JUDGMENT AND ORDER (ORAL)

Heard Mr G Das, learned counsel for the petitioner. Also heard Ms H Terangpi, learned counsel for the respondent Nos. 2 and 3, Mr A Chaliha, learned counsel appearing for the respondent No. 5, i.e., the Treasury Officer, and Ms S Chakraborty, learned counsel appearing on behalf of Mr Sauradeep Dey, learned counsel for the respondent Nos. 4 and 6.

2. By this application under Article 226 of the Constitution of India, the petitioner has prayed that the respondent No. 2, i.e., the Director of Secondary Education, Assam, be directed to sanction the Grade-IV post, and/or to hold the selection process to accommodate the petitioner.

3. The case of the petitioner is that he was appointed temporarily in a Grade-IV post in Paschim Bonbhag High School, in the scale of Rs. 900/-Rs. 1435/- plus other allowances, against a leave vacancy and his appointment was made effective from 01.03.1991 to 31.03.1991. The petitioner also states that his appointment was extended from time to time and vide order dated 19th of April, 1991, the petitioner who was appointed in the said vacancy, was allowed to continue as Grade-IV employee in the same school. Thereafter, a resolution was passed by the Executive Committee of the said school, whereby it was decided to request the authority concerned for sanctioning a post in the Grade-IV, along with one post of Night Chowkidar. Thereafter, on 13th of June, 1994, the Principal of the said school appointed the petitioner against an honorary post and it was also stated in the said letter that petitioner, who has been working since 01.06.1991, would continue to work from that date. Thereafter, on the same day, i.e., 13th of June, 1994, the Inspector of Schools by a communication to the Director of Secondary Education, sent a proposal for sanctioning one Grade-IV post in the school. It was further stipulated in the said letter that since the school has been newly provincialized, only 3 (three) Grade-IV posts have been sanctioned and that another Grade-IV post may also be sanctioned for the interest of the school. The petitioner has stated that since his appointment in the year 1991 till the year of 2002, he was paid the salary against the leave vacancy and that vide order dated 6th of September, 2004, the petitioner, who was appointed on an honorary basis in the said school, was allowed to draw his salary against the retired vacancy and the monthly salary was paid to him as such. The petitioner, therefore, states that he was drawing his salary from 2002 to 2005, against the retired vacancy, but after 2005, he did not get any salary. Accordingly, he had made representations before the Inspector of Schools from 2017 onwards, praying for payment of his salary as well as to sanction his post in the said school and it is also stated that the Principal of the said school had forwarded the representation to the Inspector of Schools, Nalbari, wherein, after stating the facts narrated above, a request was made by the Principal for payment of his salaries since 01.01.2006, with a further statement that Grade-IV post was lying vacant due to the retirement of the erstwhile employee.

4. The learned counsel for the petitioner submits that the petitioner was under the constant belief that since his services were utilized in the school he will be paid regularly and his services will be regularized. He also submits that the appointment of the petitioner can be termed as irregular, but not illegal and he has been continuing since the date of his temporary appointment till date, first few years on receiving the salary against the leave vacancy, and few years thereafter, on the salaries against the retired vacancy. As such, a prayer is made for payment of his salary as well as regularization of his service. To substantiate his arguments, Mr Das has placed his reliance on the following decisions:-

i) Secretary, State of Karnataka and Others -Vs- Uma Devi; reported in (2006) 4 SC