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Judgment
Mr. B. D. Goswami, learned counsel for the petitioners. Also heard Mr. B. Talukdar, learned Standing Counsel for the Secondary Education
Department.
The petitioners herein claim to have applied in response to an educational Notice published by the respondents in the year 1996 and upon being
successful in the resultant selection process and on the recommendation of the District Level Selection Board were appointed as Assistant Teachers
in the Scale of Pay of Rs.3,580-90-4480-120-4720-EB-120-5200-175-6600-250-8100-325-8750 PM plus other allowances, as per the order dated
20.03.2001 of the Inspector of School, Lakhimpur. The petitioners also claim that they were appointed against the sanctioned vacant post which had
fallen vacant on the retirement of one Sri Joykanta Chutia and Sri D. Dutta. It is also stated that as per the Govt. W.T. Message No. B (3)2-
123/2001/92 dated 25.03.2001, there was a partial modification of their orders of appointment dated 20.03.2001 whereby their pay was stated to be
Rs.2500/- per month instead of the scale pay.
As the petitioners were not even paid the fixed pay of Rs.2500/- per month, they preferred a writ petition being WP(C) No.3655/2003, which was
given a final consideration by the order dated 09.02.2012 giving the liberty to the respondents to act in the matter, in accordance with law. A further
liberty was given to the petitioners to agitate their grievance, if any, in any subsequent proceeding. It is also to be taken note of that by the order dated
09.02.2012 in the said WP(C) No. 3655/2003, the respondent authorities were directed to consider and pay the current salary of the writ petitioners as
admissible under Rules.
It is the grievance of the petitioners that in spite of the aforesaid orders by this Court, the petitioners had neither been paid either the scale of pay
nor the fixed pay of Rs.2500/- per month except for two months in the months of July and August, 2015. In the aforesaid premises the present writ
petition has been preferred seeking for a direction to the respondent authorities to pay their salary and allowances as admissible under the Rules, with
a further prayer that the scale of pay paid to the petitioner for July and August, 2015 be not recovered.
Mr. B.D. Goswami, learned counsel for the petitioner also brings it to the notice of this Court of a Notification dated 17.06.2015 by which about 79
numbers of Graduate Teachers in the Lakhimpur District, who were appointed in the year 2001 in excess of the 28 numbers of vacancies available at
that time, and are now working in different provincialised High/Higher Secondary Schools are paid an enhanced salary from Rs.2500/- per month to
Rs.15,500/- per month with prospective effect. The name of the petitioners find place at serial Nos. 18 and 19 of the said list.
It is apparent that the said benefits of pay enhancement from the Rs.2500/- per month to Rs.15,500/- per month was given even to the petitioners
upon accepting the fact that they are teachers, who were appointed in excess of the 28 available vacancies.
The respondent authorities have filed an affidavit-in-opposition, wherein in paragraph-6, it is stated that in the Lakhimpur District about 76 excess
appointments of Graduate Teachers were made without there being any vacancy, against a notified vacancy of 28. The respondents further take a
stand that at that relevant point of time, there was ban in appointment of Graduate Teachers and the appointments and the process of making the
appointment started only after the W.T. Message dated 23.03.2001, but in the case of the petitioners they were appointed on 20.03.2001 itself. Based
on the aforesaid stand, it is the contention of the respondent authorities that the petitioners were excess teachers and, therefore, they are not entitled to
the reliefs claimed in the writ petition. It is noticed that although it is the contention that the petitioners were appointed in excess of the 28 notified
vacancies, but no material has been indicated or relied upon to arrive at a conclusion that it is the petitioners who were the excess teachers and not
others.
When a stand is taken by the respondent authorities that a particular appointee was appointed in excess, the basic requirement would be to refer to
the concerned select list in order of merit and then find out who amongst the persons appointed are included in such select list, and thereupon an
exercise be taken to find out the number of vacancies available and if the name of the incumbent finds within the number of vacant posts in order of
merit, such appointees would have to be considered to have been legitimately appointed. Upon undertaking the exercise if any other appointees are
found, whose names are not included in the merit list, but appointed, such persons would have to be construed to have been appointed in excess.
Without undertaking the aforesaid exercise, it can neither be presumed nor be assumed that any person claiming for salary would necessarily have
to be an excess appointee. In such view of the matter the stand of the respondent authorities in its present form i.e., without undertaking the aforesaid
exercise, that the petitioners are excess appointees, is found to be unacceptable.
As regards the other stand of the respondent authorities, no contention has been raised that the Notification dated 17.06.2015 was not legitimately
issued or that the same was withdrawn in the meantime. If the notification of 17.06.2017 stands as of today and the name of the petitioner having
been included in the said Notification by referring them to be teachers appointed in excess of the 28 notified vacancies, still they are entitled to the
benefit of the enhanced pay scale from Rs.2500/- per month to Rs.15,500/- per month.
In this respect Mr. B. D. Goswami, learned counsel for the petitioners states that in respect of all the other 79 excess teachers referred in the
Notification dated 17.06.2015, they were paid at least the fixed pay per month, but the petitioners in spite of having an interim order from this Court,
were not so paid.
In the aforesaid premises, this writ petition stands disposed of by directing the Commissioner and Secretary to the Government of Assam in the
Secondary Education Department to verify from the record as to whether the petitioners were selected in order of merit within 28 notified vacancies.
In the event it is found that the petitioners were so selected on merit, all necessary consequential benefits including the salary from the date of initial
date of appointment be paid as may be admissible under the Rules.
In the event, upon undertaking the exercise, it is found that the petitioners were not within the merit list of 28 candidates, in such event, the
petitioners be considered to be excess teachers of 79 numbers, who were appointed beyond the 28 notified vacancies. Thereupon the Commissioner
and Secretary shall pass appropriate orders giving all the benefits to the petitioners as been given to the other similarly situated excess teachers
numbering 79 and not to discriminate the petitioners from such other excess teachers.
In doing so, the Commissioner and Secretary shall verify as to what salary was paid to the other of the 79 excess teachers and from when and at
what rate their salary were paid and accordingly give the same benefit to the petitioners.
The aforesaid exercise be done within a period of three months from the date of receipt of a certified copy of this order. In terms of the above,
this writ petition stands disposed of.