Page No.# 1/7 vs The State Of Assam And 2 Ors
2022 Latest Caselaw 4855 Gua

                                                          Page No.# 1/7

GAHC010028772022




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




          Linked Case : WP(C)/447/2022

         ADITYA BHUYAN AND 12 ORS
         S/O MOHAN BHUYAN VILL. TELIABEBEJIA P.O. JURIA
         DIST. NAGAON
         ASSAM
         PIN-782124

         2: JYOTI SANKAR NARAYAN BARUAH
         S/O AVOL CH. BARUAH
         VILL PUB SALMARA
          P.O. PHULAGURI P.S DIST. NAGAON
         ASSAM
          PIN-782103

         3: MADHAB CHANDRA DAS
         S/O SUBHASING DAS
         VILL PUB SALMARA
         P.O. PHULAGURI P.S DIST. NAGAON
         ASSAM
         PIN-782103

         4: RANA BARUAH
         S/O BIRENDRA BARUAH VILL. KHATGARH
         P.O. RAHA
         P.S DIS. NAGAON
         ASSAM
         PIN-782103

         5: SUJIT KUMAR BORDOLOI
         S/O LT. BHAKAM BORDOLOI
         VILL PUB SALMARA
                                                    Page No.# 2/7

P.O. PHULAGURI P.S DIST. NAGAON
ASSAM
PIN-782103

6: PADUM CH. BORAH
S/O MAHENDRA NATH BORAH
VILL. CHAMDHARA
P.O. JURIA
P.O. PHULAGURI P.S DIST. NAGAON
ASSAM
PIN-782124

7: SURENDRA PRASAD GUPTA
S/O LT. BINDHYACHAL PRASAD
VILL. PUB DHANIRAM PATHAR
WARD NO. 3 P.O. TELIABASTI
P.S. HOJAI
DIST. HOJAI
ASSAM
PIN-782435

8: ANUP MUKHERJEE
S/O LT. AMARENDRA NATH MUKHERJEE R/O NORTH LUMDING LAANKA
ROAD
P.O P.S. LUMDING
DIST. HOJAI
ASSAM
PIN-782447

9: DULAL CHANDRA DAS
S/O LT. BHUBAN CHANDRA DAS
VILL HIRA BASTI
P.O. BORBOHA
P.S HOJAI
DIST. HOJAI
ASSAM
PIN-782442

10: BISWAJIT DUTTA
S/O LT. HARIPADA DUTTA
R/O GOBINDAPALLY WARD NO. 6
HOJAI TOWN
P.O. P.S. AND DIST. HOJAI
ASSAM
PIN-782435

11: SALAM MEMI DEVI
W/O MAHESH SINHA
                                                          Page No.# 3/7

R/O VILLAGE NAYAN
P.O. LASKAR
P.S. LANKA
DIST. HOJAI
ASSAM
PIN-782446

12: NABAKRISHNA KAR
S/O LT. JAGDISH CH. KAR
R/O VILL. PUBDHANIRAM PATHAR
P.O. TELIABASTI VIA HOJAI
P.S. AND DIST. HOJAI
ASSAM
PIN-782435

13: MANIBABU SINGHA
S/O LT. BALBAH SINGHA
R/O VIIL. DAKHIN UDAYPUR
P.O. NANDAPUR CHARALI
P.S. AND DIST. HOJAI
ASSAM
PIN-782435
VERSUS

THE STATE OF ASSAM AND 2 ORS
REP.BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
EDUCATION (SECONDARY) DEPTT. DISPUR GUWAHATI-6

2:THE DIRECTOR
SECONDARY EDUCATION
ASSAM
 KAHILIPARA
 GUWAHATI-19
 3:THE COMMISSIONER AND SECRETARY
TO THE GOVT. OF ASSAM FINANCE DEPTT. DISPUR GUWAHATI-6
 ------------
Advocate for : MS D BORGOHAIN
Advocate for : SC
 SEC. EDU. appearing for THE STATE OF ASSAM AND 2 ORS



                      BEFORE


        HON'BLE MR. JUSTICE NELSON SAILO
                        ORDER

Page No.# 4/7

09.12.2022

Heard Ms. D Borgohain, learned counsel for the petitioners in both the writ petitions and also Mr. N J Khatanair, learned Standing Counsel, Secondary Education, Govt. of Assam. Also heard Mr. A Chalia, learned Standing Counsel, Finance Department who appears for the Finance Department in both the writ petitions.

[2.] Since the issues involved in both the writ petitions are similar and identical, they are being disposed of by this common order. The petitioners before this Court are working as Graduate teachers in different provincialized High School/Higher Secondary Schools in the Districts of Hojai, Nagoan & Morigaon, since the date of their initial appointment on 29.03.2001. It is the case of the petitioners that the Director of Secondary Education, Assam had issued an advertisement in the local daily newspaper i.e. Assam Tribune dated 28.12.1996, inviting applications for filling up of vacancies of 1000 posts of Graduate teachers in the provincialized High School and Higher School in various districts of Assam. The petitioners, accordingly, applied for the posts and they were appointed as Assistant teachers in different High School/Higher Secondary School against the sanctioned post on being recommended and selected by the duly constituted Selection Committee and given a consolidated pay of Rs. 2500/- per month. Since their appointment, the petitioners have been rendering their services without any break. The pay of the petitioners was subsequently enhanced to Rs. 15,500/- vide Notification dated 19.06.2015 (Annexure-3) and the same was to be effective from the date of submission of fresh joining letter for working against the identified vacant posts. The petitioners have therefore been enjoying the same pay till the issuance of the impugned Notification dated 26.02.2021 (Annexure-7), by which the petitioners were given, the benefit of regular time scale of pay as per the Revision of Pay (ROP) Rules by notionally fixing their pay from the date they joined in service in the year 2001. It is the claim of the petitioners that they are entitled to be given Page No.# 5/7

regular pay scale w.e.f. the date of their joining in service, inasmuch as, they were selected and appointed as Assistant teachers of High School and Higher Secondary Schools after following due process of selection and therefore, they cannot be deprived of similar pay with those working in similar posts like them and enjoying the regular pay scale.

[3.] Appearing for the petitioners, Ms. D Borgohain, learned counsel submits that the case of the petitioners is squarely covered by the judgment of a Co-ordinate Bench of this Court, which was also upheld by the writ Appellate Court. To substantiate her submissions, the learned counsel has referred to the Judgment & Order dated 16.02.2016 passed in WP(C) No. 763/2013 (Annexure-4) and the judgment dated 14.06.2019 passed in Writ Appeal No. 233/2017 (Annexure-5). She submits that this Court in WP(C) No. 763/2013 after coming to a finding that the petitioners therein were appointed after a valid and regular selection, directed the respondent authorities to give them the regular pay scale as Graduate teacher of High School w.e.f. the date of their joining within a time frame of 4 months from the date of receipt of the order. She submits that the Court further observed that in case of failure to pay the pay scale of the petitioners, the same would carry interest at the rate of 6% per annum which would be recoverable from the erring officials. The said judgment was put to challenge by the respondent authorities by filing Writ Appeal no. 233/2017 and the writ Appellate Court vide its Judgment & Order dated 14.06.2019 upheld the decision of the learned Single Judge and also the order of dismissal of the review petition filed in connection with the judgment of the learned Single Judge. She, therefore, submits that the similar direction may be issued to the respondent authorities to give the present petitioners the benefit of regular pay scale from the date of their initial appointment.

[4.] Mr. N J Khatanair, learned counsel appearing for the Secondary Education Department has produced Communication dated 17.09.2022 addressed to the Page No.# 6/7

Standing Counsel, Secondary Education Department by the Secretary to the Govt. of Assam, Department of School Education, which is to the effect that the Department does not have anything further to comment on the matter and that there is no provision for payment of arrears. It is further stated that in the communication that the eligible fixed pay teachers are now getting ROP based salary on the basis of notional calculation of pay, which is calculated from the year 2001.

[5.] Mr. A Chalia, learned Standing Counsel, Finance Department submits that the Finance Department has given its approval for giving regular pay scale to 580 Graduate teachers and that the name of the petitioners are amongst the approved teachers. He however submits that the same cannot be used as a precedent by other persons on account of similarity in their appointment.

[6.] I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record. It is noticed that in the impugned Notification dated 26.02.2021 itself, the memo number of the notification has a reference to the writ petition which according to the petitioners covers their pleaded case i.e. WP(C) No. 763/2013. This only goes to show that the case of the petitioners is apparently similar with the petitioners in WP(C) No. 763/2013 and that in the absence of any dispute regarding the mode and manner of their appointment, there is no reason as to why similar benefits should not be given to the present petitioners. Accordingly, the case of the petitioners is found to be squarely covered by the writ petition under reference.

[7.] The writ petition is therefore disposed of with a direction to the respondent authorities to grant similar benefits to the petitioners as was given to the petitioners in WP(C) No. 763/2013. The Notification dated 26.02.2021, insofar as, there being a bar for granting such benefit stands interfered with. In other words, it is made clear that the petitioners will be entitled to be given the regular pay scale from the date of their respective joining in service. Liberty is granted to the respondents to make necessary Page No.# 7/7

verification for the purpose. The exercise of verification and grant of the pay scale to the petitioners be carried out as expeditiously as possible and at any rate within a period of 4 months from the date of receipt of a certified copy of this order.

JUDGE

Comparing Assistant