Judgment · High Court · 2012

#1. Sri Jagat Ch.Deka 4.12.1999 May, 2006 2. Sri Tapan Sarma 4.12.1999 May,2006 3. Khanendra Kali 4.12.1999 May,2006 4. Kamala Kanta Kalita 4.12.1999 May,2006 5. Balendra Sarmah 4.12.1999 May, 2006 6. Kaneswar Sarma 4.12.1999 May, 2006 7. Sri Jitendra Kalita 20.11.1999 May, 2006 8. Sri Banamali Saharia 20.11.1999 May, 2006 9. Sri Lohit Ch.Deka 4.12.1999 May, 2006 10. Sri Purna Saharia 4.12.1999 May, 2006 11. Sri Bhadreswar Bora 4.12.1999 May, 2006 12. Sri Minakshi Deka 20.11.1999 May, 2006 13. Sri mati Kiran Deka 4.12.1999 May, 2006 14. Sri Gajendra Sarma 4.12.1999 May, 2006 15. Sri Nripen Bora 4.12.1999 May, 2006 16. Nalin Sarmah 4.12.1999 May, 2006 17. Sri Uttara Deka 4.12.1999 May, 2006 18. Rousanara Begum 4.12.1999 May, 2006 [8] W.P(C) No.40Bl/2009 is filed by one Sri Dhiraj Bora who also claims to have been regularly appointed on the basis of the recommendation of a duly constitute d Selection Committee pursua nt to an advertisement issued by the Education Depa rtment, Govt. of Assam, in the year 1999. The petitioner claims that he had been appointed on 4.12.1999 and thereafter, had successfully completed the Junior Ba sic Training Course and upon completion of the training, he was allowed to enjoy the regular scale of pay vide order dated 2B.02.2000. However, since the month of November, 2003, without giving any show cause notice or assigning any reason, the petitioner was also reverted from regular scale of pay to stipendiary statu s giving him only a fixed pay of Rs.1BOO/- per month. The petitioner states that , thereafter, he had approached this Court by filing W.P(C) No.703/2009 for a di rection for payment of regular scale of pay as he is eligible to get the same. T his Court, after considering his claim, disposed of the aforesaid W.P(C) No.703/ 2009 on 25.02.2009 with direction to the respondents, more particularly, respond ent No.2, Director, Elementary Education, Govt. of Assam, to examine the petitio ner’s grievance and, if, on such examination, it is found that the petitioner ha d passed the Junior Basic Training Course, regular scale of pay should be made a vailable to him with effect from the date of announcement of the result of the said training course. Pursuant to the aforesaid direction of this Court issued on 25.02.2009 in W.P(C) No.703/2009 filed by the writ petitioner, the Director, Elementary Education, A ssam, passed an order on 30.6.2009 which is impugned in the writ petition. In th e aforesaid impugned order dated 30.6.2009, it has been stated that on examinati on of the claim of the petitioner, it has been revealed that there had been cert ain irregularities/illegalities in the appointment in respect of Darrang Distric t and 302 numbers of primary school teachers’ name have come up which is under e nquiry by the authorities. It has been stated in the impugned order that the pet itioner was appointed in the year 1999 by the then Deputy Inspector of Schools, Mangaldoi against non-existing post without any selection by the Sub- Divisiona l Advisory Board, Mangaldoi and subsequently, the petitioner was adjusted agains t non-plan post without approval of the higher authority. In view of the aforesa id alleged irregularities/illegalities, the authorities felt that the claim of t he petitioner to afford him the time scale of pay cannot be allowed till finaliz ation of the enquiry made by the Government. [9] f Assam, has filed affidavits-in-opposition. In the aforesaid three writ petitions, the Education Department, Govt. o [10] In W.P(C ) No. 1028/2009, the Secretary to the Govt. of Assam, Education (E lementary) Department has filed an affidavit in which he has stated that all the petitioners except the petitioner No.14, Smt. Nipu Prava Saikia are in the list of illegally appointed teachers under the Darrang District. In total, 302 numbe r of teachers have been identified in the District to have been appointed illega lly. It was further stated that the Government by an order dated 10.6.2008 had d irected to issue show cause notices to all such teachers who have been identifie d to have been illegally appointed and it has been further stated that as per re ports received from the Director of Elementary Education, Assam on 05.6.2009 and 15.6.2009, it has been confirmed that 7(seven) of the petitioners have been iss ued with show cause notices. The 7(seven) petitioners with regard to whom the is suance of show cause notices have been confirmed are 1) Sri Ratul Sarmah, 2) Sri Naba Sarma, 3) Smt. Gitamoni Sarma, 4) Smt. Pranati Bordoloi, 5) Smt. Taslima Be gum, 6) Sri Mukut Sarma and 7) Smt. Binita Bordoloi. It has been also stated tha t as regards to the rest of the petitioners except Smt. Nipu Prava Saikia, such confirmation is awaited. To the aforesaid affidavit-in-opposition filed by the S tate Education Department, the petitioners have filed their affidavit-in-reply r eiterating that they have been appointed regularly on the recommendation of the duly constituted Selection Committee after the posts were advertised and as such , they are to entitle to regular scale of pay. [11] The State respondents i.e. the Education Department, Govt. of Assam, also f iled their affidavit-in-opposition in W.P(C) No.1029j2009 wherein a Similar stan d has been taken by the State authorities. It has been stated in the said affida vit-in-opposition that in the Darrang District, a total number of 302 appointmen ts have been detected to be made illegally and already an enquiry is going on an d as per the records, 9 (nine) of the 18 petitioners have already been issued sh ow cause notices. It has been also stated that information is awaited as regards the remaining petitioners. The petitioners also filed their affidavit-in-reply to the aforesaid affidavit-in-opposition filed by the Education Department, Govt . of Assam, reiterating their stand that they have been appointed on regular bas is on the basis of the recommendation of a duly constituted Selection Committee pursuant to an advertisement and having completed the Junior Basic Training Cour se, they are entitled to receive regular scale of pay. [12] In W.P(C) No.4081/2009 filed by Sri Dhiraj Bora, Education Department, Govt . of Assam, also has filed their affidavit-in-opposition. In the aforesaid affid avit-in-opposition filed by the Education Department, it has been stated that a large number of illegal appointments were made in the year 1999 on two different dates i.e. 20.11.1999 and 4.12.1999 by Shri Jogen Bora, the then in-charge Depu ty Inspector of Schools, Mangaldoi in the Darrang District. Upon an enquiry cond ucted by the Deputy Commissioner, Darrang, it has been found that 302 (which was later on verified as 300) teachers were appointed illegally and their names hav e been identified and the name of the petitioner is to be found at SI. No.117 of the said list under the Sipajhar Block. In view of the above large number of il legal appointments, the Government vide letter dated 10.6.2008 directed the Dire ctor of Elementary Education, Assam, to issue show cause notices to the illegall y appointed teachers. Ultimately, by a Government order dated 10.6.2008, the mat ter was entrusted to the Secretary to the Govt. of Assam, Education (Ele) Depart ment to cause an enquiry and fix responsibilities on the officials responsible f or the alleged illegal appointment of 302 teachers in Darrang District. It has a lso been stated that in this regard, 3(three) officials of the office of Deputy Inspector of Schools, Mongaldoi have been suspended and one employee has already been retired. It has also been stated in the affidavit-in-opposition that since the complete list of illegal teachers contained in the report of the Deputy Com missioner, Darrang dated 17.4.2003 was not received, initially show cause notice s were served only upon 136 teachers on 12.01.2009. It has also been stated that most of the replies to the show cause notices have been received and the dates have been fixed for personal hearing of the teachers on day to day basis. It has further been stated that the date of hearing started from 22.03.2010 till 27.4. 2010. Accordingly, the Education Department contended that till the aforesaid en quiry/exercise is completed, payment of regular scale of pay will not be appropr iate. The petitioner in the aforesaid W.P(C) No.4081/2009 has filed his affidavi t-in-reply. He has also reiterated his claim that he has been appointed on regul ar basis on recommendation of a duly constituted Selection Committee pursuant to an advertisement and he had also completed his Junior Basic Training Course and accordingly was drawing regular scale of pay and has denied the allegations mad e by the authorities. The petitioner also has drawn attention of this Court to c ertain discriminatory acts of the State by claiming that as many as 32 teachers whose names are also included in the aforesaid list of 302 teachers said to have been identified by the authorities to have been eppomted illegally are continui ng to receive regular scale of pay. This, the petitioner, contends is not only d iscriminatory but also shows that the authorities are out to victimize and haras s the petitioner. [13] The learned counsel appearing for the petitioners have urged that the petit ioners have been serving since 1989 having been appointed on regular basis on th e basis of the recommendation of a duly constituted Selection Committee subseque nt to a public advertisement and since they have lready completed Junior Basic T raining Course, they are entitled to draw regular scale of pay as per rules and they cannot be denied the regular scale of pay which they were allowed to draw w ithout giving them any show cause notices before reverting back to the stipendia ry status. Learned counsel appearing for the petitioners also contends that some of the petitioners are on the verge of retirement and as such, the matter which has been pending for such long period ought to be put to an end expeditiously, otherwise their rights will be greatly prejudiced. [14] Heard Ms. P.Chakraborty, learned counsel appearing for the Education Depart ment, who has vehemently argued that the petitioners are beneficiary of illegal process without proper authorization from the competent authority and as such, t hey are not entitled to regular scale of pay as claimed by them, more so, in vie w of the finding by the Deputy Commissioner, Darrang District about the illegali ty in the appointments. In this connection, Ms.Chakraborty, learned counsel appe aring for the Education Department, Govt. of Assam, has relied on the judgment o f this Court rendered in Sudhendu Mohan Talukdar 8t. ors. vs. State of Assam 8t. ors. reported in 2006 (2) GLT 216 and urged that those who are not appointed by following due process of law and without proper procedure for appointment to pu blic service are not entitled to any salary. The learned counsel relying on the aforesaid judgment has argued that any appointment made by flouting the procedur e and in excess of vacancies are to be considered as persona non grata and were not employees in the real sense of the term and the appointments made contrary t o the recognized recruitment process being highly arbitrary were not binding on the State Government and the State authorities were justified in refusing to rel ease the salary for paying those unauthorized army of staff which represented a host of unwelcome guests. [15] In response, Mrs. N.Saikia, learned counsel appearing for the petitioners h as contended that the aforesaid decision is not at all applicable in the present case inasmuch as the aforesaid decision was rendered in the context of the pers ons who were appointed under various circumstances as mentioned in para No.3 of the said judgment. A perusal of the para no.3 reveals that the cases of the peti tioners are slightly in a different footing inasmuch as in the present cases, th e petitioners claimed to have been appointed on regular basis by following due procedure of law on the recommendation of a duly constituted Selection Committee subsequent to public advertisement and in fact, they were already given regular scale of pay. However, upon certain finding by the authorities that appointment s were irregular/illegal, they were reverted back to the stipendiary status. Mrs . N.Saikia, learned counsel appearing for the petitioners has urged that since t he petitioners have not been removed from service and their appointments have no t been declared to be illegal or irregular by the competent authority in accorda nce with law, they shall be deemed to be regular employees and relying on the ju dgments of the Supreme Court rendered in Shantiniketan Hindi Primary School vs. Pal Hariram Ramavtar & ors. reported in (2010) 2 SCC 717 and Uttar Pradesh Land Development Corporation & anr. Vs. Mohd. Khursheed Anwar & anr. reported in (201 0) 7 SCC 739 has argued that the petitioners are entitled to receive regular sca le of pay for the works they are discharging. [16] Heard the counsels for the parties. It is now well established that any per son claiming right to enjoy regular scale of pay must have been appointed in acc ordance with the rules and by following regular process of appointment. In the p resent cases, the petitioners have claimed that they have been appointed through regular process and in fact they were enjoying regular scale of pay upon their appointment. The contention of the State respondents in substance is that subseq uently on enquiry, it has been revealed that no such due process was followed an d in fact, certain officers without proper authorization and without following n orms had made the appointment of the teachers numbering about 302 teachers. As c an be seen from the pleadings, the State authorities are already seized of the m atter and they have already initiated the process of making enquiry in this rega rd on the basis of the report submitted by the Deputy Commissioner, Darrang Dist rict. In fact, the State authorities have already started issuing show cause not ices to those teachers who were identified to have been appointed in irregular/i llegal manner and the State authorities have also stated that the personal heari ng of the teachers have already been initiated. [17] In view of the above exercise already initiated by the State Government, to find out whether the petitioners were appointed on regular basis by following r ules and norms as claimed by the petitioners or whether they were illegally appo inted as contended by the State cannot be considered at this stage. The authorit ies themselves are looking into this aspect. However, it is also a fact that thi s issue, whether the petitioners are appointed illegally or irregularly as conte nded by the State authorities, have remained unresolved for the last so many yea rs. The Deputy Commissioner had made a report in December, 2003 yet there is no end in sight as to the process already initiated by the State authorities to com e to a conclusion as to the validity of the appointments of the petitioners. Now more than 9(nine) years have lapsed and it will not be in public interest to ke ep this issue un-resolved. If the authorities feel that certain teachers have be en appointed illegally, irregularly and they do not deserve to remain as teacher s, there is no reason why appropriate action should not be taken at the earliest to deal with their continuation in service. On the other hand, if the claim of the petitioners that they are regularly appointed after following due process of law is true, there is no reason why the Damocles’ Sword should be kept hanging over their heads for such long period. If indeed the claim of the petitioners is true that they have been regularly appointed by following due process, there is no reason why their legitimate claim of enjoying regular scale of pay should be denied or kept suspended for such long period of time. The State respondents th emselves have contended in their affidavit-in- opposition that they had issued s how cause notices in 2009. Yet, the result of the aforesaid enquiry, after lapse of about three years, is not visible on record. Therefore, considering the matt er in its entirety, this Court is of the opinion that the authorities must concl ude its enquiry as to the validity of the appointment of the teachers including the cases of the petitioners within a reasonable period so that the petitioners would know their status as regards the validity of the appointment orders and th e authorities would be able to take appropriate actions in accordance with law. [18] Accordingly, the present three writ petitions being W.P(C) No.l028/2009, W. P(C) No.l029j2009 and W.P(C) No.4081/2009 are disposed of with a direction to th e authorities to conclude the enquiry as regards the validity of the appointment orders of the petitioners within a period of three months from today by followi ng due process of law and thereafter, on conclusion of such enquiry, inform the petitioners as to the status of their appointments and if the petitioners are fo und to have been validly appointed by the authorities, they are entitled to regu lar scale of pay with effect from the date they had been deprived of. On the oth er hand, if the appointments of the petitioners are found not to be valid or leg al or regular, it is left to the wisdom of the authorities to take such appropri ate actions as they may deem fit in accordance with law. However, considering th e entire aspects in the light of the facts as discussed above, this Court is als o of the opinion that the State authorities will work out the entitlement of the petitioners as regards the regular pay scale from the date they were reverted t o the fixed pay till date and keep the aforesaid amount in the suspended account which shall be released to the petitioners if entitled to upon conclusion of th e enquiry as stated above. [19] With the above observation and directions, these three writ petitions being W.P(C) No. 1028/2009, W.P(C) No.1029/2009 and W.P(C) No.4081/2009 are disposed of.