Page No.# 1/14 GAHC010247782022 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/660/2023 ASHOK SINGH S/O- LATE INDRAJIT SINGH, R/O- VILL- AIENAKHAL TE, P.O- MONACHERRA, DIST- HAILAKANDI, ASSAM VERSUS THE STATE OF ASSAM AND 4 ORS TO BE REP. BY THE SECRETARY TO THE GOVT OF ASSAM, SECONDARY EDUCATION DEPTT, DISPUR, GHY- 6 2:THE DIRECTOR SECONDARY EDUCATION ASSAM KAHILIPARA GHY- 19 3:THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM FINANCE DEPTT DISPUR GHY- 06 4:THE INSPECTOR OF SCHOOL HAILAKANDI ASSAM 5:THE HEAD MASTER OF MONACHERRA HIGH SCHOOL P.O- MONACHERRA DIST- HAILAKANDI ASSA Page No.# 2/14 Advocate for the Petitioner : MR. J LASKAR, MR R DAS Advocate for the Respondent : SC, EDU, MR. D F A AHMED,SC, FINANCE BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER 10-04-2025 Heard Mr. J. Laskar, learned counsel for the petitioner and Mr. N.J. Khataniar, learned standing counsel for the Secondary Education Department. 2. In this petition, under Article 226 of the Constitution of India, the petitioner has prayed for issuing direction to the respondent authorities for releasing the current as well as the arrear salary of the petitioner, w.e.f. 01.06.1998. Background Facts:- 3. The background facts leading to filing of this petition are adumbrated herein below:- “The petitioner was appointed as Grade – IV employee in the Monacherra High school, Monacherra in the District of Hailakandi, by the Managing Committee of the said school, vide order dated 26.06.1982, when the school was in venture stage. Subsequently, his service was provincialised vide order dated 26.04.1985, w.e.f. 01.02.1985, as Grade – IV employee of the school and he received salary from 01.02.1985 to 31.01.1996, as Grade – IV employee. Thereafter, on 30.01.1996, the petitioner was promoted to Lower Division Assistant (LDA) in the said school and he joined his upgraded post on 01.02.1996, and he received salary from 01.02.1996 to 31.05.1998. However, since then he has not been receiving salary due to non-retention of the post. Page No.# 3/14 Being aggrieved, the petitioner had approached this Court by filing a writ petition, being W.P.(C) No. 5626/2000, and the said writ petition was disposed of by this Court, vide order dated 24.03.2004, directing the respondent authorities to consider the appeal filed by the petitioner on 14.10.1999, within a period of two months and also directed to release the salary of the petitioner w.e.f. June, 1998. Thereafter, several inter and intra departmental communications were made, but till date no steps has been taken to release his current as well as the arrear salary w.e.f. 01.06.1998. Being aggrieved, the petitioner has approached this Court by filing the present petition, seeking the relief(s) mentioned herein above. 4. The respondent No. 2, the Director of Secondary Education, Assam has filed an affidavit-in-opposition, wherein it is stated that the petitioner was appointed as Grade – IV employee by the Managing Committee of Monacherra High School, Monacherra, when the school was in venture stage. Subsequently, his service was provincialised w.e.f. 01.02.1985, vide order No. PC/Sec/21/84/8, dated 26.04.1985, issued by the Director of Secondary Education, Assam and accordingly, the petitioner received his salary from 01.02.1985 to 31.01.1996. 4.1. It is also stated that the Government in Education Department had sanctioned 5 posts of Lower Division Assistant (LDA), vide order No. EPG.567/91/113, dated 16.11.1991, in the scale of pay of Rs. 1065/- to 2095/- plus other allowances as admissible under the Rules, for the district of Hailakandi. Then the Inspector of Schools, vide order dated 30.01.1996, allotted one LDA post to Monacherra High School and accordingly, the petitioner was upgraded to LDA in the same school, w.e.f. the date of his joining against the said sanctioned post. It Page No.# 4/14 is also stated that the appointment of the petitioner was made on ad-hoc basis and subject to selection of selection board or until further order, whichever earlier. 4.2. Further, it is stated that the petitioner had joined his post on 01.02.1996, and received his salary from 01.02.1996 to 31.05.1998. However, since 01.06.1998, the petitioner has not received his salary due to non-retention of the said post. Thereafter, the petitioner had preferred a writ petition, being WP(C) No. 5626/2000 and while disposing of the said writ petition, on 24.03.2004, this Court observed as under:- ".. the respondents cannot be oblivious and absolved of the duties for a meaningful consideration of the case of the petitioner towards regularization of his service and payment of salary stated to be payable from June, 1998, which however will be dependent on consideration of the services of the petitioner beyond June 1998. If the services of the petitioner have been utilized on the basis of his appointment in the year of 1996, the respondent irrespective of regularization of the services of the petitioner are bound to pay the salary to the petitioner.” 4.3. Thereafter, a proposal was submitted to the Government, vide letter No. GB- EST/DSE/CC/174/2005/53, dated 04.07.2007, for approval of ex-post facto retention of the post w.e.f. 01.06.1998 to 31.12.2004, under plan budget of a supernumerary post, w.e.f. 01.06.1998 to 31.12.2004 and w.e.f. 01.01.2005, for the service of the petitioner may be allowed for adjustment against vacant LDA post in J.C. Higher Secondary School. Thereafter, several correspondences were made for regularization of service of the petitioner as per order of this Court. Accordingly, a list comprising 100 numbers of appointees including the name of petitioner was sent to the Government, vide letter No. PC/SEC/46/97/Pt-III/153, dated 01.07.2017. Page No.# 5/14 4.4. Thereafter, the Government vide letter No. ASE 283/2013/766, dated 09.11.2017, intimated that the matter has been consulted with Judicial Department who has opined that "If the concerned workers were not appointed against vacant sanctioned posts, they are not entitled to regularization. However, if they subsequently selected through a regular selection process for vacant sanctioned posts conducted as per existent rules, they may be appointed, if necessary, by granting age condonation benefit within permissible limits". 4.5. Thereafter, the Finance Department also regretted its inability to agree to the proposal for regularization of the petitioner’s service which was included in the proposal sent to the Government, vide letter dated 01.07.2017. Thereafter, vide Letter No. PC/SEC/46/97/Pt-III/179, dated 19.04.2018, the Government had informed that out of total 100 numbers of employee, only 11 employees are under 45 years of age who can avail the benefits of age relaxation and the same was as per Personnel (B) Department's Office Memorandum No. ABP.73/89/17, dated 04.01.1992. And in the instant case, the petitioner did not fulfill the age relaxation or condonation under the aforesaid Office Memorandum. 4.6. It is also stated that Hon’ble Supreme Court in the case of State of Orissa vs. Mamata Mahanty, reported in (2011) 3 SCC 436 and also in the case of Government of Andhra Pradesh vs. K. Brahmanand, reported in (2008) 5 SCC 241, wherein it is held as under:- "No person can be appointed without advertisement and participating in the selection process and mere continuance in service wrongly appointed in posts do not confer such appointee any right to claim any relief including salary and that liability of the State to pay salary to a teacher appointed in the recognized schools would arise provided the provisions of the statutory rules are complied with." Page No.# 6/14 4.7. Again in the case of Suresh Mani Sukla vs. District Inspector of Schools, Deoria, reported in (2009)15 SCC 436, Hon'ble Supreme Court has held as under:- "It is true that the appellant has worked for a long time. His appointment, however, being in contravention of the statutory provision was illegal, and, thus void ab initio. If his appointment has not been granted approval by the statutory authority, no exception can be taken only because the appellant had worked for a long time. The same by itself, in our opinion, cannot form the basis for obtaining a writ of or in the nature of mandamus; as it is well known that for the said purpose, the writ petitioner must establish a legal right in himself and a corresponding legal duty in the State. Sympathy or sentiments alone, it is well settled, cannot form the basis for issuing a writ of or in the nature of mandamus". 4.8. It is also stated that the arrear salary claimed by the petitioner is also barred by the delay and laches. It is held by Hon'ble Supreme Court in the case of MR Gupta vs. the Union of India, reported in 1995 (5)SCC 628, that the claim for recovery of arrear shall be restricted for the period of 3 years. 4.9. It is also stated that the appointment of the petitioner was made on ad-hoc basis and subject to the selection of selection board or until further order, whichever earlier. Therefore, the recruitment of the petitioner as a LDA in Monacherra High School, under Hailakandi district was undertaken without following any due recruitment proceedings or rules and it appears from the records that no selection process was taken place subsequent to ad-hoc appointment of the petitioner or no valid order has been passed to absorb him against any sanctioned vacant post. As such, this writ petition is devoid of merit and therefore, it is contended to dismiss the same. Page No.# 7/14 5. Mr. Laskar, learned counsel for the petitioner submits that the ground, on which the respondent authorities has refused to release the salary of the petitioner is not at all tenable in the eye of law. Mr. Laskar, further submits that the service of the petitioner as Grade –IV employee in Monacherra High school was provincialized on 26.04.1985, w.e.f. 01.02.1985 and he received salary from 01.02.1985 to 31.01.1996, as Grade – IV employee. Thereafter, on 30.01.1996, the petitioner was promoted to LDA in the said school and he received salary up to 31.05.1998, as LDA. However, since then he has not been receiving salary due to non-retention of the post and the petitioner is not at all responsible for the same and it is the respondent authorities, who are responsible for the same. Mr. Laskar, further submits that having utilized his service by the respondent authorities, now they cannot deny his salaries on account of non-retention of the post and therefore, it is contended to allow the petition. 6. On the other hand, Mr. Khataniar, learned standing counsel for the respondent authorities sticks to the contention made in the affidavit-in-opposition and submits that the petitioner has not claimed his salaries within a period of three years from 31.05.1998. As such, in view of the decision of Hon’ble Supreme Court in the case of MR Gupta (Supra), he is not entitled to arrear salaries. Mr. Khataniar further submits that the petitioner was appointed without any advertisement in the said post and no selection process was conducted and that mere continuance of service in wrongly appointed post do no confer any right to claim any relief. Mr. Khataniar also submits that being contrary to the statutory provision, the appointment of the petitioner to the post of LDA is illegal and therefore, it is contended to dismiss the petition. 7. Having heard the submissions of learned counsel for both the parties, I have carefully gone through the petition as well as the documents placed on record and also gone through the decision of Mr. Khataniar, learned standing counsel for the Page No.# 8/14 respondent authorities. 8. It is not in dispute that the service of the petitioner was provincialized as Grade - IV employee in Monacherra High School on 26.04.1985, w.e.f. 01.02.1985 and he received salary up to 31.01.1996. Further, it is not in dispute that the Government had created five numbers of LDA post in the scale of pay of Rs. 1065/- to 2095/- plus other allowances as admissible, vide Order No. EPG.567/91/113, dated 16.11.1991 (Annexure – B) and one of the said post was allotted to Moncherra High School. Thereafter, Inspector of Schools, Hailakandi, the respondent No. 4, had upgraded the petitioner to act as an LDA employee in the said school in the above mentioned pay scale. It is also not in dispute that, vide order dated 30.01.1996, the appointment of the petitioner was made on ad- hoc basis and subject to selection by the selection board or until further order whichever is earlier. 9. That, perusal of the record also reveals that the petitioner had approached this Court by filing a writ petition, being W.P.(C) No. 5626/2000, and the same was disposed of vide order dated 24.03.2004, by directing the respondent authorities to consider the appeal filed by the petitioner on 14.10.1999, within a period of two months and also directed to release the salary of the petitioner w.e.f. June, 1998, if he was in service, on the strength of his appointment in the year 1996 and also to consider the fact that he had been rendering service in Monacherra High School from 1982, for 22 years. 9.1. Despite such direction of this Court, the respondent authorities have failed to carry out the said exercise. Rather is has come with some new grounds, which appears to be not at all tenable in the eye of law. 10. The judgment of this Court, dated 24.03.2004, passed in W.P.(C) No. 5626/2000, indicates that the petitioner had preferred an appeal on 14.10.1999, to Page No.# 9/14 the Director of Secondary Education and on such count, the respondent authorities cannot be allowed to claim that the petitioner had not claimed his salary within a period of three years. That being so, the stand taken by respondent herein, got no legs to stand upon. 11. The perusal of the Annexure – C indicates that the petitioner was appointed on ad-hoc basis and subject to selection by the selection board or until further order whichever is earlier. The respondent authorities had not terminated him from service at any point of time. Rather, they had utilized his service for 22 years, as observed by a Co-ordinate Bench of this Court in the order dated 24.03.2004, in W.P.(C) No. 5626/2000, with no payment being made, not to speak of regularization of his service. 12. Notably, it is not the pleaded case of the respondent authorities that selection board was constituted and selection was carried out. Thus, having failed to constitute the selection board and to carry out the selection process, the appointment of the petitioner, shall have to continue as per terms and conditions in his appointment letter i.e. Annexure – ‘C’, until further order. Now, the term ‘ until further order’ would operate as estoppels, in all its amplitude and plenitude, against the respondent authorities in taking a contrary stand. 13. Thus, having utilized the service of the petitioner and now denial of his claim by the respondent authorities for no fault of him, is not only arbitrary but also illegal and it constitutes an act of exploitative enslavement and is oppressive, suppressive and coercive. His rights, as guaranteed under Article 14 and 16 of the Constitution of India, besides his right to life, as enshrined in the Article 21, are violated. 14. It is well-settled that salaries and pensions are due as a matter of right to employees. Since, the petitioner had rendered his services for 22 years, his Page No.# 10/14 entitlement to the payment of salary is intrinsic to the right to life under Article 21 and right to property which is recognized by Article 300A of the Constitution. 15. The Hon'ble Supreme Court in the case of the State of Andhra Pradesh & Others vs. Smti Dinavahi Lakshmi Kameswari, in Civil Appeal No. 399 of 2021 (arising out of SLP No. 12553 of 2020) has observed that: "The direction for the payment of the deferred portions of the salaries and pensions is unexceptionable. Salaries are due to the employees of the State for services rendered. Salaries in other words constitute the rightful entitlement of the employees and are payable in accordance with law. Likewise, it is well settled that the payment of pension is for years of past service rendered by the pensioners to the State. Pensions are hence a matter of a rightful entitlement recognised by the applicable rules and regulations which govern the service of the employees of the State." 16. In such a situation, what would be the duty of the Court, is aptly explained in the case of D.S. Nakara v. Union of India, reported in (1983) 1 SCC 305, wherein a five-Judge Constitution Bench of the Hon’ble Supreme Court had held that :- 8.1. It is not necessary for us to narrate the factual controversy adjudicated upon in this case. In fact, the main issue, which arose for consideration, pertained to pension, and not to wages. Be that as it may, it is of utmost importance to highlight the following observations recorded in the above judgment: “32. Having succinctly focussed our attention on the conspectus of elements and incidents of pension the main question may now be tackled. But, the approach of court while considering such measure is of paramount importance. Since the advent of the Page No.# 11/14 Constitution, the State action must be directed towards attaining the goals set out in Part IV of the Constitution which, when achieved, would permit us to claim that we have set up a welfare State. Article 38(1) enjoins the State to strive to promote welfare of the people by securing and protecting as effective as it may a social order in which justice— social, economic and political — shall inform all institutions of the national life. In particular the State shall strive to minimise the inequalities in income and endeavour to eliminate inequalities in status, facilities and opportunities. Article 39(d) enjoins a duty to see that there is equal pay for equal work for both men and women and this directive should be understood and interpreted in the light of the judgment of this Court in Randhir Singh v. Union of India [Randhir Singh v. Union of India, (1982) 1 SCC 618. Revealing the scope and content of this facet of equality, Chinnappa Reddy, J. speaking for the Court observed as under: ‘1. … Now, thanks to the rising social and political consciousness and the expectations aroused as a consequence, and the forward-looking posture of this Court, the underprivileged also are clamouring for the rights and are seeking the intervention of the court with touching faith and confidence in the court. The Judges of the court have a duty to redeem their constitutional oath and do justice no less to the pavement-dweller than to the guest of the five- star hotel.’ 17. It is the categorical contention of the petitioner that he has been rendering his service in the aforementioned school since the date of his joining as LDA on 01.02.1996. Indisputably, he received his salary up to 31.05.1998, and since then Page No.# 12/14 he has not been receiving his salaries. 18. Under the given facts and circumstances, by a mandamus of this Court, the respondent authorities are directed to release both arrear and current salaries of the petitioner, w.e.f. 01.06.1998. 19. Since the petitioner is denied his rightful claim to his salary by the respondent authorities, this Court deemed it appropriate and also equitable to saddle interest upon the salary, receivable by the petitioner herein, as the same is also a valuable right of the petitioner. It is to be noted here that while dealing with the issue of interest leviable, Hon'ble Supreme Court in the case of D.D. Tewari vs. Uttar Haryana Bulivitran Nigam Limited and others, reported in 2014 (8) SCC 894,has held that: "......denial of interest from the date of entitlement till the date of actual disbursement would take away the valuable rights of the retired government servant. It was reiterated in that decision that pension and gratuity are not bounty to be distributed by Government to its employees on their retirement, but are valuable rights and property in its hands and any culpable delay in settlement and disbursement thereof is to be visited with penalty of payment of interest." 20. Again in the case of S.K. Dua v. State of Haryana, reported in 2008 (3) SCC 44, while answering the issue as to whether the appellant therein was entitled to interest on delayed payment of retiral benefits, in the absence of any statutory rules/administrative instructions or guidelines, the Supreme Court held as follows: "In the circumstances, prima facie, we are of the view that the grievance voiced by the appellant appears to be well founded that he would be entitled to interest on such benefits. If there are statutory rules occupying the Page No.# 13/14 field, the appellant could claim payment of interest relying on such rules. If there are administrative instructions, guidelines or norms prescribed for the purpose, the appellant may claim benefit of interest on that basis. But even in the absence of statutory rules, administrative instructions or guidelines, an employee can claim interest under Part III of the Constitution relying on Articles 14 , 19 and 21 of the Constitution. The submission of the learned counsel for the appellant, that retiral benefits are not in the nature of "bounty" is, in our opinion, well founded and needs no authority in support thereof. In that view of the matter, in our considered opinion, the High Court was not right in dismissing the petition in limine even without issuing notice to the respondents." 21. Thus, having relied upon the ratio laid down in the cases discussed herein above and also balancing equities, it is provided that the salary, so receivable by the petitioner herein, since 01.06.1998, shall interest @ 9% per annum. 22. The aforementioned exercise has to be carried out within a period of 2 (two) months from the date of receipt of a certified copy of this order. The petitioner shall obtain a certified copy of this order and place the same before the respondent authorities within a period of 1 (one) week from today. 23. It is further provided that in the event of failing to carry out the directions herein above, by the respondent No.2, 3 and 4 within the period stipulated, the interest to be paid upon the salary receivable by the petitioner shall be recoverable from the salary of the respondent No. 2, 3 and 4. 24. In terms of above, this petition stands disposed of. The parties have to bare their own costs. Page No.# 14/14 JUDGE Comparing Assistant