Ishan Chandra Borah vs The State Of Assam And 3 Ors
2021 Latest Caselaw 813 Gua

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GAHC010108332016




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

                        Case No. : WP(C)/1533/2016

         ISHAN CHANDRA BORAH
         S/O LT. BOGAI RAM BORAH, R/O GATANGA, P.O. BALIPUKHURI TINIALI,
         P.S. TEZPUR, PIN-784001, DIST- SONITPUR, ASSAM



         VERSUS

         THE STATE OF ASSAM AND 3 ORS
         THROUGH THE COMMISSIONER/SECRETARY TO THE GOVT. OF ASSAM,
         EDUCATION (ELEMENTARY) DEPTT., DISPUR, GHY-6

         2:THE DIRECTOR
          STATE COUNCIL OF EDUCATION RESEARCH AND TRAINING
         ASSAM
          KAHILIPARA
          GHY-19

         3:THE GOVERNING BODY
          GOVERNMENT COLLEGE OF TEACHER EDUCATION CTE
         TEZPUR
          P.O. NIKAMUL
          PIN-784154
          DIST- SONITPUR
         ASSAM

         4:THE PRINCIPAL
          GOVERNMENT COLLEGE OF TEACHERS EDUCATION CTE
         TEZPUR
          P.O. NIKAMUL
          PIN-784154
          DIST- SONITPUR
         ASSAM
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            5:COMMISSIONER AND SECRETARY

             ELEMENTARY EDUCATION DEPARTMENT

            6:FINANCE DEPARTMENT OF THE STATE
             REPRESENTED BY ITS COMMISSIONER AND SECRETAR

Advocate for the Petitioner    : MR.S C BISWAS

Advocate for the Respondent : SC, HIGHER EDUCATION

BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

JUDGMENT & ORDER (ORAL)

Date : 04-03-2021

Heard Mr. S.C. Biswas, learned counsel for the petitioner. Also heard Mr. P.K. Borah, learned counsel for the respondents no. 1 and 5 being the authorities under the Elementary Education Department of Government of Assam, Mr. P. Nayak, learned counsel for the respondent no. 2 being the authorities under the State Council of Education Research and Training, Assam and Mr. G. Saha, learned counsel for the respondent no. 3 and 4 being the Governing Body and Principal of the Government College of Teachers Education, Tezpur, Assam.

2. By the order dated 07.01.2021 the Finance Department of Government of Assam through the Commissioner and Secretary was also arrayed as respondent no. 6. Mr. P. Nayak, learned counsel also appears for the respondent no. 6 being the Finance Department.

3. The petitioner was appointed as a night chowkidar as per the order of Principal of Teachers' Training College, Tezpur on a temporarily basis during the leave period of another person Sri Madan Keot with effect from 06.07.1994. It is not known whether Sri Madan Keot had rejoined his service after the leave period but the fact remains that the petitioner upon such appointment continued to serve as a night chowkidar in the Teachers' Training College, Tezpur. Subsequently the Principal-In-Charge of the Government College of Teacher Education Page No.# 3/4

by a communication dated 07.12.2010 addressed to the Director, SCERT had informed that the Institution was taken over by the Government as per the Notification No. A (I) E 685/96/131 dated 27.02.1998 and had sanctioned five numbers of posts for the non-teaching staff but in doing so, the post of night chowkidar had been dropped. The communication stated that Sri Bir Bahadur Karmakar who was a sweeper in the college and working against one of the five posts of non-teaching staff would retire on 28.02.2011. Consequently a suggestion was made that as the petitioner was serving as a night chowkidar since his initial appointment, his appointment may be considered against the vacant post of sweeper.

4. In the resultant situation, the Director of SCERT, Assam had submitted a proposal vide letter no. SCERT/Esstt/243/2011/27 dated 18.12.2012 to adjust the petitioner Sri Ishan Chandra Borah against the vacant post of sweeper in the Institute. It is stated that the matter had not been carried forward any further by the Government and no consequential order had been passed either accepting or rejecting the proposal to adjust the petitioner against the vacant post of sweeper. In the resultant situation, this writ petition is instituted for a direction to the respondent authorities to regularize/provincialise the service of the petitioner as a night chowkidar on a regular scale of pay.

5. Mr. P. Nayak, learned counsel for the respondent SCERT has produced a communication from the Director of SCERT from where it is discernable that a proposal infact was submitted by the letter no. SCERT/Esstt/243/2011/27 dated 18.12.2012 as noted above.

6. Mr. P.K. Borah, learned counsel for the Elementary Education Department of Government of Assam has stated that no material is available as to whether the Government in the Elementary Education Department had taken any decision on the aforesaid proposal.

7. We have taken note of that the appointment of the petitioner was initially against an existing post where another incumbent was working as a night chowkidar. But at the time of taking over by the Government, for the reason unknown, the post of night chowkidar was not included. From the said point of view it cannot be said that the appointment and continuation of the petitioner as a night chowkidar in the Teachers' Training College, Tezpur would be wholly illegal or vitiated by any kind of fraud. In the circumstance we are of the view that the interest of justice would be met if a direction is issued to the respondents in the Elementary Page No.# 4/4

Education Department of Government of Assam through the Commissioner and Secretary to take a decision on the proposal submitted by the Director, SCERT vide the letter no. SCERT/Esstt/243/2011/27 dated 18.12.2012 as to whether the service of the petitioner can be adjusted against the vacant post of sweeper. If yes, the further consequence would follow. In doing so, the Commissioner and Secretary shall pass a reasoned order. On the other hand, if the said process does not ultimately result in any favourable situation for the petitioner, the respondents may consider the petitioner for any suitable financial benefit as provided in the judgment dated 08.06.2017 in WA No. 45/2014 where for some similarly situated persons it was provided that they would be given the financial benefit of at least the minimum of the pay scale applicable to the similar regularly appointed employees. The Commissioner and Secretary may do the needful of passing the reasoned order within a period of three months from the date of receipt of certified copy of the order. It is further directed that in the event the order does not go in favour of the petitioner, the Commissioner and Secretary may look into the aspect of providing adequate financial benefit to the petitioner as indicated above.

8. In the above terms, writ petition stands disposed of.

JUDGE

Comparing Assistant