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2022 Latest Caselaw 1691 Gua

                                                                   Page No.# 1/8

GAHC010054122018




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

                        Case No. : Cont.Cas(C)/124/2018

         GOPAL CH. BARUAH AND 16 ORS.
         VILL. GHUGUHA, P.S. DHEMAJI, P.O. GHUGUHA, DIST. DHEMAJI (ASSAM),
         PIN-787057

         2: GANESH BOR GOHAIN
          S/O. LT. NILAMANI BOR GOHAIN
         VILL. GOHAINGAON
          P.S. DHEMAJI
          P.O. GOHAIN GAON
          DISTRICT- DHEMAJI (ASSAM)
          PIN-787057

         3: DHARMA KANTA MAHANTA
          S/O. LT. DANDESWAR MAHANTA
         VILL. SISIBORGAON
          P.S. SILAPATHAR
          P.O. SISIBORGAON
          DIST. DHEMAJI (ASSAM)
          PIN-787057

         4: GIRIN CH. PEGU
          S/O. LT. MAHESHWAR PEGU
         VILL. LAKHIPATHAR
          P.S. DHEMAJI
          P.O.LAKHIPATHAR
          DIST. DHEMAJI (ASSAM)
          PIN-787057

         5: GHUNUSA DEVI
         W/O. SRI DULAL BHATTA
         VILL. MORIDHOL
          P.S. DHEMAJI
          P.O. MORIDHOL
          DIST. DHEMAJI (ASSAM)
                                   Page No.# 2/8

PIN-787057

6: RAJUMANI BARUAH
VILL. LAKHTOKIA MOWROTHAN
 P.S. DHEMAJI
 P.O. NARUATHAN
 DIST. DHEMAJI (ASSAM)
 PIN-787057

7: PRATAP CHANDRA DUTTA
 S/O. LT. MULARAM DUTTA
VILL. MATIKHULA
 P.S. DHEMAJI
 P.O. MATIKHULA
 DIST. DHEMAJI (ASSAM)
 PIN-787057

8: MULARAM CHUTIA
 S/O. MONTAN CHUTIA
VILL- KHANJIA CHAPORI
 P.O. LOGUWAPARA
 DIST. LAKHIMPUR (ASSAM)
 PIN-787057

9: PUSPA LATA GOGOI
 D/O. SRI SODA GOGOI
VILL. DEOGHARIA
 P.S. DHEMAJI
 P.O. BANGENAGHARAH
 DIST. DHEMAJI (ASSAM)
 PIN-787058

10: NIRALA GOGOI
 D/O. LT. P GOGOI
VILL. BHEPARA
 P.S. DHEMAJI
 P.O. AND DIST. DHEMAJI (ASSAM)
 PIN-787057

11: PADMAWATI CHUTIA
 D/O. LT. THANESWAR CHUTIA
VILL. SATULACHUK
 P.S. SILAPATHAR
 P.O. SISIBORGAON
 DIST. DHEMAJI (ASSAM)
 PIN-787057

12: INDUMOTI DUTTA
                              Page No.# 3/8

W/O. SRI B SAIKIA
R/O. WARD NO. 4
DHEMAJI TOWN
P.O. AND P.S. DHEMAJI
DIST. DHEMAJI (ASSAM)
PIN-787057

13: SISIMAI DAS
W/O. SRI GOPAL CHANDRA DAS
VILL. LAKHTOKIA
 P.S. DHEMAJI
 P.O. LAKHIPATHAR
 DIST. DHEMAJI (ASSAM)
 PIN-787057

14: PURNIMA DIHINGIA
 D/O. SRI BHABA CHUTIA
VILL. NIMATI CHOWK
 P.S. DHEMAJI
 P.O.GOHAINGAON
 DIST. DHEMAJI (ASSAM)
 PIN-787057

15: KAUSHALYA KONWAR
 D/O. LT. NANDESWAR KONWAR
VILL. AND P.O. GOHAIN GAON
 P.S. DHEMAJI
 DIST. DHEMAJI (ASSAM)
 PIN-787057

16: DHANADA BORGOHAIN
 D/O. LT. K. BOR GOHAIN
VILL. GOHAINGAON
 P.O. GOHAIN GAON
 P.S. DHEMAJI
 DIST. DHEMAJI (ASSAM)
 PIN-787057

17: PREMADHAR GOGOI
 S/O. LT. HALIRAM GOGOI
VILL. HARCHARA
 P.S. DHEMAJI
 P.O. HAHCHARA
 DIST. DHEMAJI (ASSAM)
 PIN-78705

VERSUS
                                                                        Page No.# 4/8

            PRITAM SAIKIA AND ANR.
            COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
            ELEMENTARY EDUCATION DEPARTMENT, DISPUR, GUWAHATI-6.

            2:SANJIB KR. BHUYAN
            THE DIRECTOR OF ELEMENTARY EDUCATION
            ASSAM
             KAHILIPARA
             GUWAHATI-1

Advocate for the Petitioner   : MR. U K NAIR

Advocate for the Respondent : MR. D SAIKIA




                            BEFORE
       HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

                                         ORDER

19.05.2022

Heard Mr. UK Nair, learned senior counsel for the petitioners. Also heard Mr. R Majumdar, learned counsel for the respondents in the Elementary Education Department, Government of Assam.

2. Cont.Cas(C)No.124/2018 has been instituted alleging wilful and deliberate violation of the order dated 17.02.2017 in WP(C)No.3286/2014.

3. The facts leading to the WP(C)No.3286/2014 has a checkered history to the extent that the petitioners were participating in the selection process sometime in the year 1987. An issue had arisen as to whether the petitioners being un- trained teachers can also participate in the selection process. The said issue raised by the petitioners resulted in Civil Rule No.212/1987 which was given a Page No.# 5/8

consideration by the judgment and order dated 25.04.1988. In paragraph 3 of the said judgment, it has been provided that on an agreement of all the parties percentage-wise division mentioned in the letter before the Court has to be read along with Rule 3(iii) of the Assam Elementary Education (Provincialisation) Rules 1977 and that preference should be given to candidates trained in Senior Basic, Normal and Junior Basic Training Courses. It was further provided that in dealing with the matter, the respondent authorities to also take note of Rule 12 of the said Rules which provides for some relaxation and further that even untrained teachers were not altogether debarred from being appointed. The judgment and order required that the cases of the petitioners should be considered in the light of what was observed in the said judgment.Non- compliance led to Civil Original Pet.(Contempt)No.105/1988 wherein an order dated 29.08.1989 was passed requiring the authorities to comply with the earlier judgment dated 25.04.1988 meaning thereby to consider the claim of the petitioners that even untrained teachers would not be debarred from getting appointment and further that the authorities may look into the requirement of relaxing some provisions of the law. There was no material to show that the petitioners were accordingly considered and that they had participated in some legitimate selection process and pursuant to which they were selected and thereafter appointed.

4. In the circumstance, a communication dated 03.10.1989 was made by the Deputy Secretary to the Government of Assam in the Education Department requiring the Director of Elementary Education Assam to comply with the judgment and order dated 25.04.1988 which has already been referred hereinabove. After that stage, there appears an order of appointment dated Page No.# 6/8

16.12.1989 passed by the Deputy Inspector of Schools, Dhemaji whereby one of the petitioners was appointed as Assistant Teacher in No.2 Lakhtokia Primary School in the pay scale of Rs.470-12-530-EB 12-590-EB-15-680-20-800/- per month against a vacant post which had fallen vacant on the demise of the earlier teacher. Similar orders in respect of the other petitioners are also available. The said orders of appointment is the basis for claiming a right by the petitioners to receive their salary and allowances. It is submitted that the earlier order dated 29.08.1989 is an interim order and the contempt petition being Civil Original Pet.(Contempt)No.105/1988 was given a final consideration by the order dated 18.06.1990 whereby the order of appointment indicated above was taken note of and the petitioners were directed to be paid their salaries. It appears that the petitioners had received their salaries up to August 2007 and thereafter for non-payment of salaries the petitioners had instituted WP(C)No.5085/2008 wherein an order was passed that in view of the clear and categorical stand of the official respondents that the services of the petitioners were not terminated, a direction was issued that the petitioners would provide before the Director of Elementary Education Assam certified copies of the orders of the Court, if any, pursuant to which they claim to have been appointed to the posts. It is stated that the said exercise required to have been undertaken as per the order in WP(C)No.5085/2008 had not been undertaken, inasmuch as, the petitioners could not produce the relevant documents which would support their claim of appointment. In the circumstance, the claim of the petitioners stood rejected.

5. Accordingly, WP(C)No.3286/2014 was instituted by the petitioners which was given a final consideration by the order dated 17.02.2017. In the order Page No.# 7/8

dated 17.02.2017 in paragraph 17 thereof, the Court came to the conclusion that the petitioners were appointed in the year 1989 and they have been rendering their services for more than 28 years and they were paid salary up to July 2007 i.e. for a period of 18 years and further the continuance in service by the petitioners is not disputed and that it was the admitted stand of the respondents that no termination order was issued to the petitioners. In the circumstance, there was a direction to release the arrear salary to the petitioners from August 2007 onwards, alleging non-compliance of which the present contempt petition is instituted.

6. Mr. R Majumdar, learned counsel for the Elementary Education Department has raised an issue that although in paragraph 17, a conclusion was arrived that the petitioners were appointed in the year 1989 and their continuance in service is not disputed, but in view of the earlier order of the Court which had been referred above, the legitimacy of the entry into services of the petitioners still remains an open question and any allegation of willful and deliberate violations of the order dated 17.02.2017 in WP(C)No.3286/2014 would have to be looked into from the said perspective. If the legitimacy of the appointment of the petitioners is yet to be established, it is the contention of Mr. R Majumdar that the mere presence of the petitioners in the Institute may not under the law can be construed to be a continuance in service, inasmuch as the very concept of service itself presupposes an existence of a legitimate entry into service, so as to enable a person to claim that the person is in service.

7. Mr. R Majumdar, learned counsel states that in the meantime, the officials of the Education Department have changed, therefore, the presence of the Page No.# 8/8

present incumbents may also be necessary. If it is so advised, the present incumbents are at liberty to appear before this Court to render their assistance.

8. Mr. Majumdar prays for an adjournment to produce the relevant materials.

9. It has further been brought to the notice of the Court that the order dated 25.08.1992 of the Deputy Inspector of School Dhemaji which is available as Annexure-8(series) page 83 to WP(C)No.3286/2014 provides that pursuant to a letter dated 07.07.1992 of the Director of Elementary Education Assam the services of the petitioners were regularised on the strength of the judgment of this Court dated 18.06.1990. The respondents to produce the letter dated 07.07.1992 of the Director of Elementary Education Assam, if available, as well as the judgment of this Court dated 18.06.1990 which is alleged to have been acted upon.

10. List for further hearing on 14.06.2022.

JUDGE

Comparing Assistant