Research › Search › Judgment

Gauhati High Court · body

2016 DIGILAW 551 (GAU)

Sikha Das Gupta (Roy) v. State of Assam

2016-06-14

MANOJIT BHUYAN

body2016
JUDGMENT AND ORDER : Manojit Bhuyan, J. Heard Mr. I.H. Saikia, learned counsel for the petitioners in all the three writ petitions as well as Mr. R Mazumdar, learned senior standing counsel, Elementary Education Department. As all the three writ petitions raise a common issue with regard to stoppage of salary on and from February, 1997, the same are heard and disposed of by this common judgment. 2. The case laid out by the petitioners is that they were appointed as Assistant Teachers in various Lower Primary Schools in the District of Karimganj by appointment orders varying between the year 1995 and 1996, pursuant to advertisement and selection made by the Sub-Divisional Level Advisory Board for Elementary Education, Karimganj. The petitioners contend that they were appointed pursuant to Select List dated 22.06.1992 following the Advertisement of 1991 as well as pursuant to another Select List dated 18.08.1995 pursuant to Advertisement dated 1995. The particulars as to who amongst the petitioners were appointed pursuant to Advertisement dated 1991 and Advertisement dated 1995 have been indicated in the writ petitions. The said appointments were made against the posts created by the Government and upon retirement vacancies. They were also granted scale of pay of Rs.1185-Rs.2395 together with allowances admissible under the rules. The payment of salary was made from the initial date of appointment until January 1997 and thereafter it was all-together stopped. 3. Aggrieved, the petitioners in all the three writ petitions filed respective writ petitions, registered and numbered as WP(C) 5277/2003, WP(C) 5363/2003 and WP(C) 5276/2003. Said cases were disposed of on 18.07.2003 with direction to the respondents to examine their claim with further observation that if on such examination they are found legally entitled to arrear pay and allowances, which had been held-up since February, 1997, the same shall be released. In those writ petitions another claim was laid that their services be adjusted against non-plan vacant posts. In this respect also, a direction was made that the respondents should consider the same along with other similarly situated persons in accordance with law. The entire exercise as regards entitlement to arrear salary and claim for adjustment against non-plan vacant post was directed to be completed within three months. In this respect also, a direction was made that the respondents should consider the same along with other similarly situated persons in accordance with law. The entire exercise as regards entitlement to arrear salary and claim for adjustment against non-plan vacant post was directed to be completed within three months. Pursuant thereto, a letter was issued by the Deputy Inspector of Schools, Karimganj, addressed to the Director of Elementary Education, Assam, requesting that necessary action be taken towards compliance of the Court's order dated 18.07.2003. In the said letter, it was also indicated that although salary had not been released on account of the fact that the petitioners were working against non-existent posts, however, for the fact that the petitioners were working, the release of their salary and adjustment against non-plan post requires to be considered. In this respect, the petitioners have also enclosed an order issued by the Commissioner & Secretary to the Government of Assam, Education Department, where the service of a similarly situated teacher was directed to be regularized against any existing vacant post and for payment of salary with prospective effect. 4. It is also the case of the petitioners that following the judgment and order dated 18.07.2003, the Deputy Inspector of Schools, Karimganj had submitted a proposal in Finance (SIU) format to the Education Department towards regularization of the services of the petitioners. This was apparently done when the petitioners had filed contempt application before this Court alleging disobedience on the part of the State respondents of the aforesaid order dated 18.07.2003. 5. Following the order dated 18.07.2003 passed in the earlier batch of writ petitions, a decision was taken by the Commissioner & Secretary, Government of Assam, Education (Elementary) Department and by order dated 17.08.2007, negated the claims of the petitioners. The said order of 17.08.2007 indicated that the petitioners were working against non-existent posts and the same were apparent from the report of the Deputy Inspector of Schools dated 04.09.2003. The Commissioner & Secretary held that the petitioners having been appointed against non-sanctioned post, as such, the same are illegal/irregular appointments and, therefore, they are not entitled to any salary. It was also held that there was no scope for adjusting the services of the petitioners against non-plan post in view of their appointments being illegal and irregular. This order of 17.08.2007 is now being assailed in the present three writ petitions. 6. It was also held that there was no scope for adjusting the services of the petitioners against non-plan post in view of their appointments being illegal and irregular. This order of 17.08.2007 is now being assailed in the present three writ petitions. 6. Mr. I.H Saikia, learned counsel for the petitioners makes reference to the Additional Affidavit dated 26.03.2015 filed on behalf of the petitioners. Attention is drawn to the letter dated 24.02.2015 ( Annexure-36), issued under the hand of the District Elementary Education Officer, Karimganj and addressed to the Special Officer, Office of the Commissioner of Hills and Barak Valley Division, Assam and to the Consolidated Statement of candidates pertaining to the Select Lists of the years 1992, 1995 and 1999 relating to Karimganj District. According to Mr. Saikia, the said Consolidated Statement which had been verified and endorsed by various authorities in the District Administration as well as the Departmental Authorities, clearly reflects the entire particulars relating to the appointment of the petitioners. In this respect, Mr. Saikia also fairly submits that, save and except the petitioner no. 2 in WP(C) No. 5032/2007 i.e. Smti Madhumita Goswami, the name of all other petitioners figured in the said Consolidated Statement. Mr. Saikia submits that the said Consolidated Statement gives a clear picture as to the year of advertisement, the interview number of the candidates, the selection date, the serial numbers of the petitioners as appearing in the respective select list as well as the appointment letter number and date. Mr. Saikia also brings to the notice of this Court the document dated 16.09.2015 issued by the Deputy Inspector of Schools, Karimganj addressed to the Commissioner & Secretary to the Government of Assam, Education (Elementary) Department, which had been obtained through Right to Information Act. The detailed clarifications as rendered by the Deputy Inspector of Schools, Karimganj is in answer to a Government letter dated 07.08.2015. The said clarification, amongst others, discloses that the petitioners were selected by the Sub-Divisional Level Advisory Board on 22.06.1992 and 18.08.1995 and all original records thereof had been submitted to the Government on 24.04.1998. Also, the petitioners have continuously rendered their services since their date of appointment. The said clarification, amongst others, discloses that the petitioners were selected by the Sub-Divisional Level Advisory Board on 22.06.1992 and 18.08.1995 and all original records thereof had been submitted to the Government on 24.04.1998. Also, the petitioners have continuously rendered their services since their date of appointment. Mention is also made of the Consolidated Statement which had been submitted to the Special Officer, Office of the Commissioner of Hills and Barak Valley Division, Assam, which statement bore the signatures of Officers in the District Administration and that of Departmental Officers. It was also clarified that all the petitioners were selected and appointed in accordance with the Rules and procedures and against valid sanctioned post. 7. On the aforesaid facts, Mr. Saikia submits that the petitioners having been duly appointed pursuant to Advertisement and a selection process conducted by the Sub-Divisional Level Advisory Board, Karimganj and against retirement vacancy, it was not open for the State respondents to withhold the payment of salary, which is due to them from February, 1997. Mr. Saikia also submits that the petitioners have been diligent in their action and, in fact, they had also approached this Court in the year 2003 for release of their arrear salary and the said writ petitions were disposed of with direction to the respondent authorities. 8. Mr. Saikia also places reliance in various judgments of this Court for the proposition that notwithstanding any dispute whether the petitioners had been appointed illegally or irregularly, they are at least entitled to salary and allowances for the period they have discharged duties as Assistant Teachers. according to Mr. Saikia, the appointment orders issued in their favour have neither been questioned nor cancelled and they have been working as Assistant Teachers until this date. The submission is that the petitioners are legitimately entitled to salary and the State respondents are legally obliged to grant salary to the petitioners, arrear and current, for the period they are actually in service. In this respect, reliance is placed in Smti Anima Bala Barua alias Smti Anima Bala Bora v. State of Assam and Ors. reported in 1997(1) GLT 604; State of Manipur v. State Land Use Board Casual Employees Association, reported in (2007) 2 GLR 56; Tripura Jute Mill and Another v. Bhanu Lodh, reported in 2008 (1) GLT 22 and Judgment and Order dated 06.05.2015 in WP(C) No. 3293/2013. 9. Mr. reported in 1997(1) GLT 604; State of Manipur v. State Land Use Board Casual Employees Association, reported in (2007) 2 GLR 56; Tripura Jute Mill and Another v. Bhanu Lodh, reported in 2008 (1) GLT 22 and Judgment and Order dated 06.05.2015 in WP(C) No. 3293/2013. 9. Mr. R. Mazumdar, learned counsel representing the Elementary Education Department submits that the petitioners are not entitled to salary, in as much as, their appointments were against non-existent posts. Referring to the communication dated 24.03.2003 (Annexure-4 to the writ petition), Mr. Mazumdar submits that the particulars of the Primary School Teachers appended to the said letter itself goes to show that no post had been allotted by the Director of Elementary Education and in the absence of such allotment, the petitioners could not have been appointed and if so appointed, the same had been done against non-existent posts. 10. Referring to the statements and averments made in the writ petition, Mr. Mazumdar also submits that there is no mention of any advertisement and participation of the petitioners in any selection process. Contention is also made that whereas the Sub-Divisional Level Advisory Board for Elementary Education, Karimganj was constituted only by a Notification dated 20.01.1995, the petitioners' claim that they had been selected by the same Board in the year 1992. This, according to Mr. Mazumdar, suffers from absurdity and goes to the root to the case of the petitioners that they had not gone through any selection process. In reply to the illustration given by the petitioners that a person similarly situated had been granted regularization by orders of the Commissioner & Secretary to the Government of Assam, Education Department, Mr. Mazumdar submits that the petitioners cannot be allowed to take advantage of an order which is not legal in its true sense as it is well settled in law that an illegality made in one specific case cannot be allowed to be perpetuated. The primary objection raised by the State respondents is that the petitioners having been appointed against non-sanctioned, nonexistent post, there was absolutely no scope for extending the benefit of adjustment of their services or in respect of payment of their claim for salary w.e.f. February, 1997. Mr. The primary objection raised by the State respondents is that the petitioners having been appointed against non-sanctioned, nonexistent post, there was absolutely no scope for extending the benefit of adjustment of their services or in respect of payment of their claim for salary w.e.f. February, 1997. Mr. Mazumdar places reliance in the case of State of Orissa v. Mamata Mohanty, reported in (2011) 3 SCC 436 and in the case of Nazira Begum Laskar and Others v. State of Assam, reported in (2001) 1 SCC 143 . The legal proposition advanced is that a person employed in violation of the statutory rules and/or the prescribed procedure, such appointments would not confer any right on the appointee nor such appointee can claim any equitable relief from the Court, including relief as regards salary. In the instant case, according to Mr. Mazumdar, the facts would disclose that the petitioners were not appointed as per statutory procedure nor against existent posts or against posts allotted by the Director of Elementary Education, Assam. The submission of Mr. Mazumdar is that the Order dated 17.08.2007 passed by the Commissioner & Secretary, Government of Assam, Education (Elementary) Department, do not suffer from any infirmity and, therefore, do not invite interference of this Court. 11. In reply, Mr. Saikia contends that the submission of Mr. Mazumdar holds no water, in as much as, the posts against which the petitioners were appointed were created by the Government way back in the year 1975 and it was only upon the retirement of the incumbents that the petitioners came to be appointed. As regards the submission made by Mr. Mazumdar that the appointments have come by without any advertisement or participation of the petitioners in any selection process, Mr., Saikia submits that the Consolidated Statement, which has been verified and endorsed by the various authorities, itself discloses that there were Advertisements and participation of the petitioners stands substantiated by the very fact that they were also allotted interview numbers. 12. I have heard the learned counsels for the parties and have also considered the materials on record. The fact that the petitioners were appointed pursuant to Select List dated 22.06.1992 and/or the Select List dated 18.08.1995 is a fait accompli, in that, the Consolidated Statement prepared by the State authorities vindicates the stand of the petitioners. 12. I have heard the learned counsels for the parties and have also considered the materials on record. The fact that the petitioners were appointed pursuant to Select List dated 22.06.1992 and/or the Select List dated 18.08.1995 is a fait accompli, in that, the Consolidated Statement prepared by the State authorities vindicates the stand of the petitioners. The fact that the petitioners were granted salary in regular scale of pay from the respective dates of their appointment until January, 1997 is also not disputed. The objection now raised is that the petitioners were appointed against non-existent and non-sanctioned post and they are not entitled to arrear salary. This is not the stand taken by the State respondents when the petitioners had first approached this Court in the year 2003. In fact, although the petitioners have continued to serve in respective schools on and from the year 1995-1996, no step had been initiated by the State respondents interfering or questioning the appointment orders so issued nor any such steps were taken when the matter was sent back to the Government for examining the case of the petitioners pursuant to the Order dated 18.07.2003 passed by this Court in the earlier round of litigation. 13. The submission of Mr. Mazumdar that appointments have been made contrary to the statutory procedure and/or the prescribed procedure, in that, the same was not proceeded by any advertisement or participation of the petitioners in any selection process, the same do not find support from the materials on record. To reiterate, the Consolidated Statement prepared by the respondent authorities discloses sufficient particulars meeting the objection raised by Mr. Mazumdar. In the said Consolidated Statement, there is mention of the order when Advertisements had been issued. The allotment of interview numbers also supports that the petitioners had participated in interview process. Reliance placed in the case of Mamata Mohanty (supra) and Nazira Begum Laskar (supra) do not come to the aid of the respondent, in as much as, the present proceeding is not a case where appointments had been made by making a clear departure from the prescribed procedure or at the behest of some unseen hands. Had it been so, the State respondents would have certainly taken action against the petitioners or would have at least issued show-cause notice questioning their appointments as Assistant Teachers. Had it been so, the State respondents would have certainly taken action against the petitioners or would have at least issued show-cause notice questioning their appointments as Assistant Teachers. On record, no such steps have been taken by the State respondents until this date. 14. The case laid out by the petitioners against the unreasonable and arbitrary action on the part of the State respondents gains force in view of the communication dated 16.09.2015, which had been obtained by the petitioners through the Right to Information Act. The clarification made by the Deputy Inspector of Schools, Karimganj, in response to the Government letter dated 07.08.2015, abundantly goes in favour of the petitioners, at least to the extent that the selection made by the Sub-Divisional Level Advisory Board for Elementary Education, Karimganj along with all original records had been submitted to the Government way back in the year 1998. It was so done because of the Government WT Message dated 23.04.1998. This clarification made by the Deputy Inspector of Schools, Karimganj gains significance, in that, it was well within the knowledge of the State respondents way back in the year 1998 of the selection made by the Advisory Board and also the appointments offered to the petitioners herein. As is revealed from the said communication dated 16.09.2015, there is no denying the fact that all the petitioners have been continuously rendering their services since their initial date of appointment. The exception, however, is only in respect of the petitioner no. 2 i.e. Smti Madhumita Goswami in WP(C) No. 5032/2007. 15. As held by a Division Bench of this Court in the case of State of Manipur (supra) that when services had been rendered and received by the State Government without questioning the person rendering such services that his appointment is illegal, it would not be just and fair for the State not to pay the wages or salary to such person for the period during which service was rendered by him. Denial of salary would only amount to victimizing the person to forced labour by the employer concerned. It is also no more res integra that claim for salary for the period during which service is rendered is not based on tort but on the principle of quantum meruit. It is not implicit that a person serves the employer ex gratia or that his salary is in the nature of bounty. It is also no more res integra that claim for salary for the period during which service is rendered is not based on tort but on the principle of quantum meruit. It is not implicit that a person serves the employer ex gratia or that his salary is in the nature of bounty. The legal position being clear as regards the claim for salary, it is not open for the State respondents to deny and deprive the petitioners from their entitlement as regards salary. To reiterate, the petitioners are continuously serving in their respective category and the State respondents have also allowed them to continue as such. When service is exacted, it is also the corresponding obligation and duty of the State respondents to provide due salary to the persons concerned. 16. From the discussion above, the inevitable conclusion is that the petitioners have been able to make out a case for seeking appropriate relief from this Court and to that extent have also made out a case that the State respondents, under any circumstances, cannot deny payment salary to the petitioners for the period during which they have rendered uninterrupted service. In view thereof, this writ petition stands to be allowed with direction to the State respondents to make payment of arrear salary to the petitioners with effect from February, 1997 as well as to continue making payment of the current salary. In so far as the payment of arrear salary is concerned, the same shall be paid and disbursed within a period of 6 (six) months from today and while doing so, the State respondents are also allowed to carry out a verification process to ascertain the period from which the petitioners have been discharging services as Teachers uninterruptedly until this date. 17. In view of the above, all the three writ petitions stand allowed and the impugned order dated 17.08.2007 passed by the Secretary to the Government of Assam, Education (Elementary) Department, is set aside. No costs.