Smti. Riva Borkataky Vs the State of Assam and 3 Ors.

Mr. A.C. Borbora, learned Senior Counsel with the assistance of Ms. N. Dey, learned counsel has appeared for the petitioner. Also heard Mr. P.K. Bora, learned Standing counsel for the respondent Elementary Education Department.

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2. This writ petition had been instituted by the petitioner claiming salaries from 28.12.1999 till 12.08.2010 and also for direction to the respondent authorities to consider the service rendered by the petitioner to the Department to be eligible for the benefits of the Old Pension Scheme under the Assam Services Pension Rules, 1969. Although an alternate prayer had been made in the writ petition to direct the respondent authorities to release the pensionary benefits to the petitioner under the New Pension Scheme, since the petitioner had already retired, such alternate prayer was not pressed during the final arguments.

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3. As reflected in the writ petition the petitioner was offered appointment by an order dated 26.11.1999 and she was allowed to join her duties on 28.12.1999 i.e. after a month of issue of the appointment letter, even though she had been given her a time frame of fifteen (15) days to join her service. Having thus joined in her service, the petitioner was not paid her salaries and by an order dated 19.04.2002, the District Elementary Education Officer, Tinsukia had directed for stopping the payment of salaries to eight persons including the petitioner herein. The petitioner along with others, who had also suffered by such order of stoppage of payment of salary, had approached this Court by preferring different writ petitions. The writ petition preferred by the petitioner was numbered as WP(C) No.4135/2002, wherein the petitioner was arrayed as

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petitioner No.8.

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4. The writ petitions were disposed of on 25.09.2002 and in the writ petition in which the petitioner was involved, the following had been observed:

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“ 6. In so far as W.P. (C) No.4135 and 4365 of 2002 are concerned, the stand of the authority as reflected in the orders impugned in the said cases, appear to be that it is by virtue of the interim orders passed by this Court, amongst others, in W.P. (C) No.5951 of 1999 and W.P. (C) No. 304 of 2000 that the salaries of the petitioners in the two cases had to be stopped. The reasons, which prompted the authority to resort to the said actions appear to be, that after the cancellation order dated 19.11.99 was issued, it is against the resultant vacancies that the petitioners in W.P. (C) No.4135 of 2002 and W.P. (C) No.4365 of 2002 were allowed to draw their salaries. The vacancies against which the writ petitioners in the present two cases were allowed to draw their salaries are reflected in the order dated 3.8.2000 (Annexure-21 to the W.P. (C) No. 4135 of 2002). There appears to be no correlation between the said vacancies and posts in respect of which the cancellations were made by the order dated 19.11.99. In the affidavit filed by the State respondents, such a position has been indicated only in respect of the petitioner No.17 in W.P. (C) No 4135 of 2002. Though the State would like to contend that it is against the posts falling vacant by the cancellations made by order dated 19.11.99 that the writ petitioners in W.P. (C) No.4135 of 2000 and W.P. (C) No.4365 of 2002 have been adjusted, the said position does not appear to be borne out by the records. Mere assertion without any corroboration by the records placed before this Court cannot justify the stand taken by the respondents. Even otherwise, as no invalidity of the adjustments of the writ petitioners in the two cases against Nonplan posts have been pleaded by the State respondents, even on a hypothetical assumption that the stand of the State is correct, the obligation on the part of the State authority to pay the salaries and dues of the petitioners will continue.

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7. For the aforesaid reasons, W.P. (C) No.4135 of 2002 and W.P. (C) N0.4365 of 2002 also have to be allowed and the orders impugned in the said two cases i.e. orders dated 19.4.2002 and 10.8.2002 (Annexures 22 & 23 to W.P. (C) No.4135/2002) shall stand set aside and quashed.

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8. Consequently, salaries as may be due to the petitioners in terms of the directions contained herein shall be paid by the State authorities forthwith”.

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5. Following such an order, the District Elementary Education Officer, Tinsukia

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had informed the Director of Elementary Education, Assam by communication dated 03.09.2003, that the Treasury Officer, Tinsukia had refused to pay the bills of the petitioner on the ground that documentary proof regarding approval of the State Level Empowered Committee would be required for payment of salaries. Accordingly, a request was made by the District Elementary Education Officer, Tinsukia to accord necessary approval for release of the monthly salary of the petitioner.

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6. By another communication dated 18.10.2008, the Director of Elementary Education, Assam had informed the Commissioner & Secretary to the Govt. of Assam (Elementary) Department that the 16 petitioners who were arrayed as parties in the WP(C) No.4135/2002 along with the present writ petitioner were all getting their salaries regularly, save and except the petitioner in this writ petition and advise was sought for from the Commissioner & Secretary to the Govt. of Assam (Elementary) Department by the Director as to how to proceed further with the matter.

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7. Placed thus, with the concurrence of the Finance (SIU) Department, issued under their U/O No.FSI.235/2007, dated 21.06.2007, the Director passed an order on 12.08.2010, thereby adjusting the services of the petitioner against a vacant post lying in the Hindusthani Vidyalaya M.E. School under the DEEO, Tinsukia in a Scale of Pay along with grade pay plus other allowances as admissible under the Rules.

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8. Since the petitioner was aggrieved by the noting of her date of appointment as 12.8.2010 instead of 29.12.1999, she preferred a representation on 21.02.2012, praying for;

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(i) correction of her date of appointment to 29.12.1999 instead of 12.08.2010,

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(ii) to adjust the appropriate basic pay with regular increment since her original

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date of joining and

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(iii) to arrange for sanction and release of all dues as arrear payment since the original date of joining i.e. on 29.12.1999. The said representation was forwarded to the Director of Elementary Education, Assam, but to no avail.

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9. By a letter dated 09.10.2015, the services of the petitioner was confirmed against her substantive post w.e.f. 19.06.2015. A statement of arrear salaries was also forwarded therewith. When further representations did not bring any relief, the petitioner approached this Court.

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10. The learned Senior Counsel has submitted that the petitioner was required to be paid her salaries in accordance with the order dated 25.09.2002 at least from the date of the said order but no salary had been received by the petitioner. The only reason, the learned senior counsel submits, as would be evident from the letter dated 03.09.2003, appears to be the objection raised by the Treasury Officer regarding the absence of documentary evidence of approval of the State Level Empowered Committee.

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11. The learned Senior Counsel submitted that since all the other petitioners who were appointed along with the present writ petitioner in the same year and were participants in the same writ petition were being afforded regular salaries, there can be no reason for the respondents to have not made available to the petitioner, her regular salaries at least from the date of order of this Court, as passed in the WP(C) No.4135/2002.

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12. The learned Senior Counsel thereafter referred to the affidavit-inopposition filed by the respondent authorities through the respondent No. 2, the Director of Elementary Education, Assam to assert that the letter dated 18.03.2005, annexed to the said affidavit-in-opposition, clearly reflects that the services of the petitioner were adjusted by the DEEO, Tinsukia Order

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No.EEO/ME-MV/Apptt./25/99/3063-72 dated 14.09.2000 against the post which fell vacant on the promotion of Smti. DalimiDutta, Assistant Teacher of the same School. The learned Senior Counsel has also submitted that the issue of adjustment of the petitioner without the approval of the State Level Empowered Committee is one, where the petitioner had no hand to interfere, since it was upon the State respondents to have adjusted the services of the petitioner in accordance with law. In any case, as per the submission of learned Senior Counsel, the entitlement of the adjustment/regularization of the petitioner is not disputed by the respondent authorities since admittedly she stood adjusted/regularised at least in the year 2010.

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13. The learned Senior Counsel thus submitted that when the adjustment of the petitioner had admittedly been made at least on 14.09.2000 by the District Elementary Education Officer, as reflected in annexures of the affidavit-inopposition itself, the petitioner would be entitled to her arrear salaries after proper fixation of pay from the date of such adjustment, i.e. 14.09.2000, if not from the date of her appointment on 26.11.1999. He however prays that since the petitioner has been admittedly serving from 29.12.1999, she would be entitled to her salaries from 29.12.1999, as already held in the order passed in WP(C) No.4135/2002.

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14. Mr. P.K. Bora, learned Standing counsel appearing for the Elementary Education Department had submitted that the salary of the petitioner could not be paid in view of the notings given by the Treasury officer of the Tinsukia Treasury, since there were instructions issued by the Government that in all cases where the employees were appointed earlier but had joined after 07.12.1999, documentary proof of approval of the State Level Empowered Committee would be necessary. Mr. Bora has further submitted that the

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services of the petitioner were regularised by the order 12.08.2010 passed in compliance of the order dated 25.09.2002 and therefore the petitioner has been correctly denied her salaries for the period prior to 12.8.2010. It has been further submitted that since the petitioner had been regularised after the cut-off date she would not be entitled for the benefits of the Old Pension Scheme under the Pension Rules. He has however produced instructions to the effect that the 16(sixteen) writ petitioners who were parties in the WP(C) No.4135/2002 along with the present writ petitioner have been afforded the benefits under the Old Pension Scheme and their regularization/adjustment were made without approval of the State Level Empowered Committee.

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15. Submissions made on behalf of the contesting parties have been considered and the records as annexed both to the writ and the affidavit in opposition have been perused. None of the documents made available in the pleadings have been disputed by either of the parties.

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16. In order to decide the lis between the parties, a few undisputed facts have to be taken note of, which are as follows;

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“ A. The petitioner had joined in service on 29.12.1999 in pursuance to an undisputed appointment letter dated 26.11.1999.

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B. several other persons who had joined in pursuance of similar appointment letters and most of them, including the petitioner were not paid their salaries, for which this Court had been approached through writ petitions. The petitioner had also preferred WP(C) 4135/2002, which was disposed of on 25.9.2002, directing release of salaries.

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C. The respondent authorities had made arrangements for payment of salaries and all other 16 petitioners who had joined with the petitioner in WP(C) 4135/2002 were paid their salaries and also were given the benefit of a GPF account.

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D. The salary of the petitioner was stopped by the Treasury Officer Tinsukia 17.2.2004 on a ground which was not pressed during the proceedings of WP(C) 4135/2002 and even as the order dated 25.9.2002 passed in the writ petition had attained finality.

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E. It was to deal with the objections raised by the Treasury Officer that the later orders regularising the services of the petitioner were passed. It has been admitted by the authority issuing the order of regularisation that the said order was passed in compliance of order dated 25.9.2002.

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F. The co-petitioners of the petitioner herein in WP(C) 4135/2002 have been afforded their salaries in compliance of the order passed in that writ petition and they have also been afforded the benefit of a GPF account and the pensionary benefits arising therefrom in cases where the incumbents have retired. “

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17. The undisputed facts recorded above, when contrasted with the plight being suffered by the petitioner, presents a dismal picture. The petitioner had been granted a relief by this Court by the order dated 25.09.2002. The said order was not allowed to be given effect due to a noting made by the Treasury Officer on the bill submitted for payment of salaries to the petitioner, which bill had been submitted to comply with the orders of the Court. The attempt of the respondent department to make necessary arrangements to satisfy the objections of the Treasury Officer took nearly 8 years. The colleagues of the petitioner continued to draw salaries in the meantime and subscription to the GPF account was also allowed to the colleagues of the petitioner, entitling them to the benefits of the Old Pension Scheme. Though armed with the same judicial order of this Court, the petitioner was denied the benefits arising from the order of this Court, without any justification worth the name.

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18. One more aspect of the matter needs attention of this Court. In ordinary circumstances, this Court would be loathe to allow a litigant to claim arrears of salary for the period from the date of her appointment to 12.8.2010 at this distant point of time (See M. R. Gupta vs. Union of India , reported in (1995) 5 SCC 628 , wherein it was held as follows:

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“ (5) Having heard both sides, we are satisfied that the tribunal has missed the real point and overlooked the crux of the matter. The appellants grievance that his pay fixation was not in accordance with the rules, was the assertion of a

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continuing wrong against him which gave rise to a recurring cause of action each time he was paid a salary which was not computed in accordance with the rules. So long as the appellant is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules. It is no doubt true that if the appellants claim is found correct on merits, he would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. In other words, the appellants claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with rules and to cessation of a continuing wrong if on merits his claim is justified. Similarly, any other consequential relief claimed by him, such as, promotion etc. would also be subject to the defence of laches etc. to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation existing on 1/8/1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitation. It is to this limited extent of proper pay fixation the application cannot be treated as time barred since it is based on a recurring cause of action.”).

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However, in the present case, it is noticed that the petitioner had been favoured with an order for payment of salaries etc. even in the year 2002 and denial of salary to the petitioner even thereafter would amount to a continuing wrong. ( Union of India -Versus- Tarsem Singh, reported in (2008) 8 SCC 648 , wherein it was held as follows:

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“ 7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the re-opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re- fixation of pay or pension, relief may be granted in spite of delay as it does not affect

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the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.”

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In the present case, the petitioner had secured an order for payment of salaries by preferring a writ petition which was filed on 24.06.2002, therefore the relief would flow from the date of her joining her services, i.e. 29.12.1999, which is within the three years period as laid down by the Apex Court.

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19. In the opinion of this Court, in the peculiar facts and circumstances of the case and when there is no assertion on the part of the respondents that the petitioner had not rendered services to the department and in fact, the petitioner had been allowed to superannuate without any such allegations, her claim for salary upto the 12.08.2010, on and from 29.12.1999 and her claim to give her the benefit of the Old Pension Scheme under the Pension Rules, 1969 deserve to be allowed. Accordingly, the writ petition is allowed.

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20. The respondents shall arrange for payment of the arrear salaries to the petitioner for the period from 29.12.1999 to 12.08.2010, which is required to be done within a period of 3 months from the date of receipt of a certified copy of this order.

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21. The respondents shall also arrange for the petitioner to be granted the benefits of regular pension on and from the date of her relinquishing her post on attaining the age of superannuation and other retiral benefits, which shall be paid within a period of six months from the date of receipt of certified copy of this order. Till such time that the regular pension is paid, the respondents shall pay the provisional pension to the petitioner starting from the month of March

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22. Respondents shall file an affidavit stating compliance of this order immediately on compliance being achieved and in any case on or before 30.09.2026, failing which, the Registry shall place this matter before the Court with an office note.

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23. Writ petition is disposed of.

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24. No costs.

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JUDGE

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Smti. Riva Borkataky v. the State of Assam and 3 Ors.

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Smti. Riva Borkataky v. the State of Assam and 3 Ors.

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