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2018 DIGILAW 437 (GAU)

State of Assam v. Bina Dutta

2018-03-13

ACHINTYA MALLA BUJOR BARUA

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JUDGMENT & ORDER : 1. Heard Mr. N Sarma, learned Standing counsel, Education Department for the review petitioner. Also heard Mr. B Kalita, learned Senior counsel for the writ petitioner. 2. This writ petition being WP (C) No.4449/2011 was preferred by the petitioner claiming arrear salary from April, 2017 upto her date of superannuation. Although the said writ petition was filed sometime in August 2011, but no affidavit-in-opposition was filed by the respondents in the Education Department and, accordingly, by an order of 11.05.2012 it was provided that if no affidavit is filed by 25.06.2012, the writ petition would be disposed of on the basis of the averments made in the writ petition. 3. Accordingly, by the order of 25.06.2012, the case of the petitioner that she was appointed as Assistant Teacher in the Borbari ME School against a temporary vacancy by the order of 05.10.1993 was recorded. It was further recorded that the petitioner was transferred to Borbari Railway ME School in April, 1994 and that her services was confirmed by the District Elementary Education Officer, Dibrugarh dated 16.12.2003. Accordingly, it was taken note of that although she was serving, her salary and allowances were suddenly stopped from April, 2007. Accordingly, a direction was issued for payment of entire salary from April 2007 upto the date of her superannuation. 4. This review petition has been preferred by the State respondent authorities on the premises that the petitioner was deemed to have retired from service in April 2007 and that she had continued thereafter by providing a fabricated and tampered HSLC certificate which shows a difference in age by about 8 years. 5. In other words, it is the contention of the State respondent authorities that the petitioner could not and should not have continued in service beyond April, 2007 in a legitimate manner. 6. A further ground has also been taken that the initial appointment of the petitioner was on a temporary basis against a suspension vacancy, and, therefore, such appointment cannot be construed to be a regular appointment. 7. 6. A further ground has also been taken that the initial appointment of the petitioner was on a temporary basis against a suspension vacancy, and, therefore, such appointment cannot be construed to be a regular appointment. 7. In any view of the matter without expressing any view on the merit of the claim of the State respondents in the Education Department against the entitlement of salary by the petitioner from April, 2007, this Court is of the view that in the order of 25.06.2012, no decision on merit was rendered as regards the entitlement of the petitioner for salary and allowances after April, 2007 and the order was passed only on the premises that no affidavit-in-opposition was filed. As the State respondent authorities have projected some relevant contention as regards the entitlement of the petitioner for the salary and allowances after April, 2007 and further that such contention could not be placed before this Court when the writ petition was being heard, this Court deems that in the interest of justice, it would be a fit case to recall the earlier order dated 25.06.2012 and require the writ petition being WP (C) No.4449/2011 to be heard on its own merit. 8. But, however, considering the aspect that the earlier order was required to have been passed due to the laches on the part of the authorities in the Education Department in filing their affidavit-in-opposition, it is deemed appropriate that the ends of justice would further be met, if a cost of Rs.5000/- (Rupees Five Thousand) only is imposed on the review petitioner to be paid to the writ petitioner. 9. Accordingly, the order dated 25.06.2012 in WP (C) No.4449/2011 is recalled and the writ petition may be heard and decided on its own merit and for the purpose, the review petitioner being the Elementary Education Department, to the Govt. of Assam to pay the petitioner a cost of Rs. 5000/- (Rupees Five Thousand) only within a period of 1 (one) month from today. 10. In terms of the above, the review petition stands allowed and disposed of.