High Court · 2012

Heard Dr. Ahmed, learned counsel for the petitioner and Mr. U.K. Goswami , learned standing counsel Education Department appearing for the respondent Nos .1 to 3. The respondent Nos.4 and 5 are not represented despite service. The petitioner, who was initially appointed as Music teacher on adhoc ba sis for a period of 3(three) months, by the present petition has prayed for a di rection to the respondent authorities to regularize him in service by way of adj ustment, in the post against which he is now working in Bongaon Higher Secondary School, by relaxing the required rules and on the basis of the length of servic e. The petitioner has also challenged the order dated 02.06.2008 passed by the D irector of Secondary Education, whereby and whereunder it has been held that the petitioner’s claim for regularization/payment of salary w.e.f. June, 2002 canno t be allowed, apart from the communication dated 01.06.2010 issued by the Deputy Director of Secondary Education to the Principal of Bongaon H.S. School intimat ing the rejection of the claim of the petitioner for regularization in service v ide order dated 02.06.2008 and also to confirm as to whether his salary up to 02 .06.2008 has been paid. It has been contended by the learned counsel for the petitioner that sin ce pursuant to his initial order of appointment dated 01.11.1993 issued by the D irector of Secondary Education, appointing him as Music teacher in Bongaon H.S. School initially for a period of 3(three) months, he has joined the service, whi ch period thereafter was extended by various orders passed, the last being on 26 .12.1995 extending his service for a period of 6(six) months w.e.f. 01.11.1995, the petitioner is entitled to be considered for regularization and also for paym ent of salary till date, as he has not been terminated from service and discharg ing the duties as Music teacher. It has also been submitted that pursuant to the order dated 22.08.2007 passed in WP(C) No.2832/2006 filed by the petitioner dir ecting payment of salary for the period for which the petitioner has served, tho ugh the salary up to the month of June, 2008 has been paid vide order dated 30.0 3.2009, the salary to the petitioner thereafter has not been paid and instead th e Director has passed an order on 02.06.2008 refusing to accept the prayer for r egularization in service. The learned counsel, therefore, submits that having re gard to the length of service the petitioner is entitled to be considered for re gularization, apart from the salary till date, as he is still working as the Mus ic teacher. The claim of the petitioner is opposed by the respondents by filing affi davit-in-opposition by the Director of Secondary Education. In the said affidavi t, it has been contended that the petitioner’s adhoc appointment was extended up to 30.04.1996 and thereafter such term of adhoc appointment was never extended. It has also been stated that there was an advertisement issued on 06.07.1994 fo r recruitment of Music teachers by way of regularization of adhoc Music teachers in which process the petitioner did not participate. The further contention of the respondents in the said affidavit is that the claim of the petitioner for re gularization was scrutinized by the Director and thereafter the order dated 02.0 6.2008 was passed. It has further been contended that though the petitioner was entitled to the salary up to 30.04.1996, his term of appointment having not been extended beyond that date, he cannot claim for payment of salary for any period thereafter. It has, however, been submitted that the salary up to June, 2008 wa s paid as the Director has passed the order on 02.06.2008. Admittedly the petitioner was appointed as Music teacher on adhoc basis initially vide order dated 01.11.1993 by the Director for a period of 3(three) m onths and was posted in Bongaon H.S. School. The post of Music teacher was requi red to be filled up as per the provisions of Assam Secondary Education (Provinci alised) Service Rules, 1982, which was in force at the relevant point of time, w hich requires filling up of the said post by initiating the required process of selection. While making appointment of the petitioner, no process was initiated and despite that the petitioner managed to obtain appointment on adhoc basis. Th e petitioner’s initial appointment on adhoc basis for a period of 3(three) month s was subsequently extended from time to time by various orders passed by the Di rector, the last being on 26.12.1995 extending the adhoc service of the petition er for a period of 6(six) months w.e.f. 01.11.1995 i.e. up to 30.04.1996. The pe riod of adhoc appointment of the petitioner thereafter was not extended. The pet itioner, therefore, was entitled to the salary for the said period i.e. up to 30 .04.1996. The petitioner in the meantime filed a writ petition before this Court b eing WP(C) No.2832/2006 claiming salary contending inter alia that despite his a dhoc appointment and the subsequent extension, he has not been paid the salary. The said writ petition was allowed vide order dated 22.08.2007 directing the res pondent authority to pay the salary to the petitioner for the period for which h e has served. The said order has to be understood on the backdrop of adhoc appoi ntment of the petitioner and the period for which the petitioner’s service was e xtended. As noticed above, the period of adhoc appointment of the petitioner was not extended beyond 30.04.1996. The Director of Secondary Education thereafter vide order dated 02.06.2008 has rejected the claim of the petitioner for regular ization, on the ground that he was not appointed as per rules and was appointed without any selection. The claim for payment of salary w.e.f. June, 2002 though was rejected, by another order dated 30.03.2009 passed by the Director of Second ary Education an amount of Rs.6,42,250/- was sanctioned for the purpose of payme nt of salary to the petitioner from June, 2002 to June, 2008, though the petitio ner was not entitled to the same. Be that as it may, since the said amount has a lready been disbursed to the petitioner towards the salary, there would not be a ny recovery of the same from the petitioner. The claim of the petitioner for regularization in service as well as for payment of salary w.e.f. July, 2008, in view of the aforesaid discussion, canno t be accepted.