High Court
Case Details
WP(C) 3726/2008 BEFORE HON’BLE MRS. JUSTICE ANIMA HAZARIKA JUDGMENT & ORDER (ORAL) Invoking power under Article 226 of the Constitution of India, the inst ant writ petition has been filed by eight petitioners praying for a direction to the respondents to allow the regular scale of pay to the petitioners from the d ate of their joining as Assistant Teacher in respective Lower Primary (’L.P.’ fo r short) Schools as has been given to other similar appointees, with a further p rayer for a direction to the respondents to sanction and disburse the arrear sal ary, i.e. regular scale of pay from the date of joining till the date of passing of Basic Training Course as also has been paid to the similarly situated person s. 2. The facts necessary to decide the instant writ petition are as follows: The petitioners having requisite qualification for the post of Assistant teacher in LP School, were appointed on compassionate ground in different LP Sc hools with fixed salary (stipendiary) subject to the condition that they have to undergo Basic Training and after successful completion of training the petition ers will be given regular scale of pay. The appointment orders were issued by th e Deputy Inspector of Schools, Guwahati. The details regarding appointment of th e petitioners are given hereinbelow;- Name of the petitioners Date of appointment ____________________________________________________________ Name of the Schools Sri Parameswar Das L.P. School Smti. Anjali Deka Sri Shayam Nath Sri Haricharan Nath hool Sri Diganta Nath Jehirul Islam Mrs. Pranita Das hool Sri Bulen Das 28.3.2001 Pochoria Ram Swarasati 11.8.1994 No.96 Chowki L.P. School 31.3.2001 383 Bonmojah L.P. School 28.2.2001 Silbharal Moktab L.P. Sc 25.1.1996 28.3.2001 25.1.1996 Sindurighopa L.P. School Konwarpur L.P. School No.605 Dhopagori L.P. Sc 25.2.1995 Ketekijhar L.P. School After the appointment so made, the petitioners had joined in their respe 3. ctive schools and have been discharging their duties to the satisfaction of the respondent authorities without any break. As per the condition laid down in the appointment order, the petitioners have completed Basic Training Course on 5.3.2 004, 22.11.2001, 5.3.2004, 5.3.2004, 22.11.2001, 5.3.2004, 12.8.2002 and 29.5.20 00 respectively and accordingly, after successful completion of Basic Training C ourse, the petitioners were paid regular scale of pay. In the meanwhile, Secreta ry to the Government of Assam, Education Department had issued an office memoran dum vide No.A(1)E.193/04/9 dated 5.7.2004. Relevant portion of the same is quote d hereinbelow;- (cid:28) & & & & & & &.. After careful consideration of the matter, the Government in Education department have decided as follows;- (1) The teachers appointed on compassionate ground and under the afo resaid rules of 1992 and Rules of 1999 (shall be appointed) in a regular scale o f pay, instead in a fixed pay (stipendiary) from the date of their joining. Provided, however, that if such appointees failed to pass the Junior Basic Train ing or any other equivalent training recognized by the Government after deputati on for the purpose, they will be summarily dismissed from service after offering them an opportunity of being heard. Only two chances for passing the training s
Legal Reasoning
hall be given to them. (2) Those teachers who have already been appointed on compassionate ground a nd under the Rules of 1992 and Rules of 1999 up to 30th June, 2004, they will be eligible for regular scale of pay with or without passing the Junior Basic Trai ning or any other equivalent training recognized by the Government, with prospec tive effect from the First of July, 2004. But if they fail to pass the required training, their service condition will be governed by the Clause (1) above. (cid:29) 4. The petitioners herein were appointed on compassionate ground and were g etting fixed pay from the date of their joining in service till they passed the Junior Basic Training. Only after passing of the Junior Basic Training, they wer e allowed to draw the regular pay scale. On the other hand, some of the teachers who were also appointed on compassionate ground were allowed to draw regular ti me scale of pay from the date of their joining in service. Moreover, although so me of the teachers were appointed on fixed pay and condition was given to allow time scale of pay after passing the Junior Basic Training examination only, but subsequently, they have been allowed to draw time scale of pay from the date of joining in their service. The petitioners have furnished data of some of such ap pointment orders wherein time scale of pay was allowed to those appointees from the date of joining in the service which are reproduced hereinbelow;- (cid:28)(1) ime scale of pay w.e.f. the date of joining vide Office Memorandum No.4023-29 da ted 14.9.2004. (2)
Legal Reasoning
Sri Basistha Das, (AT), Keshab Das LP School received regular time scale of pay w.e.f. the date of joining vide Memorandum No.5864-70 dated 21.12.2004. (3) Sri Boitullah Ali (AT) Dagaon Chesapar LP School, received regular time scale of pay w.e.f. 29.1.2007 vide Memorandum No.EPD/P/47/91/Pt-5/274 dated 14.2 .2003. (4) ale of pay w.e.f. date of joining vide Memorandum No.1012-18 dated 10.3.2005. (cid:29) Sri Dharanidhar Kalita (AT), Pubchamuapara LP School, received regular t Sri Pabitra Choudhuiry (AT) Sanbasti LP School, received regular time sc 5. On the contrary, the petitioners though have joined in service long back starting from 1994, 1996-2001 and have gathered enough experience in teaching i n service have been deprived of regular pay scale w.e.f their initial date of ap pointment. The details of the petitioners’ service and date of drawing regular pay scale is mentioned hereinbelow;- Name of the Date of Period for receiving Appointment petitioner alary Name of the Date of drawing Schools regular scale of pay arrear s Sri Parameswar Das 28.3.2001 28.3.2001 to 5.3.2004 L.P. School Smti. Anjali Deka 22.11.2001 Sri Shayam Nath 31.3.2001 11.8.1994 11.8.1994 to 22.11.2001 31.3.2001 to 5.3.2004 Pochoria Ram Swarasati 5.3.2004 No.96 Chowki L.P. School 383 Bonmojah L.P. School 5.3.2004 Sri Haricharan Nath 5.3.2004 Sri Diganta Nath 22.11.2001 Jehirul Islam 28.3.2001 28.3.2001 to 5.3.2004 Mrs. Pranita Das 25.1.1996 28.2.2001 Silbharal Moktab L.P. School 28.2.2001 to 5.3.2004 25.1.1996 25.1.1996 to 22.11.2001 Sindurighopa L.P. School Konwarpur L.P. School 5.3.2004 No.605 Dhopagori L.P. School 12.8.2002 Sri Bulen Das 0 25.1.1996 to 12.8.2002 25.2.1995 25.2.1995 to 29.5.2000 Ketekijhar L.P. School 29.5.200 6. Being deprived as above, the petitioners approached the respondent autho rities time and again by filing representation praying for releasing their regul ar salary from their date of joining in the school as similarly situated persons have received. But the same had evoked no response till date. Hence, the instan t writ petition with the aforesaid prayer otherwise there will be violation of a rticles 14, 16 and 21 of the Constitution of India, inasmuch as, they are not ge tting equal treatment from the authority with the other similarly situated perso ns. 7. I have heard Mrs. N Saikia, learned counsel appearing for the petitioner s. Also heard Ms. P Chakraborty, learned Standing Counsel, Education Department appearing for the respondents. 8. Mrs. Saikia has strenuously urged that on the facts and circumstances of the case, it is a clear case of discriminatory treatment by the competent autho rity to similarly situated persons, i.e. to a group of regularly appointed teach ers on compassionate ground. The Hon’ble Apex Court has time and again held that compassionate appointment should be made against permanent, sanctioned and vaca nt post(s). It should not be made against temporary or ad hoc basis. In support of her submission, Mrs. Saikia has relied upon the following 9. decisions;- (1) (1994) 4 SCC 138, Umesh Kumar Nagpal -vs- State of Haryana and others, (2) (1996) 5 SCC 308, State of Haryana and Ors. -vs- Rani Devi and another, In the case of Umesh Kr. Nagpal (supra), the Hon’ble Apex Court has held that (cid:28)while giving appointment in public service on compassionate ground, there are some exception carved out in the interest of justice and to meet certain co ntingencies. The favourable treatment given to such dependent of the deceased em ployee in such posts (the posts in classes III and IV) has a rational nexus with the object sought to be achieved, viz. relief against destitution. It is furthe r held that the employment cannot be offered by an individual functionary on an ad-hoc basis. In the case of Rani Devi (supra), the Hon’ble Apex Court has held that when the Government extend the benefit of appointment to one of the dependents of the dec eased employee, the expression (cid:28)employee’ does not conceive casual or purely ad- hoc employee or apprentices. 10. Ms. Chakraborty, learned Standing Counsel, Education Department has subm itted that in the instant case an affidavit has been file on behalf of responden t No.2 wherein the position has been made clear at paragraph 6 of the counter. W herein it has been stated that the provisions of the office memorandum dated 5.7 .2004 clarifies that the benefit of regular time scale was allowed to those teac hers who have already been appointed on compassionate ground and under the rules of 1992 as well as Rules of 1999 up to 30th June, 2004 with prospective effect from 1.7.2004. The initial dates of appointment of all the petitioners are prior to 1.7.2004. Moreover, all of them have already been successfully completed the ir junior basic training course and receipt regular time scale of salary prior t o 1.7.2004. Therefore, their case is not similar with the incumbents mentioned i n the writ petition at paragraph 5. All the incumbents mentioned therein were ap pointed after 1.7.2004 and therefore, they are entitled to get regular time scal e of salary w.e.f. 1.7.2004, provided that they are required to complete the Jun ior Basic Training course within the stipulated time as per the office memorandu m dated 5.7.2004. Another affidavit-in-opposition has been filed on behalf of re That the order dated 28.2.2012 as passed by this Hon’ble Court reflect t spondent No.2 wherein at paragraphs 2 and 3 it has been stated as thus; (cid:28)2. hat the Hon’ble Court wanted to know the stand of the Government on the issue wh y the petitioners who were appointed prior to 30th June, 2004 were not given the regular scale of pay since their date of joining, as has been given to others a s pointed out by the petitioners in their additional affidavit. 3. That in this connection the deponent begs to sate that the deponent has moved the same to the Commissioner and Secretary to the Government of Assam. The Government, in turn, has made it clear that as per Government Office Memo No.A( 1)E-193/2004/9 dated 5.7.2004 compassionate appointments are to be made allowing regular time scale with effect from 01.07.2004. In case of those where time sca le has been granted irregularly allowing from the date of joining the Government is proposing to initiate action for recovery of the same and also for taking ac tion against the erring officials. The details regarding the action to be initia ted are yet to be finalized by the Government. Therefore, the petitioners in the instant case cannot claim time scale from the date of their joining on the basi s of negative equity citing the examples of those who were wrongly granted/favou red with time scale from the date of their joining in derogation of the office m emorandum referred to hereinabove. (cid:29) It has been further contended at paragraph 4 that Government is contempl ating action against those officials and actions are also being contemplated aga inst the beneficiaries for recovery. The Government is yet to initiate proceedin g against the beneficiaries and the officers which is likely to be taken very sh ortly.
Decision
11. Against the affidavit-in-opposition filed by respondent No.1, the petiti oners have filed a detailed affidavit-in-reply denying the correctness of the st atements made in paragraph 6 of the affidavit-in-opposition by stating that all the incumbents mentioned in paragraph 5 of the writ petition were appointed afte r 1.7.2004 and therefore, they are entitled to get regular time scale of salary w.e.f 1.7.2004. In fact, the date of appointment of those incumbents as mentione d in Annexure 3 Series of the writ petition shows that they were appointed on 30 .8.2003, 7.4.2001, 15.12.2001 and 9.1.2001. Moreover, as information gathered by the writ petitioners most of the incumbents appointed on compassionate ground h ave drawn regular scale of pay from their date of joining. Writ petitioners have furnihsed a list of teachers of Rangia Division as well as Guwahati Division who were appointed on compassionate ground like that of the petitioners but have received their regular scale of pay from the date of joining. The same being relevant is quoted hereunder;- Name of teachers ol Pabitra Choudhuiry Basistha Deka Dharani Kalita l Jogeswar Kalita Ajit Das School Badar Ali Kamini Das Ajoy Sarma year of joining Name of the scho 2003 2003 2001 2001 2003 2001 2001 2001 Chanbasti LP School Bapuji LP School Sonapur LP Schoo Pub-Borka L.P. School Pub-panitema LP Gorka LP School & & & & & & & & &. & & & & & & & &. I have heard learned counsel appearing for the parties at length. Also p 12. erused the pleadings set forth by the parties. In view of the stand taken by the writ petitioners, the learned Standing Counsel was directed to produce the orig inal record of the case and also wanted to know as to whether any action has bee n taken/initiated against the erring officials for disbursement of the salary to the teachers concerned who as per statements made on oath by the respondent No. 4, i.e. Director of Elementary Education, are not entitled to. However, inspite of her best effort, submitted by Ms. Chakraborty that she is unable to produce t he record before the Court. More so, no affidavit has also been filed by the aut hority countering the statements made on oath by the petitioners in their affida vit-in-reply filed against the affidavit-in-opposition of Respondent No.2. 13. Perusal of the writ petition as well as the affidavit-in-opposition, aff idavit-in-reply and the additional affidavit filed by the respondent authority, it is apparent that the petitioners have been discriminated as they were not sim ilarly treated with their counter parts, inasmuch as, some of the teachers menti oned in the writ petition and in the affidavit-in-reply, who are similarly situa ted with that of the writ petitioners were allowed to draw scale of pay from the date of their joining in their service as Assistant Teachers whereas in case of the petitioners, they were allowed to draw regular scale of pay from the date o f passing of the Junior Basic Training Course. 14. In the case in hand, although the learned counsel for the petitioners ha s tried to bring the point of discrimination, merely on the basis of the unequal treatment meted out to the petitioners vis-à-vis the other similarly situated p ersons, facts whereof have been noted above, the test of any violation of the eq uality clause of Article 14 of the Constitution of India being based on positive consideration, it has to be decided by the court as to whether the persons appo inted even on the basis of compassionate ground and subjected to confirmation in service on attaining the qualification of Basic Training are entitled to regula r time scale of pay w.e.f. their date of joining merely because some other simil arly situated person meted out with a favorable treatment, the petitioners may n ot be automatically entitled to such treatment, if such particular treatment doe s not flow from legal sanction and is doled out only as favour. The provisions of Assam Elementary Education (Provincialisation) Rules, 1977 (’Rules 1977’ for short) contains provision of m ethod of recruitment in the posts concerned. Rule 3 (VI) (b)(E) of the said Rule s carve out provisions for appointment on compassionate ground even outside the normal select list of candidates. Rule 3(V) of the Assam Elementary Education (P rovincialisation) Service and Conduct Rules, 1981 (’Rule 1981’ for short) indica tes requirements of an elementary school teacher to undergo Junior Basic or Norm al Teachers’ Training Course upon appointment. Rule 4 thereof contains provision s for confirmation in service on fulfilling certain criteria including undergoin g training. The encadrement of a teacher is regulated as per Rule 3(VII) read wi th Schedule 1 of the Rules of 1981. Although Rule 4 of the Rules of 1977 empower s the government to frame general rules relating to condition of service of teac her in all matters including pay and allowances, no statutory enactment or any o ther statutory Order or Rule has been brought to the notice of the Court by whic h an appointing authority has been empowered to hold back the benefit of regular pay scale to a regularly appointed teacher. It is one matter to make the confir mation of service subject to passing of basic training as indicated in the Rules , but depriving an appointee under the State of his regular time scale of pay as fixed under the Rules by an order of the appointing authority who is not compet ent to pass any order or act otherwise in derogation of the mandate of Rules und er the circumstances even border on violation of the constitutional mandate of A rticle 23 of the Constitution of India. It is on this touchstone that enforceabi lity of the rights of the petitioners have to be determined. Thus the assertion of the petitioners gain force and deserve positive consideration on the ground o f discrimination. In the light of what has been discussed hereinabove, this Court is of th 15. e view that it will only be just and appropriate to dispose of the matter with d irection to the respondent authorities. Accordingly, respondent authorities are directed to take a decision on 16. the grievances made by the petitioners to treat them similarly as that of the ot her similarly situated teachers, who were also appointed on compassionate ground but are allowed to draw the scale of pay from the date of joining in the servic e whereas the petitioners are deprived of the same. The decision to pay the time scale of pay to the petitioners also from the date of joining in the service wo uld be taken within a period of 6 (six) weeks from the date of receipt of a cert ified copy of this order. Consequently, the authority would also take a decision with regard to payment of arrear salary to the petitioners as prayed for. 17. costs. The writ petition is allowed to the extent as indicated hereinabove. No