Jahangir Alam Vs. State of Assam and ors. - Court Judgment

Excerpt:
- - the alleged failure of the state to prevent the honorary teachers from discharging their duties is vehemently denied, by contending that instances of government issuing appropriate notifications/circulars prohibiting appointment of honorary teachers by the managing committees is replete. (iv) character -a candidate shall furnish the certificates of character from (a) 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. (d) the board shall furnish to the appointing authority a list of candidates recommended by it in order of preference. ' 10. 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. this is precisely what had happened as the notification constituting the task force dated 21.6.2000 was subsequently cancelled by notification dated 28.12.2001. thereafter the cabinet decision had been taken to the effect that the honorary teachers appointed by the managing committees of provincialised schools will not be regularized. a party who has been granted a licence may have a legitimate expectation that it will be renewed unless there is some good reason not to do so, and may therefore be entitled to greater procedural protection than a mere applicant for a grant. if it is established that a legitimate expectation has been improperly denied on the application of the above principle, the question of giving opportunity can arise if failure of justice is shown. viewed from the aforesaid perspective the approval granted in the cases of some of the petitioners and the recommendation made for regularization of the petitioners being clearly not authorized by the provisions of the specific law holding the field, the doctrine of legitimate expectation cannot come to the aid and assistance of the petitioners. ranjan gogoi, j.1. the petitioners in this group of cases are teachers of different l.p./ m.e./m.v./high/higher secondary schools of the state, who were appointed by the managing committee of the respective schools, which were already provincialised at the time of such appointment. the appointment of the petitioners was made mostly on honorary basis and in a few cases on payment of taken remuneration. regularisation of service/absorption against substantive vacancies, is the essence of the relief/reliefs claimed in each of the writ petitions.2. i have heard dr. b. ahmed, learned counsel for the petitioner in wp(c) no. 6125/03; mr. a.k. purkayastha, learned counsel for the petitioner in wp(c) no. 5469/98 and 1923/99; mr. n.n. karmakar, learned counsel for the petitioner in wp(c) no. 5551/01; mr. a.s. chaudhury, learned counsel for the petitioner in wp(c) no. 7822/02; mr. r.p. sharma, learned counsel for the petitioner in wp(c) no. 2052/02; mr. m. a. sheikh, learned counsel for the petitioner in wp(c) no. 6307/01; mr. a.r. sikdar, learned counsel for the petitioner in wp(c) no. 6712/01; mr. r.c. saikia learned counsel for the petitioner in wp(c) no. 3499/01 and mr. a.m. buzarbaruah, learned counsel for the petitioner in wp(c) no. 6022/99. mr. s.n. sarma, learned senior standing counsel, education department, government of assam has been heard on behalf of the state respondents in all the cases. the arguments advanced by the respective sides give rise to a common question of law, on the basis of which it had become possible to hear the cases analogously and to dispose of the same by the present common judgment and order. the question of law arising in this bunch of cases may be formulated as herein below :'whether honorary teachers appointed by the managing committee of a provincialised school would have any legal or equitable right for regularization of such appointment ?'3. on the arguments advanced two projections on behalf of the petitioners is discernible. firstly, a legal right to regularisation has been claimed on behalf of each of the petitioner by virtue of the long years of service rendered by them. some of the petitioners were appointed in the decade of 1980s and whereas the others were so appointed in the decade of 1990s.. long years of service rendered, by itself, it is claimed, vests in the petitioners a legal right to regularization. it is submitted on behalf of the petitioners that in all cases, the appointments were made by the managing committees in the interest of the schools; there were need for additional teachers in view of the students strength and as the state was unable to sanction the requisite number of posts, the managing committees, in the interest of the students were compelled to recruit the petitioners as honorary teachers. it is further submitted that the actions of the managing committees were in some cases, approved by the jurisdictional district level officers and in almost all cases, recommendations were made by such district level officers for suitable adjustment of the petitioners by granting due sanction of additional posts. learned counsels for the petitioners referred to the notes of inspection of the schools in question, which have been enclosed to the writ petitions to contend that the officers of the department were aware of the appointments and the services rendered by the petitioners and in all such inspection notes, the justification of the managing committees in making the appointments was accepted to be correct. the further argument advanced on behalf of the petitioners is that though under the provisions of the relevant statute, i.e., assam elementary education (provincialisation) act, 1974 and the assam secondary education (provincialisation) act, 1977 and the rules framed thereunder, the managing committee of a provincialised school has not been empowered to appoint teachers, there were certain office memorandums and notifications issued by the competent authority of the state from time to time vesting such powers in the managing committee. the power to make appointment of honorary teachers, it is contended, is traceable to such office memorandums and notifications issued. in particular, reliance has been placed on 3 notifications dated 26.12.1979, 18.1.1996 and 6.11.2001 in support of the aforesaid submissions. furthermore, the actions of the state in formulating schemes/policies, from time to time, for regularization of honorary teachers, as for instance the constitution of a task force by notification dated 21.6.2000, to examine the matter of such regularisation, has also been relied upon to contend, that at some point of time even the state had acknowledged a right of the honorary teachers to seek regularization of their services.4. the second argument advanced is an alternative argument made to be considered, in the event, the first argument does not find favour of this court. the doctrine of 'legitimate expectation' and principles of equity has been sought to be invoked as conferring on the petitioners an entitlement for regularization. the basis on which such legitimate expectation and equitable rights have been claimed, is the same as noted above. the petitioners, having rendered long years of service and no steps having been taken by the state to terminate such service, have nourished a legitimate expectation of being regularized, which, it is contended, must be enforced by the court.5. mr. s.n. sarma, learned senior standing counsel, education department, who has argued the case of the state, has refuted the arguments advanced on behalf of the petitioners with equal vehemence. learned senior standing counsel, by referring to the provisions of the assam elementary education (provincialisation) act, 1974 and the assam secondary education (provincialisation) act, 1977, has contended that the statute having envisaged a distinct and definite procedure for appointment of teachers in different schools of the state, and such appointments being required to be made on the basis of a due selection, the appointments made by the managing committees, have no sanctity in law. not only the managing committees of provincialised schools are not empowered to make such appointments, all such appointments were made without following any known procedure. the petitioners have accepted their appointments on honorary basis at their own peril. long years of service rendered on their own volition and in breach of the provisions of the statute, would not vest the petitioners with any legal right, as claimed. the action of the district level officers in approving some of such appointments, again, would not confer any legitimacy to an otherwise illegal appointment; no amount of recommendation made could have the effect of validating an otherwise invalid action, it is argued.6. it is further contended that the statute not having vested any power of appointment in the managing committees and the power of appointment having been conferred on a specified authority to be exercised after due selection by a duly constituted selection board, the various office memorandums and notifications relied upon by the petitioners, would be of no legal consequence. it is argued that the administrative instructions cannot be understood to have overridden the statute so as to enable this court to read any power of appointment in the managing committee. in any case, the administrative instructions issued were aberrations and were disowned by the state by their immediate withdrawals, specific details of which have been incorporated in the common affidavit filed by the state respondents. the alleged failure of the state to prevent the honorary teachers from discharging their duties is vehemently denied, by contending that instances of government issuing appropriate notifications/circulars prohibiting appointment of honorary teachers by the managing committees is replete. the constitution of the task force by notification dated 21.6.2000 for examination of the question of regularization of honorary teachers, was a limited policy decision, which had to be abandoned in the light of the experiences gained. the state subsequently by a cabinet decision taken on 22.8.2003, has decided that the services of all honorary teachers appointed by managing committees of provincialised schools, shall not be regularized. a copy of the cabinet decision has been placed before the court.7. the doctrine of legitimate expectation and the attempt to invoke equitable principles to further the claims made by the petitioners, have been resisted by the state, by primarily contending that the said principles would have no application to the instant situation, inasmuch as the entitlement of the petitioners to regularization not being permissible under the statute in force, such benefit cannot be collaterally conferred by a resort to the aforesaid principles.8. the primary, if not the sole question, that would arise for determination by this court in the present bunch of cases has been formulated. it is the entitlement of the petitioners to regularization that has to be determined and the correctness of the cabinet decision not to regularize the petitioners, has to be necessarily examined in the light of such entitlement, if any. interference and consequential directions can legitimately follow only if any entitlement to regularization can be recognized.9. before embarking upon a consideration of the arguments and counter arguments advanced on behalf of the parties, it may be apposite to quote hereunder the provisions of rule 3 of the assam elementary education (provincialisation) rules, 1977 framed under the act of 1974 and rule 7 of the assam secondary education (provincialisation) rules, 1982 framed under the act of 1977.'3. (i) method of recruitment. - in the month of january every year the d. i. shall invite applications in prescribed form for vacancies of elementary school teachers which are likely to occur in the year in his establishment.(ii) age - (a) a candidate shall be within the age limit on 1st january of the year of recruitment as prescribed by government.(b) the upper age limit shall be relaxed, in favour of scheduled castes and schedule tribes as per rules made by government.(iii) qualification - (a) matriculation/high school/school leaving certificate examination 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 p. u. or intermediate or its equivalent.(iv) character - a candidate shall furnish the certificates of character from (a) 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 each educational 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.(vi) on receipt of applications, the selection committee shall scrutinize the mark-sheets and other necessary testimonials of the candidates and prepare a list of candidates for interview by the selection committee.the selection committee shall then finalise a list of successful candidates in order of merit after interview and shall put up the list before the board for approval. while approving the list, the board shall be guided by the declared policies of the government and instructions issued by the government from time to time. after approval of the list by the board the same shall be sent to the director of elementary education for his final approval.the deputy inspector of schools will appoint the selected candidates in order of merit from the list approved by the director of elementary education as and when required as per government rules and government instructions for the time being in force.the list shall be valid for one year unless its validity is extended by government.''7. direct recruitment. - (1) direct recruitment shall be made on the basis of the recommendation made by the state level selection board in case of post graduate teachers and the district level selection board in all other cases in the manner hereinafter provided :(a) before the end of each year the appointing authority shall make a school-wise assessment of the likely number of vacancies to be filled up by direct recruitment during the next year in different institutions and shall intimate the same to the board. together with the details of reservation of candidates belonging to scheduled castes or scheduled tribes or any other category as laid down by the government and shall furnish a list of the eligible serving teachers stating in details about the name of the institution where they are serving, the period of service rendered, grade of the service and the period spent therein and also the post for which they are eligible and all other particulars and information that may be considered necessary either by the appointing authority or by the board. the appointing authority shall also furnish the relevant service records of such candidates to the board.(b) the appointing authority shall simultaneously request the board to recommend a list of candidates for direct recruitment in order of preference.(c) the board shall make selection of candidates holding such test and interview and scrutiny of certificates, service records, if any, and other published articles, etc., published by the candidate, as may be considered necessary :provided that while making the selection of candidates for recruitment to the 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 teacher serving in the institution and having requisite educational qualification and minimum 3 years continuous teaching experience as such teacher and for the recruitment to the post 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 be given priority over other candidates.(d) the board shall furnish to the appointing authority a list of candidates recommended by it in order of preference. the number of candidates in such a list may be approximately double the number of vacancies.(e) the board shall simultaneously publish the list in such places and in such manner as the board may consider fit and proper.(f) the list mentioned in clauses (d) and (e) of this rule shall remain valid for one year from the date of publication unless the government extend the validity of the list for further period in the public interest in consultation with the board.(g) the board shall furnish separate list for separate cadres or posts as may be required by the appointing authority and also state the name of the institution in case of serving teachers, for which the recommendation is made.(2) the following members shall constitute the district level selection board :(i) an educationist of repute to be nominated by the government -chairman.(ii) inspector of schools - member secretary.(iii) three educationists to be nominated by the government -members.'10. 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 in contra-distinction to the procedure prescribed and the power conferred by the statute. the constitution of the task force to explore the question of regularization of honorary teachers was a policy decision taken and a power must always be conceded to the state to abandon or depart from such policy in the light of the experiences gained. this is precisely what had happened as the notification constituting the task force dated 21.6.2000 was subsequently cancelled by notification dated 28.12.2001. thereafter the cabinet decision had been taken to the effect that the honorary teachers appointed by the managing committees of provincialised schools will not be regularized. the picture, therefore, that emerges is that the initial-appointments of the petitioners were unauthorized being contrary to the provisions of the statute. consequently the service rendered by the petitioners, even if it is assumed to have continued for long years, would not be service rendered under the state thereby casting upon the state an obligation in law to regularize the writ petitioners in service. no legal right to regularization, therefore, can be recognized in the writ petitioners.11. this would bring us to the next limb of the arguments and counter arguments advanced on behalf of the parties. would the petitioners be entitled to claim regularization on the basis of their legitimate expectation ?12. the scope of the principle of 'legitimate expectation' has been explained in halsbury's laws of england, 4th edn. vol. i(i) page 151 as follows :'81. legitimate expectation.-a person may have legitimate expectation of being treated in a certain way by an administrative authority even thought he has no legal right in private law to receive such treatment. the expectation may arise either from a representation or promise made by the authority, including an implied representation, or from consistent past practice.the existence of a legitimate expectation may have a number of different consequences; it may give locus standi to seek leave to apply for judicial review, it may mean that the authority ought not to act so as to defeat the expectation without some overriding reason of public policy to justify its doing so; or it may mean that, if the authority proposes to defeat a person's legitimate expectation, it must afford him an opportunity to make representations on the matter. the courts also distinguish, for example in licensing cases, between original applications, applications to renew and revocations; a party who has been granted a licence may have a legitimate expectation that it will be renewed unless there is some good reason not to do so, and may therefore be entitled to greater procedural protection than a mere applicant for a grant.'13. the concept of legitimate expectation has its origin in english law and a very clear enunciation of the said concept is disclosed in the case of sehmidt v. secretary of state for home affairs (1969) 2 ch 149; (1969) 1 all er 904. in the aforesaid case it was held that an alien, who had been given leave to enter united kingdom for a limited period, had a legitimate expectation of being allowed to stay for the permitted time and if that permission was revoked before the time expires that alien ought to be given an opportunity of making a representation. the doctrine was subsequently applied in india in food corporation of india v. kamdhenu cattle feed industries (1993) 1 scc page 71 and in the case of navjyoti cooperative group housing society v. union of india, reported in (1992) 4 scc 477. the principle of legitimate expectation received a full consideration of the apex court in the case of union, of india v. hindustan development corporation (1993) 3 scc 499, wherein the apex court after an elaborate consideration of a long line of english cases, took the view that legitimate expectation is different from a wish, a desire or a hope. in the words of the apex court. 'legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or an established procedure followed in regular and natural sequence. again, it is distinguishable from a genuine expectation. such expectation should be justifiably legitimate and protectable. every such legitimate expectation does not by itself fructify into a right and therefore, it does not amount to a right in the conventional sense.'the following passage from attorney general in new south wales, in re. (1990) 64 aust ljr 327, quoted with approval in hindustan development corporation (supra) may be relevance in the present context:'to strike down the exercise of administrative power solely on the ground of avoiding the disappointment of the legitimate expectation of an individual would be to set the courts adrift on a featureless sea of pragmatism. moreover, the notion of a legitimate expectation (falling short of a legal right) is too nebulous to form a basis for invalidating the exercise of a power when its exercise otherwise accords with law.'14. in a recent pronouncement of the apex court in the case of dr. chanchal goyal v. state of rajasthan (2003) 3 scc page 485, the doctrine of legitimate expectation again received a very elaborate consideration of the apex court. the facts of the above case may be noted as there is some similarity with the facts of the present bunch of cases. the appellant chanchal goyal was appointed by the local self-government department of rajasthan by an order dated 27.11.1974 as a doctor and was posted in the municipal council at ganganagar. the appointment was for a period of 6 months or till a candidate selected by the public service commission is available, whichever is earlier. the appointment was extended from time to time. though the appellant, chanchal goyal was selected by the public service commission in the years 1976 and also in the year 1992, she chose not to join pursuant to such selection and continued to remain in service on the basis of her initial order of appointment and the extensions granted from time to time. on 1.10.1988, the appellant's services were terminated on the ground that a duly selected candidate was available. the matter was taken before the rajasthan high court in a writ petition and the learned single judge hearing the writ petition interfered with the termination of the petitioner's service on the ground that such termination was illegal as the petitioner had put in almost 14 years of service. the appellate bench reversed the conclusion of the learned single judge holding that the respondent having been appointed as a temporary employee and she not having joined in the service on the basis of any selection by the public service commission, the respondent had no right to hold the post. the decision of the division bench of the rajasthan high court was upheld by the apex court negating any legal right in the appellant to continue and to be regularized and absorbed in service. the principle of legitimate expectation on the basis of the long years of service rendered (the appellant, by the time the apex court had considered the matter, had put in nearly 28 years of service) was also negated by the apex court. the following passage from paragraph 19 of the judgment in dr. chanchal goyal's case appropriately sums up the stage of evolution that the doctrine of legitimate expectation has reached insofar as the courts of this country are concerned :'in hindustan development corporation case 23. r. v. secretary of state for home department, ex p ruddock 27, findlay v. secretary of state for home department 28 and breen v. amalgamated engg. union 29 were considered. it was accepted that the principle of legitimate expectation gave the applicant sufficient locus standi to seek judicial review and that the doctrine was confined mostly to a right to fair hearing before a decision which resulted in negativing a promise or withdrawing an undertaking, was taken. it did not involve any crystallized right. the protection of such legitimate expectation did not require the fulfilment of the expectation where an overriding public interest required otherwise. however, the burden lay on the decision-maker to show such an overriding public interest. a case of substantive legitimate expectation would arise when a body by representation or by past practice aroused expectation which it would be within its powers to fulfil. the court could interfere only if the decision taken by the authority was arbitrary, unreasonable or not taken in public interest. if it is established that a legitimate expectation has been improperly denied on the application of the above principle, the question of giving opportunity can arise if failure of justice is shown. the court must follow an objective method by which the decision-maker authority is given the full range of choice which the legislature is presumed to have intended. if the decision is reached fairly and objectively, it cannot be interfered with on the ground of procedural fairness. an example was given that if a renewal was given to an existing licence holder, a new applicant cannot claim an opportunity based on natural justice. on facts, it was held that legitimate expectation was denied on the basis of reasonable considerations.'15. applying the law laid down by the apex court to the facts of the present case what this court notices is that at no point of time, the state had permitted any of the petitioners to continue to work as honorary teachers nor was any assurance given by the state that on continuing to work honorary teachers, the petitioners would be entitled to the benefit of regularization. not act on the part of the authority of the state creating any impression that the petitioners would be entitled to regularization, can be attributed so as to hold that the petitioners could have entertained a reasonable impression that if they continue to render services on honorary basis, such service would be regularized at some point of time. to invoke the doctrine of legitimate expectation, the representation or the action on which an expectation is born, must be by an authority competent and further such representation or impression cannot be contrary to law. viewed from the aforesaid perspective the approval granted in the cases of some of the petitioners and the recommendation made for regularization of the petitioners being clearly not authorized by the provisions of the specific law holding the field, the doctrine of legitimate expectation cannot come to the aid and assistance of the petitioners. in the last resort the doctrine of legitimate expectation is an equitable principle; equitable principles must follow the law and cannot be applied to achieve what is not contemplated by the law in force.16. there is yet another aspect of the matter. the elaborate discussion that has proceeded was necessitated by the very strenuous arguments advanced by the several counsels appearing for the petitioners, though the question raised in the present cases appears to be, in a way, covered by a division bench judgment of this court in the case of abdul bari v. state of assam and ors., reported in (1999) 3 glt page 31. in the case of abdul bari (supra), the division bench considered the entitlement of a honorary graduate teacher of a secondary school to seek regularization of his services. the honorary appointment made by the managing committee on 15.5.1986 was approved by the jurisdictional inspector of schools by his order dated 1.8.1988. on the basis of the aforesaid approval and long years of service rendered, a claim for regularization was raised, which was expressly negated by this court by holding that in view of the provisions of rule 7 of the assam secondary education (provincialised) service rules, 1982, the managing committee had no power to appoint teachers in a provincialised school. the division bench in abdul bari's case considered another division bench judgment in the case of kunjalata gogoi and ors. v. state of assam and ors., reported in (1993) 1 glj page 278 and clarified that no law was laid down in kunjalata's case to the effect that honorary teacher who had rendered 10 years of service or more, would be entitled to the benefit of regularization. in abdul bari's case, the doctrine of legitimate expectation and equitable principles were urged in support of the claim for regularization, which were also considered and negated.17. following the law laid down by the division bench in the case of abdul bari (supra) and also in view of the conclusions reached in the present case, it must be held that the petitioners have no legal or equitable right for regularization. consequently, this bunch of writ petitions must be held to be disclosing no merit for interference. accordingly, all the writ petitions are rejected. however, having regard to the facts and circumstances of the case, there shall be no order as to costs.

Judgment:

Ranjan Gogoi, J.

1. The petitioners in this group of cases are teachers of different L.P./ M.E./M.V./High/Higher Secondary Schools of the state, who were appointed by the Managing Committee of the respective schools, which were already provincialised at the time of such appointment. The appointment of the petitioners was made mostly on honorary basis and in a few cases on payment of taken remuneration. Regularisation of service/absorption against substantive vacancies, is the essence of the relief/reliefs claimed in each of the writ petitions.

2. I have heard Dr. B. Ahmed, learned counsel for the petitioner in WP(C) No. 6125/03; Mr. A.K. Purkayastha, learned counsel for the petitioner in WP(C) No. 5469/98 and 1923/99; Mr. N.N. Karmakar, learned counsel for the petitioner in WP(C) No. 5551/01; Mr. A.S. Chaudhury, learned counsel for the petitioner in WP(C) No. 7822/02; Mr. R.P. Sharma, learned counsel for the petitioner in WP(C) No. 2052/02; Mr. M. A. Sheikh, learned counsel for the petitioner in WP(C) No. 6307/01; Mr. A.R. Sikdar, learned counsel for the petitioner in WP(C) No. 6712/01; Mr. R.C. Saikia learned counsel for the petitioner in WP(C) No. 3499/01 and Mr. A.M. Buzarbaruah, learned counsel for the petitioner in WP(C) No. 6022/99. Mr. S.N. Sarma, learned senior standing counsel, Education Department, Government of Assam has been heard on behalf of the State Respondents in all the cases. The arguments advanced by the respective sides give rise to a common question of law, on the basis of which it had become possible to hear the cases analogously and to dispose of the same by the present common judgment and order. The question of law arising in this bunch of cases may be formulated as herein below :

'Whether honorary teachers appointed by the Managing Committee of a provincialised school would have any legal or equitable right for regularization of such appointment ?'

3. On the arguments advanced two projections on behalf of the petitioners is discernible. Firstly, a legal right to regularisation has been claimed on behalf of each of the petitioner by virtue of the long years of service rendered by them. Some of the petitioners were appointed in the decade of 1980s and whereas the others were so appointed in the decade of 1990s.. Long years of service rendered, by itself, it is claimed, vests in the petitioners a legal right to regularization. It is submitted on behalf of the petitioners that in all cases, the appointments were made by the Managing Committees in the interest of the schools; there were need for additional teachers in view of the students strength and as the State was unable to sanction the requisite number of posts, the Managing Committees, in the interest of the students were compelled to recruit the petitioners as honorary teachers. It is further submitted that the actions of the Managing Committees were in some cases, approved by the jurisdictional District Level Officers and in almost all cases, recommendations were made by such District Level Officers for suitable adjustment of the petitioners by granting due sanction of additional posts. Learned counsels for the petitioners referred to the notes of inspection of the schools in question, which have been enclosed to the writ petitions to contend that the officers of the department were aware of the appointments and the services rendered by the petitioners and in all such inspection notes, the justification of the Managing Committees in making the appointments was accepted to be correct. The further argument advanced on behalf of the petitioners is that though under the provisions of the relevant statute, i.e., Assam Elementary Education (Provincialisation) Act, 1974 and the Assam Secondary Education (Provincialisation) Act, 1977 and the Rules framed thereunder, the Managing Committee of a provincialised school has not been empowered to appoint teachers, there were certain office memorandums and notifications issued by the competent authority of the State from time to time vesting such powers in the Managing Committee. The power to make appointment of honorary teachers, it is contended, is traceable to such office memorandums and notifications issued. In particular, reliance has been placed on 3 notifications dated 26.12.1979, 18.1.1996 and 6.11.2001 in support of the aforesaid submissions. Furthermore, the actions of the State in formulating schemes/policies, from time to time, for regularization of honorary teachers, as for instance the constitution of a task force by notification dated 21.6.2000, to examine the matter of such regularisation, has also been relied upon to contend, that at some point of time even the State had acknowledged a right of the honorary teachers to seek regularization of their services.

4. The second argument advanced is an alternative argument made to be considered, in the event, the first argument does not find favour of this court. The doctrine of 'legitimate expectation' and principles of equity has been sought to be invoked as conferring on the petitioners an entitlement for regularization. The basis on which such legitimate expectation and equitable rights have been claimed, is the same as noted above. The petitioners, having rendered long years of service and no steps having been taken by the State to terminate such service, have nourished a legitimate expectation of being regularized, which, it is contended, must be enforced by the Court.

5. Mr. S.N. Sarma, learned senior Standing Counsel, Education Department, who has argued the case of the State, has refuted the arguments advanced on behalf of the petitioners with equal vehemence. Learned senior standing counsel, by referring to the provisions of the Assam Elementary Education (Provincialisation) Act, 1974 and the Assam Secondary Education (Provincialisation) Act, 1977, has contended that the statute having envisaged a distinct and definite procedure for appointment of teachers in different schools of the State, and such appointments being required to be made on the basis of a due selection, the appointments made by the Managing Committees, have no sanctity in law. Not only the Managing Committees of provincialised schools are not empowered to make such appointments, all such appointments were made without following any known procedure. The petitioners have accepted their appointments on honorary basis at their own peril. Long years of service rendered on their own volition and in breach of the provisions of the statute, would not vest the petitioners with any legal right, as claimed. The action of the District Level Officers in approving some of such appointments, again, would not confer any legitimacy to an otherwise illegal appointment; no amount of recommendation made could have the effect of validating an otherwise invalid action, it is argued.

6. It is further contended that the statute not having vested any power of appointment in the Managing Committees and the power of appointment having been conferred on a specified authority to be exercised after due selection by a duly constituted Selection Board, the various office memorandums and notifications relied upon by the petitioners, would be of no legal consequence. It is argued that the administrative instructions cannot be understood to have overridden the statute so as to enable this Court to read any power of appointment in the Managing Committee. In any case, the administrative instructions issued were aberrations and were disowned by the State by their immediate withdrawals, specific details of which have been incorporated in the common affidavit filed by the State respondents. The alleged failure of the State to prevent the honorary teachers from discharging their duties is vehemently denied, by contending that instances of Government issuing appropriate notifications/circulars prohibiting appointment of honorary teachers by the Managing Committees is replete. The constitution of the task force by notification dated 21.6.2000 for examination of the question of regularization of honorary teachers, was a limited policy decision, which had to be abandoned in the light of the experiences gained. The State subsequently by a Cabinet decision taken on 22.8.2003, has decided that the services of all honorary teachers appointed by Managing Committees of provincialised schools, shall not be regularized. A copy of the Cabinet decision has been placed before the Court.

7. The doctrine of legitimate expectation and the attempt to invoke equitable principles to further the claims made by the petitioners, have been resisted by the State, by primarily contending that the said principles would have no application to the instant situation, inasmuch as the entitlement of the petitioners to regularization not being permissible under the statute in force, such benefit cannot be collaterally conferred by a resort to the aforesaid principles.

8. The primary, if not the sole question, that would arise for determination by this Court in the present bunch of cases has been formulated. It is the entitlement of the petitioners to regularization that has to be determined and the correctness of the Cabinet decision not to regularize the petitioners, has to be necessarily examined in the light of such entitlement, if any. Interference and consequential directions can legitimately follow only if any entitlement to regularization can be recognized.

9. Before embarking upon a consideration of the arguments and counter arguments advanced on behalf of the parties, it may be apposite to quote hereunder the provisions of Rule 3 of the Assam Elementary Education (Provincialisation) Rules, 1977 framed under the Act of 1974 and Rule 7 of the Assam Secondary Education (Provincialisation) Rules, 1982 framed under the Act of 1977.

'3. (i) Method of recruitment. - In the month of January every year the D. I. shall invite applications in prescribed form for vacancies of elementary school teachers which are likely to occur in the year in his establishment.

(ii) Age - (a) A candidate shall be within the age limit on 1st January of the year of recruitment as prescribed by Government.

(b) The upper age limit shall be relaxed, in favour of Scheduled Castes and Schedule Tribes as per Rules made by Government.

(iii) Qualification - (a) Matriculation/High School/School Leaving Certificate Examination 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 P. U. or Intermediate or its equivalent.

(iv) Character - A candidate shall furnish the certificates of character from (a) 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 each educational 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.

(vi) On receipt of applications, the Selection Committee shall scrutinize the mark-sheets and other necessary testimonials of the candidates and prepare a list of candidates for interview by the Selection Committee.

The Selection Committee shall then finalise a list of successful candidates in order of merit after interview and shall put up the list before the Board for approval. While approving the list, the Board shall be guided by the declared policies of the Government and instructions issued by the Government from time to time. After approval of the list by the Board the same shall be sent to the Director of Elementary Education for his final approval.

The Deputy Inspector of Schools will appoint the selected candidates in order of merit from the list approved by the Director of Elementary Education as and when required as per Government Rules and Government instructions for the time being in force.

The list shall be valid for one year unless its validity is extended by Government.'

'7. Direct recruitment. - (1) Direct recruitment shall be made on the basis of the recommendation made by the State Level Selection Board in case of Post Graduate Teachers and the District Level Selection Board in all other cases in the manner hereinafter provided :

(a) Before the end of each year the Appointing Authority shall make a school-wise assessment of the likely number of vacancies to be filled up by direct recruitment during the next year in different institutions and shall intimate the same to the Board. Together with the details of reservation of candidates belonging to Scheduled Castes or Scheduled Tribes or any other category as laid down by the Government and shall furnish a list of the eligible serving teachers stating in details about the name of the institution where they are serving, the period of service rendered, grade of the service and the period spent therein and also the post for which they are eligible and all other particulars and information that may be considered necessary either by the Appointing Authority or by the Board. The Appointing Authority shall also furnish the relevant service records of such candidates to the Board.

(b) The Appointing Authority shall simultaneously request the Board to recommend a list of candidates for direct recruitment in order of preference.

(c) The Board shall make selection of candidates holding such test and interview and scrutiny of certificates, service records, if any, and other published articles, etc., published by the candidate, as may be considered necessary :

Provided that while making the selection of candidates for recruitment to the 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 Teacher serving in the institution and having requisite educational qualification and minimum 3 years continuous teaching experience as such teacher and for the recruitment to the post 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 be given priority over other candidates.

(d) The Board shall furnish to the Appointing Authority a list of candidates recommended by it in order of preference. The number of candidates in such a list may be approximately double the number of vacancies.

(e) The Board shall simultaneously publish the list in such places and in such manner as the Board may consider fit and proper.

(f) The list mentioned in Clauses (d) and (e) of this Rule shall remain valid for one year from the date of publication unless the Government extend the validity of the list for further period in the

public interest in consultation with the Board.

(g) The Board shall furnish separate list for separate cadres or posts as may be required by the Appointing Authority and also state the name of the institution in case of serving teachers, for which the recommendation is made.

(2) The following members shall constitute the District Level Selection Board :

(i) An educationist of repute to be nominated by the Government -Chairman.

(ii) Inspector of Schools - Member Secretary.

(iii) Three Educationists to be nominated by the Government -Members.'

10. 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 in contra-distinction to the procedure prescribed and the power conferred by the statute. The constitution of the task force to explore the question of regularization of honorary teachers was a policy decision taken and a power must always be conceded to the State to abandon or depart from such policy in the light of the experiences gained. This is precisely what had happened as the notification constituting the task force dated 21.6.2000 was subsequently cancelled by notification dated 28.12.2001. Thereafter the Cabinet decision had been taken to the effect that the honorary teachers appointed by the Managing Committees of provincialised schools will not be regularized. The picture, therefore, that emerges is that the initial-appointments of the petitioners were unauthorized being contrary to the provisions of the statute. Consequently the service rendered by the petitioners, even if it is assumed to have continued for long years, would not be service rendered under the State thereby casting upon the State an obligation in law to regularize the writ petitioners in service. No legal right to regularization, therefore, can be recognized in the writ petitioners.

11. This would bring us to the next limb of the arguments and counter arguments advanced on behalf of the parties. Would the petitioners be entitled to claim regularization on the basis of their legitimate expectation ?

12. The scope of the principle of 'legitimate expectation' has been explained in Halsbury's Laws of England, 4th Edn. Vol. I(I) page 151 as follows :

'81. Legitimate expectation.-A person may have legitimate expectation of being treated in a certain way by an administrative authority even thought he has no legal right in private law to receive such treatment. The expectation may arise either from a representation or promise made by the authority, including an implied representation, or from consistent past practice.

The existence of a legitimate expectation may have a number of different consequences; it may give locus standi to seek leave to apply for judicial review, it may mean that the authority ought not to act so as to defeat the expectation without some overriding reason of public policy to justify its doing so; or it may mean that, if the authority proposes to defeat a person's legitimate expectation, it must afford him an opportunity to make representations on the matter. The Courts also distinguish, for example in licensing cases, between original applications, applications to renew and revocations; a party who has been granted a licence may have a legitimate expectation that it will be renewed unless there is some good reason not to do so, and may therefore be entitled to greater procedural protection than a mere applicant for a grant.'

13. The concept of legitimate expectation has its origin in English Law and a very clear enunciation of the said concept is disclosed in the case of Sehmidt v. Secretary of State for Home Affairs (1969) 2 Ch 149; (1969) 1 All ER 904. In the aforesaid case it was held that an alien, who had been given leave to enter United Kingdom for a limited period, had a legitimate expectation of being allowed to stay for the permitted time and if that permission was revoked before the time expires that alien ought to be given an opportunity of making a representation. The doctrine was subsequently applied in India in Food Corporation of India v. Kamdhenu Cattle Feed Industries (1993) 1 SCC page 71 and in the case of Navjyoti Cooperative Group Housing Society v. Union of India, reported in (1992) 4 SCC 477. The principle of legitimate expectation received a full consideration of the Apex Court in the case

of Union, of India v. Hindustan Development Corporation (1993) 3 SCC 499, wherein the Apex Court after an elaborate consideration of a long line of English Cases, took the view that legitimate expectation is different from a wish, a desire or a hope. In the words of the Apex Court. 'Legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or an established procedure followed in regular and natural sequence. Again, it is distinguishable from a genuine expectation. Such expectation should be justifiably legitimate and protectable. Every such legitimate expectation does not by itself fructify into a right and therefore, it does not amount to a right in the conventional sense.'

The following passage from Attorney General in New South Wales, In re. (1990) 64 Aust LJR 327, quoted with approval in Hindustan Development Corporation (supra) may be relevance in the present context:

'To strike down the exercise of administrative power solely on the ground of avoiding the disappointment of the legitimate expectation of an individual would be to set the Courts adrift on a featureless sea of pragmatism. Moreover, the notion of a legitimate expectation (falling short of a legal right) is too nebulous to form a basis for invalidating the exercise of a power when its exercise otherwise accords with law.'

14. In a recent pronouncement of the Apex Court in the case of Dr. Chanchal Goyal v. State of Rajasthan (2003) 3 SCC page 485, the doctrine of legitimate expectation again received a very elaborate consideration of the Apex Court. The facts of the above case may be noted as there is some similarity with the facts of the present bunch of cases. The appellant Chanchal Goyal was appointed by the Local Self-Government Department of Rajasthan by an order dated 27.11.1974 as a Doctor and was posted in the Municipal Council at Ganganagar. The appointment was for a period of 6 months or till a candidate selected by the Public Service Commission is available, whichever is earlier. The appointment was extended from time to time. Though the appellant, Chanchal Goyal was selected by the Public Service Commission in the years 1976 and also in the year 1992, she chose not to join pursuant to such selection and continued to remain in service on the basis of her initial order of appointment and the extensions granted from time to time. On 1.10.1988, the appellant's services were terminated on the ground that a duly selected candidate was available. The matter was taken before the Rajasthan High Court in a writ petition and the learned Single Judge hearing the writ petition interfered with the termination of the petitioner's service on the ground that such termination was illegal as the petitioner had put in almost 14 years of service. The Appellate Bench reversed the conclusion of the learned Single Judge holding that the Respondent having been appointed as a temporary employee and she not having joined in the service on the basis of any selection by the Public Service Commission, the Respondent had no right to hold the post. The decision of the Division Bench of the Rajasthan High Court was upheld by the Apex Court negating any legal right in the appellant to continue and to be regularized and absorbed in service. The principle of legitimate expectation on the basis of the long years of service rendered (the appellant, by the time the Apex Court had considered the matter, had put in nearly 28 years of service) was also negated by the Apex Court. The following passage from paragraph 19 of the judgment in Dr. Chanchal Goyal's case appropriately sums up the stage of evolution that the doctrine of legitimate expectation has reached insofar as the Courts of this country are concerned :

'In Hindustan Development Corporation Case 23. R. V. Secretary of State for Home Department, ex P Ruddock 27, Findlay v. Secretary of State for Home Department 28 and Breen v. Amalgamated Engg. Union 29 were considered. It was accepted that the principle of legitimate expectation gave the applicant sufficient locus standi to seek judicial review and that the doctrine was confined mostly to a right to fair hearing before a decision which resulted in negativing a promise or withdrawing an undertaking, was taken. It did not involve any crystallized right. The protection of such legitimate expectation did not require the fulfilment of the expectation where an overriding public interest required otherwise. However, the burden lay on the decision-maker to show such an overriding public interest. A case of substantive legitimate expectation would arise when a body by representation or by past practice aroused expectation which it would be within its powers to fulfil. The Court could interfere only if the decision taken by the authority was arbitrary, unreasonable or not taken in public interest. If it is established that a legitimate expectation has been improperly denied on the application of the above principle, the question of giving opportunity can arise if failure of justice is shown. The Court must follow an objective method by which the decision-maker authority is given the full range of choice which the Legislature is presumed to have intended. If the decision is reached fairly and objectively, it cannot be interfered with on the ground of procedural fairness. An example was given that if a renewal was given to an existing licence holder, a new applicant cannot claim an opportunity based on natural justice. On facts, it was held that legitimate expectation was denied on the basis of reasonable considerations.'

15. Applying the law laid down by the Apex Court to the facts of the present case what this court notices is that at no point of time, the State had permitted any of the petitioners to continue to work as honorary teachers nor was any assurance given by the State that on continuing to work honorary teachers, the petitioners would be entitled to the benefit of regularization. Not act on the part of the authority of the State creating any impression that the petitioners would be entitled

to regularization, can be attributed so as to hold that the petitioners could have entertained a reasonable impression that if they continue to render services on honorary basis, such service would be regularized at some point of time. To invoke the doctrine of legitimate expectation, the representation or the action on which an expectation is born, must be by an authority competent and further such representation or impression cannot be contrary to law. Viewed from the aforesaid perspective the approval granted in the cases of some of the petitioners and the recommendation made for regularization of the petitioners being clearly not authorized by the provisions of the specific law holding the field, the doctrine of legitimate expectation cannot come to the aid and assistance of the petitioners. In the last resort the doctrine of legitimate expectation is an equitable principle; equitable principles must follow the law and cannot be applied to achieve what is not contemplated by the law in force.

16. There is yet another aspect of the matter. The elaborate discussion that has proceeded was necessitated by the very strenuous arguments advanced by the several counsels appearing for the petitioners, though the question raised in the present cases appears to be, in a way, covered by a Division Bench judgment of this Court in the case of Abdul Bari v. State of Assam and Ors., reported in (1999) 3 GLT page 31. In the case of Abdul Bari (supra), the Division Bench considered the entitlement of a honorary graduate teacher of a secondary school to seek regularization of his services. The honorary appointment made by the Managing Committee on 15.5.1986 was approved by the jurisdictional Inspector of Schools by his order dated 1.8.1988. On the basis of the aforesaid approval and long years of service rendered, a claim for regularization was raised, which was expressly negated by this Court by holding that in view of the provisions of Rule 7 of the Assam Secondary Education (Provincialised) Service Rules, 1982, the Managing Committee had no power to appoint teachers in a provincialised school. The Division Bench in Abdul Bari's case considered another Division Bench judgment in the case of Kunjalata Gogoi and Ors. v. State of Assam and Ors., reported in (1993) 1 GLJ page 278 and clarified that no law was laid down in Kunjalata's case to the effect that honorary teacher who had rendered 10 years of service or more, would be entitled to the benefit of regularization. In Abdul Bari's case, the doctrine of legitimate expectation and equitable principles were urged in support of the claim for regularization, which were also considered and negated.

17. Following the law laid down by the Division Bench in the case of Abdul Bari (supra) and also in view of the conclusions reached in the present case, it must be held that the petitioners have no legal or equitable right for regularization. Consequently, this bunch of Writ Petitions must be held to be disclosing no merit for interference. Accordingly, all the Writ Petitions are rejected. However, having regard to the facts and circumstances of the case, there shall be no order as to costs.