High Court · 2012

By the aforesaid two orders, this Court by allowing the writ petitions s et aside the order dated 20.08.1997 passed by the Director, Elementary Education , Assam directing the District Elementary Education Officer (DEEO for short), Ka rimganj to terminate the services of the petitioners forthwith including the pre sent petitioners.

3. The petitioners possessed the required qualifications prescribed under t he law for being considered for appointment in the post of Assistant Teachers of Middle English Schools in the State of Assam. All the petitioners were unemploy ed and they came across an advertisement issued by the Education Department, Go vernment of Assam through ’ JANA SANJOG’ as well as (cid:28)THE ASSAM TRIBUNE (cid:29) in its e dition dated 03.09.1991. Pursuant to the advertisement so published whereby app lications were called for various posts lying vacant in various schemes under th e Education Department under the Director of Elementary Education, Assam, a tota l number of 5474 posts of Assistant Teachers were advertised. The petitioners ap plied for the same by submitting their applications to the DEEO, Karimganj withi n the stipulated time frame as per the advertisement. The petitioners were accor dingly called for interview before the Sub Divisional Level Advisory Board ( Boa rd for short) and subsequently after due selection they were selected by the Boa rd. Thereafter, the Director of Elementary Education, Assam, issued specific ord ers through the DEEO, Karimganj and further recommended the names of the petitio ners as per rules. The order of the Director also specifically quoted the Govern ment letter in pursuance of which the post in question where they were to be app ointed were sanctioned. The DEEO, Karimganj issued appointment orders appointin g the petitioners as shown below :- (cid:28)Petitioners’ Sl.No. Date of appointment: Name of the schools:

1. 2. 3. 4. 5.

2.2.1994 6.12.1993 8.12.1993 8.12.1993 16.4.1994

8.12.1993 Harinagar MV School Bishnunagar ME School Sutarkandi M.E. School Barkhola M.E. School Priyabala Devi Girls M.E. School Suresh Deb Siksha Niketan (cid:28).

4. After receipt of the appointment letters, the petitioners immediately jo ined in their respective posts and continued to work there with sincerity, devot ion and best of their abilities. Till date, there are no adverse remarks again st any of the petitioners. However, since 14.07.1994 the petitioners have not b een paid their salaries. Subsequently, on 19.03.1994, the Director of Elementary Education, Assam issued a corrigendum inter-alia clarifying that the Government letter cited in their earlier approval order should be read as No. EPG-367/91/1 09 dated 16.11.1991 instead of EPG.567/90/109. The said corrigendum further clar ifies the stand of the Government that the posts in which the petitioners were a ppointed were in fact sanctioned by the Government. When the matter rested as th us, all of a sudden their services were terminated by the DEEO, Karimganj vide order dated 14.07.1994. The orders of termination were identical in contents as the same were issued in pursuance of a direction dated 07.07.1994 issued by the Director of Elementary Education, Assam. However, before issuing the terminatio n order no show cause notice or any other opportunities were given to the petiti oners.

5. Challenging the aforesaid termination orders the writ petitions being Ci vil Rule Nos. 2752/1994, 2915/1994, 2924/2004, 2933/1994 and 3178/1994 were file d before this Court and vide judgment and order dated 20.07.1994, 02.08.1994, 03 .08.1994 and 19.06.1994 respectively allowed the writ petitions by setting aside the impugned termination orders (Annexure E series) and further directing the s tate respondents to reinstate the petitioners in service with all back wages. Ho wever, liberty was granted to the Government to take action in accordance with t he provisions of law. In compliance to the aforesaid orders passed by the Court, the DEEO, Karimganj issued orders on 12.08.1994 reinstating the petitioners wit h back wages with effect from their date of termination from services. However, till date none of the petitioners have been paid their back wages though they ha ve been serving continuously in their respective posts without any brea k. In the meanwhile, vide order dated 20.08.1997, the impugned order (A nnexure 4) was passed by the Director, Elementary Education, Assam stating inter -alia therein that as per available records petitioners were appointed in non e xistent posts as per direction of the then Director of Elementary Education and that petitioners were not selected as per law. Moreso, Government did not sanct ion any posts for the petitioners’ appointment as there was no demand for creati on of additional posts for any appointment. Therefore, Government cannot consid er petitioners’ undue appointment. It was further stated that the then Director of Elementary Education, Assam directed the DEEO, Karimganj to appoint the candi dates for the posts of Assistant Teachers of M.E. Schools including the petition ers. Under similar circumstances, the names of altogether 128 persons were forwa rded by the Director of Elementary Education, Assam, after the same being approv ed by him. The names of all these persons inclusive of the petitioners were forw arded by the Director of Elementary Education, Assam, under the same circumstanc es as that of the petitioners. However, due to the reasons best known to the St ate Government, some of them have been retained in their posts and have been iss ued fresh appointment orders. The action of the authority shows that the similar ly situated persons were not treated similarly.

6. The petitioners’ further case is that the posts in which they were appoi nted were subsequently sanctioned by the Government vide sanction order dated 10 .11.1991 No. EPG.567/91/109 and therefore, the observation of the Director of El ementary Education, Assam that the petitioners were appointed against the non-ex istent posts by the then Director of Elementary Education, Assam is based on no materials on record and the same is totally baseless inasmuch as the petitioners were appointed against the posts which were subsequently created by the Governm ent as stated hereinabove. The petitioners applied for the said posts as per adv ertisement dated 03.09.1991 and they were selected by the duly constituted Sub-D ivisional Level Selection Board as per law and their appointments were finally a pproved by the Director of Elementary Education. Hence, being aggrieved, some of the similarly situated teachers approached this Court by way of filing writ pet itions being Civil Rule Nos.4532/1997, 4315/1997 and WP(C) No. 5077/2002. This c ourt vide judgment and order dated 25.04.2000 allowed the writ petitions by sett ing aside the impugned order dated 20.08.1997 on the ground that as per enquiry report submitted by the DEEO, Karimganj, the petitioners were found to be duly s elected and appointed against sanctioned posts after providing due selection an d interview. Thereafter, again a few similarly situated persons filed a writ pet ition being WP(C) No. 5077/2002 and while disposing the writ petition vide orde r dated 20.11.2008, this Court allowed the writ petition by setting aside the i mpugned order dated 20.08.1997 passed by the Director, Elementary Education, Ass am.

7. The petitioners herein have also prayed for a similar order.

8. Ms P. Bhattacherjee, learned Standing Counsel, Education Department has submitted that the petitioners were terminated from service by an order dated 20 .08.1997, whereas they have approached this Court after about 13 years by filing the instant writ petition in the year 2010 only. Hence, the writ petition is liable to be dismissed on the ground of delay and laches alone. However, no affi davit in opposition has been filed nor any record has been produced on behalf of the state respondents.

9. of his submission has placed reliance upon the following decisions: Mr IH Saikia, learned counsel appearing for the petitioners, in support (1990) 4 SCC 13

1. Lt. Governor of Delhi and Ors. Vs.Dharampal and Ors. 2. K.C. Sharma and Others Vs. Union of India and Ors. (1997) 6 SCC 721

3. 2009 (1) GLT 550 Union of India and Others Vs. Ajant Boro and Ors.

10. In the case of Dharampal and Ors (supra), the Apex Court has held that t he benefit of the judgment should have been given in a case where similarly situ ated persons were given the benefit by condoning the delay.

11. In the case of KC Sarma and others (supra), the Constitution Bench of th e Apex Court in a similar circumstances allowed the appeal filed by the appellan ts condoning the delay in filing the application and granted the same benefit as was granted to the similarly situated persons.

12. In the case of Ajant Boro and Ors. (supra) relying upon the decisions o f Dharampal and Ors (supra) and KC Sharma and Ors (supra), this Court dismissed the petition filed by the Union of India with a direction to the Union of India to grant the benefit of temporary status which were granted to the similarly si tuated petitioners. I have heard learned counsel appearing for the parties and perused the m 13. aterials available on record. I have found sufficient force on the submission ma de by Mr Saikia, learned counsel appearing for the petitioners. Also perused the decision relied upon by Mr Saikia.

14. In view of the decisions in Dharampal and Ors. (supra), K.C. Sha rma & Ors (supra) and Ajant Boro and Ors (supra), wherein Apex Court as well as this Court has held that the benefit of a judgment to the other similarly situa ted persons must be given even if there is delay in approaching the Court/Trib unal etc. The case in hand is also squarely covered by the decisions referred t o hereinabove.

15. In the result, the writ petition is allowed. The impugned order dated 20.08.1997 passed by the Director of Elementary Education, Assam is set as ide with a further direction to allow the petitioners to continue in service. Th e petitioners have stated on oath that from the date of appointment till date th ey are continuing in service without any break. The statements made by the petit ioners have not been controverted by the respondent authority by filing counter affidavit. In view of the same, it is needless to say that if the petitioners ar e working in their respective posts and their services have been utilized by the authority as claimed by the petitioners, the authority is duty bound to pay the ir salaries. If as per statements made on oath by the petitioners, they are foun d to work continuously without any break, the authority shall pay the arrear as well as current salary with effect from their respective dates of joining till d ate. The entire exercise would be completed within a period of four (4) months f rom the date of receipt of the certified copy of this order. The petitioners sha ll submit a certified copy of this order along with the writ petition with annex ures appended thereto before the DEEO, Karimganj for doing the needful. 16. 17. With the above direction, the writ petition stands disposed of. No costs.