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2014 DIGILAW 540 (GAU)

ABDUL HALIM LASKAR v. STATE OF ASSAM

2014-05-20

A.M.SAPRE, UJJAL BHUYAN

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Judgment A.M. Sapre, J. The decision rendered in this appeal i.e. WA 211/2013 shall also govern the disposal of other connected appeals being WA Nos. 380, 381, 382,179 & 386 of 2013 because firstly: all these appeals arise out of one controversy, though decided by two separate orders by the learned Single Judge and secondly all have a bearing over each other. This is an appeal filed by the State (respondent in W.P. No 2346/2008 and connected writ petition being WP(C) 7492/2005) under Rule 2(3) of Chapter V-A of the Gauhati High Court Rules against the order dated 08.05.2013 passed by the Single Judge in WP(C) No.2346/2008 and connected writ petition being WP(C) No.7492/2005. By impugned order, the learned Single Judge allowed the writ petition of respondent nos. 1 to 13 herein and in consequence, quashed the regularization orders of respondent nos. 8 to 132 of the said writ petition on the post of teachers and quashed the order dated 5.2.2005 of State, by which their appointments/adjustments of teachers (respondents nos. 16 to 138) in connected writ petition i.e. WP(C) 7492/2005 were made by DEE, Assam. This appeal as also the other connected appeals are therefore filed by the respondents of the said writ petitions i.e. State and affected teachers whose regularization and appointment orders in services have been quashed. So far as other connected appeals are concerned, they arise out of the separate order passed by the learned Single Judge on the same day disposing of their writ petitions in the light of main order impugned in WA No. 211 of 2013 and at the same issuing directions to State to terminate the services of the writ petitioners. Facts necessary for the disposal of these appeals need mention in brief. Three set of writ petitioners being WP(C) No 2346 of 2008, WP(C) No 7492 of 2005 and WP(C) No 2393 of 2012 were filed. So far as WP(C) No. 2346 of 2008 was concerned, it was filed by 13 writ petitioners jointly against the State (Education Department) and 125 individuals, who, according to the writ petitioners, were working on the post of teachers in LP/ME Schools in District Bongaigaon. In this writ petition, challenge was to one circular dated 10.8.2000 issued by the State (Commissioner/Secretary, Education Department) by which it was decided by the State to regularize the services of several teachers. In this writ petition, challenge was to one circular dated 10.8.2000 issued by the State (Commissioner/Secretary, Education Department) by which it was decided by the State to regularize the services of several teachers. The challenge was also to two orders dated 30.10.2006 and 22.4.2008 of State (Education Department), whereby the decision was taken to regularize as many as 125 teachers working in schools at Bongaigaon District. So far as WP(C) No. 7492/2005 is concerned, it was filed by 3 writ petitioners. In this writ petition, the challenge was to regularization of 123 teachers who were posted in schools in Karimganj District. So far as WP(C) No. 2393 of 2012 is concerned, it was filed by 80 teachers working in schools in Cachar District, wherein they (80 teachers) claimed the relief against the State for payment of arrears of their salary, which, according to them, was not being paid to them since 20.8.2005. It is these issues, which were decided by the writ court by passing two different orders on the same date. So far as WP(C) Nos. 2346/2008 & WP(C)No.7492/2005 are concerned, both were decided by common order by passing following consequential order. “29. The appointments in Bongaigaon and Karimganj districts in these 2 proceedings were made by ignoring the Statutory Rules. The decision of the Government to regularize the service of the irregularly appointed teachers, was taken advantage of by unscrupulous elements to regularize the service of those who never participated in selection process. Moreover these beneficiaries were not appointed through any competent appointment order. Therefore, the private respondents can’t be put in the category of irregular appointees and it has to be declared that their appointments are absolutely illegal. In such circumstances, the State can’t invoke the powers under Article 162 of the Constitution to regularize the service of people who were appointed through fraudulent process. Here appointment orders were fabricated and fake appointment lists were generated and there was no declaration by the Manoharan Committee that the private respondents are in the category of irregular appointees. In such backdrop having regard to the ratio of the Supreme Court decisions referred to above, I feel that the petitioners have made out a case for judicial intervention. Consequently the regularization of the respondent Nos.8 -132 in the WP(C) No.2346/2008 is held to be unsustainable and it is declared accordingly by quashing the impugned orders. In such backdrop having regard to the ratio of the Supreme Court decisions referred to above, I feel that the petitioners have made out a case for judicial intervention. Consequently the regularization of the respondent Nos.8 -132 in the WP(C) No.2346/2008 is held to be unsustainable and it is declared accordingly by quashing the impugned orders. On the same reasoning, the adjustment/appointment in Karimganj district of respondent Nos.16-138 in the WP(C) 7492/2005 are held to be illegal and consequently the impugned order dated 5.2.2005 (Annexure-22) issued by the DEE, Assam is quashed. In view of this conclusion the State is directed to ensure that their services are discontinued forthwith.” So far as WP(C) No. 2393/2012 is concerned, it was disposed of by declining to grant the relief to the writ petitioners in relation to their arrears of salary, but the direction was given in the order to the State to discontinue the services of the writ petitioners. This is what was directed in the concluding paragraph. “In view of the above decision and noticing that petitioners are beneficiaries of an illegal process de hors the Rules, they are not entitled to any equitable relief. Following the decision in Abdul Kayum (supra) the respondents are directed to ensure that the petitioners’ service (if continuing), ought to be discontinued forthwith.” These appeals arise out of the aforementioned two orders and filed by writ petitioners of WP(C) No.4843/2010 & WP(C) No. 2393/2012 and respondents of WP(C) No.2346/2008 & WP(C) 7492/2005 and WP(C) No. 1883/2005. Heard Mr. AK Bhattacharyya, learned senior counsel assisted by Mr. AK Choudhury, Mr. NH Barbhuiya, Mr. A.Y. Choudhury, Mr. P Mahanta and Mr. G.Uddin, learned counsel appearing for the appellants and Mr. PN Goswami, learned Standing Counsel, Education for the State-respondents. Having heard the learned counsel for the parties and on perusal of the record of the case, we have formed an opinion to allow these appeals, and while setting aside the impugned orders remand all the writ petitions to writ court for their disposal in accordance with law. The need to remand the writ petitions has occasioned because firstly: though all the writ petitions were decided on one day by the writ court, but two separate orders were passed – one purporting it to be a main case and second as consequential to main case, but without giving reference to each other. The need to remand the writ petitions has occasioned because firstly: though all the writ petitions were decided on one day by the writ court, but two separate orders were passed – one purporting it to be a main case and second as consequential to main case, but without giving reference to each other. In our view, if it was the case of parties that all the writ petitions had some kind of similarity inter see on facts, all the writ petitions should have been clubbed together for their disposal. It did not seem to have been done. Secondly: in one writ petition, relief claimed was declined, but at the same time, a mandamus was issued directing the State to terminate the writ petitioners’ services. In our view, a mandamus against the writ petitioners could not have been issued because that was not the relief claimed by the writ petitioners and perhaps, it was not possible for them to have claimed a relief of such nature against them in their own writ petition. Their writ petition was for grant of arrears of unpaid salary and hence the writ court could either grant this relief or decline to grant as the case may be. Thirdly: all the parties to these writ petitions and especially the private respondents in 2 writ petitions were not given full opportunity to contest the case in as much as they could not file their return in opposition and suffered adverse order. It was, therefore, a case of denial of principle of natural justice to them, because some of them did not get full opportunity to contest before they suffered impugned adverse order and lastly: the parties to WP(C) Nos.2346/2008 & 7492/2005 were not parties to main writ petition WP(C)No.4843/2010 and vice versa and yet suffered the adverse order due to main order passed in WP(C)Nos. 7492/2005 and 2393/2012. This also to some extent resulted in causing prejudice to the parties while prosecuting their respective writ petitions. It is due to these reasons; we have formed an opinion to remand the cases to the writ court for fresh hearing on merits by affording opportunity to all parties to first complete the pleadings in support of their respective stand. Once this is complete, then the writ petitions be heard analogously and common order as far as possible and if considered legal be passed. Once this is complete, then the writ petitions be heard analogously and common order as far as possible and if considered legal be passed. Learned counsel for the parties however prayed that this court should decide the matter on merits instead of remanding the case to the writ court. We are afraid, we can accept this submission. In our view, it may not be possible to decide the matter on merits in the light of reasons given supra except the remand which is inevitable in this case. In the light of foregoing discussion, the appeals succeed and are allowed in part. Impugned orders are set aside. All the writ petitions out of which these appeals arise are restored to their files. They be now listed before the writ court for their de novo hearing on merits as per roster. Since the matter pertains to regularization and alleged non-payment of arrears of salary etc. involving several teachers, we are inclined to accept the prayer made by the learned counsel for early disposal of these matters by the writ court. We therefore request the writ court to decide the writ petitions preferably within six months. No cost.