High Court · 2012

02. am for the appellant and Mr. U.K. Nair, learned counsel for the respondents. We have heard Mr. D. Saikia, learned Addl. Advocate General, Ass For the order proposed to be passed, it is considered inessentia

03. l to issue formal notice. The writ proceedings referred to hereinabove from wherein the impugned order eme rge carry the same grievance of the respondents herein. Their pleaded case, in short, is that they were initially working as Assistant Teachers in non-Governme nt/venture Schools, but were dropped pursuant to the provincialisation thereof b y the Government of Assam during 1991-1992. Being aggrieved, the respondents an d others approached this Court with C.R. No.2833/1997, which having been dismiss ed, they preferred an appeal being Writ Appeal. No.474/1997.

04. According to them, during the pendency of the said writ appeal, the State Government expressed its intention of regularizing 1123 teachers of Mi ddle English School and Middle English Madrassas of the State and accordingly a Division Bench of this Court by its order dated 13.11.1998 disposed of the writ appeal with a direction to the official respondents to proceed with and complete the process of regularization/provincialisation of the Asstt. Teachers who were dropped during the period 1991-1992. According to the respondents, they were i ncluded in the batch of 1123 Asstt. Teachers identified by the State Government for regularization/provincialisation of their services. Thereafter, they were re gularized against vacant posts on 01.10.2002 by the appropriate departmental aut hority and since then they had been continuing in service without any break. It was, thereafter, that by a WT Message dated 13.12.2002, all such orders of regu larization of dropped teachers were kept in abeyance and thereafter the responde nts were not paid their salary. Being aggrieved by this turn of events, they approached this Court with WP(C) No .4884/2003 assailing the WT Message dated 13.12.2002, wherein, by an interim ord er dated 24.06.2003, the departmental authorities were required to release the s alary of the respondents herein. Eventually, by the judgment and order dated 02. 08.2007, the writ petition was allowed and the WT message dated 13.12.2002 was q uashed. The interim order dated 24.06.2003 was also made absolute.

05. According to the respondents, nothing transpired thereafter in c ompliance of the above adjudication and that though they had been rendering thei r services without any blemish, they were denied their salary. Situated thus, t hey approached this Court with the above array of writ proceedings seeking the c ommon relief of a writ of mandamus directing the State authorities to release th eir salary, current and arrear together with interest pursuant to the order date d 01.10.2002 of regularization/provincialisation of their services and in compli ance of the orders dated 24.06.2003 and 02.08.2007 passed by this Court in WP(C) No.4884/2003. The appellant and its authorities, have meanwhile filed their affidavit(s) in th e said writ proceedings detailing reasons disentitling the respondents to the re lief of regularization/provincialisation of the service and salary as a conseque nce thereof. In the above factual setting, the order impugned has been passed, the operative portion whereof for ready reference is set out hereinbelow: (cid:28)From the above narration of the facts, what prima facie appears to the Court is that the respondents in the Education (cid:28)Department are dally dallying with the m atter and in the process has violated the judgment and order passed by this Cour t with impunity. For all the aforesaid reasons, it is hereby provided that the Chief Secretary of the State shall ensure that the respondent Nos.1 and 3, i.e. (1) Commissioner a nd Secretary, Govt. of Assam in the Education (Elementary) Department and (2) Th e Director of Elementary Education, Assam, shall not draw their salary from Apri l/2012. In due course it will be considered as to whether the petitioners will be entitled to receive their salary, both arrear and current, with appropriate i nterest at bank’s norms to be realized from the erring officials. List the matter on 26.042012. (cid:29) 06. The State appellant, in the instant appeal, has in substance, pl eaded that the order impugned with a direction in particular to stall the salary of the departmental authorities mentioned therein before finally deciding the c ontentious issues involved in the writ proceedings is grossly erroneous in law w arranting immediate interference in the interest of justice and to obviate serio us administrative dislocations in public interest. It has been averred as well that meanwhile, an application for review of the judgment and order dated 02.08. 2007 rendered in WP(C) No.4884/2003 has been filed by the State appellant.

07. Mr. Saikia has insistently urged that as the respondents are not (cid:28)dropped teachers (cid:29) as contemplated in law as well as the administrative norms f ormulated therefor, they are neither entitled to regularization/provincialisatio n of their services nor any salary as claimed. According to him, they are the yield of the (cid:28)spoils system (cid:29) and that while the perpetrators of the causative illegal acts have wriggled out with impunity, the real facts not having come to light earlier, the departmental aut horities acting bona fide in the interest of State stand penalized by the order impugned. While questioning the maintainability of the writ proceedings for the failure on the part of the respondents to file contempt petitions for the alleg ed noncompliance of the order dated 02.08.2007 passed in WP(C) No.4883/2003, the learned Addl. Advocate General has maintained that as the application for revie w thereof has substantial merit, interference with the impugned order is urgentl y called for as the continuance thereof seriously threatens to jeopardise the a dministrative functioning of the department involved.

08. Mr. Nair, per contra has dismissed the essentiality of a proceed ing for contempt as a condition precedent for valid institution of the writ proc eedings in which the impugned order was passed. According to him, the judgment a nd order dated 02.08.2007 passed in WP(C) No.4883/2003 being binding on the depa rtmental authorities therein, failure to comply therewith has resulted in contin uous cause of action entitling the respondents to seek adequate relief(s) in law . Referring to the order impugned, the learned counsel has maintained that as i t would appear therefrom that in spite of several opportunities being granted to the concerned authorities, the Education and Finance Departments of the State, not only failed to respond in right earnest, their indifferent and nonchalant at titude justified the stringent measure taken to uphold the sanctity of judicial orders. Contending that the order dated 02.04.2012 of the Director of Elementar y Education, Assam regularizing the service of the respondents with prospective effect while sanctioning fixed pay of Rs.2000/- per month, though in disregard t o the judgment and order dated 02.08.2007, totally belied the stand of the State authorities in their affidavit in the writ proceedings, the hasty withdrawal th ereof coupled with unintelligible, equivocal and evasive response to the querie s of this Court fully justified, the course taken in the impugned order and thus no interference therewith is warranted. Mr. Nair dismissed the move to file th e application for review of the judgment and order dated 02.08.2007 to be obviou sly untenable in law besides being inexplicably delayed & lacking in bona fide.

09. We have lend our consideration to the pleadings and the other ma terials on record to the extent essential for dealing with the issues in the pre sent appeal. The sequence of events as summarized hereinabove is not in dispute. Though, according to the State appellant for want of an affidavit on its behal f in WP(C) No.4884/2003 its stand vis-à-vis the merit of the claim of the respon dents for regularization/provincialisation of their services as well as salary c ould not be projected before this Court at that stage, that by order 13.11.98 r endered in Writ Appeal No.474/1999, a Division Bench of this Court while taking note of the steps taken by the State Government to regularize the services of 11 23 M.E., M.E.M. founder teachers (on whose behalf the writ appeal has been file d) had permitted it (State) to complete the said process leaving it open for it to consider as well the issue of regularization/provincialisation of other Assis tant Teachers dropped at the time of provincialisation of M.E. & M.E.M. during 1 991-92, is a matter of record. Whereas, by order dated 24.06.2003 passed in the interim in WP(C) No.4883/2003 the State authorities were directed to release th e salary of the respondents herein taking note in particular of the fact that me anwhile their services had been regularized as per the order passed amongst othe rs in W.A. No. 474/97, by the judgment order dated 02.08.2007 the WT message dat ed 13.11.2002 was interfered with making the direction for payment of salary abs olute. It is submitted at the Bar that an application for review of the judgmen t and order dated 02.08.2007 and WP' No.4883/2003 has since been filed, very rec ently this year, and that appropriate orders therein are awaited.

10. Without commenting on the merit of the assertions made in the af fidavit filed by the State appellant in the pending writ proceedings as well as in the application for review aforestated, suffice it to mention that the same a re yet to be adjudicated upon. The fact remains however that as on date the det ermination made by the judgment and order dated 02.08.2007 subsists and is bindi ng on the parties. When queried by this Court it had been submitted at the Bar that there is no dispute that the respondents have been rendering their services till date. In this factual premise, we are of the tentative view that in the t eeth of the decision rendered in WP(C) No.4884/2003, the plea against maintainab ility of the pending writ proceedings for the absence of any imputation of Conte mpt of Court for deliberate and conscious disobedience thereof by the concerned State authorities is not tenable. We have closely scrutinized the developments stage by stage reco 11. rded in the impugned order and the reasons that had impelled the learned Single Judge in issuing the operative directions. In the process of balancing the riva l submissions, we had inquired of the learned counsel for the parties, as to whe ther, without prejudice to their the rights and contentions in the writ proceedi ngs as well as the application for review, the salary, current and arrears payab le to the respondents for the service rendered can be worked out, so that the sa me and/or a percentage therefor be directed to be deposited by the concerned Sta te departments to enable this Court to reconsider the rigour of the restraint on payment of salary of the departmental authorities made by the order impugned. Whereas, Mr. Nair had affirmatively responded to this option, the learned Addl. Advocate General, Assam on instructions elected not to do so. Be that as it may, in the above backdrop of facts and the progre 12. ssion of events, the non-compliance of the judgment and order dated 02.08.2007 t ill date, the delayed application seeking review thereof as well as reasons reco rded in the impugned order, we do not feel persuaded for the present to interfer e therewith. We leave it at that as the writ proceedings are pending to be deci ded on merits. The appeals are dismissed. The Registry would take appropriate steps for early listing of the application o f the review before the appropriate Bench. No costs.