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2017 DIGILAW 1259 (GAU)

Hamidur Rahman v. State of Assam

2017-09-07

AJIT SINGH, MANOJIT BHUYAN

body2017
JUDGMENT : MANOJIT BHUYAN, J. Heard Mr. M. Dutta, learned counsel for the appellant/writ petitioner as well as Ms. P. Chakraborty, standing counsel, Secondary Education Department for respondent Nos. 1, 2, 4 to 8. There is no representation on behalf of the remaining respondents, i.e., respondent Nos. 3, 9 and 10, though served. 2. This is an intra-court appeal against the judgment and order dated 25.8.2015 passed in WP(C) No. 3655/2010. Although in the writ petition challenge was made to the order of termination of service as Asstt. Teacher as well as for a direction for payment of salary with effect from December 2003, it appears that the appellant/writ petitioner did not pursue with the challenge made to the termination order. The writ petition had proceeded and was decided only on the claim made to payment of salary. The writ petition was dismissed as the learned Single Judge found that since the appellant/writ petitioner was not appointed as Asstt. Teacher by undergoing due process of recruitment, but merely being appointed against a lien vacancy, such illegal appointment cannot confer any right to claim salary for service rendered. In this regard, reliance was placed in the case of State of Orissa v. Mamata Mohanty, (2011) 3 SCC 436 . Aggrieved, the present writ appeal was instituted. 3. For the sole purpose of ascertaining whether the appellant can claim salary from December 2003 and also until which date such claim for salary can be entertained, it would be essential to take notice of three relevant dates. 4. First, on 30.11.1999 the appellant was appointed as a Senior Hindi Teacher at Lakhipur Higher Secondary School against a lien vacancy. Second, in course of time and by order of the Inspector of Schools, GDC, Goalpara dated 17.6.2003, the post held by the appellant was converted to a general post vice one Chakreshwar Kakoti, who had retired from service. The third relevant date is 7.7.2009 when an order was passed by the Director of Secondary Education, Assam terminating the appellant from service with immediate effect. From the dates aforementioned, it stands clear that the appellant was discharging duties as Assistant Teacher from 30.11.1999 to 7.7.2009. On his own admission, he received salary up to November 2003. 5. From the available records it is seen that the appellant had earlier instituted WP(C) No. 49/2006 for release of his salaries from December 2003. From the dates aforementioned, it stands clear that the appellant was discharging duties as Assistant Teacher from 30.11.1999 to 7.7.2009. On his own admission, he received salary up to November 2003. 5. From the available records it is seen that the appellant had earlier instituted WP(C) No. 49/2006 for release of his salaries from December 2003. The said writ petition was disposed of on 6.4.2006 directing that the matter be referred to the Expert Committee constituted for the purpose. Pursuant thereto, the case of the appellant along with persons similarly situated received consideration of the Committee, which rejected his case by recommending his termination from service. The Committee also recommended payment of salary to the appellant for the period he actually served. Following the recommendation made by the Expert Committee, the termination order dated 7.7.2009 was issued. 6. With regard to the entitlement of salary for the period from December 2003 to 7.7.2009, this court is of the considered view that the appellant is legitimately entitled to be paid salary for the aforesaid period. Our view is based on the proposition enunciated in a catena of decisions of the Supreme Court, particularly in the case of Abdul Majid v. State of Bihar, AIR 1954 SC 245 , wherein it has been held that the court is entitled to give arrears of salary earned by a public servant for the period he was actually in service. Such claim is not based on tort but on quantum meruit, in as much as it is not implicit that a person serves ‘ex-gratia’ or that his salary is in the nature of a bounty. There is no dispute to the fact that the appellant served as an Assistant Teacher from 30.11.1999 until issuance of the order of termination on 7.7.2009. In this respect, the Expert Committee had also recommended for payment of salary to the appellant for the period he actually served. Also, Ms. Chakraborty, learned counsel representing the Secondary Education Department, does not object to the claim of the appellant towards entitlement of salary for the period until 7.7.2009. 7. In this respect, the Expert Committee had also recommended for payment of salary to the appellant for the period he actually served. Also, Ms. Chakraborty, learned counsel representing the Secondary Education Department, does not object to the claim of the appellant towards entitlement of salary for the period until 7.7.2009. 7. For all the aforesaid reasons, the present appeal stands allowed to the extent of directing the State respondents in the Secondary Education Department to calculate the salary payable to the appellant for the period from December 2003 to 7.7.2009 and thereafter to take further steps for payment of the amount due to the appellant within a period of 4 months from today. 8. With the above directions, the present appeal stands disposed of by setting aside the judgment and order dated 25.8.2015 passed in WP(C) No. 3655/2010.