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2018 Supreme(Gau) 1258
IN THE HIGH COURT OF GAUHATI (ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
ACHINTYA MALLA BUJOR BARUA, J.
Mozibur Rahman S/o Md. Abdul Mannan - Petitioner
Versus
The State of Assam & Ors. - Respondents
WP(C) 3813 of 2017
Decided On : 07-12-2018
Advocate Appeared:
For the Petitioner: Mrs. M. Sarma
The central legal point established in the judgment is the interpretation of the orders related to the petitioner's regularization and the implications of the Commissioner & Secretary's conclusion.
Headnote:
Regularization - Elementary Education Department - 19.05.1999, 15.12.1999, 26.10.1999, 31.03.2009, 21.05.2011 - The court discussed the orders related to the regularization of the petitioner's services, the withdrawal of regularization, and the subsequent implications. Key legal provisions such as the interpretation of the orders and the implications on the petitioner's regularization were central to the court's decision.
Fact of the Case:
The petitioner's services were regularized but later cancelled. The petitioner sought direction for continuation in the post, which was denied, leading to a series of appeals and petitions.
Finding of the Court:
The court found that the petitioner's regularization remained intact, and the Commissioner & Secretary's conclusion was not acceptable. The matter was remanded back for appropriate order on the petitioner's claim for payment of salary.
Issues: Regularization of services, Commissioner & Secretary's conclusion, Payment of salary
Ratio Decidendi: The court's decision was based on the interpretation of the orders related to the petitioner's regularization and the implications of the Commissioner & Secretary's conclusion.
Final Decision: The court set aside the Commissioner & Secretary's conclusion and remanded the matter for appropriate order on the petitioner's claim for payment of salary.
Heard Ms. D. Borgohain, learned counsel for the petitioner. Also heard Mr. N. Sarma, learned standing counsel for the Elementary Education Department.
2. By an order dated 19.05.1999 of the District Elementary Education Officer, the services of the petitioner was regularized w.e.f. 24.04.1998 as an Assistant Teacher in the Gerokanai M.E.M. Subsequently, by another order 15.12.1999, the regularization made in favour of the petitioner was cancelled. The order of 15.12.1999 inter alia provides that 52 numbers of teachers of Middle School were regularized by an order of 26.10.99 and as the regularization of the petitioner was also amongst the said 52 number of teachers, therefore, the order of regularization was withdrawn. In the year 2002, the petitioner preferred WP(C) 1853/2002 claiming for salary which was disposed of by the judgment and order dated 20.08.2009 by providing that the claim of the petitioner would be covered by another judgment dated 31.03.2009 passed in WP(C) 2741/2008. In the said order dated 31.03.2009, a direction was issued that the arrear salary be released within a period of six months. It is stated that the said WP(C) 2741/2008 was preferred by 20 numbers of teachers who were amongst the 52 teachers whose regularization was withdrawn by the order dated 15.12.1999. When the salaries were not paid, a Contempt Case No.299/2011 was preferred. By an order dated 03.06.2011, the contempt case was closed based upon an order dated 21.05.2011 of the Commissioner & Secretary to the Govt. of Assam in the Elementary Education Department, wherein, a decision was taken for creating certain supernumery post for releasing the arrear salary. Thereupon, the petitioner preferred WP(C) 1005/2012 seeking a direction that the authorities allow him to continue in his post as his service was already regularized by the order dated 19.05.1999.
3. WP(C) 1005/2012 was dismissed by an order dated 01.09.2016 on the ground that the Commissioner & Secretary of the Department arrived at a finding that the name of the petitioner did not figure in the list of 52 number of teachers and therefore, he would not be covered by the proposal for creation of supernumerary post. On dismissal of 1005/2012 WA No.13/2017 was filed by the petitioner which was given a final consideration by the order dated 08.06.2017 giving the petitioner liberty to assail the order dated 21.05.2011 of the Commissioner & Secretary.
4. In the aforesaid conclusion, the present writ petition has been preferred assailing the order dated 21.05.2011 of the Commissioner & Secretary to the Govt. of Assam in the Elementary Education Department. As already noted above, against the claim of the petitioner that he was regularized by an order dated 19.05.1999, the respondent authorities in the Elementary Education Department relies upon an order dated 15.12.1999 to contend that the order made in favour of the petitioner for his regularization was withdrawn. A perusal of the order dated 15.12.1999 in the paragraph-1 thereof shows that the authorities were of the view that 52 numbers of teachers of middle schools were regularized by an order dated 26.10.1999, thereafter in the second paragraph, it is stated that as such the regularization of the services of the petitioner amongst the aforesaid 52 teachers was withdrawn. The said provision in the second paragraph of the order dated 26.10.1999 is explicit and clear that the authorities while withdrawing his regularization was of the view that the petitioner is also amongst the 52 number of teachers. It being so, it cannot be concluded subsequently that the petitioner was not amongst the 52 number of teachers whose regularization was cancelled.
5. As a collorary, if we accept the contention that the order dated 15.12.1999 did not include the petitioner in such event, the only way it can be construed was that the order of regularization of the petitioner by the order dated 19.05.1999 was never withdrawn and it still remains in force.
