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2016 DIGILAW 1157 (GAU)

Manique Uddin Laskar v. State of Assam

2016-12-21

ACHINTYA MALLA BUJOR BARUA

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JUDGMENT AND ORDER : Achintya Malla Bujor Barua, J. Heard Ms. M. Dey, learned counsel for the petitioner and Mr. A. Deka, learned standing counsel, Education Department. 2. The petitioner herein was initially appointed as honorary teacher in the Sadimani M.E. Madrasa, Bagpur under the Block Elementary Education Officer, Lakhipur Block, Lakhipur Cachar vide resolution No.1 dated 20.04.1986 by the Managing committee of the school. After her appointment as honorary teacher on 24.10.1986, the concerned school was provincialized on and from 01.09.1986. Although the services of the other teachers of the school were provincialized on and from 01.09.1986 when the school was provincialized, but the service of the petitioner was not provincialized along with the other teachers. 3. Subsequently, by the Annexure-3 order dated 22.08.1991, the petitioners who was working on honorary basis was absorbed as Assistant teacher under the Sadimani M.E. Madrassa in the scale of pay of Rs.1,185/- to 2,395/-plus other allowances, as admissible under the Rules, with effect from 01.03.1991. 4. It is the submission of Shri A. Deka, learned counsel for the respondent Education Department, that on and from the date from which the service of the petitioner was absorbed i.e., with effect from 01.03.1991, the petitioner has been paid her regular salary and allowances as admissible to her. It is the submission of learned counsel for the petitioner that the prayer in this writ petition that the respondent be directed to release the arrear salary and other consequential benefit to the petitioner with effect from 01.09.1986 with interest, is to be read, to mean that the writ petitioner is seeking direction for release of her arrear salary from 01.09.1986 to 01.03.1991. 5. It is the contention of the learned counsel for the respondent authorities, Education Department that such prayer of the petitioner cannot be acceded in view of the law laid down in Harendra Chandra Nath & Ors. v. State of Tripura & Ors. reported in 2013 (2) GLT 1094, wherein it is inter-alia been held by this Court in paragraph 10 that in respect of the arrear salaries, the writ petitioners have got no right to recover the arrears beyond three years from the date of filing of the original writ petition. v. State of Tripura & Ors. reported in 2013 (2) GLT 1094, wherein it is inter-alia been held by this Court in paragraph 10 that in respect of the arrear salaries, the writ petitioners have got no right to recover the arrears beyond three years from the date of filing of the original writ petition. Paragraph 10 of the Harindra Chandra Nath (Supra) is quoted below: "Since the State has not filed any appeal against the impugned judgment and order, we are not inclined to examine that issued in view of Yogendra Shrivastava (supra). However, the writ petitioners have got no right to recover the arrears beyond three years from the date of filing of the original writ petition." 6. The instant writ petition, being a writ petition for a direction to pay the arrear salary from 01.09.1986 to 01.03.1991, the embargo imposed by the law laid down by this Court in Harendra Chandra Nath (Supra) would be squarely applicable. The instant case as can be seen, was filed on 27.04.2011. Therefore, by applying the ratio laid down by this Court in Harendra Chandra Nath (Supra), the petitioner can claim arrear salary only for a period of 3 years prior to the date of filing i.e. from 27.04.2008 onwards only. 7. In the instant case, as already held, the prayer of the petitioner for arrear salary being for the period from 01.09.1986 to 01.03.1991, the same is not sustainable in view of the ratio laid down in Harendra Chandra Nath (Supra). 8. Ms. M. Dey, learned counsel for the petitioner, has also raised a contention that the petitioner is being paid a pay scale which is lower than that of what is paid to Smti Nasim Jahan Laskar, who is another teacher in the same school. It is the contention of the petitioner that the said Nasim Jahan Laskar was also appointed on honorary basis in the Sadimani M.E. Madrassa, and was absorbed as Assistant teacher by the same order dated 22.08.1991, by which the petitioner was also absorbed in service. As such, the petitioner has raised an issue that petitioner's pay scale which is lower than that of Smti Nasim Jahan Laksar is arbitrary and discrimatory. 9. As such, the petitioner has raised an issue that petitioner's pay scale which is lower than that of Smti Nasim Jahan Laksar is arbitrary and discrimatory. 9. On a perusal of the writ petition, it can be seen that although the aforesaid submissions has been made on behalf of the writ petitioner, but there is no specific pleading to that effect. The absence of a specific pleading has prevented the state respondent authorities from answering to such questions being raised by the petitioner. 10. In view of the above, this writ petition is dismissed to the extent of the relief sought by the petitioner for payment of arrear salary from 01.09.1986 to 01.03.1991 but as regards the other relief sought by the petitioner that they are to be paid pay scale equal to that of aforesaid Nasim Jahan Laskar, the petitioner would file appropriate representation before the respondent No.2, being the Director of Elementary Education, Assam and upon such representation being filed, the Director would pass appropriate order, specifying his reason as to whether the petitioner is also entitled to the same pay scale as that of Smti Nasim Jahan Laskar. In the event, the Director is of the view that the petitioner is not entitled to such equal pay scale, the Director will give his detailed reason for arriving at such conclusion. 11. The above exercise shall be carried out within a period of 3 months from the date of receipt of a certified copy of this order. 12. In terms of the above, the writ petition is disposed of.