Gauhati High Court
WP(C)/6435/2017 on 16 July, 2025
GAHC010145152017
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Principal Seat at Guwahati
WP(C) No. 6435/2017
1. Shri Mahendra Nath Mahanta,
Asstt. Teacher Rajapul L.P. School,
Nazira Sub-Division, Sivasagar.
2. Shri Chittaranjan Borgohain,
Asstt. Teacher, Phulanibari L.P. School,
Nazira Sub-Division, Sivasagar.
3. Shri Ajit Kalita,
Asstt. Teacher, 215 No Channasha L.P. School,
Nazira Sub-Division, Nazira.
4. Shri Amulya Dutta,
Asstt. Teacher, Bahbari Mazdoor L.P. School,
Nazira Sub-Division, Nazira.
5. Shri Kamal Bailung,
Asstt. Teacher, No.981 Nagaon L.P. School,
Nazira Sub-Division, Sivasagar.
6. Shri Raju Konwar,
Asstt. Teacher, Ougurijan L.P. School,
Nazira Sub-Division, Sivasagar.
7. Shri Rantumoni Khanikar,
Asstt. Teacher, Tom Tom Tola L.P. School,
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Nazira Sub-Division, Sivasagar.
8. Shri Lakheswar Das,
Asstt. Teacher, 653 No Molagaon (2) L.P. School,
Nazira Sub-Division, Sivasagar.
9. Shri Padmeswar Gogoi,
Asstt. Teacher, Chah Sramik Gyanjyoti L.P. School,
Ligipukhuri, Nazira Sub-Division,
Sivasagar.
10. Shri Mahendra Gogoi,
Asstt. Teacher, Naga Gaon L.P. School,
Nazira Sub-Division, Sivasagar.
11. Shri Mridupaban Goswami,
Asstt. Teacher, Bengamuria Konwar Gaon L.P. School,
Nazira Sub-Division, Sivasagar.
12. Shri Balin Ch. Baruah,
Asstt. Teacher, Balighat Tribal L.P. School,
Nazira Sub-Division, Sivasagar.
13. Shri Basanti Rajkumari,
Asstt. Teacher, 483 No. Rajshok Tipomia L.P. School,
Nazira Sub-Division, Sivasagar.
14. Shri Sudarshan Prasad,
Asstt. Teacher, 6 No. Lakhimijan L.P. School,
Nazira Sub-Division, Sivasagar.
......Petitioners.
-Versus-
1. State of Assam,
Represented by Commissioner & Secretary to the
Govt. of Assam, Elementary Education Department,
Dispur, Guwahati-6.
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2. The Secretary to the Govt. of Assam,
Finance Department, Dispur, Guwahati-6.
3. The Director,
Elementary Education, Assam,
Kahilipara, Guwahati-19.
4. The Deputy Commissioner,
Sivasagar, Assam, Pin-785640.
5. District Elementary Education Officer,
Sivasagar, Assam, Pin-785640.
6. The Deputy Inspector of Schools,
Nazira, Sivasagar, Assam, Pin-785685.
7. The Block Elementary Education Officer,
Nazira, Sivasagar, Assam, Pin-785685.
......Respondents.
with
WP(C) No. 2516/2018
1. Shri Purnananda Chetia,
Asstt. Teacher, Namsaijan L.P. School,
Nazira Sub-Division, Sivasagar, Assam.
2. Shri Dipak Rajkhowa,
Asstt. Teacher, Jyoi Praja Basti L.P. School,
Nazira Sub-Division, Sivasagar, Assam.
3. Shri Dimbeswar Hatimuria,
Asstt. Teacher, Mohan Gaon L.P. School,
Nazira Sub-Division, Sivasagar, Assam.
Page 3 of 32
……Petitioners.
-Versus-
1. The State of Assam,
Represented by Commissioner & Secretary to the
Govt. of Assam, Elementary Education Department,
Dispur, Guwahati-6.
2. The Secretary to the Govt. of Assam,
Finance Department, Dispur, Guwahati-6.
3. The Director,
Elementary Education, Assam,
Kahilipara, Guwahati-19.
4. The Deputy Commissioner,
Sivasagar District,
Sivasagar, Pin-785640, Assam.
5. District Elementary Education Officer,
Sivasagar, PO-Sivasagar, Pin-785640, Assam.
6. The Deputy Inspector of School,
Nazira, PO-Nazira, Pin-785685, Sivasagar, Assam.
7. The Block Elementary Education Officer,
Nazira, PO-Nazira, Pin-785685, Sivasagar, Assam.
……Respondents.
BEFORE
HON’BLE MR. JUSTICE ROBIN PHUKAN
Advocate for the petitioners :- Mr. S. K. Goswami.
Advocate for the respondents :- Mr. P. N. Sharma,
Standing Counsel Elementary
Education Deptt.
Page 4 of 32
(R-1,3,5,6 & 7)
:- Ms. K. Phukan,
Government Advocate. (R-4)
Date of Hearing :- 23.05.2025
Date of Judgment & Order :- 16.07.2025
JUDGEMENT & ORDER (CAV)
Heard Mr. S. K. Goswami, learned counsel for the petitioners.
Also heard Mr. P.N. Sharma, learned Standing Counsel, Elementary
Education Department for the respondent Nos. 1, 3, 5, 6 & 7 and
Ms. K. Phukan, learned Government Advocate for the respondent
No.4.
2. As agreed upon by learned counsel for both the parties and as
common question of facts and law are involved in these two writ
petitions, being WP(C) No. 6435/2017 and WP(C) No. 2516/2018, it
is proposed to dispose of both the writ petitions by this common
judgment and order.
3. It is to be noted here that WP(C) No. 6435/2017, is instituted by
as many as fourteen petitioners for issuing direction to the
respondent authorities for permanent retention of the posts of the
petitioners and to delete their names from the list of excess
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teachers of Sivasagar district and also to issue direction to the
respondent authorities to pay their current salary as well as arrear
salary, from the month of March, 2016, till date.
4. And WP(C) No. 2516/2018, is preferred by three petitioners for
issuing direction to the respondent authorities to pay the current
and arrear salary from the month of March, 2016, and also to issue
direction to the respondent authorities for permanent retention of
the petitioners and to delete their names from the list of excess
teachers.
The factual matrix
5. The petitioners in both the writ petitions were initially
appointed under the Operation Black Board (O.B.B.) Scheme in
different lower primary Schools of Nazira Sub-Division of Sivasagar
district. Their names were reflected in the incumbency list of 610
numbers of O.B.B teachers of L.P. School of Nazira, Sub-Division,
created under O.B.B (CSS) Scheme vide Government letter No.
PMA/158/94, dated 18.01.1995. After joining their posts, the
petitioners had completed Junior Basic Training and thereafter, they
were granted the regular scale of pay. Thereafter, the post of the
petitioners were brought under Non-Plan, vide Govt. letter No.
PMA/158/94/341, dated 23.12.1999, and thereafter, they have not
received their regular salaries, though there was an annual retention
order.
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6. Then, being aggrieved, the petitioners had approached this
Court by filing a writ petition, being WP(C) No. 5031/2014, and vide
order dated 02.04.2015, this Court was pleased to direct the
respondent authorities to pay current salary as well as regular salary
to the petitioners. Thereafter, the authorities have sanctioned the
arrear salary w.e.f. 01.03.2012 to 29.02.2016. But, thereafter, again
the salary of the petitioners were withheld by the authority without
any reason. The name of the petitioners have been included in the
list of excess teachers in Sivasagar district without any reason, and
though they were appointed against valid sanction post and their
names were reflected in the retention order, dated 09.01.2012, as
well as in the order dated 09th September, 2013, issued by the
Deputy Secretary to the Govt. of Assam, Elementary Education
Department, Dispur, Guwahati. But, the names of the petitioners
have wrongly been included in the list of excess teachers, as a
result, they have not received their regular salaries. Being
aggrieved, the petitioners have approached this Court with the
aforesaid prayer.
Stand of the Respondents:-
7. The respondent No.2, the Secretary to the Government of
Assam, has filed an affidavit-in-opposition stating that none of the
statement and averment made in the paragraph Nos. 1 to 33, of the
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writ petition, being W.P.(C) No. 6435/2017 have a reference to
Finance (SIU) Department, Government of Assam and no proposal
with regard to the subject matter of the instant writ petition has
been received from the Education Department and as such, it is
contended to exempt the respondent No.2 from further proceeding
of the instant case.
8. The respondent No.1, in its affidavit stated that the petitioners
have prayed for deleting their names from the list of excess
teachers of Sivasagar district and to pay their regular salary and
they also claim to be appointed as Stipendary Teachers in the year
1995, by the then Deputy Inspector of Schools, Nazira and though
they have claimed having been appointed against the 610 numbers
of post created under O.B.B (CSS) Scheme, they have failed to
substantiate the said claim by annexing any document in support of
the genuineness of their appointment and they were appointed
without any selection process, against non-existent post, dehors
Rule, and initially they had received salaries up to 2003-04, though
they were appointed against non-existent posts, yet, on completion
of Junior Basic Training the petitioner were allowed to draw regular
scale of pay. However, due to shortage of budget, the salary of the
petitioner was stopped in the year 2004. Since, the petitioners were
appointed against the non-existent posts and that many such
teachers were appointed across the State during the period of 1989
and also from 1991 to 2001, without following proper procedure,
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against non-existent posts, which came to the notice of the
Government, when it was detected that the number of incumbents
were more than the total sanctioned/budget allotted posts.
8.1. It is also stated that the Government had created 1528
numbers of supernumerary posts, in the Sivasagar district as a
whole, pursuant to order of this Court in a batch of writ petitions,
vide letter No. AEE.566/2008/138, dated 21.01.2009, and the
temporary retention and budget allocation in respect of 1476 nos. of
post out of 1528 nos. of post was accorded by the Government.
Accordingly, the petitioners had received their salaries up to
29.02.2016 after creation of supernumerary posts.
8.2. It is further stated that this Court, in various writ
proceedings, directed the Education Department to take a call in the
matter of regularization of irregular/illegal Teachers. Accordingly, in
terms of the order dated 02.03.2010, passed by this Court in WP(C)
No. 1048/2004, the Education Department had placed the matter of
regularization of illegal/irregular teacher before the Cabinet, in its
meeting held on 26.02.2011. Thereafter, the Education Department
had constituted a Screening Committee to examine the validity of
the appointments of the Teachers, who had claimed regularization
and salary. 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
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their regularization and entitlement of salary or otherwise.
Thereafter, the Director Elementary Education Assam had invited
applications from those irregularly/illegally appointed teachers
during the year 1991-2001, throughout the State by an
advertisement dated 01.02.2012, and 04.02.2012, in local
Nnewspapers.
8.3. And after the 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.
Thereafter, the Elementary Education Department, vide Notification,
dated 04.06.2014, had constituted 5 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.
8.4. Thereafter, the Divisional Screening Committees had verified
all the applications and submitted their reports with
recommendations/views to the Government for further action.
However, when complaints were received from various corners, the
Government directed for re-verification, in respect of the some of
the districts and the respective Screening Committees, after causing
re-verification submitted their reports to the Government and in the
said report following categories of Teachers were identified.
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Category-1 Recommended and working till date -136.
Category 2- Recommended, but discontinued jobs-250.
Category3- Not Recommended, but working till date -8470.
Category 4- Not Recommended and discontinued jobs-2900.
8.5. Further, it is stated that pursuant to the report of the
Screening Committee, a decision was taken to regularize the service
of the Teachers, who falls under the category no.1 and subsequently,
their services have been regularized. With regard to the 2nd category
of Teachers who were recommended, but discontinued services, the
question of their regularization of the service and payment of salary
does not arise since they are not in service. Similarly, in case of 4th
category, since they have discontinued, consideration of their cases
for regularization and payment of salary does not arise. In respect of
3rd category of Teachers, who were not recommended, but still in
service, it was decided to issue individual show cause notices to all
the 8470 Teachers, and 766 number of Teachers including 752
terminated teachers of Dhemaji and Lakhimpur districts, indicating
therein to show cause as to why their appointments would not
deemed to be illegal/irregular and as to why they should not be
removed from service, for being appointed in violation of the existing
Rules.
8.6. Thereafter, pursuant to discussion between the Minister of
Education and the Teachers Association of irregular/illegal Teachers,
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the Education Minister had suggested that the Department has to
take a decision to solve the problem of these Teachers and
accordingly, the Departmental Committee was formed by the
Government to verify salary status and qualification of those category
3 – illegal/irregular appointees. Thereafter, the committee has
prepared three lists:-
List-1 The Teachers who had received salaries at some point of
time and having JBT/D.El.Ed. (The numbers of Teachers
included in the List-1, was 1574)List-2 The Teachers who received salaries at some point of time
not having JBT/D.El.Ed. (Then numbers of Teachers
included n the List-2, was 2060.)List-3 The Teachers who had neither received salaries nor
qualified the training i.e. JBT/D.El.Ed. (The numbers of
Teachers included in the List-3 is 7250.)8.7. Thereafter, to solve the problem, a Cabinet Memorandum was
prepared and placed before the Cabinet and finally the Cabinet has
approved:-
(a) The proposal for accommodation of those Teachers, who
had received their salaries up to 2007 and had 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. ThosePage 12 of 32
posts will cease to exist as and when the incumbent retires
from services. (i.e., List-1 as Teacher)
(b) The proposal, for accommodation of those, who received
their 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)8.8. It is also stated that out of the 14 petitioners, 3 numbers of
petitioners, namely, Sri Rantumoni Khanikar (Petitioner No.7), Sri
Mohendra Gogoi (Petitioner No.10) and Sri Sudarshan Prasad
(Petitioner No.14) had been appointed as newly accommodated
Teacher, with prospective effect, on the basis of the Cabinet approval
dated 07.10.2020. In respect of Sri Mahendra Nath Mahanta
(Petitioner No.1) and Sri Chitraranjan Borgohain (Petitioner No.2)
though they had participated in the screening process and fulfilled
the criteria as laid down in the Cabinet Memorandum, however, they
could not be appointed as newly accommodated Teacher, since in the
meantime they had attained the age of superannuation on
30.04.2020 and 31.05.2019 respectively. In respect of remaining
petitioners, that petitioner Nos. 3, 4, 5, 6, 8, 9, 11, 12 & 13 they did
not participated in the said screening process and therefore, they
could not be accommodated in any of the posts of Tutor or Teacher.
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8.9. It is also stated that the petitioners were illegally appointed
against non-existent posts in contravention of Rules 3 of the Assam
Elementary Education (Provincialisation) Rules, 1977, which provided
the method of recruitment, by public participatory selection process
by issuance of advertisement and they were selected against non-
existent posts in contravention of the Rules without an
advertisement, which amounts to breach of Article 14 & 16 of the
Constitution of India and as such, they are not entitled to any salary.
9. The petitioners had filed their affidavit-in-reply to the aforesaid
affidavit of respondent No. 1, wherein it is stated that from the
documents of the Department itself reveals that the petitioners were
appointed against 610 nos. of posts under O.B.B (CSS) Scheme. And
from the letter dated 31.08.2006 (Annexure-15 of W.P.(C) No.
6435/2017), written by the Deputy Inspector of Schools to the
Director of Elementary Education, Assam clearly reflects that the
petitioners were appointed against the aforementioned 610 nos. of
post and their names finds mention in the incumbency list and those
post were retained under Nazira Sub-Division. And as such, the
averments made in paragraph No.4, in the affidavit in opposition of
respondent No. 1 is totally false and that they were originally
appointed as Stipendiary Teachers at fix salary of Rs. 900/- and
thereafter, they had successfully completed Basic Training Course
and thereafter, they were given the regular scale of pay and
thereafter, the petitioners GPF accounts were also open and there is
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permanent retention order of the post of Primary Teachers, as per
letter dated 31.08.2006, (Annexure -15) and that the statements
made in paragraph Nos. 5 & 6 of the affidavit are also incorrect as
the petitioners had received their salaries up to the year 2003 and
2004 rather the letter of the Deputy Inspector of Schools, clearly
discloses the creation of posts and yearly retention of the same for
Nazira Sub-Division.
9.1. It is also stated that the order of the Director, Elementary
Education, Assam dated 31st July, 2009, (Annexure-16 in WP(C)
No.6435/2017), also clearly reflects that the service of the petitioners
were brought under Non-Plan w.e.f. 01.03.2009 to 28.02.2010 and
thereafter, vide letter dated 9th September, 2013, the Deputy
Secretary to the Government of Assam, Elementary Education
Department had informed the Accountant General, Assam to convey
the sanction of Governor for temporarily retention of 5472 numbers
of posts of L.P. School Teachers for the period w.e.f. 01.03.2013 to
28.02.2014, and thereafter, the petitioners were paid regular salary
up to 29.02.2016 and thereafter, the authority had not released the
salary of the petitioners though they were holding regular sanctioned
posts, because of their inclusion in the list of excess Teachers under
Sivasagar district.
9.2. It is also stated that this Court in WP(C) 870/2012, and also in
WP(C) No. 5031/2014, had directed the authorities to pay the current
Page 15 of 32
as well as arrear salary of the petitioners from the date of receipt of
certified copy of the order and a Division Bench of this Court had also
disposed of the analogous case, being W.P.(C) No. 840/2007 vide
order dated 19.05.2010, and directed the authorities that
arrear/dues, with effect from 01.12.2009 to 30.04.2010, shall be paid
by the Government to the concerned and all other teachers, within
one month and also to ensure payment of monthly salary to the
teachers, latest by 15th of each succeeding month, and as such, the
question of making further statement in affidavit-in-opposition filed
by the respondent authorities that the petitioners were appointed
against non-existent posts does not arise and that they had received
salaries up to 29.02.2016 and they have already completed Junior
Basic Training, so the petitioners do not come under the Cabinet
Memorandum also. It is a fact that the petitioner Nos.7, 10, 14 were
appointed on the basis of Cabinet approval dated 07.10.2020. But,
they also do not come under the Cabinet Memorandum as the
Cabinet had approved appointment of those Teachers who had
received salaries up to 2007.
9.3. Further it is stated that the averment in the affidavit-in-reply
that petitioner Nos. 3, 4, 5, 6, 8, 9, 11, 12 & 13 had not appeared
before the Screening Committee, is false and untrue, as the D.E.E.O.,
Sivasagar, vide its letter dated 15th January, 2021 (Annexure-4) had
forwarded the list of Teachers, who had appeared before the
Screening Committee and their names were dropped out and that
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Shri Prabin Kumar Sharma, the then Deputy Inspector of Schools
Nazira, submitted a detailed report (Annexure-5), to the Director of
Elementary Education, Assam in connection with WP(C)
No.2950/2016, and from the said report, it is clear that the
petitioners of the present petitions were appointed by the then
Deputy Inspector of Schools, Nazira against the 610 numbers of
posts created vide Government Creation letter No. PMA.158/94,
dated 18.01.1995, in the year 1995-96, under the O.B.B. Scheme.
The names of the petitioners were also included in the incumbency
list of 610 posts and the said list shows that the petitioners were
illegally deprived of their permanent retention, and under such
circumstances, it is contended to dismiss the petition.
10. Mr. Goswami, learned counsel for the petitioners submits that
the petitioners had received salary up to 2016, and a Division Bench
of this Court in WP(C) No. 840/2007, vide order dated 19.05.2010,
has directed that the arrear dues, w.e.f. from 01.12.2009 to
30.04.2010, shall be paid by the Government to the concerned and
all other Teachers, within one month, from that day and also directed
the respondents to ensure payment of monthly salaries to the
Teachers latest by 15th of each succeeding month. But, the
aforementioned order has clearly been violated by the respondent
authorities.
10.1. Mr. Goswami, further submits that as per report of the
Screening Committee, 1528 numbers of excess Teachers had figured
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in the list prepared by them and the name of one Teacher, namely,
Gopal Kalita, was also included in the aforementioned list, but as per
direction of the Director Elementary Education, Assam, the District
Elementary Education Officer, Sivasagar had deleted his name from
the list of excess Teachers and he had regularly received salaries and
also received pension on retirement.
10.2. Mr. Goswami, also submits that the order of the Division
Bench in WP(C) No. 840/2007 and also of the Single Bench in WP(C)
No. 5031/2014 dated 02.04.2015 has not been challenged by the
respondents and that the petitioners had received salaries up to
2016, for which they does not come under the purview of the Cabinet
Memorandum and the said Cabinet Memorandum is applicable to
those Teachers who had received salary up to 2007, and that the
petitioners have never received any termination order nor received
any notice and they are still continuing their services and in the
meantime, two petitioners namely, Mahendra Nath Mahanta and
(Petitioner No.1), Shri Chittarranjan Borgohain (Petitioner No.2) had
retired on 30.04.2020 and 01.06.2019 and that the petitioners were
illegally deprived of getting their salaries and other benefits and
therefore, Mr. Goswami, has contended to allow both the petition.
11. On the other hand Mr. Sharma, learned Standing Counsel for
the respondents in Elementary Education Department submits that
the petitioner were appointed without any selection process by the
then Deputy Inspector of Schools against non-existent posts, dehors
Page 18 of 32
the Rule and that the Government had created 1528 nos.
supernumerary post under the Sivasagar district as a whole, as per
order of this Court, vide letter dated 21.01.2009, Memo No.
AEE.566/2008/138, and the petitioners had received their salaries up
to 2009 to 2016, after creation of supernumerary posts.
11.1. Mr. Sharma, also submits that in order to regularize the
post of teachers, the Director of Assam, Elementary Education, had
invited application from the irregularly/illegally appointed teachers
during the year 1999-2001, throughout the State, videa
Advertisement, dated 01.02.2012 and 04.02.2012 in local
newspapers. Thereafter, applications were received from
regularly/illegally appointed teachers throughout the State total
12085 numbers of applications were found in order and the same
were submitted to the Government for penal verification and
thereafter, five Screening Committees were constituted. Thereafter,
on the basis of the list prepared by the said committees, it was
decided to resolve the issue of illegally/irregularly appointed teachers
by preparation of Cabinet Memorandum and as per aforesaid Cabinet
Memorandum one Rantumoni Khataniar (Petitioner No.7), Mahendra
Gogoi (Petitioner No.10) and Sudarshan Prasad (Petitioner No. 14)
have been appointed as newly accommodated Teachers with
prospective effect and that Mahendra Nath Mahanta (petitioner No.1)
and Shri Chittaranjan Borgohain (Petitioner No.2) have filed another
writ petition, being WP(C) No 2677/2021, which is pending before
this Court for consideration and vide order dated 09.04.2021, interim
Page 19 of 32
direction was issued to the Elementary Education Department to
determine the amount in provisional pension, if admissible to the
petitioners, under the law and thereafter, to pay the provisional
pension from the month of May, 2021, followed by COP(C) No.
201/2022 and accordingly vide No. E-249479/189, dated 21.03.2023
the Secretary to the Government of Assam, Department of School
Education had rejected their prayer and the remaining petitioners i.e.
petitioner nos. 3, 4, 5, 6, 8, 9, 11, 12 and 13 did not participate in
the said screening process and they could not be accommodated as
either as Tutor or as Teacher under the illegally/irregularly appointed
category and in connection with COP(C) No. 195/2018, another
speaking order was passed by the Secretary to the Government of
Assam, on 10.08.2023, vide Memo No. ECP-249479/222, and the said
case was considered and rejected and that the petitioners were
appointed against non-existent posts dehors the Rule, and without
advertisement which amounts to breach of Article 14 & 16 of
Constitution of India. Under such circumstances, Mr. Sharma has
contended to dismiss the petition in support of his submission.
11.2. Mr. Sharma has also referred to the following decisions in
support of his submission:-
(i) Sankha Nath Pegu Vs. State of Assam and others,
reported in 2006 2 GLR 764,
(ii) Manashi Goswami Vs. State of Assam and Ors,
reported in 2009 (1) GLT 729,Page 20 of 32
(iii) State of Bihar Vs. Upendra Narayan Singh and
others, reported in (2009) 5 SCC 65,
(iv) Nagendra Chandra and others, Vs. State of
Jharkhand and others, reported in (2008) 1 SCC 798
and
(v) Jagannath Kr. Dey and ors Vs State of Assam and
Ors., reported in 2010 (3) GLT 632.
12. Having heard the submissions of learned counsel for both the
parties, I have carefully gone through the petition and the documents
placed on record and also carefully gone through the decisions
refereed by Mr. Sharma, learned counsel for the respondent
authorities.
13. It is not in dispute that the petitioners in WP(C) No. 6435/2017
were appointed as Stipendiary Teacher, as per the regulations under
OBB Scheme, against 610 numbers of posts, created by the
Government, vide Government Letter No. PMA.158/94, dated
18.01.1995. Their date of appointment and the School against their
name, are being is shown in the chart below:-
Sl. Name of Petitioner Date of Name of School
No. appointment
01. Mahendra Nath Mahanta. 16.09.1995 Rajapul Primary School
02. Chitraranjan Borgohain 16.09.1995 Phulanibari Primary School
03. Ajit Kalita 16.09.1995 Sanbacha Primary School
04. Amulya Dutta 16.09.1995 BahbariPrimary School
05. Kamal Bailung 16.09.1995 581 No. Na- Gaon Primary School
06. Raju Konwar 16.09.1995 Ouguri Gaon Primary School
07. Rantumoni Khanikar 16.09.1995 Tam Tam Tala Primary School
Page 21 of 32
Sl. Name of Petitioner Date of Name of School
No. appointment
08. Lakheswar Das 30.01.1996 No.2 Molagaon Primary School
09. Padmeswar Gogoi 16.09.1995 Ligiripukhuri Cha Samik
Gyanjyoti Primary School
10. Mahendra Gogoi 16.09.1995 No-Pam Naga Primary School
11. Mridupawan Goswami 16.09.1995 Bengmuria Primary School
12. Balin Ch. Baruah 16.09.1995 Balighat Tribal Primary School
13. Basanti Rajkumari 16.09.1995 483 No. Rajachok Primary School
14. Sudarshan Prasad 16.09.1995 6 No. Lakhimijan Primary School
13.1 It is also not in dispute that the petitioners in WP(C) No.
2516/2018 were appointed as Stipendiary Teacher, as per the
regulations under OBB Scheme, against 610 numbers of posts
created by the Government, vide Government Letter No.
PMA.158/94, dated 18.01.1995. Their date of appointment and the
School against their name is shown in the chart below:-
Sl. Name of Petitioner Date of Name of School
No. appointment
01. Purnananda Chetia 30.01.1996 Namsaijan Primary School
02. Dipak Rajkhowa 30.01.1996 Jyoti Praja Basti Primary School
03. Dimbeswar Hatimuria 30.01.1996 Mohan Gaon Primary School
14. Further, it is not in dispute that the petitioners, in WP(C) No.
6435/2017, having been so appointed, had undergone Basic Training
Course and on successful completion of said course, all the
petitioners were allowed to draw regular scale of pay w.e.f.
12.06.2001, vide orders dated 03.01.2002, 28.01.2002, 03.01.2002,
and w.e.f. 12.08.2002, vide Order dated 30.12.2002, w.e.f.
12.03.2002 vide order dated 09.04.2003, w.e.f. 25.09.2002, vide
Order dated 09.04.2003, w.e.f. 22.11.2001 vide Order dated
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18.09.2002, w.e.f. 12.06.2001 vide Order dated 03.01.2002, w.e.f.
22.11.2001, and vide Order dated 25.11.2002, respectively. Their
Service Books were also prepared by the authority and their GFP
Accounts were started and their contributions were regularly
deducted. Further, it is not in dispute that the name of the petitioners
appeared in the Annexure-15, the incumbency list of 610 nos. of
Teachers for the permanent retention of their posts, under Nazira
Sub-Division at Sl. No. 604, 562, 590, 607,571, 608, 443, 133, 605,
353, 305, 598, 374 and 565 respectively, which was forwarded to the
Director, Elementary Education, Assam, by the Deputy Inspector of
Schools, Nazira.
14.1 It is also not in dispute that the petitioners, in WP(C) No.
2516/2018, having been so appointed, had undergone Basic Training
Course and on successful completion of said course, all the
petitioners were allowed to draw regular scale of pay w.e.f.
12.06.2001, vide order dated 25.02.2002, 03.01.2002 respectively.
Further, it is not in dispute that the name of the petitioners appear in
the Annexure-4 series, the incumbency list of 610 numbers of
teachers for the permanent retention of the posts, under Nazira Sub-
Division at Sl. No. 596, 576 and 563 respectively.
14.2 It also appears that their names appeared in the original list of
OBB teachers (Annexure-17 of WP(C) No.6435/2017), under Nazira
Sub-Division forwarded by the Deputy Inspector of Schools, Nazira to
the District Elementary Education Officer, Sivasagar. It is also not in
dispute that those posts originally created, vide Letter No.(1)
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PMA.158/94, dated 18.01.1995, and were brought under Non-Plan
vide letters (1) No.PMA.158/94/207, dated 12.10.99, (2)No.
PMA.158/94/341 dated 23.12.1999 and (3) No. PMA.158/94/352
dated 08.02.2000 and retained vide last letter No.
PMA.158/94(A)/1047 dated 31.08.2012. And this was informed to the
Accountant General of Assam, vide letter dated 09.09.2013
(Annexure-18 of WP(C) No. 6435/2017).
Order of Division Bench dated 19.05.2010 in WP(C) No. 840
of 2007 and WP(C) No. 522/2007, and violation of the
directions issued therein:-
15. It is also not in dispute that the before the aforesaid
communications, the Government had stopped the salary of the
petitioners. There being left with no option, the petitioners, with
some of the similarly situated teachers of Nazira Sub-Division, had
approached this Court for redressal of their grievance by filing writ
petitions being WP(C) No. 840 of 2007 and WP(C) No. 522/2007, for
issuing direction for payment of salary and allowances and a Division
Bench of this court vide order dated 19.05.2010, (Annexure-19 of
WP(C) No.6435/2017) had directed the respondent No. 2 to 7 of the
said petitions to pay arrear/dues with effect from 01.12.2009 to 30th
April 2010, that shall be paid by the Government to the concerned
and all other Teachers within one month from the date of order, i.e.
19.05.2010, and also directed that the Government and its Officers
shall ensure payment of monthly salary to the Teachers latest by 15th
of each succeeding months.
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15.1 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 their family and
standard of life, and that the respondents, in our opinion, cannot be
allowed to say that because of budgetary provisions or for some
reasons 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.
16. Pursuant to the said order, dated 19.05.2010, the petitioners
had received salaries up to February, 2012. Thereafter, again they
had not received salaries due to various anomalies committed by the
Deputy Inspector of Schools, Nazira to give salary to excess Teachers
appointed subsequently in the year 1999. Thus, the state
respondents had least bothered to disobey the direction issued by the
Division Bench of this Court and that too with impunity. Indisputably,
the state respondents had not challenged the said order of the
Division Bench in appeal not filed any review petition to review the
same. That being so, they have no discretion to disobey the mandate
in the said decision.
The Case of Gopal Kalita and violation of rights of the
petitioners guaranteed under Article 14 and 16 of the
Constitution of India:-
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17. It appears that one of the Teachers, namely, Gopal Kalita of
Nazira Sub-Division, whose name was reflected at Sl. No. 37 of the
list of Teachers, had complained to the Director, Elementary
Education, Assam in respect of non-receipt of regular salary. The
Director, vide his letter dated 23.11.2011, directed the District
Elementary Education Officer, Sivasagar to release monthly salary of
Gopal Kalita and also directed to cause an enquiry as to for whose
fault, the name of Gopal Kalita was included in the list of 1528 excess
teachers of Sivasagar District.
18. It appears that thereafter, the present petitioners had filed
another writ petition before this Court being WP(C) No. 5031/2014,
for releasing the current and arrear salary and then this Court vide
order dated 02.04.2015, directed the authority to pay current and
arrear salary within three months from the date of receipt of certified
copy of that order. But, for non-compliance of the said order by the
respondent authority, the petitioners had initiated a contempt
proceeding, being Contempt Case No. 559/2015 and pursuant to the
notice issued in the said contempt petition, the respondent had
released the salary of the petitioners up to 29.02.2016, from
01.03.2012.
19. Thereafter, the petitioners have not been receiving their
salaries till filing of the petition. It appears from the affidavit in reply
filed by the petitioners against the affidavit-in-opposition filed by the
respondent No.1 that though the petitioners were holding regular
sanctioned posts because of inclusion of names of the petitioners in
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the list of excess teachers under Sivasagar district their salaries,
could not paid. Further, it appears that in view of the order dated
19.05.2010, passed in WP(C) No. 840 of 2007 and WP(C) No.
522/2007, by the Division Bench of this Court, there is no scope for
the respondent authorities to take such a stand.
20. It also appears that the petitioners had appeared before the
Screening Committee and petitioner No.1, namely, Mahendra Nath
Mahanta and petitioner No.2- Shri Chitraranjan Borgohain were not
recommended by the said Committee as they had already retired on
30.04.2020 and 01.06.2019 respectively. It is not in dispute that
Cabinet Memorandum has been issued by the Principal Secretary for
regularization of irregular/illegally appointed teachers who had
received salaries up to 2007 and had successfully completed Junior
Basic Training/D. El.Ed., by creating supernumerary posts with
prospective effect. But, as contended the petitioners herein had
received salaries up to 29.02.2016 and they have already completed
Junior Basic Training Course. Further, it appears that petitioner No. 7
– Shri Ratnumani Khanikar, petitioner No.10 – Shri Mahendra Gogoi
and petitioner No. 14- Shri Sudarshan Prasad who were appointed
with effect from the date of Cabinet Approval dated 07.10.2020, also
do not come under the purview of the Cabinet Memorandum.
Further it appears that petitioner No.3 Shri Ajit Kalita, petitioner No.4
Shri Amulya Dutta, petitioner No. 5 Kamal Bailung, petitioner No.6
Raju Konwar, petitioner No.8 – Shri Lakheswar Das , petitioner No.9 –
Shri Padmeswar Gogoi, petitioner No. 11 -Shri- Mridupawan
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Goswami, petitioner No.12 Balin Ch. Baruah and petitioner No.13 Shri
Basanti Rajkumari also participated in the Screening Committee, in
view of the letter dated 15th January, 2021 (Annexure-4 of affidavit-
in-reply) by which the DEEO, Sivasagar had forwarded the list of
teachers who had appeared before the said Committee.
21. It is also not in dispute Shri Gopal Kalita, who is also similarly
situated with the present petitioners, has been receiving regular
salaries and also retained permanently. His name was also included
in the list of 1528 numbers of excess teachers, but the same was
deleted from the said list as per letter of the Deputy Secretary, Govt.
of Assam 11.11.2011, (Annexure-20 of WP(C) No.6435/2017), after
an enquiry and the present petitioners also similarly situated with him
but, they seems to be discriminated for no good reason.
22. It is also not in dispute that the petitioner No.1, namely,
Mahendra Nath Mahanta and petitioner No.2 Chitraranjan Borgohain
had already retired on superannuation on 30.04.2020 and
01.06.2019, without receiving salary since 01.03.2016 and other
pensionary benefits. They returned home with empty hand after
rendering their services for more than 4 and 3 years respectively.
23. Under the given facts and circumstances, the stand, so taken by
the respondents herein, appears to be unsustainable. After availing
their services till their retirement on 30.04.2020 and 01.06.2019, now
the respondent authority, in a welfare state, like ours, cannot deny
their legitimate claim of salary. The stand of the respondent authority
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that they were appointed illegally against non-existent posts appears
to be ex-facie illegal and arbitrary and also contrary to their own
documents. And this denial of salary amounts to violation of their
rights guaranteed under Article 14, 16 and 21 of the Constitution of
India.
24. Though, the respondent authorities had taken a stand that the
petitioners were appointed illegally by the then Deputy Inspector of
Schools, Nazira against non-existent posts, and that their names
were included and identified as excess teachers, 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
petitioners. It appears that Annexure No. 15 of WP(C) No.6435/2017
is the letter of Deputy Inspector of Schools, Nazira, in connection
with incumbency list of 610 teachers under Nazira Sub-Division,
wherein the names of the petitioners of both the writ petitions
appears. Annexure-1 (series) to Annexure-14 (series) of WP(C)
No.6435/2017 are the Order of Appointment of the petitioners and
the Orders, regarding grant of regular scale of the petitioners after
successful completion of their Basic Training Course. These posts
were originally created, vide Letter No.(1) PMA.158/94, dated
18.01.1995 were brought under Non-Plan vide letter No.(1)
PMA.158/94/207 dated 12.10.99, (2)No. PMA.158/94/341 dated
23.12.1999 and (3) No. PMA.158/94/352 dated 08.02.2000 and
retained vide last letter No. PMA.158/94(A)/1047 dated 31.08.2012,
and this fact is apparent from the letter dated 09.09.2013 (Annexure-
Page 29 of 32
18 of WP(C) No.6435/2017) written by the Deputy Secretary to the
Govt. of Assam, Elementary Education Department, Dispur, Guwahati
to the Accountant General of Assam.
Doctrine of Non-Traverse and its implication in the present
proceeding:-
25. Notably, the respondent authorities had not disputed any of the
documents as mentioned herein above, as Annexure No.1 to 10. The
statement 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 as the respondents had
failed to traverse the pertinent pleas which 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 to 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.
26. 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 to carry out the
followings:-
(i) to retain the posts of the concerned petitioners
permanently;
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(ii) to delete their names from the list of access teachers of
Sivasagar district;
(iii) to pay the current salary as well as arrear salary of the
petitioners who are still serving from the month of
March, 2016, till their retirement and to extend
consequential service benefits and also to release the
arrear salary and other consequential benefits including
monthly pension to those petitioners who had already
retired on superannuation.
Equitable Relief and Interest upon the Arrear Salary and
Pension:-
27. Further, in the given facts and circumstances on the record,
there appear to be special equities, which would justify the grant of
such interest 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 March, 2016, upon the entire amount, till the payment being
made to the petitioners.
28. The aforementioned exercise shall be carried out within a
period of three months, from the date of receipt of certified copy of
this order. The petitioners shall obtain a certified copy of this
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judgment and order and place the same before the respondent
authorities within a period of one week from today.
29. In terms of above, these writ petitions stand disposed of.
JUDGE
Comparing Assistant
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