WRIT PETITION 5379/2010 on 1 March 1991

Conclusion

WP(C) 5379/2010BEFORE HON’BLE MR. JUSTICE SUMAN SHYAM

JUDGMENT AND ORDER (Oral)

Heard Ms. B. Devi, learned counsel appearing for the writ petitioner. I

have also heard Mr. N. Sarma, learned Standing Counsel, Elementary Education Department, Assam, appearing for the respondents.

2. This is the third time that the petitioner has approached this Court by filing the present writ petition seeking a direction for regularisation of his services with effect from 01.03.1991. i.e. the date on which the petitioner was appointed as Assamese Language Teacher. According to the materials available on record, the petitioner was initially appointed as Assamese Language Teacher in the Buribail M.E. School in the year 1979. The petitioner claims to have rendered continuous service since the date of his appointment, but when his services werenot regularised even after the said school was provincialised with effect from 01.01.1984, the petitioner had approached this Court by filing Civil Rule No.4880/1991 seeking an order for regularisation of his services and also for payment of his salary and allowances with effect from 01.03.1991 i.e. the date of his appointment. After hearing the learned counsel for the parties, Civil Rule No.4880/1991 was disposed of by this Court by the order dated 16.03.1993. Operative part of the order dated 16.03.1993 is reproduced herein below :- Considering the submissions of the learned counsel for the parties, 4th respondent is directed to regularise the appointment of the petitioner and to pay his pay and allowances from 1.3.91 within a period of two months from today. With this direction the petition is disposed of. —

3. In terms of the order dated 16.03.1993 the petitioner’s case was considered by the authorities but since the post of Assamese Language Teacher was not retained in Buribail M.E. School, hence, he was adjusted as Assamese Language Teacher in Tarinipur M.E. School against a vacant post earlier held by Smt. Jahanara Begum Laskar. By the notification dated 23.05.2000 it was further provided that the petitioner will receive pay and arrear in the scale of pay of Rs.3190/- to 4410/- plus other allowances as admissible under the Rules with effect from his date of joining. Pursuant thereto, the petitioner’s services stood regularised in the post of Assamese Language Teacher in Tarinipur M.E. School with effect from 23.05.2000. The grievance of the petitioner, is to the effect that his services ought to have been regularised with effect from 01.03.1991 and therefore, the respondents be directed to treat the period of service from 01.03.1991 to 23.05.2000 as period of regular service rendered by the petitioner. Since the same was not done, the petitioner had approached this Court once again by filing WP(C) No.3917/2007 ventilating his grievance in the matter and by the order dated 03.03.2009 the learned Single Judge of this Court had disposed of the said writ petition with the following directions :-

Having confronted with the above and in view of the constraints of the writ Court to undertake an enquiry into such incompatible facts, it is considered expedient to remit the issue to the concerned departmental authorities for a fresh scrutiny of this facet of the debate, after affording a reasonable opportunity of hearing to the petitioner in this regard. Ordered accordingly. This petition is disposed of with a direction to the Director of Elementary Education, Assam to cause an enquiry to be made on the authenticity of the claim by the petitioner, regarding his continuance in service beyond March, 1988 till hisjoining at the Tarinipur M.E. School in compliance of the order dated 23.05.2000 of the District Elementary Education Officer, Cachar, Silchar, referred to hereinabove. As the petitioner waits in expectation for the regularization of his service, the exercise as ordered should be completed within a period of one monthof the receipt of the certified copy of this order. If following the enquiry the petitioner is determined to have rendered his services without any break for the period 01.03.1991 to 23.05.2000, the Secretary to the Govt. of Assam, Educati on (Elementary) Department would cause regularization thereof in accordance withlaw and ensure disbursement of his service dues forthwith. This Court is impelled to chart this course inspite of the judgment and order dated 16.03.1993 passed by this Court in Civil Rule No.4880/1991 as it is inclined to comprehend that the regularization of the petitioner’s service for the period in question could not have been intended unless he in fact had rendered his services as claimed byhim.

The petition stands disposed in the above terms. —

4. When the order dated 03.03.2009 was not complied with, the petitioner had filed Contempt Case No.96/2010 which was closed by the order dated 04.06.2010 taking note of the fact that the authorities had passed an order dated 03.06.2010 disposing of the claim of the petitioner in terms of the directions issued on 03.03.2009. It is the order dated 03.06.2010 that is under challenge in the present writ petition. 5.Ms. Devi, learned counsel for the petitioner, submits that by the order dated 03.03.2009 a categorical direction was issued by this Court requiring the respondents to conduct a fresh enquiry before passing an order but in the present case no such enquiry was conducted by the respondent No.1 before issuing the impugned order dated 03.06.2010. The learned counsel further submits that there are relevant materials available on record to show that the petitioner had regularly worked as Assamese Language Teacher in Buribail M.E. School during the period from 01.03.1991 to 23.05.2000 but the said fact was neither taken cognizance of by the authorities while issuing the impugned order dated 03.06.2010 nor couldthe petitioner place the same because he was not given any opportunity of representing his case before the authorities. Under the circumstances, Ms. Devi submits that the order dated 03.06.2010 having been issued in violation of the order dated 03.03.2009 passed by this Court, is wholly unsustainable in the eye of lawand is liable to be set aside by this Court. 6.Mr. N. Sarma, learned departmental counsel, on the other hand, submits that the order dated 03.06.2010 has been issued in terms of the order passed by this Court on 03.03.2009. He, however, fairly submits that there is no reflection in the impugned order dated 03.06.2010 that any enquiry, as required by the order dated 03.03.2009, was carried out before issuing the impugned order dated 03.06.2010.7.It appears from the record that there was an enquiry conducted by the Jt. DEE pursuant whereto a report dated 14.08.2008 was submitted before the Director of Secondary Education. The said report was forwarded by the Director to the Government on 19.08.2008. The report dated 14.08.2008 is, however, not available

for perusal by this Court. Be that as it may, the order dated 03.03.2009 is categorical that the finding must be recorded after causing an enquiry so as to establish the authenticity of the claim of the petitioner regarding his continuancein service during 01.03.1991 to 23.05.2000. It clearly appears that by the order dated 03.02.2009 this Court had required the departmental authorities to carryout a fresh enquiry. But materials on record show that no such enquiry was conducted. If that be so, the order dated 03.06.2010 cannot be said to be in conformity with the direction passed by this Court on 03.03.2009. It may be the case that there was an earlier enquiry conducted on the same issue which had culminated in the report dated 14.08.2008, but what is material for the purpose of the present case is the manner in which the directions contained in the order dated 03.03.2009 was carried out by the authorities. It is also significant to note herein that the petitioner’s consistent claim has been that he was not given an opportunity of being heard in the matter and there is no denial of such assertion ofthe petitioner by the respondent authorities. Since the issue involved herein pertains to the veracity of the claim made by the petitioner that he had been continuously working since 01.03.1991 to 23.05.2000, the petitioner ought to have been given an opportunity to produce relevant materials before recording a finding of fact in the mater. However, record reveals that no such opportunity was given to the petitioner. On the contrary, the conclusion drawn by the respondents, appear to be wholly based on the report dated 14.08.2008. As such, I am of the o pinion that the matter calls for a revisit by the competent authority after giving a proper opportunity of being heard to the petitioner. 8.Consequently, the impugned order dated 03.06.2010 is set aside. The matter is now remanded back to the respondent No.1 to cause a fresh enquiry in to the matter after ensuring that the petitioner is given a proper opportunity of presenting his case. On the basis of such enquiry a fresh order in compliance of the directions contained in the order dated 03.03.2009 of this Court be issued. Whatever be the decision, the same be communicated to the petitioner. The aforesaid direction be carried out as expeditiously as possible but not later than threemonths from the date of receipt of a certified copy of this order.Writ petition stands disposed of. There would be no order as to cost.