Continuous service obligates salary payment despite appointment legality, and equal treatment demands non-discriminatory enforcement of employment rights.

JUDGMENT :

ROBIN PHUKAN, J.

1. Heard Mr. D.K. Roy, learned counsel for the petitioner. Also heard Mr. A. Phukan, learned standing counsel, Education (Elementary) Department, appearing for the respondent Nos.1, 2, 4 and 5 and Mr. B.C. Musahary, learned standing counsel, BTC, appearing for the respondent No.3.

2. In this petition, under Article 226 of the Constitution of India, the petitioner, namely, Shri Atul Chandra Das has challenged the order dated 03.11.2016, passed by the Commissioner & Secretary Elementary Education Deptt., Assam (Annexure-24) and also prayed for issuing direction to the respondents to pay the salary of the petitioner including the arrear salary from June, 2006, till date.

Background Facts:-

3. The background facts, leading to filing of the present petitioner, are adumbrated herein below:-

“The petitioner was appointed as Assistant Teacher by the Deputy Inspector of Schools, Nalbari on 29.11.1999 and posted at Murmela Kumarpara LP School. The petitioner joined on 30.11.1999, as Assistant teacher pursuant to appointment letter dated 29.11.1999. Thereafter, on 13.12.2004, he was transferred to Bhurkuchi Srimanta Sankardev LP School. The petitioner has been paid his salary till May, 2006. But, from June, 2006 he has not been paid his salary, in spite of continuous service being rendered by him without any break. Being aggrieved, the petitioner had preferred one writ petition, being WP(C) No. 709/2012 before this Court. Then vide order dated 22.06.2015, this Court had disposed of the said petition directing the respondents to consider his case for payment of his salary.

Due to non-compliance of the aforesaid order dated 22.6.2015, the petitioner had instituted a contempt proceeding, being Contempt Cas(C) No. 749/2015. Then, during pendency of the contempt petition the Commissioner & Secretary, Education (Elementary) Deptt., Assam, has passed the impugned order, dated 03.11.2016, without application of mind.

It is stated in the said order that petitioner's name is included in the list of 2272 Nos. of illegal teachers. Whereas similarly situated person, namely Md. Ahmed Ali, whose name appeared in Sl. No. 662 in the said list, is granted the benefit. It is the contention of the petitioner that the said order, dated 03.11.2016 is not based on actual facts on records. And as such, the petitioner is treated with discrimination. It is his further contention that the impugned order is arbitrary and bias, and therefore, the same is liable to be set aside and quashed. Therefore, the petitioner, being aggrieved, approached this Court to address his grievance by setting aside the order dated 3.11.2016.”

4. The respondent No.2, i.e. the Director of Elementary Education filed his affidavit in opposition, wherein he has taken a stand that the petitioner was appointed at Murmela Kumarpara L.P. School under BTC area, by the then Deputy Inspector of Schools, Nalbari as per approval of the Sub-Divisional Elementary Education Advisory Board, BAC vide order dated 29.11.1999. But he has not annexed any document showing his participation in any selection process such as advertisement, call letter, select list showing his merit position etc.

He has also not mentioned about the date of advertisement, date of filing application, date of interview to substantiate his claim that he was appointed in accordance with due process of selection. As such, the initial appointment of the petitioner appears to be doubtful. It is also stated that in the appointment order dated 29.11.1999, it was stated that the appointee will be considered for regular scale of pay on successful completion or prescribed training. However, the petitioner was allowed