Dismissed

Dipak Talukdar v. the State of Assam and 3 Ors.

Gauhati HC2 Sept 2021WP(C)/2114/2019

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed a writ petition seeking regularization of the petitioner's service as a Music Teacher. The Court held that since the State Plan Post ceased to exist after 30.04.1996 and was not revived, no direction to revive the post or relax age limits could be issued.

What did the court decide?

None. The petition for regularization and direction to revive the post was dismissed as the Government Plan Post ceased to exist in 1996.

Dipak Talukdar Vs the State of Assam and 3… — Pension and Retirement Benefits | Gauhati HC (2021)

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Page No.# 1/6

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GAHC010068142019

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

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Case No. : WP(C)/2114/2019

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DIPAK TALUKDAR

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S/O. SHRI KAMALESWAR TALUKDAR, VILL. NIZBAHJANI, P.S. NALBARI, DIST. NALBARI, ASSAM-781335.

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VERSUS

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THE STATE OF ASSAM AND 3 ORS. REP. BY THE SECRETARY TO THE GOVT. OF ASSAM, EDUCATION (SECONDARY) DEPTT., DISPUR, GHY.-06.

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2:THE DIRECTOR OF SECONDARY EDUCATION ASSAM KAHILIPARA GUWAHATI-19.

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3:THE INSPECTOR OF SCHOOLS NALBARI DISTRICT CIRCLE NALBARI P.O. AND DIST. NALBARI ASSAM-781335.

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4:THE PRINCIPAL BONGAON HIGHER SECONDARY SCHOOL VILL. BONGAON P.O. BANAGRAM DIST. NALBARI ASSAM-781303

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Advocate for the Petitioner : DR. B AHMED

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Advocate for the Respondent : SC, SEC. EDU.

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Page No.# 2/6

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BEFORE

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HON’BLE MR. JUSTICE MANASH RANJAN PATHAK O R D E R

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02-09-2021

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Heard Dr. B. Ahmed, learned counsel for the petitioner and Mr. R. Mozumdar, learned Standing Counsel, Secondary Education Department for the respondent Nos. 1 to 3.

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2. The State Government in the Education Department vide order No.EDG.567/91/113 dated 16.11.1991 sanctioned one post of Music Teacher in the pay scale of Rs. 1375/- ― Rs. 3375/- per month as a State Plan Post for the year 1993-1994 and allotted the said post to Bongaon Higher Secondary School in the district of Nalbari.

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3. By order No. PC/SEC/32/93/Pt-III/57 dated 01.11.1993 the Director of Secondary Education, Assam (DSE, in short) intimated the said order of the Government dated 16.11.1991 to the authorities of Bongaon HS School about the sanction of one post of Music Teacher in that school. The DSE by the said order dated 01.11.1993 also informed the said School that the expenditure for the said post shall be debited from the concerned head of the Government under State Plan and Non-Plan Scheme of Secondary Education, Assistance to Non-Government Secondary Schools, Government Teachers serving in Non-Government Secondary Schools – Salaries (Plan) during 1993-1994.

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4. Further by the said order dated 01.11.1993 the then DSE, Assam with the observation ‘subject to discharge from service at any time and without assigning any reasons thereof’ appointed the petitioner temporarily as Music Teacher in the pay scale of Rs. 1375/- ― Rs. 3375/- per month and posted him in said Bongaon HS School against the post mentioned above for a period of 3 (three) months or till the post is filled up by the selected candidate, whichever is earlier, w.e.f. the date of joining of the petitioner.

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5. Claiming that he was serving in the post of Music Teacher at Bongaon HS School that was sanctioned by the Government on 16.11.1991 and that his salary was not paid, the petitioner in the year 2006 preferred a writ petition being WP(C) No. 2832/2006 praying for his salary. From the documents placed in the matter the Court found that the petitioner

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Page No.# 3/6

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worked as a teacher in said Bongaon HS School at least on 29.03.2006. Considering entire aspect the Court by order dated 22.08.2007 disposed of said WP(C) No. 2832/2006, directing the respondents therein to release the pay and allowances of the petitioner for the period which he has actually served in the said institution as a Music Teacher within a period of two months.

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6. As the said order dated 22.08.2007 passed in WP(C) 2832/2006 was not complied with within the time so specified by the Court, the petitioner preferred a contempt petition, being Cont. Case (C) No. 167 of 2008. In compliance of the said order dated 22.08.2007, the respondents paid an amount of Rs. 6,42,200/- to the petitioner towards his salary for the period from June, 2002 to June, 2008.

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7. In the meanwhile, the DSE, Assam, in pursuance of the said order dated 22.08.2007 passed in WP(C) 2832/2006, considered the case of the petitioner and found that by his order No. PC.Exten/2/95/56 dated 02.06.1995 the term of ad-hoc appointment of the petitioner was extended last for a period of six months w.e.f. 01.05.1995 and the said ad-hoc service of the petitioner as Music Teacher in Bongaon HS School was not extended thereafter. By the said order dated 02.06.2008, the DSE, Assam, rejected the case of the petitioner for regularization of his service.

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8. Being aggrieved with the said order of the DSE, Assam, dated 02.06.2008, rejecting regularization of his service, the petitioner preferred WP(C) 3878/2011. After considering the entire aspect of the matter the Court by order dated 03.09.2012 passed in said WP(C) 3878/2011 observed that the claim of the petitioner for regularization of service as Music Teacher in said school as well as payment of his salary from July, 2008 cannot be accepted and by the said order dated 03.09.2012 dismissed the said WP(C) 3878/2011 of the petitioner. The petitioner, subsequently in the year 2014 filed a Review Petition No. 126/2014 for review of the order dated 03.09.2012 passed in WP(C) No. 3878/2011, which was dismissed on 26.10.2016. Against the said order dated 03.09.2012 passed in WP(C) No. 3878/2011 as well as the order dated 26.10.2016 passed in Review Petition No. 126/2014, the petitioner did not approach any higher forum and by efflux of time, both the orders dated 03.09.2012 and 26.10.2016, noted above, have attained finality.

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9. The claim of the petitioner herein is that he is still serving as a Music Teacher in said Bongaon HS School and that the post, in which he was appointed, has not yet been advertised. As such, the petitioner herein has prayed for filling up of the said post of Music Teacher in Bongaon HS School through a process of regular selection as has been done in the cases of others and to consider his case for regularization, giving due weightage as he served in that school since the year 1993. The petitioner further prayed for a direction to the respondents herein, more particularly, the Secretary to the Government of Assam in the Secondary Education Department to relax his age so that he can participate in such selection process.

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10. The Court, in the order dated 03.09.2012 passed in said WP(C) 3878/2011 categorically observed that in the post of Music Teacher that was sanctioned and was allotted to said Bongaon HS School, the DSE, Assam by order dated 01.11.1993 temporarily appointed the petitioner on ad-hoc basis for a period of three months that was required to be filled up as per the provisions of Assam Secondary Education (Provincialisation) Service Rules, 1982, the Rule that was in force at the relevant point of time that requires filling up of the said post by initiating the required process of selection and that while making the said appointment of the petitioner no process was initiated and despite that the petitioner managed to obtain appointment on ad-hoc basis.

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11. The Court in the said order dated 03.09.2012 also observed that petitioner’s initial appointment on adhoc basis for a period of three months was subsequently extended from time to time by various orders passed by the Director and the last being on 26.12.1995 extending the adhoc service of the petitioner for a period of six months w.e.f. 01.11.1995, i.e., up to 30.04.1996. The period of adhoc appointment of the petitioner thereafter was not extended. The petitioner, therefore, was not entitled to the salary after the said period i.e. 30.04.1996 and that the period of adhoc appointment of the petitioner was not extended beyond 30.04.1996. The DSE by order dated 02.08.2008 rejected the claim of the petitioner for regularization on the ground that he was not appointed as per Rules and was appointed without any selection. The Court in the order dated 03.09.2012 further observed that the claim for payment of salary w.e.f. June 2002 though was rejected, by another order dated 30.03.3009 passed by the DSE an amount of Rs. 6,42,200/- was sanctioned for the purpose

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of payment of salary to the petitioner from June, 2002 to June, 2008, though the petitioner was not entitled to the same, said amount being already disbursed to the petitioner toward his salary, there would not be any recovery of the same from the petitioner.

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12. From the initial order of appointment of the petitioner dated 01.11.1993 annexed to the writ petition as Annexure-4, it can be seen that the said post was a State Plan Post, which was extended up to 30.04.1996.

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13. It is not the case of the petitioner that by following due process of advertisement and selection he was appointed to the post in question. It also not the case of the petitioner that the said post was extended after 30.04.1996 or that someone else has been appointed to the said post on adhoc basis. Prima facie the said State Plan Post involved in the case has not been extended by the State Government after 30.04.1996 and the Court in the order dated 03.09.2012 passed in WP(C) 3878/2011, noted above, has already observed about it.

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14. Moreover, the petitioner has not made the Finance Department of the State, who is the main authority regarding creation, sanction and extension of any public post of the State Government and, as such, by elapse of time, such old Plan post cannot be directed to be revived. Moreover, the Finance Department in the State has not been made a party in the present proceeding.

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15. Considering the entire aspect of the matter and since the State Government did not extend the said State Plan Post involved in the case after 30.04.1996, therefore, no direction can be issued to the respondents herein to revive the said old Plan Post that has ceased exist after 30.04.1996 by elapse of time and to fill up the same following the recruitment process.

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16. Accordingly, this writ petition, being devoid of any merit, stands dismissed.

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JUDGE

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Comparing Assistant

Dipak Talukdar v. the State of Assam and 3 Ors.

Case brief

What is this about?

What did the court decide?

Dipak Talukdar v. the State of Assam and 3 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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