Writ Petition (C) No. 6554/2013
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IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM; 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, Dispur, Guwahati-6 2. The Director of Elementary Education, Assam, Kahilipara, Guwahati-19 3. The District Elementary Education Officer, Barpeta District, 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 Goswami 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.