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Gauhati High Court · body

2008 DIGILAW 246 (GAU)

Md. Taizuddin Ahmed v. State of Assam and Ors.

2008-03-28

AMITAVA ROY

body2008
1. The petitioner seeks a writ of mandamus to the official respondents for regularization of his services with effect from 18.4.1992. A writ for certiorari to quash the order dated 8.6.1998 of the Inspector of Schools, N.D.C., Nalbari, appointing the respondent No. 4 as an Assistant Teacher in Janata High School ('the School'), is also prayed for. 2. I have heard Mr. A.S. Choudhury, senior advocate assisted by Mr. M.M. Ahmed, advocate for the petitioner and Mr. A.K. Goswami, senior advocate assisted by Ms. F. Begum, advocate for the respondent No. 4. Ms. Baruah, learned counsel for the official respondents is also heard. 3. The petitioner's pleaded case is that on an application filed by him before the Inspector of Schools, NDC, Nalbari, for appointment as an Assistant Teacher in the aforementioned school, he was favoured therewith on 18.4.1992. It is admitted by him that his appointment was not preceded by any selection as required in law. Being aggrieved by the fact that in spite of the services being rendered by him, his salary was not released with effect from 18.4.1992, he approached this court with C.R. No. 2279/1993, which was disposed of on 14.10.1993, with a direction to the concerned respondent authority to make an inquiry into his claim and to made payment of his entitlements, if found allowable in law. The petitioner again approached this court with C.R. No. 2849/1995, this time complaining about non-compliance of the order dated 14.10.1993, referred to hereinabove. This court noticing the factual background, by order dated 19.7.1995, dismissed the petition, leaving the petitioner at liberty to pursue an appropriate proceeding on his grievance bearing on non-compliance of the order dated 14.10.1993. The petitioner thereafter instituted Contempt Original Petition (C) No. 413/1995, alleging deliberate non-compliance of the order dated 14.10.1993, passed in C.R. No. 2279/1993. This court by order dated 24.8.1998 dismissed the contempt petition observing as follows : - "From the averments made in para 2 of the affidavit it will appear that the Inspector of Schools Nalbari and carried out the direction made by this court on 14.9.1993 in Civil Rule No. 2279/1993. This court by order dated 24.8.1998 dismissed the contempt petition observing as follows : - "From the averments made in para 2 of the affidavit it will appear that the Inspector of Schools Nalbari and carried out the direction made by this court on 14.9.1993 in Civil Rule No. 2279/1993. In the circumstances there should be no justification for the petitioner to file this contempt petition." "It is not a case of the petitioner that the inquiry conducted by the Inspector of Schools pursuant to the direction made by this court was an eye wash enquiry and that the Inspector has wrongly reported that petitioner was working against non-sanctioned post hence was not entitled for payment of salary from the State Exchequer." 4. In reaching the conclusion, as extracted hereinabove, this court noticed the stand of the Inspector of Schools, NDC, Nalbari, in his affidavit filed in the said proceeding, ir ,er alia, to the effect that in terms of the order dated 14.10.1993, passed in C.R. No. 2279/1993, an inquiry in fact had been conducted, which revealed that the petitioner had been appointed against a non-sanctioned post and that as logical 1 y no funds were allotted in connection therewith, no question of payment of his salary from 18.4.1992, as claimed, could arise. 5. In between the respondent No. 4 had approached this court with C.R. No. 3602/1995, staking his claim for being appointed against a vacant post of Assistant Teacher in the same school in terms of the extant Government policy contained in the notification dated 6.6.1992, which earmarked certain percentage of posts to accommodate the sons/ daughter/near relatives of retired LP School Teachers. By order dated 15.09.1995, this court, while disposing of the petition required the Inspector of Schools, Nalbari, to make necessary inquiries, so as to ascertain the respondent No. 4's entitlement to be considered for appointment, as claimed. Eventually by order dated 8.6.1998, the Inspector of Schools, NDC, Nalbari, accorded appointment to the respondent No. 4, as Assistant Teacher in the said school against the vacancy created on the demise of its earlier incumbent Md. Subhan All. 6. Eventually by order dated 8.6.1998, the Inspector of Schools, NDC, Nalbari, accorded appointment to the respondent No. 4, as Assistant Teacher in the said school against the vacancy created on the demise of its earlier incumbent Md. Subhan All. 6. The instant petition is a renewed pursuit by the petitioner on the strength of a communication dated 21.04.1997 of the Joint Director e£ Secondary Education, Assam, addressed to the Commissioner to the Government of Assam in the Education Department, Dispur, referring to, inter alia, an inquiry report of the Inspector of Schools, NDC, Nalbari, revealing that the petitioner was in service since 18.4.1992. Thereby, an amount of Rs. 1,22,151, was also proposed to be allotted for payment of his salary from 18.4.1992 to 29.2.1996. The petitioner has questioned/ as well the legality of respondent No. 4's appointment. The State respondents have not filed any affidavit. 7. The respondent No. 4, in his affidavit, has in categorical terms claimed his appointment to be valid in law in all respects and has dismissed the claim of the petitioner, contending that his initial induction being against a non-existent post, as revealed in the inquiry conducted by the Inspector of Schools, Nalbari, his claim for salary from 18.4.1992 is non est in law. The respondent No. 4, by an additional affidavit, has amongst others, brought on record the fact that the petitioner is no longer in service in that school. 8. Mr. Choudhury, has urged that it being apparent from the letter dated 21.4.1997 that the petitioner had been serving without any break from 18.4.1992, for which an amount of Rs. 1,22,151 has been recommended to be released for meeting his entitlements on and from that date, he having in the meantime put in more than 10 years of service, is entitled to be regularized and the arrear salary paid. 9. In reply, Mr. Goswami, has argued that as in the inquiry conducted by the Inspector of Schools in compliance of the order dated 14.10.1993, passed in C.R. No. 2279/1993, the petitioner's appointment has been found against a non-existent post, a finding which remains unassailed till date, by no means he is entitled to any salary from 18.4.1992, as prayed for. In reply, Mr. Goswami, has argued that as in the inquiry conducted by the Inspector of Schools in compliance of the order dated 14.10.1993, passed in C.R. No. 2279/1993, the petitioner's appointment has been found against a non-existent post, a finding which remains unassailed till date, by no means he is entitled to any salary from 18.4.1992, as prayed for. The respondent No. 4, having been appointed as Assistant Teacher of the School on an appropriate consideration of all relevant factors including his educational qualification and experience, no interference therewith, is called for at this distant point of time. 10. Admittedly, this court while dismissing the COP (C) No. 413/1996, had taken note of and acted upon the stand taken by the Inspector of Schools, NDC, Nalbari, in his affidavit filed in the said proceeding to the effect that an inquiry had been conducted into the petitioner's claim for salary, which disclosed that his appointment was against a non­existent post. This court at that point of time also seems to have noticed some other orders passed by the Joint Director of Education, Government of Assam, indicating thereunder that the petitioner's saJary was paid. This court recorded that though the learned counsel for the petitioner referred to the said orders, the same were not produced for the perusal of the court. It also observed that the petitioner had abstained from challenging the correctness or authenticity of the report of the Inspector of Schools to the effect that he had been appointed against a non-sanctioned post. The letter dated 21.4.1997 o'f the Joint Din-dor of Education, Assam, is clearly without reference to the above n-corded facts, more particularly, the earlier inquiry conducted by the Inspector of Schools, NDC, Nalbari on the same issue. This court, therefore, is not inclined to sustain the petitioner's claim solely on the basis thereof. The materials on record, are not convincing enough to uphold the petitioner's challenge to the respondent No. 4's appointment as well. 11. In absence of any assailment of this court findings in the order dated 24.8.1998, passed in COP(C) No. 413/1995, I am of the view that the materials on record do not justify reopening of the same in the instant proceeding. 11. In absence of any assailment of this court findings in the order dated 24.8.1998, passed in COP(C) No. 413/1995, I am of the view that the materials on record do not justify reopening of the same in the instant proceeding. This is more so, in face of the respondent No. 4's stand that the petitioner is presently not in service, a plea which has not been seriously resisted by his learned counsel. Be thafcas it may, as the petitioner's initial appointment is found to be against a non-sanctioned post, in law, he is not entitled to his salary or other service entitlements as comprehended in the extant rules. 12. In the above view of the matter, I do not find any merit in the petition, which is accordingly dismissed. No costs.