WP(C) 1207/2005 BEFORE THE HON’BLE MR. JUSTICE HRISHIKESH ROY Heard Mr. B. Ramchiary, learned Counsel appearing for the petitioner. The respon dents 1, 2, 5 & 6 are represented by Mr. M.R. Pathak, learned Standing Counsel f or the Education Department. Mr. R. Sinha, learned Standing Counsel, BTC make su bmission on behalf of respondents 3 & 4. 2. The petitioner who is serving as an Assistant Teacher in the Rup ahi M.E. Schools challenges the order dated 19.2.2004 (Annexure-O) of the Distr ict Elementary Education Officer (DEEO), Barpeta, whereby the petitioner was fou nd ineligible for his unpaid salary from 1.6.1995 because his name was not inclu ded in the list of 87 Middle English (M.E) Schools Teachers, who were recommende d for regularization by the Screening Committee, in pursuant to the report of th e Monohoran Committee pertaining to appointment of illegal teachers. 3. Mr. B. Ramchiary, submits that in pursuant to the Resolution of 15.4.1987 of the Managing Committee of the Rupahi M.E. School, the petitioner w as appointed as a Sectional Teacher of Bodo Medium and accordingly the appointee joined the school on 20.4.1987. Then the Director of Elementary Education (DEE) , Assam through his order dated 1.12.1993 (Annexure-I) sanctioned a post of Assi stant Teacher of M.E. Schools and placed the post at the disposal of the DEEO, B arpeta. The post sanction order stated that the post may be allotted to a needy M.E. School to accommodate the petitioner Medini Mohan Basumatary, whose name wa s mentioned in the DEE’s order of 1.12.1993. Pursuant to the sanctioning of the post, by the appointment order issued on 17.3.1994 (Annexure-J), the petitioner was appointed as an Assistant Teacher and posted in the Rupahi M.E. School. It was recorded in the appointment order that approval of the Executive Member (E.M ) of the Bodoland Autonomous Council (BAC), Kokrajhar was obtained for appointin g the petitioner. 4. Since the petitioner was paid his salary after his appointment o nly for about 18 months upto 31.5.1995, he moved this Court earlier through WP(C ) No. 4091/2002, seeking a direction for payment of his unpaid salary. This Cour t by order dated 4.3.2003 disposed of the writ petition by directing the DEEO, B arpeta to examine the petitioner’s claim for salary and to arrange to pay his sa lary. Since the petitioners name was not in the list of 87 teachers mentioned by the constituted Screening Committee in pursuant to the report of the Monoharan Committee, the DEE by the impugned order of 19.2.2004 held the petitioner is dis entitled to any salary. 5.1 It is seen from the impugned order that the DEEO did not take in to account the fact that the petitioner was appointed by the Managing Committee of the School on 15.4.1987 before Rupahi M.E. School was provincialized in the year 1992 and that the petitioner was in the category of a dropped teacher, whos e case should be considered under Sub-Rule 3 of Rule 5 of the Assam Elementary Education (Provincialization) Rules, 1977 (hereinafter referred to as the Prov incialization Rules ). 5.2 It was also not considered by the DEEO that a post was specifica lly sanctioned in the name of the petitioner by the DEE, Assam on 1.12.1993 and that the petitioner was appointed by the then DEEO, Barpeta on 17.3.1994, after obtaining the approval of the E.M., Bodoland Autonomous Council (BAC). 5.3 The above peculiar features on the appointment given to the peti tioner was never considered by the DEEO who proceeded simply on the basis that, the case of the petitioner was not recommended amongst the 87 M.E. School teache rs, whose claim for regularization was recommended by the post Monoharan Screeni ng Committee. 6. Mr. R. Sinha, learned Standing Counsel, BTC refers to the counte r affidavit of the respondents 3 & 4 to submit that since the name of the petiti oner was not included in the recommended list of 87 Middle M.E. School teachers, the DEEO, Barpeta had rightly rejected the petitioners claim for salary. 7. But on the other hand, Mr. M.R. Pathak, learned Standing Counsel submits that no indication is available as to whether the DEEO, Barpeta while a ppointing the petitioner had considered the requirement of an Assistant Teacher in the Rupahi School and it is also not clear as to whether any approval was ac corded for the petitioner’s appointment, by the Sub-Divisional Advisory Board. 8. In the context of the above submission although some conditions were attached in the DEE’s order of 1.12.1993, the appointment order given to th e petitioner is not hedged by any conditions. It was also stated in the appointm ent order that it is being given, in pursuant to the sanction of the post made b y the DEE on 1.12.1993 and that the appointment is given after securing the appr oval of the E.M., BAC. Therefore it can’t be gathered from the appointment order itself that, the appointing authority had not taken into account the requiremen t of an additional teacher in the concerned school and that the appointment was not made, in accordance with the prescription of the Provincialization Rules. 9. Considering that regularization of service of a dropped teacher of a re-provincialized appointee can be considered under Sub-Rule 3 of Rule 5 o f the Provincialization Rules, the appointing authority might have also proceede d to appoint the petitioner on the basis of the provisions of Rule 5(3) of the Provincialization Rules. However nothing adverse is discernable in the appointme nt order and in the impugned order of 19.2.2004 of the DEEO, Barpeta, there is n o discussion of the other relevant feature of the petitioner’s appointment. 10. In the context of the petitioner’s claim for payment salary, it is submitted by Mr. Pathak that the Committee constituted by the Government in p ursuant to the decision of this Court in Sudhendu Mohan Talukdar vs State of Ass am reported in 2006 (2) GLT 216, should be directed to examine the petitioner’s claim, considering all the peculiarities noticed in the appointment of the petit ioner. However Mr. R. Sinha, learned Standing Counsel points out that in this Co mmittee, there is no representative of the BTC and the Committee must not consid er the petitioner’s case, without due consultation of the BTC authorities. 11. Considering the basis on which the petitioner projects his claim for salary as an Assistant Teacher of the M.E. School and also considering that peculiar aspects of his appointment were overlooked entirely by the DEEO, Barpe ta while passing the order of 19.2.2004, I am of the considered opinion that a r e-examination of his claim for salary should be ordered to be made, by the Commi ttee constituted under this Court’s order, in Sudhendu Mohan Talukdar (Supra). 12. Accordingly the petitioner is permitted to make a representation before the Director, Education, BTC who should forward it with his comments to the Commissioner & Secretary to the Government of the Assam, Department of Eleme ntary Education who will then facilitate the Court appointed Committee, to consi der the petitioner’s claim for salary. The Committee may also seek the view of t he Director of Education, BTC for arriving at a just decision. Since the petitio ner is suffering for want of salary since the year 1996, the examination of his salary claim is ordered to be made expeditiously and preferably within a period of 3 months, from the date of receipt of the communication, from the Director of Education, BTC. 13. Before parting with the records, it must be emphasized here that in the absence of any notice, the petitioner was not obliged to present himself before the post Monoharan Screening Committee and accordingly he can’t be fault ed for his name not being enlisted amongst the list of 87 M.E. School Teachers o f Barpeta district, who were recommended for regularization by the Screening Com mittee. It must also be noted that the order of appointment of the petitioner wa s unconditional and was issued in pursuant to the approval of the E.M., BAC and the petitioner was appointed in the post sanctioned specifically in the name of the petitioner by the DEE’s order dated 1.12.1993. 14. With the above direction and observation, the case is disposed o f accordingly.