Gauhati High Court

Page No.# 1/26 vs The State Of Assam And 2 Ors on 13 October, 2025

Page No.# 1/26

GAHC010032742023

2025:GAU-AS:13621

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

Case No. : WP(C)/935/2023

PARAMA BORA AND 3 ORS
S/O- LT. BOGA RAM BORA, A R/O- VILL AND P.O. PATIAPAM, P.S. KAMPUR,
DIST.- NAGAON, ASSAM

2: SHAHAB UDDIN AHMED
S/O- ABDUL KHALEQUE
A R/O- VILL- RAJA ALI
P.O. JURIRPAR DIST.- NAGAON
ASSAM

3: HEMANTA BARUAH
S/O- PROBIN BARUAH
A R/O- VILL- BATADRAVA
P.O. BATADRAVA
P.S. BATADRAVA DISTRICT
NAGAON
ASSAM

4: PURABI BORTHAKUR
W/O- BISHNU BHUYAN
A R/O- VILL- JAKHALABANDHA
P.O. JAKHALABANDHA
DIST.- NAGAON
ASSA

VERSUS

THE STATE OF ASSAM AND 2 ORS
TO BE REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM SCHOOL
EDUCATION DEPTT., DISPUR, GHY-6

2:THE DIRECTOR
SECONDARY EDUCATION
ASSAM
Page No.# 2/26

KAHILIPARA
GHY-19

3:THE INSPECTOR OF SCHOOLS
NAGAON DISTRICT CIRCLE
DISTRICT
NAGAON
ASSA

Advocate for the Petitioner : MR. A R BHUYAN, MR. S BANIK (P- 1 TO 3),MR N Z
CHOUDHURY

Advocate for the Respondent : SC, SEC. EDU.,

Linked Case : WP(C)/4110/2023

SABINA YEASMIN
DAUGHTER OF MD. IDRISH ALI

RESIDENT OF VILLAGE- GORIA KAWAIMARI

P.O.- BALIKOTIA

P.S.- JURIA
DISTRICT- NAGAON

ASSAM
PIN- 782122.

VERSUS

THE STATE OF ASSAM AND 6 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM

EDUCATION (SECONDARY) DEPARTMENT

DISPUR
GUWAHATI-6.

2:THE SECRETARY TO THE GOVERNMENT OF ASSAM
DEPARTMENT OF SCHOOL EDUCATION
DISPUR
GUWAHATI-6.
Page No.# 3/26

3:THE DIRECTOR OF SECONDARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI-19

DISTRICT- KAMRUP(M)
ASSAM.

4:THE INSPECTOR OF SCHOOLS
NAGAON DISTRICT CIRCLE
DISTRICT- NAGAON
ASSAM

PIN- 782001.

5:THE DEPUTY COMMISSIONER
NAGAON
DISTRICT- NAGAON
ASSAM.
PIN- 782001.

6:THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF
ASSAM
FINANCE DEPARTMENT
DISPUR
GUWAHATI- 781006.

7:THE HEADMASTER
BATAMARI HIGH SCHOOL
VILLAGE- BATAMARI
P.O.- BALIKOTIA

DISTRICT- NAGAON
ASSAM

PIN- 782122.
------------
Advocate for : MR. P P BARUAH
Advocate for : SC
SEC. EDU. appearing for THE STATE OF ASSAM AND 6 ORS
Page No.# 4/26

BEFORE
HONOURABLE MR. JUSTICE ROBIN PHUKAN

JUDGMENT & ORDER (CAV)

Date : 13-10-2025

Heard Mr. A. R. Bhuyan, learned counsel for the petitioners and Mr. B.
Kaushik, learned Standing Counsel, Secondary Education Department, for the
respondent Nos. 1-3, in WP(C) Nos. 935/2023. Also heard Mr. P. P. Baruah,
learned counsel for the petitioner and Mr. B. Kaushik, learned Standing Counsel,
Secondary Education Department, for the respondent Nos. 1-4; Mr. B. Deuri,
learned Government Advocate, for the respondent No. 5 and Mr. R. Borpuzari,
learned Standing Counsel for the respondent No. 6, in WP(C) No. 4110/2023.

2. In WP(C) No. 4110/2023, the petitioner has challenged the impugned order,
dated 02.12.2022, issued under Memo No. ASE.365/2005/Pt-II/412-A, issued by
the Secretary to the Government of Assam, Department of School Education;
and also to direct the respondent authorities to grant fixed scale of pay as
Assistant Teacher of Batamari High School, Nagaon, from the date of her
joining; as provided to other similarly situated teachers, like that of the
petitioner; and also to direct the respondent authorities to release the arrear
monthly salary of the petitioner, from the date of her joining and current
monthly salary due to the petitioner.

2.1 In WP(C) No. 935/2023, four petitioners have prayed for challenging the
speaking order, dated 02.12.2022, Annexure-8 of the petition; and also issuing
direction to the respondent No. 1 to comply with the Cabinet approval, which
had been circulated under Rule 17 of the Assam Rules of Executive Business
Page No.# 5/26

(Annexure-2); for the purpose of extending fixed pay to the petitioners.

2.2 Since, in both these writ petitions, the petitioners have challenged the
same impugned speaking order, dated 02.12.2022; and being the issues
involved in both the petitions are same; and as agreed upon by the learned
counsel for both the parties, it is proposed to dispose of both these petitions by
this common judgment and order.

3. The background facts, leading to filing of the Writ Petition (Civil) No.
4110/2023, are briefly stated as under -

"The petitioner, namely, Sabina Yeasmin, was appointed as an Assistant

Teacher of Batamari High School, Nagaon, after due process of selection and
she joined on 04.04.2001 and is continuously discharging her duties till date,
without any break.

During subsequent years of her appointment, it came to the notice of the
Government that some districts had appointed teachers in excess of vacancies
and they had not received the fixed pay, whereas, other teachers appointed by
the same selection process had received the enhanced fixed pay of Rs. 15,500/-
per month.

Thereafter, the Government had decided and allowed to give fixed pay of
Rs. 15,500/- to 45 Graduate Teachers of Nagaon district, including the
petitioner; but, the name of the petitioner was dropped out in the notification
issued by the respondent authority. Then, she made an enquiry and came to
know that her name was dropped on the ground that she was not regularly
working. Thereafter, she had filed one representation, upon which, an enquiry
was conducted by the Deputy Commissioner, Nagaon, and forwarded the
enquiry report, along with the enquiry report conducted by the Inspector of
Page No.# 6/26

Schools, N.D.C., Nagaon and also the report of the report of the Executive
Magistrate, Nagaon; indicating that the petitioner has been regularly working in
the school since the date of joining, without any break. But, the Secretary to the
Government of Assam, Department of School Education, without considering the
enquiry reports, most arbitrarily and in an illegal manner, passed the impugned
order dated 02.12.2022, rejecting the claim of the petitioner. Being aggrieved,
the petitioner has approached this Court by filing the present petition."

3.1 The background facts, leading to filing of the Writ Petition (Civil) No.
935/2023, are briefly stated as under -

"The petitioners, altogether four in number, were selected and appointed in

their respective schools and they have been serving in the said schools till date.
Though they had received financial benefit, including salary; subsequently, the
Government in Education Department did not extend any financial benefit,
including salary, to the petitioners. Thereafter, the Government, through its
Cabinet, accorded its approval only on 28.07.2019, to extend fixed monthly
remuneration to 45 Nos. of teachers, working in various Secondary Level
Schools of Nagaon and 7 numbers of teachers from Sonitpur district. Thereafter,
pursuant to the said Cabinet approval, the Government in the Secondary
Education Department, vide its Notification, dated 24.06.2022, extended the
benefit of fixed pay to altogether 37 Nos. of such teachers. However, in the said
order, the petitioners were not included. Thereafter, the respondent No. 1 had
further carried out an exercise for the purpose of verification of authenticity as
well as genuineness of the petitioner's service as teachers, in their respective
schools. Thereafter, Magisterial enquiry was also carried out by the District
Magistrate (Deputy Commissioner, Nagaon), further clarifying that since the date
of their appointment, the petitioners were not being regularly discharging their
Page No.# 7/26

duties in their respective institutions. But, the office of the respondent No. 1, by
overriding the approval of the Cabinet and in contravention to the Magisterial
enquiry, rejected the claim of the petitioners for payment of fixed pay, vide
speaking order dated 02.12.2022; and being aggrieved, the petitioners have
approached this Court by filing the present petition."

4. The respondent No. 2, the Director of Secondary Education, has filed her
affidavit-in-opposition in WP(C) No. 935/2023; wherein, she has taken a stand
that with a view to fill up the vacant post of graduate Assistant Teachers in the
entire State, the Government, in Secondary Education Department had issued
instructions to the Inspector of Schools, asking them to start the process of
recruitment, vide WT message, dated 26.03.2001.

4.1 Thereafter, when the process was started, widespread allegations in
respect of Nagaon district were received, to the effect that excess appointment,
beyond the sanctioned posts were made. The Inspector of Schools, Nagaon
district, had appointed as many as 297 Assistant Teachers in excess against 71
Nos. of allotted vacancies, including the petitioners; in fixed pay @ Rs. 2,500/-
per month.

4.2 The Government had approved the payment of salary in fixed pay @ Rs.
2500/- to 252 teachers only, who were found working against sanctioned vacant
posts and 45 Nos. of teachers were not approved by the same, as they were
found working against non-sanctioned posts, including the petitioners.

4.3 Thereafter, the Government, vide notification dated 19.06.2015, enhanced
the fixed pay from Rs. 2,500/- to Rs. 15,500/- per month, to 239 teachers, on
being found that they were working against sanctioned post in different
provincialised High/Higher Secondary Schools, against the sanctioned vacant
Page No.# 8/26

posts. Subsequently, in the year 2020, out of those remaining 45 Nos. of
teachers, 37 Nos. of teachers were allowed to draw enhanced fixed pay of Rs.
15,500/- per month, vide Govt. Notification dated 24.06.2020. But, 8 Nos. of
teachers, including the petitioners, were not allowed due to various reasons,
which have been mentioned in the order, dated 02.12.2022; and it is stated that
the said 8 Nos. of teachers ceased to work for various reasons and though, the
benefits have been proposed with prospective effect, the petitioners were not in
service at that time and as such, 8 Nos. of teachers have been dropped from
the list of 45 teachers of Nagaon district.

4.4 Thereafter, vide notification dated 26.02.2021, the Government had
allowed regular scale of pay to those fixed pay teachers, who were found
working against sanctioned vacant posts without break and the petitioners, at
that stage, made representations before the Government, for allowing them to
enjoy the benefits of regular scale of pay and in this connection, the
Government had sought for information from the Deputy Commissioner, Nagaon
and the Inspector of Schools, Nagaon.

4.5 Thereafter, the Government conducted one hearing of the concerned
officials/teachers as well as concerned Headmasters/ Principals of the respective
schools, and after verification of the records, the Government passed the order
dated 02.12.2022, rejecting the prayer of the petitioners, for granting benefit of
regular pay scale and regularization of unauthorized absence from their duties
and therefore, it is contended to dismiss this petition.

5. In the affidavit-in-opposition, filed by the respondent No. 3 in WP(C) No.
4110/2023, the respondent No. 3 had taken the same stand, that the
Government had sought for information from the Deputy Commissioner, Nagaon
as well as Inspector of Schools, Nagaon and subsequently, the Deputy
Page No.# 9/26

Commissioner, Nagaon submitted a report to the Government and after
conducting hearing of the concerned officials/teachers, as well as the
Headmasters/ Principals of the respective schools, and after verification of the
records, the Secretary to the Government of Assam, Department of School
Education, vide order dated 02.12.2022, has rejected the prayer of the
petitioner for granting the benefits of regular pay scale and regularization of
service, in view of unauthorized absence from her duty and therefore, it is
contended to dismiss the same.

6. Mr. Bhuyan, learned counsel for the petitioners in WP(C) No. 935/2023,
submits that the State Cabinet has taken a decision to regularize the services of
45 Nos. of teachers, whose names were dropped earlier; and in pursuance to
the said Cabinet Memorandum, the Government had regularized the services of
37 Nos. of teachers. But, the Government has decided to give fixed pay salary
to 37 Nos. of teachers, out of 45 Nos. of teachers and granted the benefit of
fixed pay @ Rs. 15,500/-; and before taking a decision by the Cabinet, enquiry
was made and the 45 Nos. of teachers were found working in their respective
schools and now, the Government cannot take a decision, contrary to the
Cabinet decision; and it is well settled that the Government cannot speak in two
voices.

6.1 Mr. Bhuyan further submits that the Deputy Commissioner, Nagaon, had
carried out an inspection of the petitioners working in their respective schools
and he had submitted a corrigendum to the earlier report submitted by him and
clarified that, the petitioners have been working in their respective schools and
in that view of the matter, the decision taken by the respondent No. 1, refusing
to grant the fixed pay to the petitioners; are illegal and arbitrary and violative of
Article 14 of the Constitution of India and therefore, liable to be interfered with.
Page No.# 10/26

7. Mr. P. P. Baruah, learned counsel for the petitioner in WP(C) No.
4110/2023, adopted the submission advanced by Mr. Bhuyan, learned counsel
for the petitioners in WP(C) No. 935/2023; and submits that the enquiry report
submitted by the Deputy Commissioner, Nagaon, indicates that the petitioner
has been regularly working in the respective school, except for a brief period;
for which, she filed an application for 'Maternity Leave' and the same was also
granted to her; and the said application is enclosed with the petition as

Annexure-3, and she applied for the same on 10 th of March, 2016.

7.1 Mr. P. P. Baruah has also drawn the attention of this Court to Annexure-7,
i.e., the report submitted by the Deputy Commissioner, Nagaon, dated
27.01.2021; which shows that the petitioner is working regularly in Batamari
High School, Nagaon; and in view of the above, the impugned order, so passed
by the Secretary to the Government of Assam, School Education Department,
dated 02.12.2022, is illegal and arbitrary and therefore, it is contended to
interfere with the same.

8. Per contra, Mr. B. Kaushik, learned Standing Counsel for the respondent in
Secondary Education Department submits that in respect of 45 Nos. of teachers,
upon whom the said Cabinet had decided to extent the benefit of fixed salary;
an enquiry was conducted prior to giving such benefit and in the enquiry report
submitted by the Deputy Commissioner, Nagaon, the petitioners in both the
petitions, were found not working regularly and under such circumstances, the
impugned order came to be passed and the same suffered from no infirmity or
illegality, requiring any interference of this Court and therefore, it is contended
to dismiss the same.

9. Having heard the submissions advanced by the learned counsels for both
Page No.# 11/26

the parties in both the writ petitions, I have carefully gone through the petitions
and the documents placed on record, perused the impugned order, dated
02.12.2022 and have also gone through the file, produced by the learned
Government Advocate for the respondent authorities.

10. The Cabinet Memorandum, by which decision was taken to extend the
benefit of the fixed pay at par with other teacher @ Rs. 15,500/- to all the 52
Nos. of teachers, out of which, 45 numbers of teachers are from Nagaon and 7
Nos. of teachers from Sonitpur districts, is placed on record. Relevant part of
the Memorandum read as under:-

4. But some teachers, who were also appointed in excess over
vacancies at that point of time, were left from getting fixed
pay. And these 45 such teacher in Nagaon district and 7 teachers
in Sonitpur district, are still working, but not getting any
fixed pay since their appointment. Considering the entire
matter, the Department took the step and called for a working
status report from the Deputy Commissioner and the Inspector of
Schools of Nagaon and Sonitpur district. Accordingly, Deputy
Commissioner and the Inspector of Schools had submitted a detail
report stating that these teachers in Nagaon and Sonitpur
district are working without receiving any fixed pay since
joining. The Inspector of Schools, Nagaon had also identified
equal numbers of vacant post for adjustment.

5. After careful consideration of all aspects, it has been
proposed to examine the matter actively to bring it to its
logical conclusion as follows:
(a) On examination of records, it is observed that there is a
disparity in the principle of payment, of fixed pay.
While one set of Teachers in the same platform and
circumstances numbering 244 numbers in Nagaon district
are being paid the fixed pay, other set of similarly
Page No.# 12/26

placed Teachers numbering 45 numbers in same district are
not being paid the fixed pay. Similarly, in Sonitpur
district, 04 numbers of such teachers are being paid the
fixed pay, other similarly placed Teachers numbering 07
numbers are not being paid the fixed pay.
(b) The consideration as mentioned, shall be restricted to
the payment of fixed pay at par with such other teacher
i.e. @ Rs. 15,500/- per month only, to bring in
uniformity and parity amongst all the paid and similarly
placed teachers. There is no proposal to grant regular
scale of Pay, to all the fixed pay excess Teachers
considering their initial entry into service was as
excess appointees.
(c) The payment shall be prospective from the date of joining
against the vacant post identified for them by the
Director of Secondary Education.

11. It also appears that before placing the matter in the Cabinet, the same
was placed before the Judicial Department and also before the Finance
Department and the views of the Judicial Department as well as Finance
Department is also made part of Cabinet Memorandum, which are read under:-

(A) "Education (Secondary) Department U/O

Your endorsement at prepage
An earlier Cabinet Memo No. at flag "YY" contains our earlier
views as well as the Govt. decision taken, i.e. granting of
fixed pay to teachers including those who have been working
against non-sanctioned posts.
If the present group comprising of 45 excess teachers of
Nagaon and 7 excess teachers of Sonitpur are similarly
situated with the earlier groups whose cases are covered
under the aforesaid Cabinet decision, the department may
consider to allow fixed pay as proposed vide note at page
Page No.# 13/26

15N.
However, it should not be construed to be our agreement
for regularization at all. The department may consider the
proposal subject to concurrence of Finance Department and
approval of Cabinet.
This has the approval of L.R. Assam

Sd. Dtd. - 04.12-2018.
Joint Secy., Judicial Department

(B) "Secondary Education Department U/O.

Ref: Your endt, dtd. 10/07/2019 at Page 29N/RNS of the File
No.ASE 365/2005/Pt-11
The proposal for payment of fixed pay to the 45 nos. of
excess illegal teachers from Nagaon District and 7 teachers
from Sonitpur district is concurred with the conditions that,
like the preceding case, the matter may be placed before
Hon'ble Cabinet to approve on their fixed payment of
Rs.15,500 per month prospectively from the date of approval
of the Cabinet so that additional financial implication may
be avoided.
This has the approval of Hon'ble Minister, Finance.
Sd-
Dtd.28/07/2014
Deputy Secretary.
Fin (EC-III) Deptt

12. It also appears that the Commissioner & Secretary to the Govt. of Assam,
Secondary Education Department, had also recorded his views in the Cabinet
memorandum as under:-

8. Considering the views and observation above it is proposed
to pay a fixed remuneration @ 15,500 - PM to 45 excess
Page No.# 14/26

Graduate Teachers of different Higher Secondary and High
School of Nagaon District and 7 such teachers of Sonitpur
district prospectively as proposed at para-5 above. The list
of the 52 excess Graduate Teachers as enclosed at Annexure
-1.
Provided further that the vacant posts shall not be filled
up by any regular candidates till the posts are vacated by
these teachers getting fixed pay.
Therefore, approval of the Cabinet is sought for
(Preetom Saikia, IAS)
Commissioner & Secretary
to the Govt. of Assam
Secondary Education Department

13. Thus, it becomes apparent that before the Cabinet Memorandum being
prepared, the Department had completed all the formalities. It had taken steps
and called for a working status report from the Deputy Commissioner and the
Inspector of Schools of Nagaon and Sonitpur district. And the Deputy
Commissioners and the Inspector of Schools had submitted a detail report
stating that these teachers in Nagaon and Sonitpur district are working without
receiving any fixed pay since joining, and that the Inspector of Schools, Nagaon
had also identified equal numbers of vacant post for adjustment.

14. However, the respondent authorities had, instead of implementing the
Cabinet decision to extend the fixed pay at par with other teacher @ Rs.
15,500/- to all the 45 Nos. of teachers of Nagaon district had left out, the
present writ petitioners. They again asked the Deputy Commissioner of Nagaon
District and called for report from the Inspector of Schools, Nagaon and three
reports dated 11.05.2017, 12.01.2021 and 20.08.2021 from Deputy
Commissioner, Nagaon, had rejected the claim of the writ petitioners, vide
Page No.# 15/26

impugned order, dated 2nd December, 2022.

15. The impugned order dated 2nd December, 2022 by which the claims of the
present petitioner are rejected, read as under:-

GOVERNMENT OF ASSAM
DEPARTMENT OF SCHOOL EDUCATION
No. ASE. 365/2005/Pt11/412, Dated Dispur the 2nd December, 2022
ORDER

Perused: Office of the Deputy Commissioner, Nagaon enquiry report vide letter No. NDC 121/2016/67 Dated 11.05.2017.

Also read: 1.Inspector of Schools, Nagaon report vide letter No. IS/NDC/ AAP/FP/ 2005/ 1181, Dated 18.05.2020;

2. Office of the Deputy Commissioner, Nagaon enquiry report vide letter No. Enq/2021/06/02 dated 12.01.2021.

3. Office of the Deputy Commissioner, Nagaon enquiry report vide letter No. NDC.121/2016/166 Dated 20.08.2021.

Findings:

During the year 2001, for filling up the vacancies in schools all over the State, the Government in Secondary Education Department issued instructions to the Inspector of Schools vide W.T. Messages No. B(3)S123/2001/95 dated 26.03.2001, for carrying out appointments of graduate teachers in the vacant post. But subsequently, it came to the notice of the Government that the concerned Inspector of Schools in some districts, appointed teachers in excess over the vacancies, was permitted to be filled up.

As per report of Director of Secondary Education, Assam dated 15.11.2011, number of sanctioned post under Nagaon District were 71 nos. but teachers were recruited against the vacancies of 297 Page No.# 16/26

nos. Out of 297 teachers, 240 were working against sanctioned vacant post and 45 were working against non-sanctioned post. 244 nos. teachers under Nagaon district were getting fixed pay of Rs. 2500/- PM since the year 2001 and later on in the year 2015, fixed pay was enhanced to Rs. 15,500/- PM with the Cabinet approval in respect of 244 fixed pay teachers.

In the year 2020, matter was moved for Cabinet approval in respect of 45 nos. of Nagaon district and 7 nos. of Sonitpur District for allowing fixed pay of Rs. 15,500/- P.M. Hon'ble Cabinet had approved the same in its meeting held on 18.04.2020. Accordingly, Notification was issued vide No. ASE.365/2005/Pt- II/147 Dated 24.06.2020 in respect of 37 teachers of Nagaon. As regards other 8 teachers of Nagaon District, it has been found that these teachers have ceased to be working for various reasons as reported by Inspector of Schools, Nagaon. Since the benefits have been proposed with prospective effects and they are not in service at that time, such 8 (eight) teachers have been dropped from the list of 45 teachers of Nagaon District. The present 05 petitioners amongst the earlier listed 08 teachers who were not considered.

Thereafter five teachers namely Smti Purabi Borthakur, Shri Parama Borah, Shri Hemanta Kumar Baruah, Sahabuddin Ahmed and Sabina Yasmin prayer petition before the Govt. for allowing them to draw fixed pay of Rs. 15500/- PM.

There are three report dated 11.05.2017, dated 12.01.2021 and 20.08.2021 from Deputy Commissioner, Nagaon which clearly indicates that they were not in continuous service from the 2001. Deputy Commissioner report dated 11.05.2017 was more clear in this regard.

In this regards Office of the Deputy Commissioner, Nagaon had furnished enquiry report vide letter dated 18.05.2020 and dated 12.11.2021. The earlier report of the Deputy Commissioner, Nagaon dated 11.05.2017 and recent report as mentioned above are contradictory.

In this regards, in respect of the above said teachers hearing Page No.# 17/26

was also conducted in the presence of Inspector of Schools, Nagaon and concerned Headmaster/Principals of their respective schools and the attendance register and other documents were verified.

Records indicate that they were not continuously serving, irregular and were absent without any record of authorization for a long time.

Now, these five teachers prayed before the Govt. for regular scale pay at par with the Notification No. ELC/WP(C) 763/2013/92/603 dated, 26.02.2021 of Secondary Education Department, which allowed graduate scale of pay in respect of 264 nos. of fixed pay teachers under Nagaon district (total 555 nos. teachers under five districts of Assam) with approval of Cabinet and considering the report of Director of Secondary Education, Assam and this Department earlier Notification No. B3(S)807/2003/Pt-V/153 dated 19.06.2015 and Notification NO. ASE.365/2005/Pt. II/147 dated 24.06.2020.

These five teachers don't fall under the criteria laid down the then fixed pay teachers who were now getting the benefits of ROP as per Government approval.

Decision: In view of the above facts and circumstances and verifying the reports of the office of the Deputy Commissioner, Nagaon, Govt. in Department of School Education hereby rejects the claim of the petitioners for granting the benefit of scale of pay and regularize the service in view of the unauthorized absence from their duty.

Sd/-

Secretary to the Govt. of Assam Department of School Education Dated, Dispur the 2nd December, 2022

16. Now, the issue before this Court is when the Cabinet had taken a decision to extend the fixed pay at par with other teacher @ Rs. 15,500/- to the 45 Nos. of teachers, who were left out, from earlier exercise, on the basis of a working Page No.# 18/26

status report from the Deputy Commissioner and the Inspector of Schools of Nagaon and Sonitpur district, and when the Deputy Commissioners and the Inspector of Schools had submitted a detail report stating that these teachers in Nagaon and Sonitpur district are working without receiving any fixed pay since joining, and that the Inspector of Schools, Nagaon had also identified equal numbers of vacant post for adjustment, whether the department can take different view and adopt a policy which is different from that of the Cabinet Decision.

17. It is however, the categorical submission of learned counsel for the petitioners in both the writ petitions that the department cannot take a different view from that of the Cabinet and deny extending the benefits to the writ petitioners. There appears to be substance in the submissions of both the learned counsel for the petitioners. It is well settled that the department i.e. the state respondents cannot take a different view from that of the Cabinet. Reference in this context can be made to a decision of Hon'ble Supreme Court in the case of Lloyd Electric and Engineering Limited Vs. State of Himachal Pradesh and others. [Civil Appeal No. 6838 of 2015 arising From S.L.P. (C) No. 26751/2013], wherein it has held as under:-

"The Government shall speak only in one voice. It has only one policy. The departments are to implement the Government policy and not their own policy. Once the Council of Ministers has taken a decision to extend the 2004 Industrial Policy and extend tax concession beyond 31.03.2009, merely because the Excise and Taxation Department took some time to issue the notification, it cannot be held that the eligible units are not entitled to the concession till the Department issued the notification."

Page No.# 19/26

18. In view of the aforesaid legal position, the exercise so carried out by the respondent authority by calling a fresh report from the Deputy Commissioners and Inspector of Schools and thereafter, conducting hearing of the petitioners and subsequent rejection of their claims appears to be without any authority of law and contrary of the Cabinet decision. On such count, the impugned order,

dated 2nd December, 2022 is liable to be interfered with.

19. Further, perusal of the impugned order, dated 02.12.2022, indicates that while rejecting the claim of the writ petitioners the Commissioner and Secretary to the Government of Assam, Department of School Education, has relied upon the three reports, dated 11.05.2017, 12.01.2021 and 20.08.2021, from the Deputy Commissioner, Nagaon, which clearly indicates that they were not in continuous service from 2001 and the report of the Deputy Commissioner dated 11.05.2017, was more clear in this regard. In this regard, the Office of the Deputy Commissioner, Nagaon, had furnished the enquiry report, vide letters dated 18.05.2020 and 12.11.2021; and the earlier reports of the Deputy Commissioner, Nagaon, dated 11.05.2017 and the recent report mentioned above, are contradictory; and in that view of the matter, the hearing of the said teacher's was also conducted in presence of Inspector of Schools, Nagaon and concerned Headmaster/Principal of their respective schools, and the attendance register and other documents were verified; and the record indicates that they were not continuously serving, irregular and were absent without any record of authorization for a long time and these 5 (five) teachers did not fall under the criteria laid down for the then fixed pay teachers, who were now getting the benefit of ROP pay, as per Government approval; and in view of the aforementioned facts and circumstances and on verifying the report of the Page No.# 20/26

Office of the Deputy Commissioner, Nagaon, the claim of the petitioners for granting the benefit of scale of pay and regularization of their services were rejected; in view of unauthorized absence from their duties.

20. It is to be noted here that Mr. Kaushik, learned Standing Counsel for the respondent in Secondary Education Department; was asked to produce the relevant file before this Court during the course of hearing. And accordingly, Mr. Kaushik had produced relevant file from the department. And a perusal of the said file indicates that the Assistant Commissioner, Nagaon, on behalf of the Deputy Commissioner, Nagaon, on 12.01.2021, had submitted an enquiry report, dated 12.01.2021, which indicates that Smti. Sabina Yeasmin, the petitioner in WP(C) No. 4110/2023, has been working regularly in Batamari High School, Nagaon.

20.1. The said report also indicates that Smti. Purabi Borthakur, one of the petitioners in WP(C) No. 935/2023, has been working regularly in Barbhagia High School. And in respect of Hemanta Baruah, another petitioner of WP(C) No. 935/2023, it is stated that he was irregular due to want of money. In respect of another petitioner of said writ petition, namely, Parama Bora, it is stated that he has been working regularly as per the report of the Headmaster, Pub-Kampur High School.

20.2. The report of the Inspector of Schools, dated 26.11.2020, also indicates, that Purabi Borthakur, Sabina Yeasmin, Parama Bora, and Shahab Uddin Ahmed are working in their respective schools; except however, Mr. Hemanta Baruah, who is irregular in his duties, since 2014. However, subsequent report of the Inspector of Schools, Nagaon dated 22.02.2022, indicates that all the aforesaid five numbers of petitioners are working in the respective School, as per report of the concerned Head Master/Principals.

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20.3. Though, the report of the Assistant Commissioner, Nagaon, filed on behalf of the Deputy Commissioner, Nagaon was taken into consideration before passing the impugned order by the Secretary to the Govt. of Assam, Department of School Education, yet, the report of the Inspector of Schools, Nagaon dated 22.02.2022, was not considered by the Secretary to the Govt. of Assam, Department of School Education. And both these reports speak otherwise. Both these report goes to show that Smti. Purabi Borthakur, Sabina Yeasmin, Parama Bora, and Shahab Uddin Ahmed are working in their respective schools. Though the report of the Inspector of Schools, dated 26.11.2020, indicates that petitioner Hemanta Baruah is irregular in his duties, since 2014, yet the subsequent report of the Inspector of Schools, Nagaon dated 22.02.2022, indicates that all the aforesaid five numbers of petitioners are working in the respective School, as per report of the concerned Head Master/Principals.

20.4. Further it appears that the Secretary to the Govt. of Assam, Department of School Education, failed to peruse the report of the Assistant Commissioner, Nagaon, filed on behalf of the Deputy Commissioner, Nagaon in its proper perspective, as the same indicates that Smti. Purabi Borthakur, Sabina Yeasmin, Parama Bora, and Shahab Uddin Ahmed are working in their respective schools, except however, Shri Hemanta Baruah is irregular in his duties, since 2014. It also appears that the Secretary to the Govt. of Assam, Department of School Education, had not taken into consideration the report of the Inspector of Schools, Nagaon dated 22.02.2022, though the same was addressed to the Special Commissioner and Secretary, Govt. of Assam, Dispur.

20.5. Thus, the report of the Inspector of Schools, dated 26.11.2020, and the subsequent report of the Inspector of Schools, Nagaon dated 22.02.2022, and Page No.# 22/26

further the report of the Assistant Commissioner, Nagaon, submitted on behalf of the Deputy Commissioner, Nagaon, on 12.01.2021, had shaken the very foundation of the impugned order dated 02.12.2022.

20.6. Thus, the whole exercise done by the respondent authorities suffers from the vice of arbitrariness and as such, it is violative of Article 14 of the Constitution, due to non consideration of relevant factors i.e. the report of the Inspector of Schools, dated 26.11.2020, and the subsequent report of the Inspector of Schools, Nagaon dated 22.02.2022, and further the report of the Assistant Commissioner, Nagaon, submitted on behalf of the Deputy Commissioner, Nagaon, on 12.01.2021.

20.7. it is to be noted here that in the case of S.G. Jaisinghani v. Union of India [AIR 1967 SC 1427], a Constitution Bench of Hon'ble Supreme Court observed as under :-

"14. ... absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. ... the rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law."

20.8. It is also to be noted here that while dealing with arbitrariness, Hon'ble Supreme Court in the case of State of Orissa vs. Mamata Mohanty, Page No.# 23/26

reported in (2011) 3 SCC 436, held as under:-

"59. The rule of law inhibits arbitrary action and also makes it liable to be invalidated. Every action of the State or its instrumentalities should not only be fair, legitimate and above board but should be without any affection or aversion. It should neither be suggestive of discrimination nor even give an impression of bias, favouritism and nepotism. Procedural fairness is an implied mandatory requirement to protect against arbitrary action where statute confers wide power coupled with wide discretion on an authority. If the procedure adopted by an authority offends the fundamental fairness or established ethos or shocks the conscience, the order stands vitiated. The decision-making process remains bad."

20.9. It is to be noted here that the impugned order dated 02.12.2022, Annexure- 8 in WP(C) No. 935/2023 and Annexure -9 in WP(C) No. 4110/2023, is being challenged on account of the same being arbitrary, under Article 14 of the Constitution of India. And in that view of the matter, the impugned order dated 02.12.2022, (Annexure- 8 & 9) has to be tested by applying the Wednesbury principle, in view of the decision of Hon'ble Supreme Court in the case of Om Kumar v. Union of India, reported in (2001) 2 SCC 386, wherein, the Apex Court has held as under:-

"68. Thus, when administrative action is attacked as discriminatory under Article 14, the principle of primary review is for the courts by applying proportionality. However, where administrative action is questioned as "arbitrary" under Article 14, the principle of secondary review based on Wednesbury principles applies."

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20.10. Thus, it is also well settled that in cases, where the administrative action is challenged for being discriminatory and consequently violating Article 14, the Court acts as the primary reviewing authority. The standard of review to be applied, in such cases, is that of proportionality, ensuring that 'administrative authorities maintain a proper balance between the adverse effects which the administrative order may have on the rights, liberties or interests of persons, and the purpose which the order intended to serve. The courts are required to employ the four-pronged test of proportionality to evaluate whether the administrative action is discriminatory and hence violative of the right to equality enshrined in Article 14.

20.11. However, when administrative action is challenged for being arbitrary, it only 'indirectly' violates the right to equality under Article 14. Arbitrariness was established as a ground of challenge by Hon'ble Supreme Court in the case of E.P. Royappa v. State of T.N, reported in AIR 1974 SC 555, by giving Article 14 an expansive interpretation. In the said case, it was observed that "from a positivistic point of view, equality is antithetic to arbitrariness and where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law, therefore violating Article 14.

20.12. Therefore, when an administrative action is challenged on grounds of arbitrariness, the courts play a secondary role in examining whether the administrators in discharging their primary role as adjudicators have adhered to the standards laid down in the Wednesbury test. The courts cannot apply the more intrusive proportionality test in such cases, limiting their intervention to judging the reasonableness of the decision-making process on the basis of the Wednesbury test.

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20.13. It is to be noted here in the case of Associated Provincial Picture House Limited vs. Wednesbury Corporation, reported in (1947) 2 AII ER 680, the United Kingdom, Court of Appeal held that the action of the administrative authorities would be declared unconstitutional if it meets the following circumstances:-

1. Consideration of irrelevant and extraneous factors.

2. Neglect of relevant factors.

3. Decision is irrational to a reasonable person and no reasonable person in their wildest of dream would reach that particular conclusion.

20.14. In the instant case, it has already been held that the whole exercise done by the respondent authorities is contrary to the decision of the Cabinet as the respondent cannot speak in two voice and it has only one policy i.e. the policy of the Cabinet. And the same also suffers from the vice of arbitrariness and thus is violative of Article 14 of the Constitution, as the same being passed without consideration of relevant factors i.e. the report of the Inspector of Schools, dated 26.11.2020, and the subsequent report of the Inspector of Schools, Nagaon dated 22.02.2022, and further the report of the Assistant Commissioner, Nagaon, submitted on behalf of the Deputy Commissioner, Nagaon, on 12.01.2021.

21. In the result, I find sufficient merit in these two petitions and accordingly, both the writ petitions stands allowed. By a mandamus of this Court, the respondent authorities are directed to pay the fixed salary to the petitioners from the date of Cabinet Decision, against the vacant posts, identified by the Inspector of Schools, NDC, Nagaon and also other benefits, extended to Page No.# 26/26

similarly situated teachers.

22. The aforementioned exercise shall be carried out within a period of 3 (three) months from the date of receipt of certified copy of this judgment and order. The petitioner shall obtain a certified copy of this order and shall place the same before the respondent authorities, within a period of 1 (one) week from today.