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Judgment
1.Heard Mr. N. Dhar, learned counsel for the petitioner and also heard Ms. R. R.
Choudhury, learned Standing counsel, Elementary Education Department for respondent Nos.1 to 5.
The petitioner’s contention herein is that the Managing Committee of K.C. Nandapur MV School, Bhangabazar in the district of Karimganj
during its venture stage by its resolution dated 15.09.1984 decided to appoint her as an Assamese Language Teacher in said school on honorary basis
until a post is sanctioned by the Government. Pursuant to the same, the Headmaster of said MV School on 16.09.1984 issued appointment letter to her
to that extent and accordingly, the petitioner on 18.09.1984 joined the said School as its Assamese Language Teacher. Later the Deputy Inspector of
Schools by his order dated 25.01.1985 allowed the petitioner to work as an Assamese Language Teacher on honorary basis without any remuneration
in said School w.e.f. 18.09.1984 or any other subsequent date on condition that the said authority will not be liable to pay her salary. The petitioner
duly accepted such terms and conditions and continued to serve in the said School.
With effect from 01.09.1986, said K.C. Nandapur MV School, Bhangabazar, district - Karimganj was brought under provincialisation under the
provisions of the Assam Elementary Education (Provincialisation) Act, 1974 but, the service of the petitioner was not provincialised and she remained
as a dropped teacher. Though she submitted representations before the authority concerned to provincialise her service as an Assamese Language
Teacher in said K.C. Nandapur MV School, but, her case was not considered.
As in the meanwhile, the District Elementary Education Officer (DEEO), Karimganj by his order dated 03.11.1993 regularised the service of one
Pratap Ch. Das, an Assamese Language Teacher of Imamganj ME School in the district of Karimganj, similarly placed as that of the petitioner, in
terms of an order of this Court dated 16.07.1993 and was paid his Grade Pay w.e.f. 01.09.1986, the date when said Imamganj ME School was
brought under provincialisation, the petitioner approached said DEEO, Karimganj for consideration of her case, but it was not considered. As such the
petitioner approached this Court in a writ petition being Civil Rule No. 5112/1996 for a direction to regularise her service as an Assamese Language
Teacher in said K.C. Nandapur MV School w.e.f. 01.09.1986 and for payment of her salaries in accordance with rules.
After hearing the parties, this Court by order dated 29.04.1998 disposed of said Civil Rule No. 5112/1996 of the petitioner with the following
observation :
“The case of the petitioner for regularisation shall be considered along with other similarly situated persons. The petitioner states that she has put
up service as honorary teacher for more than 14 years as on today. The petitioner shall file the certified copy of this order before the Respondent
Nos. 3 and 4 to do the needful in terms of this order. It will be found out whether her claim is correct. The petition stands disposed of. Heard Mr. N.
Dhar, learned counsel for the petitioner and Smti. Kalpana Yadav, learned Government Advocate, Assam for the respondents.â€
In pursuance of said order of the Court dated 29.04.1998, noted above, the then DEEO, Karimganj by his order dated 19.11.1999 regularised the
service of the petitioner as an Assamese Language Teacher from the date when a post fell vacant in Nabajagrata ME School, Badarpur, transferred
her from K.C. Nandapur MV School and posted her in said Nabajagrata ME School where a post of an Assamese Language Teacher was lying
vacant. The petitioner, on regularisation of her service, in terms of said order dated 19.11.1999 of the DEEO, Karimganj, joined as an Assamese
Language Teacher in said Nabajagrata ME School on 25.11.1999.
Since the order dated 19.11.1999 of the DEEO, Karimganj regularised her service from the date when the post of Assamese Language Teacher
fell vacant in Nabajagrata ME School, Badarpur and as the said post in said Nabajagrata ME School actually fell vacant on 10.09.1997, the petitioner
demanded her salary w.e.f. 10.09.1997, the Headmaster of said Nabajagrata ME School being drawing and disbursing officer refused to pay her the
same, as she joined the said school only on 25.11.1999, as the petitioner did not served in his school since 10.09.1997 to 24.11.1997 and therefore,
20.01.2000, he wrote to DEEO, Karimganj for necessary clarification. The DEEO, Karimganj on 22.02.2000 informed the Headmaster of said
Nabajagrata ME School that by his order dated 19.11.1999, the service of the petitioner was regularised by way of adjustment to the vacant post of
Assamese Language Teacher in Nabajagrata ME School from the very date when the said post fell vacant in said Nabajagrata ME School, as such
she is entitled for her salary from 10.09.1997 itself, when the said post fell vacant. But the petitioner was not paid her said salary from 10.09.1997 to
24.11.1999, inspite of such order of the EEO, Karimganj.
Being aggrieved with the aforesaid causes, the petitioner preferred this petition praying for direction to the respondents herein to regularise her
service w.e.f. 01.09.1986 when said K.C. Nandapur MV School was brought under provincialisation, in which she was serving and to make payment
of arrear salaries thereof and also for a direction to the respondents of this case to pay her salaries due to her for the period from 10.09.1997 to
24.11.1999 in terms of said letter of the DEEO, Karimganj dated 22.02.2000.
Notice in this case was issued on 03.02.2014, but the respondents in the Education department did not prefer to file any affidavit in the matter,
neither placed any records nor any written information regarding entitlement of such arrear salary by the petitioner and regularisation of her service
w.e.f. 01.09.1986 when said K.C. Nandapur MV School was brought under provincialisation, wherein she served prior to regularisation of her service
and transfer to Nabajagrata ME School by order of the DEEO, Karimganj dated 19.11.1999.
On instruction from the petitioner, her counsel, Mr. N. Dhar submitted that during pendency of this writ petition, the petitioner already received her
salary for the period from 10.09.1997 to 24.11.1999 and her claim to that extent has become infructuous. But, the petitioner claimed that her service
should be regularised w.e.f. 01.09.1986 the date when her previous working place K.C. Nandapur MV School was brought under provincialisation and
she should be paid her salary from said 01.09.1986 to 09.09.1997.
In Civil Rule No. 5112/1996, the claim of the petitioner was that she had been rendering honorary service for more than 14 years and as such
prayed for regularisation of her service and on such prayer, the Court by its order dated 29.04.1998 disposed of her said Civil Rule No.5112/1996
directing the Director of Elementary Education, Assam and the District Elementary Education Officer, Karimganj to do the needful, if on finding her
claim to be correct and it is seen that in pursuance of the letter under No. ELM 64/96/54 dated 06.09.1999 of the then Director of Elementary
Education, Assam, the DEEO, Karimganj, by his order dated 19.11.1999 regularised the service of the petitioner as an Assamese Language Teacher
adjusting her service in a vacant post at Nabajagrata ME School. In this writ petition the petitioner herself stated that while said K.C. Nandapur MV
School was at venture stage its Managing Committee on 15.09.1984 resolved to appoint her as an Assamese Language Teacher in the said school on
honorary basis, pursuant to which the Headmaster of the said school on 16.09.1984 issued an appointment letter to her and accordingly she joined her
service as an Assamese Language Teacher in said K.C. Nandapur MV School on 18.09.1984 and that the Deputy Inspector of Schools, Karimganj by
his order dated 25.01.1985 while approving her such appointment on honorary basis in said K.C. Nandapur MV School w.e.f. 18.09.1984 observed
that the respondents in the Elementary Education Department will not be liable for payment of her salary for her honorary service and the petitioner
accepted such conditions.
It is also contended by the petitioner that said K.C. Nandapur MV School was brought under provincialisation under the provision of the Assam
Elementary Education (Provincialisation) Act, 1974 w.e.f. 01.09.1986 and her service as Assamese Language Teacher in said K.C. Nandapur MV
School was not provincialised and that she remained to be a dropped teacher till her regularisation by order dated 19.11.1999 issued by the DEEO,
Karimganj as noted above.
The State Government in the Elementary Education Department formulated a statutory Rule under Article 309 of the Constitution of India
regulating the recruitment and conditions of service of teacher of the Elementary Schools which have been provincialised under the Assam
Elementary Education (Provincialisation) Act, 1974, namely, the Assam Elementary Education (Provincialisation) Rules, 1977 and it came into force
w.e.f. 19.03.1979.
Rule 5 of said 1979 Rules provides for ‘Condition for taking over Elementary Schools’. Sub-Rule (2) of Rule 5 of said 1977 Rules provides
that â€" “Enrolment in each of the School shall not be less than 40 in case of Lower Primary Schools and Junior Basic Schools and 90 in case of
M.E., M.V. and Senior Basic Schools, provided that the enrolment may be relaxed by the Government in suitable cases.
Further, Sub-Rule (3) of Rule 5 of said statutory 1977 Rules provides thatâ€"“The teachers in venture School may be retained at the time of
taking over if they possess the minimum qualification and age for recruitment provided that such teachers have put in at least two years continuous
service immediately preceding the taking over of the School and provided further that the prescribed ratio of students and teacher is maintained in the
Schoolâ€.
In her own admission, the petitioner joined as Assamese Language Teacher in said K.C. Nandapur MV School, Bhangabazar, District -
Karimganj, during its venture stage, on 18.09.1984. As such on 01.09.1986, when said K.C. Nandapur MV School was brought under provincialisation
under the 1974 Provincialisation Act, the petitioner did not complete the statutory period of 2 (two) years as required under Sub-Rule (3) of Rule 5 of
said statutory 1977 Provincialisation Rules, 1977 so as to get the benefit of provincialisation of her service w.e.f. 01.09.1986 under the 1974 Act and
1977 Rules.
Inspite of the order of the Court dated 29.04.1998 passed in Civil Rule No. 5112/1996 that was preferred by the petitioner, it is apparent that the
respondents in the Elementary Education Department did not make any enquiry to find out regarding the claims of the petitioner about her 14 years of
honorary service in said K.C. Nandapur MV School and without considering the statutory provisions and statutory requirement of two years of
continuous service as required for provincialisation of service, considered the claim of the petitioner for regularization of her service merely in terms of
the order of the Court dated 29.04.1998, noted above, without making any inquiry, though the Court by said order dated 29.04.1998 specifically
directed that before considering for regularisation the respondents in the Education department shall find out whether the claim of the petitioner is
correct or not.
With regard to case of dropped teacher of provincialised schools of the State, in the case of Jiban Chandra. Deka and others -Vs- State of Assam
reported in 2008 (3) GLT 229, this Court specifically observed that â€" “All appointments made would be prospective but will carry the benefit of
past services for the purpose of computation of pensionery benefitsâ€. Further, a Division Bench of this Court in the case of Harendra Chandra Nath
-Vs- State of Tripura reported in 2013 (2) GLT 1094 referring to the judgment of the Hon’ble Supreme Court have held that â€" “the writ
petitioners have got no right to recover the arrears beyond three years from the date of filing of the original writ petitionâ€. In the present case, the
petitioner has filed this writ petition on 28.01.2014, claiming her arrear salary w.e.f. 01.09.1986. Assuming that the petitioner filed Civil Rule No.
5112/1996 earlier, claiming regularisation of her service w.e.f. 01.09.1986 and for payment of arrear salaries in accordance with rule, even then in a
writ petition filed the petitioner in the year 1996, her claim for arrear salary from 01.09.1986, cannot be considered, being three years beyond the date
of filing the original writ petition.
Since the petitioner did not complete the statutorily required 2 (two) years of continuous service for provincialisation of her service under the 1977
Rules and for aforesaid reasons, the claim of the petitioner for regularisation of her service as well as for her arrear salary w.e.f. 01.09.1986, the date
when said K.C. Nandapur MV School was brought under provincialisation, is not sustainable under the law as well as under the provisions of the
Assam Elementary Education (Provincialisation) Rules, 1977.
For the reasons above, this writ petition, being devoid of merit, stands dismissed.