Gauhati High Court
Nirmal Kakati & 2 Ors vs The State Of Assam And Ors on 11 July, 2017
Author: Hrishikesh Roy
Bench: Hrishikesh Roy
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
WP(C) No. 2782/2010
1. Shri Nirmal Kakati,
S/O Lt. Harendralal Kakati,
Asstt. Teacher, Uparhowly Girls M.E. School,
Vill.-Azara, Kalitapara, PO-Azara,
Dist.-Kamrup, Assam.
2. Shri Nibaran Kakati,
S/O Shri Jatindra Ch. Kakati,
Vill.-Sarpara, PO-Jharobori, Dist.-Kamrup, Assam,
Asstt. Teacher, Dakhala M.V. School,
Dist.-Kamrup, Assam.
3. Mrs. Tarulata Devi,
Asstt. Teacher of Abhipara Bartari M.E. School,
W/O Shri Sailen Bhattacharjee,
Resident of Kochpara, PO-Mirza, PS-Palashbari,
Dist.-Kamrup, Assam. ......Petitioners.
-Versus-
1. The State of Assam,
Represented by the Secretary to the Govt. of Assam,
Education Department,
Dispur, Guwahati-6.
2. The Director,
Elementary Education, Assam,
Kahilipara, Guwahati-19.
3. The District Elementary Education Officer,
Kamrup, Chatribari, Guwahati.
4. The Block Elementary Education Officer,
Chaygaon, Dist.-Kamrup, Assam.
5. The Block Elementary Education Officer,
Ramrup, Dist.-Kamrup, Assam.
6. The Block Elementary Education Officer,
Boko, Dist.-Kamrup, Assam. ......Respondents.
WP(C) 2782/2010 Page 1 of 5
BEFORE
THE HON'BLE MR. JUSTICE HRISHIKESH ROY
For the Petitioners: Mr. R.M. Choudhury,
Mr. R. Baruah. ......Advocates.
For the Respondents: Mr. N. Sarma,
SC, Elementary Education. ......Advocate.
Date of Hearing & Judgment : 11 th July, 2017
JUDGMENT AND ORDER (ORAL)
Heard Mr. R.M. Choudhury, the learned counsel for the petitioners. The respondents are represented by Mr. N. Sarma, the learned standing counsel for the Department of Elementary Education.
2. The challenge here is to the speaking order dated 04.02.2010 (Annexure- VII), whereby, the Director of Elementary Education, Assam (hereinafter referred to as the 'DEE') has rejected the petitioners' representation for arrear increment from August 1995 to August 2005. The teachers were found to have been illegally appointed by the S. Monoharan Committee, but subsequently they were adjusted/regularised against other vacant posts. The petitioners claim that they are entitled to annual increments from the date of joining service and not from the date of regularisation.
3. Although there are 3 petitioners in this case, the appointment order only of the 1st petitioner Nirmal Kakati is enclosed in the writ petition. The process of induction into service as can be seen from the appointment order does not inspire confidence since the appointments were never recommended by the Sub- Divisional Advisory Board as per norms. In fact the appointment was curiously made subject to approval of the Advisory Board.
4. In Assam, between 1991-1996, large numbers of illegal appointments of teachers were made and accordingly the Government constituted the S. Monoharan Committee to examine the bonafide of those appointments. After an elaborate exercise, those who are appointed after selection and recommendation of the Sub-Divisional Advisory Board, were categorised as irregular appointees, WP(C) 2782/2010 Page 2 of 5 but those who were appointed without such selection, were categorised as illegal appointees. The Government however at the first instance, decided to adjust/regularise the service of the irregular category. But later on, phase wise regularisation of the illegal category, was also allowed by the State.
5. Following the Government's communication dated 25.05.2005, the service of the illegal category were adjusted/regularised by the District Elementary Education Officer (DEEO), Kamrup on 02.06.2005 (Annexure-II). But as noted earlier, this group were never selected nor they were appointed against existing/available vacancies. That is how they were placed in the illegal category by the S. Monoharan Committee. However, following the cabinet decision as also the direction issued by this Court on 26.11.2002 for consideration of the claim for regularisation in the WP(C) No.7433/2002, the petitioners were adjusted/ regularised in different M.E. Schools, where vacancies were available. It may be mentioned that initially the petitioners were appointed in schools where vacancies were unavailable and that is why, they had to be adjusted in schools, where posts became available.
6.1 Mr. R.M. Choudhury, the learned counsel submits that since the service of the petitioners have been adjusted/regularised, they are retrospectively entitled to increments since the date of their initial appointment and therefore increment benefits during 1995--2005, is contended to be justified by the counsel.
6.2 In support of his contention, Mr. Choudhury submits that the Block Elementary Education Officer (BEEO), Boko had allowed annual increments from August 1995 to January 2005 for similarly regularised teachers and therefore the petitioners must also get the same benefit.
7.1 On the other hand, the respondents contend that the petitioners were illegally appointed without selection or due process, when vacancies were unavailable for such appointment. That is how, salary was not paid to the illegal appointees for most period prior to regularisation of service in 2005. The departmental lawyer argues that because posts were unavailable and the illegal appointees had to be adjusted in vacancies of other schools, the benefit of increment cannot be claimed retrospectively.
WP(C) 2782/2010 Page 3 of 57.2 The standing counsel argues further that BEEO had no authority to allow increments for the teachers and projects that steps have been taken for recovery of the excess drawal made on the strength of the DEEO's illegal order.
7.3 To justify the rejection of the claim, the learned counsel Mr. N. Sarma refers to the order passed on 03.11.2010 in the WP(C) No.5705/2010 (Abdul Hoque Abbasi Vs. State of Assam), whereby, the learned Single Judge rejected the claim for salary for the pre-regularisation period for those, described as illegal category by the S. Monoharan Committee. This decision of the Single Judge was affirmed by the Division Bench on 25.02.2015 by dismissing the Writ Appeal No.326/2011, filed by the aggrieved writ petitioners.
8 The Monoharan Committee found that the petitioners were amongst the 3511 illegal teachers who were appointed without selection against non-existent posts. However notwithstanding the illegality, as a humanitarian gesture, the illegal appointees were adjusted/regularised against available posts in other middle schools. Since their adjustments/regularisation on 02.06.2005, the petitioners are receiving their regular salary.
9 But the question is whether by virtue of the regularisation order of 02.06.2005, the beneficiaries would be retrospectively entitled to annual increment from the date of entering service, through an illegal process. In my perception, if increment benefit is granted to such a group who never deserved to be retained in service, it will create a bad precedent for multiple reasons. Firstly, the petitioners who were beneficiaries of an illegal process will get retrospective benefits for the period prior to adjustment/regularisation of their service. Secondly, when appointments were made without posts being available, to direct the State to bear additional burden for the period prior to adjustment/regularisation, will not be in public interest. Thirdly, if relief is granted in such a case, a wrong message will go since the beneficiaries under the benevolent dispensation of the Government, would receive unmerited further benefits for the period, prior to adjustment/regularisation. Such reward in my considered opinion can hardly be justified for a group, who were categorised as illegal appointees, by the Monoharan Committee. Here one must also bear in mind the distinction between the irregular and the illegal categories, as the former were WP(C) 2782/2010 Page 4 of 5 appointed after selection whereas the illegal group were appointed, without any recommendation.
10 In so far relief sought on the basis of the order passed by the BEEO, the Court repeatedly asked the petitioners' lawyer Mr. R.M. Choudhury as to whether, the BEEO has the competence to grant increment. However the counsel avoided answering the question. The BEEO is a lower level officer at the block level and is not competent to grant annual increments. Therefore parity claimed on the strength of increment granted to others by an incompetent authority, cannot in my view be allowed by a judicial forum. Moreover the authorities have decided to recover the undeserved payment.
11 For those who were placed in the illegal category by the Monoharan Committee, the salary for the pre-regularisation period was claimed by the affected teachers before this Court. However such claim was found to be untenable in the WP(C) No.5705/2010 and the case was dismissed on 03.11.2010. The resultant WA No.326/2011 filed by the claimants was dismissed on 25.02.2015 by the Division Bench. Thus retrospective pay benefit for the pre- regularisation period for those described as illegal category by the S. Monoharan Committee, was rejected by the High Court. The present group before me is also of the illegal category and therefore I see no justification to allow undeserved retrospective benefit to this category of teachers, who entered service through an illegal process.
12 Following the foregoing discussion and finding no infirmity with the speaking order passed by the DEE on 04.02.2010 (Annexure-VII), this case is found devoid of merit and the same is accordingly dismissed. No cost.
JUDGE Roy WP(C) 2782/2010 Page 5 of 5