Amitava Roy, J.

(1) The successive challenge laid by the petitioner centre around her claim for arrear salary as Assistant Teacher for the period 11. 04. 2001 to 28. 02. 2005 with the D. N. D. Anchalik High School (hereafter for short as the School). Though notice of the instant proceeding was issued to the respondent No. 4 in W. P. (C) 1218/2009 by registered post with A/d, he has chosen to abstain therefrom. In W. P. (C) 4129/2007, however, he has filed his counter.

(2) I have heard Ms. N. Saikia, learned Counsel for the petitioner and Mr. U. K. Goswami, learned Standing Counsel, Education Department for the official respondents.

(3) The petitioner has pleaded that following a selection initiated by an advertisement dated 28. 02. 1996, she was appointed as Graduate Teacher in Sanskrit in the School vide order dated 31. 03. 2001 to that effect passed by the Inspector of Schools, KDC, Guwahati. Though in terms of the advertisement, she was entitled to pay in the scale of Rs. 1,375-3,375/- per month, the order of appointment mentioned to be fixed salary of Rs. 2500/ -. According to the petitioner, however, the above notwithstanding, she had joined the services on 11. 04. 2001 and continued to render her service without any break. As her repeated appeals to the authorities concerned along with others similarly situated for the pay scale failed to evoke any response, she together with them instituted WP (C) 1805/2002 which was disposed of on 28. 06. 2005 directing the departmental authorities to release their arrear as well as current salary in terms of the scale of pay in the advertisement dated 28. 12. 1996.

(4) The respondent No. 4, the Headmaster of the School, however, while submitting the proposal for release of her arrear salary as ordered by this Court, mentioned about her unauthorised absence for a period including the intervening summer vacation of 69 days and also proposed to deduct her salary therefor amounting to Rs. 55,736/ -. The period of absence was indicated to be from 11. 04. 2001 to 28. 02. 2005. According to the petitioner, during that period though she duly rendered her services, she had not been allowed to sign the attendance registers. The proposed deduction was sought to be effected without either putting her on prior notice or affording her any opportunity of hearing. The Headmaster of the School also submitted a report dated 22. 11. 2006 to the Inspector of Schools, KDC, Guwahati, about the petitioners unauthorised absence as above. This was inspite of a certificate issued by him on 02. 10. 2004 to the effect that she had been regularly attending her duties without any break on and from 11. 04. 2001. Situated thus the petitioner approached this Court with the aforementioned WP (C) 4921/2007 praying for an appropriate writ or direction for disposal of her representation dated 05. 04. 2007 submitted in the meantime by her before the Commissioner and Secretary to the Government of Assam, Education (S) Department, ventilating her grievances against the proposed deduction and also for payment of her arrear salary as due to her in law.

(5) This Court issued notice of motion on 17. 08. 2007 whereafter the aforementioned departmental authority after affording a personal hearing to her and on verification of all records requisitioned from the other State authorities as well as the Headmaster of the School by order dated 10. 12. 2007 directed the Director of Secondary Education to release her arrear salary within a period of one month by negating the allegation of absence from duty. In compliance thereof the Deputy Director of Secondary Education, Assam, vide his letter dated 09. 01. 2008 required the Inspector of School, KDC, Guwahati, who in return by his letter dated 11. 01. 2008 required the Headmaster of the School to submit the proposal for release of her arrear salary for the period 11. 04. 2001 to 28. 02. 2005. As the Headmaster of the School did not comply with the said direction, the aforementioned State authority by his letter dated 12. 02. 2008 reiterated the requirement. The Commissioner and Secretary to the Education Department by his letter dated 29. 02. 2008, in view of the delay, instructed the Inspector of Schools, KDC, Guwahati, to ask the Headmaster of the School to comply with the orders passed within a time frame to be fixed. The Inspector of Schools, KDC, Guwahati, thereafter vide his letter dated 12. 03. 2008 addressed to the Director of Secondary Education, Assam, forwarded the proposal for release of Rs. 1,18,754/- as the petitioners arrear pay for the period 11. 04. 2001 to 28. 02. 2005 as submitted by the Headmaster of the School. The Director of Secondary Education, Assam, in turn by his letter dated 19. 03. 2008 forwarded the same to the Commissioner and Secretary to the Government of Assam, Education (S) Department for necessary approval for disbursement of the said amount. The sanction thereof by the Government was also communicated by the letter dated 02. 04. 2008. The letter in clear terms disclose that an amount of Rs. 1,18,754/- had been sanctioned by way of arrear salary of the petitioner for the period 11. 04. 2001 to 28. 02. 2005. As inspite of the above, the amount earmarked and sanctioned was not defrayed to the petitioner, she filed a Misc. application registered as M. C. 791/2008 in WP (C) 4129/2007 praying for an appropriate direction.

(6) In course of the hearing of the said application by referring to the communications No. PMA (S)79/2008/89 dated 26. 03. 2008 of the Under Secretary to the Government of Assam, Education (S) Department, and the order contained in Memo No. SEB/allot/30/2007/13 dated 28. 03. 2008 of the Director of Secondary Education, Assam, the learned Standing Counsel, Education Department, expressed reservation regarding the petitioners entitlement for arrear salary for the aforementioned period, if absent from duty. The said communication and the order while indicating the budget allotment for an amount of Rs. 1,18,754/- for payment of arrear salary of the petitioner for the period 11. 04. 2001 to 28. 02. 2005 and the revalidation of sanction therefor, made the disbursement subject to the condition inter alia that the Drawing and Disbursement Officer as well as the authority forwarding the proposal would be held personally responsible for any excess/over/fraudulent drawal of the amount or drawal for any period of unauthorised absence. The Headmaster of the School was also directed in clear terms to ensure that no salary for the period of absence of the petitioner be paid.

(7) This Court after hearing the parties and on a conjoint reading of the order dated 10. 12. 2007 of the Commissioner and Secretary to the Education (S) Department, as well as the communication dated 26. 03. 2008 and order dated 28. 03. 2008 required the former to resolve the controversy and take an appropriate decision so that the amount payable to the petitioner was remitted to her without further delay. By this order dated 29. 08. 2008, Misc. Case 791/2008 as aforementioned was disposed of. By the letter dated 07. 02. 2009 (Annexure-10 the writ petition No. WP (C) 1218/2009), this authority has rejected the petitioners claim for arrear salary for the aforementioned period for having remained absent unauthorisedly during that time. This decision now is under challenge in WP (C) 1218/2009.

(8) As the decision contained in the letter dated 07. 02. 2009 disclosed about an enquiry and a report forming the basis thereof, a copy of the same (enquiry report) was furnished to her learned counsel. The petitioner in her additional affidavit filed in WP (C) 4129/2007 has questioned the validity of the enquiry being based on incorrect statements and irreconcilable statements of the Headmaster of the School militating against each other. According to her, the Headmaster of the School on one hand did not allow her to sign the attendance registers and on the other hand has imputed her unauthorised absence. The credibility of the enquiry report has been questioned by the petitioner contending that the same does not deal with anomalous and incongruous stands of the Headmaster.

(9) The State respondents have not filed their affidavits in either of the proceedings. The respondent No. 4 in WP (C) 4921/2007, the Headmaster of the School in his counter therein has contended that the petitioner had been unauthorisedly absent from duty from 11. 04. 2001 to September, 2005 and was thus not entitled for any salary for that period totalling to 678 days. While admitting that in response to the letter dated 07. 10. 2004 of the Inspector of Schools, KDC, Guwahati, requiring him to submit the arrear bill and also to indicate the current requirement of fund to meet the same, he had issued the certificate dated 12. 10. 2004 in favour of the petitioner, the answering respondent admitted his mistake of not mentioning about her unauthorised absence from duty. He however maintained that in his letter dated 24. 11. 2009 to the Inspector of Schools, KDC, Guwahati, he did refer this fact and it was for this reason that out of the amount of Rs. 1,18,124/- a sum of Rs. 54,336/- was released to her in the month of March, 2007 after necessary deduction for the period 11. 04. 2001 to February, 2005. He also sought to justify the non-release of the petitioners arrear pay amounting to Rs. 1,18,754/- by referring to the communication dated 26. 03. 2008 and 28. 03. 2008 seeking to ensure that salary to the petitioner for the period of her absence is not remitted to her.

(10) The learned counsel for the petitioner has persuasively argued that the Commissioner and Secretary to the Government of Assam, Education (S) Department, Government of Assam, having on a threadbare consideration of all relevant materials decided in favour of the petitioners claim for arrear salary of Rs. 1,18,174/- for the period 11. 04. 2001 to 28. 02. 2005 by rejecting the plea of her unauthorised absence therefor, the impugned decisions to the contrary are per se illegal, arbitrary, unfair and unjust and are liable to be interfered with. As apparently the decision is purportedly based on an enquiry not informed with the relevant records and facts, it is non-est in law, she urged. Mrs. Saikia has argued that as the enquiry report is founded on inconsistent feedbacks from the Headmaster of the School, it is ipso facto untrustworthy and is thus in law inoperative null and void. The learned counsel, on instructions has urged extraneous and collateral considerations as factors inducing the vacillating stands of the Headmaster of the School rendering the impugned action based thereon illegal and nonexistent in law.

(11) Mr. Goswami has argued in reply that the exercise undertaken had been in deference to the directions contained in the order dated 29. 08. 2008 of this Court in M. C 791/2008 in WP (C) 4129/2007 and it being evident from the contemporaneous records that the petitioner had been unauthorisedly absent for the period from 11. 04. 2001 to 28. 02. 2005, the impugned decision is unassailable in law and on facts.

(12) The pleadings available and the arguments advanced have been assessed. The sequence of events as recited hereinabove is borne out by the records. The issuance of the certificate by the Headmaster of the School on 12. 10. 2004 to the effect that the petitioner had joined the School on 11. 04. 2001 and had been rendering her services thereafter without any break per se does take care of a substantive segment of the period involved i. e. 11. 04. 2001 to 28. 02. 2005. The Commissioner and Secretary to the Government of Assam Education (S) Department as his order dated 10. 12. 2007 would reveal on a due examination of the relevant aspects did not accept the allegation of the petitioners absence from duty and directed the Director of Secondary Education to release her arrear salary. This order was evidently in compliance of the one dated 25. 06. 2005 of this Court in WP (C) 1805/2002. Thereby this Court had upheld the petitioners claim for salary on the basis of the pay scale as mentioned in the advertisement dated 26. 12. 1996 and had directed the concerned departmental authorities to release payment both arrears and current.

(13) The petitioners challenge in WP (C) 4921/2007 as noticed hereinabove is against the proposed deduction from her dues on account of her unauthorised absence from duty for the period mentioned hereinabove. The documents annexed to the writ petition in WP (C) 1218/2009 embody progressive steps thereafter following the aforesaid order dated 10. 12. 2007 by the departmental authorities towards the release of the amount of Rs. 1,18,754/- by way of arrear salary for this period. The communication dated 26. 03. 2008 and the order dated 28. 03. 2008, however, bear out the restraint in the release of the petitioners arrear salary of Rs. 1,18,754/- though otherwise sanctioned in case she had remained unauthorisedly absent during 11. 04. 2001 to 28. 02. 2005. This, noticeably had been inspite of the order dated 10. 12. 2007 of the Commissioner and Secretary to the Government of Assam, Education (S) Department, hereinabove. This Court therefore while disposing of Misc. Case No. 791/2008 required the said authority to resolve the controversy in the background of the renewed reservation expressed in the communication dated 26. 03. 2008 and the order dated 28. 03. 2008 and to take an appropriate decision so that the amount payable to the petitioner is released to her without delay. By this order, the Court intended the Commissioner and Secretary to the Government of Assam, Education (S) Department, to re-examine the aspect of alleged unauthorised absence from duty by the petitioner during the period involved. The impugned letter dated 07. 02. 2009 disclosed that an enquiry had been conducted by the Joint Director of Secondary Education, Assam, in this regard and a report was submitted by him endorsing the above charge against the petitioner. The decision as the letter reveals was thus taken on a scrutiny of the relevant records and on a consideration of the findings in the enquiry declining the petitioners claim for arrear salary, due to her unauthorised absence for a period of 678 days i. e. 11. 04. 2001 to 28. 02. 2005.

(14) The above notwithstanding the petitioners plea of the wavering stand of the Headmaster of the School ought not to be lightly brushed aside. The averments in his counter in WP (C) 4129/2007 summarized hereinabove, indicate that at the earliest point of time while submitting the proposal for the arrear salary of the petitioner during the same period, he omitted to mention about the petitioners unauthorised absence. It was much later thereafter that he did so and sought to deduct her dues for that period on that count. The petitioners plea that she had not been allowed by him to sign the attendance registers also has its bearing. The Enquiry report produced in course of the arguments do not in very categorical terms deal with these aspects which otherwise have a definitive bearing on the conclusion qua the issue of alleged unauthorised absence of the petitioner from duty. The impugned order also per se does not disclose any reconciliation of these facets of the stand off more particularly in the backdrop of the order dated 10. 12. 2007 of the Commissioner and Secretary to the Government of Assam, Education (S) Department, holding in favour of the petitioners claim of continuous service without any break during the relevant period.

(15) In all in the opinion of this Court, the enquiry intended by it to be undertaken by the aforesaid authority vide its order dated 28. 02. 2008 passed in Misc. Case 791/2008 does not seem to have been conducted in the manner as desired. The petitioner has contended as well denial of full opportunities of presenting her case in the enquiry. The conflicting stands of the Headmaster of the School are apparent on the face of the record. The State respondents have abstained from filing their affidavit in both the proceedings. To resolve the protracted issue, a probe into the contemporaneous official records and the associated facts is indispensable. This Court in the exercise of its extra ordinary jurisdiction is neither equipped nor inclined to delve into these contentious facts.

(16) On a totality of the considerations as above, this Court in its comprehension considers it appropriate that the matter be remitted to the Commissioner and Secretary to the Government of Assam, Education (S) Department, for re-enacting the exercise as ordered earlier in M. C. 791/2008 after due opportunity of hearing to the petitioner. Ordered accordingly. As the order dated 07. 02. 2009, in the above contextual perspective does not inspire the confidence of this Court, the same is interfered with. This Court parts with the expectation that the exercise as ordered would be administered being informed with fairness and transparency ensuring a quietus to the lingering controversy once for all. As the petitioner waits in expectation, the process as directed should be completed within a period of one month from the date of receipt of the certified copy of this order.

The petitions are partly allowed. No costs.