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2017 DIGILAW 288 (GAU)

Mukut Saikia v. State of Assam

2017-03-06

SUMAN SHYAM

body2017
JUDGMENT AND ORDER : Heard Mr. A. D. Choudhury, learned counsel appearing for the wit petitioners in WP(C) No.6279/2012 as well as Mr. U. K. Nair, learned counsel representing the writ petitioners in WP(C) No.6210/2010. Also heard Mr. S. K. Ghosh, learned Standing Counsel, Secondary Education Department, Assam as well as Mr. B. Gogoi, learned Standing Counsel, Finance Department, appearing on behalf of respondents. 2. Since a common grievance has been expressed by the petitioners in both the writ petitions, hence, I propose to dispose of both the writ petitions by this common order. 3. The brief factual matrix giving rise to the filing of the writ petitions, as apparent from the record, may be noticed as follows:- I. Pursuant to a scheme introduced by the Central Government for promotion of Hindi language in the non-Hindi speaking States, the Deputy Secretary to the Government of Assam, Education Department, had issued a notification bearing No.EPG.401/86/Pt.I/78 dated 31.03.1992 notifying the creation of 500 posts of Hindi Teachers with effect from 01.04.1992. Notification dated 31.03.1992 indicates that the fund for payment of salary of those teachers were to be borne by the Government of India under the 8th Five Year Plan. In the notification dated 31.03.1992, the 500 posts had been divided into four categories viz. (i) 300 posts of Senior Grade Hindi Teacher on ad- hoc basis at the fixed pay of Rs.1375/- per month; (ii) 50 posts of Junior Grade Hindi Teacher on ad- hoc basis at the fixed pay of Rs.1185/- per month; (iii) 60 posts of Senior Grade Hindi Teacher on regular pay scale of Rs.1375 - 3375/- per month and (iv) 40 posts of Junior Grade Hindi Teachers on regular pay scale of Rs.1185 – 2395/- per month. II. Pursuant to the notification dated 31.03.1992, the respondents had conducted a recruitment drive for filling up those 500 posts of Hindi Teaches and the selected candidates were accordingly assigned postings at different schools. Altogether 401 Hindi Teachers were appointed against those posts in the fixed pay of Rs 1375/- pm, out of which, 309 were posted in the various provincialized High/Higher Secondary Schools in Assam and the remaining 82 were assigned postings in the ad-hoc Secondary Schools in Assam. III. On the basis of their engagement as aforesaid, these Hindi Teachers continued to render their services. III. On the basis of their engagement as aforesaid, these Hindi Teachers continued to render their services. However, the Central Government took a decision not to make any fund available for payment of their salary under the 9th Five Year Plan. Under the circumstances, alternate arrangement had to be made by the Government of Assam for payment of salary of those Hindi teachers. As such, the State Government took a decision to abolish those 500 posts of Hindi Teachers temporarily created by the notification dated 31.03.1992 and thereafter, create 500 new posts of Hindi Teachers with effect from 01.03.1999 so as to accommodate the existing teachers who were earlier appointed as Hindi Teacher under the centrally sponsored scheme. Accordingly, by issuing Notification No.B(3)S.485/96/268 dated 12.10.1999, the Under Secretary to the Government of Assam, Education Department had notified the creation of the 500 new posts of Hindi Teachers. IV. After the creation of the 500 posts, the 309 Hindi Teachers serving in the different provincialised High/Higher Secondary Schools were adjusted against the newly created posts and were also extended the benefit of regular scale of pay of Rs 3580-8950/- with retrospective effect from 01-03-1999. However, services of the 82 Hindi Teachers, who were posted in the various ad-hoc Secondary Schools, were left out from the purview of the notification dated 12.10.1999, in as much as the services of those candidates were not regularized against the newly created posts. On the contrary, by issuing another notification dated 13.06.2000 it was provided that the Hindi Teachers appointed in the ad-hoc Secondary Schools would be allowed to draw basic pay of Rs.3580/- per month without any incremental benefit. V. By issuing a subsequent notification dated 03.08.2004 the respondent No.3 had circulated the Government sanction to the permanent retention of 401 (Four Hundred and One) temporary posts of Hindi Teachers originally created vide Government order dated 12.10.1999 and retained vide Government order dated 10.07.2003 bearing No.B(3)S.485/96/377 thereby, providing the list of schools, numbering 401 in total, in respect of which the aforementioned newly created posts would be available. VI. The writ petitioners belong to the group of 82 Hindi Teachers who were initially posted in the ad-hoc Secondary Schools. VI. The writ petitioners belong to the group of 82 Hindi Teachers who were initially posted in the ad-hoc Secondary Schools. Having been denied the benefit of the notification dated 12-10-1999, the petitioners made several representations before the Government seeking the benefit of regular scale of pay on the ground that they were similarly situated as those Hindi Teachers appointed under the Central Government Scheme whose services had been regularized with retrospective effect from 01-03-1999. VII. On receipt of representations made by the petitioners, the respondent No.3 had issued a communication dated 27.04.2004 addressed to the respondent No.1, highlighting the grievances of the petitioners thereby forwarding the proposal for extending the benefit of regular pay scale to all those 82 Hindi Teachers. VIII. Since the communication dated 27.04.2004 did not evoke any response from the Government, hence, some of the petitioners had approached this Court by filing WP(C) No.1676/2005. Taking note of the grievance expressed in the writ petition, this Court had disposed of the WP(C) No.1676/2005 by the order dated 04.03.2005 issuing a direction upon the respondents to consider the claim of the petitioners for payment of salary in the regular scale of pay by adopting a sympathetic consideration of their grievances. A direction was also issued to pass a speaking order disposing of the claim of the petitioners. IX. In terms of the order dated 04.03.2005 passed by this Court in WP(C) No.1676/2005, the respondent No.1 i.e. the Commissioner and Secretary to the Government of Assam, Education Department, had passed a speaking order dated 11.04.2007, inter alia, holding that the petitioners would have no right to claim regular pay scale as has been given to their counter-part serving under the provincialised schools since they had joined the ad-hoc schools being fully aware that they would be getting fixed pay instead of scale pay and accordingly they had entered into a contract with the employer which they cannot now reject. Accordingly, a recommendation was made to the effect that the cases of the 82 numbers of Hindi Teachers may be considered for appointment in provincialised High/Higher Secondary Schools sympathetically within the framework of the Rules when such vacancies arise in future. Accordingly, a recommendation was made to the effect that the cases of the 82 numbers of Hindi Teachers may be considered for appointment in provincialised High/Higher Secondary Schools sympathetically within the framework of the Rules when such vacancies arise in future. X. In terms of the order dated 11.04.2007, the Under Secretary to the Government of Assam, Education Department, had issued a further notification dated 19.06.2009 adjusting the services of the 76 ad-hoc fixed pay teachers, out of the 82 who were still in service, against sanctioned vacant posts in the provincialised High/Higher Secondary schools with prospective effect. The order dated 19.06.2009 has been shown to have been passed in compliance with the order of this Court dated 04.03.2005 passed in WP(C) No.1676/2005. The present petitioners are amongst those candidates whose services had been regularized by the order dated 19-06-2009. However, since the order dated 19.06.2007 has been given prospective effect, hence, the claim of the petitioners for treating them at par along with their counterparts serving under the provincialised High/Higher Secondary Schools by giving the benefit of regular pay scale with retrospective effect from 01.03.1999 stood rejected by necessary implications. Aggrieved, the writ petitioners have approached this Court by filing the present writ petitions seeking similar effect of their order of regularization from 01.03.1999 as has been given in case of their counterparts initially appointed as Hindi teachers in the provincialised High/Higher Secondary schools. 4. Mr. A. D. Choudhury, learned counsel for the petitioners in WP(C) No.6279/2012, has forcefully argued that all the Hindi Teachers were recruited by the Government in the wake of the posts created under the Central Government sponsored scheme and the intake mechanism adopted by the Government was also one and the same for all the teachers. After the list of selected candidates were prepared, a decision was taken by the respondent No.3 to assign places of postings to the selected candidates and it was on such basis that the 82 selected candidates were posted in the ad-hoc Secondary Schools whereas the remaining 309 candidates were posted in the provincialised High/Higher Secondary Schools. The reason why the petitioners had been posted in the ad-hoc Secondary Schools is not because of their merit position/qualification or any other criteria but because the respondent No.3 had chosen to do so. 5. That part, submits Mr. The reason why the petitioners had been posted in the ad-hoc Secondary Schools is not because of their merit position/qualification or any other criteria but because the respondent No.3 had chosen to do so. 5. That part, submits Mr. Choudhury, after the initial orders of appointment, all the Hindi Teachers including the petitioners were paid the same fixed pay which continued till such time the 500 posts of Hindi Teachers were created by the Government of Assam under the Notification dated 12.10.1999 and permanently retained by the subsequent notification dated 03.08.2004. It was only after the posts were permanently retained that the benefit of regular pay scale was extended to all the Hindi Teachers with effect from 01.03.1999 but the petitioners were left out only on the ground that their initial postings were in ad-hoc Secondary Schools. Mr. Choudhury, therefore, submits that the writ petitioners are similarly situated as the other Hindi teachers for all intent and purposes and therefore were entitled to equal treatment in the matter of regularization of service. Notwithstanding the same, the respondents have meted out a discriminatory treatment only to these 82 Hindi Teachers treating them as a separate class, even though there was no reasonable basis to do so. 6. Mr. U. K. Nair, learned counsel for the writ petitioners in WP(C) No.6210/2010, has substantially adopted the arguments of Mr. Choudhury but has added that the process through which the 500 posts were created under the notification dated 31.03.1992 was one and the same and therefore the authorities could not have discriminated the writ petitioners only on the ground that they were assigned duty under ad-hoc Secondary Schools. 7. Responding to the submissions made by the learned counsel appearing on behalf of the writ petitioners, Mr. S. K. Ghosh, learned Standing Counsel, Education Department, submits that the consideration of the representation filed by the petitioners had been done strictly in accordance with the letter and spirit of the order dated 04.03.2005 passed by this Court in WP(C) No.1676/2005 whereby this Court had directed the respondents to consider the case of the petitioners sympathetically. There was no direction issued by this Court to extend them the benefit of the regular pay scale with effect from any particular date. As such, the impugned orders dated 11.04.2007 and 19.06.2009 do not suffer from any infirmity warranting interference by this Court. 8. There was no direction issued by this Court to extend them the benefit of the regular pay scale with effect from any particular date. As such, the impugned orders dated 11.04.2007 and 19.06.2009 do not suffer from any infirmity warranting interference by this Court. 8. By referring to the averments made in the counter affidavit, Mr. Ghosh has further submitted that the writ petitioners were not recruited on the basis of any proper selection process and hence, they are not entitled to similar treatment like those appointed against the vacancies in the provincialised High/Higher Secondary Schools. He further submits that the writ petitioners had also not questioned the decision of the respondent No.3 in engaging them in the ad-hoc Secondary Schools in the year 1999 and therefore, their claim would be clearly barred by the principles of waiver and estoppel. 9. Joining issues, Mr. B. Gogoi, learned Standing Counsel, Finance Department, submits that in the absence of any direction from this Court to consider their cases at par with other Hindi Teachers, respondents cannot be found fault with for issuing the impugned orders, more so when their services have already been regularized with prospective effect by giving them the benefit of regular pay scale. 10. I have bestowed my anxious consideration to the rival submissions made at the bar and have also gone through the materials available on record. 11. Record reveals that the 500 posts of Hindi Teacher were originally created by the Government of Assam with effect from 01.04.1992 by issuing the notification dated 31.03.1992. Those posts were created under a Centrally Sponsored Scheme (CSS) whereby, the necessary fund was provided by the Government of India. Accordingly, the respondents had initiated a recruitment drive for filling up those 500 posts of Hindi Teachers pursuant to which the writ petitioners were selected. It is not clear from the record as to the method adopted by the respondents for recruitment of candidates for filling up those posts of Hindi Teachers. However, it is not in dispute that all those posts were filled up by adopting a common process of selection. Thereafter, all the Hindi Teachers were appointed and posted in the different schools spread across the State of Assam at a fixed pay of Rs 1375 /- pm. However, it is not in dispute that all those posts were filled up by adopting a common process of selection. Thereafter, all the Hindi Teachers were appointed and posted in the different schools spread across the State of Assam at a fixed pay of Rs 1375 /- pm. As has been mentioned above, out of the total number of 401 candidates appointed through the above process, 309 Hindi Teachers were posted in the provincialised schools and 82 teachers were posted in the ad-hoc Secondary Schools which schools were not provincialised but used to receive grant-in-aid from the Government. 12. Be it provincialised High / Higher Secondary schools or the ad-hoc Secondary Schools, since both the categories of schools were receiving financial assistance from the Government, hence, those were under the administrative control of the Directorate of Secondary Education and therefore, the respondent No.3 was the competent authority to issue appropriate orders posting the selected teachers against the vacancies as per his discretion. It is in exercise of such discretionary powers that the 82 Hindi Teachers were posted in the ad-hoc secondary schools and the petitioners did not have any role to play in that regard. 13. When the Central Government had taken a decision to discontinue the scheme, the Government of Assam had decided to continue with the services of those Hindi teachers which had prompted it to issue the notification dated 12.10.1999 abolishing the 500 posts of Hindi Teachers earlier created vide Government order dated 31.03.1992 under the CSS during the Eighth Five Year Plan and thereafter, create 500 posts of Hindi Teachers with effect from 01.03.1999 with the object of accommodating the existing teachers working against the posts. A bare reading of the notification dated 12.10.1999 leaves no room for doubt that the sole purpose of creating the 500 posts of Hindi Teachers were to accommodate all those Hindi Teachers who were earlier appointed against the 500 posts temporarily created by the notification date 31-03-1992. 14. Thereafter, the notification dated 03.08.2004 was issued circulating the sanction of the Government as regards the permanent retention of 401 posts of Hindi Teachers originally created vide Government notification dated 12.10.1999. The notification dated 03.08.2004 therefore, signify a continuity in the decision of the State Government to permanently retain all the post of Hindi Teachers which were initially created under the Central Government Scheme. The notification dated 03.08.2004 therefore, signify a continuity in the decision of the State Government to permanently retain all the post of Hindi Teachers which were initially created under the Central Government Scheme. The genesis of the 500 posts of Hindi Teachers being the CSS and all the teachers recruited for filling up those posts having been done so by the Government by following a composite process, carrying the same pay, it is evident that all these Hindi teachers were similarly placed on the date of their initial absorption. The place of posting being a matter of discretion of the respondent No.3, merely because some of those teachers were assigned posting in the ad-hoc Secondary Schools cannot, therefore, be a ground to discriminate those candidates when it comes to the question of their right to be regularized in service. 15. The problem in this case arose only when the respondents had ignored the case of the writ petitioners while extending the benefit of regular pay scale to the other Hindi Teachers merely on the ground that they were initially engaged against the provincialised High/Higher Secondary Schools. However, the fact remains that the petitioners were posted in the ad-hoc secondary schools by chance and not by choice which fact also finds mention in the order dated 11-04-2007(annexure-15) issued by the respondent No 1. Although Mr. Ghosh had contended that the writ petitioners were not regularly selected, yet, the learned departmental counsel has failed to substantiate the said argument by placing relevant materials before this Court. 16. A reading of the notifications dated 12.10.1999 and 03.08.2004 does not even remotely indicate that there was any intention on the part of the Government to discriminate one set of Hindi Teachers (82) against the other (309) merely on the ground that the latter category was assigned initial posting in the provincialised schools. On the contrary, it clearly appears that the intention of the Government was to regularize the service of all the Hindi Teachers recruited under the CSS and accordingly adequate numbers of posts were also created by the Government. On the contrary, it clearly appears that the intention of the Government was to regularize the service of all the Hindi Teachers recruited under the CSS and accordingly adequate numbers of posts were also created by the Government. Under the circumstances, this Court is of the considered opinion that the 82 Hindi teachers were placed in the same footing as their counterparts engaged in the provincialised schools and therefore, there was absolutely no valid ground to deny those 82 Hindi Teachers the same treatment in the matter of regularization of their services, as has been done in the case of the 309 teacher. Since, the Hindi Teachers originally accommodated against the provincialised High/Higher Secondary Schools have been given the benefit of regular pay scale with effect from 01.03.1999 i.e. the date of creation of the regular posts by the State Government, the writ petitioner’s service also ought to have been regularized with retrospective effect from 01-03-1999. The denial of similar benefit to the writ petitioners, in the facts and circumstances of the case, was utterly discriminatory and in clear violation of the fundamental rights guaranteed to the petitioners under Articles 14 and 16(1)(g) of the Constitution of India. 17. Coming to the question of waiver of rights, as raised by Mr. Ghosh, it is settled law that there cannot be any question of waiver in respect of fundamental rights of the citizens guaranteed under Article 14 of the Constitution of India. In a Constitution Bench decision in the case of Basheshar Nath vs Commissioner of Income Tax Delhi & Rajasthan and another reported in AIR 1959 SC 149 , it has been observed by the Hon’ble Supreme Court that no citizen can be said to have waived breach of fundamental rights guaranteed under Article 14 of the Constitution of India. It has further been observed that Article 14 carries a command issued by the Constitution to the State as a matter of public policy with a view to implement its object of ensuring equality of status and opportunity, which every welfare State, such as India, is by her Constitution expected to do and no person can, by any act or conduct, relieve the State of the solemn obligation imposed on it by the Constitution. Therefore, regardless of the relief sought for in a legal proceeding, The State cannot avoid its solemn constitutional obligation of treating all citizens equally. 18. Therefore, regardless of the relief sought for in a legal proceeding, The State cannot avoid its solemn constitutional obligation of treating all citizens equally. 18. In the light of the discussions made herein above, these writ petitions are disposed of by directing the respondents to pass appropriate orders redressing the grievances of the petitioners within a period of eight weeks from the date of receipt of a certified copy of this order. The writ petitions stand disposed of accordingly. No order as to cost.