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2015 DIGILAW 1196 (GAU)

Fakir Uddin Ahmed v. State of Assam

2015-09-17

T.VAIPHEI

body2015
ORDER : 1. This writ petition is filed by eight petitioners claiming salaries from the respective dates of regularization of their services in the post of Assistant Teachers of M.E. Madrassas. According to the petitioners, they were initially appointed against the said posts on different dates between 1995 and 1999 in the various Madrassas of Nagaon District under the Operation Black Board (OBB) Scheme, and their services came to be regularized in the years 1998 and 1999. However, they have not been paid their salaries till now. It is surprising to note that though the petitioners claim that their services were regularized, they have not received their salaries till now due to non-retention of posts. The respondent No. 2 in his letter dated 30-8-2003 had forwarded the particulars of the teachers appointed under the OBB Scheme informing the respondent No. 1 that these teachers could not be paid their salaries due to non-retention of their posts. The names of the petitioners were included in that list. The respondent No. 2 by his letter dated 14-11-2005 reminded the respondent No. 1 about the non-receipt of the sanction order for retention of 188 posts including 151 posts in the district Nagaon, which included the names of the petitioners herein, but to no effect. Some twenty Assistant Teachers in the district of Nagaon, allegedly similarly situated with the petitioners, approached this Court in WP (C) No. 2741 of 2008 claiming payment of salary arrears and their regular monthly salaries. This Court by the judgment dated 31-3-2009 allowed the writ petition by holding that the petitioners therein were entitled to their pay and other service entitlements as due to them in law. It may be noted that one Mazibur Rahman, another teacher of the same district, filed WP (C) No. 1853 of 2002 before this Court claiming similar reliefs. This Court by the order dated 20-8-2009 disposed of the writ petition in terms of the said judgment dated 31-3-2009. According to the petitioners, the respondent authorities thereafter complied with the said order and granted the salary arrears to the said petitioner. As they are also similarly situated, submit the petitioners, they are equally entitled to similar treatment. 2. After hearing Mr. D.P. Chaliha, the learned senior counsel for the petitioners, and Mr. According to the petitioners, the respondent authorities thereafter complied with the said order and granted the salary arrears to the said petitioner. As they are also similarly situated, submit the petitioners, they are equally entitled to similar treatment. 2. After hearing Mr. D.P. Chaliha, the learned senior counsel for the petitioners, and Mr. N. Sarma, the learned standing counsel for the Education (Elementary) Department, Assam, at some length, I am of the view that the petitioners have come too late in the day to seek the reliefs claimed herein. The Apex Court has time and again frowned upon those litigants who sat on the fence and decided to approach Courts only after some alert and vigilant litigants obtained reliefs. In this context, if any authority needs to be cited, I may cite the case of State of U.P. vs. Arvind Kumar Srivastava, (2015) 1 SCC 347 , the relevant portions whereof are at paras 22 and 23, which are as follows: “22. The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under. 22.1. The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently. 22.2. However, this principle is subject to well-recognised exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim. 22.3. However, this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject-matter of the decision touches upon the policy matters, like scheme of regularisation and the like K.C. Sharma vs. Union of India, (1997) 6 SCC 721 : 1998 SCC (L&S) 226. 23. Viewed from this angle, in the present case, we find that the selection process took place in the year 1986. Appointment orders were issued in the year 1987, but were also cancelled vide orders dated 22-6-1987. The respondents before us did not challenge these cancellation orders till the year 1996 i.e. for a period of 9 years. It means that they had accepted the cancellation of their appointments. They woke up in the year 1996 only after finding that some other persons whose appointment orders were also cancelled got the relief. By that time, nine years had passed. The earlier judgment had granted the relief to the parties before the Court. It would also be pertinent to highlight that these respondents have not joined service nor working like the employees who succeeded in earlier case before the Tribunal. As of today, 27 years have passed after the issuance of cancellation orders. Therefore, not only was there unexplained delay and laches in filing the claim petition after a period of 9 years, it would be totally unjust to direct the appellants to give them appointment as of today i.e. after a period of 27 years when most of these respondents would be almost 50 years of age or above.” 3. In the instant case also, the petitioners claimed to have their services regularized in the year 1998 or 1999 (they claim that they had been appointed in the years between 1995 and 1999), yet they admitted that there were no permanent retentions of their posts and they were never paid their salaries. If their services were actually regularized, where is the further need to retain their posts? If their services were actually regularized, where is the further need to retain their posts? It is also not clear as to whether they ever made any representation to the respondent authorities. They were apparently keeping silent and had decided to acquiesce in the non-regularization their services till the said Mazibur Rahman obtained a favourable order from this Court in WP (C) No. 1853 of 2002. As of today, some 20 years or so have passed since they were denied of their salaries. Some six more years have also gone by after the said Mazibur Rahman obtained a favourable order from this Court after filing the writ petition in 2002. How could the petitioners, who are said to have been denied of their salaries since 1998 or 1999, in their right mind, remain silent for fifteen or sixteen years without taking recourse to legal remedies? The petitioners are not uneducated persons, but are teachers. Whether they have ever been given the appointments for the posts of Assistant Teachers or whether their services have actually been regularized are the questions confronting this Court. In my judgment, the very conduct of the petitioners in keeping silent for all these years inevitably warrants the conclusion that their cases are not exactly genuine. Though Arvind Kumar Srivastava (supra) was rendered in the context of mass termination of appointments and not about non-payment of salaries, the underlying principle that the cases of litigants, who were not vigilant but were content to be dormant and chose to sit on the fence till somebody else case came to be decided, cannot be considered, will be applicable to the instant case. In this context, I am also tempted to quote hereunder the decision of the Apex Court in Bhoop Singh vs. Union of India, (1992) 3 SCC 136 , the relevant paras whereof read thus: “7. It is expected of a Government servant who has a legitimate claim to approach the Court for the relief he seeks within a reasonable period, assuming no fixed period of limitation applies. This is necessary to avoid dislocating the administrative set-up after it has been functioning on a certain basis for years. It is expected of a Government servant who has a legitimate claim to approach the Court for the relief he seeks within a reasonable period, assuming no fixed period of limitation applies. This is necessary to avoid dislocating the administrative set-up after it has been functioning on a certain basis for years. During the interregnum those who have been working gain more experience and acquire rights which cannot be defeated casually by lateral entry of a person at a higher point without the benefit of actual experience during the period of his absence when he chose to remain silent for years before making the claim. Apart from the consequential benefits of reinstatement without actually working, the impact on the administrative set-up and on other employees is a strong reason to decline consideration of a stale claim unless the delay is satisfactorily explained and is not attributable to the claimant. This is a material fact to be given due weight while considering the argument of discrimination in the present case for deciding whether the petitioner is in the same class as those who challenged their dismissal several years earlier and were consequently granted the relief of reinstatement. In our opinion, the lapse of a much longer unexplained period of several years in the case of the petitioner is a strong reason to not classify him with the other dismissed constables who approached the Court earlier and got reinstatement. It was clear to the petitioner latest in 1978 when the second batch of petitions were filed that the petitioner also will have to file a petition for getting reinstatement. Even then he chose to wait till 1989, Dharampal case (1990) 4 SCC 13 . 8. There is another aspect of the matter. Inordinate and unexplained delay or laches is by itself a ground to refuse relief to the petitioner, irrespective of the merit of his claim. If a person entitled to a relief chooses to remain silent for long, he thereby gives rise to a reasonable belief in the mind of others that he is not interested in claiming that relief. Others are then justified in acting on that belief. This is more so in service matters where vacancies are required to be filled promptly. If a person entitled to a relief chooses to remain silent for long, he thereby gives rise to a reasonable belief in the mind of others that he is not interested in claiming that relief. Others are then justified in acting on that belief. This is more so in service matters where vacancies are required to be filled promptly. A person cannot be permitted to challenge the termination of his service after a period of twenty-two years, without any cogent explanation for the inordinate delay, merely because others similarly dismissed had been reinstated as a result of their earlier petitions being allowed. Accepting the petitioner’s contention would upset the entire service jurisprudence and we are unable to construe Dharampal 4. In the premises set forth above, this writ petition suffers from laches and is, therefore, not maintainable. The writ petition is, accordingly, dismissed, but there shall be no order as to costs.