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Judgment
Heard Mr. N. Sarma, learned standing counsel for the Education Elementary Department for the petitioner. Although the cause list indicates the
name of Mr. R. Ali to be the counsel for the respondent Nos. 1 to 8, but the learned counsel has chosen not to appear. When the matter was
called on 02.01.2018, the learned counsel for the respondent did not appear. Again when the matter is taken today, information was sent to the
learned counsel for the respondents that the matter is being taken up, but inspite of such effort, the learned counsel does not appear. In the
circumstance, there is no other option but to proceed in the matter in the absence of the learned counsel for the respondent.
The respondents were appointed as an Assistant Teachers in different schools, where some of them were appointed prior to the
provincialisation of the school and some of them were appointed after the provincialisation of school.
Be that as it may, the services of all such respondents were terminated along with many other similarly situated teachers. Consequently, different
writ petitions were preferred and the present respondents had preferred writ petitions being WP(C) No.791/2007, WP(C) 942/2007 and WP(C)
1136/2007. All the three writ petitions were disposed of by a common judgment and order dated 27.02.2008 along with several other similarly
placed writ petitions. By the order dated 27.02.2008, the Commissioner & Secretary to the Govt. of Assam in the Education Department was
directed to take a fresh decision by taking into account all relevant materials that are available on record.
Consequent to the matter being remanded back to the Commissioner, the order dated 20.12.2008 was passed by the Commissioner &
Secretary to the Govt. of Assam, Education Elementary Department. As per the conclusion of the order of 20.12.2008, the respondent Nos. 1, 2,
3, 4, 5 and 7 were appointed by the Managing Committee of their respective schools before the concerned schools were provincialised. On the
other hand, the respondent Nos. 6 and 8 were appointed after the provincialisation. Consequently, in the order dated 20.12.2008, the respondent
Nos. 1, ,2 ,3, 4, 5 and 7 were termed as dropped teachers, who are otherwise entitled to be regularized whereas, the respondent Nos. 6 and 8
were categorized as teachers, who are not entitled to be regularized.
It is stated that for the purpose of regularizing the category of teachers termed as dropped teacher, the respondent authorities as per the
direction of this Court in the order dated 01.03.2007 passed in WP(C) No.3976/2005 had taken up an onetime process for regularizing such
teachers termed as drop teachers and for the purpose, advertisements were issued in leading newspapers inviting claims from such dropped
teachers. It is stated that after the advertisements, the cases of those teachers, who had made their claim pursuant to the advertisements were
considered and amongst other, the persons who were found fit in the meantime were regularized. It is stated that the respondent Nos. 1, 2, 3, 4, 5
and 7 on their own volition had chosen not to participate in the aforesaid selection process and therefore, their cases for regularization were not
taken up. Accordingly, the Commissioner & Secretary in the Education Elementary Department in its order dated 20.12.2008 arrives at a
conclusion that the respondent Nos. 1, 2, 3, 4, 5 and 7 have forfeited their claim for regularization.
The said order dated 20.12.2008 was assailed by the respondents in an appeal before the learned Administrative Tribunal, which was
registered as case No.40ATA of 2010. The said appeal was considered by the order dated 18.09.2010 and the authorities in the Elementary
Education Department were directed to pay the arrear salary of the respondents and also for a fresh consideration for regularization as per the
rules and regulation. The said order of 18.09.2010 of the learned Tribunal has been assailed in this writ petition.
On a perusal of the order dated 18.09.2010, it is noticed that the learned Tribunal instead of deciding on the validity and correctness of the
order of 20.12.2008 of the Commissioner & Secretary to the Elementary Education Department had resorted to comparing the said order with
some other order of the Commissioner dated 27.12.2008 Upon such comparison, the learned Tribunal merely concluded that the order of
27.12.2008 was stayed by the Tribunal in another proceeding and therefore the order of 20.12.2008 of the Commissioner which was involved in
the appeal at hand was not maintainable. By arriving at such conclusion, the Tribunal ordered the payment of arrear salary and also for
consideration of regularization of the respondent as per the rules and regulation.
The aforesaid consideration given by the Tribunal in the considered view of this Court is not an adjudication in the appeal. No basis has been
stated as to why the order of 20.12.2008 is similarly situated as the other order of 27.12.2008, which the Tribunal had considered. Further the
Tribunal records that the order dated 27.12.2008 has been stayed by the order dated 21.07.2009. Merely because a similar order may have been
stayed by the Tribunal it by itself cannot be a reason for setting aside another similar order passed by the similar authority. For both the reasons,
the order dated 18.09.2010 is found to be unsustainable. Accordingly, the order dated 18.09.2010 is set aside and the matter is remanded back
to the learned Assam Administrative Tribunal to decide the matter afresh in accordance with law and by giving an opportunity of hearing to all the
parties involved in the appeal. In view of the above, this writ petition stands disposed of.