High Court · 2012

Heard Mr. DC Borah, learned counsel for the petitioner, Mr. MR Pathak, learned s tanding counsel, Education Department appearing for the respondent Nos.1 and 2 a nd Mr. B Gogoi, learned standing counsel, Finance Department appearing for the r espondent No.3. The petitioner by the present petition has prayed for a direction to the respond ents to pay the arrear salary with effect from the date when the arrear salaries to the similarly placed persons were paid. Pursuant to the Cabinet decision taken on 12th September, 2000, to bring 48 Juni or Colleges under deficit system of grants-in-aid, with effect from 1st February , 2001, 822 numbers of teaching and non teaching staff of the aforesaid 48 numbe rs of Junior Colleges were paid their salaries by bringing them under the defici t system of grants-in-aid with effect from 1st February, 2001. In those College s, there were 277 more teaching and non teaching staff, who, however, were not b rought under the deficit system of grants-in-aid, they having not been appointed against the first post. The Assam Junior College Second Post Teachers and Libra ry Assistants’ Association, thereafter, filed a writ petition being WP(C) No.524 6/2000 claiming the same benefit as has been given to 822 teaching and non teach ing staff. The said writ petition was disposed of vide judgment and order dated 4th December, 2000 directing the Government to give the same benefit to the rem aining 277 employees as has been extended to 822 employees. The Government vide order dated 31st March, 2001 entertained the claim of 227 employees, leaving as ide the 50 employees, which includes the present petitioner. Those 227 employee s have been given the benefit as has been given to the 822 employees. The petit ioner was one of the concerned employees in WP(C) No.5246/2000. Those 50 employ ees including the petitioner were left out on the ground that they did not submi t the required particulars for their consideration. Their cases, however, was s ubsequently considered by the Government on submission of the required particula rs and they have been given the benefit of the deficit system of grants-in-aid w ith effect from the date of notification, i.e. 4th October, 2006. 27 persons ou t of the 50 left out thereafter, filed a representation before the Director of S econdary Education on 5th October, 2007 praying for granting the same benefit as has been given to 227 as well as 822 employees. The petitioner also filed wp(C ) No.4158/2008 before this Court claiming the same benefit as has been given to the aforesaid 822 and 227 employees, which was disposed of vide order dated 22nd July, 2009 directing the Government in the Education Department to take appropr iate decision in the matter in accordance with law. The Commissioner & Secretar y, Government of Assam, Education (Secondary) Department vide order dated 28th A pril, 2010 has rejected the claim of the petitioner for grant of the same benefi t on the ground that all the 50 left out employees including the petitioner has accepted the benefit with effect from 4th October, 2006 without any protest, whi ch notification was issued pursuant to subsequent submission of the particulars by those 50 employees relating to their appointment. During pendency of the WP(C ) No.4158/2008 filed by the petitioner, another writ petition was filed by 34 em ployees from amongst the aforesaid 50 left out employees, claiming the same bene fit as was given to the aforesaid 822 and 227 employees, which was disposed of v ide order dated 26th May, 2010 directing the Commissioner & Secretary to the Gov ernment of Assam, Education (Secondary) Department to take up the matter of the writ petitioners therein for giving the benefit of grants-in-aid with effect fro m 1st February, 2001 as has been extended to the co-petitioners in WP(C) No.5246 /2000, i.e. the aforesaid 227 employees. The Government of Assam, thereafter, d ecided to extend the benefit to 47 persons, out of 50 left out, which includes t he 34 petitioners in WP(C) No.2672/2009, i.e. the salary under the deficit syste m of grants-in-aid, as has been given to the aforesaid 822 and 227 employees. T he petitioner, therefore, has filed the present petition claiming the benefit st ating that there is absolutely no reason or justification for excluding the peti tioner from getting the benefit as has been given to the other similarly placed employees. Mr. Borah, learned counsel for the petitioner submits that since other similarly placed persons, namely 47 employees, from out of the 50 left out employees, hav e been given the benefit of the salary with effect from 1st February, 2001, as h as been given to the aforesaid 822 and 227 employees, there is no reason why the said benefit should not be extended to the petitioner. It has also been submit ted that the decision of the Commissioner & Secretary, Government of Assam, Educ ation (Secondary) Department in refusing to grant the said benefit is on the fac e of the order dated 27th December, 2010 issued by the Director pursuant to the Government’s decision, is arbitrary and discriminatory, as the petitioner has be en treated differently though similarly placed with those 47 employees of 48 Jun ior Colleges, which were brought under the deficit system of grants-in-aid with effect from 1st February, 2001. Mr. Pathak, learned standing counsel, Education Department, on the other hand, s upporting the order of the Commissioner & Secretary to the Government of Assam, Education Department as well as of the Director of Secondary Education refusing the benefit to the petitioner has submitted that the said benefit has not been g iven basically on two grounds, namely - (i) the petitioner was appointed without following the requirement of the Assam Higher Secondary Education Council Rules , 1995 (in short, (cid:28)the 1995 Rules (cid:29)) and (ii) he was not one of the petitioners i n WP(C) No.2672/2009. To a pointed query made relating to the reason for earlier exclusion of 50 emplo yees from getting the benefit as has been given to the 227 employees and grant o f the said benefit with effect from 4th October, 2006, Mr. Pathak, learned stand ing counsel submits that all those 50 employees, which includes the petitioner, were earlier not granted the benefit of the deficit system of grants-in-aid with effect from 1st February, 2001 on the same ground, namely, they are appointed w ithout complying the requirement of 1995 Rules. It is evident from the facts, as narrated above, that initially 277 employees we re left out from giving the benefit of the deficit system of grants-in-aid, they being not the first teachers or the employees in the aforesaid 48 Junior Colleg es, which were brought under the said system. The Government, however, pursuant to the directions contained in the judgment and order dated 4th December, 2000 passed in WP(C) No.5246/2000 directing to give the same benefit to the remaining 277 employees as was given to 822 persons extended the benefit to 227 persons l eaving aside the 50 persons, which includes the petitioner, from granting the be nefit on the ground that they were appointed by the Management Committee not in conformity with the 1995 Rules. The Government, however, extended the benefit t o 47 employees out of the aforesaid 50 employees, as has been given to 227 emplo yees pursuant to the order dated 26th May, 2010 passed in WP(C) No.2672/2009, wh o were earlier not granted the benefit of the salary with effect from 1st Februa ry, 2001 on the same ground, i.e. non compliance of the provisions of the 1995 R ules. Those 50 employees are, therefore, similarly placed, they having earlier denied the benefit of pay with effect from 1st February, 2001 on the ground of n on submission of particulars and non compliance of the 1995 Rules and who, howev er, were subsequently granted the benefit of the pay scale with effect from 4th October, 2006, the authority having satisfied about their entitlement. But stra nge enough, the Director of Secondary Education pursuant to the Government’s dec ision though has extended the benefit of salary in the pay scale with effect fro m 1st February, 2001 to 47 employees, out of the aforesaid 50 initially left out employees, leaving aside the 3 employees, which includes the petitioner, on the basis of the directions contained in the order dated 26th May, 2010 passed in W P(C) No.2672/2009, whereby and whereunder the State respondents were directed to consider the claim of the petitioners in that writ petition. The Government having decided to extend the benefit to 47 employees, out of the aforesaid 50 employees cannot deny the same benefit to the petitioner and 2 othe r employees, who were excluded from the benefit of the pay vide order dated 27th December, 2010 passed by the Director of Secondary Education, Assam. The Gover nment thereby applied different standard to the persons of same class and though they are similarly placed. The petitioner and 2 other employees, therefore, ha ve been discriminated by the Government. There is absolutely no justification f or denial of the benefit as has been granted to the aforesaid 47 employees of th e aforesaid 48 Junior Colleges, which were brought under the deficit system of g rants-in-aid with effect from 1st February, 2001, since the respondents having v erified the particulars subsequently submitted found that all those 50 persons a re entitled to receive the salary under the deficit system of grants-in-aid, whi ch, however, was granted with effect from 4th October, 2006. That being the position, the respondents are directed to extend the petitioner a nd other 2 similarly placed persons, who were left out from granting the benefit and whose names are reflected in the order dated 27th December, 2010 passed by the Director of Secondary Education, Assam, the benefit as has been given to tho se 47 employees with effect from 1st February, 2001. The arrear salary payable to the petitioner and other 2 similarly placed persons shall be paid within a pe riod of 6(six) months from today. The writ petition is accordingly allowed. No costs.