The main legal point established in the judgment is that in appropriate cases, particularly when the reason for non-payment of back wages itself is illegal, a direction for payment of back wages can be issued. The principle of constructive res judicata may not apply if the cause of action had not arisen at the time when the initial petition was filed.

Heard, Mr. I. Choudhury, learned Senior Counsel for the petitioner and also heard Mr. C. Bhattacharya, learned Standing counsel, Secondary Education Department for all the respondents except respondent No. 4.

2. This is a case of non-payment of back wages to a Government Servant during the period beginning from the date of termination of his service till the date of his reinstatement.

The facts and circumstances leading to the filing of this writ petition by the petitioner may be briefly stated as follows;

The petitioner was appointed to the post of Assistant Teacher at Jagara High School, vide order dated 07.05.1991, Memo No. EST-3/85/88/869-74, issued by the Inspector of Schools, Nalbari District Circle in pursuance of the recruitment process which was initiated in the year 1988 by issuance of advertisement and conducting of recruitment test. While serving as such, on 24.07.1998, a notice was served to him wherein he was asked to show cause as to why his service should not be terminated as his name was not found in the select list prepared by the respondents in the year 1995-96. The petitioner answered the show cause notice, in written stating that he was appointed prior to 1995-96, therefore, he is not connected in any way with the select list of 1995-96. However, ignoring his explanation, the petitioner was terminated from service by an order dated 25.01.1999, issued by the Inspector of Schools, Nalbari District Circle. Being aggrieved, the petitioner challenged the termination order before this Court by filing the WP(C) No. 474/1999. When the petition was moved on 08.02.1999, the petitioner was given interim protection. However, the writ petition was dismissed on 17.12.2005 for non-prosecution. Since, the petitioner was not informed about the same he came to know of it only on 08.10.2007 when he was terminated from his service. The petitioner filed another WP(C) No. 6182/2007 questioning the validity and legality of the order dated 08.10.2010, by which he was once again terminated. The writ petition was dismissed on 09.04.2009.

Being aggrieved by the dismissal order, the petitioner filed a Writ Appeal against the order of dismissal which was registered as Writ Appeal No. 154/2009. The writ appeal was disposed of by the judgment and order dated 19.10.2012, wherein the termination order dated 08.10.2007, issued by the Inspector of Schools, Nalbari District Circle was set aside.

In pursuance of the judgment and order passed in the Writ Appeal, the respondents re-instated the petitioner in service vide order dated 30.11.2012, issued by the Inspector of Schools, Nalbari District Circle which was followed by another order dated 17.07.2013, issued by the Inspector of Schools of the same District Circle. In the second order of re-instatement it was mentioned that the back wages of the petitioner would be released only after passing of appropriate order by the Hon’ble High Court. Being not satisfied, the petitioner served a legal notice through his legal counsel on 02.06.2014 to the respondents asking them to release his back wages for the period beginning from 01.10.2007 to 30.11.2012 i.e. the period during which his service was terminated as stated above. On 5th March, 2006, the Director of Secondary Education, Assam, issued the impugned order vide his Office Memo No. GB-EST/DSE/CC/86/2009/Pt/174, denying the claim of the petitioner. Being aggrieved, the petitioner has come before this Court by filing the writ petition challenging the impugned order.

3. Mr. I. Choudhury, learned senior counsel appearing for the petitioner submitted that the petitioner’s services was terminated on wrong premises because he was not in any way connected with the select list of 1995-96, since he was already in service by then by virtue of his appointment order issued on 07.05.1991 in pursuance of the properly conducted recruitment process. He also submitted that for that reason the Division Bench of this Court in the Writ Appeal filed by