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2022 DAILYLAW 477 (GAU)

ABANI BARUAH S/O JHAGI BARUAH v. STATE OF ASSAM

2022-05-10

ACHINTYA MALLA BUJOR BARUA

body2022
JUDGMENT : ACHINTYA MALLA BUJOR BARUA, J. 1. Heard Mr. S Borthakur learned counsel for the petitioners. Also heard Mr. A Phukan, learned counsel for the respondents No. 1, 2 and 3 being the authorities under the Elementary Education Department, Government of Assam and Mr. A Chaliha, learned counsel for the respondent No. 5 being the authorities under the Finance Department, Government of Assam. 2. The petitioners claim that they had participated in a selection process for the posts of Assistant Teacher in ME/MV Schools in the State of Assam pursuant to an advertisement dated 03.09.1991 which was published in a local daily ‘The Sentinel’. The petitioners were subjected to an interview process by the Sub- Divisional Level Advisory Board (for short, the Board) and under the Rules prevailing at the relevant point of time, the Board was the appropriate authority for undertaking the interview. It is stated that pursuant thereof a select list was published and the petitioners were appointed in the manner as indicated in the tabular form in paragraph 4 of the writ petition, which is extracted as below: S. No. Name of the petitioner Order number and date of appointment Date of joining Name of school where appointed 1 Abani Baruah 16.09.93 17.09.93 Diplonga M.E. School 2 Mahendra Mohan Borah 16.12.93 Pub Jamuguri M.E. School 3 Lohit Ch. Borkataky 14.12.93 19.01.94 Batiamari M.V. School 4 Uttam Mandal 19.10.93 01.11.93 Bhijkhowa M.E. School 5 Shiba Prasad Barman 20.12.93 27.01.94 Gaminipal M.E. School 6 Lakhinandan Konch 23.11.94 25.11.94 Balipara M.V. School 7 Latika Muhari Biswas 20.12.93 25.11.94 Parbatia Girls M.V. School, Tezpur 8 Kulkul Das 20.12.93 18.01.94 Parbatia Girls M.V. School, Tezpur 9 Pranati Hazarika 22.11.94 26.11.94 Anandaram Dekial Phukan M.E. School, Bedati 10 Minu Hazarika 23.11.94 23.11.94 Chilabandha Girls M.V. School 11 Mainul Islam 19.10.93 Bhojkhowa Sirajia M.E. Medressa 12 Dipen Das 22.09.93 23.09.93 Balijuri M.E. School 13 Ajit Baruah 19.11.94 21.11.94 Bir Lachit M.E. School 14 Ila Mishra 23.11.94 25.11.94 Chatia Girls M.V. School 15 Padma Bahadur Newar 23.11.94 25.11.94 Balijuri M.E. School 16 Kalpana Hazarika 19.11.94 21.11.94 Baghmari Balika Vidyalaya 17 Anjali Das 20.12.93 01.01.94 Dekargaon M.V. School 18 Puniram Bhuyan 14.12.93 03.01.94 Uttam Chetia M.E. School 19 Pankaj Baruah 20.12.93 27.01.94 Paschim Jamuguri M.E. School 20 Manjula Mahanta 15.03.94 18.04.94 Barsala M.E. School 21 Nisha Prova Lahkar 01.04.94 01.04.94 Ma Sahar M.E. School 22 Miss Ani Saikia 15.03.94 02.05.94 Brajhar M.E. School 23 Trinayan Saikia 20.12.93 Besseria Girls M.V. School 24 Rajindra Borah 20.12.93 18.01.94 Depota M.E. School 25 Himangshu Borah 19.10.93 03.11.93 Besseria M.V. School 26 Nirmala Devi 20.12.93 18.01.94 Parbatia M.E. School, Tezpur 27 Smt. Rita Bora 20.12.93 18.01.94 Bishnujyoti M.E. School 28 Paban Kumar Borah 19.10.93 01.11.93 Bishnujyoti M.E. School 29 Narayan Upadhaya 18.09.93 21.09.93 Mansiri M.E. School 30 Jimmy Saikia 19.11.94 22.11.94 Parbatia Girls M.V. School 31 Aswini Kumar Sarma 23.11.94 25.11.94 Rangpara M.E. School 32 Saiful Islam 26.10.93 26.10.93 Mansiri M.E. School 33 Omar Ali 11.10.93 Panch Mile M.E.M. 34 Ranu Kalita Tamuli 19.11.94 21.11.94 Bihaguri Girls M.V. School 35 Dipak Das 20.10.94 01.02.94 Keheru Khanda M.V. School 36 Nirmal Das 20.12.93 03.01.94 Keheru Khanda M.V. School 37 Karuna Dawka 20.12.93 01.02.94 Swahid Dwijen Bhuyan M.E. School 38 Momi Devi 20.12.93 01.02.94 B.D. Kanoi M.E. School 39 Rajani Mahanta 20.12.93 01.02.94 Kathaludub M.E. School 40 Anjan A. Nandi 15.03.94 18.04.94 Vivekananda Vidyapith 41 Dipchand Satnami 20.12.93 14.02.94 Basbera M.E. School 42 Shibu Kr. Brahma 15.03.94 Missamari M.E. School 43 Satyajyit Aich 15.03.94 18.04.94 Vivekananda Vidyapith M.E. School 44 Mridul Borah 20.12.93 20.12.94 Rowmari M.E. School 45 Khagen Sarma 23.11.94 Santipur M.V. School 3. The petitioners had received their salary and allowances from the date of initial appointment up to the year 1995 and, thereafter, they were not paid. Brahma 15.03.94 Missamari M.E. School 43 Satyajyit Aich 15.03.94 18.04.94 Vivekananda Vidyapith M.E. School 44 Mridul Borah 20.12.93 20.12.94 Rowmari M.E. School 45 Khagen Sarma 23.11.94 Santipur M.V. School 3. The petitioners had received their salary and allowances from the date of initial appointment up to the year 1995 and, thereafter, they were not paid. During the same period, certain irregularities in the appointments were detected in the Education Department and it was a situation where the Department was unable to determine as to which of the appointments were illegal, irregular or regular. In view of the above and also under certain other circumstances, an enquiry committee was constituted headed by Sri S Manoharan, IAS, which in common parlance is called the ‘Manoharan Committee’. The cases of the writ petitioners were also subjected to a scrutiny by the Manoharan Committee. It is stated that the Manoharan Committee had categorized the appointments of the teachers who were subjected to the scrutiny into three categories. The first category being such teachers whose entry into services were accepted to be illegal, the second category being such teachers whose entry into services were considered to be irregular and the third category being such teachers whose entry into services were considered to be legitimate. It is also stated that in respect of the second category of teachers whose entry into services were considered to be irregular, two cabinet decisions were taken being dated 21.02.2000 and 24.02.2005. In the first cabinet decision of 21.02.2000, a decision was taken to regularly induct into services 3511 number of teachers. Accordingly such teachers were regularly inducted into service and are getting their service benefits as entitled. But as the number of teachers who were categorized to be irregularly appointed were more than 3511, the second cabinet decision was taken on 24.02.2005 to induct a further 2776 numbers of teachers. The present writ petitioners are included in the second cabinet decision wherein a decision was taken to induct on regular basis 2776 numbers of teachers. Accordingly, by the order dated 22.08.2005 of the Director of Elementary Education Assam, the petitioners were regularized w.e.f. the date of their joining against the vacant posts as per the list enclosed thereto in the scale of pay of Rs.3130/- to 6600/- per month plus other allowances as admissible under the Rules. 4. Accordingly, by the order dated 22.08.2005 of the Director of Elementary Education Assam, the petitioners were regularized w.e.f. the date of their joining against the vacant posts as per the list enclosed thereto in the scale of pay of Rs.3130/- to 6600/- per month plus other allowances as admissible under the Rules. 4. A list of teachers wherein the names of the writ petitioners were included also accompanied the order dated 22.08.2005 and the said list which was in a tabular form also contained a column as to against which post the teachers concerned were adjusted. 5. Accordingly, the writ petitioners after their regular induction into services are governed by the ‘New Defined Contribution Pension Scheme’ (for short, the NDCPS). The applicability of the NDCPS in respect of the petitioners and the inclusion of the clause thereof in the appointment letters that the petitioners would be governed by the NDCPS is assailed in this writ petition. 6. Mr. S Borthakur, learned counsel for the petitioners raises a contention that for all purpose, in the facts and circumstances of the present case it would have to be construed that the petitioners are in a continuous service since the respective dates of appointments in the year 1993 and it being so, it cannot be a case that they have entered the Government service only as per the order dated 22.08.2005. Accordingly, it is the submission that the petitioners should be governed by the Assam Services (Pension) Rules 1969 (for short, the Pension Rules of 1969) as it stood prior to the introduction of the NDCPS. 7. Mr. A Phukan, learned counsel for the respondents in the Elementary Education Department on the other hand raises a counter contention that the services of the petitioners from the year 1993 were not pursuant to an entry into service by legitimate means and, therefore, under the law, the said period cannot be construed to be a period when the petitioners have entered the Government services. It is the further contention that considering the manner in which the petitioners were earlier appointed, they did not have any legal right to remain in service. It is the further contention that considering the manner in which the petitioners were earlier appointed, they did not have any legal right to remain in service. But the respondent authorities took a cabinet decision not to dispense with the services of such category of teachers and to provide them with an opportunity to enter into the Government services in a legitimate manner prospectively from the date of such decision and the implementation thereof. Accordingly, it is the contention of Mr. A Phukan, learned counsel for the Elementary Education Department that the aforesaid condition in the order dated 22.08.2005 was introduced that as the petitioners were legitimately allowed to enter the Government services by virtue of the said order and the said order being subsequent to the cutoff date of 01.02.2005, therefore, they would be covered by NDCPS and not by the Pension Rules of 1969 as it stood prior to the introduction of the aforesaid scheme. 8. In the conspectus of the aforesaid contentions of the parties, a decision to be arrived at in the facts and circumstances of the present case would be as to since when the petitioners have legitimately entered into Government services, that is whether as per their original appointments in the year 1993 or as per the order dated 22.08.2005. 9. If we accept the contentions raised by the parties that the report of the Manoharan Committee had categorized the teachers into three different categories i.e. firstly, the teachers whose entry into Government services were illegal i.e. by entering services through some other manipulative means, secondly, the teachers whose entry into Government services were irregular and thirdly, such categories of teachers whose entry into Government services were by legitimate means, we have to understand that the writ petitioners having been placed in the second category, their entry into services were irregular and that the entry into services of the present writ petitioners in the year 1993 were not a legitimate entry. The categorization of the writ petitioners in the second category that their entry into Government services were irregular has not been assailed and in fact accepted by the petitioners by accepting the order dated 22.08.2005 for entering into Government services, other than the condition contained therein that their services would be governed by the NDCPS. 10. The relevant provisions of the NDCPS as regards its applicability are as extracted: “3. 10. The relevant provisions of the NDCPS as regards its applicability are as extracted: “3. The scheme shall be applicable to all new entrants joining State Government Service on regular basis against sanctioned vacant post filled up with the approval of either SLEC or Finance (SIU) Department on or after 1st February, 2005. It would also be applicable to all Government servants whose services were/will be regularized against regular posts on or after 01.02.2005 with the benefit of prospective date. 4. The teaching and non-teaching employees of provincialised Educational Institutions as well as that of Panchayat who join State Government service on or after 01.02.2005 on regular basis shall come under the purview of the above scheme.” 11. A reading of the applicability of the NDCPS is that the scheme would be applicable to all the new entrants joining the State Government on a regular basis against vacant sanctioned posts on or after 01.02.2005. In other words, four conditions precedent are to be satisfied for the applicability of the NDCPS i.e. the Government employee concerned must be a new entrant joining the State Government service, secondly, such joining ought to be on a regular basis, thirdly, it should be against a vacant sanctioned post and, fourthly, it should be on or after 01.02.2005. 12. In the instant case, firstly, the petitioners by the order dated 22.08.2005 have entered Government service, secondly, such entry is on a regular basis, thirdly, it is against a sanctioned vacant post and fourthly, the entry is after 01.02.2005. Consequently, all the four conditions precedent of the NDCPS are satisfied and therefore, from such point of view, the petitioners would be governed by the provisions of the NDCPS. 13. But to understand whether because of their earlier services from the year 1993 the petitioners would also be governed by the provisions of the Pension Rules of 1969 as it stood prior to the introduction of the NDCPS, as a corollary, we can also view that if the petitioners satisfy the conditions that prior to 01.02.2005 they were the entrants to the Government services and such entry was on a regular basis and further it was against a vacant sanctioned post, perhaps it could have been looked into whether they would be governed by the Pension Rules of 1969 as it stood prior to the introduction of the NDCPS. But Rule 31 of the Pension Rules of 1969 itself provides for the eligibility of an employee to be qualified for pension under the said Rules. 14. If all the aforesaid four conditions precedent are satisfied, it has to be understood that the employee concerned would be governed by the NDCPS and not by the Pension Rules of 1969 as it stood prior to the introduction of the NDCPS. From the said point of view also, when we look into the factual matrix as regards the writ petitioners in the present writ petition, we find that although there may be a claim that the petitioners have entered into Government services in the year 1993 itself, but such entry in view of the conclusion of the Manoharan Committee cannot be said to have been on a regular basis and we take note that it has been projected by the authorities that although it is the claim of the writ petitioners that they were appointed pursuant to a selection process as per the advertisement dated 03.09.1991, but no material is available that they were appointed against sanctioned vacant posts. On the other hand, a claim is made by the respondents that the appointments of the petitioners were in excess of the available sanctioned vacant posts. Rule 31 of the Pension Rules of 1969 is extracted as below: “31. The service of an officer does not qualify for pension unless it conforms to the following three conditions: Firstly, the service must be under Government; Secondly, the employment must be substantive and permanent; Thirdly, the service must be paid by Government: Provided that the Governor, may, even though either or both of conditions (1) and (2) above are not fulfilled:- (i) declare that any specified kind of service rendered in a non-gazetted capacity shall qualify for pension. (ii) in individual cases and subject to such conditions as he may think fit to impose in each case allow service rendered by an officer to count for pension.” 15. Rule 31 of the Pension Rules of 1969 as it stood prior to the introduction of the NDCPS provides that an employee would be qualified for pension if it conforms to three conditions i.e., firstly, the service must be under Government, secondly, the employment must be substantive and permanent and thirdly, the service must be paid by the Government. 16. Rule 31 of the Pension Rules of 1969 as it stood prior to the introduction of the NDCPS provides that an employee would be qualified for pension if it conforms to three conditions i.e., firstly, the service must be under Government, secondly, the employment must be substantive and permanent and thirdly, the service must be paid by the Government. 16. The concept of substantive employment was examined by the Supreme Court in Baleshwar Dass Vs. State of U.P. and Others, (1980) 4 SCC 226 and Ramesh K. Sharma and Another Vs. Rajasthan Civil Services and Others, (2001) 1 SCC 637 as well as in O.P. Singla and Another Vs. Union of India and Others, (1984) 4 SCC 450 . In paragraph 31 of its judgment in Baleshwar Dass (supra), it is provided as extracted: “31. What, in the context, is a substantive capacity vis-a-vis an appointment to a post? In our view, the emphasis imparted by the adjective "substantive" is that a thing is substantive if it is "an essential part or constituent or relating to what is essential". We may describe a capacity as substantive if it has "independent existence" or is of "considerable amount or quantity". What is independent in a substantial measure may reasonably be described as substantive. Therefore, when a post is vacant, however designated in officialese, the capacity in which the person holds the post has to be ascertained by the State. Substantive capacity refers to the capacity in which a person holds the post and not necessarily to the nature or character of the post. To approximate to the official diction used in this connection, we may well say that a person is said to hold a post in a substantive capacity when he holds it for an indefinite period especially of long duration in contradistinction to a person who holds it for a definite or temporary period or holds it on probation subject to confirmation.” In paragraph 4 of its pronouncement in Ramesh K Sharma (supra), it has been provided as extracted: “4. In Baleshwar Dass v. State of U.P. this Court held that when a person holds a post for an indefinite period especially for long duration in contradistinction to a person who holds it for a definite or temporary period or holds that on probation then it must be held that he held a post in a substantive capacity. In Baleshwar Dass v. State of U.P. this Court held that when a person holds a post for an indefinite period especially for long duration in contradistinction to a person who holds it for a definite or temporary period or holds that on probation then it must be held that he held a post in a substantive capacity. Further if an appointment to the post is made by the proper authority after the person concerned passes the prescribed test and if a probation period has been prescribed therein, on completion of the probation period his appointment is further approved then also it can be said that he held a post in substantive capacity. This decision in Baleshwar Dass case was followed by this Court in O.P. Singla case.” In paragraph 78 of O.P. Singla and Another Vs. Union of India and Others, (1984) 4 SCC 450 , it has been held as extracted: “78. In the aforesaid decision this Court noted that a person is said to hold a post in a substantive capacity when he holds it for an indefinite period, especially of long duration in contradistinction to a person who holds it for a definite or a temporary period or holds it on probation subject to confirmation. If the appointment was to a post and the capacity in which the appointment was to be made was of indefinite duration, if the proper authority had been consulted and had approved, if the tests prescribed have been taken and passed, if probation has been prescribed and has been approved, one may well say that the post was held by the incumbent in a substantive capacity. Applying these tests to the facts and circumstances of this case dealing with the officers holding the post for a long time, there is no doubt that the petitioners officers have held the positions in substantive capacities.” 17. Applying these tests to the facts and circumstances of this case dealing with the officers holding the post for a long time, there is no doubt that the petitioners officers have held the positions in substantive capacities.” 17. On a conjoint reading of the aforesaid pronouncements laid down by the Supreme Court, it would be discernible that in order to be in a substantive employment the conditions to be fulfilled, amongst others, would be that the person holds the post for indefinite period, i.e., for a long duration in contradistinction to a person who holds it for a definite or a temporary period, the appointment to the post is made by the proper authority after the person concerned passes the prescribed test and the post to which the appointment is made is vacant, although it may be immaterial as to in what manner the post is designated in officialese. If all the three conditions are simultaneously satisfied it could be understood that the person concerned was in a substantive employment. 18. Having taken note of the requirements to accept an employment to be a substantive employment, we have to understand that the second condition in Rule 31 of the Pension Rules of 1969 requires that the appointment to the post is made by the proper authority after the person concerned passes the prescribed test and the post to which the appointment is made is vacant i.e. a sanctioned vacant post. 19. In the aforesaid context, in the instant case, it is an admitted position that the writ petitioners were appointed in the year 1993, may be, by following some process, but it was in excess of the available sanctioned vacant posts. If it is accepted that the petitioners were in employment from the year 1993 and the same may have been for a long duration, but as regards the other conditions that the appointment to the post is to be made by a proper authority after the person concerned passes the prescribed test and that the post to which the appointment was made is a sanctioned vacant post, would not be satisfied in the facts and circumstances of the present case, more so, in view of the conclusion that had already been arrived that the petitioners were appointed in excess of the available sanctioned vacant posts. Having been appointed in excess of the available sanctioned vacant posts, not only the condition that the post is required to be a vacant sanctioned post would not be satisfied, even the requirement that the person concerned would have to pass the prescribed test may also be not satisfied as the selection or the prescribed test was done only in respect of the available sanctioned vacant posts for which the selection process was undertaken and, therefore, even if the petitioners may have participated in some selection process, it cannot be said that they have passed the prescribed test which is a requirement to be in a substantive employment. 20. In the absence of the satisfaction of two of the conditions precedent that the petitioners ought to have been appointed on regular basis and against sanctioned vacant posts, prior to 01.02.2005, which is the cutoff date for the applicability of the NDCPS, it has to be understood that the present writ petitioners have not joined the Government services on a substantive and permanent employment prior to 01.02.2005, although they may have been appointed or continued in service in some other manner. Further, as the petitioners were not in an employment which was substantive and permanent, they have not satisfied the requirement of the condition of qualifying service provided in Rule 31 of the Pension Rules of 1969 that the employment must be substantive and permanent. If the entry into Government service of the present writ petitioners in the year 1993 were not legitimate under the law, it has to be accepted that they have not entered the Government service in a legitimate manner, so as to be given an entitlement to the aforesaid period of service to be also included as a part of the Government services they had rendered. 21. When we look into the order dated 22.08.2005 by which the petitioners were regularized in service w.e.f. the date of joining against the vacant posts, it is discernible that the petitioners had joined the Government services on a regular basis against sanctioned vacant posts subsequent to 01.02.2005. From such point of view, we do not find any infirmity in the order dated 22.08.2005 which provides that the petitioners would be governed by the NDCPS. 22. But, however, Mr. From such point of view, we do not find any infirmity in the order dated 22.08.2005 which provides that the petitioners would be governed by the NDCPS. 22. But, however, Mr. S Borthakur, learned counsel for the petitioners refers to the list of teachers enclosed to the order dated 22.08.2005 and points out to the 5th column in the said list which provides for the posts against which adjustments were proposed and by referring to the word ‘adjusted’ appearing in the 5th column of the list, it is contended that the petitioners were not appointed to Government services by the order dated 22.08.2005 but were on the other hand adjusted. 23. Accordingly, it is contended by Mr. S Borthakur learned counsel for the petitioners that as the petitioners were adjusted by the said order, it was neither a case that they were appointed nor it was a case that they were regularised in service by the said order. According to Mr. S Borthakur, learned counsel the very word adjusted is itself an indication that there were some prior services by the petitioners and therefore, it being a case of there being some prior service, the order dated 22.08.2005 is not an indication either of an appointment or that of a regularization. Accordingly a submission is made that if the word ‘adjusted’ appearing in the 5th column of the list enclosed to the order dated 22.08.2005 is given its appropriate meaning, the petitioners would have to be construed to have joined Government services even prior to the order dated 22.08.2005. 24. We are not expressing any view on the said submission raised by Mr. S Borthakur, learned counsel for the petitioners nor we are trying to read the meaning of the word ‘adjusted’ appearing in the 5th column of the list enclosed to the order dated 22.08.2005, vis-a-vis, the other provisions in the said order which provides that the concerned teachers were regularised by the order dated 22.08.2005 with effect from their respective dates of joining against the vacant posts as per the enclosed list. If the petitioners intend to give a different meaning to the word ‘adjusted’ appearing in the 5th column of the list enclosed to the order dated 22.08.2005 and thereby claim that they have entered Government services even prior to the said order dated 22.08.2005, liberty is granted to the petitioners to make a representation before the Secretary to the Government of Assam in the Elementary Education Department Government of Assam. In the event of any such representation is filed, the Secretary may give a meaning to the word ‘adjusted’ appearing in the 5th column of the list enclosed with the order dated 22.08.2005, and the implications thereof, but shall make no attempt to re-visit the conclusions arrived at in this judgment in any other manner. 25. Accordingly, while rejecting the writ petition for the relief sought therein, the writ petitioners are also given the liberty to file a representation as indicated hereinabove. 26. If any representation is submitted, the Secretary to pass the reasoned order by providing for the meaning and purport of the word ‘adjusted’ appearing in the 5th column of the list enclosed to the order dated 22.08.2005 within a period of three months from the date of receipt of the representation as indicated hereinabove. 27. Writ petition stands disposed of in the above terms.