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2016 DIGILAW 1014 (GAU)

Manu Sinha v. State of Assam

2016-11-17

ACHINTYA MALLA BUJOR BARUA

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JUDGMENT & ORDER : Heard Mr. R. Thadani, learned counsel for the petitioner. Also heard Mr. N. Sarma, learned standing counsel appearing for the all the respondents. 2. The petitioner states that he applied for a regular post of L.P. School teacher against any vacant post and his application was forwarded to the respondent No.3 vide letter No. EDG-342/90/243 dated 13.09.1990 for taking necessary action as per rule and thereafter, the respondent No.3 vide (Annexure-1) order dated 30.10.1990 had appointed the petitioner as Assistant Teacher in 989 Alambag L.P. School vice Shri Basir Uddin Laskar retired. Thereafter, the respondent authorities had illegally and arbitrarily terminated the service of the petitioner by order dated 21.06.1991. Being aggrieved, the petitioner approached this Court by way of writ petition being C.R. No. 3509/1991. By the judgment and order dated 06.01.1994, it was directed that the petitioner be taken back in service within a period of 15 days and he shall be entitled to only 25% of his salary for the terminated period. It is the case of the petitioner that thereafter he moved from pillar to post for being reinstated/regularized, but it is only by the order dated 28.02.2001 of the Deputy Inspector of Schools, Silchar, the petitioner was reinstated/regularized on adjustment against vacant plan post. 3. The grievance of the petitioner is that although he had been reinstated/regularized by the respondent authorities, he had not been paid salary and allowance for the entire period till date, while there is no report of any unsatisfactory service. Accordingly, the petitioner prays for of his salary. 4. Mr. N. Sarma, learned standing counsel for the Education Department on the other hand, submits that the appointments to the posts of teacher in elementary schools are required to be made by following the statutory provision, i.e., the Assam Elementary Education (Provincialisation) Act 1974 and the Assam Elementary Education (Provincialisation) Rules 1977, which provides for a specific procedure to be followed in matters of selection and appointment of teachers. It is the case of the department that the petitioner was not appointed by following the due process of selection and, as such, he is not entitled to any relief as his entry into the service is illegal. The said submission of Mr. It is the case of the department that the petitioner was not appointed by following the due process of selection and, as such, he is not entitled to any relief as his entry into the service is illegal. The said submission of Mr. Sarma when looked into in the background of the statement of the writ petition that he had applied for a regular post of L.P. teacher against any vacant post and his application was forwarded to the respondent No.3 for taking necessary action and thereafter, he was appointed, this Court is of the view that submission of Mr. Sarma that the appointment of the petitioner is illegal finds sufficient substance. 5. Mr. Sarma, refers to a decision of Hon’ble Apex Court in the Case of Nazira Begum Lashkar reported in 2001 (1) 1 SCC 143 and by relying upon the law laid down by the Hon’ble Apex Court in paragraph 14 of the said judgment, he makes a submission that the petitioner is not entitled to any relief. Paragraph-14 of the aforesaid judgment of the Hon’ble Apex Court reads as follows: “Since the appointments to the posts are governed by a set of statutory Rules, and the prescribed procedure therein had not been followed and on the other hand appointments have been made indiscriminately, immediately after posts were allotted to different districts at the behest of some unseen hands, such appointments would not confer any right on the appointee nor can such appointee claim even any equitable relief from any Court.” The Hon’ble Apex Court further held as follows:- “……..initial appointments having been made contrary to the statutory rules, the continuance of such appointees must be held to be totally unauthorized and no right would accrue to the incumbent on that score.” 6. The factual matrix upon which the pronouncements were made by the Hon’ble Apex Court was that the appellant teachers therein were terminated by the respondent authorities after giving show-cause for the reason that no posts were available and appointments have not been made in accordance with the prescribed procedure. In the instant case, it is not the case of the petitioner that he had been terminated from service and he seeks reinstatement. 7. In the present case, the petitioner had already been reinstated and is continuing his service but his salary and allowances has not been paid. In the instant case, it is not the case of the petitioner that he had been terminated from service and he seeks reinstatement. 7. In the present case, the petitioner had already been reinstated and is continuing his service but his salary and allowances has not been paid. Therefore, the aforesaid ration laid down by the Hon’ble Apex Court is not squarely applicable in this case to the extent of payment of salary for a period for which the petitioner had duly served. But at the same time, it may be added that the said proposition of the Hon’ble Apex Court in Nazira Begum Lashkar may be applicable for taking appropriate decision on the question of continuance of service of the petitioner. 8. It is a distressing state of affairs that the State Govt. in the education department in spite of having knowledge that teachers have been appointed in an illegal manner without following the due procedure of law, are continuing in service and are still allowing them to continue. All that has been done is that they are not paid the salary. Not paying salary to purported illegally appointed teachers is not the remedy for confronting the issue of an illegal appointed teacher. An illegally appointed teacher continuing in service is against the public interest as the primary requirement of providing quality education suffers. 9. In the instant case, the petitioner has been reinstated in service as per the judgment and order of this Court dated 06.01.1994 in CR No. 3509/1991. In the said judgment and order, this Court had provided that the petitioner will be entitled to 25% of his salary for the terminated period i.e. from 21.06.1991 to the date of the judgment. Hence, we find, that there is no reason as to why the petitioner should not be paid the amount comprising of 25% of salary for the said period. For the period from 28.02.2001 onwards, on which date, the petitioner was reinstated in service, he has been discharging his duties as teacher without any adverse report. The said reinstatement being pursuant to the order of this Court dated 06.01.1994 in CR No. 3509/1991, the salary and allowance due to the petitioner cannot be remain unpaid as the petitioner is entitled to the salary on being reinstated. 10. At this stage, Mr. The said reinstatement being pursuant to the order of this Court dated 06.01.1994 in CR No. 3509/1991, the salary and allowance due to the petitioner cannot be remain unpaid as the petitioner is entitled to the salary on being reinstated. 10. At this stage, Mr. Sarma, learned counsel for the Education Department refers to a decision of this Court in the case of Harendra Ch. Nath and Ors. –Vs- State of Tripura and Ors. reported in 2013 (2) GLT 1094, wherein, it has been held in paragraph-10 that the writ petitioner have no right to recover the arrears beyond 3 years from the date of filing of the original writ petition. The instant writ petition has been filed on 05.04.2010 and, therefore, by taking into consideration of the period of 3 years prior to the filing of the writ petition, the petitioner would be entitled to his salary from 05.04.2007 onwards. 11. Accordingly, it is directed that the writ petitioner be paid his salary from 05.10.2007 onwards for the period for which he had duly served and also 25% of his salary from the period 21.06.1991 to 06.01.1994 but without any interest. 12. It is also made clear that the respondent authorities if they are of the view that the initial appointment of the petitioner is illegal and it is de hors the rules, they are at liberty to proceed against the petitioner as per the provision of law by giving him due opportunity to explain his case. 13. With the above observation, this writ petition stands disposed of.