High Court · 2012

[8] When the matter was taken up for hearing on 19-04-2012, the lear ned counsel for the respondents prayed for two weeks time to take instruction. H owever, no instruction is forthcoming. [9] Learned counsel for the petitioners submits that the decrees of the civil Court dated 25-07-1995 passed in the two title suits have attained fin ality as those were not challenged by the respondents before the higher forum. H e submits from the various departmental communications which are on record that the respondents had accepted the verdict of the civil Court and decided to appoi nt the petitioners and pursuant to the directions of the higher authorities, the respondent No. 3 had appointed the petitioners with effect from 21-03-2001. Fol lowing the same, the petitioners are working in the respective schools. In that view of the matter, the action of the State respondents in not paying the salary of the petitioners is without any justification. He, therefore, prays for neces sary direction to the State respondents to formalize the appointments of the pet itioners with effect from 21-03-2001 and to pay their salary and allowances from such date. [10] Resisting the above submission made on behalf of the petitioner, Mr. D. Saikia, learned Addl. Adv. General, Assam submits that the writ petition is not maintainable as the petitioners are seeking execution of the civil Court decrees through the writ proceeding which is not permissible. Referring to Sect ion 38 of the Code of Civil Procedure, 1908, the learned counsel for the respond ents submits that a decree may be executed either by the Court which passed it o r by the Court to which it is sent for execution. He submits that the writ Court cannot be converted into an executing Court. In support of his submissions, lea rned counsel has referred to the following two decisions: (1) 2002(2) GLT 597 (Dinesh Ch. Roy Vrs. State of Tripura and others); (2) 2005 (3) SCC 734 (Swami Atmanand Vrs. Swami Budhanand and others). On merit also, the learned Addl. Advocate General submits that there is a questi on mark over the claim of the petitioners as their claim may not be genuine. [11] In reply, Mr. Rajbarbhuiyan, learned counsel for the petitioners submits that the petitioners have moved this Court on the basis of the letter o f the Joint Secretary, Education Department dated 02-02-2000 (Annexure-3 to the writ petition) whereby the third respondent was directed to comply with the orde r of the civil Court. He further refers to the Annexure-8 letter dated 21-01-200 3 of the departmental Commissioner and Secretary whereby the third respondent was directed to take action in terms of the above noted letter dated 02-02-2000 while clarifying that the approval of the SLEC is not required in the matter o f Court cases. [12] d. The submissions made by the learned counsels have been considere [13] There is no dispute to the proposition that the decree of a civi l Court has to be executed through the executing Court as provided under the Cod e of Civil Procedure and writ proceeding is not the proper forum to seek executi on of a decree of the civil Court. [14] nt writ proceeding is in the nature of an execution proceeding. But from the facts narrated above, can it be said that the prese [15] It is a settled proposition that a writ petition is filed for en forcement of a legal right and not for declaration of such right. In this case, there can be no doubt that a right has accrued to the petitioners on the strengt h of the judgments of the civil Court. As has already been noticed, the said jud gments have attained finality as those were not subjected to any further appeal or revision. In the writ proceeding instituted by the petitioners, all that they have sought for is the enforcement of their legal right which has accrued to th em on the strength of the civil Court judgments. If that be so, the objection to the maintainability of the writ petition has no merit. [16] Moreover, the respondents have themselves decided to comply with the judgments of the Civil Court. This would be evident from the Government let ter dated 02-02-2000 and the subsequent letter dated 07-11-2000 whereby the thir d respondent was asked to explain as to why the views of the Judicial Department was sought for instead of implementing the Government order. The third responde nt is his letter dated 21-03-2001 stated that he had complied with the Court’s o rder by appointing the petitioners against existing vacant posts. A detail state ment showing the vacancies against which the petitioners were appointed was also forwarded to the departmental Commissioner and Secretary by the aforesaid lette r dated 21-03-2001, who was also requested to forward the matter to the SLEC for according approval to the appointments made. [17] 21-03-2001 are as under :- Name and address of petitioners of T.S. 61/90 & T.S.62/90 with a statement showi ng vacancies, where appointed. The particulars of the statement enclosed with the letter dated Sl. No. Name of petitioners with address d Name of vacancies where appointe Shri Samsul Hoque Barbhuiya Vill.- Mohanpur Pt-II 606 Marganpur L. 661 Brajapur L.P.School, vice Sm T.S. 61/90 Shri Sudhangshu Das Vill. Dhalai South

1. ti. Rahila Khatun Choudhury, H.T. Retired 2. P.School, vice Sri Abhinash Mazumdar, H/T, retd. 3. l, vice Shri Sushen Ch. Das, H/T, expired 4. , vice Azizur Rahman Barbhuiya, expired H.T. 5. Shri Niranjan Ch. Das Vill. Mohanpur Pt-VI Shri Azmat Ali Laskar. Vill. Algapur Pt-III Smti. Jahanara Begum Tapadar Vill. Brajapur vice Sariqur Rahman Mazumder, HT, retd.

6. T.S. 62/90 Smt. Renu Begum Choudhury Vill. Mohanpur Pt-I vice Safiqur Rahman Barbhuiya, H.T. Exp.

7. kar Maktab, vice Safiqul Hoque Barbhuiya, H.T. Exp. 8. ice Ataur Rahman Laskar, HT, Retd. 9. School, vice Abdul Khalique Barbhuiya, HT, Retd. 10. Shri Abdul Matlib Choudhury, HT, Retd 11. Anil Kumar Das, H.T. Expired 12. Shri Moynul Hoque Mazumder Vill. Barnagad Shri Jalal Uddin Laskar Vill. Mohanpur Pt-II 431 Chandrapur L.P.Schoo 827 Anowarpar L.P.School 402 Sayedpur L.P.School, 482 Hanigram L.P.School, 322 Didarmukh L.P. vice 173 Dhalidahar L.P vice Smti. Anowara Begum Barbhuiya Vill. North Narayanpur 143 Gangpar Dhum Smt. Badrun Nehar Laskar Vill. Ujankupa 132 Bhatisangjuria L.P.School, V Shri Abdul Kadir Barbhuiya Hailakandi Town W/No.4 Rabidaspara L.P. Shri Abdul Kadir Barbhuiya Vill. Mohanpur Pt-II 166 Kazirkuna L.P.School vice Pulin Mohan Das, H.T., Retired

13. Shri Nasir Uddin Laskar Vill. Mohanpur Pt-II 206 Gangpar-Dhumkar L.P. Vice Samsun Nessa Begum, H/T, Retd. Shri Samsul Islam Laskar Vill. Mohanpur Pt-VI

14. ice Monir Ali Mazarbhuiya, HT, Retd. 15. P. vice Rudraprasad Das, H.T. Retired Shri Mahibur Rahman Laskar Vill. Boalipar 273 Barhailakandi L.P. V Rangauti Gram Unnayan L.

16. Shri Harindra Ch. Das, H.T. Expired Shri Moktar Ali Mazumder Vill. Algapur Pt.-I Kun-Kun Basti L.P. vice [18] The third respondent also informed the State Govt. by his letter dated 28-01-2002 (Annexure-7) that the matter of appointment of the petitioners was placed before the Advisory Board and the Advisory Board had resolved to com ply with the order of the Civil Court and also requested him to appoint the plai ntiffs. Ultimately, the departmental Commissioner and Secretary informed the thi rd respondent by his letter dated 21-01-2003 (Annexure-8) that the approval of t he SLEC is not required in the matter of Court cases. From the above, it is crystal clear that the respondents had dec [19] ided to appoint the petitioners by following the Court order. Infact, the Court order was partly complied with by appointing the petitioners. But for some inexp licable reasons, the salary of the petitioners have not been paid. In view of the above, the contention of the learned Additional A [20] dvocate General that in the garb of the writ proceeding, the petitioners are pur suing an execution proceeding does not appeal to the Court. The said argument is therefore rejected. [21] On merit also, the learned Civil Court had examined the matter a nd had found the petitioners entitled to be appointed as Assistant teacher of L. P.Schools. The petitioners had served under the adult education scheme. Some had served as teachers in venture schools. They claimed appointment on the strength of a Government circular No. EPE 25/83/Pt dated 26-09-1986 which provided for 1 0% quota each for those who had served under the adult education scheme and for those having five years experience in venture schools etc. According to them, th ough about 150 appointments were made, no appointments were made against the abo ve quota. Further grievance was that though at the relevant time, the minimum ed ucational qualification prescribed was HSLC pass, attempt was made to raise the qualification. The learned civil Court, as indicated above, examined the matter and thereafter passed the orders for their appointment without disturbing the pe rsons already appointed. [22] Mere raising of doubt without any basis cannot be allowed to def eat the claim of the petitioners, which is based on the orders of the Court. As has already been discussed above, the civil Court judgments have attained finali ty, as no appeal was filed by the respondents. In the present proceeding also, t he respondents have neither filed any affidavit nor have produced the record. In the absence of the same, no weightage can be given to the doubt expressed by th e learned Counsel for the respondents. If the respondents had any doubt about th e genuineness of the claim of the petitioners, they could have investigated the matter independently. Nobody had prevented the respondents from undertaking such an exercise for all these years. [23] In view of the discussions made above, this Court is of the cons idered opinion that the writ petition deserves to be allowed and is accordingly allowed. [24] (1) the respondent No.1 shall verify as to whether the petitioners are worki ng in their respective schools as per the statement furnished by the respondent No.3 on 21-03-2001; Accordingly, the following directions are issued - (2) rear salary w.e.f. the date they started working against the appointed posts; depending upon such verification, the petitioners shall be paid their ar (3) r current salary in addition to their arrear pay. if the petitioners are found working as on date, they shall be paid thei (4) the above exercise shall be completed within a period of two months from the date of receipt of a certified copy of this order. [25] Writ petition is allowed. [26] For the way in which the respondents conducted themselves in thi s case, a cost of Rs.5000/- is imposed on the respondents, to be jointly paid by them to the Assam State Legal Services Authority within the aforesaid period of two months.