Research › Search › Judgment

Gauhati High Court · body

2010 DIGILAW 121 (GAU)

Nilomani Saikia v. State of Assam

2010-02-18

P.K.MUSAHARY

body2010
JUDGMENT P.K. Musahari, J. 1. Head Smt. N. Saikia, learned Counsel for the petitioners. Also heard Mr. Pathak, learned Standing Counsel, Education Department as well as Mr. D. Saikia, learned Standing Counsel, Finance Department. 2. The brief case of the petitioners is that they were appointed as 2nd founder teachers by the Managing Committees of various L.P. Schools in Morigaon District. The schools in which they were working, were provincialised. The petitioners were accommodated against the posts created under the OBB (Operation Black Board) under Central Government Scheme. The petitioners were initially appointed as primary school teachers on purely temporary basis with monthly stipend at the fixed rate of Rs. 900/- per month with certain terms and conditions. One of such appointment letters in respect of Sri Nilomoni Saikia issued by the Deputy Inspector of School, Morigaon vide Memo No. 20/94/70 dated 29.3.1995 has been annexed as Annexure-1 to the writ petition. They were sent for training and all of them successfully completed the training in the year 1998 as per the announcement of result on 31.3.1998. The present petitioners claim for regular time scale of pay from their respective dates of joining as per the time scale fixed under the Central Government Scheme i.e. Rs. 2985/- PM. It is the specific grievance of the petitioners that the aforesaid scale of Rs. 2985/- has been granted to other similarly situated persons from the date of their joining. In support of his the petitioners have annexed the copy of an order issued by the Joint Director, (Elementary) Education, Assam, Kahilipara vide Memo No. EPA-I/2000/Pt-V/114 dated 1.10.2003 (Annexure-5 to the writ petition). Claiming similar pay scale from the date of joining the petitioners submitted a representation dated 5.10.2005 before the Secretary of Education, Dispur, Assam but the same has not been considered by the aforesaid Secretary and the same is still pending. Smt. Saikia, learned Counsel for the petitioners submits that the petitioners are entitled to get the benefit of time scale of pay as prescribed by the Central Government from the respective dates of joining inasmuch as the same has been allowed in respect of 6 (six) similarly situated teachers. 3. Mr. Pathak, learned Standing Counsel, Education Department submits that the petitioners were appointed only on 29.3.1995 at the monthly fixed stipend of Rs. 3. Mr. Pathak, learned Standing Counsel, Education Department submits that the petitioners were appointed only on 29.3.1995 at the monthly fixed stipend of Rs. 900/-and they have accepted the same and only after a lapse of 12 years they have approached this Court in the year 2007 for granting them pay scale from the dates of their joining which is not permissible inasmuch as it is hit by the law of estoppel. According to Mr. Pathak, the petitioners accepted the terms and conditions mentioned in the appointment letters and they can't now retract after lapse of a long period of time. Moreover, according to Mr. Pathak, the Government has taken a policy decision to appoint teachers initially on temporary basis on a monthly fixed stipend of Rs. 900/-, which has been raised subsequently to Rs. 1800/- and to send them to training and if they pass the training, they would be entitled to time scale of pay. As per the said policy the Government allowed the time scale of pay to the petitioners w.e.f. 1.3.1998 as has been indicated in order dated 14.3.2000 (Annexure 3 to the writ petition). His aforesaid submissions are based on affidavit-in-opposition filed by the respondent Joint Director (Elementary) Education, Assam regarding payment of time scale to six similarly situated persons it has been explained in para 14 of the affidavit, which is reproduced below : 14. That with regard to the statements made in Paragraph 9 of the Writ Petition the deponent states that in pursuance of the Government letter No. PMA-30/200/102, dated 9.9.2003, the six posts of primary teachers under the Deputy Inspector of Schools, Marigaon are conveyed in the scale of pay and allowances as admissible under the Rules with retrospective effect from the date of issue of the said letter up to 27.2.2004 under non-plan for accommodation of six primary school teachers who were originally appointed under OBB Scheme with the condition that (i) the six posts will be personal to the incumbents and whenever they relinquished the post(s) in any form, the post(s) will stand abolished and (ii) wherein any vacancy arises, those incumbents will have to be adjusted on priority basis by abolishing the personal post. The said six posts out of 8153 post under OBB Scheme, occupied by those incumbents, were created vide Government letter No. PMA-158/94 dated 18.1.1995. The said six posts out of 8153 post under OBB Scheme, occupied by those incumbents, were created vide Government letter No. PMA-158/94 dated 18.1.1995. The said six posts have already been abolished and as such the allegation of the petitioners does not arise. According to Mr. Pathak the case of the aforesaid six persons are not similar to the present petitioners. 4. Moreover, it has submitted that this Court had an occasion to deal with a similar case in WP (C) No. 6034 of 2001 Smt. Deepa Deka v. State of Assam and Ors. along with other similar cases which were decided by judgment and order dated 14.8.2003, against which writ appeals were preferred in the Division Bench. The writ appeal No. 447 of 2004 (Babul Deka and Ors. v. State of Assam and Ors.) along with a set of appeals, was disposed of by a common judgment and order dated 25.4.2008 upholding the judgment of the Single Bench. The Division Bench held that the nature of employment being contractual, the teachers appointed as stipendiary cannot seek more than what they have been offered under the contract of employment and they have no legal enforceable right to claim the time scale of pay. 5. The writ petitioners have no dispute on the policy decision of the Government in regard to stipendiary appointment and regularisation after passing the basic training and also granting of time scale of pay to such teachers. The petitioners are however disputing the action of the State respondent authorities in granting time scale to other six persons who were also rendering service under the same circumstances and situation and yet, they were granted time scale of pay from the date of their joining depriving the present petitioners in a discriminatory manner. As regards the averments made in para 18 of the counter-affidavit filed by the respondent Director, I am afraid that the respondents have been able to explain the position satisfactorily. The matter, hence, needs further examination by the respondent authorities on the basis of records maintained by them and decide the entitlement of the petitioners for time scale of pay from the date of their joining. 6. The matter, hence, needs further examination by the respondent authorities on the basis of records maintained by them and decide the entitlement of the petitioners for time scale of pay from the date of their joining. 6. In view of the above facts and circumstances it would be appropriate to remand this matter to the Commissioner and Secretary, Education Department (Elementary), Dispur to verify and examine the petitioners' claim in the light of the judgment rendered by this Court in the aforesaid judgments and also policy decision of the Government. After such examination and verification, the respondent Commissioner Secretary aforesaid, shall pass speaking order and communicate the same to the petitioners. The entire process should be completed within a period of 4 (four) months from the date of receipt of certified copy of this order. With the above observations and directions this case is disposed of.