Kiran Kumar Sarmah and 4 Ors. Vs the State of Assam and 3 Ors.

¶1

Page No.# 1/9

¶2

GAHC010151562024

¶3

2025:GAU-AS:3926

¶4

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

¶5

Case No. : WP(C)/3957/2024

¶6

KIRAN KUMAR SARMAH ASSISTANT TEACHER, MONABARI HIGH SCHOOL, PO. LAHARIJAN, DIST. BISWANATH, ASSAM, PIN- 784176.

¶7

2: CHANDRA BAHADUR LIMBU ASSISTANT TEACHER SIRAJULI HIGH SCHOOL P.O. SIRAJULI DIST. SONITPUR ASSAM PIN- 784117.

¶8

3: SMTI ASOMA TUNGKHONGIA ASSISTANT TEACHER DIKSHU HIGH SCHOOL P.O. DIKSHU DIST. SIVASAGAR ASSAM PIN- 785684.

¶9

4: SMTI MANJULA KAKOTI ASSISTANT TEACHER MATHURAPUR HS SCHOOL P.O. MATHURAPUR DIST. CHARAIDEO ASSAM PIN- 785689.

¶10

5: MD. AKKAS ALI ASSISTANT TEACHER KAWAIMANI H.S. SCHOOL P.O. GERUTI BAZAR

¶11

Page No.# 2/9

¶12

DIST. NAGAON ASSAM PIN- 782140 VERSUS

¶13

THE STATE OF ASSAM AND 3 ORS REPRESENTED BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM, DISPUR, GUWAHATI-6.

¶14

2:THE SECRETARY TO THE GOVERNMENT OF ASSAM DEPARTMENT OF SCHOOL EDUCATION DISPUR GUWAHATI-6. 3:THE DIRECTOR OF SECONDARY EDUCATION ASSAM KAHILIPARA GUWAHATI-19. 4:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM FINANCE DEPARTMENT DISPUR GUWAHATI-6

¶15

Advocate for the Petitioner : MR. S K DAS, MR D BARMAN,MR A I TALUKDAR Advocate for the Respondent : GA, ASSAM, SC, FINANCE,SC, SEC. EDU.

¶16

Linked Case : WP(C)/4400/2024

¶17

SIRESH CHANDRA GHOSH RETD. ASSTT. TEACHER NEVIL HS SCHOOL CHARIDUAR AND R/O VILLAGE KOTHAL KUCHI P.O- LOHITMUKH DIST- BISWANATH ASSAM PIN-784169 2: RULENA KHATUN RETD ASSTT TEACHER TEZPUR BENGALI GIRLS HIGH SCHOOL R/O- J.B ROAD NEAR KAMRUPIYA NAMGHAR P.O- TEZPUR

¶18

Page No.# 3/9

¶19

DIST- SONITPUR ASSAM PIN-784001 3: JYOTI KUMSING RETD ASSTT TEACHER LOKD GIRLS HIGH SCHOOL R/O- VILLAGE BAMUNI HILLS P.O- TEZPUR DIST- SONITPUR ASSAM PIN-784001

¶20

4: GEORGE BAHADUR TAMANG RETD ASSTT TEACHER GARCHARALI H.S SCHOOL R/O- VILLAGE AND P.O-NEMU PATHAR DIST- DIBRUGARH ASSAM PIN-786613 5: ANIT CHANDRA BORAH RETD ASSTT TEACHER BORPATRADOLE HIGH SCHOOL R/O- VILLAGEDADHARA P.O- KALOO GAON DIST- SIVASAGAR ASSAM PIN-785640 VERSUS THE STATE OF ASSAM AND 3 ORS REP. BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM DISPUR GUWAHATI-06 2:THE SECRETARY TO THE GOVT. OF ASSAM DEPARTMENT OF SCHOOL EDUCATION DISPUR GUWAHATI-06 3:THE DIRECTOR OF SECONDARY EDUCATION ASSAM

¶21

Page No.# 4/9

¶22

KAHILIPARA GUWAHATI-19 4:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM FINANCE DEPARTMENT DISPUR GUWAHATI-06 -----------Advocate for : MR. S K DAS Advocate for : GA ASSAM appearing for THE STATE OF ASSAM AND 3 ORS

¶23

BEFORE HON’BLE MR. JUSTICE KARDAK ETE

¶24

O R D E R

¶25

Date : 02.04.2025.

¶26

Heard Mr. S.K. Das, learned counsel for the petitioners. Also heard Mr. B. Deuri, learned State Counsel, Ms. H. Terangpi, learned standing counsel for the Secondary Education Department and Ms. A. Borthakur, learned counsel appearing on behalf of Mr. R. Borpujari, learned standing counsel for the Finance Department.

¶27

By filing these writ petitions, the petitioners have prayed for a direction to the respondent authorities to grant regular scale of pay with all service benefits with retrospective effect from 01.03.1999, as provided to other similarly situated Hindi Teachers and the petitioners of WP(C) No.6279/2012 and WP(C) No.6210/2010, vide common judgment and order dated 06.03.2017 and the order dated 10.10.2022, passed by the Secretary to the Govt. of Assam, Department of School Education. The petitioners have also challenged the

¶28

Page No.# 5/9

¶29

orders dated 13.06.2000, 11.04.2007 and 19.06.2009, whereby the petitioners have been allowed to draw basic pay only without any increment and allowed to draw the regular scale of pay with prospective effect only.

¶30

As both these writ petitions involved similar facts and law, same are heard analogously and disposed of by this common order, considering that the respondent authorities have fairly admitted that the judgment and order of this Court, passed in WP(C) No.6279/2012 and WP(C) No.6210/2010, covers the case of the present petitioners.

¶31

In both the writ petitions, the petitioners were initially appointed as Hindi Teachers in different schools in the year 1994 to 1998, with a fixed pay pursuant to the creation of 500 posts of Hindi Teachers, by the State Government under the Centrally Sponsored Scheme, during 8^th Plan period in 1992. The appointment of the petitioners were initially for a period of three to four months. However, their services were extended from time to time and finally, their term of appointment was extended until further order.

¶32

It is noticed that vide order dated 19.06.2009, pursuant to the order of this Court in WP(C) No.1676/2005 (Md. Abdul Jalil & others vs. State of Asam), altogether 76 (seventy six) Ad-hoc fixed pay Hindi Teachers including the petitioners were regularized by way of adjustment against the sanctioned vacant posts in the provincialised High/Higher Secondary schools, however with prospective effect.

¶33

It is the contention of the petitioners that out of the total 401 Hindi Teachers, 319 Teachers were allowed to draw the regular scale of pay @

¶34

Page No.# 6/9

¶35

Rs.3580—8750/- w.e.f. 01.03.1999, as they were appointed in the provincialised High/Higher Secondary schools. However, the remaining 82 Teachers including the petitioners were allowed to draw Rs.3580/- per month fixed without increment, as they were appointed in the Ad-hoc Schools. It is contended that the 82 Teachers including the petitioners were provided with the fixed scale of pay by appointing them in the Ad-hoc Schools, was not the choice of the petitioners, rather it was a decision of the respondents who appointed them in the Ad-hoc Schools.

¶36

The petitioners and other similarly situated Hindi Teachers, under the banner of All Assam 401 (82) Hindi Teachers Association approached this Court by filing the WP(C) No.6279/2012 and WP(C) No.6210/2010. This Court, vide judgment and order dated 06.03.2017, allowed the writ petitions by directing the respondent authorities to pass appropriate orders redressing the grievances of the petitioners.

¶37

Accordingly, vide order dated 10.10.2022, issued by the Secretary to the Govt. of Assam, Department of School Education has decided to grant the claims of the petitioners regarding enhancement of pay scale with retrospective effect from 01.03.1999.

¶38

Mr. S.K. Das, learned counsel for the petitioners submits that there is no dispute to the fact that the petitioners in the present case are the Hindi Teachers whose services have been regularized in those 82 teachers by the respondent authorities, since the judgment and order dated 06.03.2017 has been passed in a case of similarly situated persons with that of the petitioners who were also Hindi Teachers, the petitioners are entitled to be provided with

¶39

Page No.# 7/9

¶40

similar reliefs, as granted to the writ petitioners in those writ petitions. Therefore, Mr. Das submits that the respondent authorities may be directed to provide the similar reliefs to the petitioners, by providing enhanced pay scale with retrospective effect from 01.03.1999.

¶41

Ms. H. Terangpi, learned standing counsel for the Secondary Education Department fairly submits that the petitioners are similarly situated Hindi Teacher whose services have been regularized by way of adjustment by the respondent authorities pursuant to the order of this Court to the 82 Hindi Teachers, who were initially appointed under the Centrally Sponsored Scheme.

¶42

Considered the submissions of learned counsel for the parties and perused the judgment and order dated 06.03.2017, passed in WP(C) No.6279/2012 and WP(C) No.6210/2010.

¶43

The present petitioners (ten in numbers) in these two writ petitions were admittedly appointed under the Centrally Sponsored Scheme as Hindi Teachers (temporary) for a specific period and their services were extended from time to time and finally their services were regularized along with other Hindi Teachers, as per direction of this Court in WP(C) No.1676/2005.

¶44

The coordinate Bench of this Court, after careful consideration of the materials and the claim of the petitioners has observed and held which are reproduced herein under:

¶45

“ 16. A reading of the notifications dated 12.10.1999 and 03.08.2004 does no t even remotely indicate that there was any intention on the part of the Government to discriminate one set of Hindi Teachers (82) against the other (309) merely on the ground that the latter category was assigned initial posting in the provincialised schools. On the contrary, it clearly appears that the intention of t he Government was

¶46

Page No.# 8/9

¶47

to regularize the service of all the Hindi Teachers recruited under the CSS and accordingly adequate numbers of posts were also created by the Government. Under the circumstances, this Court is of the considered opinion that the 82 Hindi teachers were placed in the same footing as their counterparts engaged in the provincialised schools and therefore, there was absolutely no valid ground to deny those 82 Hindi Teachers the same treatment in the matter of regularization of their services, as has been done in the case of the 309 teacher. Since, the Hindi Teachers originally accommodated against the provincialised High/Higher Secondary Schools have been given the benefit of regular pay scale wit h effect from 01.03.1999 i.e. the date of creation of the regular posts by the State Government, the writ petitioner’s service also ought to have been regularized with retrospective effect from 01-03-1999. The denial of similar benefit to the writ petitioners, in the facts and circumstances of the case, was utterly discriminatory and in clear violation of the fundamental rights guaranteed to the petitioners under Articles 14 and 16(1)(g) of the Constitution of India.

¶48

17. Coming to the question of waiver of rights, as raised by Mr. Ghosh, it is settled law that there cannot be any question of waiver in respect of fundamental rights of the citizens guaranteed under Article 14 of the Constitution of In dia. In a Constitution Bench decision in the case of Basheshar Nath vs Commissioner of Income Tax Delhi & Rajasthan and another reported in AIR 1959 SC 149, it has been observed by the Hon’ble Supreme Court that no citizen can be said to have waived breach of fundamental rights guaranteed under Article 14 of the Constitution of India. It has further been observed that Article 14 carries a command issued by the Constitution to the State as a matter of public policy with a view to implement its object of ensuring equality of status and opportunity, which every welfare State, such as India, is by her Constitution expected to do an d no person can, by any act or conduct, relieve the State of the solemn obligation imposed on it by the Constitution. Therefore, regardless of the relief sought for in a legal proceeding, The State cannot avoid its solemn constitutional obligation of treating all citizens equally”.

¶49

Having considered the above judgment and order and also considering that the petitioners are the regularized Hindi Teachers amongst the 82 Hindi Teachers, I am of the view that the present writ petitioners are entitled to be granted the similar relief as provided in the above judgment and order and the consequential order of the respondent authorities vide order dated 10.10.2022, by granting enhanced scale of pay with retrospective effect from 01.03.1999.

¶50

Consequently, with respectful agreement and as a judicial discipline, the

¶51

Page No.# 9/9

¶52

petitioners are granted the similar relief, as provided in the judgment and order dated 06.03.2017, passed in WP(C) No.6279/2012 and WP(C) No.6210/2010 as well as the consequential relief provided to the petitioners in the above writ petitions vide order dated 10.10.2022, issued by the Secretary to the Govt. of Assam, Department of School Education. The respondent authorities are directed to consider and pass reasoned order by granting enhance scale of pay with retrospective effect from 01.03.1999, within a period of two (2) months, from the date of receipt of copy of this order

¶53

The writ petitions are allowed in terms of the above. No order as to costs.

¶54

JUDGE

¶55

Comparing Assistant

Kiran Kumar Sarmah and 4 Ors. v. the State of Assam and 3 Ors.

Case brief

What is this about?

Kiran Kumar Sarmah and 4 Ors. v. the State of Assam and 3 Ors.

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Dilip Kumar Pathak Vs the State of Assam and 8 Ors.

Kamaleswar Rajbonshi Vs the State of Assam and 10 Ors.

Akhtar Hussain Vs Mrs. Mamata Hojai

Rupesh Kumar Sen Vs the State of Assam and 4 Ors.

Gobinda Narah Vs the Commissioner and Secretary to the Govt. of Assam and 3 Ors.

Siresh Chandra Ghosh and 4 Ors. Vs the State of Assam and 3 Ors.