IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) WP(C) No. 3307/2005 Md. Intajur Rahman Laskar, S/o. Md. Siddique Ali Laskar, Vill- Banskandi Part-III, P.O. Banskandi, P.S.- Lakhipur, Dist- Cachar, Assam...Petitioner -Versus- 1. The State of Assam to be represented by the Commissioner & Secretary, Education Department, Dispur, Guwhati-6. 2. The Director of Secondary Education, Assam, Kahilipara, Guwahati-19. 3. The Inspector of Schools, C.D.C., Silchar. 4. The Commissioner and Secretary, Govt. of Assam, Finance Department, Dispur, Guwahati-6..Respondents For the Petitioners : Mr. M.H. Rajbarbhuiya, Adv. For the Respondents : Mr. R. Baruah, SC, Edu. Deptt. Mr. P. Nayak, SC. Finance Deptt. BEFORE THE HON BLE MR. JUSTICE SUMAN SHYAM Date of hearing and judgement : 16/08/2016 WP(C) 3307/2005-oral dtd. 16/08/2016 Page 1 of 6
JUDGEMENT AND ORDER (ORAL) 1. Heard Mr. M.H. Rajbarbhuiya, learned counsel for the petitioner. Also heard Mr. R. Baruah, learned Standing Counsel, Secondary Education Department appearing on behalf of respondent nos. 1, 2 and 3 as well as Mr. P. Nayak, learned Standing Counsel, Finance Department. 2. This is the third round of litigation between the parties whereby the petitioner has approached this Court ventilating his grievances arising out of non-payment of arrear salary and allowances to the petitioner for the earlier period of service rendered by him. 3. The brief factual background of the case is that the petitioner was initially appointed as a L.D. Assistant in the scale of pay of Rs. 1065-2095/- per month and posted at the Banskandi N.M.H.S. School in the Cachar District under an order issued by the Director of Secondary Education on 09/11/1994. The appointment of the petitioner was initially for a period of 3 (three) months and the same was extended from time to time by orders issued by the Inspector of Schools, Cachar, permitting the petitioner to continue till the post was filled up on regular basis. Although, the petitioner had discharged his duties as an L.D. Assistant without any break in service, yet, he has received his salary for the period of 12/11/1994 to 31/05/1996 and thereafter for the month of March, 1997. The petitioner has not received salary for the remaining period of service rendered by him in the Banskandi N.M.H.S. School, apparently on account of non-retention of the post by the Government on having found that the said post was in excess of the sanctioned post. 4. Being aggrieved by the non-payment of his salary and dues, the petitioner had earlier approached this Court by filing Civil Rule No. 5746/1998, which was allowed by this Court by the order dated 25/03/1999, directing the respondents to redress the grievances of the petitioner in terms of the directions contained therein. As per the WP(C) 3307/2005-oral dtd. 16/08/2016 Page 2 of 6
order dated 25/03/1999, the respondent no. 2 had also passed a speaking order dated 01/12/1999 directing the Inspector of Schools to adjust the petitioner against any vacant post of L. D. Assistant lying under his jurisdiction and to make payment of his due salary. However, despite the order dated 25/03/1999 passed by this Court as well as the instruction issued by the respondent no. 2 vide order dated 01/12/1999, no action had been taken by the concerned Inspector of School in the matter as a result of which the petitioner was constrained to once again approach this Court by filing WP(C) No. 3356/2001, which was disposed of by this Court by order dated 16/05/2001, directing the Inspector of Schools, C.D.C., Silchar, Cachar, Assam to issue related order appointing the petitioner under his jurisdiction and make payment of his arrear salary within a period of 1 (one) month from the date of receipt of the order of the Court. In the aforesaid order dated 16/05/2001, this Court had further observed that the petitioner shall be paid his monthly salary regularly. Despite the order dated 16/05/2001, when the respondent authorities did not take any step for implementation of the same, the petitioner had filed Contempt Case No 437/2001 against the concerned officials alleging wilful and deliberate violation of the order passed by this Court. During the pendency of the Contempt Case, the respondent no. 2 had issued Office Order dated 28/04/2003 adjusting the petitioner in B.N. Dwarbond High School, Cachar as an L.D. Assistant with immediate effect vice Shri Rajendra Lal Bhattacherjee (retired). In view of the above, the Contempt Proceeding was dropped. 5. In terms of the order dated 28/04/2003, the petitioner had joined the B.N. Dwarbond High School as an L.D. Assistant and has been rendering his duties regularly in the said post. It is the admitted position of fact that the petitioner has been receiving his salary and allowances regularly against the said post held by him. However, the limited grievance of the petitioner in the instant writ petition is that despite the categorical direction passed by this Court by order dated 16/05/2001, he WP(C) 3307/2005-oral dtd. 16/08/2016 Page 3 of 6
has not been paid his arrear salary and allowances for the period from the month of June, 1996 till 13/05/2003. That apart, the petitioner has also alleged that the authorities have not fixed his pay scale in the post of L.D. Assistant till today, as a result of which the interest of the petitioner has suffered serious prejudice. 6. The stand of the respondent no. 2 has been brought on record by filing counter affidavit dated 16/08/2005, whereby the deponent had merely reiterated what has been reflected in the Director s order dated 01/12/1999 which that the post earlier held by him in the Banskandi N.M.H.S. School was an excess post beyond the post sanctioned by the Government and since there was no retention of the said post, hence salary of the petitioner could not be released with effect from 01/06/1996. Similar stand has been taken by the respondent no. 4 in his affidavit filed on 31/08/2006. 7. Mr. Rajbarbhuiya, learned counsel for the petitioner submits that it is not in dispute that the petitioner had rendered his services in the Banskandi N.M.H.S. School during the period of June, 1996 till 13/05/2003. If that be so, the authorities are bound to pay the salary and allowances to the petitioner for the aforesaid period. Mr. Mazarbhuiya further submits that by the order dated 16/05/2001 this Court had passed a specific direction to that effect and as such, the respondents are duty bound to comply with the said direction passed by this Court. In support of his argument, Mr. Rajbarbhuiya, has relied upon an un reported decision of the Division Bench of this Court rendered in Writ Appeal No. 47/2009 (Smt. Manoshi Goswami Vs. State of Assam and others), vide order dated 11/08/2009, whereby it was held that regardless of whether the appointment is found to be legal or illegal, a candidate who had rendered services is bound to be paid salaries for the service rendered by him. 8. Mr. Baruah, learned Standing Counsel, Education Department has drawn the attention of this Court on the affidavit dated 20/04/2016 filed by the respondent no. 2, WP(C) 3307/2005-oral dtd. 16/08/2016 Page 4 of 6
pursuant to the leave granted by this Court by order dated 18/03/2016 to contend that the department has already taken steps in compliance of the earlier direction of this Court for payment of arrear salary and allowances to the petitioner and accordingly vide letter No.PC/CC/227/2015/54 dated 16/03/2016, a request had been made for creating a supernumerary post of L.D. Assistant for the purpose of placing the proposal for payment of salary to the petitioner. Subsequently, a reminder letter was issued on 29/03/2016 requesting the Secretary to the Government of Assam, Education (Secondary) Department to expedite the process. However, no action has been taken by the Government on the said proposal made by the respondent no. 2. 9. From an analysis of the pleadings available on record, it is seen that the respondents are not disputing the fact that the petitioner had rendered services as an L.D. Assistant during the period from 01/06/1996 till 13/05/2003 but his salary and allowances for the said period has not been paid to him. A perusal of the order dated 16/05/2001 passed by this Court in WP(C) No. 3356/2001 goes to show that there is already a categorical direction passed by this Court for making payment of arrear salary to the petitioner within a period of one month from the date of receipt of a copy of this order. Despite the same, admittedly, the arrear salary of the petitioner has not been paid till today. It is also evident that the departmental authorities have not challenged the order dated 16/05/2001 but on the contrary, have initiated steps for creating a supernumerary post for the purpose of payment of arrear salary to the petitioner in terms of the Court order dated 16/05/2001, which fact is also evident from the affidavit dated 20/04/2016. 10. Having regard to the aforesaid fact-situation as well as the law laid down by the Division Bench of this Court in the case of Manoshi Goswami (Supra), there can be no escape from the conclusion that the petitioner has a right to receive his arrear salary and allowances for the period claimed by him i.e. from 01/06/1996 to WP(C) 3307/2005-oral dtd. 16/08/2016 Page 5 of 6
13/05/2003. However, records reveals that the petitioner has already received salary for the month of March, 1997. Therefore, the salary for one month i.e. March, 1997 will stand deducted from the entitlement of the petitioner. It is, therefore, directed that the respondent nos. 1 and 2 will ensure that the arrear salary of the petitioner for the period from June, 1996 till 13/05/2003 (minus the month of March, 1997) shall be paid to him within a period of 4 (four) months from the date of receipt of a copy of this order. 11. As regards the prayer for fixation of pay scale of the petitioner is concerned, the petitioner is directed to make a fresh representation, ventilating his grievances on the aforesaid aspect, before the respondent no. 2 within a period of 4 (four) months from today. If such a representation is made by the petitioner than the same would be considered on merit and disposed of by the respondent no. 2 by passing a speaking order in accordance with the requirement of law, within a further period of 60 (sixty) days thereafter. The writ petition stands allowed to the extent indicated hereinabove. There shall be no order as to costs. JUDGE Sukhamay WP(C) 3307/2005-oral dtd. 16/08/2016 Page 6 of 6