Gurumayum Sanayaima Sharma v. State of Manipur

Order

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27.08.2021 & 7.9.2021

06.06.2022 JUDGMENT AND ORDER (CAV) The petitioner was initially appointed as Temporary Teacher in the Kairang Primary School by an order dated 26.02.1987. While the petitioner was serving as Matriculate Teacher, he was allowed to hold the charge of Headmaster, Kairang Primary School, by order dated 27.02.1990 on acting/looking after basis. The Director of 1 | W P ( C ) N o . 3 4 o f 2 0 2 0 ( C A V ) Education (S), Government of Manipur, issued an order dated 5.9.1991

declaring the petitioner along with one Shri K.Kesho Singh as Headmaster w.e.f. the date on which they were declared as Acting Headmaster/Looking after for the ends of justice and allowed to enjoy the Headmaster Scale of Pay. In the order dated 5.9.1991, the date of declaration as Acting Headmaster/Looking after of all Primary Schools, in respect of the petitioner is indicated as 27.02.1990 and with regard to the said K.Kesho Singh, his date of declaration as Acting Headmaster/Looking after of all Primary Schools is shown as

10.10.1994. Thereafter, by an order dated 7.10.1998 the petitioner was transferred as Assistant Inspector (AI of Schools) at ZEO Kangpokpi. The official respondents issued service particulars of Headmasters of JB/Primary Schools under ZEO/AI of Schools concerned on the placement of senior scale of pay under ROP 1990 wherein th;e name of K.Kesho Singh is shown at Sl.1 with the designation of Headmaster and his date of appointment on regular basis as 10.10.1984. However, the petitioner was still considered as in- charge Headmaster and the respondents issued an order dated

19.07.2016 by which the petitioner was not allowed to work as Headmaster or as A.I and was directed to join the L.P.School at Andro Kharam LPS as LP School Teacher. Being aggrieved by the order dated 19.07.2016, the petitioner filed WP(C) No.607 of 2016 which was disposed of by an order dated 16.12.2016 directing the petitioner to file a representation to the authorities to consider the case of the petitioner for allowing him to hold the post of Headmaster as has been done in the case of similarly situated persons. The petitioner also claims parity with the common judgment and order dated 27.04.2012 passed by this Court in WP(C) No.750 of 2010 and WP(C) No.3 of 2011 wherein similarly situated persons as that of the petitioner, approached this Court and this Court by the said common judgment and order directed that the petitioners therein are entitled to be treated as regularly/substantively appointed Headmasters and, therefore, entitled to all service benefits. It 2 | W P ( C ) N o . 3 4 o f 2 0 2 0 ( C A V ) is the further case of the petitioner that the respondents have duly complied with the judgment and order dated 27.04.2012. In the meantime, the Commissioner, Education (S), Government of Manipur, issued order dated 5.7.2018 after considering all the facts and circumstances of the case of the petitioner by allowing the petitioner to work/serve as In-charge Headmaster of Andro Kharam LP School and further allowed him to enjoy the pay and allowance attached to the post of Headmaster of Primary School as has been done in the case of similarly situated 54 (fifty four) teachers/retired teachers, who were declared as Headmaster/Headmaster-in-charge. As the case of the petitioner was not considered in terms of the order dated 5.9.1991 whereby the petitioner along with one K.Kesho Singh were declared as Headmaster w.e.f. the date on which they were declared Acting Headmaster, the petitioner filed WP(C) No.847 of 2018 impugning the order dated 5.7.2018 before this Court. After hearing the parties, the Writ Petition (C) No.847 of 2018 was disposed of by order dated 11.03.2019 with the following direction: “[15] Accordingly, this writ petition is allowed by setting aside the order dated 05.07.2018. The respondents are directed to take into consideration the Order dated 05.09.1991 issued by the Director of Education (S), Government of Manipur and thereafter, passed appropriate order as has been done in the case of K.Kesho Singh. The arrear, pay and allowances of the petitioner with effect from July, 2012 till date shall also be paid to the petitioner. Let such exercise be completed at the earliest but not later than 3 (three) months from the date of receipt of a copy of respondents.” this Order by Consequent to the order dated 11.03.2019 passed by this Court in WP(C) No.847 of 2019, the Director of Education (S), Government of Manipur reconsidered the case of the said K.Kesho Singh who was made to retire as Headmaster of Khomidok Heikrumakhong Primary School w.e.f. 30.04.2001 by order dated

22.01.2001 and thereafter issued an order dated 4.11.2019 modifying the order dated 22.01.2001 by ordering that the said Shri K.Kesho, 3 | W P ( C ) N o . 3 4 o f 2 0 2 0 ( C A V ) Trained Teacher of Khomidok Heikrumakhong Primary School shall be deemed to have been allowed to retire from service on superannuation as Matriculate Teacher w.e.f. 30.04.2001. Thereafter, the Commissioner, Education (S), Government of Manipur after considering the case of the petitioner in terms of the order dated 11.03.2019 passed in WP(C) No.847 of 2018 came to the conclusion that the declaration of the petitioner as well as Shri K.Kesho Singh as Headmaster was not made against specified sanctioned post of Headmaster, nor the same was made by a duly constituted DPC passed an Order on 9.12.2019 and the relevant portion of the said order is reproduced hereinbelow: Now, therefore, situated thus, in compliance with “6. the Order dated 11.03.2019 of the Hon’ble Court passes in WP(C) No.847 of 2018 as referred hereinabove, the Government of Manipur is pleased to order that the petitioner Shri G.Sanayaima Sharma is not entitled to be treated as regular Head Master of Primary School, however, he shall be entitled the pay and allowances attached to the post of Head Master for the period he had actually worked/discharged as declared head Master/in- charge Headmaster. Further, the ZEO concerned is directed to release the arrear pay and allowances of the said Shri G.Sanayaima Sharma after proper verification of his attendance.” Being aggrieved, the petitioner is before this Court by way of the present writ petition challenging the Orders dated 4.11.2019 and

9.12.2019. Heard Ms.G.Puspa, learned counsel for the petitioner as well as Ms.Sundari, learned GA for the State respondents. Ms.G.Puspa, learned counsel for the petitioner submits that the respondent No.1, while considering the case of the petitioner in terms of the order dated 11.03.2019 passed by this Court, had issued order dated 9.12.2019 by considering irrelevant facts without taking into consideration the facts narrated by this Court in the order dated

11.03.2019. She further submits that the respondents had failed to consider the common judgment and order dated 27.04.2012 passed by 4 | W P ( C ) N o . 3 4 o f 2 0 2 0 ( C A V ) this Court in WP(C) No.750 of 2010 and WP(C) No.3 of 2011 which was already complied with by the respondents. She further submits that apart from the said Shri K.Kesho Singh, a similarly situated person under Zone-II namely Md.Jahuruddin, was made to retire in the senior scale of pay as in the case of the said K.Kesho Singh at Tulihal Primary School on 28.02.2001. Therefore, the respondents are applying different yardsticks between similarly situated persons and the action of the respondents is, therefore, discriminatory, arbitrary and illegal in the eyes of law. Ms.Sundari, learned GA on the other hand submits that the petitioner was never appointed as regular Headmaster at any point of time and it was only a matter of allowing to enjoy the pay scale attached to the post of Headmaster by the order dated 5.7.2018. It is also submitted that the said K.Kesho Singh was allowed to retire from service superannuation as Headmaster of Khomidok Heikrumakhong Primary School w.e.f. 30.04.2001 by order dated

22.01.2001. However, retirement dated 22.01.2001 was rectified/modified by the order dated 4.11.2019 in respect of the said K.Kesho Singh. Further, it is also submitted that in respect of the said Md.Jahuruddin, who appears at Sl.No.10 of the order dated 22.01.2001 the respondents has intimated the Office of the Accountant General, Manipur furnish Original Service Book and other necessary documents in respect of the said Md.Jahuruddin by office letter dated

9.7.2020. The learned GA also submits that the petitioner was never promoted to the post of A.I/Headmaster at any point of time and it was only a matter of allowing the petitioner to work/discharge as Headmaster (A.I)(in-charge) of Schools by way of a declaration only and the same was also not made on the recommendation of a duly constituted DPC. She also contends that the petitioner was transferred and posted at Andro Kharam L.P.School under Zone-II by order dated

11.07.2016 which is still subsisting inasmuch as this Court has not quashed /set aside the order. She further submits that the non-payment 5 | W P ( C ) N o . 3 4 o f 2 0 2 0 ( C A V ) of pay and allowances alleged in the writ petition is due to the fact that the petitioner has not joined to the said School and the process of updating MGEL is still pending and, therefore, his pay and allowances has not been prepared w.e.f. August 2016. As the petitioner was only allowed to discharge/work as Headmaster/A.I by way of a declaration and without recommendation of a duly constituted DPC, there is no merit in the writ petition and the same deserves to be dismissed. I have considered he submissions advanced by the learned counsel for the parties. The short point of consideration before this Court is whether impugned order dated 5.9.1991 issued by Commissioner, Education (S), Government of Manipur has been passed in its right perspective after considering the order dated

11.03.2019 passed by this Court in WP(C) No.847 of 2019. In the order dated 11.03.2019, this Court had considered the order dated 3.9.1991 issued by the Director of Education (S), Government of Manipur whereby the petitioner and one K.Kesho Singh were declared as Headmaster w.e.f. the dates on which they were declared as Acting Headmaster/Looking after. The said order dated

5.9.1991 was also reproduced in the order dated 11.03.2019. This Court had also made a reference to the common judgment and order dated 27.04.2012 passed in WP(C) No.750 of 2010 and WP(C) No.3 of 2011 and also the decision of the State Cabinet taken on 5.5.2015 consequent to the common judgment and order dated 27.04.2010 for allowing 54 (fifty four) declared Headmaster-in-charge to enjoy the pay and allowances attached to the post of Headmaster of Primary Schools for the period they had worked as such as one time dispensation only. This Court had also considered in the order dated

11.03.2019 that the name of the petitioner was not included in the order dated 5.7.2018 amongst the list of 54 (fifty four) teachers as a point of consideration he was being utilized as A.I of schools in ZEO Zone-II, Imphal East. 6 | W P ( C ) N o . 3 4 o f 2 0 2 0 ( C A V ) The impugned order dated 9.12.2019 indicates that the common judgment and order dated 27.04.2012 passed in WP(C) No.750 of 2010 and WP(C) No.3 of 2011 were not considered. WP(C) No.750 of 2010 and WP(C) No.3 of 2011 were filed by similarly situated persons as that of the petitioner and this Court had taken into consideration the objections of the State respondents and Office of the Accountant General of Manipur, wherein similar ground were taken by the respondents that related pay scale of Headmaster of JB/Primary School should be granted only to those who were promoted on the recommendation of a duly constituted DPC and the petitioners therein were not promoted on the recommendation of a duly constituted DPC and without obtaining the concurrence of Finance Department, Government of Manipur as required by law. Further at para 7 of the common judgment and order dated 27.04.2012 it is stated as under: (member of the concerned schools In the decision of this Court referred to earlier, this “7. Court made it amply clear that there had been separate pay scale for the Head Master of J.B/Primary Schools and that the said post of Head Master was a non-selection post and the senior most teacher was declared as Head Master of the respective Schools and that there was definitely a genuine apprehension in the mind of the the petitioner- existing head Master association) that they might be reverted to the posts of Assistant Teacher of impugned order was given effect to. In the absence challenge to these findings, they have now attained finality, and cannot be questioned in this writ petition. The principles of res-judicata/constructive res judicata will, in prpio vigore apply to this case. In defence to and consistent with the findings of this Court in the aforesaid Civil Rule, the respondent No.2 issued the orders dated 5.5.1990 and 5.9.1991 declaring the petitioners as Head Master of the schools in question with retrospective effect in the pay scale of Head Master of J.B School i.e. Rs.640- 1410/- (pre revised). As the petitioners have completed more than 12 years of regular service in the grade of Head Master of J.B./Primary School, they are entitled to the senior scale of Head Master of J.B/Primary School i.e. Rs.6500-10500/-. The impugned order cannot go behind the orders dated 5.5.1990 and 5.9.1991, which are based on the decision of this Court, which has now attained finality. In my opinion, the declaration of the petitioners as 7 | W P ( C ) N o . 3 4 o f 2 0 2 0 ( C A V ) Head Master of J.B/Primary Schools with retrospective effect in accordance with the findings of this Court cannot be construed to be grant of promotion, pay revision or creation of post, which would require concurrence of the to be Finance Department nor can regularization of the post of Head Masters held by the petitioners without the recommendation of DPC. In the view that I have taken, the impugned order dated 25.02.2006 cannot be sustained in law, and is liable to be set aside.” it construe Considering the facts and circumstances, I am of the considered opinion that the case of the petitioner is also similarly situated with the writ petitioners in WP(C) No.750 of 2010 and WP(C) No.3 of 2011 which was disposed of by the common judgment and order dated 27.04.2012. Accordingly, I am of the considered opinion that the petitioner has made out a case and, accordingly, the impugned order dated 19.12.2019 issued by the Commissioner, Education (S), Government of Manipur is set aside and quashed. However, this Court is not interfering with the order dated

4.11.2019 as the matter pertains to the said K.Kesho Singh and if there is any cause of action against the order dated 4.11.2019, it is for the said Shri K.Kesho Singh to agitate the matter. The respondents are hereby directed petitioner as a regularly appointed Headmaster w.e.f. the issuance of the order dated 5.9.1991 and pay him all the back wages and allowances as per entitlement within a period of 4 (four) months from the date of receipt of a copy of order of this Court. The respondents are further directed to give appropriate place of posting to the petitioner as Headmaster within a period of 1 (one) month from the date of receipt of a copy of the order of this Court. The writ petition is, accordingly allowed. No cost. Priyojit KH. JOSHUA MARING JOSHUA MARING 23:38:41 +05'30' 8 | W P ( C ) N o . 3 4 o f 2 0 2 0 ( C A V ) JUDGE 9 | W P ( C ) N o . 3 4 o f 2 0 2 0 ( C A V )