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1997 DIGILAW 190 (GAU)

Jayanta Kumar Das v. State of Assam

1997-09-09

A.K.PATNAIK

body1997
In this application under Article 226 of the Constitution, the four petitioners have prayed for a direction on the respondents to grant regular scale of pay from the date of their appointments to the regular vacancies. 2. The facts briefly are that the petitioners have passed HSLC Examination and they were initially appointed by the Managing Committee of the respective schools as second founder teachers. The petitioner No. 1 was appointed on 5.4.76 in the LP School of Mahakali MV School by the then Managing Committee. The petitioner No.2 was appointed on 10.11.80 in No. 1112 Darubi LP School by the then Managing Committee of the said school. The petitioner No. 3 was appointed on 27.12.81 by the then Managing Committee in No. 1057 Bonakala LP School and the petitioner No.4 was appointed on 1.6.78 by the Managing Committee of No. 1152 Rasulpur LP School. The aforesaid schools to which the petitioners were appointed were provincialised with effect from 1.3.82. The four petitioners continued to work in the said schools as teachers on honourary basis. Although representations were filed by the four petitioners for regular appointment in the said schools and provincialisation of their services, no orders were passed by the authorities regularising or provincialising the services of the four petitioners, and as a result, the four petitioners continued to work in their respective schools as honourary teachers. In the circumstances the four petitioners moved this Court in Civil Rule No.2665 of 1993 which was disposed of by this Court by judgment dated 12.11.93 directing the respondent Nos.3 and 4 to appoint the petitioners in compliance with the orders passed by the respondent No.2. Director of Elementary Education Assam. Thereafter, the respondent No.4, the Deputy Inspector of Schools. Karimganj. passed an order on 23.5.94 appointing the petitioners as stipendary teachers on a monthly stipend of Rs.900/- and in the said appointment order dated 23.5.94 it was mentioned that the petitioners will be allowed regular time scale of pay @ Rs. 1.18 5 to Rs. 2,3 95 PM plus other allowances as admissible, if they come out successfully in their Junior Basic Training. Aggrieved, the four petitioners have moved this Court in the present civil rule for a direction to the respondents to pay regular scale of pay. 3. Mr. A. Ahmed, learned counsel for the petitioners, submits that under the Assam Elementary Education (Provincialisation) Service and Conduct Rules, 1981. Aggrieved, the four petitioners have moved this Court in the present civil rule for a direction to the respondents to pay regular scale of pay. 3. Mr. A. Ahmed, learned counsel for the petitioners, submits that under the Assam Elementary Education (Provincialisation) Service and Conduct Rules, 1981. petitioners are entitled to confirmation as they have completed 3 years' continuous sendee after provincialisation of the schools. He relied on the provisions of Rule 4 of the said Rules in support of his submission that where a teacher has completed 45 years of age or has completed 3 years of continuous service after provincialisation of the school and no facilities have been provided to him for the prescribed training, he will be confirmed provided there is nothing adverse against him. Mr. HN Sarma. Additional Senior Govt. Advocate, Assam, on the other hand, referred to the provisions of Rule 2 (xii) of the said Rules to show that the said rule applies to a person who has been in service under the State Board for Elementary Education constituted under the Assam Elementary Education Act and has continued in sendee under the Govt. before or after provincialisation and does not apply to the petitioners. 1 find full force in the aforesaid submission of Mr. Sarma. The language of Rule 2 (xii) would show that 'Service' means service rendered under the State Board for Elementary Education and service rendered under the Govt. before and after provincialisation. Admittedly, the petitioners had not rendered any service under the State Board for Elementary Education and therefore cannot be treated as a member of the service. Since Rule 4 of the Rules related to the members of the service, the petitioners not being members of the service are not entitled to confirmation under the Assam Elementary Education (Provincialisation) Service and Conduct Rules. 1981. 4. It was next submitted by Mr. Ahmed that at any rate the direction of the Director of Elementary Education Assam, respondent No.2 was to appoint the petitioners on regular basis and in fact appointments have been made by the Deputy Inspector of Schools. Karimganj, in the orders dated 23.5.94 to retirement vacancies. He further stated that more than 3 years have passed from the date of the order dated 23.5.94, but the petitioners have not been given facilities of training as stipulated in the said appointment orders. Karimganj, in the orders dated 23.5.94 to retirement vacancies. He further stated that more than 3 years have passed from the date of the order dated 23.5.94, but the petitioners have not been given facilities of training as stipulated in the said appointment orders. Therefore, the petitioners cannot be allowed to suffer on account of lack of facilities of training and paid only stipend of Rs.900/- PM and it is a case in which this Court should direct the authorities to pay regular scale of pay to the petitioners as early as possible. Mr. H.N. Sarma. Additional Senior Govt. Advocate. Assam, on the other hand, states that initially the teachers are appointed on stipendary basis and only after he or she passes his or her training, he or she is given regular scale of pay. 5. It may be correct that in practice followed by the Education Department is initial appointment of teachers on stipendiary basis and can after completion of training to pay regular salary. But in the present case, it appears that the petitioners have put in long years of service on honourary basis in their respective schools before and after provincialisation of the schools. That apart, the appointment orders dated 23.5.94 issued by the Deputy Inspector of Schools, Karimganj, would show that the petitioners have been appointed in different retirement vacancies which obviously carry regular scales of pay. If for more than 3 years, the State respondents have not been able to provide facilities of training to the petitioners on completion of which they are entitled to regular scale of pay. I am of the considered opinion that the petitioners should not be further deprived of regular scale of pay particularly when they have been appointed on regular vacancies carrying regular scales of pay. 6. For these reasons stated above, I dispose of this writ petition with a direction that the Director of Elementary Education, Assam shall pass orders within one month from the date of receipt of certified copy of this order directing that the four petitioners will be paid regular scale of pay with effect from first October, 1997. However, considering the financial predictment of the State Govt. I am not inclined to pass orders for payment of regular scale of pay to the petitioners with retrospective effect. No costs.