Gauhati High Court
Smti Swapna Hazarika vs The State Of Assam And 7 Rs on 15 February, 2021
Equivalent citations: AIRONLINE 2021 GAU 525
Author: Manash Ranjan Pathak
Bench: Manash Ranjan Pathak
Page No.# 1/5
GAHC010206892016
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5360/2016
SMTI SWAPNA HAZARIKA
W/O SRI PRADIP CH. DAS R/O VILL- SUKULI BHARIA P.O. CHABOTI VIA-
LILABARI DIST. LAKHIMPUR, ASSAM PIN - 787051.
VERSUS
THE STATE OF ASSAM AND 7 RS
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
EDUCATION DEPARTMENT ELEMENTARY DISPUR, GUWAHATI -6.
2:THE PRINCIPAL SECRETARY
TO THE GOVT. OF ASSAM
EDUCATION DEPARTMENT
DISPUR
GUWAHATI -6.
3:THE COMMISSIONER AND SECRETARY
FINANCE DEPARTMENT
DISPUR
GUWAHATI -6.
4:THE DIRECTOR OF ELEMENTARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI.
5:THE DISTRICT ELEMENTARY EDUCATION OFFICER
LAKHIMPOUR
NORTH LAKHIMPUR.
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6:THE DEPUTY INSPECTOR OF SCHOOLS
LAKHIMPUR
NORTH LAKHIMPUR.
7:THE BLOCK ELEMENTARY EDUCATION OFFICER
LAKHIMPUR
NORTH LAKHIMPUR.
8:THE TREASURY OFFICER
LAKHIMPUR
Advocate for the Petitioner : MR N BORA
Advocate for the Respondent : SC, EDUCATION
BEFORE HON'BLE MR. JUSTICE MANASH RANJAN PATHAK 15-02-2021 Heard Mr. N. Borah, learned counsel for the petitioner and Mr. N. J. Khataniar, learned Standing counsel, Elementary Education Department for the respondent Nos. 1, 2, 4 to 7. Also heard Mr. B. Gogoi, learned Standing counsel, Finance Department for the respondent Nos. 3 & 8.
Pursuant to the advertisement dated 28.12.1996, petitioner participated in the selection process for the post of Assistant Teacher in Lower Primary School in the district of Lakhimpur. After her selection made by the concerned selection committee, by order dated 08.03.2001, the Deputy Inspector of Schools, North Lakhimpur, appointed the petitioner during the ban period. As her appointment was not approved by the concerned financial authority, i.e., the State Level Empowered Committee, which was in force at that time, the respondents in the Elementary Education Department of the State initiated a process to terminate the service of the petitioner along with similarly placed Assistant Teachers of the Lower Primary Schools of Lakhimpur district. The petitioner along with 201 Nos. of such teachers approached this Court in WP(C) No. 4280/2001 against their termination from services wherein they also prayed for their salaries and regularization of their services.
Initially, an interim order was passed on 26.06.2001 in said WP(C) No. 4280/2001, whereby the Page No.# 3/5 termination of the petitioner and the other colleagues in said WP(C) No. 4280/2001 was stayed. The said WP(C) No. 4280/2001 was finally disposed of by a common order dated 12.11.2003 observing that the Government has the power to regularize the appointments of the petitioners though appointed during the ban period and as they were duly selected by the competent authority and were appointed against available sanctioned vacancies, as such, it would be apposite to refer the matter to the State Government for consideration and necessary orders.
Accordingly, the Court by order dated 12.11.2003 passed in said WP(C) No. 4280/2001 and other connected cases, directed the Commissioner and Secretary to the Government of Assam in the Education Department to place the matter before the State Level Empowered Committee (which was in force prior to the FRBM Act came into force) for examination and for passing appropriate orders in accordance with the provisions of law keeping in mind the hardship that will arise if the petitioners were thrown out from their services at that stage. The present petitioner was the petitioner No. 6 in said WP(C) No. 4280/2001.
The respondent in the Elementary Education Department prepared the list of 53 Nos. of such Assistant Teachers of Lower Primary Schools, Lakhimpur who were appointed during the ban period of March, 2001 under Lakhimpur and Dhakuakhana constituency against retired and expired vacancies under Lakhimpur Block, wherein the name of the petitioner figured at Sl. No.15.
By an order dated 21.09.2005, the respondent in the Elementary Education Department directed the Deputy Inspector of Schools, North Lakhimpur to terminate those 53 Nos. of Lower Primary teachers including the petitioner from services by releasing their salaries.
Out of those 53 Nos. of Assistant Teachers, 34 Nos. of teachers approached this Court in WP(C) No. 1030/2006 and 5 others approached this Court in WP(C) No. 5966/2006. Both the writ petitions were disposed of on 02.05.2007 and 06.12.2006 respectively referring the matter to the Court appointed Committee as directed in the case of Sudhendu Mohan Talukdar Vs. State of Assam and others and the other connected cases by order dated 06.04.2006 passed in WP(C) No. 2147/1999.
The District Elementary Education Officer, Lakhimpur prepared a list of 42 Nos. of Assistant Teachers including the name of the petitioner for inclusion of their names in the budgetary allocation under North Lakhimpur district in terms of the communication of the Director of Elementary Education, Assam dated 10.06.2010.
As the services of those 42 Nos. of teachers were not regularized and not considered in terms of the order dated 12.11.2003 passed in WP(C) No. 4280/2001, out of those 42 Nos. of teachers, noted Page No.# 4/5 above, 33 Nos. of teachers approached this Court in WP(C) No. 3408/2012 and the Court while disposing of the said WP(C) No. 3408/2012 by order dated 10.03.2015, observed as follows:-
"Having regard to the above, this writ petition is disposed of by directing the respondent No. 1 to place the case of the petitioners before the Finance (SIU) Department for ex-post- facto approval to their appointments within a period of 30 (thirty) days from the of receipt of a certified copy of this order. On receipt of the proposal, Finance (SIU) Department shall grant ex-post-facto approval to the appointment of the petitioner, within a period of 30 (thirty) days, thereafter, on completion of the aforesaid exercise, the salary, which is due to the petitioners, both current and arrear, shall be released within a period of 2 (two) months, thereafter."
Petitioner has approached this Court on 02.09.2016 by filing this writ petition, praying for her salary w.e.f. September, 2004.
Mr. Borah, learned counsel for the petitioner submits that the State Government in the Elementary Education Department has now passed an order regularizing her service with a prospective effect after examining her case in terms of the order dated 10.03.2015 passed in WP(C) No. 3408/2012 and the orders passed by the Court in earlier occasions, noted above.
It is also submitted by the petitioner that she is aggrieved with the fresh order of the State Government in the Elementary Education Department regarding her regularization of service with prospective effect without giving her any salary for the period from 2004.
The State Government in the Elementary Education Department has filed an additional affidavit in the matter stating that the case of the petitioner has been placed before the newly constituted Screening Committee regarding her appointment and continuation in service in terms of the order of the Division Bench of this Court and the petitioner's name was included in the list of illegal/irregular category of teachers at Sl. No. 06390.
The petitioner by filing an additional affidavit on 20.11.2020 placed before the Court that the State respondent in the Elementary Education Department by communication dated 26.03.2019 directed the Director of Elementary Education, Assam to examine the matter of the petitioner along with necessary particulars for creation of supernumerary post in favour of the petitioner and therefore, the respondent in the Elementary Education Department again deprived her from any such salary for the said period w.e.f. 2004.
As the matter regarding payment of arrear salary of the petitioner is under consideration pursuant to the direction of the State Government in the Elementary Education Department under letter No. PMA. 90/2019/42 dated 26.03.2019 (Annexure-W3 to the additional affidavit filed by the Page No.# 5/5 petitioner on 20.11.2020), as noted above, this writ petition is disposed of with a direction that the Commissioner and Secretary to the Government of Assam in the Elementary Education Department, respondent No. 1 as well as the Director of Elementary Education, Assam, respondent No. 4, shall consider the matter of payment of arrear salary to the petitioner as per her entitlement in accordance with law and the rules of appointment that was in force at the relevant time of her appointment and the advertisement dated 28.12.1996 issued by the Director of Elementary Education, Assam regarding appointment of Assistant Teachers in provincialised Lower Primary Schools of Lakhimpur district within a period of 4 (four) months from the date of receipt of certified copy of this order to be furnished by the petitioner obtaining necessary acknowledgment from them.
During such exercise, if it is found that the petitioner is entitled for her arrear salary, the same shall be paid to her obtaining necessary approval of the Finance Department of the State.
The entire exercise shall be carried out by the Elementary Education Department of the State as well as the Finance Department of the State within a period of 6 (six) months from the date of receipt of the certified copy of this order to be submitted by the petitioner as directed above.
With the above observation and direction, this writ petition stands disposed of.
JUDGE Comparing Assistant