High Court
Case Details
WP(C) 526/2009 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA
Legal Reasoning
1. Heard Mr. M. Sarma, learned counsel for the petitioner. Also heard Mr. B . Gogoi, learned standing counsel, Finance and so also Mr. U.K. Goswami, learned standing counsel, Education. 2. The petitioner, a subject teacher in Assamese is aggrieved by the order dated 27-10-2008 passed by the Director of Secondary Education, Assam refusing f ixation of the pay of the petitioner at the stage of Rs. 1835/- in the pay scale of Rs. 1785-4200 and fixing her pay at the stage of Rs. 1785/- in the said pay scale. From the materials on record it appears that the petitioner was first app ointed as graduate teacher in Dakhin Barbhag Girls’ School in 1977. When her ser vice was terminated by the Managing Committee of the school she instituted Title Suit No. 12/1983 and the suit having been decreed in her favour, she was tempor arily appointed as subject teacher in Assamese in Pachim Barbhag H.S. School by order dated 19-01-1992 in the pay scale of of Rs. 1785-4260. She joined her serv ice on 07-02-1992. Her service was regularized by order dated 22-06-1994 as grad uate teacher covering the period from 01-02-1986 to 06-02-1992. 3. After the aforesaid development she was transferred to Morowa Anandaram Baruah H.S. School. Thereafter, she was again transferred to Sonaram H.S. School , Guwahati. The petitioner had filed a writ petition being W.P.(C) No. 1693/1998 praying for regularization of her service. During the pendency of the writ peti tion, her service as subject teacher was regularized by order dated 30-08-1999. Thus, she prayed for pay protection. But the same having been not extended, she field Appeal Case No. 43ATA/08 in the Assam Administrative Tribunal and vide ord er dated 29-07-2008 the Tribunal directed the respondent No. 3 to dispose of the departmental appeal filed by the petitioner. By the impugned order dated 27-10- 2008 (Annexure-XXIII), the claim of the petitioner for pay protection having bee n rejected, she has filed the instant writ petition. 4. In paragraph 37 of the writ petition the petitioner has referred to the case of one Shri Sunil Chakraborty, subject teacher of Morowa Anandaram Baruah H .S. School, Nalbari and also the case of Smti. Harapriya Barukiyal (Borgohain), subject teacher of Sonaram H.S. School, Guwahati, so as contend that the said tw o teachers have already been provided with pay protection and the petitioner bei ng at par with the said two teachers, she is also entitle to pay protection. The petitioner has also annexed the copy of the order dated 06-11-2002 (Annexure-XX ) to show that Smti. Harapriya was provided with fixation benefit. 5. By (Annexure-XII), letter dated 16-08-2001 the case of the petitioner wa s forwarded to the Director of Secondary Education by the Govt. in the Education Department. Thereafter, certain other communications were made in respect of pa y protection of the petitioner. Thereafter, by the impugned order dated 27-10-20 08 the case of the petitioner for pay protection was rejected. The first ground assigned is that since the petitioner accepted her pay at the stage of Rs. 1785/ - in the pay scale of Rs. 1785-4200 she can not claim further pay fixation. The second ground indicated in the impugned order is that inspite of the letter date d 08-07-2008, addressed to her by the Deputy Director of Secondary Education, As sam requesting her to submit certain documents, she did not respond to the same. As regards to the first ground indicated in the impugned order Mr. Sarma 6. , learned counsel for the petitioner submits that mere acceptance of the pay at the stage of Rs. 1785/- can not deprive the petitioner of her legitimate right o f getting the pay fixed at par with other similarly situated teachers. As regard s second ground of non furnishing the documents, learned counsel submits that th e letter was never received by the petitioner. He also submits that most of the documents mentioned in the said letter being in possession of the Education Depa
Decision
rtment, the ground ascertained in the impugned order is not sustainable in law. 7. In the counter affidavit filed by the Finance Department, it has been st ated that the Education (Secondary) Department referred the file bearing No. B.( 3) S477/96/pt to the Finance (Estt-A) Department in connection with proposal for protection of the petitioner’s pay as subject teacher of Sonaram H.S. School. A ccording to the affidavit-in-opposition the matter was examined and the file was returned with an endorsement dated 11-05-2005 requesting the department to furn ish some information and document. However, when the file was not returned by th e Education Department, the Finance Department could not do anything in the matt er. 8. In the counter affidavit filed by the Deputy Director, Secondary Educati on, the claim of the petitioner for arrear salary in respect of certain period h as only been dealt with. The affidavit does not through any light regarding pay protection to the petitioner. Only statement made in paragraph 3 in referring to the aforesaid stand of fixation of pay of the petitioner at the stage of Rs. 17 85/-, is that she is not entitle to get pay fixation at the stage of Rs. 1835/-. However, no reason thereof has been shown. Considering the matter in its entirety the writ petition is disposed of 9. directing the respondent to reconsider the case of the petitioner for pay fixati on taking note of the aforesaid facts and considering the rules regarding protec tion of pay and also the plea of the petitioner that some similarly situated tea chers have been provided with pay protection. If the petitioner is found entitle d to pay protection, the same should not be deprived on technical ground. If any document is required to be obtained from the petitioner, the same can be done s eeking cooperation from him. Let the required exercise in terms of this judgment and order be carried out as expeditiously as possible preferably by 31-01-2014. With the above direction this writ petition stands disposed of.