Dipti Das vs The State Of Assam And 5 Ors
2022 Latest Caselaw 1032 Gua

                                                                   Page No.# 1/9

GAHC010030192019




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

                        Case No. : WP(C)/1046/2019

         DIPTI DAS
         W/O- SRI DILIP DAS, R/O- VILL- GHARMARA, P.O. GHARMARA, P.S. NORTH
         LAKHIMPUR, DIST- LAKHIMPUR, ASSAM



         VERSUS

         THE STATE OF ASSAM AND 5 ORS.
         REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, EDUCATION
         (ELEMENTARY) DEPTT., DISPUR, GHY-6

         2:THE DIRECTOR OF ELEMENTARY EDUCATION
         ASSAM
          KAHILIPARA
          GHY-19
          DIST- KAMRUP (M)
         ASSAM

         3:THE DISTRICT ELEMENTARY EDUCATION OFFICER
          NORTH LAKHIMPUR
          DIST- LAKHIMPUR
         ASSAM
          PIN-

         4:THE DY. INSPECTOR OF SCHOOLS
          NORTH LAKHIMPUR
          DIST- LAKHIMPUR
         ASSAM

         5:THE BLOCK ELEMENTARY EDUCATION OFFICER
          LAKHIMPUR
          DIST- LAKHIMPUR
         ASSAM
                                                                       Page No.# 2/9

             PIN-

            6:THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM
             FINANCE DEPTT.
             DISPUR GHY-

Advocate for the Petitioner   : MR. N BORAH

Advocate for the Respondent : SC, ELEM. EDU




                                    BEFORE
               HON'BLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

                                       JUDGMENT

Date : 17-03-2022

Heard Mr. N. Borah, learned counsel for the petitioner. Also heard Mr. B. Kaushik, learned counsel for the respondents No.1, 2, 3, 4 and 5 being the authorities under the Elementary Education Department of the Govt. of Assam and Mr. A. Chaliha, learned counsel for the respondent No.6 being the Finance Department.

2. The petitioner participated in a selection process for the post of Assistant Teacher of L.P. School in the Lakhimpur Sub-Division as per the advertisement dated 28.12.1996. The said process resulted in a select list being prepared by the Sub-Divisional Level Selection Board and the name of the petitioner appeared at Serial No.64 of the said list which was published in the year 2001. Pursuant to such selection, the petitioner was appointed as an Assistant Teacher against the fixed pay of Rs.1800/- per month against the valid sanction post in the Sonia Gandhi L.P. School, Lakhimpur as per the order dated 31.03.2001 of the Deputy Inspector of Schools, North Lakhimpur. The petitioner having been appointed against the pay of Rs.1800/- has to be understood that she was appointed as a stipendry teacher requiring to undergo the basic training course. Materials on record also lead to an inference that the petitioner was sent for the Page No.# 3/9

basic training course. While the petitioner was undergoing the basic training course another incumbent was apparently appointed and posted against the same post where the petitioner was working. This resulted in the petitioner not receiving salary and allowance from the year 2004. The select list pursuant to which the petitioner was appointed, on perusal of the material appears to be a select list dated 05.03.2001. Although the petitioner was receiving the salary and allowance but there is an order dated 30.05.2001 of the Director of Elementary Education, Assam requiring termination of the appointments of all such teachers who were appointed during the second half of March, 2001. The order of 30.05.2001 makes it discernible that such termination was required to be made as because the appointments itself were found to be unacceptable by the authorities, inasmuch as, there was a ban of appointment due to the election process at that relevant point of time.

3. In the aforesaid circumstance, there is also an order dated 05.02.2009 of the Deputy Inspector of School, North Lakhimpur, whereby the petitioner was disallowed to continue her service inasmuch as, her appointment itself was illegal. The Commissioner & Secretary to the Govt. of Assam in the Education Department had made an order dated 26.07.2005 by referring to certain writ petitions that the salary and allowance be released to 53 number of L.P. School teacher under the Deputy Inspector of School, Lakhimpur and in the accompanying list of 53 teachers, the name of the petitioner also appears at Serial No.53. As the salary was not paid to the petitioner, the petitioner instituted WP(C) 1816/2006 which was given a final consideration by the order dated 26.04.2006 requiring the claim of the petitioner to be placed before the expert committee constituted as per the direction in Sudhendu Mohan Talukdar

-vs- State of Assam & Ors. Upon the claim of the petitioner being placed before Page No.# 4/9

the aforesaid committee, the Director of Elementary Education, Assam had passed the order dated 07.01.2009. The effective conclusion of the order dated 07.01.2009 which is extracted below:-

"The fact as revealed in the Expert Committee Meeting held on 26.09.2008 is that the petitioner was appointed by the then Deputy Inspector of Schools, North Lakhimpur (Sri R.C. Deori) against the vacancy which is also filled-up by another candidate by way of adjustment in the year, 2001 when there was ban on appointment. The approval/appraisal of SLEC was not obtained at the time of appointment. It appears from the report that the petitioner was selected by the Sub-divisional Level Advisory Board, North Lakhimpur, but the said select list was not approved by the Director of Elementary Education, Assam. Hence, the appointment of the petitioner is illegal and question for payment of salary does not arise."

4. A reading of the order dated 07.01.2009 of the Director makes it discernible that the claim of the petitioner for salary stood rejected for the reason that she was appointed in the year 2001 when there was a ban on appointment, there was no approval appraisal of the State Level Empowered Committee (SLEC) before such appointment and the select list of the Sub- Divisional Level Advisory Board, Lakhimpur was not approved by the Director of Elementary Education, Assam. It is taken note of that the order dated 05.02.2009 of the Deputy Inspector disallowing the petitioner to continue in service is infact a result of the order dated 07.01.2009 of the Director.

5. Being aggrieved, the petitioner instituted WP(C) 1015/2009 which was given a final consideration by the order dated 05.09.2017. In respect of some 33 number of teachers whose names were included in the list of 53 number of teacher corresponding to the order dated 26.07.2005 of the Commissioner & Secretary to the Education Department, WP(C) 3408/2012 was instituted which was given a final consideration by the judgment dated 10.03.2015. One of the adjudication made by this Court in the judgment dated 10.03.2015 is that the Page No.# 5/9

stand of the respondents that the appointments made were illegal inasmuch as, it was made during the ban period and secondly that it was made without placing the matter before the SLEC, was rejected by providing that such infirmity would be at the best of irregularity and not illegality. Accordingly, it was directed that the claim of the 33 other similarly situated persons be placed before the Finance SIU department for ex-post facto approval to their appointments. In compliance thereof, it was stated that the aforementioned discrepancy in respect of the other 33 persons has been regularized and are now being paid their salary and allowances.

6. In its judgment dated 05.09.2017 in WP(C)No.1015/2009 instituted by the present petitioner, the Court had also gone further into the aspect on the stand of the respondents that the select list dated 05.03.2001 was not approved by the Director and further that the post against which the petitioner was appointed there were two appointments being made against the same post. But at the same time in the judgment dated 05.09.2017 in WP(C)No.1015/2009, the earlier conclusions by this Court in its judgment dated 10.03.2015 in WP(C)No.3408/2012 as regards the stand of the respondents that the appointments were made during the ban period and there was no appraisal of the SLEC before such appointments were made was accepted.

7. As regards the stand of the respondents that the select list dated 05.03.2001 was not authenticated or approved by the Director of Elementary Education Assam, this Court in its judgment dated 05.09.2017 in WP(C)No.1015/2009 had made an observation that the claim of bona fide appointments from such un-approved select list will have to be considered and decided.

8. In paragraph 11 of the judgment dated 05.09.2017 in WP(C)No.1015/2009, Page No.# 6/9

the Court took note of that in respect of the other selected and appointed candidates pursuant to the select list dated 05.03.2001, the 33 persons, who were also appointed pursuant to the select list dated 05.03.2001, have been appropriately adjusted by creating supernumerary posts w.e.f. 01.09.2004. In paragraph 12, the Court further observed that although the verdict in WP(C)No.3408/2012 does not confer absolute legitimacy to the appointments made from the select list dated 05.03.2001, the Court had no occasion to determine that the said select list was ever published or was authenticated by the Director of Elementary Education, Assam as required under the Rules. But again, in paragraph 13, the Court took note that, on the other hand, large number of litigants whose name figured in the list dated 05.03.2001 were regularized on 03.12.2016 by creating supernumerary post w.e.f. 01.09.2004. Accordingly the Court in its judgment dated 05.09.2017 concludes as "therefore, it would be inappropriate to say that the petitioner is not entitled to claim parity of relief, under the ratio of State of Karnataka Vs. C Lalitha reported in (2006) 2 SCC 747. "

9. The aforesaid categorical conclusion of the Court makes it discernible that whatever may have happened regarding the authenticity and approval of the select list, the present petitioner Dipti Das is also entitled to claim parity with the reliefs that were granted to the other teachers appointed pursuant to the select list dated 05.03.2001 i.e., their services were regularized by creation of supernumerary post as per the order dated 03.12.2016 w.e.f., 01.09.2004.

10. With regard to the other objections raised by the petitioner that two persons were appointed against the same post, the Court in its judgment dated 05.09.2017 had arrived at its conclusion that it was the petitioner who was appointed prior against a vacant post to which she was appointed, but Page No.# 7/9

subsequently when she was sent to the Junior Basic Training Course another incumbent was appointed to the said post. Accordingly the Court went in favour of the petitioner by stating the reason that two teachers cannot be appointed against the same post. The judgment dated 05.09.2017 accordingly remanded the matter back to the authorities for a fresh consideration by providing that the same be done in the light of the observations made in that judgment. In other words, the Court in its judgment dated 05.09.2017 had remanded the matter back for a fresh consideration before the authorities not to take an independent view on the claim of the petitioner, but to consider it in the light of the observations made in the said judgment. As already taken note that in the judgment dated 05.09.2017, one conclusion was that the petitioner was entitled to a parity of relief with the other 33 Assistant Teachers who were also appointed pursuant to the select list dated 05.03.2001 which the Court had taken note that the relief granted was to regularize all such irregularity by creation of supernumerary post and the benefits be given with effect from 01.09.2004.

11. The second conclusion of the Court was that the stand that appointment of the petitioner is illegal as two teachers were appointed against the same post would also be unacceptable inasmuch as it is the petitioner who was appointed prior to the other incumbent. Accordingly for the purpose of reconsideration by passing a fresh order the authorities were bound by the judgment dated 05.09.2017 to pass its order only in consideration of the aforesaid two conclusions of the Court.

12. Resultant thereof, the order impugned dated 31.10.2018 has been passed. Upon perusal of the order dated 31.10.2018 it is noticeable that the Commissioner and Secretary had endeavored to make an independent Page No.# 8/9

assessment on the claim of the petitioner without binding itself to the requirement of the judgment dated 05.09.2017. The Commissioner and Secretary went to the question that in the recommendation of the Expert Committee, the petitioner was in the category where she was recommended not for any kind of regularization of salary. Secondly, the Commissioner and Secretary also again goes back to the question that the petitioner was appointed against a non-existent post. When there is an effective adjudication by this Court that the petitioner is entitled to parity with the 33 other teachers appointed pursuant to the select list dated 05.03.2001 and such judgment having arrived at its finality, the Commissioner and Secretary is bound to confine its consideration to the said aspect and not to venture out to make a de novo independent decision on the subject. From such point of view, the Commissioner and Secretary did not have the jurisdiction and authentication of law to again go back to the question on the recommendation of the Expert Committee in respect of the petitioner and accordingly reject her claim. What is noticeable is that the Commissioner had not even considered the conclusion of this Court that the petitioner is entitled to parity with the 33 other Assistant Teachers who were appointed pursuant to the select list dated 05.03.2001 and that the parity means that her services is to be regularized by creating a supernumerary post by giving the benefit w.e.f. 01.09.2004. The second reason of the Commissioner and Secretary that the petitioner was appointed against a non-existent post, the same was also decided by this Court by the judgment dated 05.09.2017 in WP(C)No.1015/2009 that it is the petitioner who was appointed prior against an existent vacant post and therefore her appointment cannot be construed to be against any non-existent post. The conclusion of the Commissioner and Secretary appears to be in conflict with the judgment of this Page No.# 9/9

Court dated 05.09.2017.

13. For the reasons stated above, the order of the Commissioner and Secretary dated 31.10.2018 is set aside. The matter is again remanded back to the Principal Secretary to pass a fresh order strictly taking note of the conclusions already arrived at by this Court in its judgment dated 05.09.2017 in WP(C)No.1015/2009 which has already been referred hereinabove, in clear and certain terms.

14. The requirement of this order be passed within a period of one month from the date of receipt of the certified copy of this order.

15. Writ petition stands disposed of in the above terms.

JUDGE

Comparing Assistant