IN THE

(THE HIGH COURT OF : : & )

WP(C) No.1236 of 2010, WP(C)No.44 of 2010,WP(C)No.4950/2008

WP(C) No.1236 of 2010 1.Sri Ratish Dhar, Upper Division Assistant, Niranjan Paul Institute, -4, Dist- Cacahr, Assam.

2.Smti Jyotsna Barman, Upper Division Assistant, K.C. High School, Panibora, Dist- Cacahr, Assam.

3.Smti Purabi Purkayastha, Upper Division Assistant, D.N.N.K.H.S.School, Silchar-1 Dist- Cacahr, Assam.

4.Sri Rintu Ch. Nath, Upper Division Assistant, L.C.High School, Kabugong, Cachar.

5.Sri Biplob Mazumder, Upper Division Assistant, M.M.Balika Bidyalaya,Silchar-4 Dist- Cacahr, Assam.

6.Smti Mukta Barman, Lower Division Assistant, C.L.Seth Girl’s High School, Silchar Dist- Cacahr, Assam.

7.Smti Supriya Deb Roy, Lower Division Assistant, C/o Inspector of Schools, Circle, Silchar, Cachar. 8.Smti Swapna Dutta Lower Division Assistant, Narsing Higher Secondary School, 1

Silchar, Cachar.

9. Sri Hiralal Jadab, Gr-IV, C.L.Seth Girl’s High School, Silchar, Cachar.

….Petitioners

-Vs-

1. The State of Assam, represented by the Commissioner and Secretary to the , Education Department, , -6,

2. The Director of Secondary Education, Assam, Kahilipara, Guwahati-19

3. The Inspector of Schools, Cachar District Circle,Silchar, Cachar, Assam. ….Respondents

WP(C)No.44 of 2010

1. Sri Nila Kanta Rabha, Son of late Baburam Rabha, Vill & PO- Loharghat, District-Kamrup, Assam.

2. Sri Umesh Ch. Saloi, Son of late H. Saloi, Vill- Balapukhuri, PO-Chhaygaon, Dist-Kamrup, Assam.

….Petitioners

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-Vs-

1. The State of Assam, represented by the Commissioner and Secretary to the Government of Assam, Education Department, Dispur, Guwahati-6,

2. The State of Assam, represented by the Commissioner and Secretary to the Government of Assam, Finance Department, Dispur, Guwahati-6,

3. The Director of Secondary Education, Assam, Kahilipara, Guwahati-19 ….Respondents

WP(C)No.4950/2008

1. Sri Rama Kanta , Lower Division Assistant, Konwerpur Higher Secondary School, PO- Konwerpur, District-, Assam. 2. Sri Ramesh , Lower Division Assistant, Shastriji High School, PO-Chaulkora, Dist- Sivasagar, Assam. 3. Sri Pabitra Gogoi Lower Division Assistant, Dhaiali Anchalik Girl’s High School, PO-Joirapar, Dist-Sivasagar,Assam. 4. Smt. Rina Chutia Upper Division Assistant, Fuleswari Girls Higher Secondary School, Sivasagar, Dist- Sivasagar, Assam. 3

5. Sri Sailendra Nath Gohain, Upper Division Assistant, Konwerpur Higher Secondary School, PO- Konwerpur, District-Sivasagar, Assam. ….Petitioners

-Vs-

1. The State of Assam, represented by the Commissioner and Secretary to the Government of Assam, Education Department, Dispur, Guwahati-6,

2. The Director of Secondary Education, Assam, Kahilipara, Guwahati-19

3. The Inspector of Schools, Circle,Sivasagar, Assam. ….Respondents

BEFORE

HON’BLE MR. JUSTICE MANOJIT BHUYAN

For the petitioners in all the : Mr. S. Haque, Advocate Writ Petitions Mr. A.J.Atia, Advocate

For the Respondents : Mr. U. K. , State in all the Writ Petitions Counsel.

Date of hearing : 30.4.2015

Date of judgment : 19.05.2015

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JUDGMENT & ORDER (CAV)

1. Heard Mr. S. Haque, learned counsel for the petitioners as well as Mr. U. K. Goswami, learned counsel representing the State Respondents.

2. Petitioners are the erstwhile employees who had served under the Adult Education Wing of the Directorate of Non-formal and Adult Education, Assam at respective Project Offices in the district of Kamrup/Sivasagar/Cachar by orders of the Director/Joint Director of Elementary Education (Non-formal), Assam.

3. In December, 2000 the Government of , in pursuance of a decision of the Union Cabinet, decided to phase out the Non-formal Education Scheme sponsored by it country-wide including the State of Assam w.e.f. 1.4.2001 onwards. Consequently, by communication contained in Memo No.A(1)E.206/2000/807 dated 14.3.2001, issued under the hand of the Secretary to the Government of Assam, Education (Ele. & Sec.) Department, informed the Director of Non- formal & Adult Education, Assam of the decision of the Govt. of India. The Director was informed that no office of the Non-formal Education (N.F.E.) will be allowed to function nor there will be any government transaction with any incumbent of N.F.E. with effect from 1.4.2001 onwards.

4. The relevant part of the aforementioned letter dated 14.3.2001, as referred to by the petitioners, is that the Education (Elementary) Department, Govt. of Assam made it clear that all employees working in regular posts having continuous retention and availing salary on full scale of pay would be given adjustment benefit under various Directorates of Education Department within a 5 maximum of two years time or so in equivalent posts having retention but lying vacant. The said communication dated 14.3.2001 also indicated that after adjustment/absorption, they will only be eligible to “ incur arrear salary for the gap period, followed by regularization of the period along with pay protection, seniority and pensionary benefits”.

5. As the petitioners have laid foundation of their claim for arrear salary in respect of the gap period, that is, from the date of discontinuation of their service under the Non-Formal Education Scheme until their subsequent adjustment/absorption in respective Directorates / posts, it would be worthwhile to look at the said communication dated 14.3.2001, as extracted hereunder:

“GOVERNMENT OF ASSAM EDUCATION (ELEMENTARY) DEPARTMENT *****

No.A(1)E-206/2000/807 Dtd. Dispur, the 14th, March/2001

From: Shri P.Dutta, IAS Secretary to the Govt. of Assam, Education Deptt. Dispur, Guwahati-6

To : The Director of Non-Formal & Adult Edu., Assam Jatia, Kahilipara, Hd. Guwahati-19 Sub: Phasing out of N.F.E. Scheme on 31.3.2001.

Sir,

With reference to the subject cited above, I am directed to say that the N.F.E. Schemes sponsored by the union Govt. of India will phase out country wide including the state of Assam on 31.3.2001 at 5 P.M., as per decision of the union Cabinet communicated vide office memo no.

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issued under memo no.MHRD (I)/ND/CSS(P)/780/86- 87/1005 dtd. New the 12.12.2000. After phasing out there will be no Govt. transaction with any incumbent of N.F.E. ., w.e.f.1.4.2001 onwards. No, office of the N.F.E. will be allowed to function hereafter. However all employed working in regular posts having continuous retention and availing salary on full scale of pay will be given adjustment benefit under various directorate of Education dept. within maximum of 2 yrs. time or so in equivalent posts having retention but lying vacant. After adjustment/absorption, they will only be eligible to incur arrear salary for the gap period followed by regularisation of the period alongwith pay protection, seniority and pensionary benefit. (emphasis supplied)

This is for favour of your information and necessary action.

Yours faithfully,

(Sd/ Shri P.Dutta, IAS) Secretary to the Govt. of Assam, Education (Ele & Sec) Deptt. No.A(1)E-206/2000/807-A Dtd. Dispur, the 14th,March/2001”

6. In between October, 2002 and June, 2004, the petitioners were adjusted against equivalent posts, either under the Directorate of Elementary Education, Assam or the Directorate of Secondary Education, Assam, and allowed to serve in respective Institutes/ High Schools/ Higher Secondary Schools/ Block Officers etc. According to the petitioners, they are drawing salary with regular increments since the date of adjustments in respective capacities.

7. The common grievance and the sole prayer made in all the 3(three) petitions is in respect of their entitlement to arrear salaries for the gap period, as indicated in the writ petition at paragraph 9 in

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W.P.(C)1236/2010; at paragraph 6 in W.P.(C)44/2010, and at paragraph 8 in W.P.(C)4950/2008 respectively.

8. The basic contention of the petitioners is that they are entitled to all such benefits as laid out in the communication dated 14.3.2001, which includes arrear salary and that there has been violation of Article 14 of the Constitution of India, in that, persons similarly situated who had been adjusted in the Directorate of SCERT, Assam and in the Directorate of Secondary Education, Assam, had been paid all entitlements including arrear salaries for the gap period. To that end, the petitioners have also enclosed documents to substantiate their stand on discrimination practised by the State Respondents.

9. Learned counsel for the petitioners have also relied upon the cases reported in (i) (2013) 11 SCC 626 (Shiv Nandan Mahto vs. State of & ors, (ii) (2007) 7 SCC 689 (Commissioner, Housing Board vs. (Muddaiah), and (iii) 1991 4 SCC 109 (Union of India & ors vs- K.V. Jankiram & ors.) to say that the general principle of “ No work No Pay” is wholly inapplicable in their case, in as much as, they having been kept out of service on the volition of the State-Respondents, they are entitled to remuneration for the period they were kept out of service. Pertinent to note , the cases relied upon by the petitioners are cases arising out of disciplinary proceedings and exoneration thereof and being kept out of service due to mistake or illegally and unlawfully by Respondent State. The applicability of the reported cases in the present writ petition is, therefore, not gone into.

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10. The issues for deciding the writ petitions are confined to the legality of the actions of the State Respondents in holding back the arrear salaries in the light of the communication dated 14.3.2001 and on the touchstone of Article 14 of the Constitution of India.

11. The Respondent No.2 i.e. the Director of Secondary Education, Assam, filed affidavit-in-opposition in WP(C)4950/2008. The stand of the said respondent is that the petitioners had been duly adjusted by orders dated 21.2.2003 granting service benefits with effect from 1.4.2001. In the absence of counter affidavits filed by the State Respondent in the other two petitions, the fact of adjustment of the petitioners therein are deemed to have been admitted. With regard to the claim for arrear salary, the State Respondents urges that although the employees were adjusted with effect from 1.4.2001, their claim for arrear salary with effect from 1.4.2001 is not admissible under the Rules as they had joined duties on different dates at later period of time.

12. In this connection a bare perusal of one of the order of adjustment dated 21.2.2003, notwithstanding the posts and the Directorate to which adjusted, would be important.

“ GOVERNMENT OF ASSAM EDUCATION (ELEMENTARY) DEPARTMENT No.A(1).E.352/2002/76 Dated Dispur the 21st Feb,2003

ORDER

Subject: Adjustment of Upper Division Assistant of Non- Formal Education to Upper Division Assistants in Inspectorate Level under the Directorate of Secondary Education, Assam.

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In pursuance of Hon’ble High Court order in various cases, the Governor of Assam is pleased to adjust the Upper Division Assistant working under the Directorate of Non- Formal & Adult Education, Assam as per list enclosed herewith as Upper Division Assistant in the Inspectorate Level under the Director of Secondary Education, Assam, subject to observance of other formalities as required in this regards. The adjustment is made with effect from 01/04/2001 and their Past-services will be counted towards Pensionery benefits etc. without break. The place of posting of these Upper Division Assistant are shown against the name of each incumbent against the existing vacancy as shown by Inspector of Schools concerned as per Govt. Letter Memo No.A(1)E.151/2001/15-A Dtd.12/04/2002. This has the approval of State Level Empowered Committee (SLEC) conveyed by Personnel (B) Deptt. Vide their U.O.NO.1477/02 Dtd. 26/12/2002. Enclo:- As stated above. Sd/ Dr. Prem Saran, IAS Commr.& Secy. To the Govt. Of Assam, Education Department. Memo No. A(1).E.352/2002/76-A Dated Dispur the 21st Feb,2003”

13. A perusal of the above order of adjustment as well as all other orders annexed to the writ petitions clearly show that although adjustments had been made with effect from 1.4.2001, however past services was made to be reckoned only for continuity in service for the purpose of Pensionary benefits.

14. On the point of discrimination, the learned counsel for the petitioners urged that persons similarly situated and adjusted in the Directorate of SCERT, Assam, as well as in certain cases where adjustment had been made in the Directorate of Secondary

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Education, Assam, arrear salary had been duly given to the incumbents.

15. As a counter argument, Mr. U.K.Goswami, learned State Counsel makes reference to the judgment dated 8.5.2014 passed in WP(C)3287/2006. This is a case where the petitioners concerned were also appointed in non-formal project work and subsequently their services were discontinued upon completion of the project work. Later on, they were absorbed in government service and for the period between discontinuation from service and subsequent appointment in government service, they were paid salaries. However, the Government on realizing that salaries had been paid by mistake for the period they did not work, initiated action for recovery of the salary paid by mistake during the said period. Relying upon the order passed by a Division Bench in Writ Appeal No.248/2013 and other similar matters, whereby the action of the Government to recover the salaries paid by mistake was upheld, the writ petition i.e. WP(C)3287/2008 was accordingly dismissed.

16. Mr. U.K.Goswami also makes reference to the judgment dated 13.11.2013 passed in the said Writ Appeal No.248/2013. This also pertains to a case where the appellant/writ petitioner had worked under the non-formal adult education scheme until 1.4.2001 when the scheme had closed. Reference was made to the Government Notification dated 1.3.2003 which indicated that the past services rendered by project officers in the non-formal education scheme, absorbed in the Elementary Education Department in regular service, was to be reckoned for the purpose of continuity in service for pensionary benefits. The appellant therein laid claim for arrear salary

11 on the basis of a letter dated 6.4.2010 issued by the Deputy Inspector of Schools, Nalbari and addressed to the Director of Elementary Education, Assam, requesting release of funds towards payment of arrear salaries to the appellant for the period between 1.3.2001 to 18.10.2005, that is, until the date the appellant was appointed as Sub-Inspector in .

17. While dismissing the Writ Appeal No.248/2013, the Division Bench of this Court took into consideration the stand of the Government as laid out in the Notification dated 1.3.2003 which indicated that services rendered under the non-formal education scheme would be counted only towards pensionary benefits. Accordingly, it was held that the appellant would be entitled to continuity of his previous service rendered in the non-formal education scheme for the purpose of pensionary benefits and not for payment of arrear salary.

18. Having heard the learned counsels for the parties, a decision on the writ petitions must rest upon the materials on record. Although the foundation of the claim for arrear salary has been made on the communication dated 14.3.2001, unlike the claim laid out in the decided cases on the basis of the Notification dated 1.3.2003 and the letter of the Deputy Inspector of Schools dated 6.4.2010, the undisputed position is that the petitioners did not work at all during the period where claim for arrear salary is made. Also, the expression “incur arrear salary” in the communication dated 14.3.2001 do not give out a clear meaning so as to hold the state respondents as giving out a clear promise or assurance for extending any benefit of arrear salary to the petitioners during the

12 gap period. At best, the purport and content of the communication dated 14.3.2001 has to be read with the subsequent order of adjustment where it was made clear that the past services rendered under the non-formal education scheme would be reckoned only for continuity in service for the purpose of Pensionary benefits.

19. In addition, the Division Bench of this Court unequivocally held in a matter similar to the present proceedings that the services rendered under the non-formal education scheme will only be reckoned for the purpose of Pensionary benefits and not for payment of arrear salary.

20. The claim for arrear salary on the basis of the communication dated 14.3.2001 as well as on the basis that persons similarly situated had been extended the benefit of arrear salary, holds no water in view of the discussions above. The petitioners, in all the three writ petitions, are not entitled to claim arrear salary for the gap period.

21. In view of the above, all the three writ petitions suffer dismissal by this common judgment and order, however, without any order as to costs.

JUDGE

Nandi

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