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2018 DIGILAW 775 (GAU)

LAKHINATH DUTTA v. STATE OF ASSAM

2018-05-10

ACHINTYA MALLA BUJOR BARUA

body2018
JUDGMENT/ORDER : 1. Heard Ms. D. Borgohain, learned counsel for the petitioner and Mr. N. Sarma, learned Standing Counsel for the Secondary Education Department, Government of Assam. 2. The petitioner was appointed as an Assistant Teacher in the Boginodi Higher Secondary School, Lakhimpur as per the order dated 22.12.1993 of the Inspector of Schools, Lakhimpur. The said appointment was made in the scale of pay of Rs.1375-3375/- and in the order of appointment it was stated that the appointment was made against the post allotted by the Directors order No.PC/SEC/54/93/32 dated 08.12.1993 and sanctioned vide Government order No.EPG/567/91/113 dated 16.11.1991. The petitioner accordingly joined in his post and was paid the salary on a regular basis from 1993 up to October, 1997. But, when the payment of salary was stopped from the month of October, 1997, the petitioner approached this Court by way of a writ petition being WP (C) No.229/2003. 3. In the writ petition, a stand was taken by the respondent authorities that firstly, the petitioner was not appointed pursuant to any selection and secondly, the post hold by the petitioner was not retained any further and therefore, the salary and allowances were not paid. By the order dated 30.11.2004, the said writ petition was disposed of by directing the respondent authorities to adjust the services of the petitioner against any vacant post and further to consider the payment of arrear salary and in doing so, the fact that the petitioner had been rendering his service and he was not terminated shall also be taken into account. 4. Consequent thereof, the order dated 18.05.2005 was passed by the Director of Secondary Education, Assam by which, firstly the service of the petitioner was regularized with immediate effect. As a result of such regularization, the petitioner has been receiving his salary and allowances from the year 2005 onwards. In the circumstance, this writ petition has been preferred firstly seeking the relief that the regularization of the petitioner be declared to have been made from the date of his initial appointment i.e. in the year 1993 and secondly, for payment of arrear salary from November, 1997 up to 18.05.2005 when he was regularized. 5. In order to substantiate the claim that the petitioner be regularized from the year 1993, Ms. D. Borgohain, learned counsel for the petitioner relies upon the decision of the Supreme Court rendered in Gauri Shankar Pd. 5. In order to substantiate the claim that the petitioner be regularized from the year 1993, Ms. D. Borgohain, learned counsel for the petitioner relies upon the decision of the Supreme Court rendered in Gauri Shankar Pd. Rai vs. Sajal Chakraborty, Chief Secretary, Government of Jharkhand and others, reported in (2015) 8 SCC 163 , wherein the regularization of the incumbents therein were discussed in paragraph-16 thereof. In paragraph-16, the issue before the Supreme Court was that in a prior judgment and order of the High Court, there was a direction to regularize the service of the persons involved therein with effect from the year 1981. But in spite of there being such direction, the respondents therein did not comply with the same. In the circumstance, the Supreme Court arrived at a conclusion that the purport of the judgment and order of the High Court makes it amply clear that the respondents were required to regularize the service of the persons involved therein with effect from the year 1981 and not complying with such direction of the High Court would amount to deprivation of the legitimate right of the persons involved therein. 6. In the instant case, when the earlier order of this Court is looked into, it is noticed that there is no such direction to regularize the petitioner from the year 1993. In fact when the order of this Court is read in its true purport, it is seen that in fact there is no such direction to regularize the petitioner. All that this Court had provided was to adjust the service of the petitioner against any vacant post. In such view of the matter, there being a substantial difference in the factual background of the matter involved before the Supreme Court and that of the present case, this Court does not find that the provisions of paragraph-16 and 17 of Gauri Sankar Pd Rai (supra) would be applicable in this case. 7. The learned counsel for the petitioner also refers to another judgment of the Supreme Court rendered in State of Jharkhand and others vs. Kamal Prasad and others, reported in (2014) 7 SCC 223 . The provisions of paragraph-13 in the said judgment had been referred by the learned counsel for the petitioner. 7. The learned counsel for the petitioner also refers to another judgment of the Supreme Court rendered in State of Jharkhand and others vs. Kamal Prasad and others, reported in (2014) 7 SCC 223 . The provisions of paragraph-13 in the said judgment had been referred by the learned counsel for the petitioner. On a reading of the paragraph-13 onwards, this Court does not find any provision, which provides that the regularization of an incumbent is required to be made with retrospective effect from the date of the initial appointment. In the premises above, this Court does not find any merit in the claim of the petitioner for a direction to regularize his services from the date of his initial appointment in the year 1993. 8. As regards the other prayer of the petitioner for payment of salary from the month of November, 1997 up to 18.05.2005, we find that in the earlier judgment and order dated 30.11.2004, this Court had directed the respondents that a consideration shall be given for payment of arrear salary to the petitioner by taking into account that he has been rendering his services and his service was not terminated. On a reading of the order dated 18.05.2005 of the Director, this Court does not find that any such consideration was given by the respondent authorities. 9. Accordingly, it is directed that as required in the judgment and order dated 30.11.2004, the Director of Secondary Education, Assam shall give a fresh consideration to the claim of the petitioner for arrear salary and pass a reasoned order as directed in the earlier judgment and order. 10. The aforesaid exercise for consideration of arrear salary of the petitioner be carried out by the Director of Secondary Education, Assam within a period of two months from the date of receipt of a certified copy of this order. In terms of the above, the writ petition stands disposed of.