RABIA KHATUN vs STATE OF ASSAM AND 5 ORS

Heard Mr. HR Ahmed, learned counsel for the petitioner. Also heard Mr. N Sarma, learned Standing counsel, Elementary Education Department

Assam.

The petitioner was initially appointed as a stipendary teacher as per the order dated 28.02.1984. One of the condition of the appointment order was

that the petitioner will be given stipend of Rs.200/- per month for a period of one year w.e.f. the date of joining and on completion of one year, she will

be deputed to undergo a junior basic training course for a period of one year, during which period, she will be given an additional amount of Rs.50/- per

month. Thereafter on successful completion of the junior basic training course, the petitioner would be paid the regular scale of pay i.e., Rs.500/- -

Rs.875/- per month.

It is the case of the respondents that inspite of being given two opportunities, the petitioner failed to pass the junior basic training course, and,

therefore, her services were terminated w.e.f.01.01.1987.

The petitioner approached this Court by way of CR No.171/1990, which was disposed of by the order dated 07.11.1990 by providing that the

petitioner be given a third chance to appear in the junior basic training course and if she passes the said examination, the respondent authorities may

consider her for appointment as a teacher.

It is apparently clear that the Division Bench of this Court had not interfered with the termination of the petitioner but had provided that in the event,

she passes the junior basic training course on the third attempt, the authorities may consider her for appointment.

In the meantime, the petitioner successfully completed the junior basic training course in the year 1991. As she was not given the appointment, upon

successful completion of the course she again approached this Court by way of WP(C)No.2655/2003. The said writ petition was disposed of by the

order dated 11.11.2003 by observing that on the earlier occasion, this Court had provided that in the event, she successfully completes the junior basic

training course on the third attempt, the respondent authorities may consider her for appointment as teacher. However, by the said order, the Director

of Elementary Assam was directed to dispose of the representation of the petitioner which was filed on 19.04.2001. Consequently, the order dated

04.07.2005 was passed by the Commissioner and Secretary to the Govt. of Assam in the Education Department, wherein it was held that as the

petitioner had crossed the upper age limit for government employment, therefore, her claim for appointment stood rejected. However, the same

Commissioner and Secretary had passed another order of 29.12.2005 which provided to the contrary that pursuant to this Court’s order, the

Director of Elementary Education Assam was directed to adjust the petitioner as LP School Teacher against any vacant post in the Barpeta district. It

is stated that the said order was in compliance of this Court’s order dated 07.11.1990 and 11.11.2003. in CR No.171/1990 and

WP(C)No.7914/2005 respectively and also WP(C) No.7914/2005. It is noted that as on 29.12.2005 when the said order was passed,

WP(C)No.7914/2005 was still pending, and, therefore, the order could not have been made pursuant to any order of this Court in

WP(C)No.7914/2005.

After the order of 29.12.2005 was passed, the same was produced by the learned Standing counsel for the Education Department before this Court

in WP(C)No.7914/2005 and by taking note of the said order, the writ petition was disposed of by providing that no direction to the respondents can be

issued by this Court.

Thereafter, strangely, the Commissioner and Secretary to the Govt. of Assam passed another order dated 30.03.2009 purportedly indicating that it

was done pursuant to the order dated 11.11.2003 in WP(C)No.2655/2003 and 01.02.2006 in WP(C)No.7194/2005. By the said order, the

Commissioner and Secretary had directed the authorities to consider and sanction the adjustment of the petitioner w.e.f. the date of coming out

successful in the junior basic training course.

It is not understood why the Commissioner and Secretary has passed that order. Although it is stated by Mr. HR Ahmed, learned counsel for the

petitioner that it was pursuant to the order dated 01.02.2006 passed in WP(C)No.7194/2005, but on a reading of the said order, it is noticed that no

such direction was there that the petitioner be given the benefit from the date of passing out the junior basic training course. Such act on the part of

the Commissioner and Secretary is deprecated and the Education Department in future should be cautious in not passing such orders by misconstruing

and wrongly placing a reliance on the orders of this Court. However, the Director had made a communication dated 06.10.2009 to the Secretary to the

Govt. of Assam in the Elementary Education Department for recalling the said order by stating that as the petitioner has not rendered any service for

the said period, therefore, she is not entitled to any kind of arrear salary for the purpose. It is not known as to what had happened thereafter, but the

petitioner preferred another writ petition being WP(C)No.1561/2012, claiming for an implementation of the order dated 30.03.2009 of the

Commissioner and Secretary. The said writ petition was disposed of by the order of 30.03.2012 wherein it was provided that the said order be

implemented if the same is still in force and has not been in any way modified or revised by any authority including the Commissioner and Secretary.

The order of this Court is amply clear that the order of the Commissioner and Secretary dated 30.03.2009 is to be implemented if it is not modified by

any authority including the Commissioner and Secretary meaning thereby that an authority other than the Commissioner would also have the authority

to modify it.

It is also noticed that the communication dated 06.10.2009 of the Director was not produced before this Court while the said order was passed.

The order of the Director dated 06.10.2009 is a clear indication that the petitioner is not entitled to arrear salary from the date on which she had

passed the junior basic training course, inasmuch as, she was not in service and there was no sustainable order which had provided that the order of

termination of the petitioner was interfered with or that it be deemed that she was in service or that she was reinstated.

In the aforesaid circumstances, a subsequent order dated 10.04.2013 of the Commissioner and Secretary, Elementary Education Department

rejecting a claim for arrear salary has been assailed in this writ petition. The main ground of assailing the said order is that the provision thereof is

contrary to the earlier order dated 30.03.2009 of the Commissioner and Secretary as well as the order dated 30.03.2012 of this Court in

WP(C)No.1561/2012. As indicated and explained above, neither the order dated 30.03.2009 of the Commissioner and Secretary nor the order dated

30.03.2012 of this Court entails the petitioner to avail the benefit of having the arrear salary from the date of passing out the junior basic training

course, inasmuch as, no valid exercise was undertaken to determine the right of the petitioner to receive the arrear salary for the aforesaid period. The

order of the Commissioner and Secretary dated 30.03.2009 does not determine the factual situation as to whether the petitioner was rendering her

services for the said period nor does it take into account the true purport of the order dated 07.11.1990 which only provided that the petitioner may be

appointed, upon successful completion of the junior basic training course after the third attempt without interfering with the earlier order of termination.

Further the said order also amounts to a review of the earlier order of the Commissioner dated 29.12.2005 where under the administrative law, an

administrative authority ordinarily does not have a power of review of its own order and that to suo motu.

In such view of the matter also the order of 30.03.2012 of the Commissioner and Secretary cannot be made the basis of arriving at a conclusion

that the petitioner is entitled to arrear salary from the date of passing out of junior basic training course and, more so, in a factual situation where she

was not in service for the said period.

In view of the above, this writ petition is dismissed being devoid of any merit.