High Court · 2012

3. The said writ petitions were disposed in which it was held that those ho norary teachers having had 10 years of service would be entitled to regular appo intment. The direction was issued for payment of salary from March, 1991. The pe titioners have also placed reliance on the judgment and order dated 19.05.1994 p assed in another writ petition being C.R. No. 97/1994 by which the learned Singl e Judge of this Court in reference to the aforesaid Division Bench judgement, is sued direction to take a decision with regard to regularisation of services of t he petitioners in the light of the said Division Bench judgement. Another judgme nt on which the petitioners have placed reliance is the Division Bench judgement dated 25.04.1998 passed in C.R. No. 212/1987 by which the Division Bench in ref erence to the provision of Assam Elementary Education (Provincialisation) Rules, 1997, issued direction to consider the case of the petitioners involved in the said writ petitions in the light of the observations made in the said judgment. It was observed that while selecting candidates according to the percentage of d ivision preference will be given to the persons having Senior Basic Training, No rmal and Junior Basic Training courses.

4. There is no dispute that the petitioners were appointed during the perio d from 1992 to 1995. It will be pertinent to mention here that some other perso ns were also appointed in 1989. Their services were dispensed with and/or termi nated in May, 1992. All the petitioners were appointed after May, 1992. This asp ect of the matter has been referred to as the impugned order speaks of those tea chers whose services were dispensed with in May, 1992. After the aforesaid appointments of the petitioners they had been given 5. regular salary. They have also undergone JBT course and on successful completion of the same, they have been paid salary in the time scale of pay. They had the occasion to agitate their grievance when they were not paid salary since August, 2007 by filing the aforesaid writ petitions, namely W.P.(C) No. 2651/2008 and W .P.(C) No. 2735/2008. The writ petitions were taken up alongwith other writ peti tions raising the same grievance for hearing and were disposed of by judgment an d order dated 05.02.2009. By the said judgment and order, the Commissioner and S ecretary, Govt. of Assam in the Education (Elementary) Department was directed t o enquire into the matter and pass appropriate order. For a ready reference the operative part of the said judgment and order is quoted below: (cid:28)37. Noticeably there is yet no refutation of the fact that the petitioners are rendering their services as on date. As alluded hereinabove, appointment of some prima facie appear to be in compliance of the orders of the Court as well as on the basis of selection held. Be that as it may, having regard to the nature of the proceedings and the inherent limitations in the extent of probe into factual details, it is not possible for this court to arrive at any unhesitant conclusi on with regard to their entitlements of salary as claimed. The materials on reco rd are not adequate enough to sustain the claim made and facts and circumstances warrant further verification of the records for an appropriate decision.

38. The omission on the part of the respondents to offer their counter or to pro duce the records is an appalling failure of State. While recording my strong dis pleasure on this inexplicable default on the part of the respondents which has t he potential of undermining the process of administration of justice deserving j udicial censure, in my estimate, having regard to the interest of the State reve nue, the best course advisable would be, to remit the issue to the appropriate S tate authorities for due verification of the petitioners’ claim for salary as ma de and take a decision in accordance with law. Ordered accordingly.

39. The Commissioner and Secretary to the Government of Assam, Education (E & S) Department, would cause immediate steps to be taken in this regard. Needless to say, the petitioners, in view of their stake in the matter would be afforded al l reasonable opportunities or participating in the process. The aforementioned S tate authority would, if felt necessary, delegate the exercise to any subordinat e competent departmental authority preferably the Director of Elementary Educati on, Assam to conduct the process. In doing so, the enquiring authority would exa mine all relevant records, with due opportunity to the petitioners and determine the issue on the basis thereof as well as the backdrop of the observations mad e hereinabove. The exercise, as ordered, should be completed within a period of two months from the date of receipt of certified copy of this order and the resu ltant decision would be communicated to the petitioners forthwith thereafter. Ne edless to say, in case the petitioners or any one or more of them are found enti tled to their dues, immediate steps would be taken to disburse the same. Any sla ckness or failure to comply with the directions made hereinabove would be viewed very seriously occasioning stringent actions against the erring authorities. (cid:29)

6. Pursuant to the aforesaid direction, the Commissioner and Secretary pass ed the order dated 07.04.2011 impugned in this proceeding in respect of the peti tioners involved in the earlier writ petition being W.P.(C) No. 2651/2008. As re gards the remaining five petitioners involved in W.P.(C) No. 2735/2008, a separa te order has been passed which is also under challenge and the same are quoted below: (cid:28)GOVT. OF ASSAM EDUCATION (ELEMENTARY) DEPARTMENT DISPUR:: GUWAHATI-6 ORDER Read : The directions of the Hon’ble High Court in the judgment and Order dated 05.02.2009 passed in W.P.(C) No. 2651/2008 (Shri Kusha Kanta Dutta & 5 others) Also Read: The report and findings of the Director, Elementary Education, Assam vide letter NO. EHA 134/2008/376 dated 05.03.2010. Findings: There are 6 petitioners viz. 1) Shri Kusha Kanta Dutta, 2) Smt. Tarini Handique, 3) Shri Mohan Chandra Ngate, 4) Shri Chandiram N arah, 5) Smt. Malati Handique and 6) Shri Pradip Sarma. Shri Kusha Kanta Dutta was serving as Honorary Teacher at Kopahtoli LP School ap pointed by Managing Committee of the School on 06.03.1984. The other petitioners were also serving as Honorary Teachers in different schools appointed by the re spective managing Committee in different years from 1981 to 1983. All the 6 peti tioners were appointed as Assistant Teachers by the then Deputy Inspector of Sch ools in December, 1989 against non-existent posts. Subsequently their services w ere terminated in 1992 and they were paid salary for 29 months for the period th ey worked. It appears from the report and findings of the Director, Elementary E ducation, Assam and also available records that Shri Kusha Kanta Dutta filed a w rit petition CR No. 3057/1991 (Petitioner No. 10) for his permanent appointment. The Hon’ble High Court by order dated 03.12.1992 in CR No. 3057/1991 (Shri Prab ir Baruah & Others vs. State of Assam & others) directed that 8 months yet to be completed for 10 years of service be condoned and also directed the Director, E lementary Education, Assam to pass necessary orders. The Hon’ble High Court cont emplated drawl of contempt proceeding against Director, Elementary Education for non-compliance of the order dated 03.12.1992 in CR No. 3057/1991 by order dated 16.12.1998 passed in CR No. 6352/1998. The Director of Elementary Education, As sam issued direction to Deputy Inspector of Schools, Dhemaji vide letter No. EHA 603/98/98 dated 26.02.1999 to appoint Shri Kusha Kanta Dutta. The Deputy Inspec tor of School, Dhemaji appointed Shri Kusha Kanta Dutta vide order No. DIS/DMJ/H C/98-99/9427-34 dated 18.03.1999. Smt. Tarini Handique filed a writ petition CR No. 756/1993 in the Hon’bl e High Court. The Hon’ble High Court by order dated 01.04.1993 disposed of the w rit petition observing that the fact of the case is covered by the order passed by the court in CR No. 1637/1989 and order dated 23.07.1992 passed in CR No. 268 /1992. Also directed that Director, Elementary Education, Assam shall examine an d verify the claim of the petitioner in terms of the judgment in Civil rules men tioned above. The Director, Elementary Education, Assam directed the Deputy Insp ector of Schools, Dhemaji to appoint Smt. Tarini Handique against regular vacanc y vide his order No. EHA 73/93/25300-03 dated 11/11/1993. The Deputy Inspector o f Schools, Dhemaji appointed Smt. Tarini Handique as Assistant Teacher at Akajan L.P. School vide his order No. 6387-92 dated 09.06.1995. Smt. Mohan Chandra Ngate filed a writ petition CR No. 97/1994 and the Ho n’ble High Court by order dated 19.05.1994 directed the Director, Elementary Edu caton, Asssam to take a decision for regularisation in the light of the decision s of Hon’ble High Court in CR No. 1637, 1638, 1748 and 1926 of 1989. The Directo r, Elementary Education, Assam issued order to the Deputy Inspector of Schools, Dhemaji to appoint Shri Ngate as Assistant Teacher as stipendiary basis. As per order dated 19.10.1994 in CR No. 3738/1994 vide his order No. EHA 294/94/44 date d 07.09.1995 the Deputy Inspector of Schools, Dhemaji issued appointment vide me mo no. DIS/DMJ/HC/122/94/73-A/7549-56 dated 20.10.1995. Shri Chandiram Narah filed a writ petiton CR No. 97/1994 in the Hon’ble High Court. The Hon’ble High Court by order dated 19.05.1994 passed in CR No. 97 /1994 issued direction that the authorities shall take into consideration the in spection note dated 15.03.1993 of the Assistant Inspector of Schools, Amguri Cir cle and the inspection note dated 07.04.1993 of Assistant Inspector of schools, Dhemaji Circle and the service put in by the petitioner and take a decision with regard to regularisation of the petitioners in the light of the decisions of th e High Court in CR No. 1637, 1638, 1748 and 1926 of 1989. The Director, Elementa ry Education, Assam issued order to the Deputy Inspector of schools, Dhemaji to appoint Shri Chandiram Narah as Assistant Teacher on stipendiary basis vide his memo No. EHA 294/94/44 dated 04.09.1995. The Deputy Inspector of schools, Dhemaj i issued appointment order to Shri Chandiram Narah vide his memo no. DI/DMJ/SH/1 22/94/72-A/7557-64 dated 20.10.1995. Smti Malati Handique was one of the petitioners in CR No. 1637/89 (Smt. Kunjalata Gogoi & 11 ors.). The Hon’ble High Court vide order dated 15.02.1991 p assed in CR Nos. 1637/89, 1638/89, 1748/89 and 1926/89 observed that (cid:28)we though it safe that those who have worked for 10 years as Honorary Teachers should have the benefits of regular appointment (cid:29). The Deputy Inspector of schools, Dhemaji issued appointment to Smt. Malati Handique vide order No. 10283/1993 dated 03.05 .1991. Shri Pradip Sarma was filed a writ petition in Ho’nble High Court and th e Hon’ble High Court by order dated 05.04.1993 in CR No. 806/1993 directed the D irector, Elementary Education, Assam to examine and pass necessary orders. The J oint Director of Elementary Education, Assam issued direction to the Deputy Insp ector of Schools, Dhemaji vide letter No. EHA 53/1993 dated 15.07.1993 to appoin t Shri Pradip Sarma in view of his working experience as Honrary Teacher and in pursuance of Hon’ble High Court’s order. The Deputy Inspector of Schools, Dhemaj i issued appointment orders on the basis of Director, Elementary Education, Assa m’s instruction and Hon’ble High Court’s direction vide his memo No. 3800-07 dat ed 21.06.1994. (cid:28)Decisions: After careful consideration and examination of the report and findings of the Director, Elementary Education, Assam and other a vailable records it appears that the none of the petitioners had challenged the termination order issued by the authority in 1992. In a recent decision of the H on’ble Hih Court in the order dated 08.04.2010 passed in W.P.(C) No. 3142/2008, the authority is required to decide for payment of salary in those cases only wh ere the petitioners challenged the termination orders and that too, after verifi cation of certified copy of order of Hon’ble High Court’s order with the Registr y of Hon’ble High Court through the Standing Counsel of Education department. In terms of the above mentioned order the claim of the petitioners Shri Kusha Kant a Dutta does not seem to be tenable for release of salary and hence it is reject ed. So also the claims of the other 5 petitioners are not tenable in terms of th e judgment and order dated 08.04.2010 passed in W.P.(C) No. 3142/2008 and hence those are rejected. (cid:29)

7. I have heard Mr. U.K. Nair, learned counsel for the petitioners as well as Mr. MR Pathak, learned SC, Education Department. I have also heard Mr. B. Gog oi, learned SC, Finance Department.

8. Mr. Nair, learned counsel for the petitioners submits that in the impug ned orders nothing is discernible as to why the petitioners are not entitled to get their salary. He submits that the purported decision contained in the impugn ed orders is not a decision at all. He submits that on a total reading of both t he impugned orders, it will go to show that there is total non-application of mi nd.

9. Mr. Pathak, learned SC, Education Department on the other hand submits t hat having regard to the observations made in the judgment and order dated 05.02 .2009 passed in the aforesaid batch of writ petitions, the Commissioner and Secr etary had no other option than to pass the impugned orders. Referring to the obs ervations made in the said judgment, Mr. Pathak, learned SC, Education Departmen t submits that the fact that the petitioners were illegally appointed is easily discernible and consequently there is nothing wrong in passing the impugned ord ers.

10. So far as the aforesaid Division Bench judgment dated 15.02.1991 to whic h the petitioners have referred to, they have attained their finality and this C ourt is not empowered to reopen the same. By the said judgment, directions were issued to consider the case of the petitioners. In fact, the Division Bench judg ment dated 15.02.1991 passed in the batch of writ petitions being CR No. 1637/89 , CR No. 1638/89, CR No. 1748/89 and CR No. 1926/89, clear direction was to regu larise the services of the honorary teachers who had worked for 10 years. Follow ing the said decisions, learned Single Judge of this Court passed the judgment a nd order dated 19.05.1994 in another writ petition being CR No. 97/1994. By the said judgment the respondents were directed to consider the case of the petition ers for regularisation in terms of the aforesaid Division Bench judgement. Even otherwise also the services of the petitioners having been regularised on the ba sis of the said judgment and order, even assuming to be on an erroneous view of the matter, the said settled position cannot be allowed to be reopened by a stro ke of pen as has been done in the instant case.

11. In the impugned order dated 07.04.2011, the Commissioner and Secretary h as simply referred to the facts involved in the case and thereafter has taken ab rupt decision to the effect that the petitioners are not entitled to get their s alary. While narrating the facts, it has been clearly stated that the petitioner s were appointed pursuant to the direction of this Court. However, the fault at tributed to the petitioners in the impugned order is that they did not challenge the order of termination of service issued in May, 1992. Irrespective of any ch allenge to the order of termination, when the petitioners were appointed thereaf ter, the respondents cannot find fault with the petitioners in not challenging the order of termination issued in May, 1992. Only ground which is discernible i n the impugned order is that the petitioners did not challenge the termination o rder issued in May, 1992.

12. In the counter affidavit filed by the respondents basic facts of regular isation of services of the petitioners in consideration of their honorary servic e have been admitted. In paragraph -8 of the affidavit in opposition filed in W. P.(C) No. 5384/2011, the Commissioner and Secretary, Education (Elementary) Depa rtment has narrated the facts as to how the services of the petitioners were reg ularised pursuant to the orders passed by this Court. It has also been contended in reference to the subsequent orders passed by this Court, that there was no d irection to regularise the services of the petitioners. Thus, the Commissioner a nd Secretary has sought to reopen the matter which has attained its finality lon g back. The petitioners having been appointed during 1992 to 1995 and they havi ng continued in their services for all these years, and having been paid salary till July, 2007, the respondents cannot now take the plea that they are not en titled to get their salary from August, 2007.

13. One interesting feature of the impugned order is that the author of the said order has referred to the judgment and order dated 08.04.2010 passed in W.P .(C) No. 3142/2008 in which it was held that salary will be payable only to thos e teachers who had challenged the order of termination issued in May, 1992. The said direction was in the context of that issue and not otherwise. Moreover the grievance of the petitioner which arose in August, 2007 cannot be justified on t he basis of the said judgment dated 08.04.2010, which has also no application at all to the case in hand.

14. In the instant case, the petitioners were appointed after termination of service in May, 1992. Such appointments were preceded by various orders of this Court. Said orders after attaining its finality cannot be reopened in the man ner and method in which the impugned orders have sought to do.

15. For all the aforesaid reasons, I am inclined to accept the writ petition s by setting aside and quashing the impugned order dated 07.04.2011. Consequentl y, the petitioners will be entitled to receive salary, both arrear and current. The respondents are directed to pass necessary order in this regard as expeditio usly as possible, but at any rate, not later than 30.04.2012. Before parting with the case records, it is placed on record that the p 16. etitioner in W.P.(C) No. 3535/2011 (Malati Handique vs. State of Assam and ors.) was appointed on 03.05.1991 pursuant to positive direction of this Court in the Division Bench judgement dated 15.01.1991 passed in aforementioned writ petitio ns.