Research › Search › Judgment

Gauhati High Court · body

2017 DIGILAW 280 (GAU)

Rabbulhuda v. State of Assam

2017-03-03

MANOJIT BHUYAN

body2017
JUDGMENT : Manojit Bhuyan, J. Facts to be noticed is that petitioners herein were appointed by the Managing Committee of different schools during the period from 1996 to 1998 at a time when the said schools had already been provincialised. By two successive orders dated 03.03.1999 and 25.11.1999, the services of all the petitioners were regularized against sanctioned post by order of the District Elementary Education Officer (DEEO), Morigaon. The said orders of regularization was not disowned by the State respondents at any point of time. An order dated 19.02.2009 was issued by the DEEO, Morigaon, whereby their retention orders along with other similarly situated teachers were kept in abeyance. This order of 19.02.2009 was put to challenge by the petitioners herein in WP(C) No.2500/2011 and the same was disposed of vide order dated 21.11.2011 remanding the matter for consideration by the Expert Committee constituted for the purpose. In the present writ petition, challenge is made to the decision taken by the Expert Committee on 24.07.2012 recommending rejection of the claim of the petitioners and also instructing the Director of Elementary Education, Assam to cause an inquiry into the matter as to how the other teachers similarly situated were receiving salary. 2. While challenging the said order of the Expert Committee dated 24.07.2012, the petitioners also seek a direction to the respondents to take steps for payment of their salary from the time when orders of regularization had been issued in their favour. 3. Mr. M. Dutta, learned counsel for the petitioners submits that the issue with regard to their initial appointment cannot be reopened as subsequent steps had already been taken by the respondent authorities by regularizing their service against sanctioned post. Mr. Dutta also alleges hostile discrimination, in that, persons similarly situated who had been appointed by the Managing Committee, have been granted salary. It is also contended that the Committee while recommending rejection of the claim of the petitioners had relied upon a report of an Expert Sub-Committee, the contents of which was not made known to the petitioners. Lastly, the impugned order of the Expert Committee dated 24.07.2012 was rendered without due application of mind and without considering the fact that each of the petitioners have worked for more than 15 years without any let or hindrance, save and except, that their salaries have not been paid since the year 1999. 4. Per contra, Mr. Lastly, the impugned order of the Expert Committee dated 24.07.2012 was rendered without due application of mind and without considering the fact that each of the petitioners have worked for more than 15 years without any let or hindrance, save and except, that their salaries have not been paid since the year 1999. 4. Per contra, Mr. A. Deka, learned counsel for the Elementary Education Department submits that there is no denying the fact that all the petitioners were appointed by the Managing Committee at a time when the schools had been provincialised. Relying upon the judgment in Jahangir Alam and Ors. v. State of Assam and Ors., reported in 2003 (3) GLT 544, Mr. Deka submits that the Managing Committee was without power and jurisdiction to appoint any teacher in a provincialised school. The basis of their appointment being bad, as such, none of the petitioners were entitled to any salary. Reliance is also placed in the case of State of Orissa v. Mamata Mohanty, reported in (2011) 3 SCC 436 for the proposition that a person appointed without Advertisement and not in accordance with the rules is not entitled to claim any relief, including salary. Mere continuance in service cannot create any right on them. 5. Ms. A. Verma, learned counsel representing the Finance Department submits that in the absence of any communication from the Education Department, no concurrence has yet been issued by the Finance Department in so far as payment of salary to the petitioners are concerned. Ms. Verma also submits that even the orders of regularization, which had been issued way back in the year 1999, has not been brought to the knowledge of the Finance Department. 6. I have heard the learned counsel for the parties and have also perused the materials on record. 7. The issue for determination is whether the petitioners are entitled to salary for the period from their date of regularization or whether their claim stands negated by application of the pronouncements made in Jahangir Alam (supra) and Mamata Mohanty (supra). While answering the issue, the significant aspect in the present case is that the petitioners are not claiming regularization. Their prayer is only confined to payment of salary. 8. In Jahangir Alam (supra), the petitioners therein claimed regularization in service unlike the present case. While answering the issue, the significant aspect in the present case is that the petitioners are not claiming regularization. Their prayer is only confined to payment of salary. 8. In Jahangir Alam (supra), the petitioners therein claimed regularization in service unlike the present case. Whether such claim for regularization can be entertained, the Court noticed that the petitioners therein were appointed by the Managing Committee of the respective schools which had already been provincialised at the time of their appointment. This part in Jahangir Alam's (supra) case is identical to the present case. However, a significant difference lies in the aspect that whereas in Jahangir Alam's (supra) case, claim was made for regularization, the petitioners herein are not making similar prayers, in as much as, they had already been regularized way back in the year 1999 and which regularization have not yet been disowned or recalled or rescinded by the respondent concerned. The regularization orders in favour of the petitioners have remained intact until this date. What would be the status of persons who were appointed by the Managing Committee in schools which had already been provincialised and whose services had already been regularized, is an area which has not been judicially determined in the case of Jahangir Alam (supra). 9. In Mamata Mohanty (surpa), the Apex Court have held that it is a settled legal proposition that no person can be appointed even on a temporary or ad-hoc basis without inviting applications from all eligible candidates as the same would not go to meet the requirements of Article 14 and 16 of the Constitution of India. It was also held that a person employed in violation of these provisions, is not entitled to any relief including salary. If an order at the initial stage is bad in law, then all further proceedings consequent thereto must necessarily be non est. Taking it further, the Apex Court have also held that if similarly situated persons have been granted some benefit, such order will not confer any legal right to others to get the same relief. A caveat was also expressed that terminating the services of those who had been appointed illegally may not be desirable as a long period has elapsed. 10. A caveat was also expressed that terminating the services of those who had been appointed illegally may not be desirable as a long period has elapsed. 10. The admitted facts is that the petitioners herein were appointed by the Managing Committee of respective schools, followed by regularization of their service by orders of the State respondents and until today each of them have rendered more than 15 years in service without any break. The fact that they are working until this date, is also reflected in the impugned order of the Expert Committee dated 24.07.2012. 11. On the issues involved in the present case, the views expressed in the case of Mamata Mohanty (supra), as alluded to above, appears have received some dilution in the Constitutional Bench decision in State of Karnataka and Ors. v. Umadevi (3) and Ors., reported in (2006) 4 SCC 1 . At paragraph 53, in Umadevi (3) (supra), the Apex Court have held that in so far as the cases where irregular appointments (not illegal appointments) are concerned, the question of regularization of the services of such employees are required to be taken up as a one time measure and the same would be confined to persons who have worked for 10 years or more in duly sanctioned post but not under the cover of orders of the Courts or Tribunals. The significant observation made at paragraph 53, which is directly applicable in the instant case, is that regularization, if any already made, but not sub judice, need not be reopened based on the judgment and that there should be no further by-passing of the constitutional requirements. Without any doubt the appointments of the petitioners had been made by the Managing Committee. However, regularization, whether irregular or illegal had been made way back in the year 1999. In terms of paragraph 53 Umadevi (3), the same are not required to be reopened. 12. Having regard to the facts of the case and the observation made in paragraph 53 of Umadevi (3) (supra), it would not lie in the mouth of the State respondents to say that since the petitioners had been appointed by the Managing Committee, such appointments are illegal and therefore, they are not entitled to salary, more so, when regularization of service took place way back in the year 1999 and not having been disturbed until this date. 13. 13. The petitioners are indeed entitled to salary for the period that they have worked. It is not in dispute that they are in employment as on date. The issue remains as to from which date they can claim arrear salary. The said issue has been decided by a Division Bench of this Court in Harendra Chandra Nath and Ors. v. State of Tripura and Ors., reported in 2013 (2) GLT 1094, which lays down that relief of recovery of arrears for the past period has to be restricted to a period of 3(three) years prior to the date of filing the original writ petition. In the instant case, the petitioners had approached this Court in the year 2011 by way of a writ petition i.e. WP(C) 2500/2011. Having regard to that, the petitioners are legitimately entitled to arrear salary with effect from the 3(three) year period prior to 2011. 14. Having held thus, a direction is issued to the respondent authorities to take steps for payment of arrear salary to the petitioners in terms of the case in Harendra Chandra Nath (supra) and having regard to the date on which WP(C) 2500/2011 was instituted. Steps for payment of arrear salary be completed within a period of 4(four) months from today. Needless to say, the respondents shall make payment of the current salary to the petitioners without any interruption. Writ petition stands allowed to the extent above. No cost.