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2017 DIGILAW 732 (GAU)

DILIP CHANDRA DEKA v. STATE OF ASSAM

2017-06-05

ACHINTYA MALLA BUJOR BARUA

body2017
JUDGMENT : A.M. BUJOR BARUA, J. 1. Heard Mr. K.D. Sarma, learned counsel for the petitioner, Mr. N. Sarma, learned Standing Counsel for Elementary Education Department and Mr. M. Choudhury, learned counsel appearing for the respondent No.5, being the Headmaster of the school. 2. The petitioner claims that pursuant to an advertisement in the year 1991, he had applied and got selected and was appointed as an Assistant Teacher (Science) in Milan High School, Panigaon, Nalbari. Since then the petitioner has been working as an Assistant Teacher (Science) in the said school and he had received his salary up to April, 2010. But from April, 2010, the respondent authorities had stopped paying the salaries and allowances to the petitioner. Accordingly, being aggrieved, the petitioner prefers this writ petition. 3. The Headmaster of the school, files an affidavit in opposition inter-alia, stating that earlier also the petitioner had preferred a writ petition being CR No.711/1994, wherein this Court had passed an order directing the respondent authorities to pay the salary w.e.f. June 1992 to 31.03.1997. It is also stated that thereafter the petitioner remained absent without any information and as such the authorities did not pay his salary. However, he again approached this Court by way of writ petition CR No.3026/1998 for the purpose of getting his salary for the period of his absence from 01.04.1997 to 22.10.1998. Be that as it may, the Headmaster takes a stand that the salary and allowances had not been paid to the petitioner from 2010 onwards on the basis of a letter dated 01.02.2011 of the Inspector of Schools, Nalbari. 4. The Director of Elementary Education on the other hand, filed an affidavit in opposition, wherein in paragraph-6, it had been stated that the appointment letter of the petitioner itself reveals that he was an outsider and further there is no reference in the appointment that the petitioner was appointed pursuant to any selection process. That apart, it had also been stated that the petitioner has been working in the school without a post and he was an excess appointee. In paragraph-9 of the affidavit, the Director states that in order to claim salary by a person, he/she should be appointed strictly in terms of the recruitment Rules. Unless he/she is appointed by following the due procedure of law, the incumbent cannot claim the salary that is to be paid. 5. In paragraph-9 of the affidavit, the Director states that in order to claim salary by a person, he/she should be appointed strictly in terms of the recruitment Rules. Unless he/she is appointed by following the due procedure of law, the incumbent cannot claim the salary that is to be paid. 5. From the aforesaid stand of the respondent authorities, it transpires to this Court that the salary and allowances had not been paid to the petitioner from the year 2010 onwards on the ground that the initial appointment of the petitioner was not made by following the due procedure of law. Although an attempt has also been made to say that the petitioner was appointed without a post, that stand is difficult to be accepted inasmuch as, the petitioner had been paid his salary and allowances from 1991 up to the year 2010. In the event, the petitioner was appointed without there being any post; it is not understood as to how the salary had been paid from 1991 to the year 2010. 6. Be that as it may, in the event the respondent authorities are of the view that the initial appointment of the petitioner was not made by following the due procedure of law, the same by itself cannot be a reason for the respondent authorities not to pay the salary and allowances to the petitioner, and on the other hand, keep on extracting the services of the petitioner and allow him to perform his duty. 7. In the event the respondent authorities are of the view that the initial appointment of the petitioner was not made by following the due procedure of law, appropriate action on the part of the respondent authorities would be to issue notice to the petitioner and act accordingly. It cannot be the stand of the respondent authorities that on one hand the authorities continues to extract the services of the petitioner and on the other hand refuse to pay the salary and allowances on the ground that the initial appointment of the petitioner was not made by following the due procedure of law. 8. It cannot be the stand of the respondent authorities that on one hand the authorities continues to extract the services of the petitioner and on the other hand refuse to pay the salary and allowances on the ground that the initial appointment of the petitioner was not made by following the due procedure of law. 8. In this respect, reference may also be made to the judgment and order of the Hon'ble Supreme Court in State of Punjab v. Jagjit Singh (Civil Appeal No.213 of 2013) decided on 26.10.2016, wherein the Hon'ble Supreme Court had deprecated the concept of enforced enslavement, meaning thereby that services are being extracted but on the other hand, the salary and allowances are not paid. 9. In such view of the matter, the respondent authorities are directed to pay the salary and allowances to the petitioner for the actual number of days that he had performed his duties from the year 2010 till date. In the event, the respondent authorities upon verification of records are of the view that the petitioner had not rendered the services for any period, the respondent authorities are not bound to pay the salary and allowances for such period, for which the petitioner had not worked. 10. The aforesaid direction shall not act as a bar on the part of the respondent authorities to issue show cause notice to the petitioner and take appropriate action in the event the respondent authorities are of the view that the initial appointment of the petitioner was made by not following the due procedure of law. 11. In terms of the above, the writ petitions stand disposed of.