public interest. Service Rules are made to achieve cohesion as well as proficiency in service to attain the public interest. Rigid compliance may often cause inequity and injustices which may amount to oppression and give room to disenchantment and disillusionment to the employees which may frustrate the efficiency and integrity of the service. The State Government is armed with the power to relax the age in just and equitable manner in aid of public interest to overcome unforeseen situations. The State Government is bound to exercise the power in the interest of the public service to secure justice and to avoid hardship. From the narration of the facts, it has emerged that the Appellant was working in the School since 1971 and was working as a Subject Teacher in Assamese from the date of conversion of the School as a Higher Secondary School even while it was not a Provincialised school. Therefore, if the Appellant was even overaged, it was always open for the authority to take the aid of Rule 15 of the Rules. The materials, those are made available before the Court, do not unerringly lead to the conclusion that the order dated 25.3.96 approving the appointment of the Appellant was made by the Government in violation of any Rules. To hold a contrary view would only lead to a disquieting deduction that the authority like the State deliberately defied its own statute that it devised. In this context, it would not be inappropriate to recall the maxim, "Omnia praesumuntur rite et solemniter esse acta donee probetur in contrarium"-All things are presumed to have been rightly and duly performed until it is proved to the contrary. The above principle is embodied in the illustration (e) of Section 114 of the Indian Evidence Act, 1872.

Since we have already held that the Petitioner/Respondent was not appointed legally, there is no occasion to issue any direction to the authorities to approve the name of the Petitioner, as prayed. The other prayer of the Petitioner/Respondent, made in the Civil Rule, for quashing the notification dated 25.3.96 by which the name of the Appellant was approved for appointment, can also not be granted, much less at the instance of the Petitioner/Respondent. The Appellant has been serving in the institution since 1971 and has been working as Subject Teacher since the time of upgradation of the institution in the year 1992 and has been recommended by the Management Committee and approved by the competent authority. They Petitioner/Respondent would, therefore, not be entitled for grant of any relief, as prayed for in the Civil Rule. Rather, in the facts and circumstances of the case, if at all, the concerned authorities would better be advised to exercise their power under Rule 15 of the Rules regarding relaxation of upper age limit in relation to the Appellant, whose name stands approved by notification dated 25.3.96.

In the result, the appeal is allowed and the order passed by the learned Single Judge, dated 6.6.97, in Civil Rule No. 2823 of 1996, is set aside. The Civil Rule No. 2823 of 1996 is accordingly dismissed. Interim orders, if any, operating stand vacated. There would, however, be no order as to costs.