Bimalendu Das vs Page No.# 5/13
2025 Latest Caselaw 4914 Gua

Gauhati High Court

Bimalendu Das vs Page No.# 5/13 on 22 May, 2025

                                                                  Page No.# 1/13

GAHC010034212024




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

                          Case No. : WA/190/2024

               1. BIMALENDU DAS
               S/O LATE BIBHU KR. DAS, R/O BANAMALI ROAD,
               WARD NO 4, NEAR P.H. SCHOOL FIELD,
               P.O- KARIMGANJ, DIST- KARIMGANJ,
               ASSAM, PIN-788710.

               2: UTTAM ROY CHOUDHURY
                S/O LATE RAMESH ROY CHOUDHURY
                R/O BROJENDRA ROAD
                P.O.-KARIMGANJ
                DIST-KARIMGANJ
                PIN-788710

               3: FAZLUR RAHMAN AHMED
                S/O LATE MD. ANU MIA
                R/O VILL- DHIT-BOTARASHI
                P.O.-TILLABAZAR
                P.S.-KARIMGANJ
                DIST- KARIMGANJ
                PIN-788709

               4: SMTI RITA DHAR
               W/O ANIRUDHA SWAMI
                R/O STIMARGHAT ROAD
                P.O.-KARIMGANJ
                DIST-KARIMGANJ
                PIN-788710

               5: BIPRAJIT DAS GUPTA
                S/O LATE BIJOY KRISHNA DAS GUPTA
                R/O LONGAI ROAD
                P.O.-KARIMGANJ
                DIST-KARIMGANJ
                PIN-788710
                                      Page No.# 2/13


6: SMTI. NANDITA NATH
 D/O CHUMILAL NATH
 R/O SILCHAR ROAD
 P.O.-SARISHA
 DIST-KARIMGANJ
 PIN-788710

7: AYESHA CHOUDHURY
 D/O LATE MATAHIN ALI CHOUDHURY
 R/O 770 INATPUR
 P.S.-BANAMALI ROAD
WARD NO. 13
 P.O.-KARIMGANJ
 DIST-KARIMGANJ
 PIN-788710

8: PARITOSH ROY
 S/O LATE UMESH CH. ROY
 R/O FANIRBORID
 P.O.-DULARACHERRA
 DIST- KARIMGANJ
 PIN-788737

9: SWAPAN KUMAR DAS
 S/O LATE ATUL CH. DAS
 R/O GURAMARA
 P.O.-KARIMGANJ
 PIN-788720

10: NAZIR AHMED
 S/O LATE ABUL HUSSAIN
 R/O 1326 NO. GANGPAR L.P. SCHOOL
VILL-GANGPAR
 P.O.-JAGANNATHI
 DIST-KARIMGANJ
 PIN-788709

11: DEBAJANI DAS PURKAYASTHA
 D/O LATE ASHUTOSH DAS PURKAYASTHA
 R/O ROMANI ROAD 1
 NEAR BABYLAND SCHOOL
 P.O.-KARIMGANJ
 DIST-KARIMGANJ
 PIN-788710

12: SUPIYA BEGOM
W/O ABDUL KALAM
                                    Page No.# 3/13

R/O AZAD SAGAR ROAD
P.O.-SETTLEMENT ROAD
DIST- KARIMGANJ
PIN-788710

13: NOZMUL ISLAM CHOUDHURY
 S/O LATE MOINUL ISLAM CHOUDHURY
 R/O VILL- BATARASHI
 P.O.-TILLABAZAR
 DIST- KARIMGANJ
 PIN-788710

14: NAZRUL HUDA CHOWDHURY
 S/O LATE IRSHAD AHMED CHOUDHURY
 R/O VILL-MALUA
 P.O.-MALUA
 P.S.-BADARPUR
 DIST-KARIMGANJ
 PIN-788806

15: KAMUA ROBIDAS
 S/O LATE GIBENDA ROBIDAS
 R/O BIPINLAL ROAD
 P.O.-KARIMGANJ
 DIST-KARIMGANJ
 PIN-788710

16: ABDUL HANNAN
 S/O LATE ENUS ALI
 R/O VILL-BOTARASHI
 P.O.-TILLABAZAR
 DIST-KARIMGANJ
 PIN-788709

17: AMIYA KANTI DAS
 S/O LATE AMARENDRA KUMAR DAS
 R/O VILL- MARLY
 P.O.-BHANGABAZAR
 DIST- KARIMGANJ
 PIN-788701

18: MD. AMON UDDIN
 S/O LATE ABDUL KHALIQUE
 R/O VILL-RASULPUR
 P.O.-BHANGABAZAR
 DIST-KARIMGANJ
 PIN-788701
                                                     Page No.# 4/13

19: CHIRADIP ROY PODDAR
 S/O LATE GOGESH CH. ROY PODDAR
 R/O LAKHICHARAN ROAD
 P.O.-KARIMGANJ
 DIST- KARIMGANJ
 PIN-788710

20: AKADDAS ALI
 S/O LATE H.M. ALI
 P.O.-BRAHMAN SHASAN
VILL-BRAHMAN SHASAN
 DIST-KARIMGANJ
 PIN-788722

21: FAKRUL ISLAM CHOUDHURY
 S/O LATE HELAL UDDIN CHOUDHURY
 R/O VILL- BATARASHI
 P.O.-TILLABAZAR
 DIST- KARIMGANJ
 PIN-788709

22: SHILPI DUTTA
 C/O HANNA DUTTA
 R/O R.C. DAS ROAD
 P.O.-KARIMGANJ
 DIST-KARIMGANJ
 PIN-788710

23: SUBENDU DHAR CHOUDHURY
 S/O LATE MANABINDRA CHOUDHURY
 R/O NOVAPALLI LANE
 LONGAI ROAD
 P.O.-KARIMGANJ
 DIST- KARIMGANJ
 PIN-788712

24: ABDUL KAYUM
 S/O LATE NOOR MUHAMMAD
 R/O VILL- PATHU
 P.O.-PATHU
 DIST- KARIMGANJ
 PIN-788781

                                  .......Appellants

     VERSUS
                                                   Page No.# 5/13

1. THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECRETARY
TO THE GOVT. OF ASSAM,
ELEMENTARY EDUCATION DEPARTMENT, DISPUR, GUWAHATI-
781006.

2:THE DIRECTOR TO THE GOVERNMENT OF ASSAM
 ELEMENTARY EDUCATION DEPARTMENT
 KAHILIPARA
 GUWAHATI-781019

3:THE DEPUTY INSPECTOR OF SCHOOLS
 KARIMGANJ DISTRICT CIRCLE
 KARIMGANJ
ASSAM, PIN-788710

                                ......Respondents

Linked Case : WA/131/2024

1.BISWAJIT SHARMA S/O LATE BIBEKANANDA SARMA R/O VILL.- BAZARGHAT P.O.- BAZARGHAT DIST.- KARIMGANJ ASSAM PIN- 788733.

2: SOMA DEY D/O LATE JITENDRA CHANDRA DEY R/O SILCHAR ROAD (SARISHA) P.O.- KARIMGANJ DIST.- KARIMGANJ ASSAM PIN- 788710.

3: FARUQUE UDDIN S/O LATE ABDUL HAKIM R/O VILL- DASGRAM P.O.-DASGRAM DIST.- KARIMGANJ ASSAM PIN- 788781.

4: RAYHANA BEGUM CHOUDHURY W/O LATE BADRUL ISLAM CHOUDHURY VILL.- LATU P.O.- LATU Page No.# 6/13

DIST.- KARIMGANJ ASSAM PIN- 788781.

....Appellants

VERSUS

1. THE STATE OF ASSAM REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM ELEMENTARY EDUCATION DEPARTMENT DISPUR GUWAHATI- 781006.

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

3:THE DEPUTY INSPECTOR OF SCHOOLS KARIMGANJ DISTRICT CIRCLE KARIMGANJ ASSAM PIN- 788710.

....Respondents

BEFORE-

HON'BLE THE CHIEF JUSTICE MR. VIJAY BISHNOI HON'BLE MR. JUSTICE N. UNNI KRISHNAN NAIR

For the appellants : Mr. K.K. Mahanta, Sr. Advocate Assisted by Mr. K. Singha, Avocate

Mr. A.B.T. Haque, Advocate

For the respondents : Mr. R. Mazumdar, Standing Counsel, Education Deptt.

                                                                             Page No.# 7/13

             Date of hearing          : 06.05.2025
             Date of Judgment          : 22.05.2025


                                JUDGMENT & ORDER (CAV)

(Vijay Bishnoi, C.J.)

1. These two writ appeals are preferred by the appellants challenging the order dated 16.08.2023 passed by the learned Single Judge in WP(C) 1032/2022, whereby the learned Single Judge dismissed the writ petition filed on behalf of the twenty eight appellants in these two writ appeals while observing that the writ petition was devoid of merit.

2. The appellants approached the Writ Court by way of filing the above- referred writ petition praying for the following relief:

"In the premises aforesaid, it is therefore respectfully prayed that Your Lordships may be pleased to admit this application, call for the records and issue a Rule calling upon the Respondents to show cause as to why a writ in the nature of:

i) Mandamus shall not be issued directing the respondents to grant pension and other retrial benefits to the petitioners in accordance with the provisions of the Assam (Services) Pension Rules, 1969 by fixing the date of appointment of the petitioners as Assistant Teachers in different Lower Primary Schools as 20.11.1999, and

ii) Mandamus shall not be issued directing the respondents to forthwith place the petitioners under the scheme of the Assam Service (Pension) Rules, 1969, and

iii) Mandamus shall not be issued directing the respondents to forthwith consider the representations dated 13.05.2014 and 05.02.2015 submitted by the petitioners, and Upon cause(s) shown and after perusing the records and hearing the parties, Your Lordships may be pleased to make the Rule absolute and/or be pleased to pass such further or other order(s) as Your Lordships may deem fit and proper."

Page No.# 8/13

3. The brief and relevant facts necessary for adjudication of these writ appeals are that the Director of Elementary Education, Assam published an employment notice on 28.12.1996 for filling up about 7500 vacant posts of Assistant Teachers in provincialised MV/ME/ME Madrassa/Senior Basic/Junior basic and Junior L.P. School in different districts of Assam. Pursuant to the above-referred employment notice, the appellants participated in the recruitment process in the erstwhile Karimganj district (now Sribhumi) concluded in the year 1999. As per the appointment orders issued to the appellants, on their successful completion of basic training, they would be given regular Time Scale of Pay as prescribed in the Revision of Pay Rules, 1990 and other allowances as admissible under the Rules from the date of announcement of result with the rider that if they could not succeed in the final examination, they would be allowed to appear in the next final examination as a private candidate for which no T.A./D.A. would be paid indicating further that if they could not come out successful in the second chance, their services would be terminated within one month from the date of announcement of the result and for the same, no claim/appeal would be entertained. A further condition was also mentioned in the said appointment order that their appointments were subject to satisfactory police verification and subject to the result of the litigations pending in the Hon'ble Supreme Court of India and the Gauhati High Court.

4. A controversy arose regarding declaration of the result in respect of the recruitment on the post of Assistant Teachers in Karimganj district pursuant to the employment notice dated 28.12.1996 in which allegation was levelled that another select list dated 13.11.1999 had been fraudulently published containing the names of 72 persons and from the said fraudulent list several persons were Page No.# 9/13

appointed against the posts which the appellants were holding in the district of Karimganj and on account of the same, their salaries were not paid. In respect of the said controversy, the appellants approached this Court by filing different writ petitions with the prayer to issue direction to the respondent authorities to pay their regular monthly salary. During the pendency of those writ petitions, an enquiry was conducted by the Deputy Commissioner, Karimgnaj in respect of the select list prepared pursuant to the selection process.

5. Considering the facts and circumstances in those writ petitions, a Single Bench of this Court closed the said writ petitions by passing a common order dated 02.11.2006 with certain observations. The said order passed by the Single Bench of this Court dated 02.11.2006 was challenged by way of filing several writ appeals, details of which have already been mentioned in the impugned judgment and order, and all those writ appeals came to be disposed of by the Division Bench of this Court by separate orders.

6. It appears that thereafter the Division Bench of this Court also disposed of WA No.86/2008 vide order dated 24.03.2008 while issuing certain directions to the State respondents. Pursuant to the said direction, the State Government in the Elementary Education Department by order dated 19.08.2009 directed the Director of Elementary Education, Assam to appoint the persons from the select list prepared in the meeting of the Sub-Divisional Level Selection Board, Karimganj held on 27.10.1999 and pursuant to that order, the Director of Elementary Education, Assam by order dated 22.12.2009 appointed the appellants against the vacant Non-Plan posts as Assistant Teachers in Lower Primary Schools and posted them in the schools shown against their names in the fixed pay of Rs.1800/- per month under the Deputy Inspector of Schools, Karimganj w.e.f. the date of their joining as per the select list prepared in the Page No.# 10/13

meeting of Sub-Divisional Level Selection Board, Karimganj held on 27.10.1999.

7. It is to be noticed that as per the appointment orders issued in favour of the appellants on 22.12.2009, the appellants were required to undergo Junior Basic Training in due course and in case they failed to succeed in the final examination, they would be allowed to appear in the final examination as a second chance as a private candidate for which no T.A./D.A. would be paid and if they could not come out successful in the second chance, their services would be terminated as per existing Rules. It was further clarified that after successful completion of junior basic training, they would get the Time Scale of Pay as per existing Rules.

8. It is important to know that as per the appointment orders issued in favour of the appellants on 22.12.2009, the appellants were required to furnish individually an undertaking along with their joining report that they are entitled for pensionary benefits under the New Pension Rules only, with specific observation that any order of appointment and adjustment made earlier against the selection of L.P. School Teachers dated 27.10.1999 under the Deputy Inspector of Schools, Karimganj had been treated as cancelled in compliance with the direction of the Division Bench of this Court passed in WA No.86/2008 decided on 24.03.2008. The appellants along with other persons accepted their appointment orders dated 22.12.2009 and also submitted their respective joining report along with the undertaking as required.

9. The learned Single Judge after taking into consideration the entire facts and circumstances of the case, has refused to grant any relief to the appellants. The operative portion of the impugned order passed by the learned Single Judge is reproduced hereunder:

Page No.# 11/13

19) It is seen by this Court that in compliance of the orders of the Court dated 24.03.2008 passed in WA No. 86/2008, dated 15.02.2008 in WA No. 418/2007, dated 29.01.2007 in WA No. 9/2007 and dated 28.03.2007 in WA No.111/2007 No. ELC/WA 86/2008/ 107/71 dated 19.08.2009, the State Government in the Elementary Education Department passed the Order No. ELC/WA 86/2008/107/71 dated 19.08.2009 (Annexure-G, pages - 68 & 69 to this petition). Following the said order dated 19.08.2009 of the State Government in the Elementary Education Department, the Director of Elementary Education, Assam by orders dated 22.12.2009 issued under Nos.

EHA(B).57/08/93 and EHA(B).57/08/97 appointed the petitioners against the vacant Non Plan posts as Assistant Teachers in Lower Primary Schools and posted them in the Schools shown against their names in the fixed pay of Rs. 1800/- per month under the Deputy Inspector of Schools, Karimganj w.e.f., the date of their joining as per the select list prepared in the meeting of the Sub- Divisional Level Selection Board, Karimganj, held on 27.10.1999 (Annexure-I, pages - 77 to 80 and 81 to 83 to this petition). The petitioners accepted their those appointment orders dated 22.12.2009 issued by the DEE, Assam submitted their joining reports as well as self declarations as per said appointment orders dated 22.12.2009.

20) The Court noticed that the Director of Elementary Education, Assam in those order Nos. EHA(B).57/08/93 and EHA(B).57/08/97 both dated 22.12.2009 (Annexure-I to this petition), whereby, the petitioners were appointed against the vacant Non Plan posts as Assistant Teachers in Lower Primary Schools and posted them under the Deputy Inspector of Schools, Karimganj, specifically provided and intimated that ― any order of appointment and adjustment made earlier against the selection of L.P. School Teachers dated 27.10.1999 under the Deputy Inspector of Schools, Karimganj have been treated as cancelled in compliance with the direction of the Hon'ble High Court order dated 24.03.2008, passed in WA No. 86/2008.

21) While accepting their appointment orders dated 22.12.2009 issued by the DEE, Assam vide order Nos. EHA(B).57/08/93 and EHA(B).57/08/97 (Annexure-I to this petition), the petitioners have also accepted the said specific observation of the DEE, Assam dated 22.12.2009 regarding their appointment and adjustment made earlier against the selection of L. P. School Teachers dated 27.10.1999 under the Deputy Inspector of Schools, Karimganj treating them as cancelled.

22) Petitioners, since 22.12.2009 till date, did not object the said specific observation of the DEE, Assam and by efflux of time, the said observation of the DEE, Assam specifically mentioned in the last paragraph of the Orders under Nos. EHA(B).57/08/93 and EHA(B).57/08/97, both dated 22.12.2009 have become final and absolute.

23) As such, this Court is of the view that at this belated stage, the claim of Page No.# 12/13

the petitioners, as prayed for in this writ petition is not sustainable in law.

24) Accordingly, this writ petition being devoid of merit, stands dismissed.

10. Mr. K.K. Mahanta, learned senior counsel appearing on behalf of the appellants has frankly admitted that since the appellants accepted their appointment orders dated 22.12.2009 with all the conditions mentioned therein, no error can be found in the impugned order passed by the learned Single Judge whereby the learned Single Judge has refused to grant any relief to the appellants on the ground that once they accepted their appointment orders in the year 2009 itself, it is not open for them to challenge the same at a belated stage when the said appointment orders have become final and absolute.

11. However, Mr. Mahanta has submitted that in a meeting held on 15.03.2024 between the Hon'ble Chief Minister of Assam and Sadou Assam Karmachari Parishad, the Government of Assam has agreed to consider the issue regarding extension of the benefit of Old Pension Scheme to those employees, who joined the Government Service after January, 2005 but the recruitment process for the concerned posts was started prior to January, 2005. The learned senior counsel for the appellants has submitted that in view of the said decision taken by the Government of Assam in the above-referred meeting, these writ appeals may kindly be disposed of awaiting the decision of the State Government on this issue. It is further submitted that appellants be granted liberty to approach this Court by way of availing appropriate remedy in case they fail to get any favourable order from the State Government regarding extension of benefit of the Old Pension Scheme to them.

Mr. Mahanta has also placed reliance on the order dated 26.07.2024 passed by the Division Bench of this Court in WA 188/2023 whereby this Court Page No.# 13/13

has disposed of the appeal preferred on behalf of some of the employees awaiting the decision of the State Government on the issue of extension of benefit of Old Pension Scheme to the employees who have joined the Government Service after January, 2005 while granting them liberty to approach this Court again in case they fail to get any favourable decision from the State Government.

12. We have considered the said submission of the learned senior counsel for the appellants but we are not inclined to accept the said submission only for the reason that though in the cases of the appellants, the recruitment process was started prior to January, 2005, the said recruitment process was cancelled when the appellants were provided appointment on the post of Assistant Teacher against vacant Non-Plan posts vide order dated 22.12.2009. Once the recruitment process was cancelled and the appellants were provided fresh appointments on the post of Assistant Teachers in Lower Primary School against vacant Non-Plan Posts, they cannot claim any benefit on the ground that the recruitment process in their case was started prior to January, 2005.

13. In view of the above discussion, we do not find any merit in these appeals and the same are, therefore, dismissed.

                  JUDGE                                    CHIEF JUSTICE



Comparing Assistant