The court allowed recovery of salary arrears due to continuing wrong despite delays, emphasizing entitlement to pension benefits.

JUDGMENT :

RAJESH MAZUMDAR, J.

1. Mr. A.C. Borbora, learned Senior Counsel with the assistance of Ms. N. Dey, learned counsel has appeared for the petitioner. Also heard Mr. P.K. Bora, learned Standing counsel appears for the respondent Elementary Education Department.

2. This writ petition had been instituted by the petitioner claiming salaries from 28.12.1999 till 12.08.2010 and also for direction to the respondent authorities to consider the service rendered by the petitioner to the Department to be eligible for the benefits of the Old Pension Scheme under the Assam Services Pension Rules , 1969. Although an alternate prayer had been made in the writ petition to direct the respondent authorities to release the pensionary benefits to the petitioner under the New Pension Scheme, since the petitioner had already retired, such alternate prayer was not pressed during the final arguments.

3. As reflected in the writ petition the petitioner was offered appointment by an order dated 26.11.1999 and she was allowed to join her duties on 28.12.1999 i.e. after a month of issue of the appointment letter, even though she had been given her a time frame of fifteen (15) days to join her service. Having thus joined in her service, the petitioner was not paid her salaries and by an order dated 19.04.2002, the District Elementary Education Officer, Tinsukia had directed for stopping the payment of salaries to eight persons including the petitioner herein. The petitioner along with others, who had also suffered by such order of stoppage of payment of salary, had approached this Court by preferring different writ petitions. The writ petition preferred by the petitioner was numbered as WP(C) No.4135/2002, wherein the petitioner was arrayed as petitioner No.8.

4. The writ petitions were disposed of on 25.09.2002 and in the writ petition in which the petitioner was involved, the following had been observed:

“6. In so far as W.P. (C) No.4135 and 4365 of 2002 are concerned, the stand of the authority as reflected in the orders impugned in the said cases, appear to be that it is by virtue of the interim orders passed by this Court, amongst others, in W.P. (C) No.5951 of 1999 and W.P. (C) No. 304 of 2000 that the salaries of the petitioners in the two cases had to be stopped. The reasons, which prompted the authority to resort to the said actions appear to be, that after the cancellation order dated 19.11.99 was issued, it is against the resultant vacancies that the petitioners in W.P. (C) No.4135 of 2002 and W.P. (C) No.4365 of 2002 were allowed to draw their salaries. The vacancies against which the writ petitioners in the present two cases were allowed to draw their salaries are reflected in the order dated 3.8.2000 (Annexure-21 to the W.P. (C) No. 4135 of 2002). There appears to be no correlation between the said vacancies and posts in respect of which the cancellations were made by the order dated 19.11.99. In the affidavit filed by the State respondents, such a position has been indicated only in respect of the petitioner No.17 in W.P. (C) No 4135 of 2002. Though the State would like to contend that it is against the posts falling vacant by the cancellations made by order dated 19.11.99 that the writ petitioners in W.P. (C) No.4135 of 2000 and W.P. (C) No.4365 of 2002 have been adjusted, the said position does not appear to be borne out by the records. Mere assertion without any corroboration by the records placed before this Court cannot justify the stand taken by the respondents. Even otherwise, as no invalidity of the adjustments of the writ petitioners in the two cases against Nonplan posts have been pleaded by the State respondents, even on a hypothetical assumpti