High Court
Case Details
WP(C) 735/2008 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY
Legal Reasoning
But it is clear from the file note put up by the Superintendent of Taxes on 30.7.1993 as well as from the CIT’s direction for petitioner’s appointment g iven on 29.3.1994 that the petitioner was appointed through due process. In fact in the judgment dated 1.12.1998 in the Civil Rule No.2169/1997, there was a cat egorical observation by the Court that the petitioner was appointed with due app roval of the authorities. Therefore as long as the observation of the Court on t he legitimacy of the petitioner’s appointment stands, it would be impermissible for the CIT to take a contrary view. Consequently the reason given by the CIT fo r rejecting the claim for back wages in the impugned letter dated 18.7.2007 (Ann exure-Q) is found to be unacceptable. Since this Court in its judgment dated 1.1 2.1998 in the Civil Rule No. 2169/1997 had directed for reinstatement of the pet itioner by declaring that she was appointed on compassionate ground through due process, I am of the view that her claim for back wages as a reinstated employee should be allowed. 12. Having held thus, the respondents are directed to take steps to disburse the back wages for the period 17-4.1997 to 17.12.1998 as was initially consider ed by the CIT through his letter dated 13.11.1006. The said period should also be regularized for other service benefits. Since the petitioner is awaiting long for her back wages, the respondents are directed to process the claim and ensur e disbursal of the dues within 4 months from today. A copy of this order be furn ished to Mr. R. Dubey, Standing Counsel for necessary communication. 13. on cost. With the aforesaid direction, the case stands allowed without any order
Arguments
Heard Mr. B. Chakraborty, the learned Counsel appearing for the petitioner. The respondents are represented by Mr. R. Dubey, the Standing Counsel for the Financ e Taxation Department. 2. The petitioner challenges the order dated 18.7.2007 (Annexure-Q) whereby her claim for salary for about 20 months (17.4.1997 - 17.12.1998) was rejected by the Commissioner of Taxes, (CIT) Assam. After the petitioner’s husband Late D ilip Kr. Bhowmik died-in-harness on 4.10.1992 while serving as an LDA-cum-Typist in the office of the Superintendent of Taxes, Dhubri, the petitioner applied fo r compassionate appointment. The applicants claim was recommended on 30.7.1993 ( Annexure-A) by the Superintendent of Taxes. Thereafter the CIT through the comm unication dated 29.3.1994 ordered for the petitioner’s appointment and through t he order dated 30.3.1994 (Annexure-C), the petitioner was appointed in the death vacancy of her husband as a LDA-cum-Typist in the office of the Superintendent of Taxes, Dhubri. 3. But because of the direction given by the State Government to retrench a ll temporary employees, the service of one Abdul Malik Mollah who was serving ag ainst a suspension vacancy, was terminated and this was challenged by the petiti oner’s colleague Abdul Malik Mollah who filed the Civil Rule No. 3237/1993. But that case was dismissed by the learned Single Judge and the resultant Writ Appe al 19/1994 filed by the aggrieved petitioner was also dismissed by the Division Bench. Then Shri Mollah filed an Appeal before the CIT and through a reasoned o rder dated 1.9.1995 (Annexure-D), the appeal of Shri Mollah was rejected as one without merit by observing that there was no post of LDA-cum-Typist in the conce rned office to accommodate Shri Mollah. Undeterred by the reverses the terminated LDA took his grievance before 4. the Assam Administrative Tribunal, Guwahati and in the case No.9ATA/96, through the judgment dated 8.11.1996 (Annexure-E) the learned Tribunal declared that ter mination was not through due process and accordingly the termination order dated 31.3.1994 was quashed by the learned Tribunal. 5. In order to implement the Tribunal’s judgment, the CIT through his lette r dated 16.4.1997 ordered for retrenchment of the junior-most LDA and as a resul t thereof, the petitioner who was serving on compassionate basis was retrenched trough the order dated 21.4.1997 (Annexure-G) and in the resultant vacancy, Abdu l Malik Mollah was appointed as LDA-cum-Typist. 6. Aggrieved by her retrenchment, the petitioner filed the Civil Rule No. 2 169/1997 where Abdul Malik Mollah was arrayed as respondent No.4. In this case, the petitioner challenged the Tribunal’s judgment and also her retrenchment and appointment of Shri Mollah in the resultant vacancy. The High Court found merit in the petitioner’s contention and accordingly through the judgment dated 1.12.1 998, the Tribunal’s judgment dated 8.1.1996 in favour of Shri Mollah was quashed . Having noted that the petitioner was appointed on compassionate basis after du e approval, she was ordered to be reinstated in the post held by Shri Mollah by observing that the respondent No.4 was conferred a wrongful benefit by depriving the petitioner of her legitimate right. 7. Now to give effect to the High Court’s judgment in Civil Rule No. 2169/1 998 the petitioner was appointed through the order dated 17.12.1998 (Annexure-J) but since the order was shown as a fresh appointment, a corrigendum was issued on 25.9.2001 (Annexure-K) admitting that mistakenly the petitioner was shown to be freshly appointed whereas it was her re-appointment. After the corrigendum cl arified that the petitioner was re-appointed, she applied for her pay and servic e benefits for the period 17.4.1997 to 17.12.1998 (when she was discharged from service till her reinstatement) and the Sr. Superintendent of Taxes, Dhubri thro ugh his letter dated 25.9.2001 (Annexure-L) sought the advice of the CIT on whet her the petitioner’s absence period should be regularized and pay be disbursed t o her under the Financial Rules 17.1. 8. But since no response was given by the CIT for about 5 years, the petiti oner gave legal notice for back wages and in his reply letter dated 13.11.2006 ( Annexure-O), the CIT informed that steps are being taken by the Government for c reation of a supernumerary post of LDA-cum-Typist for regularising the service b reak of the petitioner. 9. Next when a reminder notice was sent on 31.5.2007, the CIT took a contra ry position by declaring that as the petitioner was re-appointed only on 17.12.1 998, her claim for back wages from 17.4.1997 till she was reinstated on 17.12.19 98, is not tenable. 10. Mr. R. Dubey, the Standing Counsel representing the respondents submits that administrative approval for petitioner’s compassionate appointment was not taken and accordingly for all practicable purpose, the petitioner should be cons idered to be appointed on compassionate ground only on 17.12.1998 and therefore her claim for back wages is not tenable. 11.