High Court
Case Details
WA 168/2009 BEFORE HON’BLE THE CHIEF JUSTICE MR. A. K. GOEL THE HON’BLE MR. JUSTICE A. K. GOSWAMI (Goswami, J) JUDGMENT AND ORDER (CAV)
Decision
This writ appeal is presented against the judgment and order dated 03.0 3.2009, passed by the learned single judge in WP(C) No. 127 of 2008, dismissing the writ application and upholding an order dated 22.11.2007, passed by the Dire ctor of Secondary Education, Assam, whereby claim of the petitioner for salary f rom the month of June, 1995 and regularization of his service was rejected. 2. The pleaded version of the writ petitioner, in brief, in the writ petit ion is that the writ petitioner was appointed temporarily for a period of thre e months as a Grade-IV employee in Indira High School, Pukhuripara, Goalpara, As sam, by the Director of Secondary Education, Assam, by an order dated 16.12.1994 . The petitioner joined the post on 10.01.1995. Subsequently, the Director of Se condary Education, Assam, by an order dated 25.04.1995, extended the period from 10.04.1995 to 09.08.1995. Thereafter, the period of service was extended from time to time by the Inspector of Schools, Goalpara. In the last such order dated 12.06.1996, he was allowed to continue in his service until further order. He w as paid his salary for the period from 10.01.1995 to 31.05.1995 and since June, 1995, he was not paid his salary. Ventilating his grievances of non-payment of s alary and non-regularization of service, the writ petitioner approached this Cou rt in WP(C) No. 5108 of 2009, which was disposed of by this Court by an order d ated 08.10.1999, directing the Director of Secondary Education, Assam, to enquir e into the matter and to pass appropriate orders regarding entitlement of the pe titioner to salary. As the order of this Court was not complied with, the writ p etitioner, once again approached this Court by filing WP(C) No. 1669 of 2005, ma king similar grievances as were made in the earlier writ petition. The said writ petition was disposed of by an order dated 19.06.2007, remanding the matter to The order dated 22.11.2007 was, accordingly, passed by the Director of S the Director of Secondary Education, Assam, to pass appropriate order. 3. econdary Education, Assam, negating the claim of the appellant. Heard Mr. I. Hussain, learned counsel for the appellant and Mr. A.Deka, 4. learned Standing Counsel for Education Department, Assam for the respondents. We have also perused the materials available on record. 5. Mr. I. Hussain submits that the appellant is still discharging his dutie s and therefore, denial of his salary and regularization by the Director of Seco ndary Education, Assam, is arbitrary and illegal and the learned single judge al so committed manifest error of law in rejecting the writ petition. 6. Mr. A. Deka, learned Standing Counsel for Education Department, while su pporting the impugned judgment, places reliance on a judgment of the Hon’ble Sup reme Court in the case of The State of Orissa and Another vs. Mamata Mohanty, re ported in (2011) 3 SCC 436 to contend that a person appointed in violation of th e requirement of Articles 14 and 16 of the Constitution of India, without any ad vertisement and interview, is not entitled to any relief including salary. He ha s submitted that the Director of Secondary Education, Assam, in his order dated 22.11.2007, in categorical terms had recorded a finding that the post held by th e petitioner had not been retained beyond 20.02.1995. It was also held that the appointment of the appellant was contrary to existing Rules and procedures and t here was also no selection. 7. The learned single judge recorded the following finding: (cid:28)The materials on record, therefore, unequivocally demon strate that the petitioner’s initial appointment as a Grade-IV staff was not thr ough a selection in a public participatory process. The very fact that he was ap pointed for a period of three months proclaims the temporariness of the arrangem ent. The extension of his initial terms therefore, from time to time, per se, th erefore, in the opinion of this Court does neither validate his entry in service nor confer any right in him to continue therein. (cid:29) 8. ed 19.06.2007, passed by this Court in WP(C) No. 1669 of 2005: At this stage, it will be relevant to extract herein below the order dat (cid:28)In view of the above, the matter is remanded back to th e Director of Secondary Education, Assam to pass appropriate order regarding ent itlement or otherwise of the petitioner to receive salary from June, 1995, as ha s been claimed by the petitioner. Needless to say that he would take into consid eration all the relevant factors including as to whether the petitioner was vali dly appointed against any sanctioned post and as to whether the Inspector of Sch ools, Goalpara District Circle has the authority to allow the petitioner to cont inue in the service beyond the period for which the petitioner was initially app ointed by the Director of Secondary Education, Assam (cid:29) 9. In Mamata Mohanty (Supra), the apex court has laid down that no person c an be appointed even on a temporary or ad-hoc basis without inviting application from all eligible candidates. 10. From the order dated 19.06.2007 quoted above, it is noticed that this Court had directed the Director of Secondary Education, Assam, also to consider as to whether the appellant was validly appointed in any sanctioned post while deciding entitlement or otherwise of the appellant to receive salary from June, 1995. This order has attained finality in absence of any challenge thereto. F rom the materials on record, we have no doubt that the appointment of the appell ant was not in accordance with the constitutional scheme in the matter of appoin tment to public office. The emphasis of the learned counsel for the appellant on the continuous service rendered by the appellant in support of claim of salary, in view of judgment of this Court in WP(C) No. 1669 of 2005, is not tenable. I f a person is not even entitled to salary, the claim for regularization of servi ce necessarily has to fail. 11. In view of the aforesaid discussions, we are of the opinion that no in terference is called for with the impugned judgment and accordingly, finding no merit, this writ appeal is dismissed. 12. No cost.