Anil Ch. Gayan vs Preetom Saikia And Anr
2021 Latest Caselaw 2221 Gua

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GAHC010072882019




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

                               Case No. : Cont.Cas(C)/218/2019

            ANIL CH. GAYAN
            S/O ADHAN CH. GAYAN, VILL.- HILLOIPARA, P.O.- KACHARI PATHAR, P.S.-
            DHEMAJI.



            VERSUS

            PREETOM SAIKIA AND ANR.
            THE COMM. AND SECY., EDUCATION (SECONDARY) DEPTT., DISPUR,
            GHY.-6.

            2:PHANINDRA JIDUNG
             DIRECTOR OF SECONDARY EDUCATION
            ASSAM
             KAHILIPARA
             GHY.-19

Advocate for the Petitioner   : MRS. R DEVI

Advocate for the Respondent : MR A SARMA




                                 BEFORE
            HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

                                        O R D E R

15.09.2021

Heard Ms. R Devi, learned counsel for the petitioner and Mr. SP Bhattacharjee, learned counsel for the respondent contemnor No.1.

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2. This contempt petition is instituted on the allegation of an wilful and deliberate violation of the order of this Court dated 20.09.2018 in WP(C) No.1468/2018. In WP(C) No.1468/2018, the petitioner relied upon a proposal made by the Director of Secondary Education, Assam dated 18.05.2018 to the Commissioner and Secretary to the Government of Assam in the Secondary Education Department providing for the service history of the petitioner and by projecting that a vacancy is available in the school concerned and therefore, a request was made to the Commissioner and Secretary to take a decision on the matter. The petitioner also earlier instituted WP(C) No.7729/2001, which was given a final consideration by the order dated 19.01.2004, by which a direction was given to the respondent authorities, particularly to the Principal Secretary to the Government of Assam in the Secondary Education Department to deal with the case of the petitioner for necessary adjustment etc as requested in an earlier letter dated 25.10.2002 of the Director of Secondary Education, Assam. But at the same time, in paragraph 8 of the order dated 19.01.2004, it was provided that it is needless to say that the requirement of dealing with the case of the petitioner be done by the respondents in accordance with Rules.

3. In the aforesaid circumstance, the order dated 20.09.2018 was passed in WP(C) No.1468/2018, wherein a direction was issued to the Commissioner and Secretary to the Government of Assam in the Secondary Education Department to consider the proposal made by the Director in the communication dated 18.05.2018 and the order dated 19.01.2004 in WP(C) No.7729/2001. On an alleged non-compliance of the said direction, this contempt petition is instituted.

4. Mr. SP Bhattacharjee, learned counsel for the respondent contemnor No.1 has produced an order dated 10.09.2021 of the Special Commissioner in the Secondary Education Department of the Government of Assam by which a Page No.# 3/4

conclusion was arrived at that the appointment of the petitioner was illegal and therefore, it was void-ab-initio and the petitioner is also not entitled to any regularization in service. In doing so, the view of the Judicial Department as well as the Finance Department of the Government of Assam was also taken note of. Accordingly, as the appointment of the petitioner itself was found to be illegal, the Special Commissioner was also of the view that the petitioner is not entitled for any arrear salary.

5. Ms. R Devi, learned counsel for the petitioner expresses a disagreement with the view taken by the Special Commissioner in the order dated 10.09.2021 specifically on the conclusion that the appointment of the petitioner was an illegal appointment.

6. We are in a contempt jurisdiction of an alleged violation of the order dated 20.09.2018 in WP(C) No.1468/2018, wherein the direction of the Court was to consider a proposal for adjustment of the petitioner and to do the requirement of the judgment and order dated 19.01.2004 in WP(C) No.7729/2001 to deal with the case of the petitioner in terms of the existing Rules. If the Special Commissioner is of the view that the appointment of the petitioner is illegal and therefore, void-ab-initio, it cannot be stated that the Special Commissioner had not considered the case of the petitioner in terms of the existing Rules as required in the order dated 19.01.2004 in WP(C) No.7729/2001. However, if the petitioner is aggrieved with any such conclusion, the appropriate remedy will not be to further continue with this contempt petition, but elsewhere.

7. Accordingly, the contempt petition stands closed. Liberty is granted to the petitioner to assail the order dated 10.09.2021 of the Special Commissioner in an appropriate proceeding, if so advised.

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8. The order of the Special Commissioner dated 10.09.2021 is kept on record.

JUDGE

Comparing Assistant