Gauhati High Court
Ashok Singh vs The State Of Assam And 4 Ors on 10 April, 2025
Page No.# 1/14
GAHC010247782022
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/660/2023
ASHOK SINGH
S/O- LATE INDRAJIT SINGH, R/O- VILL- AIENAKHAL TE, P.O-
MONACHERRA, DIST- HAILAKANDI, ASSAM
VERSUS
THE STATE OF ASSAM AND 4 ORS
TO BE REP. BY THE SECRETARY TO THE GOVT OF ASSAM, SECONDARY
EDUCATION DEPTT, DISPUR, GHY- 6
2:THE DIRECTOR
SECONDARY EDUCATION
ASSAM
KAHILIPARA
GHY- 19
3:THE COMMISSIONER AND SECRETARY
TO THE GOVT OF ASSAM
FINANCE DEPTT
DISPUR
GHY- 06
4:THE INSPECTOR OF SCHOOL
HAILAKANDI
ASSAM
5:THE HEAD MASTER
OF MONACHERRA HIGH SCHOOL
P.O- MONACHERRA
DIST- HAILAKANDI
ASSA
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Advocate for the Petitioner : MR. J LASKAR, MR R DAS
Advocate for the Respondent : SC, EDU, MR. D F A AHMED,SC, FINANCE
BEFORE
HONOURABLE MR. JUSTICE ROBIN PHUKAN
ORDER
10-04-2025
Heard Mr. J. Laskar, learned counsel for the petitioner and Mr. N.J.
Khataniar, learned standing counsel for the Secondary Education Department.
2. In this petition, under Article 226 of the Constitution of India, the petitioner
has prayed for issuing direction to the respondent authorities for releasing the
current as well as the arrear salary of the petitioner, w.e.f. 01.06.1998.
Background Facts:-
3. The background facts leading to filing of this petition are adumbrated herein
below:-
“The petitioner was appointed as Grade – IV employee in the
Monacherra High school, Monacherra in the District of Hailakandi, by
the Managing Committee of the said school, vide order dated
26.06.1982, when the school was in venture stage. Subsequently, his
service was provincialised vide order dated 26.04.1985, w.e.f.
01.02.1985, as Grade – IV employee of the school and he received
salary from 01.02.1985 to 31.01.1996, as Grade – IV employee.
Thereafter, on 30.01.1996, the petitioner was promoted to Lower
Division Assistant (LDA) in the said school and he joined his upgraded
post on 01.02.1996, and he received salary from 01.02.1996 to
31.05.1998. However, since then he has not been receiving salary due
to non-retention of the post.
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Being aggrieved, the petitioner had approached this Court by
filing a writ petition, being W.P.(C) No. 5626/2000, and the said writ
petition was disposed of by this Court, vide order dated 24.03.2004,
directing the respondent authorities to consider the appeal filed by the
petitioner on 14.10.1999, within a period of two months and also
directed to release the salary of the petitioner w.e.f. June, 1998.
Thereafter, several inter and intra departmental communications
were made, but till date no steps has been taken to release his current
as well as the arrear salary w.e.f. 01.06.1998.
Being aggrieved, the petitioner has approached this Court by
filing the present petition, seeking the relief(s) mentioned herein
above.
4. The respondent No. 2, the Director of Secondary Education, Assam has filed
an affidavit-in-opposition, wherein it is stated that the petitioner was appointed as
Grade – IV employee by the Managing Committee of Monacherra High School,
Monacherra, when the school was in venture stage. Subsequently, his service was
provincialised w.e.f. 01.02.1985, vide order No. PC/Sec/21/84/8, dated
26.04.1985, issued by the Director of Secondary Education, Assam and
accordingly, the petitioner received his salary from 01.02.1985 to 31.01.1996.
4.1. It is also stated that the Government in Education Department had
sanctioned 5 posts of Lower Division Assistant (LDA), vide order No.
EPG.567/91/113, dated 16.11.1991, in the scale of pay of Rs. 1065/- to 2095/-
plus other allowances as admissible under the Rules, for the district of Hailakandi.
Then the Inspector of Schools, vide order dated 30.01.1996, allotted one LDA post
to Monacherra High School and accordingly, the petitioner was upgraded to LDA in
the same school, w.e.f. the date of his joining against the said sanctioned post. It
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is also stated that the appointment of the petitioner was made on ad-hoc basis
and subject to selection of selection board or until further order, whichever earlier.
4.2. Further, it is stated that the petitioner had joined his post on 01.02.1996,
and received his salary from 01.02.1996 to 31.05.1998. However, since
01.06.1998, the petitioner has not received his salary due to non-retention of the
said post. Thereafter, the petitioner had preferred a writ petition, being WP(C) No.
5626/2000 and while disposing of the said writ petition, on 24.03.2004, this Court
observed as under:-
“.. the respondents cannot be oblivious and absolved of
the duties for a meaningful consideration of the case of
the petitioner towards regularization of his service and
payment of salary stated to be payable from June, 1998,
which however will be dependent on consideration of the
services of the petitioner beyond June 1998. If the
services of the petitioner have been utilized on the
basis of his appointment in the year of 1996, the
respondent irrespective of regularization of the services
of the petitioner are bound to pay the salary to the
petitioner.”
4.3. Thereafter, a proposal was submitted to the Government, vide letter No. GB-
EST/DSE/CC/174/2005/53, dated 04.07.2007, for approval of ex-post facto
retention of the post w.e.f. 01.06.1998 to 31.12.2004, under plan budget of a
supernumerary post, w.e.f. 01.06.1998 to 31.12.2004 and w.e.f. 01.01.2005, for
the service of the petitioner may be allowed for adjustment against vacant LDA
post in J.C. Higher Secondary School. Thereafter, several correspondences were
made for regularization of service of the petitioner as per order of this Court.
Accordingly, a list comprising 100 numbers of appointees including the name of
petitioner was sent to the Government, vide letter No. PC/SEC/46/97/Pt-III/153,
dated 01.07.2017.
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4.4. Thereafter, the Government vide letter No. ASE 283/2013/766, dated
09.11.2017, intimated that the matter has been consulted with Judicial
Department who has opined that “If the concerned workers were not appointed
against vacant sanctioned posts, they are not entitled to regularization. However, if
they subsequently selected through a regular selection process for vacant
sanctioned posts conducted as per existent rules, they may be appointed, if
necessary, by granting age condonation benefit within permissible limits”.
4.5. Thereafter, the Finance Department also regretted its inability to agree to the
proposal for regularization of the petitioner’s service which was included in the
proposal sent to the Government, vide letter dated 01.07.2017. Thereafter, vide
Letter No. PC/SEC/46/97/Pt-III/179, dated 19.04.2018, the Government had
informed that out of total 100 numbers of employee, only 11 employees are under
45 years of age who can avail the benefits of age relaxation and the same was as
per Personnel (B) Department’s Office Memorandum No. ABP.73/89/17, dated
04.01.1992. And in the instant case, the petitioner did not fulfill the age relaxation
or condonation under the aforesaid Office Memorandum.
4.6. It is also stated that Hon’ble Supreme Court in the case of State of Orissa
vs. Mamata Mahanty, reported in (2011) 3 SCC 436 and also in the case of
Government of Andhra Pradesh vs. K. Brahmanand, reported in (2008) 5
SCC 241, wherein it is held as under:-
“No person can be appointed without advertisement and
participating in the selection process and mere
continuance in service wrongly appointed in posts do not
confer such appointee any right to claim any relief
including salary and that liability of the State to pay
salary to a teacher appointed in the recognized schools
would arise provided the provisions of the statutory
rules are complied with.”
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4.7. Again in the case of Suresh Mani Sukla vs. District Inspector of
Schools, Deoria, reported in (2009)15 SCC 436, Hon’ble Supreme Court has
held as under:-
“It is true that the appellant has worked for a long
time. His appointment, however, being in contravention of
the statutory provision was illegal, and, thus void ab
initio. If his appointment has not been granted approval
by the statutory authority, no exception can be taken
only because the appellant had worked for a long time.
The same by itself, in our opinion, cannot form the basis
for obtaining a writ of or in the nature of mandamus; as
it is well known that for the said purpose, the writ
petitioner must establish a legal right in himself and a
corresponding legal duty in the State. Sympathy or
sentiments alone, it is well settled, cannot form the
basis for issuing a writ of or in the nature of
mandamus”.
4.8. It is also stated that the arrear salary claimed by the petitioner is also barred
by the delay and laches. It is held by Hon’ble Supreme Court in the case of MR
Gupta vs. the Union of India, reported in 1995 (5)SCC 628, that the claim
for recovery of arrear shall be restricted for the period of 3 years.
4.9. It is also stated that the appointment of the petitioner was made on ad-hoc
basis and subject to the selection of selection board or until further order,
whichever earlier. Therefore, the recruitment of the petitioner as a LDA in
Monacherra High School, under Hailakandi district was undertaken without
following any due recruitment proceedings or rules and it appears from the
records that no selection process was taken place subsequent to ad-hoc
appointment of the petitioner or no valid order has been passed to absorb him
against any sanctioned vacant post. As such, this writ petition is devoid of merit
and therefore, it is contended to dismiss the same.
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5. Mr. Laskar, learned counsel for the petitioner submits that the ground, on
which the respondent authorities has refused to release the salary of the petitioner
is not at all tenable in the eye of law. Mr. Laskar, further submits that the service
of the petitioner as Grade -IV employee in Monacherra High school was
provincialized on 26.04.1985, w.e.f. 01.02.1985 and he received salary from
01.02.1985 to 31.01.1996, as Grade – IV employee. Thereafter, on 30.01.1996,
the petitioner was promoted to LDA in the said school and he received salary up to
31.05.1998, as LDA. However, since then he has not been receiving salary due to
non-retention of the post and the petitioner is not at all responsible for the same
and it is the respondent authorities, who are responsible for the same. Mr. Laskar,
further submits that having utilized his service by the respondent authorities, now
they cannot deny his salaries on account of non-retention of the post and
therefore, it is contended to allow the petition.
6. On the other hand, Mr. Khataniar, learned standing counsel for the respondent
authorities sticks to the contention made in the affidavit-in-opposition and submits
that the petitioner has not claimed his salaries within a period of three years from
31.05.1998. As such, in view of the decision of Hon’ble Supreme Court in the case
of MR Gupta (Supra), he is not entitled to arrear salaries. Mr. Khataniar further
submits that the petitioner was appointed without any advertisement in the said
post and no selection process was conducted and that mere continuance of service
in wrongly appointed post do no confer any right to claim any relief. Mr. Khataniar
also submits that being contrary to the statutory provision, the appointment of the
petitioner to the post of LDA is illegal and therefore, it is contended to dismiss the
petition.
7. Having heard the submissions of learned counsel for both the parties, I have
carefully gone through the petition as well as the documents placed on record and
also gone through the decision of Mr. Khataniar, learned standing counsel for the
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respondent authorities.
8. It is not in dispute that the service of the petitioner was provincialized as
Grade – IV employee in Monacherra High School on 26.04.1985, w.e.f. 01.02.1985
and he received salary up to 31.01.1996. Further, it is not in dispute that the
Government had created five numbers of LDA post in the scale of pay of Rs.
1065/- to 2095/- plus other allowances as admissible, vide Order No.
EPG.567/91/113, dated 16.11.1991 (Annexure – B) and one of the said post was
allotted to Moncherra High School. Thereafter, Inspector of Schools, Hailakandi,
the respondent No. 4, had upgraded the petitioner to act as an LDA employee in
the said school in the above mentioned pay scale. It is also not in dispute that,
vide order dated 30.01.1996, the appointment of the petitioner was made on ad-
hoc basis and subject to selection by the selection board or until further order
whichever is earlier.
9. That, perusal of the record also reveals that the petitioner had approached
this Court by filing a writ petition, being W.P.(C) No. 5626/2000, and the same was
disposed of vide order dated 24.03.2004, by directing the respondent authorities
to consider the appeal filed by the petitioner on 14.10.1999, within a period of two
months and also directed to release the salary of the petitioner w.e.f. June, 1998,
if he was in service, on the strength of his appointment in the year 1996 and also
to consider the fact that he had been rendering service in Monacherra High School
from 1982, for 22 years.
9.1. Despite such direction of this Court, the respondent authorities have failed to
carry out the said exercise. Rather is has come with some new grounds, which
appears to be not at all tenable in the eye of law.
10. The judgment of this Court, dated 24.03.2004, passed in W.P.(C) No.
5626/2000, indicates that the petitioner had preferred an appeal on 14.10.1999, to
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the Director of Secondary Education and on such count, the respondent authorities
cannot be allowed to claim that the petitioner had not claimed his salary within a
period of three years. That being so, the stand taken by respondent herein, got no
legs to stand upon.
11. The perusal of the Annexure – C indicates that the petitioner was appointed
on ad-hoc basis and subject to selection by the selection board or until further
order whichever is earlier. The respondent authorities had not terminated him from
service at any point of time. Rather, they had utilized his service for 22 years, as
observed by a Co-ordinate Bench of this Court in the order dated 24.03.2004, in
W.P.(C) No. 5626/2000, with no payment being made, not to speak of
regularization of his service.
12. Notably, it is not the pleaded case of the respondent authorities that
selection board was constituted and selection was carried out. Thus, having failed
to constitute the selection board and to carry out the selection process, the
appointment of the petitioner, shall have to continue as per terms and conditions
in his appointment letter i.e. Annexure – ‘C’, until further order. Now, the term
‘until further order’ would operate as estoppels, in all its amplitude and
plenitude, against the respondent authorities in taking a contrary stand.
13. Thus, having utilized the service of the petitioner and now denial of his claim
by the respondent authorities for no fault of him, is not only arbitrary but also
illegal and it constitutes an act of exploitative enslavement and is oppressive,
suppressive and coercive. His rights, as guaranteed under Article 14 and 16 of the
Constitution of India, besides his right to life, as enshrined in the Article 21, are
violated.
14. It is well-settled that salaries and pensions are due as a matter of right to
employees. Since, the petitioner had rendered his services for 22 years, his
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entitlement to the payment of salary is intrinsic to the right to life under Article
21 and right to property which is recognized by Article 300A of the Constitution.
15. The Hon’ble Supreme Court in the case of the State of Andhra Pradesh &
Others vs. Smti Dinavahi Lakshmi Kameswari, in Civil Appeal No. 399
of 2021 (arising out of SLP No. 12553 of 2020) has observed that:
“The direction for the payment of the deferred portions
of the salaries and pensions is unexceptionable. Salaries
are due to the employees of the State for services
rendered. Salaries in other words constitute the rightful
entitlement of the employees and are payable in
accordance with law. Likewise, it is well settled that
the payment of pension is for years of past service
rendered by the pensioners to the State. Pensions are
hence a matter of a rightful entitlement recognised by
the applicable rules and regulations which govern the
service of the employees of the State.”
16. In such a situation, what would be the duty of the Court, is aptly explained in
the case of D.S. Nakara v. Union of India, reported in (1983) 1 SCC 305,
wherein a five-Judge Constitution Bench of the Hon’ble Supreme Court had held
that :-
8.1. It is not necessary for us to narrate the factual
controversy adjudicated upon in this case. In fact, the
main issue, which arose for consideration, pertained to
pension, and not to wages. Be that as it may, it is of
utmost importance to highlight the following observations
recorded in the above judgment:
“32. Having succinctly focussed our attention on the
conspectus of elements and incidents of pension the
main question may now be tackled. But, the approach
of court while considering such measure is of
paramount importance. Since the advent of the
Page No.# 11/14Constitution, the State action must be directed
towards attaining the goals set out in Part IV of
the Constitution which, when achieved, would permit
us to claim that we have set up a welfare State.
Article 38(1) enjoins the State to strive to promote
welfare of the people by securing and protecting as
effective as it may a social order in which justice–
social, economic and political — shall inform all
institutions of the national life. In particular the
State shall strive to minimise the inequalities in
income and endeavour to eliminate inequalities in
status, facilities and opportunities. Article 39(d)
enjoins a duty to see that there is equal pay for
equal work for both men and women and this directive
should be understood and interpreted in the light of
the judgment of this Court in Randhir Singh v. Union
of India [Randhir Singh v. Union of India, (1982) 1
SCC 618.
Revealing the scope and content of this facet of equality,
Chinnappa Reddy, J. speaking for the Court observed as
under:
‘1. … Now, thanks to the rising social and political
consciousness and the expectations aroused as a
consequence, and the forward-looking posture of this
Court, the underprivileged also are clamouring for
the rights and are seeking the intervention of the
court with touching faith and confidence in the
court. The Judges of the court have a duty to redeem
their constitutional oath and do justice no less to
the pavement-dweller than to the guest of the five-
star hotel.’
17. It is the categorical contention of the petitioner that he has been rendering
his service in the aforementioned school since the date of his joining as LDA on
01.02.1996. Indisputably, he received his salary up to 31.05.1998, and since then
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he has not been receiving his salaries.
18. Under the given facts and circumstances, by a mandamus of this Court, the
respondent authorities are directed to release both arrear and current salaries of
the petitioner, w.e.f. 01.06.1998.
19. Since the petitioner is denied his rightful claim to his salary by the
respondent authorities, this Court deemed it appropriate and also equitable to
saddle interest upon the salary, receivable by the petitioner herein, as the same is
also a valuable right of the petitioner. It is to be noted here that while dealing with
the issue of interest leviable, Hon’ble Supreme Court in the case of D.D. Tewari
vs. Uttar Haryana Bulivitran Nigam Limited and others, reported in
2014 (8) SCC 894,has held that:
“……denial of interest from the date of entitlement
till the date of actual disbursement would take away the
valuable rights of the retired government servant. It was
reiterated in that decision that pension and gratuity are
not bounty to be distributed by Government to its
employees on their retirement, but are valuable rights
and property in its hands and any culpable delay in
settlement and disbursement thereof is to be visited with
penalty of payment of interest.”
20. Again in the case of S.K. Dua v. State of Haryana, reported in 2008
(3) SCC 44, while answering the issue as to whether the appellant therein was
entitled to interest on delayed payment of retiral benefits, in the absence of any
statutory rules/administrative instructions or guidelines, the Supreme Court held as
follows:
“In the circumstances, prima facie, we are of the view
that the grievance voiced by the appellant appears to be
well founded that he would be entitled to interest on
such benefits. If there are statutory rules occupying the
Page No.# 13/14field, the appellant could claim payment of interest
relying on such rules. If there are administrative
instructions, guidelines or norms prescribed for the
purpose, the appellant may claim benefit of interest on
that basis. But even in the absence of statutory rules,
administrative instructions or guidelines, an employee
can claim interest under Part III of the Constitution
relying on Articles 14, 19 and 21 of the Constitution.
The submission of the learned counsel for the appellant,
that retiral benefits are not in the nature of “bounty”
is, in our opinion, well founded and needs no authority
in support thereof. In that view of the matter, in our
considered opinion, the High Court was not right in
dismissing the petition in limine even without issuing
notice to the respondents.”
21. Thus, having relied upon the ratio laid down in the cases discussed herein
above and also balancing equities, it is provided that the salary, so receivable by
the petitioner herein, since 01.06.1998, shall interest @ 9% per annum.
22. The aforementioned exercise has to be carried out within a period of 2 (two)
months from the date of receipt of a 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 1 (one) week from today.
23. It is further provided that in the event of failing to carry out the directions
herein above, by the respondent No.2, 3 and 4 within the period stipulated, the
interest to be paid upon the salary receivable by the petitioner shall be recoverable
from the salary of the respondent No. 2, 3 and 4.
24. In terms of above, this petition stands disposed of. The parties have to bare
their own costs.
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JUDGE
Comparing Assistant