JYOTI BARUAH AND 8 ORS Vs. STATE OF ASSAM AND 4 ORS
LAWS(GAU)-2018-7-12
HIGH COURT OF GAUHATI
Decided on July 10,2018

Jyoti Baruah And 8 Ors Appellant
VERSUS
State Of Assam And 4 Ors Respondents

JUDGEMENT

Manojit Bhuyan, J. - (1.) This intra-court appeal, preferred by 9 (nine) persons, is directed against the judgment and order dated 7.8.2014 passed in WP(C) 6071/2010, whereby challenge made to their termination orders as Assistant Teachers was negated.
(2.) Relevant facts are that the appellants had responded to an Advertisement/Employment Notice dated 27.12.1996, inviting applications for the post of Assistant Teachers in M.V. Schools under the Elementary Education Department, Government of Assam. The appellants, all hailing from the district of Lakhimpur, appeared for selection before the Sub-Divisional Level Advisory Board of Dhakuakhana and four years later i.e. on 5.3.2001 the selection list was prepared, containing 81 names, which was forwarded for government approval. The appellants were appointed vide orders dated 12.3.2001 and 17.3.2001 respectively, issued under the hand of the District Elementary Education Officer (DEEO), Lakhimpur at different M.V. Schools in Dhakuakhana Sub-Division of Lakhimpur district. The first setback to their appointments came in the garb of the order dated 30.5.2001 of the Director of Elementary Education, Assam (DEE) declaring the appointments as illegal with direction to the district authorities to cancel all such appointments. Ground assigned was that some appointments had been made during the second-half of the month of March 2001 just prior to issuance of the Notification for the General Assembly Elections in the State of Assam, with joining process continuing when the Model Code of Conduct of the Election Commission was in force. This order was put to challenge in 3 (three) writ petitions i.e. WP(C) 4433/2001, WP(C) 4280/2001 and WP(C) 4712/2001 (the third one by the appellants herein). Interim order dated 29.6.20012 passed in WP(C) 4712/2001 allowed the respondents to enquire into the alleged illegal appointments and to pass appropriate orders in accordance with law, with further direction that the services of the appellants should not be disturbed without the leave of the Court or until the interim matter was heard and disposed of. The respondents were also directed to release the salaries for the period the appellants had put in service. Despite the interim order, the DEEO issued order dated 14.8.2001 cancelling the appointments which, however, was kept in abeyance by the subsequent order of the DEE, Assam dated 7.12.2001. The aforesaid three petitions, along with the connected miscellaneous cases, stood disposed of on 12.11.2003. This Court had noticed that in pursuance of the interim order dated 29.6.2001 an enquiry was made by the Principal Secretary to the Govt. of Assam, Education Department showing that the appellants were appointed during the period when the ban on appointment imposed by the State Government was operating and also without obtaining clearance of the State Level Empowered Committee (SLEC). The stand of the appellants was also noticed, in that, they were appointed after a due process of selection by the competent authority and, having already served for about three years, cannot be penalized for any lapse on the part of the appointing authority for having issued appointment orders during the ban period and without obtaining clearance from SLEC. The Court was of the view that the State Government has the power to regularise the appointment though made during the ban period. Further, as they were duly selected by the competent authority and were appointed against available sanctioned vacancies, it is proper to refer the matter to the State Government for consideration and necessary order. Accordingly, direction was made to the Commissioner & Secretary to the Govt. of Assam, Education Department, to place the matter before the SLEC for examination and for passing appropriate orders in accordance with law, keeping in mind the hardship that will ensue if the appellants are thrown out of service. The required exercise was directed to be completed within 3 (three) months and, until then, to allow the appellants to continue in service. Non-compliance of the aforesaid Court's order dated 12.11.2003 prompted filing of contempt case. The respondents released the salaries of 67 from the total 81 appointees, leaving out the appellants and few others from the salary benefit on ground that their appointments had been made against non-existent posts and declared excess, though selection was made in accordance with law. The left out 14 appointees, including the appellants, preferred WP(C) 8720/2003; WP(C) 8726/2003; WP(C) 8727/2003; WP(C) 8728/2003 and WP(C) 8729/2003. By common order dated 30.11.2004, the writ petitions were disposed of by noticing earlier orders of the Court for causing enquiry. The respondents were again allowed to make enquiry with the observation that if upon enquiry it is found that the writ petitioners therein were illegally appointed, the respondents may proceed in the matter in accordance with law, and if appointed pursuant to regular process of selection, necessary formalities towards regularisation/adjustment of their services and payment of salary be carried out. The entire exercise was directed to be carried out within 4 (four) months from the date of furnishing the certified copy of the order etc.
(3.) From the materials now placed by the appellants through the Additional Affidavit dated 6.12.2016 [not made available in the related writ proceeding i.e. WP(C) 6071/2010] as well as the office records produced in original, an enquiry had already been made by the DEEO, Lakhimpur, and to that effect a letter dated 21.7.2003 was addressed to DEE, Assam, stating, inter-alia, that as per office record Sri Depak Gogoi and nine others (appellants included) were appointed in March 2001 upon selection by the Sub-Divisional Selection Board, Dhakuakhana but on examination of records and the vacancy position at that time it was found that the 10 (ten) nos. of teachers had been appointed without vacant post, which was found excess. In this connection explanation was made that the dealing Assistant, one Md. Mudasir Ahmed, who retired in January 2002, wrongly submitted the vacancy position before the appointing authority and the authority also appointed them over-looking the fact. Further, that these appointees were serving since the date of appointment and therefore, their salaries be released after adjustment against vacant posts, if possible. The office records also contains the steps taken pursuant to aforementioned Court's order dated 30.11.2004, in the form of the Note Sheet dated 29.1.2005 of the Education Department (Legal Cell Branch). In the said Note, the appellants' case is laid out, also referring to the aforesaid letter of the DEEO, Lakhimpur dated 21.7.2003. The Note ended with the observation that in order to comply with the judgment of the Court, the 'LR' (Legal Remembrancer) may first be moved for a judicious view, after taking approval of the Commissioner & Secretary, Education Department. The view of the Judicial Department was rendered on 16.3.2005 and having regard to the report of the DEEO, Lakhimpur, it was opined that it appeared that appointments were made as per regular process of selection. It was suggested that the Government should carry out the necessary formalities towards their regularisation/adjustment and to release their salary as per the direction of the Court. On 4.5.2005, the Commissioner & Secretary to the Govt. of Assam, Education Department, issued direction to the DEE, Assam, to comply with the Court's order dated 30.11.2004 with prospective effect, provided that petitioners in the bunch of writ petitions were working regularly. The said direction was made upon the aforesaid approval of the Judicial Department dated 16.3.2005. Consequent thereto, two orders were passed by the DEE, Assam (i) order dated 16.6.2005, adjusting the appellant no.1 against a vacant post, and (ii) order dated 17.6.2005, adjusting the services of the remaining appellants against vacant posts, as shown in the respective orders.;


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