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Gauhati High Court · body

2016 DIGILAW 853 (GAU)

Santosh Kr. Brahma v. State of Assam

2016-09-14

UJJAL BHUYAN

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JUDGMENT : Ujjal Bhuyan, J. Both the writ petitions were heard together as the subject-matter of the writ petitions were found to be interrelated. 2. By this common order, both the writ petitions are being disposed of. 3. Heard Ms. D. Borgohain, learned counsel for the petitioner, Mr. N. Sharma, learned Standing Counsel, Education Department, Govt. of Assam and Ms. B. Bhuyan, learned Standing Counsel, BTC. Ms. A. Verma, learned Standing Counsel, Finance Department, is also heard. 4. Petitioner is common to both the proceedings. While the prayer made in WP(C) 6817/2010 is for release of salary of the petitioner as Assistant Teacher of Kamal Singh M.V. School in the district of Kokrajhar with effect from the date of joining, i.e., 23.06.2006, prayer made in WP(C) No.4345/2012 is for payment of compensation to the petitioner for loss of livelihood from 1999 to 23.06.2006 when he was allowed to join as Assistant Teacher of Kamal Singh M.V. School and to provide him the pensionary benefit under the Assam Services (Pension) Rules, 1969. 5. According to the petitioner, following a selection process, he was selected for appointment as Assistant Teacher in the Kamal Singh M.V. School (School). Selection was made by the Sub-Divisional Level Elementary Education Advisory Board and had the approval of the then Bodoland Autonomous Council (BAC) on 29.07.1998. However, instead of appointing the petitioner, District Elementary Education Officer, Kokrajhar, appointed one Shri Bijon Daimary as Assistant Teacher in the School on 18.06.1999. 6. Though petitioner submitted a representation against such appointment of Shri Bijon Daimary at the cost of the petitioner, there was no response by the authority. Therefore, he approached this Court by filing WP(C) No.412/2000 which was disposed of vide order dated 09.02.2000 by directing the Director of Education, BAC, to pass appropriate order in accordance with law on the representation of the petitioner. It was clarified by the Court that if the petitioner's allegations were found to be correct, then appointment of Shri Bijon Daimary should be cancelled and the petitioner should be appointed but if the allegations of the petitioner were found to be not correct, then a reasoned order should be passed. Either way, it was directed that petitioner should be intimated about the decision taken. 7. Either way, it was directed that petitioner should be intimated about the decision taken. 7. On 27.04.2005, BTC [in the meanwhile, BAC was dissolved by constituting Bodoland Territorial Council (BTC)] conveyed approval to the appointment of the petitioner as Assistant Teacher in the School against a retirement vacancy. However, after almost one year, Director of Education, BTC passed an order on 22.06.2006 to enable the petitioner to join the post in which he was appointed. Thus, petitioner was posted in the School as Assistant Teacher. It is stated that petitioner joined the School as Assistant Teacher on 23.06.2006 and immediately submitted his joining report. Notwithstanding such joining by the petitioner and regularly attending his classes, he was not paid his salary. This compelled the petitioner to approach the Court again by filing WP(C) No.6817/2010, which is the first writ petition being disposed of by this order. 8. Education Department in its affidavit filed in WP(C) No.6817/2010 stated that due to non-receipt of any communication from the BTC regarding cancellation of appointment of Shri Bijon Daimary, petitioner's salary could not be released. In its affidavit, Finance Department has stated that the High Court in its order dated 09.02.2000 had made it abundantly clear that one of the two i.e., either the petitioner or Shri Bijon Daimary could hold the post. Therefore, Finance Department regretted the proposal submitted by the BTC for appointment of the petitioner in another post. 9. Following the aforesaid development, BTC cancelled the appointment of Shri Bijon Daimary on 06.05.2011 on the basis of the order passed by the Secretary, BTC on 02.05.2011. It was noted by the BTC authorities that Shri Bijon Daimary was appointed by the then District Elementary Education Officer, Kokrajhar without following the due procedure. 10. Shri Bijon Daimary filed WP(C) No. 2956/2011 challenging the legality and validity of the orders dated 02.05.2011 and 06.05.2011 and at the time of filing of the second writ petition, i.e., WP(C) No.4345/2012, the writ petition filed by Shri Bijon Daimary was pending though without any stay order. After the appointment of Shri Bijon Daimary was cancelled by the BTC, Finance Department granted approval to the appointment of the petitioner in the said post pursuant to which petitioner was appointed and he joined. Thereafter petitioner received salary from March, 2012. Arrear salary of the petitioner from 23.06.2006 was also received by the petitioner. 11. After the appointment of Shri Bijon Daimary was cancelled by the BTC, Finance Department granted approval to the appointment of the petitioner in the said post pursuant to which petitioner was appointed and he joined. Thereafter petitioner received salary from March, 2012. Arrear salary of the petitioner from 23.06.2006 was also received by the petitioner. 11. With the grievance that because of the delayed appointment of the petitioner in 2006 and further delay in release of salary from March, 2012, though with arrear from 2006, petitioner suffered serious prejudice in the form of loss of livelihood and also being deprived of the provisions of the Assam Service (Pension) Rules, 1969 as a new pension scheme came into place replacing the aforesaid Rules in the meantime, second writ petition came to be filed seeking compensation for the loss of livelihood of the petitioner from 1999 to 2006 and to confer him the benefit of the Pension Rules, 1969. 12. Thus, from the above narration of facts, it is evident that relief sought for in WP(C) No. 6817/2010 has been granted to the petitioner and, therefore, no live issue would survive for adjudication in the said writ petition. 13. In so far prayer made in the second writ petition is concerned, it would be apposite to first refer to the order dated 02.05.2011 passed by the Secretary, BTC and thereafter to refer to the two affidavits filed by the BTC as well as the affidavits filed on behalf of the State. 14. From a perusal of the order dated 02.05.2011, it is seen that on perusal of the record, BTC authority had taken the view that appointment of Shri Bijon Daimary was illegal and was liable to be cancelled. Accordingly, direction was issued to the Director of Education, BTC to take action as per law. The said order also mentions the names of two officers holding the office of Director of Education of erstwhile BAC and District Elementary Education Officer, Kokrajhar who were responsible for such illegal appointment of Shri Bijon Daimary leading to delay in the appointment of the petitioner. 15. As stated above, following such decision, appointment of Shri Bijon Daimary was cancelled which led to filing of writ petition by him. 16. In the course of hearing, Ms. 15. As stated above, following such decision, appointment of Shri Bijon Daimary was cancelled which led to filing of writ petition by him. 16. In the course of hearing, Ms. B. Bhuyan, learned Standing Counsel, BTC informed the Court that the said writ petition filed by Shri Bijon Daimary (WP(C) No.2956/2011) was allowed by the writ Court on 30.10.2013on the ground of violation of the principles of natural justice but while doing so, it was made clear that appointment of the present petitioner should not be disturbed. She submits that though petitioner was selected in the year 1998, he was ultimately appointed in the year 2006. Selection per se do not confer any indefeasible right to appointment. Claim to salary would be maintainable only from the date of appointment of the petitioner. On the other hand, Ms. Borgohain, learned counsel for the petitioner, submits that from what has transpired, it is clearly evident that because of illegal action of the authorities, appointment of the petitioner was delayed by 7 years. Because of machination of the authorities further prejudice was caused to the petitioner in the form of delayed salary from 2012. For the loss suffered by the petitioner, he is entitled to be compensated. She submits that arbitrary and unreasonable action of the respondents has resulted in violation of the petitioner's fundamental right of right to life under Articles 14, 19 and 21 of the Constitution of India and, therefore, writ Court should award adequate compensation to the petitioner. In support of her submissions, she has placed reliance on the following decisions: Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545 , Nilabati Behera v. State of Orissa, (1993) 2 SCC 746 , D.K. Basu v. State of W.B., (1997) 1 SCC 416 , Asha v. Pt. B.D. Sharma University of Health Sciences, (2012) 7 SCC 389 . Order dated 17.11.2015 of the Supreme Court in Writ Petition (Civil) No.933/2014 (Dr. Ram Lakhan Singh v. State Government of Uttar Pradesh) 17. On the other hand, Ms. B. Bhuyan also placed reliance on the following decisions: Nilabati Behera v. State of Orissa, (1993) 2 SCC 746 , Santosh Kr. Paharia v. Meghali Ray, 2009 (2) GLT 510, Chennai Metropolitan Water Supply and Sewerage Board v. T.T. Murali Babu, (2014) 4 SCC 108 18. On the other hand, Ms. B. Bhuyan also placed reliance on the following decisions: Nilabati Behera v. State of Orissa, (1993) 2 SCC 746 , Santosh Kr. Paharia v. Meghali Ray, 2009 (2) GLT 510, Chennai Metropolitan Water Supply and Sewerage Board v. T.T. Murali Babu, (2014) 4 SCC 108 18. Respondent No.1 in her affidavit has stated that as per information received from the Director of Education, BTC, appointment of Shri Bijon Daimary was cancelled as he was appointed without proper selection. Petitioner was appointed on 22.06.2006 and petitioner had given an undertaking that his service would not be governed by Assam Services (Pension) Rules, 1969 but would be governed by the new pension scheme which had come into force with effect from 01.02.2005. Since petitioner joined on 23.06.2006, he cannot claim that he should be governed by the Pension Rules, 1969. 19. Finance Department in its affidavit has stated that it had granted its approval on 28.10.2011 to the proposal for appointment of the petitioner against a vacant sanctioned post of Assistant Teacher in the School in compliance to High Court's order dated 09.02.2000. 20. Two affidavits have been filed by the BTC. As per the first affidavit, petitioner was appointed on 22.06.2006 and he had given an undertaking while accepting the appointment that he would not be governed by the Pension Rules, 1969 which has since been replaced by a set of new pension provisions. In the second affidavit filed in the course of hearing, it is stated that BTC is in no way responsible for the delayed appointment of the petitioner and for acts of omissions and commissions of certain officers who belonged to the BAC but not to the BTC, it cannot be held responsible. Moreover, plea of compensation is delayed and barred by limitation. Petitioner has prayed for compensation for the period from 1999 to 2006 by instituting a writ petition in the year 2012 which is not maintainable. 21. Submissions made by learned counsel for the parties as well as the decisions cited at the Bar have been considered. Also perused the materials on record. 22. After perusal of the materials on record and hearing the learned counsel for the parties, what transpires is that though petitioner was selected in the year 1998, his appointment came in the year 2006. Also perused the materials on record. 22. After perusal of the materials on record and hearing the learned counsel for the parties, what transpires is that though petitioner was selected in the year 1998, his appointment came in the year 2006. This delayed appointment was because of the intervening appointment of Shri Bijon Daimary whose appointment has now been found to be contrary to the Rules and was cancelled. But the cancellation order has been set aside by this Court on the ground of violation of the principles of natural justice. What has happened thereafter has not been placed on record. 23. Be that as it may, petitioner was appointed in the year 2006 but because of holding of the same post by two persons, namely, by the petitioner and by the said Shri Bijan Daimary, salary could not be released. This controversy was resolved following cancellation of appointment of Shri Bijon Daimary where after petitioner was appointed and his salary was released, both current and arrear from 23.06.2006 i.e., from the date of joining. Petitioner now seeks compensation for delayed appointment and for delayed payment of salary and also seeks a direction to bring him under the ambit of Assam Services (Pension) Rules, 1969. 24. Coming to the second relief sought for first, it is not disputed that petitioner was appointed on 22.06.2006 where after he joined the School on 23.06.2006. Appointment of the petitioner being on 22.06.2006, he would be governed by the Pension Rules which were in force at that point of time and not by any Rules which were in existence earlier. That apart, as can be seen, petitioner had given an undertaking before the authorities that he would be governed by the new pension scheme and would not claim benefit under the Pension Rules, 1969. Therefore, this part of the prayer of the petitioner appears to be untenable and is accordingly rejected. 25. That apart, as can be seen, petitioner had given an undertaking before the authorities that he would be governed by the new pension scheme and would not claim benefit under the Pension Rules, 1969. Therefore, this part of the prayer of the petitioner appears to be untenable and is accordingly rejected. 25. Coming to the principal prayer of the petitioner, namely, payment of compensation for delayed appointment and further delay in payment of salary, it is true that a writ Court exercising powers under Article 226 of the Constitution of India may grant compensation for violation of right to life and personal liberty as enshrined in Article 21 of the Constitution in an appropriate case but there is a fundamental difference between payment of compensation as a public law remedy and claim to compensation under the private municipal law. In fact, compensation granted under Article 226 of the Constitution of India by the High Court or under Article 32 of the Constitution by the Supreme Court for violation of the right to life and personal liberty under Article 21 of the Constitution is in fact a misnomer. It is not compensation per se. It is in reality an exemplary cost or payment in the form of a palliative for the injury suffered by the aggrieved person for breach of Article 21, at the same time, having liberty to avail the civil remedy for payment of compensation. As noticed above, such compensation as granted under the public law remedy is fundamentally and qualitatively different from compensation granted under the private law remedy. A grievance relating to non-payment of salary, howsoever grave and genuine it may be, cannot be equated with a case of custodial violence or illegal arrest which stands on a different footing altogether. The compensation jurisprudence under the public law remedy which has evolved over the years following the judgment of Supreme Court in Nilabati Behera (supra) and other similar cases cannot be a substitute for a claim to compensation or damages for injury sustained on account of negligence or on account of arbitrary action of the State authorities leading to delayed appointment and salary resulting in sufferance of the petitioner. This is not to say that the action of the respondents should be condoned or overlooked. 26. This is not to say that the action of the respondents should be condoned or overlooked. 26. Petitioner had the remedy under the private municipal law and a proceeding under Article 226 cannot be a substitute for availing such remedy. In that view of the matter, Court is of the considered opinion that claim to compensation as a relief under the public law remedy would not be maintainable in the facts and circumstances of the case. However, having regard to the fact that for 6 long years petitioner was admittedly deprived of his due salary, i.e., from 2006 to 2012 which had certainly caused distress to him, some cost should be awarded to the respondents. The fact that authorities of the erstwhile BAC had committed mischief would not insulate the BTC and its officials from the consequence of such illegal and arbitrary action of the officials of the erstwhile BAC because appointing authority of the petitioner is the BTC. 27. In the facts and circumstances of the case, Court is of the view that cost of Rs.25,000/- should be paid by the BTC, i.e., respondent Nos.2 and 3 to the petitioner which would be just and proper in the facts and circumstances of the case. Let the aforesaid amount be paid to the petitioner within a period of 8 weeks from the date of receipt of a certified copy of this order by respondent Nos.2 and 3. 28. Both the writ petitions are accordingly disposed of.