High Court
Case Details
WP(C) 821/2012 BEFORE HON’BLE MRS. JUSTICE ANIMA HAZARIKA JUDGMENT & ORDER The instant writ petition has been filed praying for setting aside;- i) the impugned order dated 15.10.2011 (Annexure-10) passed in App eal case No.30 ATA/11 by the learned Assam Administrative Tribunal, Guwahati dis missing the appeal filed by the petitioner, (ii) Order No.ELC/COP(C)101/2009/901/279 dated 10.8.2011 (Annexure-9) issued by the Deputy Secretary to the Govt. of Assam, Education (Elementary) Department , (iii) order dated 6.5.2011 (Annexure-6) issued by the Commissioner & Secretary to the Govt. of Assam, Education (Ele) department, Dispur with a further prayer to direct the official respondents to allow the petitioner to join in the post of Assistant Teacher in LP School and regularise the service as was done in the case of similarly situated persons on 23.7.2010 by the Director of Elementary Ed ucation, Assam vide letter No.B(3)S427/2001/3 dated 4.1.2002 in pursuance to the Govt. letter No.PMA/478/2006/Pt/377 dated 9.7.2010. 2.
Legal Reasoning
Heard Mr. B Banerjee, learned counsel appearing for the petitioner. Also heard Mr. B Choudhury, learned Standing Counsel, Education as well as Finance D epartment appearing for respondent Nos.1, 2, 3, 5, 6 and 7. None appeared on beh alf of respondent Nos.4 and 8 despite service of notice. Mr. Choudhury has also placed before the Court the record of the case. I have perused the same. 3. The material facts, in a nutshell are that the petitioner was selected f or the post of Assistant LP School teacher under OBB (Operation Black Board) sch me vide resolution No.2 dated 12.03.2001 by the Sub-Divisional General Area Sele ction Committee, Udalguri. The petitioner was thereafter appointed on 13.03.2001 and accordingly he joined in the Barangabari Dakshin Chuba LP school on 14.03.2 001 in the fixed pay of Rs.1800 PM but his salary could not be paid due to non- inclusion of his name in the list of teachers of Operation Black Board though h e continued to act as an Assistant Teacher at Barangabari Dakshin Chuba L.P. S chool. Being aggrieved, petitioner approached this Court by filing a writ petiti on being WP(C) No.6329 of 2007 which came up for consideration on 22.05.2008 and
Decision
this Court disposed of the writ proceeding with a direction as thus, (cid:28) & & &In the above view of the matter, this petition stands disposed with a direct ion to the Director of Elementary Education Assam to cause the issue pertaining to the petitioners claim for inclusion in the list of OBB School teachers verif ied on the basis of the contemporaneous records. The said authority would affor d all reasonable opportunities to the petitioner to have his say in the matter. For this, the petitioner should be notified regarding the date and time of the h earing. Needless to say that the petitioner would cooperate with the process. De pending on the outcome of the scrutiny and decision taken thereon, the petitione r would be extended the relief as found due to him on accordance with law. As th e petitioner waits in expectation, the process as ordered above should be comple ted with a period of two (2) weeks from the date of receipt of the certified cop y of this order. No costs. (cid:29) 4. Since the officials under the Education Department did not take any acti on in terms of the order dated 22.05.2008 passed in WP(C) No.6329 of 2007, the p etitioner filed a contempt case being COP(C) No.101 of 2009 which came up for co nsideration on 31.05.2011 wherein the counsel appearing on behalf of the officia l respondents submitted the order dated 06.05.2011 before this Court passed by t he Commissioner and Secretary to the Government of Assam, Education (Ele.) Depar tment and upon perusal of the same, the court closed the contempt case giving th e liberty to the petitioner to challenge the order dated 06.05.2011, if so advis ed. Ventilating the grievance and the prejudice caused to the petitioner in 5. the matter of entitlement of his continuation in service and the consequential b enefits accrued thereon and the indifferent attitude of the official respondents in handling the case along with the entire facts having been made in the order dated 6.05.20211, Mr. Banerjee, learned counsel appearing for the petitioner at the outset referred the order dated 06.05.2011 which is quoted hereunder: - (cid:28)GOVT. OF ASSAM EDUCATION (ELEMENTARY) DEPARTMENT DISPUR :: GUWAHATI-6 Read : Court in the Order dated 22/5/2008 passed in WP(C) No.6329/2010 (ShriAbd The directions of the Hon’ble High ORDER : : us Samad -vs- State of Assam & Ors.). Also Read The letter issued by Director, Elementary Education, Ass am to the Deputy Inspector of Schools, Udalguri vide memo No. EPD/H/33/2009/126- A dated 26/3/2010 and letter no.EPD/H/33/2009/146 dated 5/10/2010 from Director, Elementary Education, Assam to the Commissioner & Secretary, Education (Ele.) D eptt. alongwith report dated 11/5/2010 from Deputy Inspector of Schools, Udalgur i and report dated 7/5/2010, Sub-Inspector of Schools, Kharupetia circle. Findings As per directions of the Hon’ble High Court, the Directo r, Elementary Education was asked to conduct a re-verification into the matter o f the petitioner’s list of selected OBB candidates by providing reasonable oppor tunity to the petitioner in making the verification process vide memon no.ELC/CO P (C) 101/2009/901/251 dated 19/11/2010. In his report vide EPD/H/33/2009/146 da ted 5/10/2010 it is stated that the appointment of Md. Abdus Samad was genuine a nd he joined as Assistant Teacher at Borangabari Dakhin Chuba LP School under OB B 7066 scheme. It is also sated that he attended his duties regularly upto 30/6/ 2004. Thereafter, he did not attend the school as per the report of Head Pandit of the School. The subsequent verification made by the Deputy Inspector of Schoo ls, Udalguri which has been reported to the Director, Elementary Education, Assa m vide letter no.DIS/UDL/HC/LP/13/01/02/1581 dated 29/4/2011 and forwarded by Di rector, Elementary Education, Assam vide his letter no.EPD/H/33/09/160 dated 29/ 4/2011 speaks the same as contained in the Director, Elementary Education, Assam ’s report vide letter no.EPD/H/33/2009/146 dated 5/10/2010. Further scrutiny of records reveals that the petitioner was selected by the Sub-Divisional Selection Board vide resolution no.2 adopted in the meeting held on 12.3.2001. The petiti oner was appointed as Assistant Teacher at Borangabari Dakhin Chuba LP School ag ainst OBB (7066) Scheme in 2001 at a fixed pay of Rs.1,800/- p.m. As per report of Deputy Inspector of Schools, Udalguri the name of the petitioner was erroneou sly omitted from the list of selected names and the name of one Smt. Gunawati Da imari was shown double at Sl.78 and sl.118. The Deputy Inspector of Schools, Uda lguri made correspondence with District elementary Education Officer, Darrang vi de letter dated 7/10/2003 for inclusion of the petitioner’s name against sl.118. The Deputy Inspector of Schools, Udalguri also made correspondence with Directo r, Elementary Education, Assam vide his letter dated 29/1/2003 with a proposal t o correct the names of teachers and schools whose names are shown as double and the name of the petitioner Md. Abdus Samad, Borangabari Dakhin Chuba LP School t o be corrected against the name of Smt. Gunawati Daimari, Nalbari Govt. Junior B asic School at sl.No.118 of list. The Director, Elementary Education, Assam refe rred the matter to the Govt. vide letter no.EE(P)77/2001/311 dated 10/2/2003. Th e Govt. vide letter no.PMA 15/2003/28 dated 8/4/2003 communicated his decision s tating that the proposal for inclusion of new names of teachers are not acceptab le without proper justification. Decision After careful consideration and examination of the matte : r vis-à-vis the records and reports of Deputy Inspector of Schools, Udalguri and Director, Elementary Education, Assam it appears that the petitioner was select ed by due process but for omission of his name from the list of teachers prepare d for release of salary the authority could not make payment. Timely action on t he proposal for correction of his name would have prevented the occurrence of th e present situation. Therefore, in all fairness it would be appropriate that the petitioner be paid salary at fixed rate for the period i.e. from the date of jo ining upto 30/6/2004. As it is confirmed that he did not attend the school since 1/7/2004 the consideration for payment of salary for the period of absence from duty does not arise. As he absented from attending duty for about 7 years he ce ases to be a Govt. employee as per the existing Govt. instructions/rules. The Di rector, Elementary Education, Assam is directed to make payment of his salary fr om the date of his joining upto 30/6/2004 i.e. the period he worked as Assistant Teacher at Borangabari Dakhin LP School at fixed pay of Rs.1800/- p.m. This is issued to comply with the directions of the Hon’ble High Court in the Order dated 22/5/2008 passed in WP(C) No.6329/2010. Commissioner & Secretary to the Govt. of Assam, Education (Ele) Department. (cid:29) Sd/- AB Md. Eunus, IAS 6. Thereafter, the petitioner preferred two appeals, one to the Governor of Assam and the other to the Chief Secretary to the Government of Assam questioni ng the legality and validity of the order dated 06.05.2011 but the Deputy Secret ary to the Government of Assam, Education (Ele.) Department informed the petitio ner on 10.08.2011 referring the order dated 06.05.2011 contending that the order has already been issued against which a statutory appeal has been filed to the learned Assam Administrative Tribunal challenging the order dated 06.05.2011 and 10.08.2011 but the learned Tribunal did not interfere with the orders and henc e, the second round of litigation before the Court challenging the orders as i ndicated above. 7. Mr. Banerjee, learned counsel would contend that the name of the petitio ner was erroneously omitted from the list of selected candidates and the name of one Smti. Gunawati Daimari was shown at Sl. No.78 and 118 wherefor the Deputy I nspector of Schools, Udalguri made correspondence with District Elementary Educ ation Officer, Darrang vide letter dated 07.10.2003 for inclusion of the petitio ner’s name against Sl. No.118. The Deputy Inspector of School, Udalguri had also made correspondence with Director of Elementary Education vide letter dated 29 .01.2003 with a proposal to correct the names of teachers and schools whose na mes are shown as double and the name of the petitioner Md. Abdus Samad against B arangabari Dakshin Chuba L.P. School to be corrected against the name of Smti. G unawati Daimari, Nalbari Govt. Junior Basic School at Sl. No. 118 of the list. T he Director of Elementary Education Assam in turn referred the matter to the go vernment on 10.02.2003 whereon the Government vide letter dated 08.04.2003 commu nicated their decision stating that the proposal for inclusion of new names of teachers are not acceptable without proper justification meaning thereby that t he government including the officials of Education Department were aware of err oneous non-inclusion of his name in the list and had there been timely action ev en in 2003 the petitioner would not have been deprived of his service and on th e failure of the official respondents to correct the list require interference with the order dated 06.05.2011 including all the subsequent orders impugned in the writ petition. 8. Drawing the attention of the order dated 22.05.2008 passed in WP(C) No.6 329/2007, Mr. Banerjee would contend that a direction was issued to cause an inq uiry pertaining to the petitioner’s claim for inclusion in the lists of OBB teac hers verified on the basis of contemporaneous records. Inspite of the aforesaid direction, petitioner’s name was not included, though the official respondents w ere aware that the petitioner’s name was not included in the list erroneously an d for the same, his name was proposed to be included at Sl. No.118 of the list. However, the government did not agree to the said proposal without verification, resulting in such a situation that the petitioner has to lose his service for a n indifferent attitude on the part of the respondents, whereas they have admitte d as follows: - (cid:28) &Timely action on the proposal for correction of his name would have prevented the occurrence of the present situation (cid:29) 9. Mr. Banerjee would further contend that the order dated 10.08.2011 along with the order dated 15.10.2011 cannot be sustained being cryptic in nature whi ch also requires to be interfered with in the interest of justice to enable the petitioner to live a decent standard of living at least after 13 years of lit igations. 10. Countering the argument so advanced by Mr. Banerjee, Mr. Choudhury, lear ned counsel appearing for the Education Department would contend that after 30.0 6.2004 the petitioner did not attend the school which resulted in passing the or der dated 06.05.2011, more so, when the annexures annexed in the affidavit would disclose that the petitioner did not attend the school after 30.06.2004 and pra yed for dismissal of the writ proceeding. 11. Referring affidavit-in-opposition along with its annexure relating to (cid:28)P roof Certificate (cid:29) issued by the then Headmaster dated 09.03.2009, Mr. Banerjee h as contended that the same would amply demonstrate that the petitioner signed th e attendance register till 31.12.2004 marking his presence. But thereafter, as n o order regarding his extension was issued by the higher authority the petitione r was debarred from signing the attendance register as per the decision of the S chool Managing Committee. On the other hand, till date no order has been receive d for canceling his appointment and therefore, he is present in the school and c arrying on with his regular work till date which would belie his presence till 3 0.06.2004 in the school and his entitlement of salary till 09.03.2009 (date as p er certificate annexed with the affidavit-in-opposition filed by respondent No.5 at page 12) along with continuity in service cannot be denied, more so, when a ll the teachers who were appointed in the year 2001 as OBB teachers have been re gularized. Considered the submissions made by the parties along with the pleadings 12. of the parties including the records produced by the Education Department. The r ecords would show that the following facts are admitted, viz. (a) The petitioner was selected by the Sub-Divisional Selection Board (General A rea) by its resolution No. 2 dated 12.03.2001 and thereafter he was appointed on 13.03.2001and posted at Barangabari Dakshin Chuba L.P. School under Deputy Ins pector of Schools, Udalguri at a fixed pay of Rs.1800/- per month and accordi ngly he joined in the school on 14.03.2001; (b) The name of the petitioner was erroneously omitted from the list of selected candidates and the name of one Smti. Gunawati Daimari was included twice at Sl. No. 78 and 118 wherefor the Deputy Inspector of Schools, Udalguri on 29.01.2003 issued a communication on 29.01.2003 with a proposal to correct the names of te achers and schools whose names are shown there and the name of the petitioner Md . Abdus Samad, Barangabari Dakshin Chuba L.P. School to be corrected against the name of Smti. Gunawati Daimari, Nalbari Junior Basic School at Sl. No. 118 of t he list. (c) The Deputy Inspector of Schools, Udalguri again made correspondence with the District Elementary Education Officer, Darrang vide letter dated 07.10.2003 for inclusion of the petitioner’s name against Sl. No. 118; (d) The Director of Elementary Education, Assam referred the matter to the Gover nment vide letter NO. EE(P) 77/2001/311 dated 10.02.2003 whereof the Governmen t vide letter No.PMA/15/2003/28 dated 08.04.2003 communicated its decision stati ng that the proposal for inclusion of new names of teachers are not acceptable w ithout proper justification; (e) No budget provision for his salary had been made due to non-inclusion of his name in the list of the selected candidates and for non-payment of his salary due to omission in the select list culminated in filing the writ petition being WP(C) No.6329/2007; (f) The said writ petition was disposed of on 22.05.2008 directing the Director of Elementary Education, Assam (cid:28)to cause the issue pertaining to the petitioners claim for inclusion in the list of OBB teachers verified on the basis of conte mporaneous records (cid:29) and depending on the outcome of the scrutiny and decision t aken thereon, the petitioner would be extended the relief as found due to him in accordance with law and the process as ordered above should be completed within a period of two (2) weeks from the date of receipt of the certified copy of the order; (g) No decision taken on the above directions issued in the writ proceeding with in the stipulated period resulting in initiating a contempt petition being COP(C ) No. 101 of 2009 which came up for consideration on 31.05.2011 wherein the cour t closed the contempt case on receiving the order dated 06.05.2011 issued by the Commissioner and Secretary to the Government of Assam, Education (Ele.) Departm ent with the liberty to challenge the order dated 06.05.2011, if so advised; (h) Accordingly the petitioner filed two appeals, one to the Governor and the ot her to the Chief Secretary to the Government of Assam ventilating his grievances against the order dated 06.05.2011. The authorities, however, did not dispose o f the appeals informing the order dated 06.05.2011 vide communication dated 10.0 8.2011; (i) The statutory appeal is taken on the file of the learned Assam Administrativ e Tribunal being Case No.30 ATA/2011 which culminated in dismissal on 15.10.2011 and hence the writ proceeding challenging the impugned orders as indicated abov e. The Court gave its anxious thoughts over the matter, more particularly, 13. on the admission of the Commissioner and Secretary to the Government of Assam, E ducation (Ele.) Department in the order dated 06.05.2011 wherein it has been spe cifically stated that (cid:28)timely action on the proposal for correction of his name would have prevented the occurrence of the present situation (cid:29). The official resp ondents have admitted that omission of the name of the petitioner in the select list of OBB teachers put the petitioner in starvation for non-payment of salary for the last 4 (four) years as budget provision could not be made though corresp ondences were made on 29.01.2003, 07.10.2003 and 10.02.2003 for inclusion of his name at Sl. No.118 in place of Smti. Gunawati Daimary but the Government did no t accept the proposal without proper verification. The official respondents did not make any endeavour to include his name in the list of OBB even after the ord er dated 22.05.2008 passed in WP(C) No.6329 of 2007 and waited for about 3 (thre e) years in passing the impugned order dated 06.05.2011 which is the creation of the Education Department which cannot find fault with the petitioner and for th e fault of the Department the petitioner should not be allowed to suffer in view of the facts pleaded and established in the case in hand. 14. Another aspect is required to be answered relating to absence from duty from 01.07.2004 as indicated in the order dated 06.05.2011 whereas the petition er pleaded that vide communication dated 05.03.2008 (Annexure-11 to the writ pe tition) issued by the Headmaster of the school to the Deputy Inspector of Schoo ls, Udalgiri relating to Working Certificate as teacher wherein it has been cert ified that on 05.03.2008 the petitioner was working, which fact, however, has be en disputed by respondent No.5 in the affidavit filed on 03.12.2013. But in the said affidavit a proof certificate has been annexed at page 12 which is quoted h ereunder: - (cid:28)PROOF CERTIFICATE This Proof Certificate is issued vide order no.5362-68 dated 23/03/01 by the Office of the Deputy Inspector of Schools, Udalguri stating that Md. Abdus Samad had joined this school on 18/03/01 and signed the attendance register till 31/12/04 marking his presence. But after this as no order regarding his extensi on was issued by the higher authority, he was debarred from signing the attendan ce register as per the decision of the School Managing Committee. On the other h and, till date no order has been received for cancelling his appointment and the refore he is present in the school and carrying on with his regular work till da te. I wish him success. Seen Sd/ (Illegible) 29/4/11 Yours faithfully (Illegible) 9/3/2009 (cid:29) 15. The Court considering the matter in its entirety is inclined to interfer e with the part of the order dated 06.05.2011 passed by the Commissioner and Sec retary to the Government of Assam, Education (Ele.) Department, Dispur holding t hat (cid:28) & & & &as he absented from attending duty for about 7 years, he ceases to be a Govt. employee as per the existing Govt. instructions/rules & &.. (cid:29) along with ord er dated 10.08.2011 issued by the Deputy Secretary to the Government of Assam, E ducation (Ele.) Department, Assam. Accordingly, the aforesaid part of the order dated 6.5.2011 as well as order dated 10.8.2011 are set aside and quashed. 16. The learned Administrative Tribunal passed the impugned order dated 15.1 0.2011 in Case No.30 ATA/2011 without applying its mind and without considering the materials available on record as discussed above. Therefore, the same is lia ble to be set aside and quashed in exercise of power under Article 226 of the Co nstitution of India, which, I hereby do. The order dated 15.10.2011 is according ly set aside. 17. The aforesaid orders are set aside being not sustainable under the law b ecause the petitioner cannot be ceased to be a government employee in view of co mmunication dated 05.03.2008 and 09.03.2009 and that too, without giving any opp ortunity to him. 18. In the result, the writ petition is allowed directing the Commissioner a nd Secretary to the Government of Assam, Education (Ele.) Department, Dispur and the Director of Elementary Education, Assam, Kahilipara, Guwahati to reinstate the petitioner within 8 (eight) weeks from today in the post of Assistant Teache r at Barangabari Dakshin Chuba L.P. School under the Deputy Inspector of Schools , Darrang at Mangaldoi by adjusting/regularizing his post in terms of communicat ion dated 23.07.2010 (Annexure-4) wherein the teachers appointed in the year 200 1 along with the petitioner under OBB Scheme has been adjusted/regularized bein g similarly situated persons. On his reinstatement in his usual scale of pay, hi s service shall be treated as in continuation of service for the purpose of pens ion and other emoluments. The Director of Elementary Education, Assam, is furthe r directed to pass a separate order relating to his arrear salary (under the rev ised scale, if any) considering the claim of the petitioner taking into account the proof certificate annexed in the affidavit-in-opposition filed by respondent No.5 (at page 12) issued on 09.03.2009 by the Headmaster of the school within a period of 2 (two) months from the date of receipt of a copy of this order. The parties are left to bear their own costs.