THE GAUHATI HIGH COURT AT GUWAHATI (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh) PRINCIPAL SEAT AT GUWAHATI WP(C) No.586/2012 1. Smt. Sadhana Pegu, D/O Sri Mohendra Nath Pegu, Resident of Vill-Namgharia, PO-Kulajan, Dist.-Dhemaji, Assam. 2. Sri Prafulla Taid, S/O Sri Jatindra Nath Taid, Resident of Vill-Naharani Kuli, PO-Dhemaji, Dist.-Dhemaji, Assam. ……Petitioners. VERSUS 1. 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 (DEEO), Dhemaji District, Dhemaji. 4. The Deputy Inspector of Schools, Dhemaji District, Dhemaji, Assam. …….Respondents. BEFORE THE HON’BLE MR. JUSTICE HRISHIKESH ROY For the petitioners : Mr. H. Talukdar, Mr. N. Ahmed, Ms. M. Deka, Ms. P. Devi. … Advocates. For the respondents : Mr. A. Deka, SC, Elementary Education. …. Advocate. Date of Hearing & Judgment : 7 th September, 2017 WP(C) 586/2012 Page 1 of 4 JUDGMENT AND ORDER (ORAL) Heard Mr. H. Talukdar, the learned counsel for the petitioners. The respondents are represented by Mr. A. Deka, the learned standing counsel for the Department of Elementary Education. 2. The two petitioners have common grievance relating to non-disbursal of salary since they entered service. The 1st petitioner Smt. Sadhana Pegu was appointed on 09.06.1995 (Annexure-1A) by Mr. J. Bora, the then D.I. of Schools, Dhemaji, as a fixed pay teacher in the Sakai Namgharia Primary School. Similarly, the 2nd petitioner Sri Prafulla Taid was appointed in the Bokajan Primary School under a similar appointment order issued on 09.06.1995 (Annexure-1B). 3. Since both appointees were not paid their salary since inception, earlier they filed the WP(C) No.4304/2003 along with two others to claim their dues. That case was disposed of on 10.06.2003 (Annexure-2) with the following order:- “…………………. Heard the learned counsel for the petitioner and the learned Govt. Advocate. The case of the petitioner is that the petitioners were appointed as fixed pay teacher at various schools vide order dated 9.6.95 passed by the Deputy Inspector of Schools, Dhemaji. The grievance of the petitioners is that they have not been paid their salaries since their joining till date. Upon hearing the learned counsel for both sides, this writ petition is disposed of with the direction to the respondents to examine and verify the claim of the petitioners and if the petitioners are found to be appointed by the competent authority in accordance with the rules and regulations against sanctioned post and existing vacancies, and if they are otherwise eligible, their salaries be paid to them within a period of three months from the date on which a copy of this order along with a copy of this writ petition and Annexure thereof is produced by the petitioners before the concerned authority. It is further provided that if the petitioners are still in service they may be allowed to continue till regular appointment as per the interview is made. ……………………….” 4. However as no payment was received, the teachers have re-approached the Court with this 2nd writ petition. The petitioners contend that as they were appointed in retirement vacancies by the then D.I. of Schools, Dhemaji, the denial of their salary is unjustified. But at the same time, the learned counsel Mr. H. WP(C) 586/2012 Page 2 of 4 Talukdar concedes that he has no current instruction on whether the two petitioners are still continuing their service. 5. On the other hand, the learned standing counsel Mr. A. Deka submits that appointment of L.P. School teachers is governed by the Assam Elementary Education (Provincialisation) Rules, 1977 (hereinafter referred to as the “Elementary Education Rules”) and Rule 3(i)(a) & (b) thereof prescribes the mode of selection and appointment. Before selection exercise is undertaken, the process has to be advertised and the DEE is required to authenticate and published the select list and only then appointment can be made from such authenticated select list. The respondents contend that the appointment order does not show that the petitioners were selected through a due process and accordingly the departmental lawyer describes the petitioners’ appointment to be amongst the many illegal appointment orders issued by the then D.I. of Schools, Dhemaji, Mr. J. Bora, against whom, Departmental Proceeding was initiated. 6. The respondents argue that if unmerited appointments have been made dehors the rules, the State is not obliged to take the burden of salary, for such category of illegal appointees. 7. When appointments are made in violation of the mandatory provisions, on the claim for salary, in Govt. of Andhra Pradesh Vs. K. Brahmanandam reported in (2008)5 SCC 241, the Supreme Court observed as follows:- “14. The liability of the State to pay salary to a teacher appointed in the recognized schools would arise provided the provisions of the statutory rules are complied with, subject to just exception. The right to claim salary must arise under a contract or under a statute. If such a right arises under a contract between the appointee and the institution, only the latter would be liable therefor. Its right in certain situation to claim reimbursement of such salary from the State would only arise in terms of the law as was prevailing at the relevant time. If the State in terms of the statute is not liable to pay the salary to the teachers, no legal right accrues in favour of those who had been appointed in violation of mandatory provisions of the statute or statutory rules.” 8. In a bunch of cases of teachers appointed in the Primary Schools of Assam, the Supreme Court in Nazira Begum Lashkar Vs. State of Assam reported in (2001)1 SCC 143 had declared that if appointments are made dehors the rules without following the procedure of advertisement and selection, equitable right is not attracted, for the appointees. WP(C) 586/2012 Page 3 of 4 9. Proceeding on the above basis, a prima facie examination of the appointment order itself reflect that it was not preceded by any selection exercise as is contemplated, under the Elementary Education Rules. 10. Be that as it may, in the absence of any counter affidavit from the side of the respondents, it will be unfair to straightway reject the salary claim made by the petitioners particularly in view of the judgment rendered earlier on 10.06.2003 (Annexure-2) in the WP(C) No.4304/2003. The least the petitioners are entitled is to a fair consideration of their claim and this can be ensured by asking the Expert Committee constituted by the Government on High Court’s direction, in Sudhendu Mohan Talukdar Vs. State of Assam reported in 2006(2) GLT 216. The standing counsel informs that the Expert Committee is still functional. 11. Having concluded thus, the petitioners are permitted to file individual representation before the Commissioner & Secretary to the Govt. of Assam, Education (Elementary) Department. When the representation(s) are received, the Officer should facilitate consideration of the salary claim of the petitioners, by the Expert Committee functioning under the authority of Sudhendu Mohan Talukdar (supra). Since the petitioners are litigating for a long time, the Expert Committee should decide the matter expeditiously and preferably within a period of 8(eight) weeks from receipt of the representation. While assessing the bonafide of the claim, the Committee should determine whether the petitioners were appointed through due process and for how long they have served. The ratio in K. Brahmanandam (supra) and Nazira Begum Lashkar (supra) should also be borne in mind, while deciding the merit of the claim. It is ordered accordingly. 12. With the above order, the case stands disposed of. No cost. JUDGE Roy WP(C) 586/2012 Page 4 of 4 .