High Court
Case Details
WP(C) 7078/2005 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA
Legal Reasoning
Heard Mr. B. Goswami, learned counsel for the petitioners. Also heard Ms. P. Cha kraborty, learned Standing Counsel, Education Department. By means of this writ petition, the petitioners have prayed for a direction to t he respondents to pay salary for the period from April, 2001 to 18.7.2004. the p rayer so made is on account of the subsequent appointment of the petitioners by Annexure-III communication dated 9.7.2004 after phasing out of the scheme called Non Formal Education Scheme, which was sponsored by the Union Govt. w.e.f. 31.3 .2001. The said decision for phasing out of NFE Scheme w.e.f. 31.3.2001 was conv eyed by the Govt. of Assam in the Education (E) Department vide Annexure-II lett er dated 14.3.2001. As per the said communication, there would be no Govt. trans action with the incumbent in the NFE w.e.f. 1.4.2001 onwards and that no office of the NFE would be allowed to function. However, it was stipulated in the commu nication that all employees working in regular post(s) having continuous retenti on and availing salary on full scale of pay, would be given adjustment benefits under various Directorates of Education Department within maximum of 2 (two) yea rs, against equivalent posts having retention but lying vacant. It was also stat ed in the said notification that after adjustment / absorption they would also b e eligible to incur arrear salary for the gap period, followed by regularisation of the period along with pay protection, seniority and pensionary benefits. That pursuant to the aforesaid decision of the Union Cabinet their was n
Decision
The fact of the matter is that after phasing out / closure of the NFE scheme w.e .f. 31.3.2001, the petitioners were not in employment, which is evident from the ir own statements in paragraph 7 of the writ petition, quoted below :- (cid:28)7. o Government Transaction with the petitioner regarding their services w.e.f. 1.4 .2001 onwards. It is pertinent to mention that prior to aforesaid decision of th e Union Cabinet both the petitioners were working in regular posts having contin ues retension and availing salary on full scale of pay. Though the Government de cision was to give adjustment benefit under various directorate of Education Dep artment within maximum of 2 years, however after such waiting Secretary to the G ovt. of Assam, Education Department by Notification dated 9.7.2004 vide No. A(I) E 445/2001/Pt/123 accorded approval to accommodate / adjust service of the petit ioner. By the aforesaid notification dated 9.7.2004 Petitioner No.1 was posted a s District Adult Education Officer, Darrang (Mangaldoi). Petitioner No.2 was pos ted as District Adult Education Officer, Dibrugarh. In the aforesaid notificatio n it was stated that past services will be counted towards pensionary benefit et c. without break and subject to observance of other formalities as required. It was also stated in the aforesaid notification dated 9.7.2004 that the adjustment of services of the petitioners has the approval of State level Empowered Commit tee (SLEC). After closure of the NFE scheme w.e.f. 31.3.2001, the petitioners kept on waitin g for their absorption / adjustment, which eventually came to them vide the afor esaid notification dated 9.7.2004, when they were appointed as District Adult Ed ucation Officer with effect from the date of the order. As per the said order, t heir past services would be counted towards pensionary benefits etc. In the counter affidavit filed by the respondent No.2, it has been stated thus : - (cid:28)5. That the scheme of Non Formal Education was sponsored by the Government of India and was phased out on 31.3.2001 on the decision of the Union Cabinet is sued under Memo No. MHRD(I)/ND/CSS(P)/780/86-87/1005 dated New Delhi, 12.12.2000 . it was declared that after the phasing out, there would be no Government trans action with any incumbent of Non Formal Education, with effect from 01.04.2001; however, all employees working in regular posts, having continuous retention and availing salary on full-scale pay would be given adjustment benefit under vario us Directorate of Education Department within a maximum of 2 (two) years of ther eabouts, in equivalent post having retention but which had been lying vacant. Af ter adjustment / absorption, the incumbents would be eligible to receive arrear salary for the gap period, followed by regularisation of the period, along with pay protection, seniority and pensionary benefit. 6. That after the phasing out of the scheme of Non Formal Education, the se rvices of the petitioners were adjusted as District Adult Education officers. Th e petitioners are not eligible for arrear salary for the gap period of April 200 0 to 18.7.2004. The services of the petitioners will, nevertheless, be taken int o account for calculating pensionary benefit without break. (cid:29) If the petitioners were not in employment w.e.f. 31.3.2001 and eventually reappo inted by Annexure-III communication dated 9.7.2004, this Court exercising writ j urisdiction, cannot issue any mandamus to the respondents to pay salary for the period the petitioners did not render any service. The Annexure-II communication dated 14.3.2001 is self contradictory. In one hand it says that there will be n o Govt. transaction with any incumbent of NFE w.e.f. 1.4.2001 and that no office of NFE will be allowed to function after 1.4.2001 but on the other hand, it was provided that for those for whom there was continuous retention of the posts, t hey would be entitled to salary. Ms. P. Chakraborty, learned Standing Counsel, E ducation, submits that it was only in respect of continuous retention of the pos ts beyond the stipulated date i.e. 31.3.2001, which has been referred to in the said communication dated 14.3.2001. The petitioners being not in employment of the Govt. for the period from 1.4.200 1 to 18.7.2004, this Court cannot issue any direction for payment of salary. At this stage, Mr. B. Goswami, learned counsel for the petitioners have referred to the documents annexed to the writ petition to contend that other similarly s ituated employees having been provided with salary even for the period in which they were not in employment, the petitioners are also entitled to salary for the period in question, it is for the Government to decide as to whether even for t he period of unemployment, the Govt. employee is entitled to receive salary or n ot. Mr. Goswami, learned counsel for the petitioner has also referred to the judgeme nt and order dated 29.1.2002 passed in WP(C) No. 952/2001. The same was in conne ction with another scheme called All Assam Rural Functional Literacy Programme ( RFLP). The petitioners involved therein were working in Grade-IV posts and they were appointed during the year 1980-87. The scheme was phased out and on 29.12.1 992, a decision was taken to absorb the incumbents working under the said scheme . A grievance was raised that although others have been absorbed but 12 Peons an d 16 Drivers had not been absorbed. It was in the aforesaid circumstances, the order was passed for consideration of their absorption and payment of their salary. Direction issued was to regularis e their service by end of April, 2002 with the further direction for payment of current salary within two months and arrear salary within six months. The aforesaid direction was issued noticing the facts and circumstances involved in the said case. No ratio, as such, has been laid down in the said order that the employees would be entitled to salary even for the period when they were not in employment. The petitioners having worked under a particular scheme and the said scheme having been discontinued w.e.f. 31.3.2001 and thereafter they having been appointed afresh in 2004 as per the particular policy decision of the Gove rnment, I am of the considered opinion that the petitioners are not entitled to salary for the said period. Writ petition is dismissed, without however, any order as to costs.