IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) WP (C) NO. 2017/2009 Sri Swapan Kr. Biswas S/o Late Anil Kr. Biswas, Vill- Basugaon P.O. Basugaon, Dist. Chirang, Assam...Petitioner -Versus- 1. The State of Assam, Represented by the Commissioner and Secretary to the Government of Assam, Education Department, Dispur, Guwahati-6. 2. The Director, Secondary Education, Assam, Kahilipara, Guwahati-19 3. The Inspector of Schools Chirang District Circle, District-Chirang, Assam. 4. The Secretary, Bodoland Territorial Council, Kokrajhar. 5. The Director, Education Department, Bodoland Territorial Council, Kokrajhar. 6. The Principal. Netaji Subhas Vidyaniketan H.S. School, Basugaon, District-Chirang, Assam...Respondents BEFORE HON BLE MR. JUSTICE A.K. GOSWAMI For the petitioners : Ms. K. Akhtar, Advocate. For the respondents : Ms. P Bhatttacharjee, learned Standing counsel, Education Department. 1
Date of hearing : 16.09.2013. Date of judgment : 16.09.2013. JUDGMENT AND ORDER (CAV) By this writ petition under Article 226 of the Constitution of India, the petitioner prays for a direction to grant him the benefit of graduate scale of pay from the date of provincialisation of the school on 01.10.1977. 2. Three days before the writ petitioner retired from service on superannuation on 23.05.2009, the writ petition was filed on 20.05.2009. 3. The case of the petitioner, in a nutshell, as projected in the writ petition is that after acquiring his graduate degree in 1971, he joined service on 18.06.1976 and at the time of his retirement, he was working as Graduate Assistant Teacher in the Netaji Subhas Vidyaniketan H.S. School. 4. By an order dated 18.08.1993, he was granted graduate scale of pay w.e.f. 08.04.1993, although he ought to have been granted such scale of pay from 01.10.1977 i.e., the date of provincialisation of the School. 5. I have heard Ms. K Akhtar, learned counsel for the petitioner and Ms. P Bhattacharjee, learned Standing Counsel, Education. 6. Ms. Akhtar, learned counsel for the petitioner has drawn the attention of this Court to an order dated 28.09.2001 in WP (C) No. 6858/2001 and a consequential order passed by the Director of Secondary Education on 14.07.2003 to highlight that the petitioner is entitled to graduate scale of pay from 01.10.1977. 7. Though no affidavit has been filed, Ms. P Bhattacharjee, learned Standing Counsel, Education has submitted that though in the order dated 14.07.2003, the Director of Secondary Education had referred to three circulars dated 20.03.1979, 12.06.1981 and 30.12.1993, none of the circulars dealt with grant of graduate scale of pay. During the course of hearing, she has produced the notification dated 30.12.1993. 8. It is submitted by her that this Court by an order dated 18.05.2010 in WP (C) No. 5723/2005 (Gauri Prabha Mahanta and Ors Vs. The State of Assam and Ors.) had held that circular dated 12.06.1981 is a non-existent circular and a manufactured document. 2
9. According to her, the issue is covered by the judgment and order passed in Gauri Prabha (Supra). 10. I have considered the submissions of the learned counsel for the parties and perused the materials on record. 11. The order dated 14.07.2003, on which much reliance has been placed by Ms. Akhtar, reads as follows:- From: Dr. H.C. Das, Director of Secondary Education, Assam, Kahilipara, Guwahati-19. To. 1. The Inspector of Schools, K.D.C. Guwahati. 2. The Inspector of Schools, N.D.C. Nalbari. Sub.: Hon ble High Courts order in WP(C) No. 4048/1999, Dated 18.09.2001 in the matter of Sri. Haladhar Kalita and others and High Courts order, Dated 14.08.2001 passed in WP(C) No. 6858/2001 in the matter of Sri. Nripendra Nath Das and others of 09.08.2002 passed in WP(C) No. 3883/2002 in the matter of Sri. Girija Nanda Bhattacharjee and others. Ref: Govt. letter No. 8(J) S/72/2003/05, Dated 22.05.2003. Sir/Madam, In inviting a reference to the Govt. letter on the subject cited above, I have the honour to say that in compliance with the Hon ble Gauhati High Courts orders and in pursuance of the Govt. letter referred to above, the cases of the petitioners may be examined carefully in the light of the Govt. Circulars issued under letter No. EME. 152/93/96, Dated 20.03.1979 GRHE.6/88/45, Dated 12.06.2001 and No. B (3) S/338/93/10, Dated 30.12.1993 and allow them the benefit of Graduate scale of pay from 01.01.1973 or from the date of joining or from the date of acquiring General Degree qualification and from the date of deficit/prov. of their respective schools whichever is later. 3
The arrear amount required for the purpose along with the Head of Accounts may be submitted to this Directorate at an early date for taking necessary actions. A list of 68 (sixty eight) numbers of petitioners is enclosed herewith. Yours faithfully Director of Secondary Education, Assam Kahilipara, Guwahati-19 Memo No.GB.EST/DSE/CC/246/2002/210 Dated Kahilipara14.07.03. 12. The notification dated 20.03.1979 is annexed by the writ petitioner as Annexure-4 and a perusal of the same would go to show that same was issued granting permanent recognition to the examinations held by various voluntary Hindi organizations as mentioned therein as equivalent to degree examination and to allow teachers having such degree in Hindi to draw graduate scale of pay w.e.f. 01.01.1973. The said notification does not relate to the case of the writ petitioner. 13. The order dated 28.09.2001 in WP(C) No. 6858/2001 indicates that in the said writ petition, writ petitioners case was that they were working as Assistant Teachers in Higher Secondary Schools and were having degree in Hindi but they had been deprived of the benefits of graduate scale w.e.f. 01.01.1973 and this Court had disposed of the writ petition with a direction to the Commissioner and Secretary to examine the cases of the writ petitioners individually and to pass appropriate orders. Apparently, the case of the said writ petitioners were entirely different from the writ petitioner. The petitioner has not stated in the writ petition that he has a degree in Hindi. 14. The notification dated 30.12.1993, which is placed on record of the case on being produced by Ms. P Bhattacharjee, provides that all existing posts of Assistant Teachers in intermediate scale of pay with graduate incumbents of provincialised High/Higher Secondary Schools are upgraded to the post of Assistant Teachers in graduate scale of pay of Rs. 1375-3375/- P.M. from the date of issue of the order. 15. It is not the case of the petitioner that he was appointed in the graduate scale of pay. Though not indicated in the writ petition, it is apparent that he was appointed in the intermediate scale of pay. 4
16. The notification dated 12.06.1981 which was a purported notification in respect of grant of graduate scale of pay, has been held to be a fictitious document in Gauri Prabha (Supra). 17. In Gauri Prabha (Supra), this Court also noted that though directions were issued to the Government of Assam in the Education Department to examine the cases of the writ petitioners, no such consideration had taken place and some subordinate officers had issued some orders granting graduate scale of pay to some of the writ petitioners involved in some of the said writ petitions. 18. The order dated 14.07.2003, subject of which contains many mistakes in dates etc, is also an order falling in that category. Circulars dated 20.03.1979 and 30.12.1993, which have been noted, do not advance the case of the writ petitioner for entitlement of graduate scale of pay w.e.f. 01.10.1977. 19. In view of the above discussions, I find no merit in this writ petition and accordingly, the writ petition is dismissed. No costs. JUDGE nilakhi 5