Allowed

Solim Uddin v. the State of Assam and 4 Ors.

Gauhati HC4 Jan 2026WP(C)/7058/2015

Case brief

AI extract

What is this about?

Assistant teacher appointed irregularly in 1994, regularized under a cabinet decision whose quashing was set aside on appeal and later dismissed for non-prosecution. The writ court set aside the government order rejecting his salary claim and directed payment of arrear and current salary from June 1994, invoking quantum meruit, failing which interest at 9% per annum would apply.

What did the court decide?

Impugned order dated 20.12.2014 quashed; respondents directed to pay current and arrear salary w.e.f. June 1994 within three months, failing which 9% p.a. interest applies.

Solim Uddin Vs the State of Assam and 4 Ors. — Service and Employment | Gauhati HC (2026)

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GAHC010214122015

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THE GAUHATI HIGH COURT AT GUWAHATI

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(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)

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Principal Seat at Guwahati

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WP(C) No. 7058/2015

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Solim Uddin, S/O- Late Muzafar Ali, Village- Matraghola, P.O. Kritanpara P.S- Abhayapuri, Dist. - Bongaigaon, Assam, PIN- 788151.

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……………Petitioner

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Versus -

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The State of Assam, Represented by the Commissioner and Secretary to the Govt. of Assam, Education (Elementary) Department, Dispur, Guwahati- 781006.

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Commissioner and Secretary, Govt. of Assam, Finance (B) Dept., Dispur, Ghy-6.

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3 The Director of Elementary Education, Assam, Kahilipara, Ghy-19.

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The District Elementary Education Officer, Bongaigaon, Assam.

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Deepjyoti Digitally signed by Deepjyoti Sarkar Sarkar Date: 2026.01.07 15:30:58 +05'30'

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The Block Elementary Education Officer, Srijangram, DistBongaigaon, Assam.

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..…………Respondents

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Page 1 of 31

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BEFORE

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HON’BLE MR. JUSTICE ROBIN PHUKAN

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Advocate for the petitioner Advocate for the respondents	:- :-	Mr. M. U. Mahmud Mr. B. Kaushik, (R-1,3,4,5) Mr. A. Chaliha (R- 2)
Date of Hearing	:-	01.12.2025
Date on which judgment is reserved	:-	01.12.2025
Date of Judgment	:-	05.01.2026
Whether the pronouncement is of
the operative part of the judgment?	:-	N/A
Whether the full judgment has been
pronounced?	:-	Yes

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JUDGEMENT & ORDER (CAV)

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Heard Mr. M. U. Mahmud, learned counsel for the petitioner. Also heard Mr. B. Kaushik, learned standing counsel for the Elementary Education Department, being respondent Nos. 1, 3, 4 and 5; and Mr. A. Chaliha, learned standing counsel for the Finance Department, being respondent No. 2.

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2. In this petition, under Article 226 of the Constitution of India, the petitioner has challenged the order, dated 20.12.2014, (Annexure – 12), passed by the Secretary to the Government of Assam, Education Elementary Department and also to direct the

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Page 2 of 31

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respondent No. 2, 3, and 4 to pay the arrear as well as current salary to the petitioner with effect from June 1994. Notably, vide impugned order dated 20.12.2014, the respondent No. 1 had rejected the claim of the petitioner for payment of salary.

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Background Facts:-

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3. The background facts, leading to filing of the present petition are briefly stated as under:-

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“The petitioner was initially appointed as Asstt. Teacher in Bongaigaon district, in the year 1994. After such appointment he had received salaries only for (3) months. Thereafter, his salary was stopped without any notice or showing any reasons. Thereafter, as per the cabinet decision, the District Elementary Education Officer, Bongaigaon, by order, dated 2- 5-2006, attached the service of the petitioner in 196 No. Til Pukhuri L.P. School, wherein he has been rendering his service till date. But, the respondents have not released his salaries from June, 1994, till date, in spite of repeated demands.

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Being aggrieved, the petitioner as well as 5 others had filed a writ petition, being W.P. (C) No. 143/2009, before this Court, and this Court, after hearing all the parties, vide order, dated 16-03-2010, directed the Commissioner and Secretary to the Govt. of Assam, Education Department to take

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Page 3 of 31

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necessary step to release the arrear as well the current salaries of the petitioner as well as others.

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But, due to non-compliance of the said order, the petitioners had instituted a contempt case, being Contempt Petition (C) No. 263/2010, wherein this Court vide order dated 10.01.2014, was pleased to direct to comply order, dated 16-03-2010, passed in W.P. (C) No. 143/2009 in letter and spirit within a period of 3 (three) months. Even then, the respondent did not carry out the order. The petitioners then filed another contempt case, vide No. 521/14, wherein the respondent No. 1/ contemnor submitted before this Court that the order has already been complied with vide order, dated 20-12-2014.

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Then having gone through the impugned order, dated 20-12-2014, passed by the respondent No. 1, it has been found that the said order is absolutely perverse and non-est in the eye of law which is also contradictory to other orders, dated 16-3-2010 passed in W.P. (C) No. 143/2009 etc. The respondent, instead of releasing the arrear as well as the current salaries of others, has rejected the claim of the petitioner by mentioning some unfounded stories in the impugned order. The ground for such rejection is that in the list of 288 employees, the name of the petitioner was not figured within 82, which is misleading, as salaries also have been provided to the candidates whose name figured in Sl.

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Page 4 of 31

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No. 125 of the list of candidates, vide annexure 2 and 3 of the writ petition.”

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4. The respondent No.3 had filed affidavit-in-opposition, wherein it had taken a stand that the petitioners were initially appointed as Assistant Teachers in different ME Madrassas by the DEEO, Bongaigaon during the year 1993-1994 without following any selection process. Thereafter, their services have been regularized against non-sanction posts. Therefore, they belonged to irregularly appointed teachers as identified by the Manoharan Committee and the Task forces. It is also stated that the appointments of the petitioners were made by the then authority by ignoring the statutory rules. The decision of the Government to regularize the service of the irregularly appointed teachers was taken advantage of by unscrupulous elements to regularize the service of the petitioners, who never participated in any selection process under the law. It is also stated that the petitioners earlier approached this Court vide WP(C) No. 143/2009, praying for payment of salary w.e.f. date of joining i.e. 12.5.2006 and this Court vide order dated 16.3.2010, directed the Commissioner and Secretary, Government of Assam, Education (Elementary) Department to take necessary steps to release arrear and current salary of the petitioners and for this purpose, whatever enquiry is required to be done, that should be done by the authority. Thereafter, the Government Constituted a screening committee for the purpose of screening of the illegal/irregularly appointed

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teachers working in LP/ME schools for the period 1991-2001 in respect of the cases in Lower Assam Division including Bongaigaon district, vide Notification dated 7.1.2012, and pursuant to the aforesaid notification, the petitioners had appeared before the screening committee and the screening committee had furnish the report which indicates that out of the six petitioners, the posts sanction order held by the petitioners could not be verified as same was not produced before the verification authority. It is also stated that due to non-availability of budget allotment of fund and retention of the respective posts held by the petitioners, they are not receiving salary till date. Further, due to non-receipt of Finance (SIU) approval, salary of the petitioners could not be paid. It is also stated that appointments and regularization of 125 Nos. of teachers of Bongaigaon District including the petitioners were challenged in WP(C) No. 2346/2008 (Bharat Chandra Sarkar & Ors. –vs.- State of Assam & Ors.) and this Court vide order, dated 8.5.2013 was pleased to set aside their regularization orders and being aggrieved, the State & Ors. had preferred writ appeals and same were disposed of vide order dated 20.5.2014, in WA No. 211/2013 by setting aside the Judgment and Order dated 8.5.2013 and further directed for fresh hearing by the writ Court and the aforesaid writ petitions are pending for adjudication before this Court and therefore, the State is not able to take any decision on the matter.

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Page 6 of 31

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Submission of learned counsel for the petitioner:-

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5. Mr. Mahmud, learned counsel for the petitioner has launch multipronged attack upon the impugned order, dated 20.12.2014, (Annexure – 12), passed by the Secretary to the Government of Assam, Education Elementary Department. Mr. Mahmud submits that the impugned order was passed ignoring the direction issued by this Court vide order dated 16.3.2010, in WP(C) No. 143/2009. Instead the Secretary to the Govt. of Assam, Education Department, had taken into account irrelevant materials for rejection of claim of the petitioner. Mr. Mahmud submits that the petitioner was initially appointed as Asstt. Teacher in Bongaigaon district, in the year 1994 and he was paid salary only for (3) months and thereafter, his salary was stopped. He also submits that the State Cabinet had taken a decision on 24.02.2005, to regularize the service of 125 candidates of Bongaigaon district as per the cabinet decision. Thereafter, the Director Elementary Education, Assam had regularized 125 numbers of teachers of Bongaigaon district vide Order dated 30.01.2006 and the name of the petitioner figured in serial No. 118 of the said list. And thereafter, District Elementary Education Officer, Bongaigaon, by order, dated 2-5-2006, attached the service of the petitioner in 196 No. Til Pukhuri L.P. School, wherein he has been rendering his service till date. But, the respondents have not released his salaries from June, 1994, till date, in spite of repeated demands.

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Page 7 of 31

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5.1. Mr. Mahmud also submits that the petitioner along with 5 others had filed a writ petition, being W.P. (C) No. 143/09, before this Court, and this Court, after hearing all the parties, vide order, dated 16-03-2010, directed the Commissioner and Secretary to the Govt. of Assam, Education Department to take necessary step to release the arrear as well as the current salaries of the petitioner along with others. But, said order was not complied with for which Contempt Petition (C) No. 263/2010, was instituted wherein, this Court had directed the contemnor to comply the order, dated 16-03-2010, passed in W.P. (C) No. 143/2009 in letter and spirit within a period of 3 (three) months. Even then the respondent did not carry out the order. The petitioners then again instituted another contempt case, vide No. 521/14, wherein the respondent No. 1/ contemnor submitted before this Court that the order has already been complied with vide order, dated 2012-2014.

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5.2. Mr. Mahmud also submits that the impugned order, dated 20-12-2014, is absolutely perverse and non-est in the eye of law which is also contradictory to other order, dated 16-03-2010 passed in W.P. No. 143/09 etc. The ground for such rejection is that in the list of 288 employees, the name of the petitioner was not figured within 82, which is misleading, as salaries also have been released to the candidates whose names figured in the list of 125 candidates who have been regularized as per cabinet decision.

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5.3. Mr. Mahmud also submits that though the list of 125 candidates was set aside by a learned Single Judge of this Court in WP(C) No. 2346/2008, vide order dated 08.05.2013, filed by Bharat Ch. Sarkar and Others, yet the state had preferred one appeal being Writ Appeal(W/A) No. 211/2013, wherein the order dated 08.05.2013, so passed by the learned Single Judge had been set aside and the matter was remanded for fresh hearing, vide order dated 11.11.2021. And as such, the Cabinet Decision dated 24.02.2005 and the consequent regularization order dated 30.01.2006, of the petitioner and 124 others came to be restored. And as such the respondent authority has no option but to carry out the direction to release the salary of the petitioner, as per order, dated 16-03-2010 passed in W.P. (C) No. 143/2009.

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5.4. It is also the submission of Mr. Mahmud that the WP(C) No. 2346/2008, which was remanded to the learned Single Judge for hearing a fresh, was subsequently dismissed for non prosecution by a Co-ordinate Bench of this Court vide order dated 11.11.2021. And as such, the regularization order so passed by the Director Elementary Education as per Cabinet Decision has attained finality and therefore, Mr. Mahmud has contended to allow this petition directing the respondent authority to release the current and arrear salary of the petitioner forthwith.

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5.5. On another ground also Mr. Mahmud attacked the impugned order that one Anjumanara Khatun, Hafizur Rahman, Naresh Ch. Mandal and one Tulshi Barman whose names were there in the

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list of 125 candidates and whose services were regularized by the Director Elementary Education, has been receiving salary and some of them received the same pursuant to order of this Court, but the claim of the petitioner was rejected arbitrarily.

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5.6. Mr. Mahmud has also referred following decision in support of his submission:-

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(i) Man Singh vs. the State of Uttar Pradesh Through Secretary & Ors., reported in 2022 LiveLaw(SC) 341.

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Submission of learned counsel for the respondent:-

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6. Per contra, Mr. Kaushik, learned standing counsel for the respondent authorities has supported the impugned order. He submits that as per report of the Monoharan Committee, the name of the petitioners were in the list of irregular teachers of Bongaigaon, who were appointed as Assistant Teachers in different ME Madrassas by the DEEO, Bongaigaon during the year 1993-1994 without following any selection process. Thereafter, their services have been regularized against non-sanction posts. Mr. Kaushik also submits that the petitioners earlier approached this Court vide WP(C) No. 143/2009 praying for payment of salary w.e.f. date of joining, i.e. 12.5.2006 and this Court, vide order dated 16.3.2010, directed the Commissioner and Secretary, Government of Assam, Education (Elementary) Department to take necessary steps to release arrear and current salary of the petitioners after conducting enquiry. Thereafter, one screening

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committee for the purpose of screening of the illegal/irregularly appointed teachers working in LP/ME schools for the period 19912001 in respect of the cases in Lower Assam Division including Kamrup (M), Kamrup (R), Nalbari, Barpeta, Bhubri, Goalpara and Bongaigaon district, vide Notification dated 7.1.2012, and pursuant to the aforesaid notification, the petitioners had appeared before the screening committee and the screening committee had furnish the report which indicates that out of the six petitioners, the posts sanction order held by the petitioners could not be verified as same was not produced before the verification authority.

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6.1 . Mr. Kaushik also submits that due to non-availability of budget allotment of fund and retention of the respective posts held by the petitioners and also for non-receipt of Finance (SIU) approval, salary of the petitioners could not be paid. Mr. Kaushik further submits that the appointments and regularization of 125 Nos. of teachers of Bongaigaon District including the petitioners were challenged in WP(C) No. 2346/2008 by one Bharat Chandra Sarkar & Ors. and this Court vide order, dated 8.5.2013 had set aside their regularization orders. Thereafter, the State had preferred writ appeal and same were disposed of vide order dated 20.5.2014, in WA No. 211/2013 by setting aside the Judgment and Order dated 8.5.2013 and further directed for fresh hearing by the writ Court and the aforesaid writ petitions are pending for

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adjudication before this Court and therefore, the State is not able to take any decision on the matter.

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6.2. Further contention of Mr. Kaushik is that the name of the petitioners were in the list of irregular teachers of Bongaigaon District and as such they are not entitled to any relief as prayed for.

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6.3 . Mr. Kaushik has also referred to following decisions to bolster his submissions:-

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(i) The State of Bihar and Others vs. Devendra Sharma, reported in (2020) 15 SCC 466.

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(ii) WP(C) No. 2346/2008 (Bharat Ch. Sarkar & Ors-Vs-State of Assam & Ors.

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7. Having heard the submission of learned Advocates of both the parties, I have carefully gone through the petition and the documents placed on record and also perused the impugned order dated Dispur the 20^th December, 2014 (Annexure-12) so passed by the Secretary to the Government of Assam, Education Elementary Department. Also gone through the decisions referred by Mr. Mahmud, learned counsel for the petitioner and also by Mr. Kaushik, learned standing counsel for the respondent authorities.

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8. From the contentions being made in the respective pleadings of the parties and also from the submissions of learned counsel for both the parties, following facts and circumstances emerges:-

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(i) The petitioner was initially appointed as Asstt. Teacher in Bongaigaon district, in the year 1994 and he was paid salary only for (3) months and thereafter, his salary was stopped.

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(ii) As per report of the Monohoran Committee, the name of the petitioner figured in the list of irregular teachers of Bongaigaon District.

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(iii) The State Cabinet had taken a decision on 24.02.2005 to regularize the service of 125 irregular teachers of Bongaigaon District.

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(iv) As per the cabinet decision, the Director Elementary Education, Assam had regularized 125 numbers of teachers of Bongaigaon District vide Order dated 30.01.2006.

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(v) The name of the petitioner figured in serial No. 118 of the said list.

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(vi) Thereafter, District Elementary Education Officer, Bongaigaon, by order, dated 2-5-2006, attached the service of the petitioner in 196 No. Til Pukhuri L.P.

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School, wherein he has been rendering his service till date.

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(vii) But, the respondents have not released his salaries from June, 1994, till date, in spite of repeated demands.

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(viii) Then the petitioner along with 5 others had filed a writ petition, being W.P. (C) No. 143/2009, before this Court, and this Court, after hearing all the parties, vide order, dated 16-03-2010, directed the Commissioner and Secretary to the Govt. of Assam, Education Department to take necessary step to release the arrear as well the current salaries of the petitioner.

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(ix) But, said order was not complied with for which Contempt Petition (C) No. 263/2010, was instituted wherein, this Court had directed the contemnor to comply order, dated 16-03-2010, passed in W.P. (C) No. 143/2009 in letter and spirit within a period of 3 (three) months.

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(x) But, thereafter also the respondent did not carry out the order for which the petitioners again instituted another contempt case, vide No. 521/14, wherein the respondent No. 1/ contemnor submitted before this Court that the order has already been complied with vide order, dated 20-12-2014, by which the claim of the petitioner was rejected.

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(xi) And this order, dated 20-12-2014, is under challenge in the present petition.

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(xii) The list of 125 teachers, whose services were regularized by the Director Elementary Education, Assam was set aside by a learned Single Judge of this Court in WP(C) No. 2346/2008, vide order dated 08.05.2013, on being challenged by one Bharat Ch. Sarkar and Ors.

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(xiii) The State had preferred one appeal, being Writ Appeal(W/A) No. 211/2013, wherein the order dated 08.05.2013, so passed by the learned Single Judge had been set aside and the matter was remanded for fresh hearing, vide order dated 11.11.2021.

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(xiv) In view of order dated 11.11.2021, the regularization order dated 30.01.2006, so passed by the Director Elementary Education, Assam pursuant to the Cabinet Decision dated 24.02.2005 came to be restored.

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(xv) The WP(C) No. 2346/2008, which was remanded to the learned Single Judge for hearing afresh, was subsequently dismissed for non prosecution by a Coordinate Bench of this Court vide order dated 11.11.2021.

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(xvi) And as such, the regularization order so passed by the Director Elementary Education as per Cabinet Decision

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has attained finality and as such the respondent authority has no option, but to carry out the direction to release the salary of the petitioner, as per order, dated 16-03-2010 passed in W.P. (C) No. 143/2009.

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(xvii) One Anjumanara Khatun, Hafizur Rahman, Naresh Ch. Mandal and one Tulshi Barman whose names were there in the list of 125 candidates and whose services were regularized by the Director Elementary Education, has been receiving salary and some of them received the same pursuant to order of this Court, but the claim of the petitioner was rejected.

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9. Moving forward this Court deemed it appropriate to peruse the impugned order dated 20^th December, 2014, which is extracted here in below:-

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GOVERNMENT OF ASSAM, EDUCATION (ELEMENTARY) DEPARTMENT

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No. ELC/WPC1143/2009/13/P/270, Dated Dispur the
20th December, 2014

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O R D E R

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Perused:- The Order did. 16/03/2010 passed by Hon'ble
High Court in WP(C)143/2009 (Md. Solim
Uddin & 5 Ors -Vs-State of Assam & Ors) in
connection with payment of arrear & current

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salaries of the petitioner who were
appoimed irregularly as Assistant Teachers
in LP/UP school under undivided Bongaigaon
District during 1991-2001 as reflected in
the report of the Monoharan Committee

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Also read:- 1. The petition dtd. 12/01/2011 and did. 15/09/2014 submitted by Md. Solim Uddin & 5 Ors.

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2.Report No. EHA-22/09/119, did. 30/05/2014 submitted by DEE. Assam.

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3.Report No. GG/12/2014/6 dtd 27/11/2014 submitted by Commissioner of Lower Assam Division

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Findings:- It appears that the Hon'ble High Court in
its order dtd. 16/03/2010 passed in
WP(C)143/2009 directed that the
Commissioner & Secretary Govt. of Assam.
Education Department would cause to take
necessary steps so that the arrear and
current salaries of the petitioners are
released and for this purpose whatever
enquiry is required to be done that should
be done by the authority keeping in mind
the fact as indicated above in the order
The Commissioner & Secretary is also
directed to make a necessary communication
wherever found necessary to the Finance
Department for granting necessary sanction
to which there is no objection as indicated
by the Finance Department provided that the

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petitioners are duly appointed by the
authority. ............... In the said
order the Hon'ble High Court has observed
that the petitioners has also brought to
the notice of the court about the order dtd
23/12/2008 passed in WP(C) No. 3696/2008 by
which the similarly situated teachers were
granted relief by the court on
consideration.

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 Pursuant to the order dtd 16/3/2010
passed in WP(C)No.143/2009, the Department
taken up the matter of release of arrear
and current salaries of the petitioners for
consideration. The matter was also referred
to Finance Department and Additional
Advocate General, Assam, Gauhati High
Court. But it is seen that Shri Bharat Ch.
Sarkar and ors challenge the regularization
of 125 teachers of Bongaigaon District
which covered by Monoharan Committee. In
the list of said 125 teachers of Bongaigaon
District name of all the petitioners of
instant case were also included. The case
of Bharat Ch. Sarkar has been disposed of
by the Hon'ble High Court dtd, 08/05/2013
with the opinion that likewise in
Bongaigaon District, different lists(s) of
irregularly appointed teachers were
generated by falsely projecting the names
in the list as those identified by the
Manoharan Committee and the task forces.
But in reality, the last regular
appointment in Bongaigaon was made in the

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year 1993 and since none in this district
was identified to the a irregular
appointee, it is obvious that the
regularization of beneficiaries in
Bongaigon district, could not have been
based on the recommendation of Manoharan
Committee. Therefore, it is clear that in
this district also, so called list of
irregularly appointed teachers were
generated.

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 The appointments in Bongaigaon and
Karimganj districts in these 2 (two)
proceedings were made by ignoring the
Statutory Rules. The decision of the Govt
to regularize the service of the
irregularly appointed teachers was taken
advantage of by unscrupulous elements to
regularize the service of those who never
participated in selection process.
Moreover, these beneficiaries were not
appointed through any competent appointment
order. Therefore, the private respondents
cannot be put in the category of irregular
appointees and it has to be declared that
their appointments are absolutely illegal
In such circumstances, the State cannot
invoke the power under Article 162 of the
constitution to regularize the service of
people who were appointed through
fraudulent process Here appointment orders
were fabricated and fake appointment lists
were generated and there was no declaration
by the Manoharan Committee that the private

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respondents are in the category of
irregular appointees. In such backdrop
having regard to the ratio of the Supreme
Court decisions referred to above. I feel
that the petitioners have made out a case
for judicial intervention. Consequently the
regularization of the respondent Nos. 8-132
in the WP(C) No. 2346/2008 is held to be
unsustainable and it is declared
accordingly by quashing the impugned
orders. On the same reasoning, the
adjustment appointment in Karimganj
district of respondent No. 16-138 in the
WP(C) 7492/2005 are hold to be illegal and
consequently the impugned order dtd.
05/02/2005 issued by the DEE, Assam is
quashed. In view of the conclusion the
State is directed to ensure that their
services are discontinued forthwith"
However, Govt. preferred an appeal being
No. WA.211/2013 challenging the impugned
judgement & order dtd. 08/05/2013 passed by
the learned single judge in WP(C) No.
2346/2008 (Bharat Ch. Sarkar & Ors-Vs-State
of Assam & Ors) in consideration of the
irreparable loss and suffering faced by the
petitioner who were regularized pursuant to
the Cabinet decision and have rendered
services for a long time without break.
Subsequently, by order dtd. 20/05/2014, the
Division Bench allowed the Writ Appeal to
set aside the judgment & order dtd.
08/05/2013 and directed for fresh hearing
by the writ court.

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 Meanwhile, Govt. constituted a
screening committee for the purpose
screening of the illegal irregularly
appointed teachers working in LP/ME schools
for the period 1991-2001 in respect of the
cases in Lower Assam Division covering
Kmarup(M), Kamrup (R), Nalbari, Barpeta,
Dhubri, Goalpara and Bongaigaon District
vide notification No. ELC/WP(C)1048/2004/
988/P1-111/41 dtd. 07/01/2013. It also
appear that Md. Solim Uddin and 5 Ors
petitioners in WP(C) 143/2009, have already
appeared before the aforesaid screening
committee. Therefore, the Chairman of the
screening committee was asked to furnished
the report immediately. From the report of
the screening committed as forwarded by the
Commissioner of Lower Assam Division vide
letter No GG/12/2014/6 did. 27/11/2014.
Inter-alia, it appears that the post
sanction order in respect of the
petitioners could not be verified as the
same was not produced before the
verification authority during the screening
by the DEEO office and as such it could not
be ascertained whether appointments are
made against sanctioned or non-sanctioned
posts. Besides, it appears from the report
that out of 6 (xix) petitioners the name of
4 (four) namely (1) Abdur Rashid (2)
Hafizar Rahman (3) Solim Uddin (4) Mostafa
Ahmed were recommended by the Sub
Divisional. Advisory Board (SDLAC), North

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Salmara Sub-Division, Abhayapuri and 2
(two) petitioners namely (1) Sahjahan Ali
Ahmed and (2) Assatan Nesssa was not been
recommended by the Sub-Divisional Advisory
Board along with two other petitioners (1)
Sahajahan Ali Ahmed (2) Asatan Nessa. The
petitioner Abdur Rashid is it Sl. 169.
Hafizur Rahman at Si. 106 and Solim Uddin
at St 360. All the selected petitioners are
below St. 82 in the select list of General
Candidates furnished by the DEEO,
Bongaigaon.

¶111

 However, on scrutiny of the records as
available in the Department, it reveals
that the names of (1) Sahajahan Ali Ahmed
(2) Asatan Nessa does not appear in the
photocopy of the select list prepared by
the Sub-divisional Committee. Therefore,
these appointments are irregular and cannot
be regularized. It is also seen that
although the Commissioner. Lower Assam
Division has mentioned that Mostafa Ahmed
was recommended by the Sub-Divisional
Committee, but the name of Shri Mostafa
Ahmed could not be located in the photocopy
of the select list as available in the
file. Besides, there were only 82 (eighty
two) sanctioned post for Bongaigaon
District as per letter No. ECA.20/94/6 dtd
06/07/94. Therefore, only 82 persons are
entitled for appointment. The name of the
three petitioners namely Hafizur Rahman.
Abdur Rashid and Solim Uddin (appeared at

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No. 106,169 and 360 respectively in the
select list. These petitioners are from the
General Category and they are not entitled
for appointment below from 82 of the select
list. Their appointments are irregular
excess and cannot be regularized in view of
law laid down by the Hon'ble Supreme Court
and Hon'ble Gauhati High Court.

¶114

 In view of the enquiry as stated above
the claim of the petitioners cannot be
entertained.

¶115

 This is issued in compliance of order
16/03/2010 passed by Hon'ble High Court in
WP(C)143/2009.

¶116

Sd/R.C. Jain, IAS

¶117

Secretary to the Govt. of Assam
Education (Ele.) Department

¶118

10. This impugned order, when considered in the light of the submissions, so advanced by Mr. Mahmud, learned counsel for the petitioner, this Court finds sufficient force in his submission. It appears from the impugned order that basically on the following ground the claim of the petitioner for releasing his salary was rejected:-

¶119

(i) One Shri Bharat Ch. Sarkar and Others challenged the regularization of 125 teachers of Bongaigaon District which were covered by Monoharan Committee, in WP(C) No. 2346/2008 wherein such regularization is

¶120

Page 23 of 31

¶121

held to be unsustainable and accordingly the
same was set aside vide order dated
08.05.2013.

¶122

(ii) The Govt. had preferred an appeal being No. W/A No. 211/2013 challenging the impugned judgement & order dtd. 08/05/2013 passed by the learned single judge in WP(C) No. 2346/2008 (Bharat Ch. Sarkar & Ors-Vs-State of Assam & Ors). And subsequently, by order dtd. 20/05/2014, the Division Bench allowed the Writ Appeal to set aside the judgment & order dtd. 08/05/2013 and directed for fresh hearing by the writ court.

¶123

(iii) Govt. constituted a screening committee for the purpose of screening of the illegal irregularly appointed teachers working in LP/ME schools for the period 1991-2001 in respect of the cases in Lower Assam Division covering Kmarup(M), Kamrup (R), Nalbari, Barpeta, Dhubri, Goalpara and Bongaigaon District vide notification No. ELC/WP(C) 1048/2004/988/P1-111/41 dtd. 07/01/2012. It also appears that Md. Solimuddin and 5 others petitioners in WP(C) 143/2009, have already appeared before the aforesaid screening Committee.

¶124

(iv) From the report of the screening committee as forwarded by the Commissioner of Lower Assam Division vide letter No GG/12/2014/6 dtd. 27/11/2014. Inter-alia, it appears that the post sanction order in respect of the petitioners could not be verified as the

¶125

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¶126

same was not produced before the
verification authority during the screening
by the DEEO office and as such it could not
be ascertained whether appointments are made
against sanctioned or non-sanctioned posts.

¶127

(v) The report indicates that out of 6 (six) petitioners the name of 4 (four) namely (1) Abdur Rashid (2) Hafizur Rahman (3) Solim Uddin (4) Mostafa Ahmed were recommended by the Sub Divisional Advisory Board (SDLAC), North Salmara Sub-Division, Abhayapuri and 2 (two) petitioners namely (1) Sahjahan Ali Ahmed and (2) Assatan Nesssa was not been recommended by the Sub-Divisional Advisory Board along with two other petitioners (1) Sahajahan Ali Ahmed (2) Asatan Nessa. The petitioner Abdur Ras hid is in Sl. 169. Hafizur Rahman at Sl. 106 and Solim Uddin at Sl. 360.

¶128

(vi) There were only 82 sanctioned post for Bongaigaon District as per letter No. ECA.20/94/6 dtd 06/07/94. Therefore, only 82 persons are entitled for appointment. Since the name of the three petitioners namely, Hafizur Rahman, Abdur Rashid and Solim Uddin appeared at Sl. Nos. 106, 169 and 360 respectively in the select list and they are from the General Category, and as such they are not entitled for appointment below from 82 of the select list.

¶129

Page 25 of 31

¶130

(vii) Their appointments are irregular excess and cannot be regularized in view of law laid down by the Hon'ble Supreme Court and by this Court.

¶131

11. However, none of these grounds assigned in the order appears to be sound and justified. As submitted by Mr. Mahmud, learned counsel for the petitioner, though the list of 125 teachers, whose services were regularized by the Director Elementary Education, Assam was set aside by a learned Single Judge of this Court in WP(C) No. 2346/2008, vide order dated 08.05.2013, on being challenged by one Bharat Ch. Sarkar and Ors. yet, the State had preferred one appeal being Writ Appeal(W/A) No. 211/2013, wherein the order dated 08.05.2013, so passed by the learned Single Judge had been set aside and the matter was remanded for fresh hearing, vide order dated 11.11.2021 and as such, the regularization order dated 30.01.2006, so passed by the Director Elementary Education, Assam pursuant to the Cabinet Decision dated 24.02.2005 came to be restored and after the WP(C) No. 2346/2008, which was remanded to the learned Single Judge for hearing a fresh, was subsequently dismissed for non prosecution by a Co-ordinate Bench of this Court vide order dated 11.11.2021, and that being so, the regularization order so passed by the Director Elementary Education as per Cabinet Decision has attained finality and as such the respondent authority has no option, but to carry out the direction to release the salary of the

¶132

Page 26 of 31

¶133

petitioner, as per order, dated 16-03-2010 passed in W.P. (C) No. 143/2009.

¶134

11.1. Further the respondent No.1 had relied upon the report of the screening committee constituted by the Govt. for the purpose of screening of the illegal irregularly appointed teachers working in LP/ME schools for the period 1991-2001 in respect of the cases in Lower Assam Division covering Kamrup (M), Kamrup (R), Nalbari, Barpeta, Dhubri, Goalpara and Bongaigaon district vide notification No. ELC/WP(C) 1048/2004/988/P1-111/41 dtd. 07/01/2012. Said committee was constituted after the order dated 16/03/2010, being passed in WP(C)143/2009, where in it was directed that the Commissioner & Secretary Govt. of Assam. Education Department would cause to take necessary steps so that the arrear and current salaries of the petitioners are released and for this purpose whatever enquiry is required to be done that should be done by the authority keeping in mind the fact as indicated above in the order. The Commissioner & Secretary is also directed to make a necessary communication wherever found necessary to the Finance Department for granting necessary sanction to which there is no objection as indicated by the Finance Department provided that the petitioners are duly appointed by the authority.

¶135

11.2. In the said order, the this Court has also observed that the petitioners had brought to the notice of the Court about the order dtd. 23/12/2008, passed in WP(C) No. 3696/2008, by which the

¶136

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¶137

similarly situated teachers were granted relief by the Court on consideration.

¶138

11.3. It is well settled that the direction issued by this Court in the order dated 16/03/2010, so passed in WP(C)143/2009, has to be considered in the light of the facts and circumstances that had already in existence. Subsequent events should not have been considered by the respondent No.1 while rejecting the claim of the petitioner.

¶139

11.4. It is also not in dispute that one Anjumanara Khatun, Hafizur Rahman, Naresh Ch. Mandal and one Tulshi Barman whose names were there in the list of 125 teachers and whose services were regularized by the Director Elementary Education, has been receiving salary and some of them received the same pursuant to order of this Court. Being similarly situated, the claim of the petitioner should not have been rejected by the respondent No.1 and on such count, the impugned order appears to be arbitrary and on this count also the same is liable to be interfered with.

¶140

12. It is to noted here that on another ground also the impugned order cannot withstand the legal scrutiny. In the case of Man Singh (supra), Hon’ble Supreme Court has held as under:-

¶141

The Single Judge in its order dated
11.05.2000 maintained the order dated 24.12.1998
of cancellation of appointment of the appellant
as Principal on account of violation of Chapter 3

¶142

Page 28 of 31

¶143

Rule 4 of U.P. Educational Manual prescribes that
a close relation mentioned in said Rule cannot be
appointed as Principal.

¶144

 The appellant was appointed as a principal
in the year 1974-75 when junior High School was
upgraded as High School and was recognized by the
State Government. Thus, the appellant has worked
for almost 24 years before the services came to
be cancelled for the reason that he is Reason:
relative of the member of the Selection
Committee.

¶145

 The order dated 24.12.1998 also records that
the money be recovered from the appellant which
has been paid to him, as a result of his
irregular appointment for the post of Principal.

¶146

We find that the High Court has failed to
consider the fact that even if the appointment
was irregular, the appellant had discharged the
duties and in lieu of duties, he had to be paid.
The State cannot take any work from any employee
without payment of any salary.”

¶147

12.1. Besides, a Division Bench of this Court also in the case of State of Assam and Ors. vs. Arunima Chetia, reported in (2016) 3 GLR 198, held as under:-

¶148

“9. Upon hearing the rival contentions and
after going through the order of the learned
single Judge in question, it is an admitted
fact that all the respondents in the appeals
are continuously working as teacher and their
salaries are being paid by virtue of the
Court's order. Arrears of salary from July

¶149

Page 29 of 31

¶150

2007 are not being paid. When the respondents
are continuously serving as teacher, the
question whether they are illegally appointed
or otherwise it matter-less. However, for the
services rendered by the private respondents
and availed by the State, on the principle of
"quantum merit" the salaries have to be paid.
In that view of the matter we find no ground
to interfere in the order of the learned
single Judge. Accordingly the appeals are
dismissed.”

¶151

12.2. And in view of the aforesaid proposition of law, the ground for rejection of claim of the petitioner for payment of arrear salary fails to withstand the legal scrutiny and on this count alone and also on the principle of "quantum meruit" the same is liable to be interfered with.

¶152

13. Under the given factual and legal matrix the impugned order No. ELC/WP(C)1143/2009/13/Pt/370, Dated Dispur the 20^th December, 2014 passed by the respondent No.1, failed to withstand the legal scrutiny and accordingly, the same stands set aside and quashed.

¶153

14. By a mandamus of this Court, the state respondents, more particularly the respondents No. 1,2 and 3 are directed to pay the current and arrear salary to the petitioner, with effect from June 1994 till date.

¶154

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¶155

15. Let the exercise, mentioned in para No. 14 be carried out within a period of three months from the date of receipt of 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 week from today. In the event of failing to carry out the direction in para 14, the entire amount of arrear salary shall carry interest @ Rs. 9% per annum from the date of accrual till final payment.

¶156

16. In terms of above, this writ petition stands disposed of leaving the parties to bear their own costs.

¶157

J U D G E

¶158

Comparing Assistant

¶159

Page 31 of 31

Solim Uddin v. the State of Assam and 4 Ors.

Case brief

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Solim Uddin v. the State of Assam and 4 Ors.

Case brief

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What the court decided

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