High Court · 2009

The petitioner’s version is that after his appointment as above, by a memorandum dated 30.10.1990 of the Deputy Inspector of Schools, Silchar in the pay scale o f Rs.470-590/-, he joined the assignment and started rendering his services. As his salary was not released, he, after unsuccessfully pursuing with the respond ent authorities, approached this Court with WP(C) No. 3886/1999. By an interim order dated 09.08.1999, this Court directed the Director of Elementary Education , Assam to ascertain as to why his salary has been withheld. Thereafter, by ord er dated 28.02.2001, of the Deputy Inspectors of Schools, Silchar, he was adjust ed/regularized against a vacant non-plan post in the pay scale of Rs. 3130-6600/ -, per month. The aforementioned writ petition was finally disposed of on 19.09 .2001, with the direction that the petitioners, whose services had been regulari zed/adjusted, be paid their pay and allowances including arrear salary, if they have been actually working in their respective capacity. As the petitioner’s sa lary since November, 1990 inspite of the above, has remained unpaid, he is befor e this Court again. The State respondents have not filed any affidavit, but have posted the learned Standing Counsel, Education Department with necessary instructions in the form o f a letter of the Deputy Inspector of Schools, Silchar on 23.03.2009 addressed t o the Director of Elementary Education, Assam Kahilipara, in substance, pleading the absence of any record to demonstrate that the petitioner had been appointed in terms of the extant recruitment Rules and that in terms of the judgment and order dated 07.11.2000 passed by the Apex Court in Civil Appeal No.278/1999, he is not entitled to pay salary from the Government exchequer. Whereas, Mr. Mahmud, has urged that in the teeth of the orders of this Court dat ed 09.08.1999 and 19.09.2001 passed in WP(C) No. 3886/1999, and the adjustment/r egularization of the service of the petitioner the State respondents are obliged to pay his salary and that the delay on their part is in contemptuous disregard thereof Mr. Pathak, has argued that as the petitioner’s appointment has not be en in accordance with the provisions of the Assam Elementary Education (Provinci alisation) Rules, 977 (as amended), he is not entitled to his salary. According to him, this Court by the aforementioned orders, did not intend disbursement to the petitioner salary, even if not appointed as prescribed by law. The pleaded facts, the documents annexed to the writ petition and the arguments advanced have been duly considered. To start with the order dated 30.10.1990 of the Deputy Inspector of Schools appointing the petitioner as Assistant Teacher at No. 499 Kulicharra LP School does not disclose that it was on the basis of an y selection contemplated by the Rules. It cannot be gainsaid that the appointme nt of the petitioner by the aforementioned order had been to a public post and o bligatorily had to be in terms of the prescriptions of the Rules. The writ peti tion as well, does not disclose any averment of the petitioner that his appointm ent had been preceded by selection under the Rules. The order dated 09.08.1999 passed in WP(C) No. 3886/1999, whereby the Director of Elementary Education, Ass am had been required to ascertain the reason for non-payment of the petitioner s alary does not signify either any inference of validity of his appointment. The above direction for inexplicable reasons, however, was construed to be one for adjustment/regularisation of the petitioner as is sought to be represented in th e order dated 20.02.2001 of the Deputy Inspector of School, Silchar to the said effect. The said order professes that the petitioner had, thereby been adjusted /regularized in pursuance of the judgment and order dated 09.08.1999 passed in W P(C) No.3886/1999. It would be apt to extract the operative portion of the orde r dated 09.08.1999 as hereunder: - (cid:28)The notice is made returnable within 6 weeks. In the meantime, the petitioners will file certified copy of this order along wi th copies of the writ petition before the Director of Elementary Education, Assa m and within a period of 2 months from the date of receipt of the same from the petitioner, the Director will find out as to why the petitioners have not been p aid their salaries. (cid:29) No direction for adjustment/regularisation of the petitioner can be deduced from the above. Be that as it may, by order dated 19.09.2001 passed in the same proceeding, the petitioners therein, whose services have been regularized/adjusted, were ordered to be paid their pay and allowances including arrear pay, if they were found to have been working in their respective capacity. Admittedly, this order has rem ained unchallenged and, therefore, has become binding on the official respondent s. In this view of the matter, though, the order dated 19.09.2001, in the opinion o f this Court, does not embody a determination of validity of the petitioner’s ap pointment on the touchstone of the Rules, in the teeth of the directions for pay ment of salary, the State respondents are obliged in terms thereof to release hi s service entitlements, if he is actually discharging his duties in his post. The petition stands allowed in the above terms. However, as the petitioner’s re gularisation/adjustment is as a result of apparent misreading of the order dated 09.08.1999 passed by this Court in WP(C) No. 3886/99, which prima facie does no t appear to be bonafide, this Court orders an enquiry into this episode and brin g to book the persons concerned after a due enquiry. The Commissioner and Secretary Education (E) Department, Govt. of Assam would en sure that the enquiry is conducted as ordered and cause a copy of the report to be submitted to this Court within six (6) weeks herefrom. No costs.