Dismissed

The State of Assam v. Smti Manita Devi

Gauhati HC1 Dec 2021Review.Pet./85/2018

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed a review petition filed by the State of Assam challenging an order granting arrear salary to an Assistant Teacher. The Court dismissed the review due to lack of new evidence, noting that the petitioner's own past affidavits admitted the respondent's service, and deeming later-produced letters fabricated given the unavailability of original attendance registers.

What did the court decide?

The review petition was dismissed, and the petitioner was ordered to pay a cost of Rs. 50,000 to the respondent.

The State of Assam Vs Smti Manita Devi — Pension and Retirement Benefits | Gauhati HC (2021)

¶1

Page No.# 1/12

¶2

GAHC010038722018

¶3

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

¶4

Case No. : Review.Pet./85/2018

¶5

THE STATE OF ASSAM

¶6

REPRESENTED BY THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM, EDUCATION (ELEMENTARY) DEPTT., DISPUR, GUWAHATI 781006

¶7

2: THE DIRECTOR OF ELEMENTARY EDUCATION

¶8

ASSAM KAHILIPARA GUWAHATI-1

¶9

VERSUS

¶10

SMTI MANITA DEVI

¶11

W/O MADHAB CHANDRA BHATTA, R/O VILL. BRODEKPAR, P.O. SONESWAR, DIST. KAMRUP (R), PIN 781382, ASSAM.

¶12

Advocate for the Petitioner : MR. D SAIKIA

¶13

Advocate for the Respondent : MR. I H SAIKIA

¶14

BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA

¶15

ORDER

¶16

Date : 01.12.2021

¶17

Heard Mr. N.J. Khataniar, learned standing counsel for the

¶18

Page No.# 2/12

¶19

Elementary Education Department appearing for the review petitioners. Also heard Mr. I.H. Saikia, learned counsel for the sole respondent.

¶20

The respondent in this review petition was the writ petitioner in WP(C) 1288/2014, where the review petitioners were arrayed as respondent nos.1 and 3 respectively.

¶21

WP(C) No.1288/2014 was filed for a direction upon the respondent authorities to pay the arrear salary to the petitioner w.e.f. 28.09.2000 to 06.09.2005. The said writ petition was allowed by judgment and order dated 06.08.2015 along with the connected Cont.Cas(C) 106/2013 and Misc. Case No.246/2014. The said judgment is now under review. By the said judgment, this Court had directed the respondent authorities to release forthwith the salary arrears of the petitioner from 28.09.2000 to 06.09.2005, if necessary by creating a supernumerary post. Direction was issued to do the entire exercise within a period of 3 (three) months from the date of receipt of the judgment. It is also provided that if the entire due amounts are not paid within the next three months, the petitioner shall be entitled to simple interest @12% p.a. from 28.09.2000 till the full payment thereof is made.

¶22

No specific grounds have been pleaded for review. Nonetheless, the learned counsel for the petitioners has referred to (i) the letter dated 25.11.2017 (Annexure 2 series) from Tarun Ch. Kakati, Ex-Headmaster of Pubpar Gandhiji Vidyapeeth (M.E) to the District Elementary Education Officer, Kamrup, wherein it is mentioned that the respondent had joined his school on 01.09.2006, but she was not working in his school during the period of such arrear proposal submitted (i.e. from 28.09.2000 to 06.09.2005), as well as (ii) letter dated 25.11.2017 from the Headmaster of Adarsha M.E. School,

¶23

Page No.# 3/12

¶24

Bardekpar to the Block Elementary Education Officer, Kamalpur that the respondent was not present in the said school from 28.09.2000 to 31.12.2004 as an Assistant Teacher and that her signature is not found in the attendance register during that period.

¶25

It is submitted that the absence of the sole respondent during the hereinbefore mentioned period was detected only when the proposal was being prepared for release of the arrear salary. It is submitted that the absence of the respondent from 28.09.2000 to 06.09.2005 was earlier not brought to the notice of the petitioners. Accordingly, it is submitted that on the revelation of new facts at a subsequent point of time after the judgment dated 06.08.2015, the present review petition was preferred. It is specifically submitted that the respondent had not rendered service from 28.09.2000 to 31.12.2004 in Adarsha M.E. School, Bardekpar.

¶26

Per contra, the learned counsel for the respondent has referred to Annexure 4, 5 and 6 to the affidavit-in-opposition (AO in short) to project that the petitioner was rendering her service as an Assistant Teacher in Adarsha M.E. School and by representation dated 04.04.2001 to the District Elementary Education Officer, the respondent had prayed for release of her salary, which was not responded to and it is submitted that the said representation was forwarded by the Headmaster/ Secretary of the said school on 04.04.2001. It is also submitted that thereafter, on 04.06.2004, the District Elementary Education Officer, Kamrup had written to the Headmaster of the said school to furnish working certificate of the respondent and other details as mentioned therein. Thereafter, vide Annexure-6 of the AO, the requirement of fund for release of salary to the respondent was submitted by the Headmaster/ Secretary of the

¶27

Page No.# 4/12

¶28

said school on 06.07.2004. Referring to the official letter at Annexure-7 to the AO, it is submitted that the District Elementary Education Officer vide letter dated 31.07.2004 had written to the Director of Elementary Education that the respondent was working as a dropped teacher of the said school. Accordingly, it is submitted that at no prior point of time, any objection was raised from any quarter to the effect that the respondent was not working in the said Adarsha M.E. School.

¶29

It is further submitted that in order to accommodate the respondent, at one point of time, an order was passed to adjust the respondent in Pubpar Gandhiji Vidyapeeth (M.E), but the respondent continued to work in Adarsha M.E. School prior to 01.09.2006 and that on 01.09.2006, the respondent had joined Pubpar Gandhiji Vidyapeeth (M.E).

¶30

The learned counsel for the respondent has further made a serious allegation against the authorities under the petitioners regarding falsification of records. In this regard, by referring to Annexure-25 to the AO, it is submitted that the then Headmaster/ Secretary of the Adarsha M.E. School by his letter dated 03.01.2018 had written to the Block Elementary Education Officer, Kamalpur to the effect that the Deputy Director of Elementary Education had come to the school on 11.06.2005 and had seized the teachers attendance register from the year 2000 to 2004 in presence of the teachers and the same was not returned. It would be appropriate to quote the contents of the said letter

¶31

“Sir,

¶32

Respectfully I beg to state that I am the Headmaster of Adarsha M.E. School under you. I have taken over as in-charge Head Master on 01.02.2013.

¶33

Page No.# 5/12

¶34

I want to inform you that as per your letter, the attendance register of teachers from September, 2000 till the year 2006 is asked for. Meanwhile, on 03.10.2017 and 25.11.2017, I have informed the Block Elementary Education Officer, Kamalpur and District Elementary Education Officer, Amingaon.

¶35

Again, in this regard I would like to inform that the attendance register of teachers from 2000 to 2004 is not available in the school. Because the District Elementary Education Officer once has seized some documents. Again during the days of respected Headmaster Sri Kali Ram Konwar (Retd.), on 11.06.2005, suddenly at about 10.30 AM, the Deputy Director of Elementary Education (Kahilipara) came to the school and seized the teachers attendance register from the year 2000 to 2004 in presence of the teachers. Thereafter, when I along with the then Headmaster went to take back the same, it was not returned.

¶36

As per the available records of the school, photocopies of the teachers attendance register from January, 2005 to June, 2006 are enclosed herewith.

¶37

Therefore, the available records in school are sent to you for taking necessary action.”

¶38

Accordingly, it is submitted that if the attendance register of the school was seized from the period from 2000 to 2004 and the said state of affairs remained till 03.01.2018, the two letters dated 25.11.2019 at Annexure-2 series of the writ petition, which are heavily denied upon by the petitioners are nothing but a manufactured and fabricated document, which is not borne by any record and thus, not worth relying upon. Accordingly, the learned counsel for the respondent has submitted that the review petition is without any merit and the same is liable to be dismissed.

¶39

Perused the materials on record and also the record of WP(C) 1288/2014, which has been tagged with this review petition.

¶40

Page No.# 6/12

¶41

It is seen that in connection with the WP(C) 1288/2014, an affidavit was filed on behalf of the respondent no.1 therein, i.e. Commissioner & Secretary to the Govt. of Assam, Education (Elementary) Department, who is the petitioner no.1 in this review petition. The said affidavit was sworn and filed by Sri Preetom Saikia, who was then serving as Secretary to the Govt. of Assam, Education (Elementary) Department. Paragraph 4 thereof is quoted below:

¶42

“4. That the deponent begs to state that the post of the petitioner was regularized as an Assistant Teachers in Adarsha ME School under Kamalpur Education Block, Kamrup vide office letter No.DEEO/P/99/8988-95 dated 28.09.2000 (Annexure-4/page 39 to the writ petition) but she has not received her salaries since regularization due to non-receipt of retention of her post from 28.09.2000. Thereafter, the DEEO, Kamrup vide letter dated 31.07.2004 informed the office of the deponent about the matter, which was subsequently placed before the Government vide letter dated 4.8.2005 (Annexure-7/page 44 to the writ petition)

¶43

The petitioner had earlier approached this Hon’ble Court vide WP(C) No.6179/2005 for payment of salary and the Hon’ble Court vide interim order dated 7.9.2005 directed the authorities to release current salary to the petitioner from September, 2005. The Hon’ble Court vide order dated 10.02.2009 was pleased to dispose of the writ petition with a direction to place the case of the petitioner before the Expert Committee constituted by this Hon’ble Court in the case of Sudhendu Mohan Talukdar & Ors, reported in 2006 (2) GLT 216.

¶44

Thereafter, the petitioner again approached this Hon’ble Court by way of WP(C) No.6237/2011 and this Hon’ble Court vide order dated 25.4.2012 was pleased to dispose of the writ petition with a direction to the respondent No.1 to refer the issue relating to the claim of the petitioner for payment of arrear salary w.e.f. 28.09.2000 to 06.09.2005 to the aforesaid committee, if already not referred. In compliance of the Hon’ble Court’s order, the claim of the

¶45

Page No.# 7/12

¶46

petitioner was placed before the Expert Committee held on 30.1.2014. The committee has recommended that before regularization, the petitioner was working in non-existing post i.e. without post and therefore, rejected the claim of the petitioner.”

¶47

From the above, it is absolutely clear that the petitioner no.1 of this review petition had taken a specific stand in his affidavit filed in WP(C) 1288/2014, which was in compliance of order of this Court, the claim of the respondent was placed before the Expert Committee meeting, which was held on 30.01.2014 and that the committee had recommended that before regularization, “the respondent was working in a non-existent post i.e. without post and therefore, the claim of the respondent was rejected”. The said statement amounts to an admission on part of the petitioner no.1 to the effect that the respondent was working and rendering service, but in a non-existent post. It is further absolutely clear from the above quoted paragraph 4 of the affidavit filed by the petitioner no.1 in the writ proceedings that the said authority was aware and conscious of the fact that the respondent herein was making a claim for payment of arrear salary from 28.09.2000 to 06.09.2005.

¶48

Accordingly, in the considered opinion of the Court, there is no error apparent in the judgment dated 06.08.2015 passed in WP(C) 1288/2014 in paragraph 6 to the following effect:

¶49

“… As already noticed, the respondent authorities in their affidavits have never disputed that the petitioner had been working as Assistant Teacher of the school ever since her service was regularized. The only ground on which the resisted payment of the salary arrears is that there was no retention of her post. Her service was regularized by none other than the respondent authorities against the post originally created on 24.04.1998 vide order dated 28.09.2000. …”

¶50

Page No.# 8/12

¶51

It is further appalling that the respondent had approached this Court in first round of writ petition for regularization against the post of Assistant Teacher in Adarsha M.E. School by filing writ petition, which numbered as CR 2984/1993. The said writ petition was allowed and the said order was assailed in WA No.474/1994 and that the order of regularization of the service of the respondent was issued in compliance of the order dated 31.11.1998 in WA No.474/1994. However, as no salary was released to the respondent, she had approached this Court for the second time by filing WP(C) 6179/2005 for payment of her salary and this Court issued an interim direction dated 07.09.2005 to the petitioner authorities to pay her salary w.e.f. September, 2005 on regular basis. The said writ petition was disposed of by order dated 10.02.2009 by directing the authorities to refer the case of the respondent to the committee constituted by this Court in the case of Sudhendu Mohan Talukdar Vs. The State of Assam and Ors, WP(C) 2147/1999 reported in 2006 (2) GLT 216. Despite the said judgment, as no salary was released, the respondent approached this Court for the third time by filing WP(C) No.6237/2011 and this Court having noted that the matter was referred to the committee, had disposed of the writ petition by directing the petitioner no.1 herein to refer the claim of the respondent to the committee for payment of the said arrear salary.

¶52

The non-compliance of the order passed in WP(C) 6237/2011 led to filing of COP(C) No.106/2013 and in the said contempt proceeding, the sole respondent was informed that the Expert Committee had recommended rejection of her claim and accordingly, the said rejection was the subject matter of challenge in the fourth round of writ petition, being WP(C) No.1288/2014, where the order under review dated 06.08.2015 was passed.

¶53

Page No.# 9/12

¶54

The Court is making reference to the previous four writ petitions only for the purpose of putting it on record that in none of the said writ petitions, the authorities of the Elementary Education Department had ever taken a stand that the respondent had not rendered her services for the period for which salary is claimed. Therefore, on one ground or the other, the petitioners in this review petition have been shirking of their responsibility to release the salary of the respondent from 28.09.2000 to 06.09.2005, compelling the respondent only to suffer and filing of four writ petitions and the respondent has also been compelled to endure the present review petition, i.e. the fifth round of litigation, which was filed on 27.02.2018. It is submitted at the bar that in the meanwhile, the Elementary Education Officer has issued a show-cause notice to the respondent for claiming salary for the said period, which has compelled the respondent to approach the Court again by filing WP(C) 4861/2018, which is the sixth round of litigation.

¶55

It is seen that the respondent herein had filed an affidavit-inopposition on 20.03.2019 wherein apart from other stands taken, as already mentioned hereinbefore, the petitioner has annexed as Annexure-25, a letter dated 03.01.2018 from the Headmaster/ Secretary of the Adarsha M.E. School which is already quoted herein before indicating that on 11.06.2005 at about 10.30 AM, the Deputy Director of Elementary Education, Kahilipara had visited the school and seized the attendance register from the year 2000 to 2004 and that the same was not returned and the correctness of the said letter has not been denied. Accordingly, in the absence of denial, the said stand of the respondent is deemed to have been admitted by the present petitioners. If the attendance register of the school for the year 2000 to 2004 has been seized and is in custody of the Deputy Director of Elementary Education, Assam, the Court

¶56

Page No.# 10/12

¶57

has no option but to discard Annexure-2 series of the review petition being two letters dated 25.11.2017 by the former Headmaster of Pubpar Gandhiji Vidyapeeth (M.E) as well as the Adarsha M.E. School as an engineered document, specifically manufactured for the purpose of filing this review petition.

¶58

At this stage, the learned standing counsel for the petitioners has submitted that in the meanwhile, the petitioners have released the arrear salary of the respondent for the period from 01.01.2005 to 06.09.2005.

¶59

Accordingly, in view of the discussions above, the Court is inclined to hold that there is no error apparent on the face of record in respect of the judgment and order dated 06.08.2015 passed in WP(C) 1288/2014, which is under review. The said judgment cannot be said to have been passed by ignoring materials on record. Furthermore, there is no mistake either on factual aspects or any error in appreciating the contents of the pleadings on record. The Court is also inclined to hold that the purported documents, which is now produced and projected to be a fact, which was allegedly not known to the petitioners as a ground of filing review is without any basis and the said letters at Annexure-2 series of the review petition is also not supported by annexing attendance register of the tenure/ period for which the salary is claimed. In the absence of the attendance register, which are projected to be in custody of the authorities under the respondent, the Court is inclined to draw adverse inference under Section 114 Illustration (g) of the Evidence Act that the document, if produced, would have been adverse to the petitioners. Therefore, the Court is inclined to hold that there are no good ground for reviewing of the said judgment dated 06.08.2015 passed in WP(C) 1288/2014 and accordingly,

¶60

Page No.# 11/12

¶61

the review petition is dismissed.

¶62

Since the respondent had been deprived of her salary for the period from 28.09.2000 to 06.09.2005, i.e. for about 16 to 21 years approximately, the review petition being frivolous and vexatious and having noted that the respondent has been compelled to litigate for six times apart from filing a contempt petition and still the salary, which was ordered vide judgment under review had not been paid, the Court is inclined to impose a cost of Rs.50,000/- (Rupees fifty thousand only) on the petitioners. The said cost shall be paid by the petitioners within a period of 6 (six) weeks to the respondent’s designated bank account and in this regard, the respondent shall provide the bank details to the petitioners along with a certified copy of this order and it would be the responsibility of the petitioner no.1 to pay the cost.

¶63

It is needless to say that the petitioners would continue to be liable to comply with the direction contained in the order dated 06.08.2015 passed in WP(C) 1288/2014 in letter and in spirit.

¶64

Before parting with the records, it would be relevant to mention herein that there are five official respondents in WP(C) 1288/2014, being (1) the State of Assam represented by the Principal Secretary to the Govt. of Assam, Education (Elementary) Department, (2) Principal Secretary to the Govt. of Assam, Finance Department, (3) Director of Elementary Education, Assam, (4) District Elementary Education Officer, Kamrup and (5) the State Level Committee through the Commissioner & Secretary to the Govt. of Assam, Education (Elementary) Department. However, nowhere it is stated in this review petition that the petitioner nos.1 and 2 were agitating the cause of the respondent nos.2, 4 and 5. Accordingly, the judgment dated 06.08.2015 in

¶65

Page No.# 12/12

¶66

WP(C) 1288/2014 has attained finality in respect of the respondent no.2, 4 and 5. Therefore, when the said judgment has already been accepted by the respondent nos.2, 4 and 5 of the said WP(C) 1288/2014, the present review by the two petitioners is also not maintainable as the respondent nos.2, 4 and 5 in WP(C) 1288/2014 have not been made parties in this review petition.

¶67

JUDGE

¶68

Comparing Assistant

The State of Assam v. Smti Manita Devi

Case brief

What is this about?

What did the court decide?

The State of Assam v. Smti Manita Devi

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Ijaz Ahmed Vs the State of Assam and 4 Ors.

Sanjoy Kr. Jha Vs the State of Assam

Mr. Nurul HUDA Vs Najir Hussain and 12 Ors. B

Rabiur Rahman Vs Union of India and 2 Ors.

Dr. Indranee Phookan Barooah Vs the Gauhati University and Anr.

Dipak Ghosh Vs the State of Assam and 4 Ors.