High Court · 2012

Heard Mr. Aslam, learned counsel for the petitioners, Ms Chakraborty, learned st anding counsel, Education Department appearing for the respondent Nos. 1 to 6. N one appears for the respondent No. 7. The petitioners, six in numbers, by the present petition have challenged the com munication dated 26.3.2005 issued by the District Elementary Education Officer, Tinsukia directing the Deputy Inspector of Schools and Block Elementary Officer to recover the amount paid to them towards the salary with effect from 17.10.200 3 to 20.5.2005. The petitioners have also challenged the orders, all dated 23.6. 2005 (Annexures IX to XI) issued by the District Elementary Education Officer di recting the petitioner Nos. 1, 3 and 5 to join Borgolai Colliery Bongali M.E. Sc hool, Bijoy Laxmi M.E. School and Mahatma Gandhi M.E. School respectively pursua nt to the communication dated 20.5.2005 issued by the Secretary to the Govt. of Assam, Education (Elementary) Department to the Director of Elementary Education , Kahilipara. It has been contended by the learned counsel for the petitioners t hat there being no dispute relating to the regularization of services of the pet itioners against the non plan posts vide Notification dated 14.10.2009 and the s ubsequent order dated 19.11.1999 passed by the District Elementary Education Off icer, Tinsukia having been set aside by this Court vide judgment and order dated 16.5.2002 passed in WP(C) No. 5951/1999 allowing the petitioners to draw their salary against the non plan posts in the school shown against the names of the p etitioners, the District Elementary Education Officer ought not to have passed t he impugned order dated 23.6.2005 (Annexure VIII) for recovery of the salary and also the impugned orders, all dated 26.3.2005 (Annexures IX to XI) directing th e petitioner Nos. 1, 3 and 5 to join the aforesaid schools. It has been submitte d that as because there was mistake in mentioning the names of the schools again st which the petitioner Nos. 1, 3 and 5 were allowed to draw the salary by the U nder Secretary to the Govt. of Assam, Education (Elementary) Department, the imp ugned orders (Annexures IX to XI) were issued by the District Elementary Educati on Officer on 23.6.2005. Ms Chakraborty, the learned standing counsel, Education Department referring to the communication dated 20.5.2005 issued by the Under Secretary has submitted th at since the petitioners were allowed to draw the current salary with effect fro m 20.5.2005, the salary paid to the petitioners with effect from 17.10.2003 upto 19.5.2005 has rightly sought to the be recovered by issuing the communication d ated 26.3.2005 (Annexure VIII). It has also been submitted that keeping in view the names of the schools shown against the names of the petitioner Nos. 1, 3 and 5 in the communication dated 20.5.2005 (Annexure VII), the District Elementary Education Officer has directed the said petitioners to join their respective sch ools as shown in the said order dated 20.5.2005 (Annexure VII). I have considered the submissions of the learned counsel for the parties. No aff idavit in opposition has been filed by the respondents despite pendency of the w rit petition for the last seven years. It is evident from the averments made in the writ petition filed that the petiti oners were originally appointed as teachers against the plan post who were, howe ver, adjusted against non plan posts in Hindusthani Vidya M.E. School, Gopal Kri shna Girls M.E. School, Hijuguri Hindi M.E. School, Ganpatrai Rasivasia M.E. Sch ool, Hijuguri Hindi M.E. School and Hindusthani Vidya M.E. School respectively w ith effect from 17.11.1999, 29.1.1999, 16.2.1998, 21.1.1999, 12.3.1999, 21.1.199 9 respectively. The said orders were, however, sought to be cancelled and some o ther persons were sought to be appointed by the District Elementary Education Of ficer vide order dated 19.11.1999 which was put to challenge by the petitioners in WP(C) No. 5951/1999. The said writ petition was allowed vide order dated 16.5 .2002 setting aside the said order dated 19.11.1999 passed by the District Eleme ntary Education Officer, Tinsukia. It also appears that in the said writ petition on the basis of the Misc. applica tion filed being Misc. case No. 32/2000 direction was issued vide order dated 11 .4.2000 directing the District Elementary Education Officer to make an enquiry r elating to the entitlement of the petitioners to salary and to pass appropriate order within a period of one month. Alleging willful and/or deliberately violation of the said order Contempt Petiti on No. 403/2002 was filed by the petitioners. In the said contempt proceeding th e order dated 20.5.2003 was passed recording the statement of the District Eleme ntary Education Officer, Tinsukia who was personally present that he will pass n ecessary orders for allowing the petitioners to draw the salary against the non plan vacant posts. Accordingly on 17.10.2003 an order was passed by the District Elementary Education Officer allowing the petitioners to draw the salary agains t the non plan vacant posts which were available in the aforesaid schools. The Under Secretary to the Govt. of Assam, Education (Elementary) Department als o vide order dated 20.5.2005 directed the Director to release the salary of the petitioners along with some other teachers. In the said communication the Under Secretary has wrongly mentioned the place of posting of the petitioner Nos. 1, 3 and 5 as Borgolai Colliery Bongali M.E. School, Bijoy Laxmi M.E. School and Mah atma Gandhi M.E. School instead of Guijan M.E. School, Bongio Sishu M.E. School and Panitola M.E. school resulting in the issuance of the orders dated 26.3.2005 (Annexure IX to XI). Since the adjustment of the petitioners services from plan posts to non plan pos ts vide order dated 17.10.2003 is not in dispute and the said order passed by th e District Elementary Education Officer has not been withdrawn or interfered wit h by the higher authority there cannot be any recovery of the salary paid to the petitioners with effect from 17.10.2003 as sought to be done by the impugned or der dated 23.6.2005. As noticed above, since the place of posting of the petitioner Nos. 1, 3 and 5 w ere wrongly mentioned in the order dated 20.5.2005, the orders all dated 23.6.20 05 I(Annexure IX to XI) also cannot be sustained. Hence the impugned orders all dated 23.6.2005 (Annexure VIII to XI) are set aside. It is, however, open to the authority to transfer the petitioners to other schools if the public interest a nd administrative exigencies so demand. The writ petition is accordingly allowed as indicated above.