IN THE GAUHATI HIGH COURT

Page 1 of 15 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) WP(C) NO.4448/2007 1. Sri Abhiram Pegu, S/o Damodar Pegu, R/O- Nalipipar, P.O & P.S- Dhemaji, District- Dhemaji, Assam. - Versus- Petitioner 1. The State of Assam, represented by the Commissioner and Secretary to the Government of Assam, Education Department (Elementary), Dispur, Guwahati-6. 2. The Director of Elementary Education, Assam, Kahilipara, Guwahati, Assam. 3. District Elementary Education Officer, Dhemaji, Assam Respondents For the petitioner : Mr. N. Borah, Adv Mr. R. Mazumdar, Adv For the respondents Mr. P.N. Goswami, Standing Counsel, Education Department. WP(C) NO.4449/2007 1. Sri Naren Kumar Das, S/o J. Das, R/O- Nalipipar,

Page 2 of 15 - Versus- P.O & P.S- Dhemaji, District- Dhemaji, Assam. Petitioner 1. The State of Assam, represented by the Commissioner and Secretary to the Government of Assam, Education Department (Elementary), Dispur, Guwahati-6. 2. The Director of Elementary Education, Assam, Kahilipara, Guwahati, Assam. 3. District Elementary Education Officer, Dhemaji, Assam Respondents For the petitioner : Mr. N. Borah, Adv Mr. R. Mazumdar, Adv For the respondents Mr. P.N. Goswami, Standing Counsel, Education Department. BEFORE HON BLE MR. JUSTICE B.K. SHARMA Date of hearing : 05.08.2014 Date of Judgment : 05.08.2014 JUDGMENT AND ORDER (ORAL) 1. Heard Mr. R. Mazumdar, learned counsel for the petitioners and Mr. P.N. Goswami, learned Standing Counsel, Education Department. In terms of the earlier order passed, the DEEO, Dhemaji is personally present in the Court and she has also been heard. Her personal appearance is dispensed with. Both the writ

Page 3 of 15 petitions raising the same issue have been heard together and are being disposed of by this common judgment and order. 2. The two petitioners were appointed by two different orders both dated 08.06.1995 as Assistant Teachers in the school called Dhemaji Adarsha M.E School. For a ready reference, one of the appointment orders is reproduced below:- GOVT OF ASSAM OFFICE OF THE DISTRICT ELEMENTARY EDUCATION OFFICER DHEMAJI :::::::::::::::: DISTRICT O R D E R Subject to discharge without notice and assigning any reason thereof Sri/Smti Abhiram Pegu is hereby appointed temporarily to act as Asstc. Teacher/Hindi teacher at Dhemaji Adarsha M. E/MV School in the retired/expired/transferred vacant post/vide Govt order No.. Dtd.. of Robi Kr Changmai.. A. T/(sic) Lakhipathar tribal school in the Scale of pay.. 1 1 85/.. to 2395/- P. M plus other allowances as admissible under Govt. Rules. This appointment is purely temporary and terminable without notice. Sd/- District Ele. Edn Officer Dhemaji:::::::::::::district Memo No. Esstt. 6(c)/95/1 3285-90 dated Dhemaji the 08. 06. 1 995. copy forwarded for favour of information and necessary action 1. Sri/Smti Abhiram Pegu 2. The Head Master, Dhemaji Adarsha M. E/MV School 3. The block Ele. Edn Officer Dhemaji/Bordaloni/Murkang Serek/Dhakuakhana Block 4. The Treasury Officer, Dhemaji/Jonai 5. The Director of Ele Edn Assam, Kahilipara, Guwahati- 19

Page 4 of 15 6. The D. I of School Dhemaji 7. Office concerning Rite. District Ele Edn Officer/ DHEMAJI:::::: DISTRICT 3. After the appointment orders were issued, the petitioners joined the respective posts and from the materials on record, it appears that they were transferred to different schools and finally to Sengeli Pathar M.E School and Bar Chapari Tribal M.E School, respectively. 4. When the petitioners were not paid their salary, they had approached this Court by filing a writ petition being WP(C) No.2418/1996, which was disposed of by order dated 29.05.1996 directing the respondents to examine their case providing that upon such examination, if it was found that the averments made in the writ petition were correct, appropriate order for payment of salary should be issued. After the said order, the DEEO, Dhemaji, issued order towards release of salary to the petitioners. However, the petitioners were paid such salary from the year 2000 and not from their initial appointment in the year 1995. Being aggrieved, they again approached this Court by filing the writ petition being WP(C) No.345/2003, which was disposed of by order dated 05.04.2005. For a ready reference, the order is reproduced below:- None appears on behalf of the petitioner when the matter was called upon for hearing. Heard Mr. M. K. Choudhury, learned Senior Counsel, assisted by Mr. T. Islam, learned counsel for the respondents. It is submitted by Mr. Choudhury that these two writ petitioners have been receiving salaries since August, 2000.

Page 5 of 15 In view of the fact that the petitioners have been admittedly working as Assistant Teachers since 08. 06. 1 995 and persons similarly situated have been paid their salaries, it will be inequitable not to pay the salaries to the petitioners. In view of the above, the respondents are hereby directed to make payment of the arrear salaries due to the petitioners within a period of six months from today. The State respondents shall, however, remain at liberty to recover the amount(s) which may be paid in terms of directions contained hereinabove, from the persons who have appointed the petitioners, contrary to law. It is also made clear that the State respondents shall remain at liberty not to realize the work of Assistant Teachers from the writ petitioners and to terminate the petitioners service in accordance with law. (Emphasis added) 5. When the order was not implemented, the petitioners filed Contempt Petition being Contempt Cas(C) No.497/2006, on which notice was issued on 04.09.2006. It is submitted that pursuant to the contempt notice issued, the petitioners have been paid their arrear salary. The petitioners were issued with the show cause notice dated 13.11.2006 alleging appointment against nonexistent post and without selection by the Sub Divisional Selection Board as required under the Rules namely Assam Elementary Education (Provincialisation) Rules, 1 977. Prior to that, the petitioners were issued with show cause notices for their alleged indiscipline in approaching the Court by filing the writ petitions referred to above. 6. The writ petition being WP(C) No.5941/2006 that was filed against the Annexure-M show cause notice dated 13.11.2006 was disposed of by order dated 20.12.2006 holding that the writ

Page 6 of 15 petition was premature inasmuch as it was only at the stage of show cause notice and that the petitioners would get adequate opportunity to have their say in the matter. It was provided that the petitioners would respond to the notices by submitting their written explanation and thereafter the authority would decide the matter in accordance with law and taking note of all the attending facts and circumstances. 7. After the aforesaid disposal of the writ petition, the petitioners submitted their reply to the show cause notices stating therein about the issuance of the advertisement dated 19.12.1990 in response to which they had allegedly offered their candidatures. In the show cause reply they also referred to their purported appearance in the interview. However, there is no indication as to on which date they had appeared before the selection board. Be that as it may, the petitioners were thereafter issued with the orders of appointment referred to above. 8. Referring to the aforesaid facts, they also contended that their appointments being legal, cannot be terminated solely on the basis of a show cause notice and that appropriate procedure will have to be followed as contemplated in the Rules pertaining to discipline. After such submission of the show cause reply, their services having been terminated by the impugned order dated 24.05.2007, they have filed the instant writ petitions challenging the legality or validity of the said impugned order. For a ready reference, the impugned order is quoted below:-

Page 7 of 15 GOVT OF ASSAM OFFICE OF THE DIRECTOR OF ELEMENTARY EDUCATION: : : : : ASSAM, KAHILIPARA: : GUWAHATI- 19 O R D E R In pursuance of Govt. order under Memo No. EAC/COF(C). 497/2006/708/37 dtd 30. 1 2. 2006 and order passed by the Hon ble High Court dtd. 05. 04. 2005 in WP(C) No. 345/2003 and taking into all the relevant considerations, the services of the following teachers are hereby terminated as found appointed illegally against non sanctioned post. 1. Sri Abhiram Pegu, A. T of Chengalipathar M. E School under D. E. E. O. Dhemaji District. 2. Sri Naren Kumar Das, A. T of Borchapari Tribal M. E School under D. E. E. O, Dhemaji District. This comes into force with immediate effect. Sd/- Dr. B.K. Nath Director Elementary Education, Assam, Kahilipara, Guwahati- 19 Memo No. DEE. 1 1 4/2007/298 dtd. Kahilipara the 24 th May/2007 Copy to 1. The Commissioner and Secretary to the govt. of Assam, Education Department, Dispur, Guwahati- 6 for information 2. The District Elementary Education Officer, Dhemaji for information and necessary action. He is also directed to communicate the order copies of Sl No. (5) and (6) to the person concerned and receipt of the same to be acknowledged. 3. The Sr. Standing Counsel for Education Deptt, Hon ble Gauhati High Court, Guwahati- 1 for information.

Page 8 of 15 4. The Deputy Inspector of Schools, Dhemaji for information. 5. Sri Abhiram Pegu, S/O- Dambudhar Pegu, R/O- Nalipipar, P. O & P. S- Dhemaji, Dist- Dhemaji. 6. Sri Naren Kr Das, S/O- K. Das, R/O- Nalipipar, P. O- Dhemaji, Dist- Dhemaji. Director Elementary Education Assam, Kahilipara, Guwahati- 1 9. 9. The respondents have filed their counter affidavits firstly on 17.03.2009 and thereafter again on 12.08.2010 and 17.09.2013. In the said counter affidavits, the stand of the respondents is that the petitioners were appointed temporarily to act as Assistant Teacher at Dhemaji Adarsha M.E School without mentioning any Government Sanction Number in respect of the posts. It has also been stated that the appointment orders do not indicate that they were appointed pursuant to any selection conducted as per the provisions of the aforesaid Rules of 1977. In paragraph-11 of the said counter affidavit, it has been stated that the petitioners were found appointed at Sengeli Pathar M.V School in Dhemaji District against a non-existent post and that they were also not selected by the Sub Divisional Level Advisory Board, Dhemaji. 10. In the aforesaid affidavits filed by the respondents, certain select lists have been brought on record so as to contend that the said select lists are the valid select lists in which the names of the petitioners do not appear. On the other hand, the petitioners have also field an additional affidavit bringing on record another select list containing 32 names including that of the

Page 9 of 15 petitioners at Serial No.24 and 32. When the matter was last taken up, this Court desired to peruse the original copies of the appointment orders inasmuch as the typed copies which have been annexed to the writ petitions lack in Government Order Number, Date etc. Mr. R. Mazumdar, learned counsel for the petitioners have produced the copies of the appointment orders, on perusal of which it appears that in respect of the appointment order of the petitioner No.1, the space for Government Order Number, Date etc are all blank. On the other hand, in respect of the appointment order issued in favour of the petitioner No.2, the Government Order Number and date are indicated in the order. 11. Mr. R. Mazumdar, learned counsel for the petitioners submits that when this Court granted liberty to the petitioners to respond to the show cause notices, they had submitted the detail replies dealing with every aspects of the matter and thus it was incumbent on the part of the Director of Elementary Education, Assam to deal with those contentions while passing the impugned order dated 24.05.2007. Referring to the said impugned order, Mr. R. Mazumdar, learned counsel for the petitioners submits that the order being a non speaking one, is not sustainable in law. He further submits that the petitioners having been appointed against a valid sanctioned posts and they having continued in their services for about 12 years, their service could not have been terminated by a stroke of pen without following the principle of natural justice and the procedure laid down in the Assam Services (Discipline and Appeal) Rules, 1 964.

Page 10 of 15 12. Mr. P.N. Goswami, learned Standing Counsel, Education Department however, submits that the petitioners themselves having admitted about their illegal appointment as reflected in the above quoted order dated 05.04.2005 passed in WP(C) No.345/2003, cannot resile back from the said position so as to take altogether a different plea. He further submits that on a bare perusal of the appointment orders referred to above would go to show that the petitioners are the product of the illegal appointments. Referring to the provisions of the Rules for appointment, namely, the Assam Elementary Education (Provincialisation) Rules, 1 977, he submits that there is no sanctity in the select list that has been produced by the petitioners. On this, Mr. R. Mazumdar, learned counsel for the petitioners has submitted that the select lists which have been annexed to the counter affidavit filed by the respondents also do not inspire the confidence so as to term them as valid select lists. 13. I have considered the rival submissions made by the learned counsels for the parties and have also considered the entire materials on record. 14. When the petitioners had first approached this Court by filing the writ petition being CR No.2418/1996, the same was disposed of by order dated 29.05.1996 directing the respondents to examine about the veracity or otherwise of the statements made in the writ petitions and then to pass appropriate order towards entitlement or otherwise of salary by the petitioner. Pursuant thereto, orders had been passed for payment of salary. However, when their arrear salaries were not paid, they once again approached

Page 11 of 15 this Court by filing writ petition being WP(C) No.345/2003, which was disposed of by the above quoted order dated 05.04.2005. Referring to the said order, Mr. P.N. Goswami, learned Standing Counsel, Education Department submits that a clear finding having been recorded in the said order about the illegal appointments of the petitioners with the liberty to the respondents to terminate their services and the said position having attained its finality, the petitioners cannot reopen the issue by filing subsequent writ petitions. He has also submitted that the impugned order dated 24.05.2007 is only towards compliance of the said order dated 05.04.2005. However, while doing so, the petitioners were provided with adequate opportunity of being heard. 15. If we go by the aforesaid order dated 05.04.2005 passed in WP(C) No.345/2003, there was clear indication that the State respondents would be at liberty not to realize the work from the petitioners and to terminate their services in accordance with law. While Mr. R. Mazumdar, learned counsel for the petitioners has interpreted the term in accordance with law in reference to the provisions of the Assam Services (Discipline and Appeal) Rules, 1 964, Mr. P.N. Goswami, learned Standing Counsel, Education Department submits that if the petitioners were appointed against non-existent post and without following the due procedure of selection, they are not entitled to the procedure as envisaged in the said Rules. 16. In one of the counter affidavits filed by the respondents, it has been stated that although the petitioner involved in WP(C) No.4448/2007, namely Sri Abhiram Pegu was shown appointed

Page 12 of 15 against the vacancy that had fallen vacant due to retirement of one Sri Rabi Kumar Changmai, but the fact of the matter is that said Rabi Kumar Changmai had expired and against the said vacancy one Sri Tilendra Gogoi was appointed and he is still continuing in his service. If that be so, it is not understood as to how the petitioner could be appointed against the said post. This plea of the respondents in their counter affidavits has also not been denied by the petitioners. However, Mr. Mazumdar, learned counsel for the petitioners submits that since Sri Tilendra Gogoi was appointed within 16 days of expiry of Rabi Kumar Changmai, on that occasion also there was no selection. On the other hand, the petitioners having continued in their services for a long period of time, their services could not have been dispensed with by the impugned order dated 24.05.2007. 17. Mr. Mazumdar learned counsel for the petitioners has also referred to the Annexure-Q letter dated 12.05.2006 of the Director of Elementary Education to the Commissioner and Secretary to the Government of Assam in the Education Department. By the said letter, the Government was requested to pass necessary order in respect of the petitioners. In the said letter more or less narrating the aforesaid facts, it was stated that the petitioners were appointed against the retirement vacancy and thereafter they were adjusted against valid non plan post. If the petitioners were validly appointed pursuant to advertisement and selection, it is not understood as to why their further adjustment was required as indicated in the said letter dated 12.05.2006. Above apart, the appointment orders of the petitioners lack in material particulars such as father s name, address etc of the appointees. By

Page 13 of 15 such appointment orders, naming the petitioners without any material particulars, they were appointed against the school in question. There is no indication in the appointment orders about their selection etc as is done in the normal orders of appointment in which there is always indication about the selection by the Sub Divisional Level Advisory Board. Not only that, while endorsing copy of the appointment orders, only the name of the petitioners is indicated without furnishing their address etc as if they had been waiting in the office of the District Elementary Education Officer, Dhemaji to collect the copies of the appointment orders. 18. The select list that has been projected by the petitioners as the genuine select list containing their names is a photocopy of a typed sheet containing 32 names. The said sheet (purported select list) contains signatures/initials of six persons without any indication as to who are they. Such select list can be prepared by anybody. On the other hand, as per the requirement of Rule-3 of the aforesaid Rules of 1977, the Selection Board, on receipt of applications is required to scrutinize and process the application forms, the mark sheets and other necessary testimonials of the candidates for interview by the interview Committee. The Selection Board on completion of interviews by the different Interview Committees shall add marks secured by different candidates in the interview, the mark secured due to qualification of the candidates over and above the minimum qualification and the marks secured due to experience as a teacher, in the manner provided in Schedule-I and prepare a list constituency wise for each Assam Legislative Assembly Constituency in descending order of the total marks secured by a candidate out of the total marks mentioned in

Page 14 of 15 Schedule-I. Thereafter reservation etc will have to be provided towards drawing up the final select list in order of merit and then to submit the same to the Director of Elementary Education, Assam. The Director is required to authenticate and get the select list so prepared published by affixing copy thereof in the Office Notice Board of the Director of Elementary Education, Assam. The select list containing the results shall be public documents and shall be made available to a bona fide member of the public on application. 19. On perusal of the relevant materials, there is nothing to show that the due procedure was followed in preparing the purported select list, which according to the petitioners is the valid select list. As regards the other select lists enclosed to the counter affidavit filed by the respondents also, there is serious doubt about the veracity or otherwise of the same. However, in absence of any challenge to the same by the petitioners, no opinion is expressed in this regard. Needless to say that for a valid selection, it will have to be made following the recruitment Rules. If any appointment is made dehorse any selection, such appointees cannot claim that they are entitled to the protection as envisaged under Article 311 of the Constitution of India. 20. In view of the above, the petitioners cannot claim that their services could not have been dispensed with without following the procedure laid down in Rule-9 of the Assam Services (Discipline and Appeal) Rules, 1 964. In Nazira Begum vs State of Asam, reported in (2001 ) 1 SCC 1 43 under similar circumstances the Apex Court while upholding the termination order involved therein

Page 15 of 15 observed that in case of illegal appointment, procedure envisaged under rules for imposition of penalty need not be followed. 21. For all the aforesaid reasons, I do not find any merit in the writ petitions and accordingly, they are dismissed, without, however any order as to costs. JUDGE Alam