Gauhati High Court
The State Of Assam vs Mrs Usha Rani Goswami & 5 Ors on 16 May, 2017
Author: Hrishikesh Roy
Bench: Hrishikesh Roy
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Review Petition No.81/2016
In
WP(C) No.5286/2004
The state of Assam
Represented by the commissioner & secy.
To the Govt. of Assam, Education (Elementary) Deptt.,
Dispur, Guwahati-6
... REVIEW PETITIONER/RESPONDENT
VERSUS
1. Mrs Usha Rani Goswami
W/o Devendra Sarma,
R/o Prafulla Bora Path Bye Lane No. 2,
Rupnagar, Guwahati-22
2. Smt Pranita Kalita
W/o Sri Pradip Senapati,
R/o Santipur Hill Side,
Mathura Nagar, Bharalumukh,
Guwahati-9
3. Smt. Anima Handique Phukan
W/o Dharma Ranjan Pathak,
R/o House No. 38, Udaypur Birubari,
P.O. Gopinath Nagar, Guwahati 781016
4. Smt. Nirmali Chakraborty,
W/o Ashok Kumar Sarma,
R/o Vill. & P.O. Gotanagar,
Gapal Than Near N.H. 37,
Guwahati 781033
5. Smt. Rula Baruah
W/o Shri Mukut Goswami,
Assam Engineering College,
Nizarapar, Guwahati 781014
6. Smt. Kamini Das,
W/o Sri Pramod Choudhury,
Assam Engineering College Campus,
Guwahati-14.
...RESPONDENTS/WRIT PETITIONERS.
For the Review petitioner : Mr. N. Sarma, ...SC, Elementary Education
For the respondents : Mr. I Choudhury. ... Sr. Advocate
Mr. R M Deka,
Mr. S Biswakarma,
Mr. A Phukan,
Mr. A K Baruah,
Ms. T Jinni,
Ms. G Das. ... Advocates.
Review Petition No.81/2016
Page 1 of 10
2
Date of hearing & judgment : 16.05.2017
BEFORE
THE HON'BLE MR JUSTICE HRISHIKESH ROY
JUDGMENT AND ORDER (ORAL)
The Review petitioners are represented by Mr. N Sarma, the learned Standing Counsel for the Department of Elementary Education. The respondents/writ petitioners are represented by Mr. I Choudhury, the learned Sr. Advocate.
2. The State has filed this Review petition on account of the liberty granted to them by the Division Bench on 10.5.2016 in the WA No.46/2013, where the judgment of the learned Single Judge rendered on 10.3.2011 in the WP(C) No.5286/2004, was challenged by the department. Under this judgment, the Writ Court declared that the petitioners are entitled to their arrear salary from their respective date(s) of appointment, as ME School Teachers.
3. However for another group of ME School teachers, the learned Judge in the WP(C) No.5705/2010 (Abdul Haque Abbasi and 15 others vs. State of Assam and others) on 3.11.2010 rejected the claim for arrear salary. Thus observing the contradictory decision of the Writ Court on the issue of entitlement to arrear salary for the ME School teachers, the Division Bench after noticing that the earlier judgment in Abdul Haque Abbasi (supra) was not brought to the notice of the Court, disposed of the WA No.46/2013 with liberty to the Departmental appellants to file Review petition to apprise the Writ Court about rejection of the arrear pay claim in Abdul Haque Abbasi (supra), as the said decision stood confirmed by the Division Bench on 25.2.2015 through dismissal of the WA No.326/2011, filed by the aggrieved writ petitioner Abdul Haque Abbasi and 15 others.
Review Petition No.81/2016 Page 2 of 10 3REVIEW PETITIONERS ARGUMENTS 4.1 Standing for the Review petitioners, Mr. N Sarma, the learned Standing Counsel submits that because of the contradictory decision of the Coordinate Bench for similarly situated ME school teachers, this Review petition is preferred by the department. He contends that since claim for arrear salary was denied by the Court in the earlier decision in Abdul Haque Abbasi (supra), the said verdict having been approved by the Division Bench through dismissal of the WA No.326/2011, this Court should retract its positive direction given on 10.3.2011, in favour of the ME school teachers, in the WP(C) No.5286/2004.
4.2 The Review petitioners next contend that the service of the ME school teachers were regularized under exceptional circumstances through the Cabinet decision taken on 21.2.2000 and since an undertaking was secured from the regularised teachers in their adjustment orders of 20.12.2002, to not to claim arrear salary , the direction for disbursal of the arrear salary should be reviewed by the Court.
4.3 In support of the Review petition the departmental lawyer argues that the ME school teachers in both writ petitions were in the same category as they were regularized in pursuant to Cabinet decisions and hence there should be consistent adjudication on their arrear salary claim as otherwise, discrimination will result on account of the contradictory verdict of the Court.
ARGUMENTS BY RESPONDENTS 5.1 Opposing the Review petition, Mr. I Choudhury, the learned Senior Counsel submits that Usha Rani Goswami and 5 others, who were the successful litigants are not on similar footing as Abdul Haque Abbasi and others. The Counsel projects that his clients were declared as irregular appointees whereas Abdul Haque Abbasi and others were categorized as illegal appointees, by the Manoharan Committee. Moreover, the regularization of the group headed by Usha Rani Goswami was done under the 1st Cabinet decision of 21.2.2000, whereas the later regularization of the group headed by Abdul Haque Abbasi was through the 2nd Cabinet decision of 24.2.2005.
5.2 Mr. Choudhury argues that there is a clear distinction between those who Review Petition No.81/2016 Page 3 of 10 4 were irregularly appointed and those illegally appointed and therefore like treatment of two dissimilarly situated litigants, is not expected from the Court.
5.3 The Senior Counsel refers to the order dated 5.3.2001 passed by the District Elementary Education Officer, Guwahati in respect of Usha Rani Goswami and others to project that their services were regularized w.e.f. 1.8.2000 and in the regularization order, nothing was indicated that their arrear salaries cannot be claimed. Nevertheless, a so called adjustment order was passed thereafter by the same officer on 20.12.2002 whereby the regularized teachers were required to give undertaking to the effect that they will not claim their arrear salary. Therefore, the learned Counsel contends that when the service of the ME schools teachers stood regularized w.e.f. 1.8.2000, their arrear salary claim from the date of regularization cannot be a matter of dispute. In respect of the earlier period from May 1995 to 31.7.2000, the Senior Counsel submits that the unconscionable clause (1) in the adjustment order cannot be enforced against the disadvantaged and vulnerably placed ME school teachers, who were desperate to receive their salaries, at the relevant point of time.
5.4 Mr. I Choudhury, for the writ petitioners submits that the ME school teachers were appointed after due selection and they had no role in their appointment process. Moreover their service was utilized in the schools since May 1995 till date, without any break. Therefore, denial of arrear salary by the State, despite receiving service from the ME school teachers, is contended to be hit by the principle of quantum meruit.
5.5. Describing the High Court's verdict in the Abdul Haque Abbasi (supra) to be not binding and a per incuriam decision, the Counsel for the writ petitioners contends that the relevant issues on the basis of which the arrear salary claim should be decided, were not taken into account in the earlier judgment. He further submits that no ratio was laid down either by the Single Judge or by the Division Bench in the case of Abdul Haque Abbasi (supra). Therefore, the Senior Counsel argues that a contrary conclusion in that case, can have no binding force on the Court which analysed all relevant issues and gave its verdict, in favour of the litigants.
Review Petition No.81/2016 Page 4 of 10 5BACK GROUND 6 In the year 1993-94, a selection process was undertaken for recruitment of Assistant Teachers in State's ME Schools, where Usha Rani Goswami and 5 others who had filed the WP(C) NO.5286/2004, offered their candidatures and were duly selected. Then the selectees were posted in various ME Schools in Kamrup District, Guwahati. The appointees had throughout rendered service without any break and this is not disputed by the respondents.
7. Long after they were appointed, certain controversies arose with regard to appointments in LP/ME Schools in Assam and in order to enquire into the anomalies, the Government constituted a One Man Committee, which is known as the Manoharan Committee. After detailed enquiry, the Manoharan Committee submitted a report where the appointees were classified into three distinct categories as under :-
"..................
(i) Regular/legal/valid appointees - Persons who were validly selected and were appointed against sanctioned vacant post.
(ii) Irregular appointees - Persons who were validly selected but were appointed either temporarily or appointed in excess of existing vacancies.
(iii) Illegal appointees - Persons who were neither selected nor were appointed against sanctioned vacant posts i.e. in excess of the existing vacancies.
......................"
8. Those who were categorized as illegal appointees were recommended for termination but those who were categorized as irregular appointees, were shortlisted for regularization. Then the 1st Cabinet decision was taken on 21.2.2000 for regularization of those identified as irregular appointees. In the departmental counter affidavit filed in the WP(C) NO.5286/2004, it was averred that the litigants Usha Rani Goswami and 5 others were irregular appointees.
9. Pursuant to the 1st Cabinet decision of 21.2.2000, the writ petitioners who Review Petition No.81/2016 Page 5 of 10 6 were serving since 1993 but paid salary only uptil 1995, were regularized w.e.f. 1.8.2000, under the order passed by the DEEO, Guwahati, on 5.3.2001. Significantly the regularization order nowhere says that the teachers will not be entitled to their unpaid salary. However the regularization order was followed by a so called adjustment order dated 20.12.2002 and in the later order, the Clause
(i) was inserted for furnishing of Undertaking by the adjusted teachers that he/she will not claim arrear salary.
10. The beneficiaries as can be appreciated were desperate for their salary and on account of their weakened bargaining position, they could not have protested the unconscionable clause in the adjustment order and therefore, the Clause (i) is made one of the sheet anchor for the Review petition filed by the State, to oppose the arrear salary claim of the ME School teachers.
DISCUSSION
11. What emerges from the above narration is that the respondents/writ petitioners were formally selected by a competent body but they were appointed against non-sanctioned post. That is why they were categorized as irregular appointees by the Manoharan Committee. But the fact remains that uninterrupted service was received from the ME Schools teachers since about 1993 but they were paid salary only uptil April, 1995 and no salary between May 1995 till August 2002 was paid, to the working teachers.
12. The question now is whether the State can reasonably take a stand that arrear salary cannot be claimed by the serving teachers. The appointees were certainly aware that they were selected through due process but it was not within their knowledge that they were appointed against non-sanctioned posts. Nevertheless, when services have been rendered and received without attributing any illegality or misconduct against the appointed teachers, it would hardly be fair for the State to take a stand that the past salary for the services rendered, will not be paid.
Review Petition No.81/2016 Page 6 of 10 713 In the above context, the doctrine of quantum meruit in my opinion, would squarely apply. The Black's Law Dictionary describes quantum meruit as an equitable doctrine based on the concept that no one who benefits by the labour and materials of another, should be unjustly enriched thereby. In other words, reasonable remuneration for service, cannot be withheld.
14. The essential elements for applying the doctrine of quantum meruit as enunciated in Black's Law Dictionary be extracted :-
"..............................
(1) valuable services were rendered or materials furnished, (2) for person sought to be charged, (3) which services and materials were accepted by person sought to be charged, used and enjoyed by him, and (4) under such circumstances as reasonably notified person sought to be charged that plaintiff, in performing such services, was expected to be paid by person sought to be charged.
................................."
15. The equitable doctrine as seen from the essential ingredients, applies in situation when services are received and then remuneration has to be paid. The State which is expected to be fair in its dealings, cannot take a stand that they will receive services and at the same time deny the salary claim. Such a stand will be anti-thesis of the fair treatment guarantee of the State enshrined in our Constitution.
16. It is important to record that while granting relief to Usha Rani Goswami and 5 others in the WP(C) NO.5286/2004, this Court specifically analysed the implication of Clause (i) in the adjustment order dated 20.12.2002. In that context, the Writ Court commented on the unequal bargaining power of the teachers vis-à-vis the State and the desperation of the teachers who practically had no choice in the matter and were forced to relinquish their claim for arrear salary. In the context of such unfair covenant, the ratio in Central Inland Water Transport Corporation Ltd. Vs. Brojo Nath Ganguly reported in (1986) 3 SCC 156 was applied where Court observed that Article 14 of the Constitution guarantees equality before the law and equal protection of the law to all persons. Explaining Review Petition No.81/2016 Page 7 of 10 8 the mandate of the equality clause, the Supreme Court declared that Courts when called upon to do so, must strike down unfair and unreasonable clause in the contract entered between parties who are not equal in bargaining power. Explaining the concept further on unbalanced bargaining status, the Supreme Court observed as follows :-
"...............
It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable in clause in that contract or form or rules may be."
.............
17. On the basis of the above ratio in the Brojo Nath Ganguly (supra), this Court while upholding the entitlements of Usha Rani Goswami and 5 others to arrear salary, declared that the kind of covenant incorporated in clause (1) of the adjustment order dated 20.12.2002, amount to unconscionable contract and is neither right nor reasonable. Thus it was held that the State cannot absolve itself of its legal obligation to disburse the arrear salary to the ME School teachers, for the services rendered by them.
18. While the positive direction for salary payment was based upon the concept of unconscionable covenant and also categorization of the petitioners as irregular (not illegal), the other Bench in Abdul Haque Abbasi (supra) denied relief to the ME School teachers, in the WP(C) No.5705/2010. But the distinguishing feature is that this group are in the illegal category unlike Usha Rani Goswami and 5 others, who were placed in the irregular category, by the Manoharan Committee. Moreover, the issue of unconscionable covenant was never discussed either by the Single Judge or by the Division Bench, in the Abdul Haque Abbasi (supra) verdicts. The doctrine of quantum meruit too, did not figure in the court's judgments when it denied relief in the case of Abdul Haque Abbasi (supra). Therefore, the issue to be considered in this Review petition is whether on account of denial of relief to the litigants in the WP(C) No.5705/2010 similar denial should result for the ME School teachers, in the present case.
Review Petition No.81/2016 Page 8 of 10 919. While the ratio decidendi of a Coordinate or an Appellate Court should normally be respected, it must however be borne in mind that only the ratio of the verdict is binding and not the conclusion of the Court. Therefore, one has to examine whether in Abdul Haque Abbasi (supra), any principle of law was laid down by the Court on the claim for arrear salary made by the ME School teachers. In fact, the Single Judge as well as the Division Bench in Abdul Haque Abbasi (supra) neither had the occasion to discuss the unconscionable covenant with reference to the ratio in Brojo Nath Ganguly (supra) nor it had any occasion to discuss the quantum meruit doctrine. As earlier noted, the group headed by Abdul Haque Abbasi were categorized as illegal appointees whereas the litigants in the present case, were placed in the irregular category, by the Manoharan Committee. That apart, the service of the petitioners were regularized on the basis of the 1st Cabinet decision dated 21.2.2000 whereas the group categorized as illegal appointees, were the beneficiaries of the 2nd Cabinet decision announced 5 years later, on 24.2.2005. Thus there are vital distinction between the two groups under consideration. Moreover no binding precedent was laid down in the earlier judgment. Thus the conclusion in that case does not in my opinion call for a review of the favourable verdict in the WP(C) No.5286/2004.
20. Following the above discussion what unmistakenly emerges is that the relevant issues on the claim for arrear salary were never formulated or discussed nor any binding ratio decidendi was laid down, in Abdul Haque Abbasi (supra). But in the present case, where relief was granted, no relevant issues escaped consideration of the Bench and the later verdict was based on sound legal principles. The power of review is a restricted power to be exercised only in exceptional circumstances and that also to cure errors apparent and patent on the face of the records which are in the category of inadvertent errors. Review jurisdiction is not to be exercised to fish out errors and substitute another point of view as was declared by the Supreme Court in Lily Thomas vs. Union of India reported in (2000) 6 SCC 224. Considering all these aspects this Court has no hesitation to declare that the conclusion in Abdul Haque Abbasi (supra) is a per incuriam decision and it should not be applied for review of this Court's decision dated 10.3.2011 in the WP(C) No.5286/2004.
Review Petition No.81/2016 Page 9 of 10 1021. As this Review petition is structured primarily on the court's decision in the WP(C) No.5705/2010, it is also necessary to observe that the earlier verdict can never be described as one warranting attention by discovery of new facts, which could not be produced earlier with exercise of due diligence. Despite being informed, the departmental authorities failed to bring the earlier verdict, to the notice of the Court. Therefore in a case of this kind where another view is taken by the other court the narrow window for exercise of Review Power, should not in my perception be opened in this case. Therefore, I hold that exercise of review power is unmerited for the State's application which is thus found devoid of merit and the same is accordingly dismissed. Parties to bear their own cost.
22. Before parting with the records, it is necessary to observe that the respondents/writ petitioners are awaiting the fruits of the favourable judgment for last six years since 10.3.2011 and now that this case is dismissed, the State must take expeditious steps for disbursal of the arrear salary of the ME School teachers, in pursuant to the verdict in the WP(C) No.5286/2004. I accordingly order the State to do the needful.
JUDGE Datta Review Petition No.81/2016 Page 10 of 10