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Gauhati High Court · body

2015 DIGILAW 10 (GAU)

Gita Rani Kalita v. State of Assam

2015-01-06

T.VAIPHEI

body2015
JUDGMENT : 1. In this writ petition, the petitioner, who claims to be an Assistant Teacher of Pub-Kumarikata M.E. School, BAC area, is seeking the intervention of this court to release her regular salary against the regular post held by her, which was stopped w.e.f. October 2007. 2. The pleaded case of the petitioner is that when sufficient numbers of the posts of Assistant Teacher were lying vacant and were advertised in the BAC area, she applied for the same and was selected on merit by the Sub-Divisional Elementary Education Advisory Board, Nalbari BAC area. On the approval of the Sub-Divisional Advisory Board, Nalbari, the District Elementary Education Officer, Nalbari (respondent No. 3) issued the order dated 4.12.1999 appointing her to the post of Assistant Teacher in the pay scale of Rs. 3130-60-6600 per month plus other allowances as admissible under the Rules at Pub-Kumarikata M.E. School against the unutilized sanctioned post with effect from the date of her joining the post. The petitioner is stated to have joined the post on 6.12.1999 and was allowed to draw regular scale of pay whereafter on 3.1.2000 she was transferred from Pub-Kumarikata M.E. School to Hah Kata Balabori Milan M.E. School. As a regularly appointed Assistant Teacher against a sanctioned post, her name was included in the Teachers Booklet, which was prepared by the concerned Officer during 2004 vide Annexure D. After continuous regular service for about 5 years with regular pay scale, she was again transferred from Hah Kata Balabori Milan M.E. School to Brajalakshmi Bidyapith M.E. School, Nalbari in terms of the order dated 17.6.2005 issued by the respondent No. 3 and the petitioner joined the post on 18.6.2005. The respondent No. 2, however, by the letter dated 17.10.2006 addressed to the respondent No. 3 had forwarded a list of 2272 numbers of Assistant Teachers, who were allegedly illegally appointed with a direction that the salaries of those teachers belonging to the non-BTAD areas should be stopped with immediate effect. 3. The case of the petitioner is that she was initially appointed for the post of Assistant Teacher under the BAC area. Her name was wrongly included among the names of those teachers appointed under the non-BTAD area. 3. The case of the petitioner is that she was initially appointed for the post of Assistant Teacher under the BAC area. Her name was wrongly included among the names of those teachers appointed under the non-BTAD area. In compliance with the direction of the respondent No. 2, the respondent No. 3 stopped the payment of salary to the petitioner w.e.f. October 2007, and her name was subsequently dropped from the Teachers Booklet. The respondent No. 2 realizing his mistake subsequently passed another order dated 30.10.2006 keeping his earlier order dated 17-10- 2006 in abeyance regarding the stoppage of her salary. The respondent No. 2 also issued the order dated 14.11.2006 by clarifying that the order dated 17.10.2006 stopping of payment of salary should not be applicable to those teachers, who have been drawing their salary regularly prior to 17.10.2006, but there was no question of payment of salary to the list of those 2,272 numbers of such teachers, who have never drawn any salary earlier. 4. According to the petitioner, as she has been regularly drawing her salary since 1999 up to September 2007, the embargo placed by the respondent No. 2 against the payment of salary to Assistant Teachers who did not draw any regular salary after 17.10.2006 is, therefore, not applicable to her and that it was only due to misinterpretation of the said order that she has not been allowed to receive her regular salary and her name has been dropped from the booklet. The jurisdictional Deputy Inspector of Schools had once corrected and included the names of teachers including her name at serial No. 15 of the booklet for Brajlakshmi Bidyapith and had forwarded the same to the Treasury Officer, Nalbari on 17.11.2007 for taking necessary action on that behalf. But no action has been taken by the Treasury Officer, Nalbari till now. 5. The petitioner, thereafter, submitted her representation dated 25.3.2009 to the respondent No. 2 whereupon the respondent No. 2 had asked the District Elementary Education Officer to submit his report. The respondent No. 3 in compliance with the order of the respondent No. 2 submitted his report on 21.5.2009 wherein he favourably commented in favour of the petitioner. Ultimately, the respondent No. 2 issued the order dated 19.12.2009 directing the respondent No. 3 to take necessary action as per his earlier order dated 14.11.2006 for release of the salary to the petitioner. Ultimately, the respondent No. 2 issued the order dated 19.12.2009 directing the respondent No. 3 to take necessary action as per his earlier order dated 14.11.2006 for release of the salary to the petitioner. The Headmaster of the Brajalakshmi Bidyapith M.E. School has also requested the jurisdictional Deputy Inspector of Schools to release the regular salary of the petitioner stating that she has been transferred with her post and her name has been included in the Teachers' Booklet of 2004. 6. It is contended by the petitioner that she was appointed on regular basis against a validly sanctioned post and subjected her to frequent transfer as she is a permanent employee of the Department, and her P.F. account was also maintained in her name, she is entitled to receive her salary. According to the petitioner, it was only due to misinterpretation of the earlier order that her name has been dropped from the list of teachers booklet by the jurisdictional Deputy Inspector of Schools, which was followed by stoppage of her salary. The Treasury Officer ought to have released her salary without any delay. Moreover, before stoppage of her salary, she was never given any opportunity of hearing and, as such, there is violation of principles of natural justice. It was under the aforesaid circumstances that she filed this writ petition to seek the intervention of this court for redressal of her grievances. 7. The writ petition is opposed by the respondent-authorities by filing an affidavit-in-opposition through the respondent No. 2. The respondents deny that the petitioner was selected by the Sub-Divisional Level Selection Board of the then BAC area and that her name was included in the select list of that particular year of 1999. Though she produced her joining report at Pub-Kumarikata M.E. School on 16.12.1999, the Headmaster of the school stated that she never joined the school and was transferred to Hah Kata Balabori Milan M.E. School (BAC) area with the post, but without any approval from the higher authority. The transfer order was issued by the In-charge, DEEO, Nalbari on 3.1.2000 in violation of the extant Rules and norms. She was again transferred with her post to Brajalakshmi Vidyapith M.E. School, Nalbari on 17.6.2005 in the non-BTC area without any approval of the higher authority, and the same has been done by the then DEEO, Nalbari by flouting the existing Rules. She was again transferred with her post to Brajalakshmi Vidyapith M.E. School, Nalbari on 17.6.2005 in the non-BTC area without any approval of the higher authority, and the same has been done by the then DEEO, Nalbari by flouting the existing Rules. The answering respondents deny the statement of the petitioner that she had been rendering continuous regular service of 5 years by drawing regular pay scale: in fact, she has drawn her salaries only for 5 months w.e.f. January 2005 to June 2005 and again after her transfer to Brajalakshmi Vidyapith M.E. School she received her salary for 17 months w.e.f. July 2005 to July 2006 and June 2007 to September 2007 as per the salary statement issued by the Hah Kata Balabori Milan M.E. School and Brajlakshmi Vidyapith M.E. School. As she was originally against the sanctioned post in BAC area and was transferred with the post to the general area without the approval of the Government, the payment of her salary had to be suspended. In the similarly situated cases of candidates, who were initially appointed in BTC areas and later on transferred to non-BTAD areas with posts, such transfers were interfered with by this court by giving liberty to the State respondents as well as BTC to proceed against them if so desired and advised. No record is favourable to show that the petitioner ever submitted the letters dated 21.5.2009 and dated 9.7.2009 as stated by the petitioner. These are the main contentions of the petitioner. 8. In reply, the petitioner in her affidavit states that at the relevant point of time, the BTC area fell under the Nalbari District Level Selection Committee, and she was selected by the District Level Selection Committee and that her appointment was against a sanctioned post under the BAC area. The fact that she was always treated as a regular Assistant Teacher is demonstrated by the payment of annual increment to her and by allowing her to open a GPF account bearing No. PED- 278991 in her name. It is submitted by the petitioner that the answering respondent has specifically admitted that the letters dated 21.5.2009 and dated 9.7.2009 are official letters, which may be taken note of by this court for regularization of her service. It is submitted by the petitioner that the answering respondent has specifically admitted that the letters dated 21.5.2009 and dated 9.7.2009 are official letters, which may be taken note of by this court for regularization of her service. In the said letters, the payment of salary to her was stated to have been stopped due to non-inclusion of her name in the Teacher's Booklet prepared after 2007 although her name had been included in the booklet prepared in 2004: no allegation of illegal appointment was alleged by the answering respondent. Her name was not included during the enquiry when the booklet of 2007 was prepared and, as such, her name should have been included in the booklet after the enquiry. 9. From the documentary evidence produced by the petitioner, it is seen that she was, subject to termination without notice and without assigning any reason, appointed as Assistant Teacher for Pub-Kumarikata M.E. School in the pay scale of Rs. 9. From the documentary evidence produced by the petitioner, it is seen that she was, subject to termination without notice and without assigning any reason, appointed as Assistant Teacher for Pub-Kumarikata M.E. School in the pay scale of Rs. 3130-6600 plus other allowances against the unutilized sanctioned and permanently retained post and with the approval of the Sub-Divisional Advisory Board, Nalbari vide the order dated 4-12-1999 issued by the District Elementary Education Officer, Nalbari (‘DEEO’); that she was transferred with her post to Hahkata Balabari Milan M.E. School by the order dated 9.1.2000 issued by the DEEO; that in the list of Assistant Teachers prepared by the i/c Block Elementary Education Officer, Tamulpur as per Proforma-’B’ (Annexure D to the writ petition), her name found a place at serial No. 531 of Hahkata Balabari ME School; that by the order dated 17.6.2005 issued by the DEEO (Annexure-E), she was transferred to Brajalakhsmi Vidyapith M.E. School: that the Director of Elementary Education, Assam (respondent 2) vide his letter dated 17.10.2006 forwarded a list of 2272 “illegal teachers” to the DEEO instructing him to stop payment of the salaries of those teachers belonging to the Non-BTAD areas and the petitioner was one of those “illegal teachers” that the respondent No. 2, however, issued another order dated 30.10.2006 (Annexure-G) keeping the said order dated 17.10.2006 in abeyance pending report of the Scrutiny Committee with regard to appointment of teachers in Non-BTAD areas as per list of 2272 allegedly illegal teachers; that the respondent soon thereafter issued another order dated 14.10.2006 clarifying that his instruction for stoppage of payment of salary referred to in his earlier order dated 17.10.2006 did not apply to those teachers who had been drawing their salaries prior to 17.10.2006; that the Deputy Inspector of Schools, Nalbari thereafter informed the Treasury Officer, Nalbari explained that the names of the petitioner and another teacher of Brajalakshmi Vidyapith M.E. School had been dropped from the particulars of employees which was prepared during January 2007 due to inclusion of their names among those illegal teachers and that these two teachers were now included in the Teachers' Booklet (the name of the petitioner found a place at serial No. 15 of the said list) and were submitted to him for necessary action and that the DEEO in his letter dated 21.5.2009 informed the respondent No. 2 about the appointment of the petitioner as the Assistant Teacher of pub Kumarikata ME School against unutilized sanctioned and permanently retained post and of her subsequent transfer to other schools, but did not make any reference to her illegal appointment, which was reiterated by him in his letter dated 9.7.2009 addressed to the respondent No. 2. At this stage, it may be relevant to reproduce below the contents of the letter dated 19.12.2009: “GOVERNMENT OF ASSAM OFFICE OF THE DIRECTOR OF ELEMENTARY EDUCATION, ASSAM, KAHALIPARA, GUWAHATI-19 No. EAA/53/2008/199Dated Kahilipara, the 19th December, 2009 To The District Elementary Education Officer, Nalbari. Sub: Release of salary of Smt. Gita Rani Kalita, A.T. Brajalakshmi Vidyapith ME School. Ref: Your letter No. 5208 dated 9.7.2009 Sir, With reference to the subject cited above, I am to request you to take steps as per order of the Directorate vide Memo No. ECA/46/2006/492 dated 14.11.2006 (copy enclosed) in respect of Smt. Gita Rani Kalita, A.T. Brajalakshmi Vidyapith ME School under your jurisdiction. Yours faithfully, Sd/- Director, Elementary Education, Assam, Kahilipara, Guwahati.” 10. Even a cursory look at the contents of the various annexures referred to and/or reproduced unmistakably raises presumption, at least, rebuttable presumption, that no categorical statement is ever made by the State-respondents either in their counter-affidavit or otherwise the illegality in the appointment of the petitioner-against the post of Assistant Teacher. The petitioner, by producing a number of documentary evidence, the genuineness whereof has never been impeached by the respondents, is able to create high degree of probability that her appointment as an Assistant Teacher is legal and not illegal and that she was appointed against sanctioned and permanently retained post with regular pay scale, the onus to prove that her appointment is illegal and has never been paid regular salary by virtue of such appointment must now necessarily shift to them. This conclusion is fortified by the fact that the respondent No. 2 in his letter dated 19.12.2009 had asked the DEEO to take steps as per the order of the Directorate dated 14.11.2006, which clarified that the keeping in abeyance of the salary stoppage did not stop payment of the salaries of those teachers who had been drawing their salaries prior to 17.10.2006. Once it is reasonably established, as is the case here, that there is no illegality in the appointment of the petitioner as the Assistant Teacher, it is the obligation of the respondent-authorities to pay her salary regularly in accordance with the pay scale admissible to her. Once it is reasonably established, as is the case here, that there is no illegality in the appointment of the petitioner as the Assistant Teacher, it is the obligation of the respondent-authorities to pay her salary regularly in accordance with the pay scale admissible to her. The failure or refusal of the respondent-authorities to pay the salary of the petitioner cannot be used by them later on to question the genuineness of her appointment on the very ground that she was paid her salaries for 17 months only: the respondent-authorities cannot take advantage of their own wrongdoing. Notwithstanding the stance taken by the respondents that her original post was sanctioned in BAC area and was subsequently transferred to non-BAC areas without the approval of the Government, it must be noted that they never terminated the service of the petitioner or formally repudiate her appointment. If her transfer to non-BAC area was done without their approval, they could have repatriated her to BAC area, but they did not do so. Under the circumstances, the respondent-authorities have no reasonable cause for denying regular salary to the petitioner with effect from October 2007. 11. For the afore-mentioned reasons, this writ petition is allowed. The respondent-authorities are, therefore, directed to pay the current salary of the petitioner in the pay scale of Rs. 3,130-6,600 as per the revised pay with other admissible allowances within two months from the date of receipt of a copy of this judgment. It is further ordered that the respondent-authorities do pay all her salary arrears as revised from time-to-time with other admissible allowances with effect from October 2007 within six months from the date of receipt of this judgment. No costs.