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2009 DIGILAW 225 (GAU)

Abdul Mohim v. State of Assam

2009-03-30

BIPLAB KUMAR SHARMA

body2009
JUDGMENT B.K. Sharma, J. 1. The petitioners are the ME School Teachers. Their claim in the writ petition is to issue a direction to the respondents to grant annual increments for the period from 1993 to 2003. 2. The petitioners were appointed by Annexure-A series orders dated 19.6.2003 as ME School Teachers in different Schools. It appears that their appointments were irregular but were adjusted by Annexure-B, C1, C2, C3, C4 and C5 orders dated 7.3.2003, 3.2.2003, 3.2.2003, 3.2.2003, 3.2.2003, 15.2.2003 and 3.2.2003 respectively. In the orders itself, it was specifically stated that their irregular appointments had been adjusted with immediate effect. Thus, such adjustments were prospective. Even otherwise also regularization and/or adjustment of irregular services normally become effective prospectively. 3. The petitioners have placed reliance on Annexure-D series orders issued in the year 2001 (12th February, 2001) by which in reference to some Government letters, there services were regularized with effect from the date of joining in June 1993, so as to claim yearly increments from 1993 to 2003. 4. The respondents have filed their counter affidavit in which they have denied the claim of the petitioners. It is their stand that the petitioners who were irregularly appointed, were adjusted against existing vacant posts prospectively as per the policy decision taken by the Government with the stipulation that those teachers would not be entitled to any back wages, but their earlier services would be counted only for the purpose of pensionary benefits. 5. Mr. Y.S. Mannan, learned Counsel for the petitioners strenuously argued that the petitioners may not be entitled to back wages but their services having been regularized, they cannot be deprived of the notional annual increments for the period in question. He has placed reliance on three decisions of the Apex Court reported in Ajoy Yadav v. Government of Goa AIR 2000 SC 451 ; Nehru Yuva Kendra Sangathan v. Rajesh Mohan Shukla (2007) 6 SCC 9 and State of Bihar and Ors. v. Bihar State 'Plus-2' Lecturers Association and Ors. (2008) 7 SCC 231 . 6. Mr. M. Khatoniar, learned Standing counsel, Education Department on the other hand submitted that services of the petitioners having been regularized and/or adjusted prospectively, there is no question of payment of incremental benefits to the petitioners. v. Bihar State 'Plus-2' Lecturers Association and Ors. (2008) 7 SCC 231 . 6. Mr. M. Khatoniar, learned Standing counsel, Education Department on the other hand submitted that services of the petitioners having been regularized and/or adjusted prospectively, there is no question of payment of incremental benefits to the petitioners. He submitted that since the appointments of the petitioners were illegal, they were not entitled to any back wages and that their services were regularized as per the cabinet decision, only prospectively. He has also produced the circular letter dated 26.11.2002 and 10.8.2000 of which the letter dated 26.11.2002 finds mention in the Annexure-C series orders of regularization/adjustment prospectively. 7. In the aforesaid circular letter dated 26.11.2002, the earlier circular letter dated 10.8.2000 was referred to. By the said letter, the Director of Elementary Education was directed to regularize the services of 3511 numbers of teachers with the stipulation that their such regularization/adjustment would be with immediate effect, i.e., prospective against the vacant posts and that the teachers would be required to give an undertaking that they would not claim arrear salary for the past services rendered. Further it was provided that their past services would be counted for the purpose of pensionary benefits only. 8. The services of the petitioners were adjusted/regularized prospectively on the basis of the cabinet decision dated 21.2.2000 and reflected in the circular letter dated 10.8.2000. If the petitioners were appointed irregularly, the Government was within its competence and jurisdiction to take decision not to pay back wages and to adjust/regularize their services prospectively. However, as a benevolent gesture, the Government decided to count the irregular period of service for the purpose of pension. 9. If the petitioners are not entitled to any back wages for the period 1993 to 2003 because their services were irregular, I see no reason as to how they are entitled to annual increments. Annual increments are provided in the time scale of pay. The services of the petitioners were adjusted/regularized prospectively with the clear understanding/undertaking that they would not be entitled to any back wages. Thus, the said period of service was fortuitous and the Government also declared that they would not be entitled to any back wages. If the said period was fortuitous, there is no question of granting any annual increments. The services of the petitioners were adjusted/regularized prospectively with the clear understanding/undertaking that they would not be entitled to any back wages. Thus, the said period of service was fortuitous and the Government also declared that they would not be entitled to any back wages. If the said period was fortuitous, there is no question of granting any annual increments. The petitioners themselves gave undertakings towards adjustment/regularization of their services that they would not claim any back wages. 10. The Apex Court in the case of V.V.G. Reddy v. Andhra Pradesh State Road Transport Corporation (2009) 2 SCC 668 , noticing the feet that the direction of the labour court was for reinstatement in service with continuity but without "attendant benefits" and back wages, held that upon such reinstatement, the incumbent will not be entitled to increments. In that case, the writ petition was allowed holding that denial of fixation of pay without taking into consideration the notional increments was illegal. It was observed by the Apex Court that a person may be denied back wages which otherwise can be interpreted to mean that he would be entitled to claim the benefit of increments notionally. 11. In APSRTC v. Abdul Kareem (2005) 6 SCC 36 , the Apex Court observed as follows: 11. ...the labour court specifically directed that the reinstatement would be without back wages. There is no specific direction that the employee would be entitled to all the consequential benefits. Therefore, in the absence of specific direction in that regard, merely because an employee has been directed to be reinstated without back wages, he cannot claim a benefit of increments notionally earned during the period when he was not on duty during the period when he was out of service. It would be incongruous to suggest that an employee, having been held guilty and remained absent from duty for a long time, continues to earn increments though there is no payment of wages for the period of absence. 12. Similarly, in APSRTC v. Narsagoud (2003) 2 SCC 212 , the Apex Court observed, thus: We find merit in the submission so made. 12. Similarly, in APSRTC v. Narsagoud (2003) 2 SCC 212 , the Apex Court observed, thus: We find merit in the submission so made. There is difference between an order of reinstatement accompanied by a simple direction for continuity of service and a direction where reinstatement is accompanied by a specific direction that the employee shall be entitled to all the consequential benefits, which necessarily flow from reinstatement or accompanied by a specific direction that the employee shall be entitled to the benefit of the increments earned during the period of absence. In our opinion, the employee after having been held guilty of unauthorized absence from duty cannot claim the benefit of increments notionally earned during the period of unauthorized absence in the absence of a specific direction in that regard and merely because he has been directed to be reinstated with the benefits of continuity of service. 13. In the instant case, there is no dispute that the very appointments of the petitioners were illegal and/or irregular. They were never paid any salary till such time their services were regularized/adjusted. Having regard to the peculiar facts and circumstances, the cabinet took a decision to regularize their services, without, however, any back wages. They were required to give an undertaking to that effect also. After getting their services regularized/adjusted, with such undertaking, the petitioners cannot now turn around so as to claim incremental benefits for the period in question which even otherwise also on the basis of the aforesaid law laid down by the Apex Court, cannot entail them the benefit of notional increments. 14. The decisions on which, Mr. Mannan, learned Counsel for the petitioners have placed reliance are of no help to the case of the petitioners. The decisions are primarily on the principle of "equal pay for equal work". It was contended that since 'others', have been paid salary, the petitioners should also be paid, atleast incremental benefits. Suffice is to say that no comparison can be made with those 'others' who are not in the category of irregular/illegal teachers' like that of the petitioners. They perhaps are a class by themselves. 15. For all the aforesaid reasons, the petitioners are not entitled to any relief and consequently the writ petition is liable to be dismissed, which I accordingly do. 16. The writ petition is dismissed, without however, any order as to costs. Petition dismissed.