Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Gau) 623

IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
SANDEEP MEHTA, MITALI THAKURIA, JJ.
The State of Assam, Represented by the Commissioner and Secy. to the Govt. of Assam, Education (Elementary) Deptt. & Ors. - Petitioners
Versus
Mrs. Usha Rani Goswami, W/o. Devender Sarma & Ors. - Respondents
WA No. 131 of 2018
Decided On : 24-05-2023

Advocates Appeared:
For the Petitioner: Mr. R. Mazumdar, Ld. Standing Counsel.
For the Respondent: Mr. I. Choudhury Sr. Adv. Mr. S. Biswakarma.

Point of Law: High Courts, in exercising power under Article 226 of Constitution will not issue directions for regularization, absorption or permanent continuance, unless employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts.

Headnote:
Constitution of India, 1950 - Article 226 - Vacant posts - Irregular appointees have been duly regularized - Release salary regularly along with arrears - WP(C) for setting aside notification and for a direction to release their salary regularly along with arrears - Respondents were irregularly appointed against non-existent posts and accordingly, their services were regularized vide order – Para 19.
Finding of the Court: Respondents/writ petitioners were not only regularized but also were adjusted in posts lying vacant in various schools and were also given regular time pay scale along with pensionery benefits, as applicable and being so, their regularization of service had a prospective effect of gaining entry into cadre and getting regular scale of pay – Court find that learned Single Judge ought not to have allowed claim of respondents for arrear salary.
Result: Appeal allowed.

JUDGMENT :

M. Thakuria, J.

Heard Mr. R. Mazumdar, learned Standing counsel, Education Department, representing the appellants. Also heard Mr. I. Choudhury, learned Senior Advocate assisted by Mr. S. Biswakarma, learned counsel for the respondents.

2. This writ appeal is filed challenging the Judgment & Order dated 16.05.2017, passed in Review petition 81/16 and Judgment & Order dated 10.03.2011 passed in WP(C) No.5286/2004.

3. The brief facts leading to the filing of the present appeal are that;

3.1. The case of the writ petitioners (present respondents) are that, they were duly selected as teachers in M.E. Schools of Guwahati. They claim that the posts against which they were selected were sanctioned by the Government on 16.11.1991 and that their names appeared in the select list prepared by the board in its meeting held on 17.02.1994. Based on such appointment the writ petitioner Nos.1, 2, 3 and 5 were receiving salaries till May 1995, and the writ petitioner Nos.4 & 6 received salaries till June 1995.

3.2. At the time of appointment many controversies arose and for that reason one Committee was formed headed by Shri S. to enquire into the controversies.

3.3. The Committee classified the appointments into three classes;

I. Regular or legal/valid.

II. Irregular appointees

III. Illegal appointees.

3.4. Accordingly, the Committee recommended regularization of first two categories and termination of the third category. Pursuant to the recommendation, the cabinet decision was taken on 21.02.2000, and the Government decided to regularize 3511 numbers of CP/Senior Basic/Junior Basic/ME/MEM/H.S. School teachers in Kamrup District, who were appointed irregularly during the period of 01.03.1991 to 30.11.1996. A task force and screening committee was formed to execute the decision. The writ petitioners/present respondents claimed that the screening Committee approved their regularization.

3.5. On 18.08.2000, the Government issued another circular withdrawing the circular dated 10.08.2000. The services of the said petitioners were regularized on 05.03.2001 w.e.f. 01.08.2000, in contravention of the circular dated 10.08.2000. Subsequently, by virtue of the directions of the Government the District Elementary Education Officer finally adjusted the services of the petitioners on 25.11.2002 & 30.11.2002 against the posts lying vacant in various schools.

3.6. However, disbursal of salaries of the writ petitioners/respondents were stopped, and on enquiry they had come to know that their salary had been stopped at the instance of the Finance Department. Hence, they preferred the writ petition numbered as WP(C) No.5286/2004, for setting aside the notification dated 06.06.2003 and for a direction to release their salary regularly along with arrears, which was allowed by the Single Judge.

4. Thus, the State respondents/present appellants being highly aggrieved and dissatisfied of the judgment & order passed in WP(C) No.5286/04, dated 10.03.2011, preferred an appeal before the Division Bench, which was numbered as WA.No.46/13. The said Writ Appeal was disposed of, by this Court on 10.05.2016, by granting liberty to the State to file a Review petition being Review Petition No.81/16. The said Review Petition was taken up by the learned Single Judge, and was finally disposed of, by the order dated 16.05.2017, declining to interfere with the impugned judgment. Hence, the present Appeal is filed challenging the orders dated 10.03.2011 & 16.05.2017.

5. The contention of the present respondents/writ petitioners before the learned Single Judge was that;

5.1. The petitioners claimed salary challenging the notification of the Finance Department dated 06.06.2003, on the ground that they were adjusted against the vacant posts, pursuant to the cabinet decision dated 21.02.2000, and the circular dated 10.08.2000. The subsequent W.T. message dated 27.08.2001 does not have any application or implication upon the petitioners’ case.

5.2. The petitioners having been appointed in the