Page No.# 1/9 GAHC010230282024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/5817/2024 ANU KUMAR YADAV S/O- SRI DEO SAGAR YADAV, RESIDENT OF VILL.- HARINTILLA, P.O.-DULLABCHERRA, P.S. RATABARI, DIST.-KARIMGANJ, ASSAM. VERSUS THE STATE OF ASSAM AND 4 ORS REPRESENTED BY THE SECRETARY TO THE GOVT. OF ASSAM, DEPARTMENT OF SCHOOL EDUCATION, DISPUR, GUWAHATI- 06. 2:THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM FINANCE DEPARTMENT DISPUR GUWAHATI-06. 3:THE DIRECTOR OF SECONDARY EDUCATION ASSAM KAHILIPARA GUWAHATI-19. 4:THE INSPECTOR OF SCHOOLS KDC KARIMGANJ DISTRICT KARIMGANJ P.O. AND DIST.- KARIMGANJ PIN- 788710. 5:THE HEADMASTER PRATAPGARH PUBLIC HIGH SCHOOL TINOKHAL P.O- TINOKHAL Page No.# 2/9 DIST.- KARIMGANJ ASSAM PIN- 788724 Advocate for the Petitioner : MR. M KHAN, MS J AKTAR,MR A K DAS Advocate for the Respondent : SC, SEC. EDU., MS. D. DEVI,MS CHITRALEKHA DAS,MR. K R PATGIRI,SC, FINANCE DEPTT. BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER 02.09.2025 Heard Mr. M. Khan, learned counsel for the petitioner; Mr. U. Sarma, learned standing counsel for the respondent Nos. 1, 3 & 4, in the Secondary Education Department; and Mr. A. Chaliha, learned standing counsel for the respondent No. 2, in the Finance Department. None appears for the respondent No. 5. 2. Extra ordinary jurisdiction of this Court, under Article 226 of the Constitution of India, is being sought to be invoked by the petitioner for issuing direction to the respondent authorities to release his arrear salary for the period from 01.06.1996 to 30.09.2016, within a stipulated time period, which may be fixed by this Court and also challenging the order dated 03.09.2024, issued by the Secretary to the Government of Assam in the Department of School Education. 3. Mr. Khan, learned counsel for the petitioner submits that the petitioner was appointed as Grade – IV employee, allotted to Pratapgarh Public High School, Tinokhal, in the district of Karimganj, in the pay scale of Rs. 900/- to Rs. 1435/-, with immediate effect, vide order dated 18.01.1994. Mr. Khan further Page No.# 3/9 submits that his allotted post was created vide Government Letter No. EPG.567/91/113, dated 16.11.1991 and he had rendered service till 30.09.2016, and he received salaries from 01.02.1994 till 31.05.1996. Thereafter, the respondent authorities had stopped making payment of salary on the ground of non-retention of the post. Being aggrieved, the petitioner approached this Court, by filing a writ petition, being W.P.(C) No. 5907/2023, which was disposed of vide order dated 01.12.2023, with a direction to the respondent authorities to consider his representation. Thereafter, vide impugned order dated 03.09.2024 (Annexure – 9), the respondent No. 1 has rejected the claim of the petitioner. 3.1. Mr. Khan has pointed out that the respondent No. 3, the Director of Secondary Education, Assam and respondent No. 5, the Headmaster of Pratapgarh Public High School, Karimganj have filed their affidavit-in-opposition admitting the fact that the petitioner had served in the said school w.e.f. 01.02.1994 – 31.05.1996. Mr. Khan also pointed out that the respondent No. 5, in his affidavit-in-opposition also stated that the petitioner was paid salaries from 01.02.1994 – 31.05.1996. Thereafter, payment of salary to him was stopped from 01.06.1996, due to lack of retention and some communications were made for releasing his salary, but no payment was made to him. It is also stated that pursuant to order being passed in W.P.(C) No. 5907/2023, the Inspector of Schools, KDC, Karimganj has preferred a proposal for releasing the arrear salaries of the petitioner for the period of 01.06.1996 – 30.09.2016, and the same was submitted with non-drawal certificate to the Inspector of Schools as sought for, which is annexed with the petition as Annexure – 12 series. But, the same also failed to evoke any response from the respondent authorities. 3.2. Referring to a decision of Hon’ble Supreme Court in the case of Man Page No.# 4/9 Singh vs. the State of Uttar Pradesh and Others, in Civil Appeal No(S). 7841 of 2011, and another decision of a Division Bench of this Court, in the case of State of Assam and Others vs. Arunima Chetia and Others, WA 301/2012, 302/2012, 303/2012, 304/2012, 305/2012, 306/2012, 307/2012, 308/2012 and 309/2012, (reported in (2016) 3 GLR 198) Mr. Khan submits that though the appointment of the petitioner was not made by following due process of law, yet, the petitioner has discharged his duties and the State cannot take any work from him without payment of any salary, whether he was legally appointed or illegally appointed, the same matters less, and the services rendered by the petitioner and availed by the State on the principle of ‘quantum meruit’, the salaries have to be paid. Under such circumstances Mr. Khan has contended to allow the petition. 4. Per-contra, Mr. Sarma learned standing counsel for the respondent Nos. 1, 3 & 4, in the Secondary Education Department, has vehemently opposed the petition and submits that the petitioner was not appointed by following due process of law and he failed to produce any appointment letter before the Director of Secondary Education for which, the respondent No. 1 had dismissed the representation filed by the petitioner, vide impugned order dated 03.09.2024. Mr. Sarma further submits that in the order, dated 03.09.2024, the respondent No. 1 has relied upon the decision of Hon’ble Supreme Court in the case of State of Orissa vs. Mamata Mohanty, reported in (2011) 3 SCC 436, while rejecting the prayer of the petitioner and in the given facts the same is squarely applicable. Theerefore, Mr. Sarma has contended to dismiss the same. 5. Having heard the submissions of learned counsel for both the parties, I Page No.# 5/9 have carefully gone through the petition as well as the documents placed on record and also gone through the decisions referred by Mr. Khan, learned counsel for the petitioner and also the decision relied upon by the respondent No. 1, in the impugned order dated 03.09.2024. 6. The basic facts here this case are not in dispute. The petitioner was initially appointed for three months, vide order dated 18.01.1994. Thereafter, it was extended from time to time and he served in the Pratapgarh Public High School, Karimganj till 30.09.2016, and he had received salaries for the period of 01.02.1994 to 31.05.1996, and thereafter, the same was stopped due to lack of retention of the post. 7. The affidavit-in-opposition, so filed by the respondent Nos. 2 & 5, also reveals that the petitioner continued his service till 01.10.2016, and he was paid salaries till 31.05.1996, from the date of his joining. Thereafter, the same was not paid due to lack of retention of the post. The affidavit-in-opposition filed by the respondent No. 5, further reveals that the Inspector of Schools, KDC, Karimgnaj, in view of the order being passed in W.P.(C) No. 5907/2023, had prepared a proposal for releasing the arrear salaries of the petitioner, for the period of 01.06.1996 to 30.09.2016, and the same was submitted with non- drawal certificate to the Inspector of Schools as sought for. But, the same failed to evoke any response from the respondent authorities. 7.1. Thereafter, the petitioner has filed one representation before the respondent Nos. 1 & 3 and the same came to be dismissed vide impugned order dated 30.09.2024. 8. Thus, it becomes apparent that the petitioner has not been paid salaries for the period of 01.06.1996 to 30.09.2016, for which, the petitioner had left the Page No.# 6/9 school voluntarily, for non-payment of salaries. 9. Though a stand has been taken by the respondent Nos. 2 & 5 in their affidavit-in-opposition that the petitioner was irregularly appointed, yet, the respondent Nos. 2 & 5 admitted that the petitioner had served in the said school till 30.09.2016. In the case of Man Singh (Supra), Hon’ble Supreme Court has held that even if the appointment was made irregularly and the petitioner discharged his duties and in view of his duties he has to be paid salaries and the State cannot take away the work without paying the salaries”. This principle is also reiterated by Division Bench of this Court in the case of Arunima Chetia (Supra), as under:- “9) Upon hearing the rival contentions and after going through the order of the learned single Judge in question, it is an admitted fact that all the respondents in the appeals are continuously working as teacher and their salaries are being paid by virtue of the Court’s order. Arrears of salary from July 2007 are not being paid. When the respondents are continuously serving as teacher, the question whether they are illegally appointed or otherwise it matter-less. However, for the services rendered by the private respondents and availed by the State, on the principle of “quantum merit” the salaries have to be paid. 10. However, it appears that the respondent Nos. 2 & 5 also relied upon the decision of Hon’ble Supreme Court in the case of Mamata Mohanty (Supra), wherein it has been held as under:- “36. Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible Page No.# 7/9 candidates. If any appointment is made by merely inviting names from the employment exchange or putting a note on the notice board, etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance with the said constitutional requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit.” 11. But, on a close reading of the said decision, it appears that the factual matrix of the aforesaid case are clearly distinguishable from the present case. The issue involves in the said case was whether the appointment of the respondent - Mamata Mohanty, was void or illegal for not possessing the minimum eligibility criteria i.e. 54% marks in Master’s Course. 11.1. However, in the case in hand, the issue is non-payment of salary, for the service rendered by the petitioner, who was appointed to a post created vide Government Letter No. EPG.567/91/113, dated 16.11.1991. Qualification of the petitioner for being appointed is not an issue. From its own contention of the respondents, it is apparent that the salary could not paid to the petitioner for non retention of the post and it was their duty to take appropriate step for retention of the post and such lapse/inaction is clearly attributable to the respondent authorities. In that view of the matter the ratio laid down in the case of Mamata Mohanty (Supra), would not advance the case of the respondents. Page No.# 8/9 12. It is to be noted here that in the case of State of Gujarat & ors. vs. Talsibhai Dhanjibhai Patel, Special Leave to Appeal (C) No. 1109/2022, decided on 18.02.2022, Hon’ble Supreme Court has held as under:- “It is unfortunate that the State continued to take the services of the respondent as an ad-hoc for 30 years, and thereafter, now, to contend that as the services rendered by the respondent are ad-hoc, he is not entitled to pension/pensionary benefit. The State cannot be permitted to take the benefit of its own wrong. To take the Services continuously for 30 years and thereafter to contend that an employee who has rendered 30 years continues service shall not be eligible for pension is nothing but unreasonable. As a welfare State, the State as such ought not to have taken such a stand.” 13. In the given facts and circumstances on the record, this Court finds sufficient merit in this petition and accordingly, the same stands allowed. 14. By a mandamus of this Court, the respondent No. 3, the Director of Secondary Education, Assam is directed to release the arrear salaries of the petitioner with interest @ 9% per annum from the date of 01.06.1996, till the date of payment. 15. Further, it is provided that the respondent No. 1, the Secretary to the Government of Assam in the Department of School Education, shall conduct an inquiry as to for whose fault the post, created vide Government Letter No. EPG.567/91/113, dated 16.11.1991, could not be retained and who is responsible for non-payment of salaries to the petitioner for the long period. And if, in the process, any officer is found responsible for the same, then the interest to be paid to the petitioner, shall be recovered from the salary of the erring officer. Page No.# 9/9 16. In term of above, this writ petition stands disposed of leaving the parties to bear their own costs. 17. The exercise indicates above, especially in paragraph Nos. 14 & 15, shall be carried out within a period of 3 (three) months from the date of receipt of the certified copy of this order. 18. The petitioner shall obtain a certified copy of this order and place the same before respondent authorities within 2 (two) weeks from today. JUDGE Comparing Assistant