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2019 DIGILAW 1024 (GAU)

Putul Chandra Baruah v. State Of Assam

2019-09-10

ACHINTYA MALLA BUJOR BARUA

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JUDGMENT : Achintya Malla Bujor Barua, J. Heard Mr. PJ Saikia, learned counsel for the petitioners. Also heard Mr. N Sarma, learned standing counsel for the Elementary Education Department, Assam 2. All the petitioners herein were appointed in their respective LP Schools, while the schools were still in their venture stage and further all of them were appointed as the second founder teacher of their schools. The concerned schools namely Ratneswar Bailung LP School where the petitioner No.1 was appointed, Duwara Gaon LP School, where the petitioner No.2 was appointed, Nabari Dhap LP School where the petitioner No.3 was appointed, Jamakhulla Mazdoor LP School where the petitioner No.4 was appointed, Nimaigarh Petudhara Majdoor LP School where the petitioner No.5 was appointed were all provincialised in the year 1995-1996. At the time when the schools were provincialised, the services of one teacher each of the respective schools were provincialised and in the process, the petitioners being the second founder teachers of the schools were left out from the process of being provincialised. 3. The Director of Elementary Education, Assam by his order vide Memo No.EVD.2/94/PTI-I/67 which is undated, but bearing the Memo dated 31.05.1996 of the Senior Finance and Accounts Officer had allotted 7 Nos. of posts of teachers with a monthly stipend of Rs.900 per month and placed the same at the disposal of the Deputy Inspector of Schools, Nazira w.e.f. 01.03.1996. By the said order of the Director contained in the aforementioned order, it was stated that the posts were in pursuance of the Government Letter No.PMA/159/94/8 dated 18.01.1995, it was specifically stated that the posts so allotted were made for the second founder teacher working in the single teacher primary schools which were provincialised in 1995-1996. The conditions stated in the order of the Director for provincialising the second founder teacher was that they must possess the minimum qualification as prescribed by the Government from time to time and initially they would be paid a stipend of Rs.900/- per month and thereafter would be deputed for undergoing the Teachers' Training Course for a period of 1(one) year on priority basis and upon successful completion of the Teachers' Training Course, the services of the concerned teacher would be regularized in the time scale of pay/normalization in due course. 4. 4. Pursuant thereto the Deputy Director of Elementary Education by his communication dated 18.02.1997 addressed to the Deputy Inspector of Schools Nazira had informed about the allotment of the 7 Nos. of posts for provincialising the services of second founder teacher and along with the said communication the names of the 7 schools against which the 7 posts so allotted are to be utilized were also stated. The names of the 7 schools so stated included the names of the schools where the present petitioners were working. In the process, the petitioners were initially paid the stipend of Rs.900 per month and thereafter sent for the Teachers Training Course of 1(one) year and upon successful completion of the same, their services were regularized and they were paid the regular scale of pay. 5. The payment of regular scale of pay continued for almost 12 years but from March 2012 onwards, their salary and allowances were stopped. In the aforesaid circumstances, the present writ petition is preferred. 6. Mr. N Sarma, learned standing counsel for the Elementary Education Department stated that during the period around March,2012 many illegally/irregularly appointed teachers were found in the Education Department requiring the respondent authorities to undertake a process of screening so that such illegally/irregularly appointed teachers can be detected. For the purpose, advertisements were issued requiring the teachers to participate in the screening process. Pursuant to the said advertisement, the present petitioners had also participated and their cases were put up for screening before the appropriate authority. 7. By stating so, the Elementary Education Department tries to justify as to why the salary of the petitioners had not been paid thereafter. We are unable to accept the said contention of the learned standing counsel for the reason that if the screening process was initiated to detect the illegally/irregularly appointed teachers there cannot be any reason for the respondent authorities to subject the present petitioners to such screening process. It is an admitted position for the department that the services of the present petitioners were regularized pursuant to a decision of the authorities to provincialise the services of the second founder teacher for which the specific posts were allotted. It is also an admitted position of the Education Department that the present petitioners were in fact the second founder teachers in their respective schools who were appointed prior to the concerned school being provincialised. 8. It is also an admitted position of the Education Department that the present petitioners were in fact the second founder teachers in their respective schools who were appointed prior to the concerned school being provincialised. 8. Consequent to such admitted position, we are of the view that if the present petitioners are also classified along with the illegally/irregularly appointed teachers and are subjected to the same screening process, it would violate Article 14 of the Constitution of India. In such event, the two different classes of teachers having an intelligible differentia between them would be classified together into one group and be subjected to one screening test. 9. Mr. Sarma, learned standing counsel also raises the contention that it is the petitioners who had voluntarily participated in the screening test by responding to the advertisement. Even if it is so, we are of the view that by virtue of participating in the screening process pursuant to any advertisement will not amount to a waiver or estoppels against the petitioners so as to classify them together along with the illegally/irregularly appointed teachers. Further if they had wrongly subjected themselves to such screening test by applying to an advertisement, it is also the duty of the appropriate officials in the Education Department to point it out to the petitioners and segregate and separate them from such screening test. By not doing its duty to the true earnest, the stand now taken by the respondents in the Education Department that by participating in the screening test the petitioners have waived their right to be considered on the basis of the legal right that had already accrued to them on being regularized as the second founder teacher in the respective schools cannot be accepted. 10. Accordingly, we are of the view that the deprivation of the salary and allowances to the petitioners from March 2012 onwards is arbitrary and unsustainable. Consequently a mandamus is issued to the respondents in the Education Department to pay the salary and allowances of the petitioners for the period from which it was deprived to them. 11. The current salary of the petitioners be paid to them forthwith and the arrear be paid within a period of 6(six) months from the date of receipt of the certified copy of this order. 12. Mr. 11. The current salary of the petitioners be paid to them forthwith and the arrear be paid within a period of 6(six) months from the date of receipt of the certified copy of this order. 12. Mr. N Sarma, learned standing counsel has raised the contention that if in the meantime, the petitioners were not attending their school duties they will not be entitled to their arrear salary. If it is so, the respondents in the Education Department shall cause an enquiry and if it is actually found that the petitioners had not attended their duties, appropriate orders be passed after issuing due show cause notices to the petitioners. 13. Writ petition stands allowed to the extent indicated hereinabove.