Sri Pradip Kumar Sarma vs The State of Assam, & Ors.

Heard Mr. A. Dasgupta, learned senior counsel representing the appellant/writ petitioner as well as Ms. P. Chakraborty, learned Standing Counsel, Education Department for respondent nos. 1, 2 and 3. Also heard Mr. R.K.D. Choudhury, learned Additional Senior Government Advocate, Assam for respondent no. 4.

The appellant''s claim for regular salary, both arrear and current, in the post of Assistant Teacher at P.B. Dhirdutta Higher Secondary School with effect from January, 2006 was turned down vide Judgment & Order dated 01.04.2016 rendered in WP(C) 485/2011. The writ petition was dismissed primarily on the grounds that the appellant''s appointment against the resultant vacancy due to upgradation of the Principal had come about after the expiry of Select List dated 08.08.1998. Further, such appointment was not made against the substantive post of Assistant Teacher for which the post was advertised. Holding the appellant to have become a persona non grata, having regard to the post of Principal perhaps being filled up by a regular appointee, the question of payment of salary was not entertained. Aggrieved, the present appeal was instituted.

Short facts engaging our attention are that the appellant/writ petitioner was appointed as Assistant Teacher at P.B. Dhirdutta Higher Secondary School vide Order dated 30.10.1998 consequent upon recommendation made by the District Level Selection Board. The said appointment was made against the resultant vacancy upon upgradation of the Principal of the said School. Relevant to notice, the name of the appellant appeared in the Select List of High School Teachers dated 08.08.1998 under Nalbari constituency. On 11.05.1999 another order was issued allowing the appellant to draw salary in the scale of pay of Rs. 3580-8750 per month, whereafter he continued to receive salary upto December, 2005. By subsequent Order dated 11.07.2007 his appointment as Assistant Teacher was adjusted in the same School on regular pay scale. The said Order of 11.07.2007 records that the same was issued in the light of the Order dated 04.12.2003 passed by this Court in WP(C) 4963/1999. Although the appellant has not been paid his salary with effect from January, 2006, he has continued to serve in the School. Neither the initial appointment order nor the adjustment order has been rescinded or revoked by the respondent authority until this date.

In the writ proceedings, an affidavit was filed by the Director of Secondary Education, Assam to the effect that the appellant was appointed against a non-existent post dehors the rules and, as such, to allow the appellant to draw his salaries from the date of his joining would be illegal. A stand was also taken that Select List was published on 08.08.1998 which expired on 07.08.1999 and, as such, adjustment of the petitioner after long 14 years from the date of publication of the Select List do not stand for any justification.

The documents available on record have been perused. The Select List of High School Teachers under Nalbari constituency was published on 08.08.1998. As the appellant was appointed on the basis of his position in the Select List and on recommendation of the District Level Selection Board vide Order dated 30.10.1998, it is clear that appointment was made within the validity period of the Select List. The appointment of the appellant came through a regular process of selection and was appointed against the resultant vacancy created against upgradation of the Principal of the School. It cannot be said, as held by the learned Single Judge, that he was appointed against the resultant vacancy of the post of Principal of the School. The initial appointment order describes his appointment as being made to the post of Assistant Teacher of the School. So also the order allowing him to draw his salaries as well as the order of his adjustment. Contrary to the stand taken by the Director of Secondary Education, Assam, the appointment of the appellant was not against the provisions of the Service Rules in question. The fact that his services came to be adjusted vide Order dated 11.07.2007, was ignored from consideration by the departmental authorities nor taken note of by the learned Single Judge. Mere statement that the appointment of the appellant was illegal and that he is not entitled to salary is not sufficient justification. If such appointment was in fact illegal, the respondent authorities ought to have issued orders revoking the appointment order dated 30.10.1998 as well as the adjustment Order dated 11.07.2007. There are no records of any such action being taken by the respondent authorities. Rather, the appellant has been allowed and is discharging duties as Assistant Teacher in the School in question. 6. Having regard to the facts above, it would not stand to reason to deny salary to the appellant, as prayed for. We respectfully disagree with the findings and decisions of the learned Single Judge and in this regard quash the Judgment dated 01.04.2016 passed in WP(C) 485/2011. A writ in the nature of mandamus is also issued to the respondent authorities, primarily the Director of Secondary Education, Assam to take steps for payment of salary to the appellant from the month and year when such payment was stopped. Although the appellant claims salary with effect from January, 2006, the respondents are directed to work out the period from which salary is actually due to the appellant. The entire exercise for payment of arrear salary, as legitimately due to the appellant, be completed within a period of 4 (four) months from today. Needless to say, the appellant shall be entitled to current salary, as is admissible and due to him.The present writ appeal stands accordingly allowed. No costs.