IN THE GAUHATI HIGH COURT

(THE HIGH COURT OF ; NAGALAND; MIZORAM AND ARUNACHAL PRADESH)

WRIT PETITION (C) NO. 6554/2013

Ajanta Kalita, Son of Sri Udoy Kalita R/o Village Choudkhuty P.O. Darbang Pathsala Dist- Barpeta, Assam ……PETITIONER -vs- 1. The State of Assam, Represented by the Commissioner & Secretary to the Govt. of Assam, Education (Elementary) Department, , -6

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

3. The District Elementary Education Officer, , Barpeta, Assam

4. The Deputy Inspector of Schools, Barpeta District Circle, Barpeta

5. Nabin Dutta, Headmaster, Pathsala MV School P.O. Pathsala P.S. Pathsala Dist- Barpeta, Assam …..RESPONDENTS

P R E S E N T HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA

For the petitioner : Mr SK Das, Advocate

For the respondents : Mr NJ Khataniar Mr J Talukdar, Advocates Date of hearing : 16.7.2015

Date of judgment : 17.7.2015

Page 1 of 7

JUDGMENT & ORDER (CAV)

Heard Mr SK Das, counsel for the petitioner and Mr J Talukdar, counsel for the respondent No.5. Also heard Mr NJ Khataniar, counsel for respondent Nos. 1 to 4.

2. Petitioner’s case is that he was selected by the Sub Divisional Selection Board, Bajali and appointed as an Assistant Teacher in the scale of pay of Rs. 3130/- to Rs. 6600/- per month plus other allowances and posted at Pathsala MV School vice Sri Manoranjan Choudhury, Assistant Teacher who had retired. The petitioner joined his service on 3.12.99 and since then he has been regularly working in the said school till date. The petitioner’s appointment order dated 29.11.99 had been issued by the District Elementary Education Officer, Barpeta. However, due to the fact that the petitioner’s appointment was considered to be an irregular appointment, the petitioner has not been given his monthly salary w.e.f the date of his joining till date.

3. The petitioner had earlier instituted WP(C) 99/2002 before this Court which was disposed of vide order dated 4.3.2002 with a direction to the respondents to examine and verify the claim of the petitioner and if it was found that the petitioner was appointed in a regular manner against an existing post, the petitioner should be paid his pay and allowances for the services rendered by him. As the order dated 4.3.2002 was not complied with by the respondents, the petitioner filed Cont. Case (C) No. 366/2003. During the proceeding of the contempt case, the respondents produced an order dated 4.11.2003 wherein the authority had held that the appointment of the petitioner was against a non-existent post and he had not undergone any selection prior to his appointment. The appointment of the petitioner was therefore held to be illegal. In view of the order dated 4.11.2003, Cont. Case (C) No. 366/2003 was closed.

4. The petitioner had thereafter filed WP(C) 3725/2004 praying for a direction for payment of salary and the same was disposed of vide order dated 5.2.2008 as follows:

“It has been submitted by the learned counsel for the parties that question raised in the present petition has already been answered in Sudhendu Mohan Talukdar and others vs. State of Assam and others,

Page 2 of 7

2006 (2) GLT 216 and therefore, prays for disposal of the writ petition in terms of the directions contained in the said judgment.

In view of the aforesaid submission, the present petition stands disposed of in terms of the directions contained in the aforesaid judgment. The respondent authorities are directed to take necessary action in so far as the claim of the petitioner is concerned in terms of the directions contained in the aforesaid judgment within a period of four months from today.”.

5. The petitioner’s case was then referred to the expert committee constituted in pursuance of directions issued in the case of Sudhendu Mohan Talukdar (supra).

6. The petitioner’s case is that an advertisement dated 1.2.2012 was issued by the Director of Elementary Education, Assam inviting applications from all irregularly/ illegally appointed teachers so that the screening committee constituted by the Govt. of Assam could examine their claims. The teachers who were irregularly/ illegally appointed should have been working continuously in Lower Primary/ Upper Primary schools in the State since 1991 to 2001 and should not have got any salary since their date of joining or had got their salary intermittently. Pursuant to the advertisement dated 1.2.2012, the petitioner also applied in the prescribed format to enable the screening committee to examine the case of the petitioner. However, the petitioner’s case is still pending before the screening committee for regularisation and release of his due entitlements.

7. The petitioner’s case is that despite the orders passed by this Court in WP(C) Nos. 99/2002 and 3725/2004, the petitioner has not been given his salary w.e.f 3.12.99 till date. Hence, this petition.

The petitioner’s counsel thus submits that a direction should be issued to the respondents to intimate to the petitioner the outcome of his application submitted before the screening committee on 27.2.2012 pursuant to the advertisement dated 1.2.2012.

8. With regard to non-payment of his salary since the date of joining, the petitioner’s counsel has submitted that a similarly situated person, namely, one Smt. Manashi who was also appointed by the same the then District Elementary Education Officer, Barpeta vide order dated 7.12.99 had also filed

Page 3 of 7

WP(C) 6459/2005 praying for a direction for payment of her salary. WP(C) 6459/2005 was dismissed. Smt. Manashi Goswami thereafter filed W.A. No. 47/2009. W.A. No. 47/2009 was disposed of vide order dated 11.8.2009 as follows:

“Having regard to the above stand of the State authorities and the admission contained in the affidavit that the appellant did render service as an Asstt Teacher, we are of the considered opinion that the appellant ought to be paid salaries for the services rendered by her, although her appointment itself was found to be illegal.

In the above view of the matter, we dispose of this writ appeal by directing the State respondents to pay her unpaid salary by taking note of the period, during which the appellant rendered service. It is open to the State to recover such amount which is to be paid to the appellant pursuant to this order, from the officer who is responsible for the appointment of the appellant/ writ petitioner.”.

9. Counsel for the petitioner submits that pursuant to the order dated 11.8.2009 passed in W.A. No. 47/2009, Cont. Case (C) 7/2012 was filed and the State respondents thereafter paid to the said Smt. Manashi Goswami her unpaid salary from the date of her joining. Counsel for the petitioner thus submits that the petitioner being similarly situated as Smt. Manashi Goswami and as the order dated 11.8.2009 passed in W.A. No. 47/2009 is also relatable to the petitioner’s case, the State respondents should be directed to pay to the petitioner her unpaid salary w.e.f 3.12.99 till date.

10. Counsel for the petitioner has also relied upon the Division Bench judgment of this Court in State of Manipur & Ors. –vs- State Land Use Board Casual Employees’ Association & Anr., reported in 2007 (1) GLT 409, wherein it has been held that “When services have been rendered and received by the State Government without accusing the persons, rendering such service, that their appointments, even to their own knowledge, were illegal, it would not be just and fair for the State not to pay the wages or salary of such an illegal appointee for the period during which service was rendered by such an appointee. The State Government, as a model employer, cannot, therefore, be allowed to withhold the wages or salary of the members of the petitioner association, when their services have been utilized without accusing them of their having obtained the appointments by playing fraud.”

11. Counsel for the petitioner submits at this stage that he is not pressing the prayer regarding the outcome of his application submitted before the

Page 4 of 7 screening committee on 27.2.2012, in as much as, the State respondent’s affidavit goes to show that the matter is under consideration of the Government. He, however, submits that as the petitioner’s case is similarly situated as Smti Manashi Goswami, the State respondents should be directed to pay to the petitioner his unpaid salary w.e.f 3.12.99 till date.

12. Mr J Talukdar, counsel for the respondent No.5 submits that the petitioner has been discharging his duties sincerely in the school and that it would be proper if the petitioner receives his arrear salary from the date of joining as he has been working diligently for the last 16 years in the said school.

13. Mr NJ Khataniar, counsel for respondent Nos. 1 to 4 submits that the petitioner’s initial appointment was not pursuant to an advertisement and that it was de hors the rule. He submits that a person who has been selected de hors the rules and in the absence of any advertisement is not entitled to salary as held by the Supreme Court in the case of State of Orissa –vs- Mamata Mohanti, reported in (2011) 3 SCC 436.

14. I have heard the counsels for the parties.

15. The affidavit-in-opposition filed by the Secretary to the Govt. of Assam, Education (Elementary) Department at Para 8 states that the entitlement of the petitioner to salary and regularization of his service, which would depend upon the legality of his appointment is now to be decided by the Government, which is awaited and, as such, the salary of the petitioner cannot be released at this stage. Para 9 of the affidavit-in-opposition filed by the respondent No.1 also goes to show that in compliance with the order dated 11.8.2009 passed in W.A. No. 47/2009, the State respondents had paid the salary of Smt. Manashi Goswami in terms of the order dated 7.9.2009 issued by the Secretary to the Govt. of Assam, Education (E&S) Department. The order dated 7.9.2009 is reproduced below:

“Read : The direction of the Hon’ble High Court in the judgement and order dated 23.12.2008 passed in WP(C) 6459/2005 and dated 23.12.2008 passed in WP(C) 6459/2005 and dated 11.8.2009 passed in WA 47/2009 in the matter of Smt. Manashi Goswami –vs- State of Assam & Others.

Page 5 of 7

Findings : The petitioner was appointed as Asstt. Teacher at Akaya Girls M.E. School under Barpeta District by the then District Elementary Education Officer (Shri H.L. Bora) without any selection and in violation of Assam Elementary Education (Provincialisation) Rules, 1977 and no approval of State Level Empowered Committee (SLEC) was obtained before appointment.

Order : After due examination, it is directed that Director of Elementary Education, Assam will pay the salary to the petitioner for the period which she rendered service. It is also directed to recover such amount which is to be paid to the petitioner from the officer (Shri H.L. Bora) who is responsible for the illegal appointment of the petitioner.

This is issued to comply with the direction of the Hon’ble High Court in the order dated 11.8.2009 passed in WA 47/2009 and order dated 23.12.2008 passed in WP(C) 6459/2005.”.

16. It is not denied by the counsels for the parties that the case of the petitioner is similar to the case of Smt. Manashi Goswami.

17. Though the Division Bench judgments of this Court passed in W.A. No. 47/2009 and in State Land Use Board Casual Employees’ Association (supra) are applicable to the present case, this Court is bound by the decision of the Supreme Court rendered in the Mamata Mohanti (supra). Further, the order dated 5.2.2008 passed in WP(C) 3725/2008 is still in operation in as much as, the petitioner’s case is being considered by the screening committee pursuant to the advertisement dated 1.2.2012 issued by the Director of Elementary Education. Also, in view of the statements made in Para 8 of the affidavit filed by the respondent, I find that the prayer of the petitioner cannot be allowed at this stage. The relevant excerpt from Para 8 of the respondent No.1’s affidavit is quoted below:

“ Thereafter, the Government has further constituted Divisional Screening Committee in the month of June, 2014 to examine the report of preliminary screening committee. The Divisional Screening Committee had examined more than ten thousand applications all over the state. The cases of the petitioner along with other 22 candidates names are examined by the Lower Assam Division Screening Committee. The Divisional committees have already furnished its report to the Government and the Government has further constituted sub- committees vide order dated 30.4.2015 to separate the recommended and rejected applications and after completion of this exercise, the report of the Divisional Committees will be placed before the Cabinet for taking a decision in the matter.

The deponent states that the entitlement of petitioner to salary and reqularization of his service, which would depend upon the legality of his appointment is now to be decided by the Cabinet, which is

Page 6 of 7

awaited and as such, the salary of the petitioner cannot be released at this stage as prayed for by the petitioner.”.

18. The screening committee has to be allowed to take its decision with regard to the entitlement of the petitioner on account of the fact that the petitioner himself had applied in the prescribed format for regularization of service pursuant to the advertisement dated 1.2.2012. However, the screening committee and the respondents have to take a decision expeditiously as they have been considering the case of the petitioner for a long time while not paying his salary, but at the same time, have availed his service even till today.

19. As the entitlement of the petitioner with regard to salary and regularization of service is pending with the State respondents as reflected above and as the petitioner has not received his salary for more than 16 years, the State respondents are directed to complete the screening of the petitioner’s case with regard to his entitlement for salary and regularization of service within a period of four months from the date of receipt of a certified copy of this order.

20. It is needless to observe that the petitioner will be at liberty to approach this Court again if he is aggrieved by the decision taken by the screening committee.

21. The writ petition is accordingly dismissed.

22. No cost.

JUDGE

skd

Page 7 of 7