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2012 DIGILAW 647 (GAU)

Mizanur Rahman v. State of Assam

2012-06-01

ANIMA HAZARIKA

body2012
JUDGMENT Anima Hazarika, J. 1. Review of the judgment and order dated 08.05.2007 passed in WP(C) No. 7872/2003 as well as judgment and order dated 13.08.2009 passed in WP(C) No. 4585/2008 by the learned Single Judge have been sought for in these review petitions. Vide judgment and order dated 8.5.2007 passed in WP(C) No. 7872/2003 this court while allowing the writ petition, at paragraph 7 i.e. at the concluding paragraph of the judgment has made it clear that the appointment of the petitioner in the post of lecturer in Economics in the Kharupetia College be treated as approved with effect from 25.03.1998, however, the petitioner would get the necessary financial benefit only from the date of his approval and vide order dated 13.08.2009 passed in WP(C) No. 4585/2008, the court while clarifying the above order has held that the approval of the petitioner for the post was actually granted on 06.01.2003 and accordingly, the petitioner would be entitled to get his arrear salary from the said date i.e. 06.01.2003 and not from the date as mentioned in the impugned order dated 10.10.2008 whereby and whereunder the Director of Higher Education, Assam allowed the petitioner to draw arrear salary with effect from 12.06.2007 i.e. from the date of the order dated 12.06.2007 and not from 25.03.1998. 2. Conjoint reading of the above two orders i.e. the order dated 08.05.2007 and 13.08.2009 would show that the order dated 13.08.2009 is a fall out of the observations made and directions given vide judgment and order dated 08.05.2007. Hence, both the review petitions are heard analogously and being disposed of by this common judgment and order. 3. Due to denial of benefits from the date of taking over the college under deficit grants-in-aid by the respondents on 25.03.1998, the petitioner had approached the court to ameliorate injustice caused to him in preference to others. The petitioner had approached this court on earlier occasion by filing different writ petitions on being aggrieved by the actions of the college authority. However, the facts of the earlier writ petitions and the order passed thereon, if narrated, herein, it would burden the disposal of the review petition and hence this court would choose to refer the orders passed in the writ petition whereby review have been sought for. 4. However, the facts of the earlier writ petitions and the order passed thereon, if narrated, herein, it would burden the disposal of the review petition and hence this court would choose to refer the orders passed in the writ petition whereby review have been sought for. 4. Admittedly the petitioner was appointed as a lecturer in Kharupetia College and he joined in the department of Economics on 15.09.1995. At that time it was a venture College and it was brought under the deficit system of grants-in-aid with effect from 25.03.1998. The concerned authority sanctioned three posts of lecturer in the Economics Department. However, the Governing Body of the college recommended names of two persons who were senior to the petitioner, leaving 3rd post vacant. The name of the petitioner was not forwarded by the Governing Body of the College though he was duly qualified under the UGC norms having secured more than 64 % marks which culminated in filing the writ petition being WP(C) No. 5000/1999 whereby the court vide order dated 05.03.2002 disposed of the writ petition directing the Governing Body of the college to recommend the name of the suitable candidates considering the case of the petitioner for the 3rd post of Economics in the college to the government. However, the governing body of the college suspended the petitioner on 03.03.2000 the petitioner for alleged unauthorized absence on 16.02.2000 and the said order of suspension was put under challenge before this court being WP(C) No. 1402/2000 and the Court on 05.03.2002 quashed the suspension order giving liberty to proceed against the petitioner departmentally. However the Governing Body of the College chose not to proceed against him. 5. Thereafter, the Governing Body of the college in pursuance of the order of the court in WP(C) No. 5000/1999 adopted the following resolution on 05.10.2002 in the following terms:- Resolution 9; The meeting has thoroughly discussed the judgment and order dated 5.3.2002 passed in W.P.(C) No. 5000/99 and W.P.(C) No. 369/2000 which was passed by the Hon'ble High Court in the aforesaid writ petitions filed by Md. Mizanur Rahman, Lecturer of Economics of the college. The meeting unanimously decided to promote Md. Mizanur Rahman to the vacant 3rd post from his present 4th post holding by him. The above 3rd post of Lecturer in the Economics Department is lying vacant as Md. Mizanur Rahman, Lecturer of Economics of the college. The meeting unanimously decided to promote Md. Mizanur Rahman to the vacant 3rd post from his present 4th post holding by him. The above 3rd post of Lecturer in the Economics Department is lying vacant as Md. Abdul Matlib who has been working as Lecturer against the 3rd post in Economics Department in the Kharupetia College was appointed as the permanent lecturer in the Kalaguru Bishnu Rabha Junior College, Orang, in Economics Department. Be it mentioned that as the post of lecturer in Economics of the College was lying sub-judice in the Hon'ble Gauhati High Court, the concern authority of the Department could not grant approval to the 3rd post of lecturer in Economics Department. It is therefore, the meeting has resolved to request the D.P.L. Higher Education to accord approval to Md. Mizanur Rahman w.e.f. 25.3.1998 who has been presently working against the 3rd post of Lecturer in Economics. The Principal-in-Charge-cum-Secretary of the College is hereby authorized to take necessary action in this regards. Sd/- illegible Principal i/c cum-Secretary Kharupetia College. Sd/- Syeda Anwara Timur President, Kharupetia College, Governing Body 6. Thereafter in terms of the aforesaid resolution of the Governing Body of the College held on 04.07.2002, the Director Higher Education provisionally approved the appointment of the petitioner vide order dated 26.11.2002 as Lecturer of Economics in the College with effect from 05.03.2002 and the Director of Higher Education vide order under Memo dated 06.01.2003 finally approved the resolution dated 04.07.2002 approving the appointment of the petitioner as Lecturer of Economics in the College with effect from 27.11.2002. 7. The petitioner put the said order of finally approving the appointment with effect from 27.11.2002 under challenge before this court being illegal and alleging hostile discrimination in the matter of approval of appointment in case of the petitioner vis-a-vis the approval of the appointment of other Lecturers of the college inasmuch as, in case of the other lecturers the approval was accorded with effect from 25.03.1998 but in case of the petitioner approval was accorded with effect from 27.11.2002 being W.P.(C) No. 7872/2003. The said writ petition was finally disposed of on 08.05.2007. 8. The said writ petition was finally disposed of on 08.05.2007. 8. The court while disposing the writ petition has noticed the discrimination writ large in case of approving the appointment of the petitioner vis-a-vis one Zakir Hussain and Imran Hussain whose appointment was approved in the same college as per resolution of the Governing Body taken later on as approved with effect from 25.03.1998. Similar is the case of one S.M. Hamidur Rahman who was appointed as Principal of the College w.e.f. 13.05.2003 and was given the benefit of approval w.e.f. 25.03.1998 i.e. from the date of granting deficit status to the college. The court has further noticed that the official respondents have not provided any plausible reason as to why and how on the face of the similarly situated teachers having been appointed from 25.03.1998 the benefit of the same could have been denied to the petitioner as disclosed in the affidavit-in-opposition. The court has further observed that no justifiable ground could be discerned from the materials available on record as to how and why the approval of the petitioner to the said post was not recommended by the Governing Body of the college while they forwarded particulars of teachers at the time of bringing the college under the deficit scheme. But ultimately the Governing Body of the college took the resolution being resolution No. 9 approving the appointment of the petitioner w.e.f. 25.03.1998 which was forwarded to the official respondents for necessary approval. 9. The court, therefore, has allowed the writ petition holding the following in the concluding paragraph of the judgment which is quoted hereunder:- 7. In view of the aforesaid situation and taking note of the Rules and guidelines governing such matters, it cannot be said that the authority was wholly justified in approving the appointment of the petitioner w.e.f. 27.11.2002 and in fact the authority should have approved appointment of the petitioner w.e.f. 25.03.98 as approved by the Governing Body like the other teachers of the College. Accordingly in view of above discussions, this writ petition stands allowed and appointment of the petitioner in the post of lecturer in Economics in Kharupetia College be treated as approved w.e.f. 25.3.98. However the petitioner would get the necessary financial benefit only from the date of his approval. 10. Accordingly in view of above discussions, this writ petition stands allowed and appointment of the petitioner in the post of lecturer in Economics in Kharupetia College be treated as approved w.e.f. 25.3.98. However the petitioner would get the necessary financial benefit only from the date of his approval. 10. After the disposal of the writ petition being No. 7872 of 2003 on 08.05.2007, the Director of Higher Education vide order dated 10.10.2008 allowed the petitioner to draw arrear salary w.e.f. 12.06.2007 i.e. from the date of the order dated 12.06.2007 and not from 25.03.1998. The aforesaid order dated 10.10.2008 was put under challenge before the court being WP(C) No. 4585 of 2008. The said writ petition came up for consideration on 13.08.2009 whereby the court noticed that the order dated 08.05.2007 passed in WP(C) No. 7872/2003 wherein it was directed that the petitioner would get the financial benefit only from the date of approval and the said order has attained its finality. However the court granted the relief of arrear salary from the date of approval i.e. 6.1.2003 and not from the date as mentioned in the impugned order dated 10.10.2008. 11. The order dated 13.08.2009 passed in WP(C) No. 4585/2008 by the learned Single Judge was taken on the file of the Division Bench being Writ Appeal No. 215 of 2010 which came up for consideration on 11.01.2011 whereby the appellate court noticed that there are apparent contradiction between what had been effectively concluded and the ultimate directions passed by the judgment and order dated 08.05.2007 in WP(C) No. 7872/2003. In such a situation the learned counsel appearing for the appellant seeks to withdraw the writ appeal with liberty to file with an application for review of the judgment and order dated 08.05.2007 or an appeal against the said order and the appellant sought the liberty to challenge the impugned order dated 13.08.2009 passed in WP(C) No. 4585/2008 in future by way of appeal if it so becomes necessary and accordingly the writ appeal was withdrawn and review petition is filed against the order dated 13.08.2009 passed in WP(C) No. 4585/2008 seeking entitlement of arrear salary from 25.03.1998 and not from 06.01.2003. 12. Heard Mr. M.H. Ahmed, learned counsel appearing for the petitioner. Also heard Ms. P. Chakraborty, learned Standing Counsel, Education Department, appearing for respondent Nos. 1 and 2 and Mr. 12. Heard Mr. M.H. Ahmed, learned counsel appearing for the petitioner. Also heard Ms. P. Chakraborty, learned Standing Counsel, Education Department, appearing for respondent Nos. 1 and 2 and Mr. B. Gogoi, learned Standing Counsel appearing for respondent No. 3. 13. Opening the argument for the review petitioner Mr. Ahmed, learned counsel would contend that at paragraph 7 of the judgment passed in WP(C) No. 7872/2003 the learned Single Judge has held that the authority should have approved appointment of the petitioner with effect from 25.03.1998 and in fact the authority should have approved appointment of the petitioner w.e.f. 25.03.1998 as approved by the Governing Body like the other teachers of the College and allowed the writ petition holding that the appointment of the petitioner in the post of Lecturer in Economics in Kharupetia College be treated as approved w.e.f. 25.03.1998, but, however, observed that the petitioner would get the necessary financial benefit only from the date of his approval which amounts to mistake on the part of the learned Single Judge requiring interference under review jurisdiction. 14. Mr. Ahmed, learned counsel would contend that the Division Bench has rightly observed that the impugned order dated 13.08.2009 was a fallout of the observations made and directions given by the judgment and order dated 08.05.2007 passed in W.P.(C) No. 7872/2003 and there are apparent contradiction between what had been effectively concluded and the ultimate directions passed by the judgment and order dated 08.05.2007 and there being apparent contradiction in the order of the learned Single Judge which amounts to an error apparent on the face of the record, thus requiring interference under Chapter X of the High Court Rules. 15. Mr. Ahmed would further contend that the lecturers who were appointed subsequently to the petitioner were given the benefits under the deficit grants-in-aid system with effect from 25.03.1998 but the same benefit has been denied though his appointment stands approved as held by the court with effect from 25.03.1998 which occurs on account of some mistake committed by the learned Single Judge requiring review of the orders dated 08.05.2007 passed in WP(C) No. 7872/2003 as well as 13.08.2009 passed in W.P.(C) No. 4585/2008 directing to release the arrear salary to the petitioner w.e.f. 25.03.1998 as had been done to the similarly situated lecturers of the College. 16. Per contra, Ms. 16. Per contra, Ms. Chakraborty, learned Standing Counsel, Education Department, Government of Assam appearing on behalf of respondent Nos. 1 and 2 would contend that under the garb of review petition the petitioner has sought modification of the order dated 08.05.2007 passed in W.P.(C) No. 7872/2003 whereby the court directed that the petitioner would get the arrear salary from the date of approval of his appointment i.e. from 06.01.2003 which cannot be termed as error apparent on the face of the record and hence the review is not maintainable. 17. Ms. Chakraborty would further contend that there is inordinate delay in preferring the review petition since 08.05.2007 and the cause of delay remains unexplained more so, when the order dated 08.05.2007 was not challenged earlier before the court and it has attained its finality and subsequently the order dated 10.10.2008 passed by the higher authority was under challenge and this Court clarified that the petitioner would be entitled to get his arrear salary from 06.01.2003 and thus the case would not come under any of the grounds mentioned under review jurisdiction and hence the same is liable to be dismissed. 18. Considered the submissions made by the contesting parties. Perused the orders passed by the Court in W.P.(C) No. 7872/2003, W.P.(C) No. 4585/2008 and W.A. No. 215/2010 along with the pleadings of the parties. The court in W.P.(C) No. 7872/2003 has held that the appointment of the petitioner in the post of lecturer in Economics in Kharupetia College be treated as approved w.e.f. 25.03.1998, however the petitioner would get necessary financial benefit only from the date of his approval. 19. The court in W.P.(C) No. 7872/2003 has held that the appointment of the petitioner in the post of lecturer in Economics in Kharupetia College be treated as approved w.e.f. 25.03.1998, however the petitioner would get necessary financial benefit only from the date of his approval. 19. Thereafter the official respondents allowed the petitioner to draw arrear salary w.e.f. 12.06.2007 vide order dated 10.10.2008 which was put under challenge being W.P.(C) No. 4585/2008 whereby the court has held that the petitioner would be entitled to get his arrear salary from the date i.e. 06.01.2003 and not from the date as mentioned in the impugned order dated 10.10.2008 which order, however, was taken on the file of the Division Bench being W.A. No. 215/2010 wherein the Division bench has observed that the impugned order dated 13.08.2009 was a fallout of the observations made and directions given in the judgment and order dated 08.05.2007 passed in W.P.(C) No. 7872/2003 and observed that there is apparent contradiction between what have been effectively concluded and the ultimate directions passed by the judgment and order dated 08.05.2007 whereby the writ appeal was withdrawn and hence the review of the orders dated 08.05.2007 passed in WP(C) No. 7872/2003 and 13.08.2009 passed in W.P.(C) No. 4585/2008. 20. Admittedly vide order dated 8.5.2007 passed in W.P.(C) No. 7872/2003 the court allowed the writ petition holding that the appointment of the petitioner in the post of lecturer in Economics in Kharupetia College be treated as approved w.e.f. 25.03.1998 but allowed the financial benefit only from the date of his approval. While disposing the writ petition at paragraph 6 of the judgment the court has observed that one Zakir Hussain and Imran Hussain whose appointment was approved in the same college as per resolution of the Governing Body, taken later on as approved w.e.f. 25.03.1998. While disposing the writ petition at paragraph 6 of the judgment the court has observed that one Zakir Hussain and Imran Hussain whose appointment was approved in the same college as per resolution of the Governing Body, taken later on as approved w.e.f. 25.03.1998. The court has further observed that one S.M. Hamidur Rahman who was appointed as Principal of the college w.e.f. 13.05.2003 was given the benefit of approval w.e.f. 25.03.1998 i.e. from the date of granting deficit status to the college and no justifiable ground could be discerned from the materials available before the court as to how and why the approval of the petitioner to the said post was not recommended by the Governing Body, while they forwarded particulars of teachers at the time of brining the college under the deficit scheme, in spite of such a resolution having been taken by the Governing Body. However, observing as thus, while allowing the writ petition, the court held that appointment of the petitioner in the post of lecturer in Economics in Kharupetia College be treated as approved w.e.f. 25.03.1998, "however, the petitioner would get the necessary financial benefit only from the date of his approval" and the said order was again clarified vide order dated 13.08.2009 passed in WP(C) No. 4585/2008 to the effect that the petitioner would get his arrear salary from 07.01.2003 i.e. from the date of approval, which is error apparent on the face of the record. 21. On being challenged the order dated 13.08.2009, the Division bench in WA No. 215/2010 has observed that the impugned order dated 13.08.2009 was a fallout of the observations made vide order dated 08.05.2007 passed in W.P.(C) No. 7872/2003 which is an apparent contradiction between what had been effectively concluded and the ultimate direction passed by the judgment and order dated 08.05.2007 meaning thereby there is an error on account of mistake committed by the learned Single Judge and it requires interference under review jurisdiction. 22. The question of inordinate and unexplained delay as alleged, loses its significance in the matter of arrear salary denied to the petitioner from 25.03.1998 when all other similarly situated teachers were given the benefit from 25.03.1998 because the right to receive the arrear salary is a persisting right and give rise to a continuous cause of action. 22. The question of inordinate and unexplained delay as alleged, loses its significance in the matter of arrear salary denied to the petitioner from 25.03.1998 when all other similarly situated teachers were given the benefit from 25.03.1998 because the right to receive the arrear salary is a persisting right and give rise to a continuous cause of action. In the result the review petitions are accepted holding that the petitioner is entitled to get his salary from the date of according approval to his appointment as held by the court vide order dated 08.05.2007 passed in W.P.(C) No. 7872/2003 directing that the appointment of the petitioner in the post of Lecturer in Economics in Kharupetia College be treated as approved w.e.f. 25.03.1998 and accordingly the official respondents are directed to release his arrear salary from 25.03.1998 within four (4) months from today. No costs.