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2017 DIGILAW 324 (GAU)

STATE OF ASSAM v. MAINA KUMAR DAS

2017-03-15

AJIT SINGH, MANOJIT BHUYAN

body2017
JUDGMENT : Ajit Singh, J. Heard on admission. 2. This appeal is directed against the order dated 20.12.2016 passed by the learned Single Judge of this High Court, whereby he has partly allowed appellant’s WP(C) No.6794/2013. 3. The respondent was appointed as Assistant Teacher in the Pitambar Dev Girls’ Middle English School against a leave vacancy w.e.f. 1.8.1990. Having regard to the necessity of an Additional Section in the 5th Standard of the School, its Managing Committee adopted a Resolution to open an Additional Section. The Managing Committee further resolved to allow the respondent to work as Assistant Teacher against the said Additional Section. This Resolution of the Managing Committee was also approved by the concerned Deputy Inspector of Schools. The respondent therefore continued in service without any break. Later, the respondent submitted representations for adjustment of his service against any vacant post. On 10.2.1995, the Deputy Director of Elementary Education, Assam requested the District Elementary Education Officer, Jorhat to take necessary steps as per Rules. Likewise, the Deputy Inspector of Schools, Majuli also made strong recommendation in favour of respondent. But, since neither the representations of respondent nor recommendations of authorities were being addressed and also because no salary was being released to respondent, he filed an appeal before the Assam Administrative Tribunal. And the Tribunal, after hearing the parties, directed the authorities of the Education Department to release the salary of respondent w.e.f. 1.7.1993. The Tribunal also directed the Director of Elementary Education, Assam and the District Elementary Education Officer, Jorhat to process the case of respondent for adjustment against any regular post of Assistant Teacher available in the School or in any other Middle English School in Majuli. 4. Aggrieved with the order of Tribunal, the appellant filed WP(C) No.6794/2013. The learned Single Judge took note of the fact that respondent was in continuous service since 1.8.1990 with the full knowledge of the authorities of Department. The learned Single Judge therefore on this ground held that denying him salary would not be justified and affirmed the finding of the Tribunal regarding release of salary in his favour. The learned Single Judge has also relied upon the Division Bench decision of this Court rendered in WA No.47/2009, Manashi Goswami vs. The State of Assam, wherein it is held that the Assistant Teacher is entitled to salary for the services rendered by him although his appointment was illegal. The learned Single Judge has also relied upon the Division Bench decision of this Court rendered in WA No.47/2009, Manashi Goswami vs. The State of Assam, wherein it is held that the Assistant Teacher is entitled to salary for the services rendered by him although his appointment was illegal. But in respect to direction of the Tribunal for processing the case of respondent to adjust him against any regular post of Assistant Teacher either in the School or in any other Middle English School in Majuli, the learned Single Judge has held that such a direction is contrary to provisions of the Assam Elementary Education (Provincialisation) Rules, 1977. Hence, the learned Single Judge quashed this part of the direction but having regard to the fact that respondent has served more than 20 years in the School the learned Single Judge has observed that it would be eminently desirable if the service of the respondent can be meaningfully utilized. The learned Single Judge therefore thought it proper to direct that if there are vacancies in the School or in any other Middle English School in Majuli, the appellant may hold selection to fill up such vacancy by allowing the respondent to participate in the selection process even by condoning his over-age, if he had become over-aged. Aggrieved, the appellants have filed the present appeal. 5. After hearing the learned counsel for the appellant, we find ourselves in complete agreement with the view taken by the learned Single Judge. Admittedly, the respondent is continuously serving in the School since 1.8.1990 with full knowledge of the authorities of Department. As seen above, a Division Bench of this Court in the case of Manashi Goswami vs. The State of Assam has already held that an Assistant Teacher is entitled to salary for the services rendered by him although his appointment was found to be illegal. The authorities of the Department therefore cannot deny respondent the salary, which he has earned. Similarly, in the fact situation of the case, the direction of the learned Single Judge to allow the respondent to participate in the selection process of filling up the vacancies is well-founded and unassailable. 6. We find no merit in the appeal. It is accordingly dismissed summarily.