S.M. Talukdar v. State of Assam), disposed of on
Case Details
WP(C) 622/2009 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA Heard Mr. R. Dutta, learned counsel for the petitioners. Also heard Mr. A. Deka, learned Standing Counsel, Education Department. The petitioners numbering 17 h ave challenged the findings recorded by the particular Expert Committee in the m eeting held on 20.12.2008 in the office chamber of the Commissioner and Secretar y to the Govt. of Assam in the Education (Ele) Department. The relevant portion is quoted below :-
Legal Reasoning
(cid:28)6) WP(C) No. 653/2008 - Shri Kushal Baruah & 17 others. Perused the order dated 25.4.2008 passed by the Hon’ble High Court in WP (C) No. 653/2008. The Sub-Committee constituted by Government has submitted his report. It reveals from the report that -
Legal Reasoning
(a) The petitioners Shri Kushal Baruah & 17 others were appointed in the mon th of December, 1989 against non-existent posts. The Deputy Inspector of Schools , Dhemaji issued termination order by the then Deputy Inspector of Schools, Dhem aji after paying 29 months of salary upto 18.5.92. The records of selection of t he petitioners are not available in the office of the Deputy Inspector of School s, Dhemaji. 10(ten) petitioners of the out of 18(eighteen) petitioners were regu larised as irregular category of teaches under Manoharan Committee Report in pur suance of Govt. order dated 10.8.2000. Remaining 8(eight) petitioners were allow ed to draw their salaries before issue of the regularisation order of Govt. date d 10.8.2000. But Deputy Inspector of Schools, Dhemaji could not submit record ho w these 10 petitioners came under irregular category of teachers under MCR, who were initially appointed in the year 1989. However, as per Govt. letter No. ELC/ WP(C)4465/2006/331/179 dated 9.2.2007, the salary of the petitioners were stoppe d for August, 2007. The Committee has recommended to initiate stern action so that no salary
Decision
is paid to the petitioners till the matter is finally disposed of. (cid:29) It appears that the petitioners had earlier approached this Court by fil ing the aforesaid writ petition i.e. WP(C) 653/2008, which was disposed of by or der dated 25.4.2008. By the said order, the matte relating to non-payment of sal ary to the petitioner was referred to the Govt. for adjudication in terms of the direction contained in WP(C) No. 2147/1999 (S.M. Talukdar Vs. State of Assam), disposed of on 6.4.2006. In terms of the said order, the matter was required to be placed before the expert committee constituted for the purpose of resolving t he disputes relating to non-payment of salary. As to what is the outcome of the evaluation made by the said expert committee has been noted above. The petitioners were appointed as Assistant Teachers of different Primar y Schools of Dhemaji district. They were appointed in December, 1989. Thereafter , they continued to receive salary upto 2009. However, when their salary was not paid they filed the aforesaid writ petition and pursuant t the order passed the rein the expert committee has rejected their claim for payment of arrear and cur rent salary, they filed the instant writ petition. Mr. R. Dutta, learned counsel for the petitioner placing reliance on the particular report of another Committee, namely, Manoharan Committee, submits th at since the said committee has recommended for regularisation of services of th e petitioners, the respondents are duty bound to take the follow up action. On t he other hand, Mr. A. Deka, learned Standing Counsel, Education submits that the Manoharan Committee was constituted to resolve the issue relating to illegal / irregular appointment made during the period from 1.3.1991 to 30.11.1996. Howeve r, the petitioners were illegally appointed in 1989. He further submits that the ir services had been terminated way back in 1992. Unfortunately due to illegal a ction on the part of some of the Officers of the Education Department, they cont inued to receive their salary upto 2007. However, when the same was brought to t he notice of the departmental authorities, order was issued for stopping salary to those teachers. In the counter affidavit filed by the respondent No.3, it has been state d that the services of the petitioners along with 752 teachers had been terminat ed vide order No. EAA/18/87/346 dated 12.5.1992. it has been stated in the affid avit that the petitioners and some others were appointed illegally without any v acancy. It has further been stated that the then DI of Schools, Dhemaji, namely Shri B. Bora, illegally regularised the services of the petitioners No. 5, 6, 9, 11, 12, 13, 14, 15 and 16 referring to the Manoharan Committee Report, although the same is not applicable to the case of the petitioners. In this connection, it has been stated us in paragraphs 7, 8, 9, 10 and 11, which are quoted below : - (cid:28)7. That with regards to the statements made in the paragraph 6 the deponent states that the salary of the petitioner were stopped w.e.f. August, 20 07, as per government letter no. ELC/WPC/4465/2006/331/179 dated 9.2.07. Pursuan t to the said letter the Directorate of Elementary Education vide order dated 26 .3.0 bearing no. EHA/497/2006/240 directed that the salaries of 355 terminated t eachers be stopped immediately. In this context it is pertinent to mention that the service of the petitioners were directed to be terminated vide order dated 1 2.5.92 bearing No. EAA/18/87/346. The records reveals that termination notices w ere issued to all but 35 out of 752 teachers found to be appointed in excess of available vacancies. The salaries of these persons till their termination were a lso paid. The order dated 9.2.07 was issued as it had come to light that many of the terminated teachers in spite of their termination were being paid their sal aries. 8. That with regards to the statement made in paragraph 7 the depon ent states that the service of the petitioners no. 5, 6, 9, 11, 12, 13, 14, 15 & 16 were regularised by the then DI of Schools, Dhemaji Shri B. Bora purportedly on the basis of the government order no. A(I)E.425/95/pt/140 dated 10.8.2000. 9. That with regard to the statements made in paragraph 7 the depon ent states that the expert committee constituted under the directions of the Hon ’ble Court also looked into the aspect as to how 10 out of the 17 petitioner her ein were regularised under irregular categories of teachers under the Manoharan Committee report in pursuance of the government order dated 10.8.2000. however, the DI of school, Dhemaji could not furnish any record as to how 10 petitioners came under the irregular category of teachers under the Manoharan Committee repo rt. It has been revealed that 10 of the petitioners being petitioners 1, 2, 3, 4 , 5, 7, 8, 9, 10 and 17 were allowed to draw salaries purportedly on the basis o f the order dated 10.8.2000. It was also found that the remaining 7 petitioners were also allowed to draw their salaries before the issuance of the order dated 10.8.2000 by the then DI of school, Dhemaji Sri K.C. Hazarika and Sri B. Bora. H owever, in terms of the government letter dated 9.2.07 salaries of the petitione r were stopped from August 2007. That it is pertinent to mention here that the petitioner belongs to the category of 752 terminated Teachers of Dhemaji District who have receive 10. d salary even after their termination from service. 11. That further it is pertinent to state that the PIL have been reg istered before the Hon’ble High Court suo-moto vide PIL No. 56/07 and 67/07 and after hearing the matter the Hon’ble High Court passed an order for police inves tigation on this matter. Accordingly the investigation has been made by the CID Department and the outcome of the enquiry is awaited. (cid:29) In the writ petition, there is no whisper about termination of the servi ces of the petitioners by the aforesaid order. The petitioners have also not dis puted the stand of the respondents in their affidavit filed on 9.8.2010 that the services of the petitioners had been terminated by the aforesaid order dated 12 .5.92. The said order has also not been put to challenge. Mr. Dutta, learned cou nsel for the petitioners, however, submits that the petitioners having not recei ved the termination orders, there is no question of making any challenge to the same. Mr. A.Deka, learned Standing Counsel, Education, submits that in view of t he clear stand in the affidavit it is not correct to say that the petitioners we re unaware of the order of termination dated 12.5.92. He further submits that th e very fact that the petitioners having not disputed the aforesaid stand of the respondents in their counter affidavit would go to show that the petitioners are aware of the termination order dated 12.5.92. In the counter affidavit, it is the categorical stand of the respondents that the petitioners belonged to the 752 terminated teachers of Dhemaji distric t but continued to receive salary upto 2007 even after termination of their serv ices way back in 1992. Pursuant to the orders passed by this Court in PIL 56/07 and 67/07, a CID enquiry has been initiated and presently the investigation is o n. Mr. Dutta, learned counsel for the petitioners submits that the petitioners w ere invited to have their say in the matter by the investigating agency. Mr. A.Deka, learned Standing Counsel, Education placing reliance on the decision of the Apex Court report in (2011) 3 SCC 436 (State of Orissa Vs. Mamat a Mohanty) submits that since the petitioners were appointed without any adverti sement and selection irrespective of termination of their service in 1992, they are not entitled to receive any salary. In the said decision, it has been held b y the Apex Court that a person employed in violation of the provisions of the ru les is not entitled to any relief including salary. For all the aforesaid reasons, I am not inclined to interfere with the f indings recorded by the expert committee in its meeting held on 20.12.2008. The further course of action in the matter shall be governed in terms of the finding s to be recorded by the investigating Agency. The writ petition is dismissed, without however, any order as to costs.