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2017 DIGILAW 199 (GAU)

Bidyut Prova Devi v. State of Assam

2017-02-14

MANOJIT BHUYAN

body2017
JUDGMENT AND ORDER : Manojit Bhuyan, J. Petitioner is a widow. Her deceased husband Paresh Chandra Sarma worked as Lecturer at Melamora Junior College on and from 11.08.1995. At the relevant point of time there were 48 Junior Colleges in the State and for the purpose of granting Deficit Grants-in-Aid to the said colleges, a set of enactment called the Assam Junior College (Provincialisation) Act, 1996 was brought into force w.e.f. 26.03.1996. Claiming benefits under the said Act, Civil Rule 922/1997 was instituted by Assam Junior College Teachers Association and the said writ petition was answered by Judgment & Order dated 27.02.1998 directing the State Respondents to grant benefits in terms of Section 3 of the Act to the teaching and non-teaching employees of all the 48 Junior Colleges in the State. 2. In so far as Melamora Junior College is concerned, the respondent no. 5 in his capacity as the Principal of the College prepared and forwarded the particulars of the teaching staff, including the name of the petitioner's husband, who was a Lecturer of English. In the said statement, however, the name of the respondent no. 7 Sri Kumud Bora was not shown. 3. By virtue of the Government Notification dated 02.01.1999 a decision was taken to bring the 48 Junior Colleges under the Deficit Grants-in-Aid w.e.f. 26.03.1996. The said notification was followed by Notification dated 13.04.1999 whereby the Government in the Education Department decided to initially provide benefit to one solitary post of Junior Lecturer per subject per college. As a result, out of the total 1099 numbers of teaching and non-teaching employees in the 48 Junior Colleges, 822 employees were brought under the Deficit system of Grants-in-Aid. 4. Prejudice having caused to the remaining employees, they constituted an association called the Assam Junior College Second Post Teachers' and Library Assistants' Association and instituted WP(C) 2071/1999 for redressal of their grievance. The said writ petition was answered by Judgment & Order dated 16.12.1999 with direction to the State Respondents to grant the benefits flowing out of Section 3 of the aforesaid Act within a period of 3 (three) months. However, the said Association was constrained to institute another writ petition i.e. WP(C) 5246/2000 claiming that all the 1099 posts of teaching and non-teaching staff be brought under the Deficit system of Grants-in-Aid at one go and not in a phased manner. However, the said Association was constrained to institute another writ petition i.e. WP(C) 5246/2000 claiming that all the 1099 posts of teaching and non-teaching staff be brought under the Deficit system of Grants-in-Aid at one go and not in a phased manner. Simultaneously, prayer was also made for quashing of the Notification dated 13.04.1999 whereby the Government had decided to provide benefit to one post of Junior Lecturer per subject per college. 5. On 04.12.2000 the said WP(C) 5426/2000 was disposed of with direction to the respondent authorities to take necessary steps to give the benefit of Deficit Grants-in-Aid as notified in the Government Notification dated 02.01.1999 within a period of 6 (six) months. Following the Court's Order dated 04.12.2000, the Government of Assam in the Education (Secondary) Department issued letter dated 31.03.2001 extending the benefit of Deficit Grants-in-Aid to another 227 employees, leaving aside 50 other employees. 6. In so far as Melamora Junior College is concerned, the Principal again submitted the list of teaching and non-teaching staff of the College who had been dropped from getting the benefit. While the name of Paresh Chandra Sarma (petitioner's husband) figured at serial no. 5, the name of the respondent no. 7 did not find any mention in the list. Eventually, the State Respondents issued the letter dated 04.10.2006 conveying the approval of the Governor of Assam to extend the benefit of Deficit Grants-in-Aid to the balance 50 posts comprising of teaching and non-teaching staff of respective Junior Colleges. In the said letter dated 04.10.2006 it was made clear that the posts will be personal to the incumbent concerned and shall stand automatically abolished once the incumbent vacates the said post in any form. In the list of incumbents appended to the said letter dated 04.10.2006, the name of the petitioner's husband Paresh Chandra Sarma figured at serial no. 7. The name of the respondent no. 7 did not, however, find mention again. 7. One vital fact that occurred prior to the issuance of the letter dated 04.10.2006 was the demise of the petitioner's husband Paresh Chandra Sarma on 25.08.2006. Consequent upon the letter dated 04.10.2006, financial benefits was accorded to the employees concerned for the period from 01.02.2001 to 31.12.2010. The effective starting date i.e. 01.02.2001 was, however, at the intervention of the Court, which would be noticed in the later part of this order. Consequent upon the letter dated 04.10.2006, financial benefits was accorded to the employees concerned for the period from 01.02.2001 to 31.12.2010. The effective starting date i.e. 01.02.2001 was, however, at the intervention of the Court, which would be noticed in the later part of this order. Such financial benefit was not granted to the petitioner's husband, which prompted her to make an application under the Right to Information Act, reply of which was received on 17.03.2012. The petitioner came to learn that the respondent no. 7 had been extended the benefit in place of her husband. Claiming relief confined to financial benefits, the present writ petition came to be instituted on 16.08.2012 for direction to the respondent authorities to sanction the arrear salaries of her husband w.e.f. 01.02.2001 to 25.08.2006 (date of demise) and to release the same in favour of the petitioner. 8. Mr. R. De, learned counsel for the petitioner submits that it was wholly arbitrary and unreasonable on the part of the State Respondents to deny financial benefits to the petitioner's husband, who admittedly worked as Lecturer of English at Malamora Junior College and had been granted the benefit of Deficit Grants-in-Aid, although subsequent to his demise. Mr. De submits that the demise of the petitioner's husband would only tantamount to the abolition of the post but the same cannot go to deny financial benefits which was legitimately due to the petitioner's husband. Mr. De also submits that the benefit extended to the respondent no. 7 was unwarranted, inasmuch as, his name did not figure in either of the particulars sent by the Principal of Melamora Junior College nor in the list of incumbents appended to the letter dated 04.10.2006. Lastly, Mr. De submits that in any view of the matter the Respondent No. 7 could not have been allowed to replace and usurp the financial benefits that was legitimately due to the petitioner's husband. He also alleges fraud on the part of the respondent no. 7. 9. Mr. N. Sarma, learned counsel representing the Director of Secondary Education, Assam refers to the affidavit-in-opposition and submits that the letter dated 04.10.2006 made it absolutely clear that the grant of benefit would be subject to the condition that the post will be personal to the incumbent concerned and the same would stand automatically abolished once the incumbent vacates it in any form. Mr. Mr. Sarma also submits that pursuant to the letter dated 04.10.2006, no documents had been received by the Directorate in respect of Paresh Chandra Sarma towards approval of his appointment. He adds that since Paresh Chandra Sarma died on 25.08.2006, that is before the sanction of posts, as such, approval for appointment was not done from the end of the Directorate of Secondary Education, Assam. Following the demise of Paresh Chandra Sarma, the post stood automatically abolished. 10. Mr. R. Thadani, learned counsel representing the Principal of Melamora Junior College (Respondent No. 5), refers to the affidavit-in-opposition so filed and submits that the respondent no. 7, whose name was also brought from the first list, was subsequently forwarded for consideration of the department for getting the benefit of Grants-in-Aid. According to the respondent no. 5, the respondent no. 7 Sri Kumud Bora had been duly appointed as Lecturer in the Department of Logic & Philosophy in the College on 01.07.1996. Further, the benefit of Grants-in-Aid as well as arrear salary, as sanctioned by the Department concerned, was granted to the said respondent no. 7 in view of the Judgment & Order dated 08.05.2007 passed in WP(C) 6377/2006 as well as the Judgment & Order dated 26.05.2010 passed in WP(C) 2672/2009. 11. Mrs. N. Saikia, learned counsel standing for respondent no. 7 submits that it is incorrect and improper on the part of the petitioner to allege fraud. It is contended that there is no suppression of facts and that the respondent no. 7 has been in employment as Lecturer in Logic & Philosophy at Melamora Junior College on and from 01.07.1996. It is further contended that the said respondent no. 7 had all along agitated along with persons similarly situated for being extended Deficit Grants-in-Aid. Strong reliance is placed in the Judgment & Order dated 08.05.2007 and 26.05.2010, as above, to buttress the argument that the financial benefits granted to the respondent no. 7 was not by way of any suppression of facts or out of the blue, but in terms of clear orders passed in the aforesaid two writ petitions i.e. WP(C) 6377/2006 and WP(C) 2672/2009, the former having been instituted by the respondent no. 7 alone. 12. In reply, the petitioner averred that the respondent no. 7 was not employed against any second posts and neither he was a dropped Lecturer. 7 alone. 12. In reply, the petitioner averred that the respondent no. 7 was not employed against any second posts and neither he was a dropped Lecturer. Else, his name would have definitely been included in the particulars prepared by the Principal. It is argued that the respondent no. 7 was in no way entitled to receive the benefit as have been extended to the dropped teachers. Petitioner also contends that having regard to the condition in the letter dated 04.10.2006 by which the post held by her husband stood abolished on his demise, no one could have been appointed and/or adjusted. However, the respondent authorities acted otherwise despite the fact that the respondent no. 7 was not a second post holder or had been dropped at the time of bringing the colleges under the Deficit Grants-in-Aid system. 13. The facts of the case are indeed exhaustive but in view of the Judgment & Order dated 08.05.2007 in WP(C) 6377/2006 as well as the Judgment & Order dated 26.5.2010 in WP(C) 2672/2009, the point for determination/adjudication of the case have narrowed down to a large extent. Apparently, the name of the respondent no. 7 does not figure in any of the list prepared by the Principal. Neither his name finds mention in the list appended to the letter dated 04.10.2006. At first glance, one would wonder as to how financial benefits could have been extended to the said respondent no. 7 in place of the petitioner's husband. The answer lies in the aforementioned Judgment & Order dated 08.05.2007 in WP(C) 6377/2006. This was a case instituted by the respondent no. 7 claiming the benefit of Grants-in-Aid. The order of 08.05.2007 records that the list of beneficiaries in terms of the letter dated 04.10.2006 also included the name of the petitioner's husband. The fact that Paresh Chandra Sarma died prior to the issuance of the letter dated 04.10.2006 also finds recorded. On facts thereof, the writ petition was disposed of with a categorical direction, particularly to the respondent nos. 1 and 3 therein, to pass necessary orders making the benefit of Grants-in-Aid available to the writ petitioner therein (Kumud Bora) in place of Paresh Chandra Sarma. The exercise was directed to be completed within 3 (three) months. On facts thereof, the writ petition was disposed of with a categorical direction, particularly to the respondent nos. 1 and 3 therein, to pass necessary orders making the benefit of Grants-in-Aid available to the writ petitioner therein (Kumud Bora) in place of Paresh Chandra Sarma. The exercise was directed to be completed within 3 (three) months. In another writ petition i.e. WP(C) 2672/2009, instituted by a batch of petitioners, including Kumud Bora, seeking direction to the respondent authority for extending benefit of Grants-in-Aid from the date when the respective colleges had received Grants-in-Aid, the said writ petition was also disposed of on 26.05.2010 with direction to the Commissioner & Secretary to the Government of Assam, Education (Secondary) Department to take up the matter of the petitioners therein towards giving benefit of Grants-in-Aid w.e.f. 01.02.2001. In the light of the aforesaid two Judgments dated 08.05.2007 and 26.05.2010, the respondent no. 7 Kumud Bora was granted financial benefit w.e.f. 01.02.2001, as in the case of the others. On a pointed query, Mr. De, learned counsel for the petitioner submits that neither of the judgments, particularly the Judgment dated 08.05.2007 in WP(C) 6377/2006, had either been carried in any appeal or any review sought. The said judgment, as a matter of fact, have attained finality. 14. Considering the judicial pronouncement in favour of the respondent no. 7, this Court is left without any option but to hold that the benefits granted to respondent no. 7 do not suffer from any illegality. No interference is called for against respondent no. 7. Unfortunate it may be, but the relief claimed by the petitioner cannot be granted in view of the pronouncement of the Court in WP(C) 6377/2006. At the cost of repetition, the judgment dated 08.05.2007 rendered a clear direction that the benefit of grants-in-aid be made available to the writ petitioner therein (Kumud Bora in that case) in place of Paresh Chandra Sarma. 15. On the allegation of fraud on the part of the respondent no. 7, Mr. De relies on paragraph 29 of the writ petition as well as on paragraphs 8, 9 and 13 of the affidavit-in-reply filed against the affidavit-in-opposition of the respondent no. 7. Mr. 15. On the allegation of fraud on the part of the respondent no. 7, Mr. De relies on paragraph 29 of the writ petition as well as on paragraphs 8, 9 and 13 of the affidavit-in-reply filed against the affidavit-in-opposition of the respondent no. 7. Mr. De also places reliance in the case of S.P. Chengalvaraya Naidu v. Jagannath reported in (1994) 1 SCC 1 for the proposition that a judgment and decree obtained by playing fraud on the Court is a nullity and non est in the eyes of law. Mr. De submits that such a judgment/decree, either by the first Court or by the highest Court, must be treated as nullity by every Court, whether superior or inferior and that such judgment can be challenged in any Court even in collateral proceedings. In the instant case, a close perusal of the statements and averments made in the paragraphs aforementioned, no clear case is made out to establish fraud on the part of the respondent no. 7. Neither the judgment of 08.05.2007 is put to challenge in the present proceedings, as made admissible in the aforesaid reported judgment. 16. For all the discussions and reasons discussed above, I find no merit in the writ petition. No relief, whatsoever, can be granted to the petitioner. Writ petition fails and stands accordingly dismissed, however, without any order as to costs.