Md. Monajir Ali vs The State Of Assam And 5 Ors
2022 Latest Caselaw 909 Gua

                                                                  Page No.# 1/6

GAHC010125802015




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

                        Case No. : WP(C)/7929/2015

         MD. MONAJIR ALI
         S/O MD. SHEIKH SOHRAB, R/O BORHAPJAN, P.O. BORHAPJAN, DIST-
         TINSUKIA, ASSAM, PIN-786150



         VERSUS

         THE STATE OF ASSAM and 5 ORS.
         REP. BY THE PRINCIPAL SECY. TO THE GOVT. OF ASSAM, EDUCATION
         DEPTT., DISPUR, ASSAM, PIN-781005

         2:THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM
          EDUCATION ELE DEPTT.
          DISPUR
          GHY-5

         3:THE COMMISSIONER AND SECY. TO THE GOVT.OF ASSAM
          FINANCE DEPTT.
          DISPUR
          GHY-5
         ASSAM

         4:THE DIRECTOR OF ELEMENTARY EDUCATION
         ASSAM
          KAHILIPARA
          GHY-19
         ASSAM

         5:THE DISTRICT ELEMENTARY EDUCATION OFFICER
         TINSUKIA
          DIST- TINSUKIA
         ASSAM
          PIN-786125
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             6:THE HEADMASTER
              DOOMDOOMA HINDI ME SCHOOL
              P.O. DOOMDOOMA
              DIST- TINSUKIA
             ASSAM
              PIN-78615

Advocate for the Petitioner   : MR.P J SAIKIA

Advocate for the Respondent : SC, FINANCE

BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

JUDGMENT & ORDER (ORAL)

Date : 15-03-2022

Heard Mr. A Deka, learned counsel for the petitioner. Also heard Mr. N J Khataniar, learned counsel for the respondents no. 1, 2, 4 and 5 being the authorities under the Elementary Education Department, Government of Assam and Mr. P Nayak, learned counsel for the respondent no. 3 being the Finance Department, Government of Assam.

2. Considering the nature of the order proposed to be passed, we are not required to hear the respondent no. 6 who is the Headmaster of Doomdooma Hindi ME School.

3. Vide an order dated 05.07.1996 of the District Elementary Education Officer, Tinsukia the petitioner was appointed as an ad hoc hindi teacher on a temporary basis against a post in the Doomdooma Hindi ME School, which had fallen vacant due to up-gradation of another teacher Sumesh Kumar Mishra as Assistant Teacher. It is stated that Sumesh Kumar Mishra who was upgraded as an Assistant Teacher was appointed as a hindi teacher under the CSS scheme which was created as per the Government letter dated 16.11.1991 and that the post against which Sumesh Kumar Mishra was appointed is a post personal to the person concerned.

4. In the circumstance by another order dated 17.09.1998 by the Director of Elementary Education, Assam, the petitioner was allowed to draw his salary against the non plan vacant Page No.# 3/6

post in the Doomdooma Hindi ME School vide Chayarani Chakrabroty who was a retired teacher of Talap Balibazar Sishu ME School. By another order dated 30.11.2004 of the District Elementary Education Officer, Tinsukia the said arrangements of the petitioner to receive his salary against a post in Talap Balibazar Sishu ME School was withdrawn. In the resultant situation the petitioner was not paid his salary and allowances.

5. Being aggrieved, the petitioner instituted WP(C)/2198/2008 wherein the order dated 23.06.2008 was passed requiring the claim of the petitioner to be placed before the Expert Committee constituted by the Court in the case of Sudhendu Mohan Talukdar & ors. v. The State of Assam and anr. The Committee in its meeting of 07.06.2013 considered the claim of the petitioner. The conclusion of the Expert Committee in its meeting of 07.06.2013 in respect of the petitioner Monajir Ali is extracted as below:

"8. WP(C)/2198/2008 Monajir Ali, Tinsukia

The decision of Expert Committee was - "the Committee has directed to the Director Elementary Education, Assam to examine the matter and to submit a report to the Govt."

Now the Director Elementary Education Assam has submitted a report vide letter No.

EE(Plan) H/323/2012/112 dated 5th April 2013.

As per report Md. Monajir Ali was appointed as Adhoc Hindi Teacher in Doomdooma Hindi M.E. School vide DEEO, Tinsukia's order No. 2206-10 dated 05-07-1996 against the resultant vacancies of Sri Sumesh Kr. Mishra H.T. transfer to the post of A.T. in the same school. Sri S.K. Mishra originally appointed as Hindi Teacher under CSS scheme which was created vide Govt. letter No. EPG.567/91/106 dated 16-11-1991 and the post is personal one. The petitioner was appointed by the DEEO, Tinsukia dead vacant post (Personal post) which is irregular one.

Md. Monajir Ali was allowed to draw salary in non plan vacant post in same school vice Smti Chaya Rani Chakraborty, Retired Talap Bali bazaar Sishu M.E. School in pursuance of the Director, Elementary Education, Assam letter No. EAA.5/96/12 dated 17-09-1998.

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As per DEEO, Tinsukia's report the name of Monajir Ali was found in the selection list of Sub Divisional Selection Board, Tinsukia. The regular scale was allowed to the petitioner on 27-01-1999.

The Petitioner has received his salaries upto 28-01-2005 in the Dooomdooma Hindi M.E. School.

Md. Monajir Ali has been working in Dooomdooma Hindi M.E. School, dishonored his pay bill by Treasury Officer, Tinsukia due to non-approved of his adjustment from the Department of Finance for which is salary was stopped. Then the DEEO, Tinsukia withdraw the permanent post and returned back to original school at Talap Balibazar Sishu M.E. School on 30-11-2004. From June 2005, Md. Monajir Ali did not receive his salary due to lack of retention. Since the post originally hold by Md. Monajir Ali was personal post, hence though the DEEO, Tinsukia has submitted retention proposal in the name of Md. Monajir Ali, the retention was not received. On 03-11-2010, DEEO, Tinsukia, again submitted a proposal to regularize his post in SIU format. But result is not yet received.

As per Director, Elementary Education, for regularize the service of Md. Monajir Ali and for payment of salary w.e.f. 01-03-2005, Govt. may sanction a supernumerary post.

After thorough verification and deliberation, the Committee has recommended that the post in which the petitioner was appointed was a personal post. So the appointment of the petitioner is illegal and hence the claim of the petitioner is rejected.

6. A reading of the conclusion arrived at by the Expert Committee would, amongst others, show that the name of the petitioner was found in the select list of the Sub Divisional Selection Board, Tinsukia and that the regular scale of pay was allowed to the petitioner on 27.01.1999. But at the same time, the Committee also took note of the attending facts and circumstances as indicated above that initially the petitioner was appointed against a post earlier held by Sumesh Kumar Mishra, thereafter, he was allowed to draw his salary from Page No.# 5/6

another school namely Talap Balibazar Sishu ME School which was subsequently withdrawn. The Committee also took note that there is a proposal of the District Elementary Education Officer, Tinsukia dated 03.11.2011 to regularize the service of the petitioner in SIU format but no final decision was taken thereof.

7. In the circumstance, the Committee had given its recommendation that as the petitioner was appointed against a personal post, therefore, the appointment of the petitioner is illegal and his claim for salary cannot be entertained.

8. As indicated above, although the Committee had taken note that the name of the petitioner was found in the select list of Sub Divisional Selection Board, Tinsukia and a regular scale of pay was allowed to him on 27.09.1999, the Expert Committee had totally ignored the said relevant facts which arriving at its conclusion that the petitioner is not entitled to salary and allowances. If a person had participated in a regular selection process and had been selected in such process, there was an inherent legal right that the person concerned would be appointed against a valid vacant sanctioned post and not against a post which will be uncertain in nature.

9. If the petitioner was appointed against the post which was not a valid vacant sanctioned post even after being duly selected, it is the laches on the part of the respondent authorities in appointing the petitioner against such post and such laches on the part of the respondents cannot be a reason to now term the appointment of the petitioner to be an illegal appointment.

10. We are expressing the said view on the basis of the concluded facts recorded in the view of the Expert Committee that the name of the petitioner was found in the select list of Sub Divisional Selection Board, Tinsukia and he was allowed the regular scale of pay from 27.09.1999. In the circumstance, we remand the matter back to the Director of Elementary Education, Assam to examine the records and if the records reveal that the petitioner was duly selected by the Sub Divisional Selection Board, Tinsukia and that he was allowed the regular scale of pay from 27.09.1999, the Director to pass appropriate order to give a posting to the petitioner against a valid vacant sanctioned post, an act which ought to have been done on the very inception itself. On the other hand, if the Director from the records finds Page No.# 6/6

that the petitioner is not duly selected, appropriate order be passed.

11. The reasoned order be passed by the Director within a period of two months from the date of receipt of certified copy of this order.

12. In arriving at the conclusion, the Director may also give a personal hearing to the petitioner so that to enable the petitioner to produce any other relevant materials to support his claim and for the purpose, the Director to inform the petitioner the date and time of the hearing.

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

JUDGE

Comparing Assistant