IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) Writ Appeal No. 79 of 2015 In WP(C) No.

IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) Writ Appeal No. 79 of 2015 In WP(C) No.5048 of 2012 Heramba Kumar Saikia & 50 Ors. The State of Assam & 7 Ors. Writ Appeal No. 80 of 2015 In WP(C) No.5144 of 2012 Hiranya Kumar Saharia & 56 Ors. The State of Assam & 7 Ors. Writ Appeal No. 81 of 2015 In WP(C) No.1720 of 2014 Khirendra Sarma & 47 Ors. The State of Assam & 5 Ors. Writ Appeal No. 147 of 2015 In WP(C) No.2265 of 2013 Tarun Kumar Sarma The State of Assam & 6 Ors. Writ Appeal No. 148 of 2015 In WP(C) No.2132 of 2013 Kangkan Jyoti Das The State of Assam & 6 Ors. Writ Appeal No. 149 of 2015 In WP(C) No.5051 of 2012 Balendra Sarmah & 28 Ors. The State of Assam & 6 Ors. Writ Appeal No. 150 of 2015 In WP(C) No.2133 of 2013 Imdad Ali The State of Assam & 6 Ors. Writ Appellants. Respondents. Writ Appellants....Respondents. Writ Appellants....Respondents. Writ Appellant. Respondents. Writ Appellant.. Respondents. Writ Appellants. Respondents. Writ Appellant. Respondents. WA Nos.79, 80, 81, 147, 148, 149, Page 1 of 23

Writ Appeal No. 151 of 2015 In WP(C) No.2221 of 2013 Maya Sarkar The State of Assam & 6 Ors. Writ Appeal No. 152 of 2015 In WP(C) No.5050 of 2015 Abdul Karim & 32 Ors. The State of Assam & 6 Ors. Writ Appeal No. 155 of 2015 In WP(C) No.2217 of 2013 Smti Anima Kalita The State of Assam & 6 Ors. Writ Appeal No. 156 of 2015 In WP(C) No.2135 of 2013 Hiranya Saikia The State of Assam & 6 Ors. Writ Appeal No. 276 of 2016 In WP(C) No.699 of 2014 Sri Abhay Charan Sarmah & 15 Ors. The State of Assam & 5 Ors. Writ Appellant. Respondents. Writ Appellants. Respondents. Writ Appellant. Respondents. Writ Appellant. Respondents. Writ Appellants. Respondents. BEFORE HON BLE MR. JUSTICE HRISHIKESH ROY HON BLE MR. JUSTICE NELSON SAILO For the Appellants : Mr. D Das, Senior Advocate in WA No.79 of 2015 Mr.B Chetri, Advocate in WA Nos. 80 and 81 of 2015 Mr.G Alam, Advocate in WA Nos. 147, 148, 149, 150, 151, 152, 155 and 156 of 2015 Md.Gias Uddin, Advocate in WA No. 276 of 2016 For Respondents : Mr. PN Goswami, Standing Counsel, Elementary Education for Respondent Nos. 1 to 5 Mr. M Nath, Advocate for Chairman, Sub Divisional Level Section Board (Respondent No. 6) WA Nos.79, 80, 81, 147, 148, 149, Page 2 of 23

Date of hearing : 7.2.2017, 8.2.2017, 9.2.2017 and 14.2.2017 Date of judgment : 23.02.2017 [Nelson Sailo, J.] JUDGEMENT AND ORDER(CAV) These batches of writ appeals (12 in all) has been preferred against the common judgment and order rendered by the learned Single Judge on 23.9.14 whereby altogether 24 writ petitions which were all taken up together were dismissed. 2. The facts in brief as projected by the writ appellants/writ petitioners (hereinafter referred to as the appellants) is that Employment Notice dated 28.12.1996 was issued by the Director of Elementary Education, Assam inviting application from interested candidates for 7500 vacant posts of Assistant Teachers of provincialized Middle/Middle English Madrassa/Upper Basic/Lower Basic School/Lower Primary School of various districts of Assam. Thereafter, in exercise of the powers conferred under Rule 3(v) of the Assam Elementary Education (Provincialisaton) Amendment Rules, 1997, the Sub-Divisional Level Selection Board (herein after referred to the Selection Board) was constituted by the Governor comprising of 17 members including the Chairman, vide Notification dated 30.4.1997. 3. The appellants accordingly responded to the Employment Notice against the post of Assistant Teacher of Lower Primary School for the district of Darrang and appeared before the Selection Board on various dates between May to June, 1997 and upon being selected, they were appointed by the Deputy Inspector of School by appointment orders which were either dated 20.11.1999 or 4.12.1999 on temporary basis as stipendiary teacher on a monthly stipend of Rs.1800/-. It was also indicated that a regular pay scale as prescribed by the revision of pay WA Nos.79, 80, 81, 147, 148, 149, Page 3 of 23

Rule, 1998 would be given on completion of 1 year Basic Training. Further, it was also indicated that the appointment was made against the post created originally vide Govt. Letter under Memo No. PMA-158/94 dated 18.1.1995. 4. In terms of the appointment order, the appellants joined their respective posts and thereafter vide order under Memo No. SB/D/3/45-182 dated 17.1.2002 issued by the Block Elementary Education Officer, Sipajhar, Darrang, the petitioners were released from their duties on 17.1.2002 to enable them to join their respective training centres as was indicated in their appointment orders. On completion of such training, the appellants were issued their respective Primary Teachers Training Course Certificate by the District Institute of Education and Training, Darrang, Dalgaon. 5. While the appellants were working in their respective schools, an allegation was made that the appointments made by the authority concerned on 20.11.1999 and 4.12.1999 were illegal as the same was made without selection and approval of the Selection Board. As a result, an enquiry was conducted by Sri TC Kataki, EAC against the alleged illegal appointments of LP School Teachers as directed by the Deputy Commissioner, Darrang. 6. The appellants produced their relevant documents before the Enquiry Officer to establish their claim that they were duly selected and appointed by the Selection Board after due process and approval. However, the Enquiry Report that was submitted on 15.7.2003 to the District Magistrate by the Enquiry Officer reflected that no records or documents etc. were made available from the Deputy Inspector of Schools, Mangaldoi and that the appointments made on 20.11.1999 and 4.12.1999 were all illegal and irregular as these appointments were made without the selection and approval of the Selection Board and it was recommended that the District Elementary Education Officer/Deputy Inspector of Schools be directed to take immediate steps for suspension/ cancellation of the appointment of the L.P. Teachers as per provision of law. WA Nos.79, 80, 81, 147, 148, 149, Page 4 of 23

7. Pursuant to the Enquiry Report that was submitted, the Secretary to the Government of Assam, Education Department vide his communication under Memo No. A(I)E/1023/2003/24 dated 22.1.2004 instructed the Director of Elementary Education, Assam to cancel the illegal appointments of teachers numbering 302 in Mangaldoi Sub-Division after affording them an opportunity of personal hearing. It was also mentioned that the preparation of pay bill arrear and salaries in respect of these teachers be stopped forthwith. 8. The Director of Elementary Education upon receipt of the aforesaid letter dated 22.1.2004 issued by the Secretary to the Govt. of Assam, Education Department instructed the District Elementary Education Officer, Darrang to cancel the illegal appointments of the teachers after affording them an opportunity of hearing in terms of the instruction given by the Government. 9. Prior to the above decision of the State Government, certain persons who were aggrieved with the notice asking them to appear before their Enquiry Officer along with their papers following the allegation of illegal appointments made against them approached this Court by filing W.P.(C) No.6631/2003. However, during the pendency of the writ petition, the Magisterial Enquiry that was challenged was concluded with a report that the appointments that were made on 20.11.1999 and 4.12.1999 were illegal and irregular as it was without selection and approval of the Selection Board. This Court while disposing of the writ petition vide order dated 14.2.2008 after expressing its displeasure on the Enquiry Report being misplaced, directed the Deputy Commissioner, Darrang, Mangaldoi to make available a copy of the said Report to the Commissioner and Secretary, Government of Assam, Elementary Education Department. The Commissioner and Secretary, Government of Assam, Elementary Education Department thereafter issued instruction to the Director of Elementary Education, Assam to serve a Show Cause Notice upon the teachers that were appointed on 20.11.1999 and 4.12.1999 and further instructed that on failure to Show Cause and proof that they were genuinely appointed, the said teachers should be discharged from their services with the approval of the Government. WA Nos.79, 80, 81, 147, 148, 149, Page 5 of 23

Such communication was made vide Memo No. EIC/WP(C)6631/2003/1084/202 dated 10.6.2008. 10. Upon receiving the Show Cause Notice, the appellants submitted their reply and personal hearing was conducted for the 302 teachers of the Darrang Disrict who were identified as illegal teachers after the enquiry was held by the Deputy Commissioner, Darrang in the year 2003. The said enquiry was conducted by Smt. Esther Kathar who submitted her report on 17.6.2010. The said Enquiry Report dated 17.6.2010 was then submitted to the Government by the Director of Elementary Education. 11. As the appellants in the meantime had not received their salaries and in some cases, despite completion of the Basic Training Course and having already enjoyed the time scale of pay, the pay of some of the teachers were reverted to the Stipendiary status and as a result, the aggrieved appellants filed WP(C) Nos. 1028, 1029 and 4081 of 2009 seeking payment of their salaries as well as for restoration of the time scale of pay in case of those teachers whose pay scales were reverted back as stipendiary teachers. 12. The said writ petition was disposed of by a common judgment and order dated 29.2.2012 whereby, the State respondents were directed to conclude the enquiry as regard the validity of the appointments of the petitioners therein within a period of three months from the date of order after following due process of law and after conclusion of the enquiry, the respondents should inform them the status of their appointment. If it was found that they were validly appointed by the authorities, they would be entitled to get such benefits of their pay from the date they were deprived of. On the other hand, if it was found that the petitioners were illegally appointed, the State respondents would be at liberty to take necessary action in accordance with law. 13. The Director of Elementary Education vide his communication dated 21.8.2012 and 7.9.2012 had instructed the District Elementary Education Officer, Darrang and Deputy Inspector of Schools, Mangaldoi to stop the payment of WA Nos.79, 80, 81, 147, 148, 149, Page 6 of 23

salaries, arrear salaries in respect of those teachers who were appointed on 20.11.1999 and 4.12.1999. Following the aforesaid communication, the State Government through the Commissioner and Secretary to the Govt. of Assam, Elementary Education Department vide communication dated 8.11.2012 informed the Director of Elementary Education to terminate the services of the 285 teachers out of 302 teachers mentioned in the Enquiry Report of the Deputy Commissioner, Darrang and Director of Elementary Education, Assam immediately, barring 16 appointees whose appointments were made on compassionate basis. Pursuant to the aforesaid communication, the Director of Elementary Education Department terminated the services of 285 LP schools vide order dated 9.10.2012. The order of termination dated 9.10.2012 was thus challenged by the appellants through their respective writ petitions. 14. The State respondents by filing their affidavit-in-opposition contend that Rule 3 of the Assam Elementary Education (Provincilization) Rules 1977 (hereinafter referred to as the Provincialisation Rules of 1977) prescribed the mode of recruitment to the posts of Assistant Teachers in LP Schools and according to which, a detailed process of selection is prescribed besides prescribing the eligibility criteria for the candidates to be selected by a Selection Board. That de-hors the statutory prescription under Rule 3 of the Provincialisation Rules of 1977, the then i/c of Deputy Inspector of Schools, Mangaldoi in the year 1999, appointed altogether 302 teachers vide appointment orders which were dated 20.11.1999 and 4.12.1999. Such appointments were not only made without any selection but the approval of the Selection Board was not obtained and in fact the appointments were made against non-existent posts. The Magisterial Enquiry Report dated 15.7.2003 was a testimony to the illegal appointments. 15. The contention of the State in the counter affidavit was also to the effect that a Show Cause Notice was individually issued to the appellants and only after giving them an opportunity of being heard personally their services were WA Nos.79, 80, 81, 147, 148, 149, Page 7 of 23

terminated on 9.10.2012. Therefore, the State respondents maintained that there was no infirmity in their termination or the process otherwise. 16. The respondent No.8 who was the Chairman of the Selection Board in Darrang district during the relevant time, on being impleaded as a party respondent also filed his affidavit on 3.6.2013 maintaining that as per his knowledge, all the candidates who were appointed on 20.11.1999 and 4.12.1999 were duly selected and approved by the Selection Board. In his affidavit, he also annexed the affidavits sworn by 8 of the members of the Selection Board which was to the effect that the selection that was made at the relevant time was proper and had the approval of the Selection Board. The respondent No.8 subsequently also filed an additional affidavit on 28.2.2014 incorporating a copy of the Select List prepared by the Selection Committee dated 26.10.1999 containing 164 selected candidates for appointment as LP School Teachers. 17. The learned Single Judge upon considering the materials on record and the submissions advanced by the petitioners in their respective writ petition took up all the case together and vide a common judgment and order dated 23.9.2014 dismissed all the writ petitions. Being aggrieved, the appellants are again before this Court in appeal. 18. The appellants through their respective writ appeals maintain that the posts of LP School Teachers was duly floated vide Employment Notice dated 28.12.1996 and thereafter, a Selection Board was constituted vide Notification dated 30.4.1997. Such being the case, there was no infirmity in the appointment of the appellants. The appellants also contend that the Enquiry Report dated 15.7.2003 and the subsequent one dated 17.6.2010 were not furnished to them and so they were deprived of the opportunity to defend and present their case. On the other hand, it was submitted that had the Enquiry Report been given to them, they could have had the chance to show that they were in fact appointed with due process of law. That apart, the appellants contend that the second Enquiry Report of 17.6.2010 was hardly an enquiry report in as much as the WA Nos.79, 80, 81, 147, 148, 149, Page 8 of 23

same was made by relying upon the earlier Magisterial Enquiry dated 15.7.2003. The appellants maintain that they have been serving for long 13 years and in fact the services of many of them had been confirmed in the meantime and therefore, the order of termination at this stage was bad in law and unsustainable. 19. We have heard the learned counsels appearing for the respective rival parties. Mr. D. Das, learned Senior counsel appears for the appellants in W.A. No.79 of 2015 and Mr. B. Chetri, learned counsel appears for the appellants in WA Nos. 80 & 81 of 2015. Mr. G. Alam appears for the appellants in WA Nos.147, 148, 150, 151, 152, 155 and 156 of 2015 whereas, Md. Gias Uddin appears for the writ appellant in WA No. 276 of 2016. The Department of Elementary Education is represented by their Standing Counsel Mr. PN Goswami, and the respondent No. 8 (Chairman of the Selection Board) is represented by the learned counsel Mr. M. Nath. 20. Mr. D Das, learned Senior counsel submits that the impugned judgment and order dated 23.9.2014 passed by the learned Single Judge is erroneous as much importance was given on the two Enquiry Reports dated 15.7.2003 and 17.6.2010 while copy of the same were not supplied to the appellants so as to enable them to defend themselves. Therefore, there being a clear breach of the principles of natural justice and the order of termination being based on the said Enquiry Reports, the impugned termination order is unsustainable. He further submits that the selection of the appellants to the post in question cannot be said to be vitiated in as much as the posts were duly advertised through the Employment Notice dated 28.12.1996 and a Sub-Divisional Level Selection Board was constituted as per relevant rules. However, he admits to the fact that the appointment of the appellants were not preceded by the approval of the Director of Elementary Education but nevertheless it could be well implied that the Director approved the selection and the appointments in view of the fact that vide order dated 17.1.2002, the Director released the appellants from their duty WA Nos.79, 80, 81, 147, 148, 149, Page 9 of 23

to enable them join the Basic Training course as was indicated in their respective appointment orders. 21. The Senior counsel further submits that assuming for argument s sake that the selection and appointments were not preceded by strict compliance of the relevant Rules, they can only be termed as irregular but not illegal. He therefore contends that while illegal appointments would be fatal but in case of irregular appointments, the same could be cured by the authorities at any stage. 22. In the above context by referring to the additional affidavit filed by the respondent No. 8 on 28.2.2014 Mr. D Das, the Ld.Senior counsel submits that the Meeting Minutes dated 26.10.1999 annexed to the said affidavit contains the names of about 164 candidates who were selected for appointment to the posts of LP School Teachers under the Mangaldoi Sub-Division. He submits that the names of the appellants who filed WA No.79 of 2015 arising out of WP(C) No. 5048 of 2012 along with 112 other candidates are amongst the names in the Select List. He further submits that from the 302 candidates appointed, 164 candidates were recommended by the Selection Board while 17 candidates were compassionate appointees. He therefore argues that although there might have been some irregularities in the appointment of teachers other than the 164 candidates and the 17 compassionate appointees, for such reason the candidates whose names otherwise appear in the Select List, could not have been penalized. The Senior counsel therefore submits that termination of service ought to have been confined only to those who were appointed without selection. The State respondents are therefore not justified in terminating all the 285 Teachers en mass vide order dated 9.10.2012 while they could just separate the chaff from the grain. 23. To further elucidate his argument Mr.D.Das, the Ld. Senior counsel relies upon the following decisions of the hon ble Apex Court:- (i) Mahipal Singh Tomar Vs. State of Uttar Pradesh & Ors. (2013)16 SCC 771. WA Nos.79, 80, 81, 147, 148, 149, Page 10 of 23

(ii) Dulu Devi Vs. State of Assam and Ors. (2016) 1 SCC 622. (iii) Nazira Begum Laskar & Ors. Vs. State of Assam & Ors. (2001)1 SCC 143. (iv) State of Manipur & Ors. Vs. Y Token Singh & Ors. (2007) 5 SCC 65. (v) State of Karnataka & Ors. Vs. ML Kesari and Ors. (2010) 9 SCC 247. 24. By relying upon the case of Mahipal Sigh Tomar (supra) the counsel submits that non-supply of the enquiry report clearly infringes the rights of the appellant in as much as the principles of natural justice are violated. He submits that the consequential action taken by the State authorities in terminating their services without a copy of the enquiry report amounts to condemning the appellants unheard. He further submits that even if there was manipulation and irregularity committed in the selection process, the court must make an endeavour to segregate the tainted from the non-tainted candidates. 25. Referring to the case of Dulu Devi (Supra) where the terminated employee was given the benefit of continuity in service by the Apex Court considering the 25 long years of service already rendered, the appellant s counsel submits that these litigants have similarly rendered over 13 years of service as LP school teachers and in fact, in case of some teachers, they have since been confirmed in service and therefore the appellants cannot be terminated from their service at this stage now in the manner it has been done. 26. Mr. D. Das further refers to the case of Nazira Begum Laskar (supra) where the appellants and other teachers therein claimed to have been appointed as Assistant Teachers of different Primary Schools in the State of Assam but however, it transpired that they were appointed in contravention to the Provincialisation Act of 1974 and the Recruitment Rules concerned, resulting in their termination being upheld by the hon ble Apex Court. However in the case of the present appellants Mr. D Das submits, they are on a much different footing in as much as the Provincialization Act of 1974 and the Provincialization WA Nos.79, 80, 81, 147, 148, 149, Page 11 of 23

Rules of 1977 were adhered to as can be appreciated from the constitution of the Selection Board by the State Government who recommended their appointment. Therefore, termination of their service under such circumstance was not at all justified. 27. Comparing the case of the appellants with that of the terminated employees who were the respondents in the case of Y. Token Singh (supra) Mr. D. Das, Ld. Senior counsel submits that the hon ble Apex Court only negated the appointment of the respondents as Field Staffs in the Revenue department as it was not only secured by means of forgery but also without following the due process of selection through open advertisement. The Ld. Senior counsel therefore submits that the present appellants on the other hand were appointed after being selected by the constituted Selection Board and therefore the impugned order of termination from service cannot be sustained. 28. Mr. D. Das, the learned Senior counsel by referring to the last authority relied by him viz; ML Kesari (supra) submits that an exception was made to the law enunciated in the case of Uma Devi (3), reported in (2006) 4 SCC 1 by the hon ble Apex Court by holding that if the appointment of the employee is only irregular and not illegal and since such employee has been rendering long years of service, their appointments should not be disturbed. He therefore submits that even if there was some irregularity found in the appointment process in the absence of any illegality the appellants could not have been terminated from their services. 29. Mr. G. Alam ld. Counsel appearing for the appellants in WA Nos.147, 148, 150, 151, 152, 155 and 156 of 2015 adopts the argument of the learned Senior counsel Mr. D. Das but he however submits that the Select List annexed by the respondent No.8 in his additional affidavit comprising of 164 names, do not significantly reflect the names of these appellants. 30. Similar is the submission of Md. Gias Uddin, the ld. Counsel who appears for the appellants in the WA No. 276 of 2016. He further submits that the WA Nos.79, 80, 81, 147, 148, 149, Page 12 of 23

appellants were neither sent for training nor their service regularised. They were also deprived of their salary by the respondent authority since 2011, even before they were terminated. 31. Submitting on behalf of the Elementary Education Department Mr. P.N. Goswami as the Standing Counsel however submits that the Provincialisation Rules of 1977 was clearly flouted and given a go by in as much as there was no Select List prepared as per Rules and the approval of the Director on the alleged Select List was not obtained. Moreover the place of posting mentioned in the Select List was most illogical and clearly reflect the non-bonafide exercise by the Selection Board. 32. The Standing Counsel attempts to draw an analogy between the enquiry proceedings carried out against the appellants and the one contemplated under Article 311(2) of the Constitution of India. He submits that the present enquiry cannot be equated with that of a proceeding under Article 311(2) which provides that no person shall be dismissed or reduced in rank except after an enquiry with due intimation of the charges and after giving the delinquent employee, a reasonable opportunity of being heard in respect of the charges. He submits that the present case however pertains to large scale illegal appointments and against a non-sanctioned post which simply cannot withstand the test of law. The appellants according to the departmental lawyer were neither selected by the Selection Board with a due preparation of a merit list nor the approval of the Director of Elementary Education obtained as is prescribed by the Provincialisation Rules of 1977. He goes on to submit that non-furnishing of the Enquiry Report cannot be fatal in every case when the employee concerned has failed to show that prejudice has been caused by such action/inaction. He contends that the termination order was in fact preceded by a Show Cause Notice and the Enquiry Report having been brought on record through the State s Counter Affidavit, the appellants were at liberty to challenge the same even at a later stage but they having failed to do so are but estopped from raising such grievance, in a routine fashion. WA Nos.79, 80, 81, 147, 148, 149, Page 13 of 23

33. In conclusion, Mr. PN. Goswami submits that relevant rules were not followed in the process of the appointment of the appellants. No selection process was undertaken and the select list which was required to be prepared by the Selection Board was nowhere published. Hence coupled with the nonauthentication and non-approval of the Director of Elementary Education to the so called selection, the appointment of the appellants being illegal, could not have been sustained and therefore, they were rightly terminated from service. He thus submits that no interference is warranted with the impugned judgment and order rendered by the learned Single Judge. 34. To substantiate his arguments Mr. PN Goswami relies upon the following judicial pronouncements:- (i) Managing Director, ECIL, Hyderabad & Ors. Vs. B. Karunakar & Ors. (1993)4 SCC 727 (ii) State Bank of Patialia and Ors. Vs. SK Sharma (1996)3 SCC 364 (iii) M.C Mehta Vs. Union of India & Ors. (1999) 6 SCC 237 (iv) State of Assam & Ors. Vs. Smti Pratima Das & Ors. 1997 (3) GLT 71. (v) Binod Kumar Gupta and Ors. Vs. Ram Ashray Mahato and Ors. (2005) 4 SCC 209 (vi) State of Bihar & Ors. Vs. Chandreshwar Pathak (AIR 2014 SC 3752) 35. In the case of Managing Director, ECIL, Hyderabad & Ors. (supra) the Apex Court while examining the effect on the order of punishment when the report of the Inquiry Officer is not furnished to the employee has observed as follows:- 30(v) The next question to be answered is what is the effect on the order of punishment when the report of the Inquiry Officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to WA Nos.79, 80, 81, 147, 148, 149, Page 14 of 23

this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non- furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to a "unnatural expansion of natural justice" which in itself is antithetical to justice.. Therefore what can be appreciated from the above decision is that the grievance on absence of notice or an opportunity for proper hearing will have to be examined on the touchstone of prejudice. If it is found that no prejudice has been caused to the employee by non-following the procedural rule governing enquiry, Court would not interfere with the penalty imposed upon such employee. In the case under consideration, although the appellants were not afforded the opportunity to confront the Enquiry Report prior to their termination, the blatant illegality committed in not following the due process of selection as per the Provincialisation Rules of 1977 is glaring at the face of it. Therefore, even with an opportunity the appellants could not have justified their appointment. Hence, no prejudice can be said to have been caused to the appellants in not having been furnished with a copy of the Enquiry Report. 36. In the case of State Bank of Patialia and Ors.(supra), the hon ble Apex Court held that in disciplinary proceedings, a distinction must be made between no opportunity and no adequate opportunity so far as the denial of opportunity to the delinquent employee is concerned. In case of the former, WA Nos.79, 80, 81, 147, 148, 149, Page 15 of 23

order passed would be invalid and the authority would be required to take proceedings afresh in accordance with the concerned rules by following the principles of audi alteram partem. But in case of the latter, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the standpoint of prejudice. Therefore, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. In short, if it is found that no prejudice has been caused to the employee by non-following of the procedural rule governing enquiry, Court would not interfere with the penalty imposed upon such employee. 37. The above principles enunciated by the hon ble Apex Court on application to the case at hand only justifies the order of termination impugned by the appellants. It is seen that besides the appointment of the appellants not being preceded by a due selection in conformity with the rules, they were each given a Show Cause Notice to enable them explain why they should not be terminated and having failed to make out the basis of their appointment, they were only terminated. 38. In the case of M.C Mehta (supra) relied by Mr. PN Goswami, the Ld. Standing Counsel, the Apex Court held that it is not always necessary for the Court to strike down an order merely because the order has been passed against the petitioner in breach of natural justice. The Court under Article 32 or Article 226 of the Constitution can refuse to exercise its discretion of striking down the order if such action will result in the restoration of another order passed earlier in favour of the petitioner and against the opposite party, in violation of the principles of natural justice or is otherwise not in accordance with law. It was further held that when it is clear on the admitted or indisputable factual position, that only one conclusion is possible and permissible, the Court need not issue a writ merely because there is violation of principles of natural justice. WA Nos.79, 80, 81, 147, 148, 149, Page 16 of 23

39. In the case of Pratima Das (supra), the Apex Court by referring to various other judicial pronouncements held that when the recruitment itself was unlawful and without following the selection process, the penalty of termination from service would be justified and any claim of the employee of having a legitimate expectation to be regularised for being qualified and having rendered service for a number of years despite the rules having been flouted in the initial recruitment/appointment, will have to be negated. 40. Similar to the case of Pratima Das (supra), the Apex Court in the case of Binod Kumar Gupta (supra) held that mere length of holding the post for 15 long year when the appointment was not made through a selection process and proper advertisement would not entitle such appointment in the continuation of service. 41. In the case of Chandreshwar Pathak (supra) the Apex Court upon noticing that the appointment of the constable was made at the behest of the Inspector General of Police without any selection process, held that the termination of his service was justified. 42. Mr. PN Goswami, learned Standing Counsel, Elementary Education has produced the records of the case. The record reveals that Show Cause Notices were served on 17.2.2009 and 12.1.2010 upon all the L.P. School Teachers who were appointed on 20.11.1999 and 4.12.1999. The reply to the Show Cause Notice was submitted by the Teachers, in the form of a response format, which contained as many as 15 queries. Besides giving their respective particulars they were unable to give any information as to how they were selected, what was their serial number in the select list and whether they had seen the select list. In short, all they could claim was that they were selected. 43. The records also contain the enquiry report dated 17.6.2010 submitted by Smti Esther Kathar who was the Enquiry Officer and the OSD, Directorate of Elementary Education. According to her report, out of 302 appellants that were made on 20.11.1999 and 4.12.1999, the case of 17 candidates was different. In WA Nos.79, 80, 81, 147, 148, 149, Page 17 of 23

fact these candidates were compassionate appointees and one amongst them was appointed as subject teacher in Nepali language. The records reveal that a communication was made by the Commissioner and Secretary to the Government of Assam, Education Department to the Accountant General, Assam vide letter No. PMA.158/94-A dated 18.1.1995 wherein 8153 posts were sanctioned for creation of posts of LP school teachers. Out of 8153 posts, 7565 posts were for General Area and the remaining 588 posts were for the Sixth Scheduled areas. The said communication also indicated that the necessary district-wise break-up for the posts would be issued subsequently. 44. It may be noticed at this stage that the appointment orders of all the appellants indicated that their appointments were made against the posts created originally vide Govt. Letter under Memo No. PMA. 158/ 94 dated 18.1.1995. But however, the records do not reveal any further district-wise break up for the 8153 posts. As stated earlier, the appointments of all the appellants were either made on 20.11.1999 and 4.12.1999. 45. In the case of Mahipal Singh Tomar (supra) as cited by Mr. D Das, the Ld. Senior counsel, although it was observed by the hon ble Apex Court that the violation of principles of natural justice would warrant vitiation of an enquiry proceeding and where it is possible, an attempt should also be made to segregate the tainted from the non-tainted candidates, the same will have not much of an effect in the case at hand. It can be seen that the appellants though not supplied with their copy of the Enquiry Report were all given Show Cause Notices prior to their termination and moreover, on perusal of their replies to the Show Cause Notice, it can be seen that they were unable to explain how they were selected by the Selection Board or their respective position in the select list. In fact according to them, they all had not seen any select list. The appellants having all been given Show Cause Notices, the case of Manager Director, ECIL, Hyderabad & Ors.(supra) in fact would rather be more relevant to the controversy. The hon ble Apex Court in this case held that party aggrieved would be required to show that prejudice was caused to him for not having been WA Nos.79, 80, 81, 147, 148, 149, Page 18 of 23

supplied with the enquiry report and the appellants herein have not been able to demonstrate the same. 46. As for the case of Dulu Devi (supra) referred to by the Ld. Senior counsel for the appellants, what can briefly be appreciated is that a mere length of service without duly authorised appointment by itself, cannot guarantee continuity in service. Such was the finding of the hon ble Apex Court in the case of Pratima Das (Supra) and Binod Kumar Gupta (supra). 47. The case of M.L. Kesari (supra) as relied upon by the Ld. Senior counsel for the appellants that the length of service rendered can be an exception for continuity in service cannot come to their rescue in as much as their very appointment of the appellants was without following the due process of law as stipulated in the Provincialisation Rules of 1977 coupled with the fact that such appointments have been made against non-sanctioned posts. Therefore, no exception can be taken for such illegal appointments. 48. Let us now examine the provisions governing the appointment of LP School Teachers. The Assam Elementary Education (Provincialisation) Act, 1974 was published in the Assam Gazettee on 17.6.1975 and it repealed the Assam Elementary Education Act, 1968. Thereafter, the Provincialisation Rules of 1977 was framed and published in the Assam Gazette dated 21.1.1981 and it came into force w.e.f. 19.3.1979. 49. Rule-3(i)(a) and (b) of the Provincialisation Rules of 1977 provides for the method of the recruitment to the post of LP School teachers with a further mention of Schedule I. For ready appreciation, the provisions contained in Rule-3 (i) (a) and (b) and the Schedule - I, is being reproduced as under PART-1 3.(i) (a) Method of recruitment:- In the month of January every year the Member- Secretary of the Selection Board shall invite applications in prescribed form, with application fee through advertisement in newspapers from desires candidates registered with Employment Exchange prescribing minimum qualifications, WA Nos.79, 80, 81, 147, 148, 149, Page 19 of 23

number of posts Scheduled Tribes, other Backward Classes etc. for vacancies of Elementary School Teachers, Assam Legislative Assembly constituency-wise existing in the year in the Sub-Division. The amount of application fee shall be Rs.25/-. The State Government may revise the amount of application fee from time to time. (b) The Selection Board, on receipt of applications, shall scrutinise 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 marks secured due to qualifications of the candidates over and above the minimum qualification and the marks secured due to experience as a teacher, in the manner provided in Scheduled-I and prepare a list constituency-wise for each Assam Legislative Assembly Constituency in descending order of the total marks secured by a candidates out of the total marks mentioned in Schedule-I. Therefore, having provided for reservation the Selection Board shall finalise the select list constituency-wise for each Assam Legislative Assembly Constituency of only as many successful candidates as are the advertised vacancies with Roll Numbers and names of the candidates in order of merit and submit the lists to the Director of Elementary Education, Assam. If there is no vacancy of teacher in the School falling in a Legislative Assembly Constituency no select list shall be prepared. The Director shall authenticate and get the select list so prepared published by affixing copy thereof in the Office Notice Board of the Director, Elementary Education, Assam. Inspector of Schools, District Elementary Education Officer, Block Elementary Education Officer and Deputy Inspector of Schools and in any other manner as the Government may deem fit as and when they are received from different Sub-Divisions. The select lists containing the results shall be public documents and shall be made available to a bonafide member of the public on application with such requisite fees as may be determined by the Government from time to time. The Deputy Inspector of Schools or the District Elementary Education Officer as the case may be, shall appoint the selected candidates in order of merits only from this authenticated select list. Any appointment given to WA Nos.79, 80, 81, 147, 148, 149, Page 20 of 23

persons outside the select lists shall be ab-initio invalid except the appointment given on compassionate ground by the Government as per rules of the Government in this regard. The validity of the lists shall not extend beyond one year from the date of its publication. SCHEDULE-1 (A) Selection of Teachers for Lower Primary and Junior Basi Schools shall be made on the basis of marks obtained out of a total marks of 200 which shall be apportioned for qualifying and other examination experience and interview as under:- 1. Credit for the marks secured in the qualifying examination i.e. High School Leaving Certificate Examination or equivalent examination 100 marks which shall be directly proportioned to the percentage of marks secured in the relevant examination. e.g.if a person secured 45% of marks in H.S.L.C. Examination, he shall be given 45 marks out of this 100 marks. 2. Credit for experience as teacher of a recognised School 40 marks which shall be credited at the rate of 2 marks for each completed year and one mark for part of a year exceeding six month subject to maximum of 40 marks in total. 50. From the relevant Rules and Schedule reproduced above, it can be seen that the State Government is required to constitute a Selection Board with a Member Secretary who shall invite applications in prescribed form, with application fee through advertisement in newspapers from interested candidates registered with Employment Exchange while prescribing minimum qualifications, number of posts Scheduled Tribes, other Backward Classes etc. for vacancies of Elementary School Teachers, Assam Legislative Assembly constituency-wise existing in the year in the Sub-Division. 51. The Selection Board, on receipt of applications is then required to scrutinize and process the application forms, the mark sheets and other WA Nos.79, 80, 81, 147, 148, 149, Page 21 of 23

necessary testimonials of the candidates for interview by the Interview Committee and on completion of interviews by the different Interview Committees, add the marks secured by different candidates in the interview, qualification, experience etc. as provided in Scheduled-I. Thereafter, the Selection Board after preparation and finalization of the list constituency-wise in descending order, is required to submit the list to the Director of Elementary Education, Assam for authentication. As can be noticed, Schedule I prescribe how marks are to be allotted to the candidates. 52. The Director after authenticating the select list shall affix a copy of the same in the Office Notice Board of the Director, Elementary Education and the Deputy Inspector of Schools/District Elementary Education Officer will then appoint the selected candidates in order of merit from this authenticated select list only except in case of compassionate appointment made by the Government. 54. However, in the instant case, upon perusing the materials on record, we find that the process contemplated by the Provincialisaiton Rules of 1977 was not followed. Although an advertisement was floated in the local daily and a 17 member (including the Chairman) Selection Board constituted, there is no further indication of there being any selection process. Although the respondent No. 8 by incorporating the Meeting Minutes dated 26.10.1999 in his additional affidavit has attempted to show that the appointments made was preceded by a selection process but the same is not only vague but fails to conform to the method of recruitment as stipulated by the Provincialisation Rules of 1977. The so called select list most conspicuously indicated the schools where named person is to be appointed. This itself demonstrates that the exercise was done non-bonafide by the Chairman, who was the local MLA, and such list cannot therefore be that basis of any legal appointment. 55. Upon due consideration of all the materials on record we find no semblance of the above selection with due process, in terms of the WA Nos.79, 80, 81, 147, 148, 149, Page 22 of 23

Provincialisation Rules of 1977. Hence, the appointment of the appellants as LP School Teachers cannot be legally sustained. In the result, we find no infirmity in the Judgment and Order rendered by the Ld. Single Judge on 23.09.2014 when he dismissed the writ petitions. 56. Having held thus, the writ appeals are accordingly dismissed. No costs. JUDGE JUDGE Nivedita WA Nos.79, 80, 81, 147, 148, 149, Page 23 of 23