Gauhati High Court
Page No.# 1/16 vs The State Of Assam And 5 Ors on 15 July, 2025
Page No.# 1/16
GAHC010201272023
2025:GAU-AS:9109
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5327/2023
TARUN GOGOI
S/O LATE GAYANATH GOGOI, R/O NA-MATI JOYKHAMDONG GAON, P.O.-
NAZIRA, P.S.-NAZIRA, DIST-SIBSAGAR, ASSAM, PIN-
VERSUS
THE STATE OF ASSAM AND 5 ORS
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF ASSAM,
DEPARTMENT OF SCHOOL EDUCATION (ELEMENTARY), DISPUR,
GUWAHATI-781006
2:THE DIRECTOR
ELEMENTARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI-781019
3:THE DISTRICT ELEMENTARY EDUCATION OFFICER (DEEO)
SIBSAGAR
SIBSAGAR
ASSAM
PIN-785640
4:THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF
ASSAM
FINANCE DEPARTMENT
DISPUR
GUWAHATI-781006
5:THE ACCOUNTANT GENERAL (A AND E)
BAMUNIMAIDAM
BELTOLA
GUWHATI-28
Page No.# 2/16
6:THE DIRECTOR OF PENSION
HOUSEFED
DISPUR
GUWAHATI-0
Advocate for the Petitioner : MR. S U AHMED, MS R R CHOUDHURY,MR A HAWARI
Advocate for the Respondent : SC, ELEM. EDU, GA, ASSAM,SC, AG,SC, FINANCE
BEFORE
HONOURABLE MR. JUSTICE ROBIN PHUKAN
ORDER
Date : 15.07.2025
Heard Mr. S.U. Ahmed, learned counsel for the petitioner. Also heard Mr.
B. Talukdar, learned standing counsel for the respondent Nos. 1, 2 and 3; Mr. B.
Gogoi, learned standing counsel for the respondent No. 4; Mr. D. Das, learned
counsel appearing on behalf of Mr. B. Sarma, learned standing counsel for the
respondent No. 5; and Ms. K. Phukan, learned Government Advocate for the
respondent No. 6.
2. In this petition, under Article 226 of the Constitution of India, the
petitioner has prayed for issuing direction to the respondent authorities to
release his arrear salary with effect from March, 2015 till his retirement on
31.01.2021, and also to direct the respondent authorities to release the
pensionary benefits as well as his monthly pension.
3. The background facts, leading to filing of the present petition, are
briefly stated as under:
“The petitioner was appointed as Stipendiary Teacher on 16.09.1995,
following all rules and regulations under OBB (Operation Black Board)
Page No.# 3/16scheme, and the said posts were created, vide Govt. Order No.
PMA.158/94, dated 18.01.1995, in the district of Sivasagar, Assam.
Thereafter, the petitioner had completed Basic Training Course and
consequent upon completion of Basic Training, he was allowed to draw
regular scale of pay w.e.f. 12.06.2001, vide order dated 03.01.2002.
Thereafter, vide order dated 02.09.2006, altogether 610 numbers of
posts under Nazira Sub-Division in the Sivasagar district was sanctioned
for temporary retention out of 2752 posts of primary school teachers
w.e.f. 01.03.2006 to 28.02.2007. Thereafter, the then Deputy Inspector
of Schools, Nazira, vide communication dated 12.11.2007, submitted the
proposal for permanent retention of L.P. teachers against Govt. Order No.
PMA.158/94, dated 18.01.1995, and in the said incumbency list of 610
posts, the name of the petitioner appeared at Serial No. 486.
Thereafter, all of a sudden, from March, 2012, the salary of the
petitioner, including many others, were stopped citing the reason that
they were appointed beyond budget allotted post in excess. Thereafter,
the petitioner lodged a complaint, upon which an enquiry was conducted
by Deputy Secretary to the Govt. of Assam, Elementary Education
Department, wherein it was directed to Director of Elementary Education,
Assam to submit a report as to why the name of petitioner was included
within the 1528 excess L.P. School Teachers, under Nazira Sub-Division in
Sivasagar district, whereas, as per record/report, the petitioner was
appointed against sanctioned post, vide Govt Order No. PMA.158/94,
dated 18.01.1995. Then due to non receipt of salary, the petitioner
approached this Court by filing WP(C) No.188/2013, and this Court, vide
order dated 06.05.2014, directed to release the current salary within a
Page No.# 4/16period of one month, and arrear salary within a period of three months,
and also directed to complete the enquiry pursuant to letter dated
09.05.2012. Thereafter, in compliance of the order passed in WP(C)
No.188/2013, the arrear salary from 31.03.2012 to 28.02.2015, was
released vide order dated 19.05.2015. But, thereafter, till his retirement
on 31.01.2021, neither had he received the arrear salary nor he received
the pensionary benefits. Even his monthly pension also has not been
released. Though the petitioner had made several requests to release the
salary and pension, the same failed to evoke any response. Being
aggrieved, the petitioner has approached this Court by filing the present
petition with the prayer as aforesaid.”
4. The respondent No.2 has filed affidavit-in-opposition, wherein a stand
has been taken that though the petitioner claims that he was appointed
pursuant to an interview, however, the petitioner has failed to substantiate the
said claim by annexing any documents in support of genuineness of his
appointment, and that the petitioner was appointed without any selection
process by the then Deputy Inspector of Schools against non-existent post
dehors the Rules. It is an admitted fact that upon completion of Junior Basic
Training, the petitioner was allowed to draw regular scale of pay, however, due
to shortage of budget allotted post, the salary of the petitioner was stopped
since August, 2006, as the petitioner was appointed against non-existent post,
and in fact, the petitioner as well as many other teachers were appointed across
the State during 1989 and from 1991 to 2001, without following proper
procedure against non-existent posts, which came to notice of the Government
when it was detected that the number of incumbents were more than the total
sanctioned/budget allotted posts.
Page No.# 5/16
4.1. It is also stated that the Government had created 1528 numbers of
supernumerary posts under Sivasagar district as a whole as per order of this
Court in a batch of writ petitions, vide letter Νο. ΑΕΕ.566/2008/138, dated
21.01.2009, and temporary retention and budget allocation in respect of 1476
numbers of post out of 1528 numbers of post was accorded by the Government
for the period up to 28.02.2012, and as such, these excess teachers along with
the petitioner got his salary up to February, 2012, and thereafter, this Court was
pleased to direct the Education Department to take a call in the matter of
regularization of irregular/illegal teachers, and accordingly, in terms of the order
dated 02.03.2010, passed by this Court in WP(C) No. 1048/2004, the Education
Department placed the matter of regularization of illegal/irregular teachers
before the Cabinet in its meeting held on 26.02.2011. It is also stated that
thereafter, the Education Department proposed to constitute a Screening
Committee to examine the validity of the appointments of the teachers who
were claiming regularization and for releasing salary, and accordingly, vide O.M.
dated 15.11.2011, a Screening Committee was constituted to examine the cases
of irregularly/illegally appointed teachers, so as to take a decision for their
regularization and entitlement of salary or otherwise, and thereafter, the
Director of Elementary Education, Assam invited applications from these
irregularly/illegally appointed teachers during the year 1991-2001, throughout
the State vide advertisements dated 01.02.2012 and 04.02.2012 in local
newspapers. Thereafter, applications were received from irregularly/illegally
appointed teachers throughout the State, who were appointed during the year
1989 and 1991 to 2001, and after preliminary examination, at Directorate level,
total 12085 numbers of applications were found in order and the same were
submitted to the Government for final verification. It is further stated that
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thereafter, the Elementary Education Department, vide notification dated
04.06.2014, constituted five screening committees, headed by the Divisional
Commissioners concerned and Principal Secretaries of Sixth Schedule area and
BTC, to examine these applications and the report of the preliminary committee,
and thereafter, the Screening Committees verified all the applications and
submitted their reports with recommendations/views to the Government for
further action. However, due to complaints from various corner, the Government
directed for re-verification, in respect of some of the districts, and that the
respective Screening Committees, after causing re-verification, submitted their
reports to the Government and after verification of the reports of the Divisional
Screening Committees, identified the following categories of teachers:
Category 1 – Recommended and working till date – 136.
Category 2 – Recommended but discontinued jobs – 250.
Category 3 – Not recommended but working till date – 8470.
Category 4 – Not recommended and discontinued jobs – 2900.
4.2. It is stated that thereafter, a discussion was held between the then
Minister of Education and the Teacher Association of irregular/illegal teachers,
and as per decision of the meeting and as per suggestion of the then Minster of
Education, the Department had proposed to take a decision to solve the
problem of these irregularly/illegally appointed teachers subject to approval of
the Cabinet, and accordingly, a departmental committee was formed by the
Government to verify salary status and qualification of those three categories of
illegal/irregular appointees, and thereafter, the committee has prepared the
following three lists:
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List-1: The teachers who have received salaries at some point of time
and having JBT/D.El.Ed.
(The numbers of teachers included in the List-1 is 1574.)
List-2: The teachers who received salaries at some point of time but
not having JBT/D.El.Ed.
(The numbers of teachers included in the List:2 is 2960.)
List-3: The teachers who neither received salaries nor qualified the
training i.e. JBT/D.El.Ed.
(The numbers of teachers included in the List-3 is 7250.)
4.3. It is stated that thereafter, on the basis of the above lists and after
views of various Departments, it was decided to resolve the issue of
illegal/irregular appointment by way of preparation of a Cabinet Memorandum
for placing it before the Cabinet, wherein:-
(a) Approval was sought for accommodating those teachers who have
received salary up to 2007 and have successfully completed the
Junior Basic Training/D.EL.Ed course by certain
personal/supernumerary posts with prospective effect from the date
of approval of the Cabinet. Those posts will cease to exist as and
when the incumbent retires from service. (i.e., List-1 as Teacher)
(b) Approval was sought, for those who received salaries up to 2007 but
have not acquired the professional qualification before 2011, their
job can only be accommodated as tutor with prospective effect from
the date of approval of the cabinet. (i.e. List-2 as Tutor)4.4. It is stated that thereafter, 1528 numbers of supernumerary posts were
Page No.# 8/16created by the Government, vide letter No. ΑΕΕ.566/2008/138-A, dated
21.01.2009 and the temporary retention and budget allocation in respect of
1476 posts accorded by the Government for the period up to 29.02.2012, vide
letter dated 23.03.2012, and that the petitioner had received his monthly
salaries up to February 2015, as per Government order dated 19.05.2015, and
the permanent retention of 666 numbers of OBB teachers were sanctioned
against Government Order No. PMA.158/94, dated 21.05.2015, for the period
2015-16, and the name of the petitioner was not included and identified as
excess number of teacher. It is also stated that the petitioner was illegally
appointed by the then Deputy Inspector of Schools without any selection
process against non-existent posts dehors the Rules i.e. Rule 3 of the Assam
Elementary Education (Provincialisation) Rules, 1977. Under such circumstances,
it is contended to dismiss this petition.
5. The respondent No. 1 has also filed affidavit-in-opposition, wherein
similar stand has been taken like the respondent No. 2.
6. Mr. Ahmed, learned counsel for the petitioner submits that the
petitioner was appointed as Stipendiary Teacher on 16.09.1995, and after
completion of Basic Training, he was allowed to draw regular scale of pay w.e.f.
12.06.2001, vide order dated 03.01.2002. Mr. Ahmed also submits that the
petitioner had received salary up to March, 2012 and thereafter, suddenly the
payment of salary was stopped, and he filed several representations, but the
same failed to evoke any response. Mr. Ahmed further submits that thereafter,
enquiry was carried out and posts were sanctioned, but nothing was done in
respect of the claim of the petitioner, for which the petitioner filed WP(C) No.
188/2013, before this Court and pursuant to the order passed in the aforesaid
writ petition, he received salary up to 28.02.2015, and thereafter, again his
Page No.# 9/16
salary was stopped and again WP(C) No. 3628/2016, was filed and in the
meantime, the petitioner had retired on superannuation on 03.01.2021, without
salary and pensionary benefits. Mr. Ahmed further submits that the action of the
respondent authorities is illegal and arbitrary and it violates the right of the
petitioner guaranteed under Article 14, 16 and 21 of the Constitution of India.
6.1. Mr. Ahmed also submits that as per respondent authorities own
documents, the petitioner herein is entitled to be regularized in service and
other consequential benefits.
6.2. In support of his submission, Mr. Ahmed has referred to the following
decisions:
(i) Smti Hiranya Bhuyan vs. State of Assam and Ors., reported
in 2017 (1) GLT 139.
(ii) Rajesh Kumar Ghosh and Ors. vs. State of Assam and Ors.,
reported in 2017 (3) GLT 594.
7. Per contra, Mr. Talukdar, learned standing counsel for the respondent
Nos. 1, 2 and 3 submits that the petitioner was illegally appointed without
following any procedure prescribed under Rule 3 of the Assam Elementary
Education (Provincialisation) Rules, 1977, and a detailed enquiry was conducted,
and that the name of the petitioner finds no mention in the List-1, which was
approved by the Cabinet. Mr. Talukdar also submits that in view of the decision
of this Court in the case of Harendra Chandra Nath and Ors. vs. State
of Tripura and Ors., reported in 2013 (2) GLT 1094, the petitioner cannot
claim the benefit of his salary as three years already elapsed, and therefore, it is
contended to dismiss this petition.
8. Having heard the submissions of learned counsel for both the parties, I
Page No.# 10/16
have carefully gone through the petition and the documents placed on record,
and also perused the decisions referred by learned counsel for both the parties,
and I find substance in the submission of Mr. Ahmed, learned counsel for the
petitioner.
9. It is not in dispute that the petitioner was appointed as Stipendiary
Teacher on 16.09.1995, as per the regulations under OBB Scheme against 610
numbers of posts created by the Government, vide Government Order No.
PMA.158/94, dated 18.01.1995, and the name of the petitioner appeared at
Serial No. 486 against the aforementioned 610 number of posts.
10. It is also not in dispute that the petitioner, having been so appointed,
had undergone Basic Training Course, and on successful completion of said
course, the petitioner was allowed to draw regular scale of pay w.e.f.
12.06.2001, vide order dated 03.01.2002. Further, it is not in dispute that the
petitioner had received salary up to March, 2012 and thereafter, his salary was
again stopped. And thereafter, he approached this Court by filing WP(C) No.
188/2013, and this Court, vide order dated 06.05.2014, directed to release the
current salary within one month and arrear salary within three months and also
directed to complete the enquiry, which was contemplated by the respondent
authority, pursuant to the letter dated 09.05.2012.
11. It appears that thereafter, pursuant to the order of this Court in WP(C)
No. 188/2013, dated 06.05.2014 the respondent authority has created
supernumerary posts. And the petitioner’s name appeared at Sl. No. 15 of the
list (Annexure-12, page 58 of the petition), and even as per clause (a) of the
Cabinet Memorandum also, the petitioner is entitled to be regularized as he had
received salary up to 2007 and onwards, and he had also completed
JBT/D.El.Ed.
Page No.# 11/16
11.1. It is also not in dispute that the petitioner had retired on 31.01.2021
without receiving salary and other pensionary benefits. He returned home with
empty hand after rendering his service for more than 25 years.
11.2. And under such circumstances, the stand taken by the respondents
herein appears to be unsustainable. After availing his service till his retirement
on 31.01.2021, now the respondent authority, in a welfare state like ours,
cannot deny his legitimate claim of salary. And this denial amounts to violation
of his right guaranteed under Article 14, 16 and 21 of the Constitution of India.
12. Though, the respondent authorities had taken a stand that the petitioner
was appointed illegally by the then Deputy Inspector of Schools against non-
existent posts, and that his name was not included and identified as excess
teachers and such contention appears to be unsustainable in view of the
statement and averments made in the petition and the documents placed on
record by the petitioner. It appears that Annexure No. 1 is the order dated
10.10.1995 of creation of 612 post of Teachers under Nazira Sub-Division and
Annexure No. 2 is the Order of Appointment of the petitioner and Annexure No.-
3 is the Order dated 03.01.2002, regarding grant of regular scale of pay to the
petitioner and Annexure No. 4, the letter dated 01.09.2006, by which sanction
was accorded by the Secretary to the Government of Assam, Education
Department for temporary retention of 6251 posts for L.P. School teachers,
which were within 8153 numbers of post originally created under OBB Scheme
vide order dated 18.01.1995.
12.1. And as per Annexure-No.5, a letter dated 02.09.2006, issued by the
Director of Elementary Education, Assam indicates that 2752 numbers of posts
of Primary Schools teachers were retained and out of the same 610 numbers of
post were allotted to Nazira Sub-Division. Thereafter, the Deputy Inspector of
Page No.# 12/16
Schools, Nazira has submitted the proposal, vide his letter dated 12.11.2007
Annexure No.6, for retention of 610 numbers of post created by Government
order dated 18.01.1995, and the name of the present petitioner appears at
Sl.No.486 (SIC-366) of the incumbency list, Annexure-7.
12.2. It also appears that on identification of some teachers appointed excess
than the budget allotted posts, the Government of Assam had appointed Justice
(Retired) S.K. Kar Commission to enquire the matter and the Commission
accordingly, on completion of enquiry had submitted report and the name of the
petitioner finds no mention in the report wherein the excess teachers were
identified for his appointment under OBB Scheme against the sanctioned posts
vide Govt. Creation No. PMA.158/94, dated 18.01.1995. It also appears that the
respondent authority has mingled the petitioner with the excess teachers
appointed. Accordingly the petitioner and one Bhanu Gogoi and others had filed
a representation to the Commissioner and Secretary to the Government of
Assam regarding non receipt of their salary and that the petitioner along with
others were illegally brought in the category of excess appointees in Nazira Sub-
Division in Sivsagar District. The said representation was forwarded to the
Director of Elementary Education vide letter dated 20.02.2012, Annexure No. 8,
to examine the matter and to submit a report.
12.3. Accordingly, the Director, Elementary Education had submitted his report
and on receipt of the report, the Deputy Secretary to the Govt. of Assam vide
his letter dated 09.05.2012 -Annexure No.9, asked to submit factual details as
to why the name of the petitioners were included in the list of 1528 numbers of
excess teachers under Deputy Inspector of Schools, Nazira Sub-Division, since
as per record, all the petitioners were appointed against sanctioned posts
created vide Govt. Order No. PMA.158/94 dated 18.01.1995. The letter dated
Page No.# 13/16
17.05.2012, Annexure-No.10, had asked the District Elementary Education
Officer, Sivasagar to submit a report as to how the petitioners’ names were
includes in the list of 1528 numbers of teachers while they were appointed
against 610 numbers of sanctioned posts.
12.4. But, the enquiry so directed vide Annexure-No.9 had failed to evoke any
response. It also appears that the petitioner then filed WP(C) No. 188/2013,
before this Court and pursuant to the order passed in the aforesaid writ petition,
he received salary up to 28.02.2015, and thereafter, again his salary was
stopped. The petitioner then with some similarly situated persons had again
filed WP(C) No. 3628/2016, and the same was disposed of vide order dated
28.04.2017, directing that in view of the order dated 06.05.2014 in WP(C) No.
188/2013 the respondent authority shall continue to pay the arrear and current
salary to the petitioner till a contrary decision is taken by the respondent
authorities.
12.5. Notably, the respondent authorities had not disputed any of the
documents as mentioned above as Annexure No.1 to 10. The statements and
averments so made in the petition also remained undisputed. In the given
factual scenario, the doctrine of non-traversal can be invoked herein this case
that failure to traverse a pertinent plea allows the court to infer its admission, as
provided in the Order VIII Rule 5 CPC. Reliance on the judgment to apply
the doctrine of non-traverse is made in the case of (1) Controller of Court
of Ward, Kolhapur & Anr. V. G.N. Gharpade , reported in AIR 1973
Supreme Court 627, and also on a decision passed by (2) Gobinda Chandra
Das v. State of West Bengal, reported in 1989 (2) CAL LT (HC) 63.
13. It is also worth mentioning in this context that similarly situated teachers
Page No.# 14/16
of Nazira Sub-Division of Sivasagar district had also filed one writ petition being
WP(C) No. 847 of 2007 for issuing direction for payment of salary and
allowances and a Division Bench of this Court vide order dated 19.05.2010
directed the respondent No. 2 to 7 of the said petition to pay arrear/dues with
effect from 01.12.2009 to 30th April, 2010 shall be paid to the concerned and all
other teachers within one month from today, i.e. 19.05.2010, and the
Government and its officers shall ensure payment of monthly salary to the
teachers latest by 15th of each succeeding months.
13.1. In the said judgment it was also observed that the requirement of food,
clothing and shelter are the basic requirements for all concern whatsoever they
are to maintain the family and standard of life. The respondent in our opinion
cannot be allowed to say that because of budgetary provisions or for some
reason akin to that they are unable to pay the salary. In the democratic setup,
every person is entitled to his rightful right. The Government or any other
authority, which is entitled to maintain the constitutional provision, cannot be
allowed to say that they are not in a position to make the payment of the salary.
13.2. It is a fact that the petitioner was not party in the said writ proceeding.
But, he is similarly situated with the petitioners in the said writ proceeding and
all of them belongs to Nazira Sub-Division of Sivasagar district. Therefore, the
petitioner is also entitled to avail the benefit of the directions, so issued to the
respondent authorities of the said petition, to ensure payment of monthly salary
to the teachers latest by 15 th of each succeeding months. It is also well settled
that all persons similarly situated should be treated similarly. (See:- State of
Karnataka and Others vs. C. Lalitha reported in (2006) 2 SCC 747.)
14. Thus, I find sufficient merit in the submission of Mr. Ahmed, the learned
Page No.# 15/16
counsel for the petitioner. And the decisions referred by him in (i) Smti
Hiranya Bhuyan(supra) and (ii) Rajesh Kumar Ghosh (supra) also
strengthened his submission. On the other hand, I find the submission of Mr.
Talukdar, the learned standing counsel for the respondent authorities, devoid of
substance and accordingly, the same stands overruled. I have also gone through
the decision referred by Mr. Talukdar in Harendra Chandra Nath (supra) and
I find that the proposition of law, laid down in the said case, is not applicable to
the given facts and circumstances of the case in hand.
15. In the result, this Court finds sufficient merit in this petition. And
accordingly, the same stands allowed. By a mandamus of this Court the
respondent authorities are directed as under:-
(i) to release the arrear salary of the petitioner, with effect from the
month of March, 2015 till his retirement on 31.01.2021, and
(ii) to release the other consequential benefits, including his monthly
pension.
16. Further, in the given facts and circumstances on the record, there
appear to be special equities, in favour of the petitioner, which would justify the
grant of such interest upon the arrear salary and pension, although there is no
provision in law for such grant. Thus, on equitable consideration, and also relied
upon a decision of Hon’ble Supreme Court in Union of India & Ors v. Dr.
J.K Goel, reported in 1995 SCC Supl. (3) 161, this Court is inclined to
direct the respondent authorities to pay interest @ 6% per annum, from the
month of March, 2015, upon the entire amount of salary as well as pension
from the due dates, till the payment being made to the petitioner.
17. The aforementioned exercise shall be carried out within a period of
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three months, from the date of receipt of certified copy of this order. The
petitioner shall obtain a certified copy of this order and place the same before
the respondent authorities within a period of one week from today.
18. In terms of above, this writ petition stands disposed of.
JUDGE
Comparing Assistant
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