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2021 Latest Caselaw 365 Gua

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GAHC010024362016




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : WP(C)/5362/2016

         RANJIT KUMAR BORA and 35 ORS
         S/O. LT. ABHIRAM BORA, R/O. VILL. GHAHI RANGASILA, P.O. GHAHI
         BHATIKURI, P.S. RAHA, DIST. NAGAON, ASSAM.

         2: SRI MRIDUL KUMAR BHARALI
          S/O. LT. BHUBAN CHANDRA BHARALI
          R/O. VILL. MATHOR BORI GAON
          P.O. RAMJANGATI
          P.S. RAHA
          DIST. NAGAON
         ASSAM.

         3: ALTAB HUSSAIN
          S/O. ABBAS ALI
          R/O. VILL LARMA BATAKUCHI
          P.O. SANEKUCHI
          DIST. NALBARI
         ASSAM.

         4: SRI BINANDA HAZARIKA
          S/O. LT. DURGADHAR HAZARIKA
          R/O. VILL. UTTAR PETBAHA
          P.O. UTTAR PETBAHA
          P.S. RAHA
          DIST. NAGAON
         ASSAM.

         5: MRS. ANITA DEVI
          D/O. SRI BHUPEN KAKATI
          R/O. GARMARI
          RAHA
          P.O. and P.S. RAHA
          DIST. NAGAON
         ASSAM.
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6: SRI BHASKARJYOTI BHUYAN
 S/O. LT. TULESWAR BHUYAN
 R/O. VILL. and P.O. DIGHALIATI
 P.S. RAHA
 DIST. NAGAON
ASSAM.

7: SRI BHABANANDA DAS
 S/O. SRI KHAVARAM DAS
 R/O. VILL. KACHUA
 P.O. CHAPARMUKH
 P.S. RAHA
 DIST. NAGAON
ASSAM.

8: PRADIP KUMAR DAS
 S/O. RANGAI DAS
 R/O. VILL. SIMALUGURI
 P.O. AHATGURI
 P.S. DHARAMTUL
 DIST. MORIGAON
ASSAM.

9: SRI RAJAN DEKA
 S/O. LT. PADMA KT. DEKA
 R/O. VILL. MAHADEOSAL
 P.O. BAGARIGURI
 P.S RAHA
 DIST. NAGAON
ASSAM.

10: TAPAN SARMAH
 S/O. LT. TARUN CHANDRA SARMAH
 R/O. VILL. DEKAGAON
 P.O. BANGALDHARA
 P.S. DHARAMTUL
 DIST. MORIGAON
ASSAM.

11: SRI PRAMOD CH. NATH
 S/O. LT. AKON CH. NATH
 R/O. VILL and P.S. RAMJANGATI
 P.S. RAHA
 DIST. MORIGAON
ASSAM.

12: NABA KUMAR NATH
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S/O. LT. KANAK CHANDRA NATH
R/O. VILL. DIGHOL DORI GAON
P.O. DIGHOL DORI
P.S. RAHA
DIST. NAGAON
ASSAM.

13: MISS RANJANA BARUAH
 D/O. GOPAL CHANDRA BARUAH
 R/O. VILL. UTTAR PETBOHA
 P.O. UTTAR PETBOrHA
 P.S. RAHA
 DIST. NAGAON
ASSAM

14: MRS. LAKSHI PRAVA DEVI
 D/O. LT. MOHAN CHANDRA NATH
 R/O. VILL. HUKULA GAON
 P.O. and P.S. RAHA
 DIST. NAGAON
ASSAM.

15: SMT. SANGITA DAS
 D/O. LT PUSPA KANTA DAS
 R/O. VILL. DEOBALI
 P.O. DIGHALDORI
 P.S. RAHA
 DIST. NAGAON
ASSAM.

16: SRI MILAN MAZUMDAR
 S/O. SRI KHIRUD HAZARIKA
 R/O. VILL. RAHA
 P.O. and P.S. RAHA
 DIST. NAGAON
ASSAM.

17: MRS. MINU BORA
 D/O. DHARESWAR BORA
 R/O. VILL. PHULANIATI
 P.O. CHAKALAGHAT
 P.S. SADAR NAGAON
 DIST. NAGAON
ASSAM.

18: MRS. SUSHILA KAHAR
 D/O. LT. TUSHI KAHAR
 R/O. VILL. RAHA NEW CHARIALI
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P.O. and P.S. RAHA
DIST. NAGAON
ASSAM.

19: SRI PRADIP HAZARIKA
 S/O. LT. DAMBARUDHAR HAZARIKA
 R/O. VILL. and P.O. BAGORIGURI
 P.S. RAHA
 DIST. NAGAON
ASSAM.

20: SRI HEMANTA KUMAR MEDHI
 S/O. LT. SOLIPA MEDHI
 R/O. VILL. SETALI GAON
 P.O. JAMUGURI
 P.S. RAHA
 DIST. NAGAON
ASSAM.

21: BHUGITA DAS
 D/O. GOPAL DAS
 R/O. VILL. and P.O. SENCHOWA
 P.S. RAHA
 DIST. NAGAON
ASSAM.

22: MRS. ARADHANA DAS
W/O. SRI NRIPEN BAISHYA
 R/O. VILL. RAHA GAON
 P.O. and P.S. RAHA
 DIST. NAGAON
ASSAM.

23: MRS. MEERA DEVI
 D/O. BHUGESWAR NATH
 R/O. VILL. PIPARA GAON
 P.O. PUB-GUIMARI
 P.S. KAMPUR
 DIST
 NAGAON
ASSAM.

24: PRABIN BORA
 S/O. LT. GHANASHYAM BORA
 R/O. VILL. METEKA
 P.O. DIGHOLDORI
 P.S. RAHA
 DIST. NAGAON
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ASSAM.

25: MRS. ANUPRAVA DEVI
 D/O. SRI MOHENDRA NATH HAZARIKA
 R/O. VILL. DEAGURI
 P.O. GANDHIBORI
 P.S. RAHA
 DIST. NAGAON
ASSAM.

26: MRS. MUHILA DAS
 D/O. MONBOR DAS
 R/O. VILL PUB-SALMARA
 P.O. PHULAGURI
 P.S. RAHA
 DIST. NAGAON
ASSAM.

27: MRS. DIPTI BALA DEVI
 D/O. SRI KUCHA KT. DAS
 R/O. VILL. BORBHAGIA
 P.O. CHARAIBHAI
 P.S. MIKIR BHETA
 DIST. NAGAON
ASSAM.

28: MISS PRATIMA DAS
 D/O. LT. PIPILAON DAS
 R/O. VILL. and P.O. UTTAR PETBAHA
 P.S. RAHA
 DIST. NAGAON
ASSAM.

29: SRI PRAMOD HAZARIKA
 S/O. LT. HIRENDRA HAZARIKA
 R/O. VILL. MAJGAONRAHA
 P.O. HIRAMUKH RAHA
 P.S. RAHA
 DIST. NAGAON
ASSAM.

30: SURENDRA BORAH
 R/O. VILL. NIZ-JAGIAL
 P.O. BALIGAON
 P.S. RAHA
 DIST. NAGAON
ASSAM.
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31: BICHITTRA KR. BORA
 S/O. LT. THANURAM BORA
 R/O. VILL. MAHARIATI
 P.O. BEBEJIA
 P.S. RAHA
 DIST. NAGAON
ASSAM.

32: SRI PROBIR BONIA
 S/O. LT. TULARAM BONIA
 R/O. VILL. GHANHI MAZGAON
 P.O. GHANHI BHATIKURI
 P.S. RAHA
 DIST. NAGAON
ASSAM.

33: SRI TIKENDRA KUMAR NATH
 S/O. LT. TULARAM NATH
 R/O. VILL. DAKKHIN PETBOHA
 P.O. UTTAR PETBOHA
 P.S. RAHA
 DIST. NAGAON
ASSAM.

34: SRI BRAJEN DAS
 S/O. LT. NAREN DAS
 R/O. VILL. PUB-SALMARA
 P.O. PHULAGURI
 P.S. RAHA
 DIST. NAGAON
ASSAM.

35: SRI GOPESH CH. BORO
 S/O. LT. DEBEN CHANDRA BORO
 R/O. VILL. CHATRA
 P.O. GHAGRAPARA
 DIST. NALBARI
ASSAM.

36: SAYED MAZAMMIL HUSSAIN
 S/O. JAMIRUDDIN AHMED
 R/O. VILL. KUNDANGAON
 JABRIHATI
 P.O. DAKHIN GAON
 DIST. NALBARI
ASSAM

VERSUS
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            THE STATE OF ASSAM AND 6 ORS
            REP. BY THE COMMISSIONER and SECRETARY, ELEMENTARY EDUCATION
            DEPT. TO THE GOVT. OF ASSAM, DISPUR, GUWAHATI-6.

            2:THE COMMISSIONER and SECRETARY
             ELEMENTARY EDUCATION DEPT.
             GOVT. OF ASSAM
             DISPUR
             GUWAHATI-06.

            3:THE DIRECTOR OF ELEMENTARY EDUCATION
            ASSAM
             KAHILIPARA
             GUWAHATI-19.

            4:THE DISTRICT ELEMENTARY EDUCATION OFFICER
             NALBARI
             P.O. and DIST. NALBARI
             PIN. 781359.

            5:DEPUTY INSPECTOR OF SCHOOLS
             NALBARI
             P.O. and DIST. NALBARI
            ASSAM
             PIN. 781359.

            6:THE DISTRICT ELEMENTARY EDUCATION OFFICER
             NAGAON
             P.O. and DIST. NAGAON
            ASSAM
             PIN. 782001.

            7:THE DEPUTY INSPECTOR OF SCHOOLS
             NAGAON
             P.O. and DIST. NAGAON
            ASSAM
             PIN. 782001

            8: COMMISSIONER & SECRETARY TO THE GOVT. OF ASSAM
            FINANCE DEPARTMENT, DISPUR, GUWAHATI - 6

Advocate for the Petitioner   : MS.A BHANU

Advocate for the Respondent :
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                                     BEFORE
                   HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK

                                               ORDER

Date : 04-02-2021

Heard Ms. S P Das, learned counsel for the petitioners and Mr. B Kaushik, learned Standing counsel, Elementary Education Department for the respondent Nos. 1 to 7.

Matter pertains to non-payment of arrear and regular salaries to the petitioners. It is contended by the petitioners that since the year 1996, they are serving as Assistant Teachers in provincialized Lower Primary Schools in the districts of Nagaon and Nalbari against vacant sanctioned posts which felt vacant due to retirement/death of the concerned incumbent.

As the matter pertains to salary, the Court is of the view that the Finance Department of the State is a necessary party for proper adjudication of the case.

Accordingly, the petitioner is allowed to implead the Finance Department of the State, represented by its Commissioner & Secretary to the Government of Assam as party respondent No. 8 in the present proceeding and to correct the cause title by hand.

Mr. R Barpujari, learned Standing counsel, Finance Department has entered appearance on behalf of the newly impleaded respondent No. 8.

Petitioner Nos. 1 to 34 are from the district of Nagaon and petitioner Nos. 35 & 36 are from the district of Nalbari.

The contention of the petitioners herein is that the authority concerned in the year 1993 issued an advertisement seeking applications from the intending candidates for filling up of posts of Assistant Teachers in Lower Primary Schools that felt vacant due to retirement and/or death of the incumbent and pursuant to the said advertisement, petitioners submitted applications for their appointment as Assistant Teachers in Lower Primary Schools.

It is also stated that after scrutiny of the applications, the concerned Sub-Division/District Level Advisory Board interviewed the petitioners in the year 1994-1995 and accordingly, their names figured in the select/merit list prepared Legislative Assembly Constituency wise and published in the month of June, 1995. Pursuant to the same, the Deputy Inspector of Schools, Nagaon district in November, 1995 appointed the petitioner Nos. 1 to 33 and similarly, the Deputy Inspector of Schools of Nalbari in January, 1996 appointed the Petitioner Nos. 34 & 35 against such vacant sanctioned posts, observing that initially they will receive Rs.900/- per month for one year and they will be sent for Junior Basic Training and that during such training period, the incumbent shall receive other allowances in addition to Rs.900/- as per law. However, said appointment orders reflect that if the Page No.# 9/10

incumbent is unable to succeed the said training within a period of one year, the said incumbent will be allowed to undergo the same for an another period of 1 (one) and/or 2 (two) years enabling him/her to appear in the said examination as private candidate in his/her 2nd/3rd year and during that period, the incumbent shall not receive any allowance. If even after 2nd or 3rd year, the incumbent does not succeed in the said training then the service of the said incumbent will be terminated within a period of 1 (one) month from the date of declaration of the result. Petitioners stated that pursuant to their appointment orders, accordingly they joined their services, completed their Junior Basic Trainings and that their stipend was enhanced from Rs.900/- to Rs.3130/- per month.

It is stated that though they are receiving such stipends, but since 07.06.1999 pursuant to a W.T. Message of the State Government in the Elementary Education Department and the order dated 09.09.2000 of the Director of Elementary Education, Assam, the petitioners stopped receiving their salaries. However, the concerned Deputy Inspectors of Schools of Nagaon and Nalbari districts communicated with the Director of Elementary Education, Assam and also submitted necessary proposal for payment of regular scale of pay to the petitioners.

As nothing was forthcoming from the respondents in the Elementary Education Department of the State, being aggrieved with such non-action on the part of the respondents, the petitioners on 30.08.2016 preferred this writ petition praying amongst others for a direction to the Commissioner & Secretary, Elementary Education, Assam as well as the Director of Elementary Education, Assam respondent Nos. 2 and 3 respectively to release regular scale of pay to them from the date of their joining and also to release their arrear salaries from the date of their joining along with due increments and further to regularize their services from the date of their joining in the respective schools.

The Director of Elementary Education, Assam on 13.03.2018 submitted an affidavit denying the claims of the petitioners and stated that the said writ petition being filed after more than 20 years is not maintainable and should be dismissed.

The Director of Elementary Education, Assam in its affidavit also stated that after the Right of Children to Free and Compulsory Education Act, 2009 came into force, the enhanced Qualification for appointment of teacher as per National Council for Teachers Education (NCTE) has been introduced in the State by amending the necessary Rules of recruitment in the year 2012 and since then eligibility norms that was in the year 1993/1996 had undergone a complete change in the year 2012. The respondents Director of Elementary Education, Assam, therefore submitted that the petitioners have failed to establish their case.

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The petitioners in this writ petition did not state as to when the advertisement for the post of Assistant Teachers in provincialized Lower Primary Schools of the State was published except making a statement that it was published in the year 1993. Moreover, the petitioners in this petition did not state the numbers of posts available in the districts of Nagaon and Nalbari in terms of the said advertisement, as to when they appeared before the concerned Sub-Division/District Level Advisory Board, before which Sub-Division/District Level Advisory Board they had appeared and what was their respective merit position in the relevant select/merit list. Moreover, Petitioners have not explain any reason for their delay in approaching this Court in August 2016 after seventeen years, claiming for their arrear and regular salaries, though they claimed that they were appointed in the year 1995/1996.

It is well settled that the petitioners, who failed to approach the Court within due time, more particularly, without explaining any valid reason, are not entitled for any such relief or direction under the writ jurisdiction.

With regard to such non-payment of salary as well for entitlement of salary, this Court in the case of Sudhendu Mohan Talukdar Vs. State of Assam reported in 2006 (2) GLT 216 constituted a Court Appointed Committee to consider the cases of such petitioners, where the said committee is required to verify first whether the appointment of such petitioner is illegal and/or fake and if found that the incumbent was duly appointed following the relevant statutory rule of appointment, the committee was authorised to do the needful.

Considering the above, this writ petition is disposed of directing the petitioners to submit their applications individually before the Director of Elementary Education, Assam forthwith along with their testimonials and a certified copy of this order for necessary consideration of their cases with regard to payment of arrear salary/regular salary. In the event of filing any such applications by the petitioners individually, the Director of Elementary Education, Assam shall place the matter before the said Court Appointed Committee in terms of the said judgment and order of the Sudhendu Mohan Talukdar(Supra). The said committee after due verification shall give its finding whereupon, the Director of Elementary Education, Assam shall intimate the petitioners about the outcome of the same.

With the aforesaid observation and direction, this writ petition stands disposed of.

JUDGE

Comparing Assistant