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Gauhati High Court · body

2015 DIGILAW 824 (GAU)

Manna Lal Roy v. State of Assam

2015-07-13

MICHAEL ZOTHANKHUMA

body2015
JUDGMENT : Heard Mr. B. Banerjee, learned senior counsel for the petitioner assisted by Ms M Deb and Mr. B. Gogoi, counsel for the respondent No.2. Also heard Mr. U.K. Goswami, counsel for the respondent Nos. 1, 3 and 4. Petitioner’s case in brief is that though the petitioner had applied for the post of Assistant Teacher in the graduate scale in the year 1992 and interview was held by the District Level Selection Committee for the same, the petitioner was appointed as Assistant Teacher in the under graduate scale in the Union High School on 26.5.92. The petitioner joined his post as under graduate teacher in the said school in June, 1992 and thereafter transfer order dt. 7.4.93 was issued by the Inspector of Schools, CDC, Silchar transferring him to Earle Higher Secondary School, Lakhipur to officiate as Additional Science Teacher in the graduate scale. The petitioner joined the Earle Higher Secondary School on 17.4.93. The Inspector of Schools had thereafter issued the order dated 17.4.93 staying the petitioner’s transfer order dated 7.4.93. The petitioner thereafter preferred Civil Rule No. 1112/93 challenging the stay order dated 17.4.93 passed by the Inspector of Schools. Civil Rule No. 1112/93 was allowed vide order dated 27.1.98. Para 6 of the order dated 27.1.98 passed in Civil Rule No. 1112/03 is reproduced below:- “6. The statement made by the petitioner in the writ petition on oath has not been controverted by the respondents by filing any counter affidavit. This being the position, the averments made in the writ petition are presumed to be admitted. It would appear that the petitioner had applied for the post of Assistant Teacher in the graduate scale in the year 1992. After interview, he was found suitable and selected by the District Level Selection Committee. The respondent No.3, the Inspector of Schools, Cachar District Circle, Silchar eventually appointed him as Assistant Teacher in the undergraduate scale. There is also no reason given in the order o9f appointment, Annexure-I, as to why the applicant interviewed for appointment as a graduate teacher was appointed in the undergraduate scale. However, on representation preferred by the petitioner, the Inspector transferred him to Earle Higher Secondary School, Lakhipur and allowed him to officiate as an additional Science Teacher in the graduate scale. However, on representation preferred by the petitioner, the Inspector transferred him to Earle Higher Secondary School, Lakhipur and allowed him to officiate as an additional Science Teacher in the graduate scale. This order stood implemented on joining of the petitioner on 17-4-93 as is evident from Annexure-6, the letter written by the Principal of Earle Higher Secondary School. Since the petitioner had already joined his new assignment, there was obviously no scope for stay of the transfer order dated 7-4-93. As such, the stay order which was passed on 17-4-93 became infructuous. In a situation like this, the question of stay and release on the basis of such stay order as is insisted by the Inspector vide Annexure-7 does not arise.” The Govt. of Assam, Finance Department issued the Notification dt. 25.5.2011, wherein Assured Career Progression Scheme (ACPS) was introduced for the employees of the Govt. of Assam. The benefits under the scheme were to be given twice in the entire service period of Govt. employees. The first benefit was to be given on completion of 10 years and the second one after completion of 24 years of service. The ACP Scheme was designed to basically provide for financial upgradation. Petitioner’s case is that as he had been wrongly appointed on 26.5.92 as Assistant Teacher in the undergraduate scale, which was thereafter corrected by way of transfer order dated 7.4.93 wherein the petitioner was given graduate scale, the petitioner’s entitlement for getting financial upgradation as per the ACP Scheme should be counted w.e.f 1.6.92 i.e. the date on which the petitioner joined the Union High School. Mr. B. Gogoi, counsel for the Finance Department submits that the case of the petitioner may be considered by the Screening Committee as required by the ACP Scheme and as reflected in the Notification dt. 25.5.2011. Mr. U.K. Goswami, counsel for the Education Department submits that the petitioner having already availed of the first financial upgradation on the basis of the transfer order dt. 7.4.93, the petitioner was not entitled to the first financial upgradation as per the ACP Scheme in view of Clause XVI of the ACP Scheme which came into effect from 1.1.2011. Clause XVI of the ACP Scheme is reproduced below:- “XVI. 7.4.93, the petitioner was not entitled to the first financial upgradation as per the ACP Scheme in view of Clause XVI of the ACP Scheme which came into effect from 1.1.2011. Clause XVI of the ACP Scheme is reproduced below:- “XVI. If any post has been upgraded once and the employee has received the financial benefits due to up-gradation within 10 years of service or on the date of introduction of the Scheme i.e. 01-01-2011, benefits of 1st financial upgradation under ACPS shall not be given to him. Similarly, if such post has been upgraded twice before completion of 24 years or on the date of introduction of the Scheme i.e. 01-01-2011, or the post is upgraded once after the employee has taken the benefits of 1st financial upgradation under ACPS but within 24 years of service, then benefit of 2nd financial upgradation under ACPS shall not be given to him.” Mr. B. Banerjee, counsel for the petitioner submits that there has been hostile discrimination made against the petitioner in view of the fact that one Smt. Gauri Paul and Smt. Satyaki Das who were initially appointed in the undergraduate scale and who had got the graduate scale of pay vide Notification dt. 30.12.93, have been given financial upgradation on 1.1.2011. The petitioner’s counsel thus submits that the above two persons are in the same footing as the petitioner and, as such, the petitioner should also be given the benefit of the ACP Scheme. I have heard the counsels for the parties. The question of the petitioner having applied for and having taken part in the selection process for the post of Assistant Teacher in the graduate scale in the year 1992 having already been held to be an admitted fact by this Court in Civil Rule No. 1112/93, this Court also holds that the petitioner had applied for the post of Assistant Teacher in the graduate scale in the year 1992 and had also taken part in the selection process and was selected for the same. However, the petitioner was appointed in the undergraduate scale of pay vide order dt. 26.5.92 without there being any reason given in the appointment order. The alleged mistake committed by the respondents in appointing the petitioner on 26.5.92 in the undergraduate scale was, however, rectified by the transfer order dt. However, the petitioner was appointed in the undergraduate scale of pay vide order dt. 26.5.92 without there being any reason given in the appointment order. The alleged mistake committed by the respondents in appointing the petitioner on 26.5.92 in the undergraduate scale was, however, rectified by the transfer order dt. 7.4.93 wherein the petitioner was transferred to Earle Higher Secondary School, Lakhipur to officiate as Additional Science Teacher in the graduate scale. The petitioner joined the Earle Higher Secondary School on 17.4.93. The petitioner not having made any challenge to the period of service rendered in the undergraduate scale from the date of his appointment till the date of his appointment in the Earle Higher Secondary School on 17.4.93, the petitioner cannot be allowed to count his service in the graduate scale w.e.f the date of his joining in the Union High School on 1.6.92. This Court is thus of the view that the petitioner’s service in the graduate scale should be counted w.e.f 17.4.93 i.e. the date of his joining as Additional Science Teacher in the Earle Higher Secondary School, Lakhipur. The ACP Scheme which came into force on 1.1.2011 having laid down that a Govt. employee shall be eligible for the first financial upgradation after completion of 10 years of service and the petitioner having completed 10 years of service w.e.f 17.4.93, the petitioner is entitled to receive his first financial upgradation as per the ACP Scheme. The order dt. 26.5.92 shows that Smti. Gauri Paul had been appointed along with the petitioner as Assistant Teacher in the undergraduate scale wherein Smti. Gauri Paul was at serial No. 10 and the petitioner was at serial No. 12. Smti. Gauri Paul thereafter was given the graduate scale of pay w.e.f 30.12.93 and was given the benefit of first financial upgradation as per the ACP Scheme on 1.1.2011. The case of the petitioner is similar to the case of Smti. Gauri Paul. However, while Smti. Gauri Paul has been given the first financial upgradation as per the ACP Scheme, the same has been denied to the petitioner. In view of there being discrimination writ large, I hold that the petitioner should also be given the first financial upgradation by counting his service in the graduate scale of pay w.e.f. 7.4.93. Gauri Paul. However, while Smti. Gauri Paul has been given the first financial upgradation as per the ACP Scheme, the same has been denied to the petitioner. In view of there being discrimination writ large, I hold that the petitioner should also be given the first financial upgradation by counting his service in the graduate scale of pay w.e.f. 7.4.93. The ACP Scheme has however laid down certain procedures for granting financial upgradation, one of which is that the Screening Committee is to screen the candidates who are eligible to receive the benefits under the ACP Scheme. In view of the procedures laid down in the ACP Scheme, I direct the respondents to place the case of the petitioner before the Screening Committee of the Secondary Education Department immediately and the Screening Committee of the Secondary Education Department shall consider the petitioner’s case in its next sitting keeping in view the observations made by this Court and also the order dated 8.6.2004 issued by the Inspector of Schools, CDC, Silchar (Annexure-K) to the affidavit filed by the respondent No.4 and the Notification dated 30.12.93 issued by the Secretary to the Govt. of Assam, Education Department (Annexure-L) to the affidavit filed by the respondent No.4. The writ petition accordingly stands disposed off. No cost.