Gauhati High Court
Manab Nath vs State Of Assam & 2 Ors on 28 January, 2016
Author: A.K. Goswami
Bench: A.K. Goswami
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM AND ARUNACHAL PRADESH)
(F.R)
WP(C) No.3912/2014
Sri Manab Nath
Vill- Bamungori
P.O. Sarutapa
Dist- Barpta, Assam
...... Petitioner
-Versus-
1. State of Assam,
Represented by the Commissioner & Secretary
Education (Elementary) Department, Dispur,
Guwahati-6.
2. The Director of Elementary Education,
Assam, Kahilipara, Guwahati-19.
3. The District Elementary Education Officer,
Barpeta, P.O. & Dist- Barpeta.
...... Respondents
BEFORE
THE HON'BLE MR. JUSTICE A.K. GOSWAMI
For the petitioner : Mr. B.K. Bhattacharjee, Advocate,
For the respondents : Mr. N. Sarma, SC, Elementary
Education, Assam.
Date of hearing and Judgment : 28.01.2016.
JUDGMENT & ORDER
(ORAL)
Heard Mr. B.K. Bhattacharjee, learned counsel for the petitioner. Also heard Mr. N. Sarma, learned Standing Counsel, Elementary Education, Assam appearing for all the respondents.
2. On 31.08.2015, time was granted till 07.10.2015 on the prayer of the learned Standing Counsel, Elementary Education to file affidavit-in-opposition. Subsequently, though the case WP(C) No.3912/2014 Page 1 of 6 was listed on a number of occasions, it does not appear that any prayer for filing affidavit-in- opposition was made. On 20.11.2015, case was fixed on 28.01.2016, i.e. to-day, to enable Mr. N. Sarma, learned Standing Counsel, Elementary Education to place relevant instructions. It was also observed that pendency of the writ petition shall not be a bar for the respondents to consider the prayer of the petitioner.
3. Mr. Sarma has submitted that some further time may be granted as the Director of Elementary Education has sought for a report from the District Elementary Education Officer, Barpeta.
4. The prayer is rejected as it is the considered opinion of the Court that grant of further time will be wholly inequitable and not in furtherance of justice.
5. This case depicts a totally lackadaisical and indifferent attitude of the authorities in giving legitimate dues to the petitioner as the factual matrix have unfolded.
6. The case of the petitioner is that he was duly selected for the post of Assistant Teacher in LP/MV schools conducted by the Sub-Divisional Level Selection Board and was accordingly, appointed on 03.12.1999.
7. The petitioner had approached this Court earlier by filing a writ petition under Article 226 of the Constitution of India, which was registered as WP(C) No.5191/2003 as he was not paid salary and this Court, vide an order dated 14.08.2003, had disposed of the said writ petition along with some other writ petitions with the following directions:-
"5. In the light of the above discussions, this Court considers it proper to dispose of this bunch of Writ Petitions with the following directions:-
1. A Committee consisting of Mr. AK Phukan, Advocate General, Assam, 2. Mr. AC Buragohain, Additional Advocate General, Assam, and 3. Mr. Pranab Bora, I.A.S., retired Chief Secretary to the Government of Assam be constituted forthwith by issuing an appropriate notification. Mr. LC Tamuly, Secretary to the Government of Assam, Education Department will function as the Member-Secretary of the said Committee;
2. The Committee will hold its deliberations from time to time at such periodic intervals as may be considered appropriate;
3. The Committee will determine the reasons for non-payment of salaries/stipend to each of the writ petitioners in the present group of cases and in that regard, if required, may also determine the validity of the appointment of the petitioners;WP(C) No.3912/2014 Page 2 of 6
4. The Committee, irrespective of the question of validity of the appointment of the petitioners shall also ascertain the period/periods for which the petitioners had rendered services in the posts to which they were appointed, if any;
5. The Committee will also take up the cases of such other petitioners, which may be referred to it by this Court in the future.
In view of the composition of the Committee, this Court considers it wholly inappropriate to lay down any time schedule for completion of the task assigned to the Committee. The Committee will undoubtedly hold its deliberations and render its decision expeditiously and will submit its findings to the State Government for consequential action from time to time. The findings of the Committee will be implemented by the State Government in the Education Department by taking such further action as may be required. In the event the appointment of any of the petitioners is found to be illegal, the State Government, if so advised, may proceed against such illegal appointees, in accordance with law. However, notwithstanding any such illegalities in the initial appointment as may be found, if any of the writ petitioners had actually rendered services, the State will be under an obligation to pay the salaries and allowances for the services rendered."
8. It appears that subsequently a show-cause notice dated 05.06.2009 was issued to the petitioner asking him to show cause as to why his appointment should not be treated as illegal and void-ab initio. Pursuant to the aforesaid show-cause notice, a personal hearing was given to the petitioner on 10.09.2009 and thereafter, the Director of Elementary Education, in connection with the petitioner's writ petition being WP(C) No.5191/2003, submitted a letter dated 22.10.2009 to the Commissioner and Secretary to the Government of Assam (Education) Elementary Department (Annexure-F5), which reads as follows:-
"1. The petitioner Sri Manab Nath was appointed on 03/12/1999 after duly being selected by the Sub-Divisional Selection Board, Barpeta. This period did not fall under the ban period as mentioned in the decision of the Expert Committee.
2. Sri Manab Nath was initially posted by the then District Elementary Education Officer, Barpeta on 03/12/1999 against the transferred vacancy of Md. Taysuddin Ahmed, Hindi teacher at Madhya Paka MEM WP(C) No.3912/2014 Page 3 of 6 even though the petitioner was selected at Sl. 22 of the select list as a general Asstt. Teacher.
3. As per the appointment order, the petitioner was to join within 15 days.
On 15/12/1999, the District Elementary Education Officer, Barpeta issued an order allowing to join at the same school enabling him to join the post within the stipulated 15 days period with the assurance that adjustment will be done later on against existing vacancy with 15 days of the post of Hindi teacher of Madhya Paka MEM was also filled up by the selected candidate of the Hindi teacher category.
4. By another order of the District Elementary Education Officer, Barpeta dtd. 8/5/2000 the petitioner was temporarily adjusted at Bamunbari Phulaguri M.V. School stating that he will be adjusted at the same school as and when Sri Balabhadra Das, A.T. would be up-graded to the post of Headmaster. Incidentally Sri Balabhadra Das has been promoted to the post of Headmaster vide order of the District Elementary Education Officer, Barpeta dtd. 27/9/2004. But the petitioner has not been adjusted against the subsequent existing vacant post. The petitioner continuous to render his service at Bamunbari Phulaguri M.V. School till date. Without receiving any salary from the date of his joining.
On scrutiny of verification it has been revealed that Sri Manab Nath is duly selected candidate. However, the initial erroneous posting against the post of Hindi teacher instead of Asstt. Teacher appears to have deprived the petitioner from being posted against a valid sanctioned post.
Therefore, the Govt. may be pleased to consider the claim of the petitioner sympathetically."
9. From the aforesaid report, it is manifest that the petitioner was duly selected by the Sub-Divisional Selection Board, Barpeta and his appointment did not coincide with any ban period. The petitioner was selected at Sl. 22 as an Assistant Teacher, but most surprisingly, the District Elementary Education Officer, Barpeta appointed him on 03.12.1999 against a transferred vacancy of a Hindi Teacher at Madhya Paka MEM, which was filled up by the selected candidate of the Hindi Teacher category. Thereafter, by an order of the District Elementary Education Officer, Barpeta, the petitioner was temporarily adjusted on 08.05.2000 in Bamunbari Phulaguri M.V. School, that too, with a rider that he would be adjusted in the said school as and when one Balabhadra Das, Assistant Teacher would be upgraded to the WP(C) No.3912/2014 Page 4 of 6 post of Headmaster of the school. However, later on, the petitioner was not adjusted. The report is emphatic that the petitioner was discharging his duties all throughout at Bamunbari Phulaguri M.V. School without receiving his salary and because of erroneous posting of the petitioner, he had been deprived of his salary.
10. The Expert Committee chaired by the Commissioner and Secretary, Education Department, in a report dated 27.05.2011, had, thereafter, recorded a finding that the petitioner was duly selected candidate for the post of Assistant Teacher and instead of his appointment as an Assistant Teacher (General), he was appointed as Assistant Teacher (Hindi) and posted against a non-sanctioned post. It was observed as follows:-
"1) WP(C) No.5191/2003 (Shri Manab Nath, Barpeta):
The Committee after scrutiny of records/report of Director of Elementary Education, Assam vide No.EHA-764/2003/170 dated 22.10.2007 is of the view that the petitioner was duly selected candidate for the post of Asstt. Teacher and instead of appointment as Asstt. Teacher (General), he was appointed as Asstt. Teacher (Hindi) and posted against a non-sanctioned post. This mistake in appointment as well as posting is found to have been committed by the then District Elementary Education Officer, Barpeta.
The Committee has recommended his posting in a vacant sanctioned post for release of salary from the due date after observing all required formalities.
The Committee has also recommended that the officer responsible for the above be taken to tasks under the Disciplinary rules."
11. Pursuant to the Expert Committee Report dated 27.05.2011, it appears that a vacant sanctioned post of Upper Primary Assistant Teacher at Pachim Paka Azad Memorial M.E. Madrassa School for posting of the petitioner was identified with the approval of the Finance (SIU) Department, as is demonstrated by the letter dated 19.04.2012 of the Deputy Secretary, Government of Assam, Education (Elementary) Department. Thereafter, an order dated 21.05.2002 (Annexure-F12), was issued adjusting the petitioner in the aforesaid Pachim Paka Azad Memorial M.E. Madrassa as Assistant Teacher.
12. The tale of woe of the petitioner did not end there as the events unfolding subsequent thereto demonstrate. It appears that in the post of Assistant Teacher at Pachim Paka Azad Memorial M.E. Madrassa, one Dewan Abdur Rahman, Assistant Teacher was already adjusted and therefore, the petitioner did not get his salary, necessitating adjustment of the petitioner in another existing vacancy. Thereafter, the petitioner was adjusted as Assistant Teacher at WP(C) No.3912/2014 Page 5 of 6 Medhabpur ME School by an order dated 01.07.2013, which was issued in partial modification of the order dated 21.05.2012.
13. There is no dispute that the petitioner has been rendering his services and he has suffered not for any fault on his part, but because of unacceptable administrative lapses on the part of the authorities concerned, which cannot stand in the way of petitioner getting his due salary.
14. The payment of salary, which is long overdue, will be paid from the date of his initial appointment within a period of 30 days from the date of receipt of a certified copy of this order, failing which, it will carry interest at the rate of 8% per annum till actual payment.
15. The writ petition stands disposed of.
JUDGE Benoy WP(C) No.3912/2014 Page 6 of 6