Page No.# 1/7 vs The State Of Assam And 5 Ors
2023 Latest Caselaw 4616 Gua

                                                          Page No.# 1/7

GAHC010253182023




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

                             Case No. : WP(C)/6526/2023

         NIHAR RANJAN RAY AND 11 ORS.
         SON OF SRI BHUPEN RAY,
         VILL. CHOITAKI, P.O.- DEOHATI,
         P.S.- ABHAYAPURI,
         DIST.- BONGAIGAON, ASSAM,
         PIN- 783384.

         2: MAINUL HOQUE
          SON OF LT. MOHIJUDDIN SHEIKH

         VILLAGE- RAGHUNANDANPUR

         P.O.- BOITAMARI
          P.S.- ABHAYAPURI

         DIST.- BONGAIGAON
         ASSAM

         PIN- 783389.

         3: BHADRESWAR ADHIKARY
          SON OF LT. JADAV CH. ADHIKARY

         VILL- BECHIMARI

         P.O.- BOITAMARI
          P.S.- ABHAYAPURI

         DIST.- BONGAIGAON
         ASSAM

         PIN- 783389.

         4: ABU BAKKER SIDDIQUE MONDOL
                               Page No.# 2/7

SON OF EAKUB ALI MONDOL

VILL.- DHONTOLA
P.O.- DHONTOLA BAZAR

DIST.- BONGAIGAON
ASSAM

PIN- 783372.

5: RAZIA KHATUN
 D/O- ABU NASIR AHMED

VILL- NANKARGAON

P.O.- DHONTOLA BAZAR

DIST.- BONGAIGAON
ASSAM

PIN- 783372.

6: HIMMAT SING ADHIKARY
 S/O- LT. KAMESWAR ADHIKARY

VILL.- PANCHGAON

P.O.- DHONTOLA BAZAR

DIST.- BONGAIGAON
ASSAM

PIN- 783372.

7: ABDUL KHALEQUE
 SON OF LT. NAYEB ALI

VILL.- CHATPARA (CHAR)

P.O. AND P.S.- JOGIGHOPA

DIST.- BONGAIGAON
ASSAM

PIN- 783372.

8: DHIREN CHANDRA RAY
 SON OF LT. BAHADUR CH. RAY
                              Page No.# 3/7


VILL- AMTOLA
P.O. NORTH SALMARA

DIST.- BONGAIGAON
ASSAM

PIN- 783383.

9: NURUDDIN AHMED
 SON OF LT. UMOTULLAH SK.

VILL.- OUDUBI
P.O.- KHELUAPARA

P.S.- JOGIGHOPA

DIST.- BONGAIGAON
ASSAM

PIN- 783371.

10: JAHAR ALI
 SON OF LT. JURAN ALI

VILL.- OUDUBI

P.O.- KHELUAPARA
 P.S.- JOGIGHOPA

DIST.- BONGAIGAON
ASSAM

PIN- 783371.

11: NUR MEHERUN NESSA
 W/O- ABED ALI

VILL- ISWARJHARI
P.O.- MAJERALGA

DIST.- BONGAIGAON
ASSAM

PIN- 783388.

12: TULASHI DEVI
 D/O- NIRENDRA NARAYAN DEV
                                                                    Page No.# 4/7


            VILL- JOLAKHATA
            P.O.- DHONTOLA BAZAR

            DIST.- BONGAIGAON
            ASSAM

            PIN- 783372

            VERSUS

            THE STATE OF ASSAM AND 5 ORS.
            REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF ASSAM,
            DEPARTMENT OF SCHOOL EDUCATION,
            DISPUR, GUWAHATI- 781006.

            2:THE DIRECTOR OF ELEMENTARY EDUCATION
            ASSAM
             KAHILIPARA
             GUWAHATI- 781019.

            3:THE DEPUTY INSPECTOR OF SCHOOLS
             BONGAIGAON
             DIST. - BONGAIGAON
            ASSAM
             PIN- 783380.

            4:THE DISTRICT ELEMENTARY EDUCATION OFFICER (DEEO)
             BONGAIGAON
             DIST.- BONGAIGAON
            ASSAM
             PIN- 783380.

            5:THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF ASSAM
             FINANCE DEPARTMENT
             DISPUR
             GUWAHATI- 781006.

            6:THE LEGAL REMEMBERANCER (LR) AND SECRETARY TO THE
            GOVERNMENT OF ASSAM
             JUDICIAL DEPARTMENT
             DISPUR
             GUWAHATI- 781006

Advocate for the Petitioner   : MR J ABEDIN

Advocate for the Respondent : SC, ELEM. EDU

Page No.# 5/7

BEFORE HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA

15.11.2023 Heard Mr. J. Abedin, learned counsel for the petitioners, who submits that the petitioners were initially appointed as Assistant Teachers in different upper primary schools, vide order dated 22.09.1994. However, as the payment of salary had been stopped, few of the petitioners along with others had approached this Court. The stand of the State Government in stopping the payment made to some of the teachers, was on the ground that the appointments were invalid, as they were found to be in excess and appointed against non-existent posts. Thereafter, on the basis of orders passed by this Court, the Government made a verification of appointment of the teachers and categorized three types of teachers; (i) teachers having the requisite educational training like Normal/D.El.Ed./B.Ed. etc. serving in non-existent posts or appointed in excess, (ii) teachers without having the requisite educational training of Normal/D.El.Ed./B.Ed. etc and (iii) teachers might/might not having the requisite educational training of Normal/D.El.Ed./B.Ed. etc but serving in non-existent posts in excess without there being any selection.

2. The petitioners belonged to the second category because they did not have the requisite educational training. It appears that on the basis of a Cabinet decision and on humanitarian ground, the petitioners were accommodated as Tutors in provincialised schools in terms of the Assam Education (Provincialisation of Services of Teachers and Re-organization of Educational Institutions) Act, 2017 (hereinafter referred to as '2017 Act'), vide order dated 30.01.2021.

Page No.# 6/7

3. The petitioners' case is that they could not have been accommodated as tutors in terms of the 2017 Act, but would have to be accommodated as teachers in terms of the Assam Elementary Education (Provincialisation) Rules, 1977 (hereinafter referred to as '1977 Rules'), as the petitioners were teachers since 1994. Thus, they should have been accommodated as Teachers in terms of the 1977 Rules.

4. A perusal of the writ petition shows that the petitioners had earlier approached this Court by way of a writ petition, being WP(C) 5128/2023, which was dismissed vide order dated 08.09.2023. Paragraph 22 of the order dated 08.09.2023 shows that the appointments of the petitioners as teachers in the year 1994 had been found to be invalid appointments, as they had been placed under the category of excess appointment and/or appointment against non- existent posts. Further, their appointments had been made in excess without any advertisement. In this respect, we have to keep in mind the judgment rendered by the Supreme Court in the case of State of Orissa and another vs. Mamata Mohanty, reported in (2011) 3 SCC 436, wherein the Supreme Court has held that the appointment in the absence of any advertisement is illegal, as it is violative of Articles 14 and 16 of the Constitution of India. Thus, keeping in view paragraph 22 of the order dated 08.09.2023 passed in WP(C) 5128/2023, it is clear that the petitioners cannot have any right in pursuance of their earlier appointments in the year 1994 as Assistant Teachers, as they had been appointed against non-existent posts. Further, this Court in WP(C) 5128/2023 had come to a finding that their appointments were invalid.

5. The issue raised by the petitioners is that they should be given the pay scale given to a teacher in terms of 1977 Rules and they should not be given the fixed pay of a tutor in terms of 2017 Act. The above stand of the petitioners Page No.# 7/7

would have to be clarified, inasmuch as, this Court in the order dated 08.09.2023 passed in WP(C) 5128/2023, has held that the appointment of the petitioners against non-existent posts made their appointments as Assistant Teachers invalid. Further, the same has attained its finality as no challenge to the said finding has been made by the petitioners as on date.

6. Issue notice to the respondents, returnable in four weeks.

Mr. N.J. Khataniar, learned Standing Counsel, Elementary Education Department, accepts notice on behalf of respondent Nos.1, 2, 3 and 4; Mr. P. Nayak, learned Standing Counsel, Finance Department, accepts notice on behalf of respondent No.5 and Mr. B. Deuri, learned counsel accepts notice on behalf of respondent No.6. Thus, service is complete in respect of all the respondents.

Extra copies of the writ petition be furnished to the learned counsel representing the respondents.

JUDGE

Comparing Assistant