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2015 DIGILAW 968 (GAU)

Manita Devi v. State of Assam

2015-08-06

T.VAIPHEI

body2015
JUDGMENT : Denied of the elusive salary arrears for the period from 28-9-2000, when her service was said to be regularized in the post of Assistant Teacher, to 7-9-2005 when she started to receive her current salary on the basis of the interim order passed by this Court, the petitioner is initiating this fourth round of litigation against the State-respondents. 2. Though the facts pleaded by the petitioner are many, the facts really material for the decision of this Court lie in a narrow campus. By the order dated 28-9-2000 issued by the respondent No. 4 (District Elementary Education Officer, Kamrup), the service of the petitioner was regularized against the post of Assistant Teacher in Adarsha M.E. School in the pay scale of ?3,130-6,600/- per month with immediate effect. The order of regularization was issued in compliance with the order dated 31-11-1998 of this Court in WA No. 474/94. It is the specific case of the petitioner that she, after the regularization of her service, had been working in that post regularly and to the satisfaction of all concerned. However, when no salary, current or otherwise, was paid to the petitioner for a considerable period of time despite reminder by her from time to time, she once again approached this Court by filing WP(C) No. 6179/05 for payment of her salary. This Court by the interim order dated 7-9-2005 directed the respondent authorities to pay her salary with effect from September, 2005 on regular basis. The writ petition was ultimately disposed of on 10-2-2009 by this Court by directing the respondents to refer her case to the Committee constituted by this Court in Sudhendu Mohan Talukdar v. State of Assam & ors in WP(C) No. 2147/1999. 3. When no action was, however, taken by the respondents even after the aforesaid direction, the petitioner once again filed WP(C) No. 6237/2011 before this Court again seeking its intervention. This Court had observed therein that the matter was already referred to the Committee and, therefore, disposed of the writ petition by directing the Commissioner/Secretary, Education (Elementary) Department, Government of Assam, to refer the claim of the petitioner to the Committee for payment of the said salary arrears. This Court had observed therein that the matter was already referred to the Committee and, therefore, disposed of the writ petition by directing the Commissioner/Secretary, Education (Elementary) Department, Government of Assam, to refer the claim of the petitioner to the Committee for payment of the said salary arrears. At this stage, it may be noted that the Commissioner/Secretary, Education (Elementary) Education Department, Government of Assam in her affidavit filed in connection with Contempt Case No 106/13 had stated in paragraph 6 that the salary of the petitioner from 28-9-2000 to 6-9-2013 could not be released to her “due to non-availability of retention of posts.” She had also stated therein that the particulars of the petitioner had been sent to the Director of Elementary Education, Assam for retention (of her post?). She had further stated therein that the Director of Elementary Education, Assam vide his letter dated 24-9-2013 had requested the Government to create a supernumerary post for the period in question so that the salary arrears of the petitioner could be paid. However, the Committee in its meeting held on 30-1-2014 passed the impugned order accepting the recommendation of the Expert Committee for rejection of the claim of the petitioner on the ground that before her regularization on 1-9-2005, she had been working in a non-existing post i.e. without post and was not appointed as per Govt. existing rules and procedure. This is evident from the letter dated 3-2-2014 of the Joint Secretary to the Government of Assam, Education Department addressed to the learned Senior Standing Counsel, Education Department. Aggrieved by this, the petitioner is once again approaching this Court in this writ petition. 4. Mr. I.H. Saikia, the learned counsel for the petitioner, contends that once the State-respondents do not dispute that the petitioner actually rendered her service from 28-9-2000 to 6-9-2005 as evident from their affidavits, they have the liability to pay the salary arrears for that period and that the respondent No. 2, recognizing this fact, had also recommended the creation of supernumerary post for this period to enable him to release the same to her. He further submits that the petitioner could not be faulted with for the non-retention of her post for which she had obviously no control: once her service was regularized, it was the duty of the respondents to keep on retaining the post till it was possible to make it permanent. He further submits that the petitioner could not be faulted with for the non-retention of her post for which she had obviously no control: once her service was regularized, it was the duty of the respondents to keep on retaining the post till it was possible to make it permanent. He reminds this Court that the service of the petitioner was regularized against one of the posts created on 24-4-98 as evident from the order of her regularization dated 28-9-2000 and in that view of the matter, submits the learned counsel, how could the State-respondents now turn around and say that she had been working against a non-existing post before her regularization and was appointed against the extant rules and procedure? He, therefore, strenuously urges that the State-respondents should not be allowed to make lame excuses to deny the petitioner of the said salary arrears legitimately due to her and instead should be asked to release the same to her without any loss of time. 5. On the other hand, Mr. N. Sarma, the learned standing counsel for Education (Elementary) Department, Assam, while supporting the impugned decision of the respondent authorities, refers to the affidavit-in-opposition belatedly filed by the respondent No. 2 and submits that when the post held by the petitioner was not retained since 28-9-2000, the question of payment of salary to her till 6-9-2005 when she was paid her regular salary, does not arise: salaries are paid only to teachers holding the posts for which there were temporary/permanent retentions. Moreover, contends the learned standing counsel, the Expert Committee to which the case of the petitioner was referred, had opined that since the petitioner had been working in a non-existent post, her case could not be recommended for payment of the salary arrears. Mr. B. Gogoi, the learned standing counsel for the Finance Department, Assam, endorses the submissions of the learned standing counsel for the Education (Elementary) Department, Assam and submits that no case is made out by the petitioner for payment of the salary arrears. 6. Having given my anxious consideration to the submissions made by the learned counsel appearing for the rival parties, I am of the firm view that the approach of the State-respondents in denying the salary arrears to the petitioner is somewhat irrational and after-thought. 6. Having given my anxious consideration to the submissions made by the learned counsel appearing for the rival parties, I am of the firm view that the approach of the State-respondents in denying the salary arrears to the petitioner is somewhat irrational and after-thought. As already noticed, the respondent authorities in their affidavits have never disputed that the petitioner had been working as Assistant Teacher of the school ever since her service was regularised. The only ground on which they resisted payment of the salary arrears is that there was no retention of her post. Her service was regularised by none other than the respondent authorities themselves against the post originally created on 24-4-1998 vide the order dated 28-9-2000. Had the post required retention also, it was within their power to do so inasmuch as they had regularised the service of the petitioner. They could not simply regularise the service of the petitioner on 28-9-2000 with immediate effect and in the same breath say that the post against which her service was regularised was not given retention thereafter. In other words, once they had decided to regularise the service of the petitioner, they ought to have taken the regularisation exercise to its logical conclusion: there could not be halfway regularisation. After all, the non-retention of the post could not be attributed to the acts of omission or commission on the part of the petitioner; it was and is still the responsibility of the State-respondents as also within their power to retain the post to enable her to continue in her service following the regularisation of her service and draw her salary from the date of regularisation of her service. The post was evidently an existing post on 24-4-1998 even before regularising the service of the petitioner as evident from the said order dated 28-9-2000. In my opinion, the impugned decision of the respondent authorities suffers from the vice of non-application of mind and is, therefore, arbitrary. No other plea is taken by the respondent authorities for denying the salary arrears to the petitioner. This, therefore, warrants the interference of this Court. 7. For what has been stated in the foregoing, this writ petition stands allowed. The impugned decision of the Expert Committee dated 30-1-2014 recommending rejection of the claim of salary arrears by the petitioner is, therefore, quashed. This, therefore, warrants the interference of this Court. 7. For what has been stated in the foregoing, this writ petition stands allowed. The impugned decision of the Expert Committee dated 30-1-2014 recommending rejection of the claim of salary arrears by the petitioner is, therefore, quashed. The respondent authorities are, accordingly, directed to release forthwith the salary arrears of the petitioner from 28-9-2000 to 6-9-2005, if necessary, by creating a supernumerary post. The entire exercise shall be carried out within a period of three months from the date of receipt of this judgment. If the entire due amounts are not paid within the next three months, the petitioner shall be entitled to simple interest @ 12% per annum from 28-9-2000 till the full payment thereof is made. No cost.