WA 79/2015. Gauhati High Court

Case Number:WA 79/2015
Judgement Date:February 23, 2021
Court:Gauhati High Court

I N THE GAUHATI HI GH COURT

(HI GH COURT OF ASSAM, NAGALAND, MI ZORAM & ARUNACHAL PRADESH)

Writ Appeal No. 79 of 2015

I n WP( C) No.5048 of 2012

Heramba Kumar Saikia & 50 Ors. …Writ Appellants.

-Vs-

The State of Assam & 7 Ors. …Respondents.

Writ Appeal No. 80 of 2015

I n WP( C) No.5144 of 2012

Hiranya Kumar Saharia & 56 Ors. …Writ Appellants.

-Vs-

The State of Assam & 7 Ors. ...Respondents.

Writ Appeal No. 81 of 2015

I n WP( C) No.1720 of 2014

Khirendra Sarma & 47 Ors. …Writ Appellants.

-Vs- The State of Assam & 5 Ors. ...Respondents.

Writ Appeal No. 147 of 2015 I n WP( C) No.2265 of 2013

Tarun Kumar Sarma …Writ Appellant.

-Vs-

The State of Assam & 6 Ors. …Respondents.

Writ Appeal No. 148 of 2015 I n WP( C) No.2132 of 2013

Kangkan Jyoti Das …Writ Appellant.

-Vs-

The State of Assam & 6 Ors. .…Respondents.

Writ Appeal No. 149 of 2015 I n WP( C) No.5051 of 2012

Balendra Sarmah & 28 Ors. …Writ Appellants.

-Vs-

The State of Assam & 6 Ors. …Respondents.

Writ Appeal No. 150 of 2015 I n WP( C) No.2133 of 2013

I mdad Ali …Writ Appellant.

-VsThe State of Assam & 6 Ors. …Respondents.

WA Nos.79, 80, 81, 147, 148, 149, Page 1 of 23 150, 151,152,155,156 of 2015

WA No.276 of 2016

Writ Appeal No. 151 of 2015 I n WP( C) No.2221 of 2013

Maya Sarkar …Writ Appellant.

-Vs-

The State of Assam & 6 Ors. …Respondents.

Writ Appeal No. 152 of 2015 I n WP( C) No.5050 of 2015

Abdul Karim & 32 Ors. …Writ Appellants.

-Vs-

The State of Assam & 6 Ors. …Respondents.

Writ Appeal No. 155 of 2015 I n WP( C) No.2217 of 2013

Smti Anima Kalita …Writ Appellant.

-Vs-

The State of Assam & 6 Ors. …Respondents.

Writ Appeal No. 156 of 2015 I n WP( C) No.2135 of 2013

Hiranya Saikia …Writ Appellant.

-Vs-

The State of Assam & 6 Ors. …Respondents.

Writ Appeal No. 276 of 2016 I n WP( C) No.699 of 2014

Sri Abhay Charan Sarmah & 15 Ors. …Writ Appellants.

-Vs-

The State of Assam & 5 Ors. …Respondents.

BEFORE

HON’BLE MR. JUSTI CE HRI SHI KESH ROY HON’BLE MR. JUSTI CE NELSON SAI LO

For the Appellants : Mr. D Das, Senior Advocate in WA No.79 of 2015

Mr.B Chetri, Advocate in WA Nos. 80 and 81 of 2015

Mr.G Alam, Advocate in WA Nos. 147, 148, 149, 150, 151, 152, 155 and 156 of 2015

Md.Gias Uddin , Advocate in WA No. 276 of 2016

For Respondents : Mr. PN Goswami, Standing Counsel, Elementary

Education for Respondent Nos. 1 to 5

Mr. M Nath, Advocate for Chairman, Sub Divisional Level Section Board (Respondent No. 6)

WA Nos.79, 80, 81, 147, 148, 149, Page 2 of 23 150, 151,152,155,156 of 2015

WA No.276 of 2016

Date of hearing : 7.2.2017, 8.2.2017, 9.2.2017 and 14.2.2017 Date of judgment : 23.02.2017

JUDGEMENT AND ORDER( CAV) [ Nelson Sailo, J. ]

These batches of writ appeals (12 in all) has been preferred against the common judgment and order rendered by the learned Single Judge on 23.9.14 whereby altogether 24 writ petitions which were all taken up together were dismissed.

2. The facts in brief as projected by the writ appellants/ writ petitioners (hereinafter referred to as the appellants) is that Employment Notice dated

28.12.1996 was issued by the Director of Elementary Education, Assam inviting application from interested candidates for 7500 vacant posts of Assistant Teachers of provincialized Middle/ Middle English Madrassa/ Upper Basic/ Lower Basic School/ Lower Primary School of various districts of Assam. Thereafter, in exercise of the powers conferred under Rule 3(v) of the Assam Elementary Education (Provincialisaton) Amendment Rules, 1997, the Sub-Divisional Level Selection Board (herein after referred to the Selection Board) was constituted by the Governor comprising of 17 members including the Chairman, vide Notification dated 30.4.1997.

3. The appellants accordingly responded to the Employment Notice against the post of Assistant Teacher of Lower Primary School for the district of Darrang and appeared before the Selection Board on various dates between May to June, 1997 and upon being selected, they were appointed by the Deputy I nspector of School by appointment orders which were either dated 20.11.1999 or 4.12.1999 on temporary basis as stipendiary teacher on a monthly stipend of Rs.1800/ -. I t was also indicated that a regular pay scale as prescribed by the revision of pay

WA Nos.79, 80, 81, 147, 148, 149, Page 3 of 23 150, 151,152,155,156 of 2015

WA No.276 of 2016

Rule, 1998 would be given on completion of 1 year Basic Training. Further, it was also indicated that the appointment was made against the post created originally vide Govt. Letter under Memo No. PMA-158/ 94 dated 18.1.1995.

4. I n terms of the appointment order, the appellants joined their respective posts and thereafter vide order under Memo No. SB/ D/ 3/ 45-182 dated

17.1.2002 issued by the Block Elementary Education Officer, Sipajhar, Darrang, the petitioners were released from their duties on 17.1.2002 to enable them to join their respective training centres as was indicated in their appointment orders. On completion of such training, the appellants were issued their respective Primary Teachers Training Course Certificate by the District Institute of Education and Training, Darrang, Dalgaon.

5. While the appellants were working in their respective schools, an allegation was made that the appointments made by the authority concerned on

20.11.1999 and 4.12.1999 were illegal as the same was made without selection and approval of the Selection Board. As a result, an enquiry was conducted by Sri TC Kataki, EAC against the alleged illegal appointments of LP School Teachers as directed by the Deputy Commissioner, Darrang.

6. The appellants produced their relevant documents before the Enquiry Officer to establish their claim that they were duly selected and appointed by the Selection Board after due process and approval. However, the Enquiry Report that was submitted on 15.7.2003 to the District Magistrate by the Enquiry Officer reflected that no records or documents etc. were made available from the Deputy I nspector of Schools, Mangaldoi and that the appointments made on

20.11.1999 and 4.12.1999 were all illegal and irregular as these appointments were made without the selection and approval of the Selection Board and it was recommended that the District Elementary Education Officer/ Deputy I nspector of Schools be directed to take immediate steps for suspension/ cancellation of the appointment of the L.P. Teachers as per provision of law.

WA Nos.79, 80, 81, 147, 148, 149, Page 4 of 23 150, 151,152,155,156 of 2015

WA No.276 of 2016

7. Pursuant to the Enquiry Report that was submitted, the Secretary to the Government of Assam, Education Department vide his communication under Memo No. A(I )E/ 1023/ 2003/ 24 dated 22.1.2004 instructed the Director of Elementary Education, Assam to cancel the illegal appointments of teachers numbering 302 in Mangaldoi Sub-Division after affording them an opportunity of personal hearing. I t was also mentioned that the preparation of pay bill arrear and salaries in respect of these teachers be stopped forthwith.

8. The Director of Elementary Education upon receipt of the aforesaid letter dated 22.1.2004 issued by the Secretary to the Govt. of Assam, Education Department instructed the District Elementary Education Officer, Darrang to cancel the illegal appointments of the teachers after affording them an opportunity of hearing in terms of the instruction given by the Government.

9. Prior to the above decision of the State Government, certain persons who were aggrieved with the notice asking them to appear before their Enquiry Officer along with their papers following the allegation of illegal appointments made against them approached this Court by filing W.P.(C) No.6631/ 2003. However, during the pendency of the writ petition, the Magisterial Enquiry that was challenged was concluded with a report that the appointments that were made on 20.11.1999 and 4.12.1999 were illegal and irregular as it was without selection and approval of the Selection Board. This Court while disposing of the writ petition vide order dated 14.2.2008 after expressing its displeasure on the Enquiry Report being misplaced, directed the Deputy Commissioner, Darrang, Mangaldoi to make available a copy of the said Report to the Commissioner and Secretary, Government of Assam, Elementary Education Department. The Commissioner and Secretary, Government of Assam, Elementary Education Department thereafter issued instruction to the Director of Elementary Education, Assam to serve a Show Cause Notice upon the teachers that were appointed on 20.11.1999 and 4.12.1999 and further instructed that on failure to Show Cause and proof that they were genuinely appointed, the said teachers should be discharged from their services with the approval of the Government.

WA Nos.79, 80, 81, 147, 148, 149, Page 5 of 23 150, 151,152,155,156 of 2015

WA No.276 of 2016

Such communication was made vide Memo No. EI C/ WP(C)6631/ 2003/ 1084/ 202 dated 10.6.2008.

10. Upon receiving the Show Cause Notice, the appellants submitted their reply and personal hearing was conducted for the 302 teachers of the Darrang Disrict who were identified as illegal teachers after the enquiry was held by the Deputy Commissioner, Darrang in the year 2003. The said enquiry was conducted by Smt. Esther Kathar who submitted her report on 17.6.2010. The said Enquiry Report dated 17.6.2010 was then submitted to the Government by the Director of Elementary Education.

11. As the appellants in the meantime had not received their salaries and in some cases, despite completion of the Basic Training Course and having already enjoyed the time scale of pay, the pay of some of the teachers were reverted to the Stipendiary status and as a result, the aggrieved appellants filed WP(C) Nos. 1028, 1029 and 4081 of 2009 seeking payment of their salaries as well as for restoration of the time scale of pay in case of those teachers whose pay scales were reverted back as stipendiary teachers.

12. The said writ petition was disposed of by a common...

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