Diptiman Bathari and 4 Ors. Vs the N C Hills Autonomous Council Haflong and 9 Ors.

THE N C HILLS AUTONOMOUS COUNCIL HAFLONG AND 9 ORS. REPRESENTED BY THE PRINCIPAL SECRETARY, DIMA HASAO AUTONOMOUS COUNCIL, DIMA HASAO, HAFLONG, PIN- 788819.

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2:THE ADDL. DIRECTOR OF EDUCATION (H) ASSAM HAFLONG

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3:THE INSPECTOR OF SCHOOLS DIMA HASAO DISTRICT CIRCLE HAFLONG ASSAM

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4:THE HEADMASTER OF PUBLIC ENGLISH HIGH SCHOOL HARANGAJAO DIMA HASAO ASSAM

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5:THE HEAD MASTER OF KHARTHONG M.E. SCHOOL

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KHARTHONG DIMA HASAO ASSAM

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6:THE HEADMASTER OF TLANGSANG M.E. SCHOOL

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HATIKHALI DIMA HASAO ASSAM

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7:THE HEAD MASTER OF TUOLPUI HIGH SCHOOL

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DIMA HASAO ASSAM

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8:THE HEAD MASTER OF THURUK M.E. SCHOOL DIMA HASAO ASSAM

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9:THE STATE OF ASSAM

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REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM ELEMENTARY EDUCATION DEPARTMENT DISPUR GUWAHATI-06.

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10:THE SECRETARY TO THE GOVT. OF ASSAM FINANCE DEPARTMENT DISPUR GHY-

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Advocate for the Petitioner : MR. S D PURKAYASTHA, MR. S DAS,MS S.S.BORA

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Advocate for the Respondent : SC, NCHAC, MR. P N SHARMA, SC, ELEMENTARY EDUCATION DEPTT.,MS R M BORAH, SC, FINANCE DEPTT.

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BEFORE HONOURABLE MR. JUSTICE KARDAK ETE

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ORDER

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Date : 17.03.2026

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Heard Mr. S. D. Purkayastha, learned counsel for the petitioners. Also heard Ms. Tinlung, learned counsel appearing on behalf of Mr. R. M. Das, learned counsel for the respondent No. 1; Mr. C. Sharma, learned counsel for the respondent Nos. 2 & 3; and Mr. P. N. Sharma, learned counsel for the respondent No. 9. None appears for the respondent Nos. 4 to 8 despite service of notice.

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2. This is an application praying for review of the order dated 02.08.2023, passed in WP(C) No. 1335/2018, by which the writ petition has been dismissed on the ground that no direction could be issued for payment of salary to the

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petitioners, as their appointments were not made by following the due process of selection in terms of Articles 14 & 16 of the Constitution of India.

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3 Briefly put, the case of the petitioners is that the Inspector of Schools, Dima Hasao, Haflong vide order dated 28.08.2013 appointed the petitioner Nos. 1 and 4 temporarily as Graduate Assistant Teachers from the date of their joining in the Scale of Pay of Rs. 5,200/- to Rs. 20,200/- under Pay Band-2 with Grade Pay of Rs. 3,300/- per month with other allowances as admissible under the Rules and posted them at Public English High School, Harangajao and Tuolpui High School, respectively, on regular basis against the vacant posts. Similarly, petitioner Nos. 2 & 3 were appointed by the Inspector of Schools, Dima Hasao, Haflong on 28.08.2013 temporarily as Assistant Teachers in the Intermediate Scale of Pay of Rs. 5,200/- to Rs. 20,200/- under Pay Band-2 with Grade Pay of Rs. 2,500/- per month with other allowances as admissible under the Rules and posted them at Kharthong M.E. School, Harangajao and Tlangsang M.E. School, Harangajao, respectively, against the vacant sanctioned posts. The petitioner No. 5 was appointed temporarily as a Grade-IV staff at Thakur M.E. School on regular basis from the date of his joining in the Scale of Pay of Rs. 1,660/- to Rs. 15,000/- under Pay Band-1 with Grade Pay of Rs. 1,500/- per month against the vacant sanctioned post vide and order dated 28.08.2013. All the appointments were made on the basis of the discussion held on 09.05.2007 in the Office Chamber of the Chief Executive Member of the then N.C. Hills Autonomous Council, Haflong now known as Dima Hasao.

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4. It is the contention of the petitioners that despite their appointments and joining, they did not receive any salary. Being aggrieved, they have filed the writ

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petition on 05.03.2018, being WP(C) No. 1335/2018, praying, inter alia, for a direction to the respondents to release their salaries from the date of their respective joining and to regularize their services granting all such service benefits. The petitioners had relied upon their representation dated 08.12.2016 submitted before the Chief Executive Member, N.C. Hills Autonomous Council, Haflong, Dima Hasao, the letter of the Principal Secretary, N.C. Hills Autonomous Council, Haflong dated 06.01.2017 written to the Inspector of Schools, Dima Hasao, Haflong, and the Resolution No. 15 of the Executive Committee meeting of the N.C. Hills Autonomous Council held on 08.03.2017 pertaining to non-payment of the salaries of the petitioners, wherein the Executive Committee of the N.C. Hills Autonomous Council, Haflong resolved that the Principal Secretary shall take necessary action in consultation with the Additional Director of Education (Hills) and the Inspector of Schools by removing the difficulties and obstacles for payment of their salaries. It was contended that the authorities in the N.C. Hills Autonomous Council, Haflong had processed the matter even with the Finance Department of the State, but had not been finally resolved.

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5. Upon consideration of the materials available on record, this Court has dismissed the writ petition by holding, inter alia, that the petitioners failed to establish that their appointments were made by following due process of selection through advertisemen6as required under Articles 14 and 16 of the Constitution of India.

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6. It is the contention of the petitioners that even if their initial appointments are assumed to be irregular, such irregularities are capable of being regularized in accordance with law. The respondent authorities had, in fact, initiated a

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process for regularization of their services and they have been serving in their respective capacities in the concerned schools for the last 8 to 9 years with a legitimate expectation that their services would be regularized. However, certain documents and records relating to such process of regularization, both prior to and subsequent to the filing of the writ petition, could not be placed before the court earlier despite due diligence. According to the petitioners, consideration of the said additional documents would reveal that the process of regularization had been actively undertaken by the competent authorities and that there exists a strong possibility of regularization of their services.

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7. It is contented that the petitioners were initially appointed on temporary basis against sanctioned vacant posts in their respective schools. Thereafter, in order to regularize such appointments, the respondent No. 3, with the approval of the N.C. Hills Autonomous Council, issued an advertisement dated 25.06.2014 for filling up six vacant posts, including Assistant Teachers (Graduate), Assistant Teachers (Intermediate), and one Grade-IV post. It is further contended that necessary SIU/HAD clearance had already been obtained for the said posts. Pursuant to the said advertisement, an Interview-cumSelection Board was duly constituted with approval of the competent authority and the petitioners participated in the selection process held on 28.08.2014 in response to call letters issued to them. Following the selection process, the respondent No. 3 sought approval for appointment of the selected candidates, which was granted by the Principal Secretary, N.C. Hills Autonomous Council vide communication dated 31.10.2014.

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8. The petitioners contend that they have continued to serve in their respective posts without interruption and without any challenge to their appointments from any quarter. During the pendency of WP(C) No. 1335/2018,

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the respondent authorities continued to process proposals for ex-post facto approval and regularization of their services by forwarding the same to the competent authorities. Ex-post facto approval in respect of certain petitioners has already been accorded by the competent authority, which was communicated vide letter dated 18.01.2021 and in respect of the remaining petitioners, the process for obtaining such approval is stated to be under process as reflected from various official communications between the respondent authorities and the Government. Therefore, it is submitted that the aforesaid materials would demonstrate that their appointments were made against sanctioned vacant posts, that approval had been granted by the competent authority and a continuous process for regularization and ex-post facto approval has been undertaken.

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9. The petitioners contend that the additional documents annexed with the present review petition are material and relevant for proper adjudication of the matter. It is submitted that some of the documents could not be produced earlier due to lack of proper legal advice, while others are official records which were not within their knowledge or accessible to them at the relevant time and several documents pertain to subsequent developments had arisen after filing of the writ petition. The said documents have been discovered only recently despite due diligence and had such materials been placed before this Court at the time of disposal of the writ petition, the outcome of the judgment and order dated 02.08.2023 might have been different.

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10. Under the above circumstances, the petitioners seek review of the judgment and order dated 02.08.2023, passed in WP(C) No. 1335/2018.

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11. Mr. Purkayastha, learned counsel for the petitioners, by referring to the documents annexed in the present review petition including the advertisement

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dated 25.06.2014, submits that although the documents relied by the petitioner was not annexed and placed before the Court during the course of hearing of the writ petition, it is admitted position that the petitioners were appointed pursuant to the advertisement dated 25.06.2014. Therefore, the appointments of the petitioners cannot be said to have been made without following the due process of law and as such, they are entitled to consideration for payment of their salaries as they having been continuing in service pursuant to such appointments. Additional documents brought on record in the present review petition constitute material evidence, which, if placed earlier, might have altered the judgment and order dated 02.08.2023.

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12. He submits that the documents placed now demonstrate that the respondent No. 1/Council had accorded approval for the appointments of the petitioners in their respective posts. However, the said documents, except the advertisement, being official in nature, were neither within the knowledge of the petitioners nor accessible to them earlier and have only been discovered recently. These documents are highly relevant for proper adjudication of the matter and clearly indicate that the process of regularization was actively under consideration. He reiterates that had these materials been placed before this Court earlier, the outcome of the judgment might have been different.

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13. Mr. Purkayastha also submits that the respondent No. 1/ Council, being the competent authority, had accorded approval for appointment of the petitioners vide letter dated 31.10.2014. Ex-post facto approval has also been granted in respect of petitioner Nos. 1, 4 and 5, which has been communicated vide letter dated 18.01.2021 in terms of the advice of the Finance Department, and thus there is no impediment to regularization of their services. In respect of

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petitioner Nos. 2 and 3, the process for grant of ex-post facto approval is still ongoing, which is evident from the communications dated 18.08.2020, 03.09.2020 and 08.02.2021.

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14. He submits that after the due selection process pursuant to the advertisement dated 25.06.2014, the petitioners have been allowed to continue in service on the strength of approval granted by the respondent No. 1/Council dated 31.10.2014 and have been discharging their duties without any interruption or challenge from any quarter. The process for regularization of the services of the petitioners is pending before the competent authority and therefore, the petitioners had and continue to have a legitimate expectation that their services would be regularized. It is reiterated that the additional materials now placed on record were not within the knowledge of the petitioners earlier and could not be produced despite due diligence. The said materials clearly indicate that the alleged irregularities, if any, are capable of being regularized and the process of such regularization is already underway, without causing prejudice to any other person.

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15. Mr. C. Sharma, learned counsel for the respondent Nos. 2 & 3, submits that an advertisement dated 25.06.2014 was issued and published in a local newspaper, namely “Dima Hasao Post” on 28.06.2014, for filling up the vacant posts of 2 (two) numbers of Assistant Teacher (Graduate), 3 (three) numbers of Assistant Teacher (intermediate), and 1 (one) number of Grade-IV). The said posts had remained unfilled due to resignation/expiry of incumbents out of 63 (sixty-three) posts for which ex-post facto approval had been accorded vide Government letter dated 21.05.2013.

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16. He submits that pursuant to the said advertisement, a selection process was conducted and 6 (six) candidates, including the petitioners, were appointed

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with due approval of the North Cachar Hills Autonomous Council, Haflong, and have been serving since their respective dates of joining. He submits that necessary approvals were subsequently conveyed by the Council and steps were taken with the State Government, including the Hills Area Department, for removal of difficulties relating to payment of salaries and for obtaining ex-post facto approval.

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17. I have considered that submissions of learned counsel for the parties and also perused the materials placed on record.

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18. The Co-ordinate Bench of this Court, after consideration of the materials available on record and the law laid down by the Hon’ble Supreme Court, held which is reproduced herein under:–

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“21. It is not the case of the petitioners that they have been selected and appointed by the Inspector of Schools, Dima Hasao, Haflong vide orders dated 28.08.2013 and 29.10.2013 after due advertisement and selection following the Statutory Rules in force at the time of their appointments.

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It is a settled law that vacancies cannot be filled up over and above the number of vacancies advertised. Once the advertised/notified post, following the due procedure of advertisement and selection, is filled up by offering necessary appointment and such offer of appointment is accepted by the candidate concerned, the post advertised gets exhausted. If any such post becomes vacant due to resignation/expiry of the said candidate, then such vacant post has to be filled up afresh by following the due process of advertisement and selection following the provisions of Article 14 and 16 of the Constitution, otherwise appointment of anyone by the appointing authority from the waiting list and/or by picking and choosing a candidate from outside will amount to arbitrariness and illegality for extraneous reasons. With the appointment of the candidate for the post, the list gets exhausted and subsequent vacancy caused due to resignation etc. or for any other reason becomes future vacancy.

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The Hon’ble Apex Court in a catena of decisions have also held that ― every appointment to public posts or office should be made by open advertisement and selection so as to enable all eligible persons to compete for selection on merit.

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Valid and legal appointment means appointment made by following the provisions of Articles 14 and 16 of the Constitution of India by due process of advertisement and selection and as per the procedure of Recruitment Rules with regard to the relevant posts in force, if any, during the time of recruitment. Adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court (Supreme Court of India) while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee.

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In the case of R. Vishwanatha Pillai -Vs.- State of Kerala reported in (2004) 2 SCC 105, a three Judges Bench of the Hon’ble Supreme Court have held that– the right to salary and/or pension after retirement from service flows from a valid and legal appointment.

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In the case in hand, the petitioners as well as the authorities in the N.C. Hills Autonomous Council/Dima Hasao district have failed to place anything before the Court to show that the petitioners were appointed by the Inspector of Schools, Dima Hasao, Haflong on 28.08.2013 and 29.10.2013 after following the due process of advertisement and selection and in terms of the relevant Recruitment Rules in force at the time of their appointments.

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Even though the petitioners have served on the basis of their appointment orders issued by the Inspector of Schools, Dima Hasao, Haflong on 28.08.2013 and 29.10.2013, but there cannot be any directions from the Court in exercise of its powers conferred under Article 226 of the Constitution of India for payment of salaries to the petitioners from the public exchequer, since their appointments were not made by following the due process of law following the provisions of Articles 14 and 16 of the Constitution and since the Hon’ble Apex Court in the case of R. Vishwanatha Pillai (supra) have laid down the law that salary shall flow only from a valid and legal appointment.

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Accordingly, as the petitioners have failed to establish before the Court that their appointments were legal and valid, they are not entitled for any such relief(s) as claimed in this writ petition.”

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19. Upon consideration of the submissions of learned counsel for the parties

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and perusal of the materials brought on record in the present review petition, it appears that the petitioners were initially appointed on the basis of discussion of the respondent authorities without any selection process as required under the law. However, subsequently, they hav been appointed pursuant to the advertisement dated 25.06.2014 for filling up 2 (two) posts of Assistant Teacher (Graduate), 3 (three) posts of Assistant Teacher (Intermediate) and 1 (one) post of Grade-IV. The said advertisement and other relevant documents were not placed before the Court at the time of adjudication despite due deligence, for which this Court could not considered that the appointments of the petitioners were preceded by an advertisement and appointment were made following due process of law.

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20. The materials now brought on record and the categorical stand of the State respondents, clearly indicate that the appointments of the petitioners were made following due process of selection, though initial appointments made were not in accordance with law. Thus, this Court is of the opinion that the dismissal of the writ petition on the ground that the appointments were not made by following due process of law warrants review.

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21. In the case of BCCI vs. Netaji Cricket Club, reported in (2005) 4 SCC 741, Hon’ble Supreme Court has held that Section 114 of CPC empowers a court to review its order if the conditions precedents laid down therein are satisfied. The substantive provision of law does not prescribe any limitation on the power of the court except those which are expressly provided under section 114 in terms whereof it is empowered to make such order as it thinks fit. Order

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47, Rule 1 of CPC provides for filing an application for review. Such an application would be maintainable not only upon discovery of new and important piece of evidence or when there exists an error apparent on the fact of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason. What would constitute sufficient reason would depend on the facts and circumstances of the case. Suuficient reason is wide enough to include a misconception of fact or law by a court or even by an Advocate.

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22. In the present case, the petitioners could demonstrate that despite due diligence the advertisement issued by the respondent authorities pursuant to which the petitioners were subsequently participated in the interview and appointed and other relevant documents could not be placed before this court earlier. Thus, same would constitute not only upon discovery of new and important piece of evidence, but also is necessitated on account of some mistake and sufficient reason.

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23. In view of above, I am of the considered view that the petitioners have made out a case for review of the order dated 02.08.2023, passed in WP(C) No. 1335/2018. Accordingly, the order dated 02.08.2023, passed in WP(C) No. 1335/2018, stands reviewed and modified. Consequently, the writ petition is allowed to the extent that the respondent authorities are directed to consider the case of the petitioners including for payment of their salaries in accordance with law.

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24. Review petition stands disposed of, accordingly.

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JUDGE

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Comparing Assistant

Diptiman Bathari and 4 Ors. v. the N C Hills Autonomous Council Haflong and 9 Ors.

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Diptiman Bathari and 4 Ors. v. the N C Hills Autonomous Council Haflong and 9 Ors.

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