Gauhati High Court
WP(C)/6435/2017 on 16 July, 2025
GAHC010145152017
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Principal Seat at Guwahati
WP(C) No. 6435/2017
1. Shri Mahendra Nath Mahanta,
Asstt. Teacher Rajapul L.P. School,
Nazira Sub-Division, Sivasagar.
2. Shri Chittaranjan Borgohain,
Asstt. Teacher, Phulanibari L.P. School,
Nazira Sub-Division, Sivasagar.
3. Shri Ajit Kalita,
Asstt. Teacher, 215 No Channasha L.P. School,
Nazira Sub-Division, Nazira.
4. Shri Amulya Dutta,
Asstt. Teacher, Bahbari Mazdoor L.P. School,
Nazira Sub-Division, Nazira.
5. Shri Kamal Bailung,
Asstt. Teacher, No.981 Nagaon L.P. School,
Nazira Sub-Division, Sivasagar.
6. Shri Raju Konwar,
Asstt. Teacher, Ougurijan L.P. School,
Nazira Sub-Division, Sivasagar.
7. Shri Rantumoni Khanikar,
Asstt. Teacher, Tom Tom Tola L.P. School,
Page 1 of 32
Nazira Sub-Division, Sivasagar.
8. Shri Lakheswar Das,
Asstt. Teacher, 653 No Molagaon (2) L.P. School,
Nazira Sub-Division, Sivasagar.
9. Shri Padmeswar Gogoi,
Asstt. Teacher, Chah Sramik Gyanjyoti L.P. School,
Ligipukhuri, Nazira Sub-Division,
Sivasagar.
10. Shri Mahendra Gogoi,
Asstt. Teacher, Naga Gaon L.P. School,
Nazira Sub-Division, Sivasagar.
11. Shri Mridupaban Goswami,
Asstt. Teacher, Bengamuria Konwar Gaon L.P. School,
Nazira Sub-Division, Sivasagar.
12. Shri Balin Ch. Baruah,
Asstt. Teacher, Balighat Tribal L.P. School,
Nazira Sub-Division, Sivasagar.
13. Shri Basanti Rajkumari,
Asstt. Teacher, 483 No. Rajshok Tipomia L.P. School,
Nazira Sub-Division, Sivasagar.
14. Shri Sudarshan Prasad,
Asstt. Teacher, 6 No. Lakhimijan L.P. School,
Nazira Sub-Division, Sivasagar.
......Petitioners.
-Versus-
1. State of Assam,
Represented by Commissioner & Secretary to the
Govt. of Assam, Elementary Education Department,
Dispur, Guwahati-6.
Page 2 of 32
2. The Secretary to the Govt. of Assam,
Finance Department, Dispur, Guwahati-6.
3. The Director,
Elementary Education, Assam,
Kahilipara, Guwahati-19.
4. The Deputy Commissioner,
Sivasagar, Assam, Pin-785640.
5. District Elementary Education Officer,
Sivasagar, Assam, Pin-785640.
6. The Deputy Inspector of Schools,
Nazira, Sivasagar, Assam, Pin-785685.
7. The Block Elementary Education Officer,
Nazira, Sivasagar, Assam, Pin-785685.
......Respondents.
with WP(C) No. 2516/2018
1. Shri Purnananda Chetia, Asstt. Teacher, Namsaijan L.P. School, Nazira Sub-Division, Sivasagar, Assam.
2. Shri Dipak Rajkhowa, Asstt. Teacher, Jyoi Praja Basti L.P. School, Nazira Sub-Division, Sivasagar, Assam.
3. Shri Dimbeswar Hatimuria, Asstt. Teacher, Mohan Gaon L.P. School, Nazira Sub-Division, Sivasagar, Assam.
Page 3 of 32......Petitioners.
-Versus-
1. The State of Assam, Represented by Commissioner & Secretary to the Govt. of Assam, Elementary Education Department, Dispur, Guwahati-6.
2. The Secretary to the Govt. of Assam, Finance Department, Dispur, Guwahati-6.
3. The Director, Elementary Education, Assam, Kahilipara, Guwahati-19.
4. The Deputy Commissioner, Sivasagar District, Sivasagar, Pin-785640, Assam.
5. District Elementary Education Officer, Sivasagar, PO-Sivasagar, Pin-785640, Assam.
6. The Deputy Inspector of School, Nazira, PO-Nazira, Pin-785685, Sivasagar, Assam.
7. The Block Elementary Education Officer, Nazira, PO-Nazira, Pin-785685, Sivasagar, Assam.
......Respondents.
BEFORE HON'BLE MR. JUSTICE ROBIN PHUKAN Advocate for the petitioners :- Mr. S. K. Goswami. Advocate for the respondents :- Mr. P. N. Sharma, Standing Counsel Elementary Education Deptt.
Page 4 of 32
(R-1,3,5,6 & 7)
:- Ms. K. Phukan,
Government Advocate. (R-4)
Date of Hearing :- 23.05.2025
Date of Judgment & Order :- 16.07.2025
JUDGEMENT & ORDER (CAV)
Heard Mr. S. K. Goswami, learned counsel for the petitioners. Also heard Mr. P.N. Sharma, learned Standing Counsel, Elementary Education Department for the respondent Nos. 1, 3, 5, 6 & 7 and Ms. K. Phukan, learned Government Advocate for the respondent No.4.
2. As agreed upon by learned counsel for both the parties and as common question of facts and law are involved in these two writ petitions, being WP(C) No. 6435/2017 and WP(C) No. 2516/2018, it is proposed to dispose of both the writ petitions by this common judgment and order.
3. It is to be noted here that WP(C) No. 6435/2017, is instituted by as many as fourteen petitioners for issuing direction to the respondent authorities for permanent retention of the posts of the petitioners and to delete their names from the list of excess Page 5 of 32 teachers of Sivasagar district and also to issue direction to the respondent authorities to pay their current salary as well as arrear salary, from the month of March, 2016, till date.
4. And WP(C) No. 2516/2018, is preferred by three petitioners for issuing direction to the respondent authorities to pay the current and arrear salary from the month of March, 2016, and also to issue direction to the respondent authorities for permanent retention of the petitioners and to delete their names from the list of excess teachers.
The factual matrix
5. The petitioners in both the writ petitions were initially appointed under the Operation Black Board (O.B.B.) Scheme in different lower primary Schools of Nazira Sub-Division of Sivasagar district. Their names were reflected in the incumbency list of 610 numbers of O.B.B teachers of L.P. School of Nazira, Sub-Division, created under O.B.B (CSS) Scheme vide Government letter No. PMA/158/94, dated 18.01.1995. After joining their posts, the petitioners had completed Junior Basic Training and thereafter, they were granted the regular scale of pay. Thereafter, the post of the petitioners were brought under Non-Plan, vide Govt. letter No. PMA/158/94/341, dated 23.12.1999, and thereafter, they have not received their regular salaries, though there was an annual retention order.
Page 6 of 326. Then, being aggrieved, the petitioners had approached this Court by filing a writ petition, being WP(C) No. 5031/2014, and vide order dated 02.04.2015, this Court was pleased to direct the respondent authorities to pay current salary as well as regular salary to the petitioners. Thereafter, the authorities have sanctioned the arrear salary w.e.f. 01.03.2012 to 29.02.2016. But, thereafter, again the salary of the petitioners were withheld by the authority without any reason. The name of the petitioners have been included in the list of excess teachers in Sivasagar district without any reason, and though they were appointed against valid sanction post and their names were reflected in the retention order, dated 09.01.2012, as well as in the order dated 09th September, 2013, issued by the Deputy Secretary to the Govt. of Assam, Elementary Education Department, Dispur, Guwahati. But, the names of the petitioners have wrongly been included in the list of excess teachers, as a result, they have not received their regular salaries. Being aggrieved, the petitioners have approached this Court with the aforesaid prayer.
Stand of the Respondents:-
7. The respondent No.2, the Secretary to the Government of Assam, has filed an affidavit-in-opposition stating that none of the statement and averment made in the paragraph Nos. 1 to 33, of the Page 7 of 32 writ petition, being W.P.(C) No. 6435/2017 have a reference to Finance (SIU) Department, Government of Assam and no proposal with regard to the subject matter of the instant writ petition has been received from the Education Department and as such, it is contended to exempt the respondent No.2 from further proceeding of the instant case.
8. The respondent No.1, in its affidavit stated that the petitioners have prayed for deleting their names from the list of excess teachers of Sivasagar district and to pay their regular salary and they also claim to be appointed as Stipendary Teachers in the year 1995, by the then Deputy Inspector of Schools, Nazira and though they have claimed having been appointed against the 610 numbers of post created under O.B.B (CSS) Scheme, they have failed to substantiate the said claim by annexing any document in support of the genuineness of their appointment and they were appointed without any selection process, against non-existent post, dehors Rule, and initially they had received salaries up to 2003-04, though they were appointed against non-existent posts, yet, on completion of Junior Basic Training the petitioner were allowed to draw regular scale of pay. However, due to shortage of budget, the salary of the petitioner was stopped in the year 2004. Since, the petitioners were appointed against the non-existent posts and that many such teachers were appointed across the State during the period of 1989 and also from 1991 to 2001, without following proper procedure, Page 8 of 32 against non-existent posts, which came to the notice of the Government, when it was detected that the number of incumbents were more than the total sanctioned/budget allotted posts.
8.1. It is also stated that the Government had created 1528 numbers of supernumerary posts, in the Sivasagar district as a whole, pursuant to order of this Court in a batch of writ petitions, vide letter No. AEE.566/2008/138, dated 21.01.2009, and the temporary retention and budget allocation in respect of 1476 nos. of post out of 1528 nos. of post was accorded by the Government. Accordingly, the petitioners had received their salaries up to 29.02.2016 after creation of supernumerary posts.
8.2. It is further stated that this Court, in various writ proceedings, directed the Education Department to take a call in the matter of regularization of irregular/illegal Teachers. Accordingly, in terms of the order dated 02.03.2010, passed by this Court in WP(C) No. 1048/2004, the Education Department had placed the matter of regularization of illegal/irregular teacher before the Cabinet, in its meeting held on 26.02.2011. Thereafter, the Education Department had constituted a Screening Committee to examine the validity of the appointments of the Teachers, who had claimed regularization and salary. Accordingly, vide O.M. dated 15.11.2011, a Screening Committee was constituted to examine the cases of irregularly/illegally appointed Teachers, so as to take a decision for Page 9 of 32 their regularization and entitlement of salary or otherwise. Thereafter, the Director Elementary Education Assam had invited applications from those irregularly/illegally appointed teachers during the year 1991-2001, throughout the State by an advertisement dated 01.02.2012, and 04.02.2012, in local Nnewspapers.
8.3. And after the preliminary examination, at Directorate level, total 12085 numbers of applications were found in order and the same were submitted to the Government for final verification. Thereafter, the Elementary Education Department, vide Notification, dated 04.06.2014, had constituted 5 screening committees, headed by the Divisional Commissioners concerned and Principal Secretaries of Sixth Schedule area and BTC, to examine these applications and the report of the preliminary committee.
8.4. Thereafter, the Divisional Screening Committees had verified all the applications and submitted their reports with recommendations/views to the Government for further action. However, when complaints were received from various corners, the Government directed for re-verification, in respect of the some of the districts and the respective Screening Committees, after causing re-verification submitted their reports to the Government and in the said report following categories of Teachers were identified.
Page 10 of 32Category-1 Recommended and working till date -136. Category 2- Recommended, but discontinued jobs-250. Category3- Not Recommended, but working till date -8470. Category 4- Not Recommended and discontinued jobs-2900.
8.5. Further, it is stated that pursuant to the report of the Screening Committee, a decision was taken to regularize the service of the Teachers, who falls under the category no.1 and subsequently, their services have been regularized. With regard to the 2nd category of Teachers who were recommended, but discontinued services, the question of their regularization of the service and payment of salary does not arise since they are not in service. Similarly, in case of 4th category, since they have discontinued, consideration of their cases for regularization and payment of salary does not arise. In respect of 3rd category of Teachers, who were not recommended, but still in service, it was decided to issue individual show cause notices to all the 8470 Teachers, and 766 number of Teachers including 752 terminated teachers of Dhemaji and Lakhimpur districts, indicating therein to show cause as to why their appointments would not deemed to be illegal/irregular and as to why they should not be removed from service, for being appointed in violation of the existing Rules.
8.6. Thereafter, pursuant to discussion between the Minister of Education and the Teachers Association of irregular/illegal Teachers, Page 11 of 32 the Education Minister had suggested that the Department has to take a decision to solve the problem of these Teachers and accordingly, the Departmental Committee was formed by the Government to verify salary status and qualification of those category 3 - illegal/irregular appointees. Thereafter, the committee has prepared three lists:-
List-1 The Teachers who had received salaries at some point of time and having JBT/D.El.Ed. (The numbers of Teachers included in the List-1, was 1574) List-2 The Teachers who received salaries at some point of time not having JBT/D.El.Ed. (Then numbers of Teachers included n the List-2, was 2060.) List-3 The Teachers who had neither received salaries nor qualified the training i.e. JBT/D.El.Ed. (The numbers of Teachers included in the List-3 is 7250.) 8.7. Thereafter, to solve the problem, a Cabinet Memorandum was prepared and placed before the Cabinet and finally the Cabinet has approved:-
(a) The proposal for accommodation of those Teachers, who had received their salaries up to 2007 and had successfully completed the Junior Basic Training/D.El.Ed course, by certain personal /supernumerary posts with prospective effect from the date of approval of the Cabinet. Those Page 12 of 32 posts will cease to exist as and when the incumbent retires from services. (i.e., List-1 as Teacher)
(b) The proposal, for accommodation of those, who received their salaries up to 2007, but have not acquired the professional qualification before 2011, their job can only be accommodated as Tutor with prospective effect from the date of approval of the Cabinet. (i.e. List-2 as Tutor) 8.8. It is also stated that out of the 14 petitioners, 3 numbers of petitioners, namely, Sri Rantumoni Khanikar (Petitioner No.7), Sri Mohendra Gogoi (Petitioner No.10) and Sri Sudarshan Prasad (Petitioner No.14) had been appointed as newly accommodated Teacher, with prospective effect, on the basis of the Cabinet approval dated 07.10.2020. In respect of Sri Mahendra Nath Mahanta (Petitioner No.1) and Sri Chitraranjan Borgohain (Petitioner No.2) though they had participated in the screening process and fulfilled the criteria as laid down in the Cabinet Memorandum, however, they could not be appointed as newly accommodated Teacher, since in the meantime they had attained the age of superannuation on 30.04.2020 and 31.05.2019 respectively. In respect of remaining petitioners, that petitioner Nos. 3, 4, 5, 6, 8, 9, 11, 12 & 13 they did not participated in the said screening process and therefore, they could not be accommodated in any of the posts of Tutor or Teacher.Page 13 of 32
8.9. It is also stated that the petitioners were illegally appointed against non-existent posts in contravention of Rules 3 of the Assam Elementary Education (Provincialisation) Rules, 1977, which provided the method of recruitment, by public participatory selection process by issuance of advertisement and they were selected against non- existent posts in contravention of the Rules without an advertisement, which amounts to breach of Article 14 & 16 of the Constitution of India and as such, they are not entitled to any salary.
9. The petitioners had filed their affidavit-in-reply to the aforesaid affidavit of respondent No. 1, wherein it is stated that from the documents of the Department itself reveals that the petitioners were appointed against 610 nos. of posts under O.B.B (CSS) Scheme. And from the letter dated 31.08.2006 (Annexure-15 of W.P.(C) No. 6435/2017), written by the Deputy Inspector of Schools to the Director of Elementary Education, Assam clearly reflects that the petitioners were appointed against the aforementioned 610 nos. of post and their names finds mention in the incumbency list and those post were retained under Nazira Sub-Division. And as such, the averments made in paragraph No.4, in the affidavit in opposition of respondent No. 1 is totally false and that they were originally appointed as Stipendiary Teachers at fix salary of Rs. 900/- and thereafter, they had successfully completed Basic Training Course and thereafter, they were given the regular scale of pay and thereafter, the petitioners GPF accounts were also open and there is Page 14 of 32 permanent retention order of the post of Primary Teachers, as per letter dated 31.08.2006, (Annexure -15) and that the statements made in paragraph Nos. 5 & 6 of the affidavit are also incorrect as the petitioners had received their salaries up to the year 2003 and 2004 rather the letter of the Deputy Inspector of Schools, clearly discloses the creation of posts and yearly retention of the same for Nazira Sub-Division.
9.1. It is also stated that the order of the Director, Elementary Education, Assam dated 31st July, 2009, (Annexure-16 in WP(C) No.6435/2017), also clearly reflects that the service of the petitioners were brought under Non-Plan w.e.f. 01.03.2009 to 28.02.2010 and thereafter, vide letter dated 9th September, 2013, the Deputy Secretary to the Government of Assam, Elementary Education Department had informed the Accountant General, Assam to convey the sanction of Governor for temporarily retention of 5472 numbers of posts of L.P. School Teachers for the period w.e.f. 01.03.2013 to 28.02.2014, and thereafter, the petitioners were paid regular salary up to 29.02.2016 and thereafter, the authority had not released the salary of the petitioners though they were holding regular sanctioned posts, because of their inclusion in the list of excess Teachers under Sivasagar district.
9.2. It is also stated that this Court in WP(C) 870/2012, and also in WP(C) No. 5031/2014, had directed the authorities to pay the current Page 15 of 32 as well as arrear salary of the petitioners from the date of receipt of certified copy of the order and a Division Bench of this Court had also disposed of the analogous case, being W.P.(C) No. 840/2007 vide order dated 19.05.2010, and directed the authorities that arrear/dues, with effect from 01.12.2009 to 30.04.2010, shall be paid by the Government to the concerned and all other teachers, within one month and also to ensure payment of monthly salary to the teachers, latest by 15th of each succeeding month, and as such, the question of making further statement in affidavit-in-opposition filed by the respondent authorities that the petitioners were appointed against non-existent posts does not arise and that they had received salaries up to 29.02.2016 and they have already completed Junior Basic Training, so the petitioners do not come under the Cabinet Memorandum also. It is a fact that the petitioner Nos.7, 10, 14 were appointed on the basis of Cabinet approval dated 07.10.2020. But, they also do not come under the Cabinet Memorandum as the Cabinet had approved appointment of those Teachers who had received salaries up to 2007.
9.3. Further it is stated that the averment in the affidavit-in-reply that petitioner Nos. 3, 4, 5, 6, 8, 9, 11, 12 & 13 had not appeared before the Screening Committee, is false and untrue, as the D.E.E.O., Sivasagar, vide its letter dated 15th January, 2021 (Annexure-4) had forwarded the list of Teachers, who had appeared before the Screening Committee and their names were dropped out and that Page 16 of 32 Shri Prabin Kumar Sharma, the then Deputy Inspector of Schools Nazira, submitted a detailed report (Annexure-5), to the Director of Elementary Education, Assam in connection with WP(C) No.2950/2016, and from the said report, it is clear that the petitioners of the present petitions were appointed by the then Deputy Inspector of Schools, Nazira against the 610 numbers of posts created vide Government Creation letter No. PMA.158/94, dated 18.01.1995, in the year 1995-96, under the O.B.B. Scheme. The names of the petitioners were also included in the incumbency list of 610 posts and the said list shows that the petitioners were illegally deprived of their permanent retention, and under such circumstances, it is contended to dismiss the petition.
10. Mr. Goswami, learned counsel for the petitioners submits that the petitioners had received salary up to 2016, and a Division Bench of this Court in WP(C) No. 840/2007, vide order dated 19.05.2010, has directed that the arrear dues, w.e.f. from 01.12.2009 to 30.04.2010, shall be paid by the Government to the concerned and all other Teachers, within one month, from that day and also directed the respondents to ensure payment of monthly salaries to the Teachers latest by 15th of each succeeding month. But, the aforementioned order has clearly been violated by the respondent authorities.
10.1. Mr. Goswami, further submits that as per report of the Screening Committee, 1528 numbers of excess Teachers had figured Page 17 of 32 in the list prepared by them and the name of one Teacher, namely, Gopal Kalita, was also included in the aforementioned list, but as per direction of the Director Elementary Education, Assam, the District Elementary Education Officer, Sivasagar had deleted his name from the list of excess Teachers and he had regularly received salaries and also received pension on retirement.
10.2. Mr. Goswami, also submits that the order of the Division Bench in WP(C) No. 840/2007 and also of the Single Bench in WP(C) No. 5031/2014 dated 02.04.2015 has not been challenged by the respondents and that the petitioners had received salaries up to 2016, for which they does not come under the purview of the Cabinet Memorandum and the said Cabinet Memorandum is applicable to those Teachers who had received salary up to 2007, and that the petitioners have never received any termination order nor received any notice and they are still continuing their services and in the meantime, two petitioners namely, Mahendra Nath Mahanta and (Petitioner No.1), Shri Chittarranjan Borgohain (Petitioner No.2) had retired on 30.04.2020 and 01.06.2019 and that the petitioners were illegally deprived of getting their salaries and other benefits and therefore, Mr. Goswami, has contended to allow both the petition.
11. On the other hand Mr. Sharma, learned Standing Counsel for the respondents in Elementary Education Department submits that the petitioner were appointed without any selection process by the then Deputy Inspector of Schools against non-existent posts, dehors Page 18 of 32 the Rule and that the Government had created 1528 nos. supernumerary post under the Sivasagar district as a whole, as per order of this Court, vide letter dated 21.01.2009, Memo No. AEE.566/2008/138, and the petitioners had received their salaries up to 2009 to 2016, after creation of supernumerary posts.
11.1. Mr. Sharma, also submits that in order to regularize the post of teachers, the Director of Assam, Elementary Education, had invited application from the irregularly/illegally appointed teachers during the year 1999-2001, throughout the State, videa Advertisement, dated 01.02.2012 and 04.02.2012 in local newspapers. Thereafter, applications were received from regularly/illegally appointed teachers throughout the State total 12085 numbers of applications were found in order and the same were submitted to the Government for penal verification and thereafter, five Screening Committees were constituted. Thereafter, on the basis of the list prepared by the said committees, it was decided to resolve the issue of illegally/irregularly appointed teachers by preparation of Cabinet Memorandum and as per aforesaid Cabinet Memorandum one Rantumoni Khataniar (Petitioner No.7), Mahendra Gogoi (Petitioner No.10) and Sudarshan Prasad (Petitioner No. 14) have been appointed as newly accommodated Teachers with prospective effect and that Mahendra Nath Mahanta (petitioner No.1) and Shri Chittaranjan Borgohain (Petitioner No.2) have filed another writ petition, being WP(C) No 2677/2021, which is pending before this Court for consideration and vide order dated 09.04.2021, interim Page 19 of 32 direction was issued to the Elementary Education Department to determine the amount in provisional pension, if admissible to the petitioners, under the law and thereafter, to pay the provisional pension from the month of May, 2021, followed by COP(C) No. 201/2022 and accordingly vide No. E-249479/189, dated 21.03.2023 the Secretary to the Government of Assam, Department of School Education had rejected their prayer and the remaining petitioners i.e. petitioner nos. 3, 4, 5, 6, 8, 9, 11, 12 and 13 did not participate in the said screening process and they could not be accommodated as either as Tutor or as Teacher under the illegally/irregularly appointed category and in connection with COP(C) No. 195/2018, another speaking order was passed by the Secretary to the Government of Assam, on 10.08.2023, vide Memo No. ECP-249479/222, and the said case was considered and rejected and that the petitioners were appointed against non-existent posts dehors the Rule, and without advertisement which amounts to breach of Article 14 & 16 of Constitution of India. Under such circumstances, Mr. Sharma has contended to dismiss the petition in support of his submission.
11.2. Mr. Sharma has also referred to the following decisions in support of his submission:-
(i) Sankha Nath Pegu Vs. State of Assam and others, reported in 2006 2 GLR 764,
(ii) Manashi Goswami Vs. State of Assam and Ors, reported in 2009 (1) GLT 729, Page 20 of 32
(iii) State of Bihar Vs. Upendra Narayan Singh and others, reported in (2009) 5 SCC 65,
(iv) Nagendra Chandra and others, Vs. State of Jharkhand and others, reported in (2008) 1 SCC 798 and
(v) Jagannath Kr. Dey and ors Vs State of Assam and Ors., reported in 2010 (3) GLT 632.
12. Having heard the submissions of learned counsel for both the parties, I have carefully gone through the petition and the documents placed on record and also carefully gone through the decisions refereed by Mr. Sharma, learned counsel for the respondent authorities.
13. It is not in dispute that the petitioners in WP(C) No. 6435/2017 were appointed as Stipendiary Teacher, as per the regulations under OBB Scheme, against 610 numbers of posts, created by the Government, vide Government Letter No. PMA.158/94, dated 18.01.1995. Their date of appointment and the School against their name, are being is shown in the chart below:-
Sl. Name of Petitioner Date of Name of School
No. appointment
01. Mahendra Nath Mahanta. 16.09.1995 Rajapul Primary School
02. Chitraranjan Borgohain 16.09.1995 Phulanibari Primary School
03. Ajit Kalita 16.09.1995 Sanbacha Primary School
04. Amulya Dutta 16.09.1995 BahbariPrimary School
05. Kamal Bailung 16.09.1995 581 No. Na- Gaon Primary School
06. Raju Konwar 16.09.1995 Ouguri Gaon Primary School
07. Rantumoni Khanikar 16.09.1995 Tam Tam Tala Primary School
Page 21 of 32
Sl. Name of Petitioner Date of Name of School
No. appointment
08. Lakheswar Das 30.01.1996 No.2 Molagaon Primary School
09. Padmeswar Gogoi 16.09.1995 Ligiripukhuri Cha Samik
Gyanjyoti Primary School
10. Mahendra Gogoi 16.09.1995 No-Pam Naga Primary School
11. Mridupawan Goswami 16.09.1995 Bengmuria Primary School
12. Balin Ch. Baruah 16.09.1995 Balighat Tribal Primary School
13. Basanti Rajkumari 16.09.1995 483 No. Rajachok Primary School
14. Sudarshan Prasad 16.09.1995 6 No. Lakhimijan Primary School
13.1 It is also not in dispute that the petitioners in WP(C) No.
2516/2018 were appointed as Stipendiary Teacher, as per the regulations under OBB Scheme, against 610 numbers of posts created by the Government, vide Government Letter No. PMA.158/94, dated 18.01.1995. Their date of appointment and the School against their name is shown in the chart below:-
Sl. Name of Petitioner Date of Name of School
No. appointment
01. Purnananda Chetia 30.01.1996 Namsaijan Primary School
02. Dipak Rajkhowa 30.01.1996 Jyoti Praja Basti Primary School
03. Dimbeswar Hatimuria 30.01.1996 Mohan Gaon Primary School
14. Further, it is not in dispute that the petitioners, in WP(C) No. 6435/2017, having been so appointed, had undergone Basic Training Course and on successful completion of said course, all the petitioners were allowed to draw regular scale of pay w.e.f. 12.06.2001, vide orders dated 03.01.2002, 28.01.2002, 03.01.2002, and w.e.f. 12.08.2002, vide Order dated 30.12.2002, w.e.f. 12.03.2002 vide order dated 09.04.2003, w.e.f. 25.09.2002, vide Order dated 09.04.2003, w.e.f. 22.11.2001 vide Order dated Page 22 of 32 18.09.2002, w.e.f. 12.06.2001 vide Order dated 03.01.2002, w.e.f. 22.11.2001, and vide Order dated 25.11.2002, respectively. Their Service Books were also prepared by the authority and their GFP Accounts were started and their contributions were regularly deducted. Further, it is not in dispute that the name of the petitioners appeared in the Annexure-15, the incumbency list of 610 nos. of Teachers for the permanent retention of their posts, under Nazira Sub-Division at Sl. No. 604, 562, 590, 607,571, 608, 443, 133, 605, 353, 305, 598, 374 and 565 respectively, which was forwarded to the Director, Elementary Education, Assam, by the Deputy Inspector of Schools, Nazira.
14.1 It is also not in dispute that the petitioners, in WP(C) No. 2516/2018, having been so appointed, had undergone Basic Training Course and on successful completion of said course, all the petitioners were allowed to draw regular scale of pay w.e.f. 12.06.2001, vide order dated 25.02.2002, 03.01.2002 respectively. Further, it is not in dispute that the name of the petitioners appear in the Annexure-4 series, the incumbency list of 610 numbers of teachers for the permanent retention of the posts, under Nazira Sub- Division at Sl. No. 596, 576 and 563 respectively.
14.2 It also appears that their names appeared in the original list of OBB teachers (Annexure-17 of WP(C) No.6435/2017), under Nazira Sub-Division forwarded by the Deputy Inspector of Schools, Nazira to the District Elementary Education Officer, Sivasagar. It is also not in dispute that those posts originally created, vide Letter No.(1) Page 23 of 32 PMA.158/94, dated 18.01.1995, and were brought under Non-Plan vide letters (1) No.PMA.158/94/207, dated 12.10.99, (2)No. PMA.158/94/341 dated 23.12.1999 and (3) No. PMA.158/94/352 dated 08.02.2000 and retained vide last letter No. PMA.158/94(A)/1047 dated 31.08.2012. And this was informed to the Accountant General of Assam, vide letter dated 09.09.2013 (Annexure-18 of WP(C) No. 6435/2017).
Order of Division Bench dated 19.05.2010 in WP(C) No. 840 of 2007 and WP(C) No. 522/2007, and violation of the directions issued therein:-
15. It is also not in dispute that the before the aforesaid communications, the Government had stopped the salary of the petitioners. There being left with no option, the petitioners, with some of the similarly situated teachers of Nazira Sub-Division, had approached this Court for redressal of their grievance by filing writ petitions being WP(C) No. 840 of 2007 and WP(C) No. 522/2007, for issuing direction for payment of salary and allowances and a Division Bench of this court vide order dated 19.05.2010, (Annexure-19 of WP(C) No.6435/2017) had directed the respondent No. 2 to 7 of the said petitions to pay arrear/dues with effect from 01.12.2009 to 30th April 2010, that shall be paid by the Government to the concerned and all other Teachers within one month from the date of order, i.e. 19.05.2010, and also directed that the Government and its Officers shall ensure payment of monthly salary to the Teachers latest by 15th of each succeeding months.
Page 24 of 3215.1 In the said judgment, it was also observed that the requirement of food, clothing and shelter are the basic requirements for all concern, whatsoever, they are to maintain their family and standard of life, and that the respondents, in our opinion, cannot be allowed to say that because of budgetary provisions or for some reasons akin to that, they are unable to pay the salary. In the democratic setup, every person is entitled to his rightful right. The Government or any other authority, which is entitled to maintain the constitutional provision, cannot be allowed to say that they are not in a position to make the payment of the salary.
16. Pursuant to the said order, dated 19.05.2010, the petitioners had received salaries up to February, 2012. Thereafter, again they had not received salaries due to various anomalies committed by the Deputy Inspector of Schools, Nazira to give salary to excess Teachers appointed subsequently in the year 1999. Thus, the state respondents had least bothered to disobey the direction issued by the Division Bench of this Court and that too with impunity. Indisputably, the state respondents had not challenged the said order of the Division Bench in appeal not filed any review petition to review the same. That being so, they have no discretion to disobey the mandate in the said decision.
The Case of Gopal Kalita and violation of rights of the petitioners guaranteed under Article 14 and 16 of the Constitution of India:-
Page 25 of 3217. It appears that one of the Teachers, namely, Gopal Kalita of Nazira Sub-Division, whose name was reflected at Sl. No. 37 of the list of Teachers, had complained to the Director, Elementary Education, Assam in respect of non-receipt of regular salary. The Director, vide his letter dated 23.11.2011, directed the District Elementary Education Officer, Sivasagar to release monthly salary of Gopal Kalita and also directed to cause an enquiry as to for whose fault, the name of Gopal Kalita was included in the list of 1528 excess teachers of Sivasagar District.
18. It appears that thereafter, the present petitioners had filed another writ petition before this Court being WP(C) No. 5031/2014, for releasing the current and arrear salary and then this Court vide order dated 02.04.2015, directed the authority to pay current and arrear salary within three months from the date of receipt of certified copy of that order. But, for non-compliance of the said order by the respondent authority, the petitioners had initiated a contempt proceeding, being Contempt Case No. 559/2015 and pursuant to the notice issued in the said contempt petition, the respondent had released the salary of the petitioners up to 29.02.2016, from 01.03.2012.
19. Thereafter, the petitioners have not been receiving their salaries till filing of the petition. It appears from the affidavit in reply filed by the petitioners against the affidavit-in-opposition filed by the respondent No.1 that though the petitioners were holding regular sanctioned posts because of inclusion of names of the petitioners in Page 26 of 32 the list of excess teachers under Sivasagar district their salaries, could not paid. Further, it appears that in view of the order dated 19.05.2010, passed in WP(C) No. 840 of 2007 and WP(C) No. 522/2007, by the Division Bench of this Court, there is no scope for the respondent authorities to take such a stand.
20. It also appears that the petitioners had appeared before the Screening Committee and petitioner No.1, namely, Mahendra Nath Mahanta and petitioner No.2- Shri Chitraranjan Borgohain were not recommended by the said Committee as they had already retired on 30.04.2020 and 01.06.2019 respectively. It is not in dispute that Cabinet Memorandum has been issued by the Principal Secretary for regularization of irregular/illegally appointed teachers who had received salaries up to 2007 and had successfully completed Junior Basic Training/D. El.Ed., by creating supernumerary posts with prospective effect. But, as contended the petitioners herein had received salaries up to 29.02.2016 and they have already completed Junior Basic Training Course. Further, it appears that petitioner No. 7
- Shri Ratnumani Khanikar, petitioner No.10 - Shri Mahendra Gogoi and petitioner No. 14- Shri Sudarshan Prasad who were appointed with effect from the date of Cabinet Approval dated 07.10.2020, also do not come under the purview of the Cabinet Memorandum. Further it appears that petitioner No.3 Shri Ajit Kalita, petitioner No.4 Shri Amulya Dutta, petitioner No. 5 Kamal Bailung, petitioner No.6 Raju Konwar, petitioner No.8 - Shri Lakheswar Das , petitioner No.9 - Shri Padmeswar Gogoi, petitioner No. 11 -Shri- Mridupawan Page 27 of 32 Goswami, petitioner No.12 Balin Ch. Baruah and petitioner No.13 Shri Basanti Rajkumari also participated in the Screening Committee, in view of the letter dated 15th January, 2021 (Annexure-4 of affidavit- in-reply) by which the DEEO, Sivasagar had forwarded the list of teachers who had appeared before the said Committee.
21. It is also not in dispute Shri Gopal Kalita, who is also similarly situated with the present petitioners, has been receiving regular salaries and also retained permanently. His name was also included in the list of 1528 numbers of excess teachers, but the same was deleted from the said list as per letter of the Deputy Secretary, Govt. of Assam 11.11.2011, (Annexure-20 of WP(C) No.6435/2017), after an enquiry and the present petitioners also similarly situated with him but, they seems to be discriminated for no good reason.
22. It is also not in dispute that the petitioner No.1, namely, Mahendra Nath Mahanta and petitioner No.2 Chitraranjan Borgohain had already retired on superannuation on 30.04.2020 and 01.06.2019, without receiving salary since 01.03.2016 and other pensionary benefits. They returned home with empty hand after rendering their services for more than 4 and 3 years respectively.
23. Under the given facts and circumstances, the stand, so taken by the respondents herein, appears to be unsustainable. After availing their services till their retirement on 30.04.2020 and 01.06.2019, now the respondent authority, in a welfare state, like ours, cannot deny their legitimate claim of salary. The stand of the respondent authority Page 28 of 32 that they were appointed illegally against non-existent posts appears to be ex-facie illegal and arbitrary and also contrary to their own documents. And this denial of salary amounts to violation of their rights guaranteed under Article 14, 16 and 21 of the Constitution of India.
24. Though, the respondent authorities had taken a stand that the petitioners were appointed illegally by the then Deputy Inspector of Schools, Nazira against non-existent posts, and that their names were included and identified as excess teachers, such contention appears to be unsustainable in view of the statement and averments made in the petition and the documents placed on record by the petitioners. It appears that Annexure No. 15 of WP(C) No.6435/2017 is the letter of Deputy Inspector of Schools, Nazira, in connection with incumbency list of 610 teachers under Nazira Sub-Division, wherein the names of the petitioners of both the writ petitions appears. Annexure-1 (series) to Annexure-14 (series) of WP(C) No.6435/2017 are the Order of Appointment of the petitioners and the Orders, regarding grant of regular scale of the petitioners after successful completion of their Basic Training Course. These posts were originally created, vide Letter No.(1) PMA.158/94, dated 18.01.1995 were brought under Non-Plan vide letter No.(1) PMA.158/94/207 dated 12.10.99, (2)No. PMA.158/94/341 dated 23.12.1999 and (3) No. PMA.158/94/352 dated 08.02.2000 and retained vide last letter No. PMA.158/94(A)/1047 dated 31.08.2012, and this fact is apparent from the letter dated 09.09.2013 (Annexure-
Page 29 of 3218 of WP(C) No.6435/2017) written by the Deputy Secretary to the Govt. of Assam, Elementary Education Department, Dispur, Guwahati to the Accountant General of Assam.
Doctrine of Non-Traverse and its implication in the present proceeding:-
25. Notably, the respondent authorities had not disputed any of the documents as mentioned herein above, as Annexure No.1 to 10. The statement and averments so made in the petition also remained undisputed. In the given factual scenario, the doctrine of non-
traversal can be invoked herein this case as the respondents had failed to traverse the pertinent pleas which allows the court to infer its admission, as provided in the Order VIII Rule 5 CPC. Reliance on the judgment to apply the doctrine of non-traverse is made to the case of (1) Controller of Court of Ward, Kolhapur & Anr. V. G.N. Gharpade, reported in AIR 1973 Supreme Court 627, and also on a decision passed by (2) Gobinda Chandra Das v. State of West Bengal, reported in 1989 (2) CAL LT (HC) 63.
26. In the result, this Court finds sufficient merit in this petition. And accordingly, the same stands allowed. By a mandamus of this Court the respondent authorities are directed to carry out the followings:-
(i) to retain the posts of the concerned petitioners permanently;Page 30 of 32
(ii) to delete their names from the list of access teachers of Sivasagar district;
(iii) to pay the current salary as well as arrear salary of the petitioners who are still serving from the month of March, 2016, till their retirement and to extend consequential service benefits and also to release the arrear salary and other consequential benefits including monthly pension to those petitioners who had already retired on superannuation.
Equitable Relief and Interest upon the Arrear Salary and Pension:-
27. Further, in the given facts and circumstances on the record, there appear to be special equities, which would justify the grant of such interest although there is no provision in law for such grant. Thus, on equitable consideration, and also relied upon a decision of Hon'ble Supreme Court in Union of India & Ors v. Dr. J.K Goel, reported in 1995 SCC Supl. (3) 161, this Court is inclined to direct the respondent authorities to pay interest @ 6% per annum, from March, 2016, upon the entire amount, till the payment being made to the petitioners.
28. The aforementioned exercise shall be carried out within a period of three months, from the date of receipt of certified copy of this order. The petitioners shall obtain a certified copy of this Page 31 of 32 judgment and order and place the same before the respondent authorities within a period of one week from today.
29. In terms of above, these writ petitions stand disposed of.
JUDGE Comparing Assistant Page 32 of 32