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2003 DIGILAW 546 (GAU)

Dwijendra Kumar Das v. State of Assam

2003-12-04

BIPLAB KUMAR SHARMA

body2003
JUDGMENT B.K. Sharma, J. 1. The grievance made in the writ petition is in respect of Annexures 6 and 7 orders dated 2.8.1999 and 13.9.1999 respectively. By the said order dated 2.8.1999 one Madhu Nath Sarmah respondent No. 4 herein was sought to be transferred to the school in which the petitioner has been working. By Annexure 7 order dated 13.9.1999, the salary of the writ petitioner along with one Shri Ramesh Ch. Kalita, Assistant Teacher of the said school was held up temporarily. It was at that stage the petitioner approached this Court by filing this writ petition making a grievance against the said Annexure 6 and 7 orders dated 2.8.1999 and 13.9.1999. The interim prayer was made for staying the operation of the said order and the Court by orders dated 29.9.1999 was pleased to stay the order dated 13.9.1999 by which the monthly salary of the petitioner was directed to be stopped. 2. Heard Mr. G.K. Bhattacharya, learned senior counsel for the petitioner and the learned junior Govt. Advocate for the State of Assam. 3. Adverting to the fact of the present case, I find that the petitioner is a selected candidate for appointment as an Assistant Teacher and accordingly he was appointed by Annexure 2 order dated 22.10.1999. In the order of appointment the petitioner was said to appointed against the resultant vacancy of the principal who had retired from services on attaining the age of superannuation. After such retirement of the then Principal of the school, one Shri Ramesh Ch. Kalita who was the senior most graduate teacher of the school, was allowed to hold the charge of the principal. It is on record that the petitioner was paid his salary after his appointment as aforesaid from the date of joining. 4. The petitioner by Annexure 5 representation dated 29.7.1999 addressed to the Inspector of Schools, Nalbari had prayed for his adjustment against the resultant vacancy upon retirement of the Principal on attaining the age of superannuation. It was the apprehension of the petitioner that since in the order of appointment he was shown to be appointed against the resultant vacancy of Principal instead of resultant vacancy of Assistant Teacher upon promotion as Principal, he might be put to difficulty in getting his salary etc. It was the apprehension of the petitioner that since in the order of appointment he was shown to be appointed against the resultant vacancy of Principal instead of resultant vacancy of Assistant Teacher upon promotion as Principal, he might be put to difficulty in getting his salary etc. It was at that stage the impugned order at Annexure 6 arid 7 were issued by which one Shri Madhu Nath Sarmah was sought to be transferred as Head Master to the school in which the petitioner has been serving. This transfer created further apprehension of future difficulties in respect of adjustment of the petitioner and consequent release of salary, etc. True to his apprehension the Annexure 7 order dated 13.9.1999 was issued by the Inspector of schools temporarily withdrawing the salary of the petitioner and said Kalita. 5. Mr. G.K. Bhattacharya, appearing on behalf the petitioner has now submitted that Shri Ramesh Ch. Kalita has already retired from service on attaining the age of superannuation with effect of 31.8.2000. It is also admitted that Shri Madhu Nath Sarmah who was sought to be transferred to the school in which the petitioner has been working by Annexure 6 order has never been given effect to. 6. Now the prayer of petitioner is that necessary correction and adjustment may be made in favour of the petitioner in respect of his appointment as Assistant Teacher in the school, It is submitted by Mr. G. K. Bhattacharya that the petitioner has been receiving his salary regularly pursuant to the interim order passed by this court staying the operation of the Annexure 7 order. Thus the only question left to be decided in the writ petition is in respect of the prayer made for adjustment of the petitioner against the resultant vacancy which had occurred pursuant to the retirement of the then principal on attaining the age of superannuation. Since the petitioner is a selected candidate for appointment, the respondent authority cannot dispense his service. The respondent cannot deprive the petitioner from getting his regular salary for the mistake committed in the matter of appointing him against resultant vacancy. If necessary arrangement should be made and the petitioner should be paid his regular salary. 7. Accordingly, the impugned order at Annexure 7 dated 13.9.1990 is set aside and the petitioner shall be allowed to continue his service and be paid his salary regularly as per rules.