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2017 DIGILAW 1415 (GAU)

Md. Arju Ali v. State of Assam

2017-11-09

SUMAN SHYAM

body2017
JUDGMENT AND ORDER : Heard Mr. M. A. Sheikh, learned counsel appearing for the writ petitioner. I have also heard Mr. A. Deka, learned Standing Counsel, Secondary Education Department, Assam appearing for respondent Nos.1, 2 and 3, as well as Mr. P. Nayek, learned Standing Counsel, Finance Department, appearing for respondent No.4. 2. This is the second time the petitioner has approached this Court with a prayer to issue a direction upon the respondents to pay him arrear salaries with effect from 01.06.1996 till 09.06.2011, during which period, the petitioner had worked as a Subject Teacher in the Guwahati Night Higher Secondary School, Paltanbazar. It appears from the record that the petitioner is an M.A. in Economics and he was initially appointed as an Assistant Teacher in the Jalukbari Girls’ High School on 01.06.1987. Thereafter, the petitioner was temporarily appointed as a Subject Teacher in Economics in the same school against an allotted post but later on the post of Subject Teacher (Economics) was withdrawn from the Jalukbari Girls High School and transferred to Panbazar Girls High School. Subsequently, the petitioner was appointed as a Subject Teacher in Economics in Guwahati Night Higher Secondary School, Paltanbazar on 05.06.1995. The petitioner had received his salary till the month of May, 1996 but thereafter, no salary was paid to him allegedly on the ground that there was no retention of the post held by the petitioner. Eventually, the petitioner’s services were regularised as Subject Teacher (Economics) with effect from 09.06.2011. 3. The petitioner had earlier approached this Court by filing WP(C) No.5284/2006, inter alia, praying for regularisation of his services and also for issuance of a direction to pay his arrear salary and allowances. After hearing the learned counsel for the parties the learned Single Judge had passed the judgment and order dated 18.12.2006 in WP(C) No.5284/2006 dismissing the writ petition, inter alia, holding that neither of the prayers made in the writ petition were maintainable in the facts and circumstances of the case. Be it mentioned herein that the departmental Screening Committee had found that the appointment of the petitioner was not against any sanctioned post and he was one of the excess appointees. 4. Aggrieved by the judgment and order dated 18.12.2006, the petitioner had filed Writ Appeal No.69/2007. Be it mentioned herein that the departmental Screening Committee had found that the appointment of the petitioner was not against any sanctioned post and he was one of the excess appointees. 4. Aggrieved by the judgment and order dated 18.12.2006, the petitioner had filed Writ Appeal No.69/2007. A submission was made before the Division Bench that although the respondents had regularised the services of 31 other teachers, whose appointments had been found to be not against any sanctioned post by the Screening Committee, yet, even though, the writ petitioner was also similarly situated as the 31 teachers, the Government has denied him the benefit of similar treatment. The Director of Secondary Education had filed an affidavit before the Division Bench wherein it was admitted that the Government had created 142 posts of Subject Teacher in the year 1996 out of which 31 posts were utilised for regularising the services of 31 excess teachers. 5. Taking note of the said stand taken by the department, the Division Bench had disposed of the Writ Appeal No.69/2007 by judgment and order dated 17.03.2009 with a direction that the writ petitioner be extended the similar benefits as the 31 other teachers. Operative part of the judgment and order dated 17.03.2009 is quoted herein below for ready reference:- “(14) If a person was given a particular relief, another person, who is similarly placed should not be deprived of the same advantage, except where the facts and circumstances require a different treatment. The concept of justice cannot be expanded so as to cause heart-burning to other similarly placed candidates. One should get equality of opportunity in matters relating to public employment, which is the foundation of the provision as contained under Article 16 of the Constitution of India. In view of the above, discussion, as it is made out, we do not intend to go into the depth of the issue any more. One should get equality of opportunity in matters relating to public employment, which is the foundation of the provision as contained under Article 16 of the Constitution of India. In view of the above, discussion, as it is made out, we do not intend to go into the depth of the issue any more. (15) Considering the aforesaid aspect of the matter, in light of what has been discussed above, as the appellant has been rendering continuous service in the school without getting salary for last 13 years and further considering that the Government has already regularised excess appointment of subject teachers, who were similarly placed with the appellant, we would like to close this writ appeal with a direction to the respondents to consider the prayer of the appellant to extend the same benefit to the appellant, which was given to all others, who were similarly situated. However, keeping in view the ordeal the appellant has experienced, the respondents are directed to complete the exercise within a period of 3(three) months from today.” 6. Pursuant to the judgment and order dated 17.03.2009, the Director of Secondary Education, Assam had issued the order dated 09.06.2011 regularising the service of the petitioner with prospective effect as Subject Teacher (Economics) in the Guwahati Night Higher Secondary School, Paltanbazar against a vacancy which arose on 01.04.2010 on superannuation of one Mrs. Maini Mahanta. After the notification dated 09.06.2011 was issued the petitioner had approached this Court by filing the present writ petition making the following prayers:- “Under the above facts and circumstances it is therefore prayed that your Lordships would be pleased to admit this application, call for the records, issue a rule calling upon the respondents to show cause as to why a writ in the nature of Mandamus shall not be issued directing the respondents to pay the salaries of the petitioner from 1st June, 1996 to 9th June, 2011 and on perusal of records and reply to show cause if any and after hearing the parties would be pleased to make the rule absolute by directing the respondents to pay the salaries to the petitioner from 1st June, 1996 to 9th June, 2011. And or pass any other orders or direction as Your Lordship may deem fit and proper for the interest of justice.” 7. Mr. And or pass any other orders or direction as Your Lordship may deem fit and proper for the interest of justice.” 7. Mr. Sheikh, learned counsel for the writ petitioner, submits that the Division Bench had directed the respondents to extend the benefit of similar treatment to the petitioner as the 31 other excess teachers. Such a direction would not only include the claim of regularisation of services of the petitioner but would also apply to the prayer for payment of arrear salaries since similar benefits has been extended in the case of Mrs. Gitanjali Dutta, a Subject Teacher in Economics of Moran Higher Secondary School, who was one of the 31 excess teachers. In support of his argument, Mr. Sheikh has referred to the RTI reply dated 07.04.2012 which indicates that Mrs. Gitanjali Dutta was paid salary in the regular scale of pay with effect from 22.04.1992. Under the circumstances, a prayer has been made to issue a direction granting the relief of arrear salary and allowances to the petitioner. 8. The case of the petitioner has been opposed by Mr. A. Deka, learned Standing Counsel, Secondary Education Department, by inter alia contending that the petitioner had not challenged the order of regularisation dated 09.06.2011 which was issued strictly in terms of the order dated 17.03.2009 passed by the Division Bench. Considering the fact that relief for payment of arrear salary, although prayed for in the earlier writ petition, was declined by the learned Single Judge and not granted by the Division Bench also, the relief in the present writ petition is clearly barred by the principles of res judicata. 9. I have considered the submissions made by the learned counsel for the parties and have also perused the materials available on record. 10. In this Writ Petition, we are not concerned with the appointments made in favour of the petitioner prior to 05.06.1995. From the record, it is apparent that the petitioner was initially appointed temporarily as a Subject Teacher in Economics in Guwahati Night Higher Secondary School, Paltanbazar but since the post was not retained after May, 1996, hence, no salary was paid to him. The petitioner is now receiving regular salary after his regularisation in service with effect from 09.06.2011. From the record, it is apparent that the petitioner was initially appointed temporarily as a Subject Teacher in Economics in Guwahati Night Higher Secondary School, Paltanbazar but since the post was not retained after May, 1996, hence, no salary was paid to him. The petitioner is now receiving regular salary after his regularisation in service with effect from 09.06.2011. Therefore, the only question that arises for determination in this case is as to whether, a direction can be issued for payment of arrear salary to the petitioner for the period from 01.06.1996 to 09.06.2011. 11. The relief prayed for by the writ petitioner cannot be granted for the following reasons:- (1) There is no sanctioned post against which the petitioner was rendering service with effect from June, 1996 till his regularisation. As such, the question of paying salary for appointment against a non-existent post cannot arise in the eye of law. (2) The petitioner had made the same prayer in WP(C) No.5284/2006 which was rejected by the learned Single Judge by giving elaborate reasons which includes recording findings of fact that the selection and appointment of the petitioner was dehors the process of law and that the petitioner was not appointed against any valid sanctioned post. Such finding of fact had remained undisturbed in the Writ Appeal No.69/2007. Although the Division Bench had issued a direction for extending the similar benefit to the petitioner as the 31 other excess teachers, yet, from a perusal of the judgment and order dated 17.03.2009 it is clear that the only consideration of the Hon’ble Division Bench was as regards the claim of the petitioner for regularisation inasmuch as there is not even a whisper as regards the prayer for payment of arrear salary in the judgment and order dated 17.03.2009. 12. From the discussions and deliberations in the order dated 17.03.2009 it is apparent that the direction of the Division Bench was confined to the prayer for regularisation of the petitioner’s services, which has been duly carried out by the authorities. Since the findings recorded by the learned Single Judge rejecting the prayer for payment of arrear salary has remained undisturbed, the said aspect of the matter cannot be gone into again in the present writ petition. Since the findings recorded by the learned Single Judge rejecting the prayer for payment of arrear salary has remained undisturbed, the said aspect of the matter cannot be gone into again in the present writ petition. That apart, since the petitioner has failed to establish that he was serving against a sanctioned post with effect from 01.06.1996 to 09.06.2011, the question of issuing a mandamus directing the authorities to make payment of arrear salary and allowances cannot arise in the facts and circumstances of the case. 13. Since Mrs. Gitanjali Dutta is not made a party to this Writ Petition, hence, there is neither any scope nor necessity for this Court to examine the contents of the RTI Reply dated 07.04.2012 or the circumstances under which it was issued. 14. For the reasons stated herein above, I am of the view that the writ petition lacks merit and the same is accordingly dismissed. There will be no order as to cost.