Sashiprova Deori and 6 Ors. Vs the State of Assam and 6 Ors.

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GAHC010319162019

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2025:GAU-AS:361

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/9573/2019

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CHANDRESWAR SAIKIA AND 13 ORS.

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ASST TEACHER, CHENGAMARI L P SCHOOL, BORDOLONI BLOCK, DISTDHEMAJI, ASSAM

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2: NARESH BARUAH HEADMASTER NAGAON CHOWTAL L P SCHOOL BORDOLONI BLOCK DIST- DHEMAJI ASSAM 3: IKAN PEGU ASSTT TEACHER RUPALI L P SCHOOL BORDOLONI BLOCK DIST- DHEMAJI ASSAM 4: INDRESWAR CHUTIA ASSTT TEACHER ADUT KHURACHUK L P SCHOOL BORDOLONI BLOCK DIST- DHEMAJI ASSAM 5: NIRU BORUAH ASSTT TEACHER CHAIDHUA BALIGAON L P SCHOOL BORDOLONI BLOCK DIST- DHEMAJI ASSAM

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6: MUHINI PHUKAN ASSTT TEACHER

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MOINAPARA L P SCHOOL BORDOLONI BLOCK DIST- DHEMAJI ASSAM 7: KANTI SAIKIA ASSTT TEACHER OF NO. 503 AUNIATI KAIBATTA L P SCHOOL BORDOLONI BLOCK DIST- DHEMAJI ASSAM 8: SUBHABALA DAS ASSTT TEACHER AUNIATI KAIBATTA L P SCHOOL BORDOLONI BLOCK DIST- DHEMAJI ASSAM 9: NAREN HAZARIKA HEADMASTER BALIGAON L P SCHOOL BORDOLONI BLOCK DIST- DHEMAJI ASSAM 10: MINESWARI DIHINGIA ASSTT TEACHER BHAKAT KAIBATTA L P SCHOOL BORDOLONI BLOCK DIST- DHEMAJI ASSAM 11: RISHINDRA HAJONG HEADMASTER NO.2 BAJAYANTIPUR L P SCHOOL BORDOLONI BLOCK DIST- DHEMAJI ASSAM 12: JURI BALA HAZARIKA ASSTT TEACHER 34 BARBILA BHEBELI KASARI L P SCHOOL BORDOLONI BLOCK DIST- DHEMAJI ASSAM 13: JITENDRA KUMAR BORA ASSTT TEACHER GOKHAINBARI L P SCHOOL

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BORDOLONI BLOCK DIST- DHEMAJI ASSAM 14: REBAT GOGOI ASSTT TEACHER MONGALATI L P SCHOOL BORDOLONI BLOCK DIST- DHEMAJI ASSA

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VERSUS

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THE STATE OF ASSAM AND 6 ORS

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REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM, EDUCATION (ELEMENTARY)DEPTT, DISPUR, GUWAHATI- 06

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2:THE DIRECTOR OF ELEMENTARY EDUCATION ASSAM KAHILIPARA GUWAHATI- 19 DIST- KAMRUP (M) ASSAM 3:THE DEEO DHEMAJI DIST- DHEMAJI ASSAM 4:THE BEEO BORDOLONI BLOCK DIST- DHEMAJI ASSAM 5:THE DEPUTY INSPECTOR OF SCHOOLS DHEMAJI DIST- DHEMAJI ASSAM 6:THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM FINANCE DEPTT DISPUR GUWAHATI- 6 7:THE DEPUTY COMMISSIONER DHEMAJI DIST- DHEMAJI

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ASSA

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Advocate for the Petitioner : MR. N BORAH, MR. H MAZUMDER

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Advocate for the Respondent : SC, EDU, SC, FINANCE,GA, ASSAM

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Linked Case : WP(C)/3288/2016

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SMTI KANTI SAIKIA and 14 ORS ASSISTANT TEACHER OF NO. 503 AUNIATI KAIBATTA L.P. SCHOOL BORDOLON BLOCK DIST. DHEMAJI ASSAM. 2: SRI NARESH BARUAH HEADMASTER NA-GAON CHOWTAL L.P. SCHOOL BORDOLONI BLOCK DIST. DHEMAJI ASSAM. 3: SRI NAREN HAZARIKA HEADMASTER BALIGAON L.P. SCHOOL BORDOLONI BLOCK DIST. DHEMAJI ASSAM. 4: SRI CHANDRESWAR SAIKIA ASSISTANT TEACHER CHENGAMARI L.P. SCHOOL BORDOLONI BLOCK DIST. DHEMAJI ASSAM. 5: SMTI. IKAN PEGU ASSISTANT TEACHER RUPALI L.P. SCHOOL BORDOLONI BLOCK DIST. DHEMAJI ASSAM.

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6: SRI JITENDRA BORA

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ASSISTANT TEACHER GOKHAINBARI L.P. SCHOOL BORDOLONI BLOCK DIST. DHEMAJI ASSAM. 7: SMTI. JURI BALA HAZARIKA ASSISTANT TEACHER 34 BARBILA BHEBELI KASARI L.P. SCHOOL BORDOLONI BLOCK DIST. DHEMAJI ASSAM. 8: SMTI. MUHINI PHUKAN ASSISTANT TEACHER MOINAPARA L.P. SCHOOL BORDOLONI BLOCK DIST. DHEMAJI ASSAM. 9: SMTI. SUBHABALA DAS ASSISTANT TEACHER AUNIATI KAIBATTA L.P. SCHOOL BORDOLONI BLOCK DIST. DHEMAJI ASSAM. 10: SMTI. NIRU BORUAH ASSISTANT TEACHER CHAULDHUA BALIGAON L.P. SCHOOL BORDOLONI BLOCK DIST. DHEMAJI ASSAM. 11: SRI INDRESWAR CHUTIA ASSISTANT TEACHER ADUT KHURACHUK L.P. SCHOOL BORDOLONI BLOCK DIST. DHEMAJI ASSAM. 12: SRI REBAT GOGOI ASSISTANT TEACHER MONGALATI L.P. SCHOOL BORDOLONI BLOCK DIST. DHEMAJI ASSAM.

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13: SMTI. MINESWARI DIHINGIA ASSISTANT TEACHER BHAKAT KAIBATTA L.P. SCHOOL BORDOLONI BLOCK DIST. DHEMAJI ASSAM. 14: SRI RISHINDRA HAJONG HEADMASTER NO. 2 BAJAYANTIPUR L.P. SCHOOL BORDOLONI BLOCK DIST. DHEMAJI ASSAM. 15: SMTI. DHANADA CHUTIA ASSISTANT TEACHER 431 NO. GORAIMARI L.P. SCHOOL BORDOLONI BLOCK DIST. DHEMAJI ASSAM. VERSUS THE STATE OF ASSAM AND 6 ORS REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM EDUCATION ELEMENTARY DEPARTMENT DISPUR GUWAHATI -6. 2:THE DIRECTOR OF ELEMENTARY EDUCATION ASSAM KAHILIPARA GUWAHATI -19 DIST. KAMRUP M ASSAM. 3:THE DISTRICT ELEMENTARY EDUCATION OFFICER DHEMAJI DIST. DHEMAJI ASSAM. 4:THE BLOCK ELEMENTARY EDUCATION OFFICER BORDOLONI BLOCK DIST. DHEMAJI ASSAM 5:THE DEPUTY INSPECTOR OF SCHOOLS

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DHEMAJI DIST. DHEMAJI ASSAM.

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6:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM FINANCE DEPARTMENT DISPUR GUWAHATI -6. 7:THE DEPUTY COMMISSIONER

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DHEMAJI DIST. DHEMAJI ASSAM. -----------Advocate for : MR.R GOGOI Advocate for : SC ELEMENTARY EDUCATION appearing for THE STATE OF ASSAM AND 6 ORS

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Linked Case : WP(C)/3329/2016

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SMT SASHIPROVA DEORI and 7 ORS ASSTT. TEACHER NO.2 HATIGARH LP SCHOOL DHEMAJI BLOCK DIST- DHEMAJI ASSAM PIN-787057

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2: KUNJA KUMARI BORGOHAIN ASSTT. TEACHER OF NAGAON LP SCHOOL BORDOLONI BLOCK DIST- DHEMAJI ASSAM PIN-787026 3: LILIMA GOGOI ASSTT. TEACHER BHAKAT KAIBATTA LP SCHOOL BORDOLONI BLOCK DIST- DHEMAJI ASSAM PIN-787026

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4: DIPEN HAZARIKA

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ASSTT. TEACHER KHANA KISHNAPUR LP SCHOOL BORDOLONI BLOCK DIST- DHEMAJI ASSAM PIN-787026 5: ANJU DEVI ASSTT. TEACHER OF GORIAJAN KALITACHUK LP SCHOOL BORDOLONI BLOCK DIST- DHEMAJI ASSAM PIN-787026 6: RUMI BHARALI ASSTT. TEACHER RASTRA BHASA LP SCHOOL DIST- DHEMAJI ASSAM PIN-787057 7: LAKHI KONWAR ASSTT. TEACHER 813 NO. LATAK LP SCHOOL BORDOLONI BLOCK DIST- DHEMAJI ASSAM PIN-787026 8: DHANADA CHUTIA ASSTT. TEACHER 431 NO. GORAIMARI LP SCHOOL BORDOLONI BLOCK DIST- DHEMAJI ASSAM PIN-787026 VERSUS THE STATE OF ASSAM AND 6 ORS REP. BY THE COMMISSIONER and SECY. TO THE GOVT. OF ASSAM ELEMENTARY EDUCATION DEPTT. DISPUR GHY-6 2:THE DIRECTOR OF ELEMENTARY EDUCATION ASSAM KAHILIPARA

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GHY-19 3:THE DISTRICT ELEMENTARY EDUCATION OFFICER DIST- DHEMAJI ASSAM PIN-787057 4:THE BLOCK ELEMENTARY EDUCATION OFFICER BORDOLONI BLOCK DIST- DHEMAJI ASSAM PIN-787034 5:THE BLOCK ELEMENTARY EDUCATION OFFICER DHEMAJI BLOCK DIST- DHEMAJI ASSAM PIN-787057 6:THE DY. INSPECTOR OF SCHOOLS DHEMAJI DIST- DHEMAJI ASSAM PIN-787057 7:THE TREASURY OFFICER DHEMAJI DIST- DHEMAJI ASSAM PIN-787057 -----------Advocate for : MR.J I BORBHUIYA Advocate for : appearing for THE STATE OF ASSAM AND 6 ORS Linked Case : WP(C)/1772/2017 SASHIPROVA DEORI and 6 ORS. ASSTT. TEACHER NO. 2 HATIGARH L.P. SCHOOL DHEMAJI BLOCK DIST. DHEMAJI ASSAM PIN-787057. 2: SMT. KUNJA KUMARI BORGOHAIN

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ASSTT. TEACHER OF NAGAON LP SCHOOL BORDOLONI BLOCK DIST. DHEMAJI ASSAM PIN-787026. 3: SMT. LILIMA GOGOI ASSTT. TEACHER OF BHAKAT KAIBATTA LP SCHOOL BORDOLONI BLOCK DIST. DHEMAJI ASSAM PIN-787026. 4: SMT. ANJU DEVI ASSTT. TEACHER OF GORIAJAN KALITACHUK LP SCHOOL BORDOLONI BLOCK DIST. DHEMAJI ASSAM PIN-787026. 5: SMT. RUMI BHARALI

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ASSTT. TEACHER OF RASTA BHASA LP SCHOOL DIST. DHEMAJI ASSAM PIN-787057. 6: SRI LAKHI KONWAR ASSTT. TEACHER OF 813 NO LATAK LP SCHOOL BORDOLONI BLOCK DIST. DHEMAJI ASSAM PIN-787026. 7: SMT. DHANADA CHUTIA ASSTT. TEACHER OF 431 NO. GORAIMARI LP SCHOOL BORDOLONI BLOCK DIST. DHEMAJI ASSAM PIN-787026. VERSUS THE STATE OF ASSAM and 6 ORS. REP. BY THE COMM. and SECY. TO THE GOVT. OF ASSAM

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ELEMENTARY EDUCATION DEPTT. DISPUR GHY.-06. 2:THE DIRECTOR ELEMENTARY EDUCATION ASSAM KAHILIPARA GHY.-19. 3:THE DIST. ELEMENTARY EDUCATION OFFICER DIST. DHEMAJI ASSAM PIN-787057. 4:THE BLOCK ELEMENTARY EDU. OFFICER

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BORDOLONI BLOCK DIST. DHEMAJI ASSAM PIN-787034. 5:THE BLOCK ELEMENTARY EDU. OFFICER DHEMAJI BLOCK DIST. DHEMAJI ASSAM PIN-787057. 6:THE DY. INSPECTOR OF SCHOOLS DHEMAJI DIST. DHEMAJI ASSAM PIN-787057. 7:THE TREASURY OFFICER DHEMAJI DIST. DHEMAJI ASSAM PIN-787057. -----------Advocate for : MR.J I BORBHUIYA Advocate for : SC ELEMENTARY EDUCATION appearing for THE STATE OF ASSAM and 6 ORS.

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BEFORE

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HON’BLE MR. JUSTICE KARDAK ETE

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Advocate for the petitioners : Mr. N. Borah Mr. J.I. Borbhuiyan Advocate for the respondents : Mr. R. Mazumder Mr. A. Chaliha Date of hearing : 14.11.2024 Date of judgment : 08.01.2025

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JUDGMENT & ORDER (CAV)

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Heard Mr. N. Borah, learned counsel for the petitioners in WP(C) 9573/2019 & WP(C) 3288/2016 and Mr. J.I. Borbhuiyan, learned counsel for the petitioners in WP(C) 3329/2016 & WP(C) 1772/2017. Also heard Mr. R. Mazumder, learned standing counsel, Elementary Education Department and Mr. A. Chaliha, learned Standing counsel, Finance Department.

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2. By filing these petitions, the petitioners have put to challenge the show-

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cause notice No.4981-5730 dated 30.03.1992 and impugned termination order vide Memo No.7040-43 dated 18.05.1992 issued by the Deputy Inspector of School, Dhemaji, by which the service of the petitioners have been terminated.

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3. Having considered that these writ petitions are analogous on facts and law, the same were heard and are disposed of by this common judgment and order.

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4. In WP(C) 9573/2019, the writ petitioners, 14 in numbers, having requisite qualification for appointment to the posts of Assistant Teacher of L.P. Schools, applied for the said posts pursuant to the advertisement issued by the respondent authorities. It is contended that after due selection process and on being selected, they were appointed by the Deputy Inspector of School, Dhemaji to the post of Assistant Teachers of L.P. Schools in different schools at Dhemaji in the year 1989. The petitioner No.1 and petitioner No.2 were appointed as Assistant Teachers at Tulsibari Gandhiji L.P. School and Bordoloni Tiniali L.P. School vide order dated 19.12.1989 respectively; petitioner No.3 at Garpara L.P. School vide order dated 13.12.1989; petitioner No.4 at Ratua Pathar L.P. School vide order dated 19.12.1989; petitioner No.5 at Moinapara L.P. School vide order dated 19.12.1989; petitioner No.6 at Padumoni L.P. School vide order dated 19.12.1989; petitioner No.7 at Gosaibari L.P. School vide order dated 13.12.1989; petitioner No.8 at Bhakat Gaon L.P. School vide order dated 19.12.1989; petitioner No.9 at Padumoni L.P. School vide order dated 19.12.1989 and petitioner No.10 at Bhakat Koiborta L.P. School vide order dated 19.12.1989; petitioner No.11 at Joyrampur L.P. School vide order dated 19.12.1989; petitioner No.12 at Borbila Kachari L.P. School vide order dated 19.12.1989; petitioner No.13 at Na-nadi Gosaibari L.P. School vide order dated

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19.12.1989 and petitioner No.14 at Mongalati L.P. School vide order dated 19.12.1989 by the Inspector of School, Dhemaji. The petitioners have been transferred from one school to another school, to which they have rendered and discharge their duties in the respective schools.

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5. It is contended that the service of the petitioners were confirmed w.e.f. their respective dates of appointment by the Deputy Inspector of School, Dhemaji. It is also contended that the respondent authorities have allowed the petitioners to cross the efficiency bar in their services w.e.f. 01.12.2004. Some of the petitioners were allowed to discharge duties as Headmaster of the schools by the respondent authorities.

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6. While the petitioners were serving in the respective schools, the respondent authorities stopped the payment of salary from April, 1996 without any reason. However on the request by the District Elementary Education Officer, Dhemaji, the Joint Directorate of Elementary Education, Assam directed the District Elementary Education Officer, Dhemaji to release the salary of the teachers appointed and working against each sanctioned non-planned posts. Accordingly, the monthly salaries of the petitioners were released w.e.f. 01.04.1996 upto July, 2007. Thereafter, although the petitioners were appointed after due selection process and appointed against the valid sanctioned post and their services being confirmed by the competent authority, thereby service book being opened and GPF money being deducted from their monthly salary from 2000 on 06.11.2006, a list was published showing the name of the teachers appointed in the year 1989 getting salary after termination till date, wherein, the name of the petitioners were also included, thereby suddenly stopped the monthly salary of the petitioners from August, 2007 without any reason. The

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petitioners contended that at no point of time they have receive any show-cause notice for termination and no disciplinary proceedings were initiated, rather the petitioners were continuously discharging their duties in their respective schools.

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7. The petitioners by filing WP(C) 5635/2007 approached this Court for release of monthly salary due to the petitioners from August, 2007 on being treated as terminated teachers without there being any termination order. This Court vide order dated 27.04.2012 disposed of the said writ petition directing the respondent authorities to examine the case of each and every petitioners whether they have been served with show-cause notices for termination or the termination orders and if the same are not served to the petitioners, the petitioners will be entitled to get salary for their services. Pursuant thereto, the Director of Elementary Education vide order dated 05.05.2015 held that the show-cause notices issued to the petitioners and the replies of show-cause notices were not satisfactory and as such, the petitioners were terminated from the services in the month of May, 1992 on the basis of the report submitted by the District Elementary Education Officer, Dhemaji. Being aggrieved, the petitioners filed WP(C) 3288/2016 challenging the aforesaid orders. In the counter affidavit to the writ petition, the respondent authorities enclosed a copy of the termination orders of the petitioners against which this writ petition being WP(C) 9573/2019 is filed.

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8. In WP(C) 3329/2016, petitioners 8 in numbers, and WP(C) 1772/2017, petitioners 7 in numbers, who are similarly situated with that of the petitioners in the above two writ petitions have also prayed for a direction to release the current as well as arrear salaries of the petitioners w.e.f. August, 2007. The petitioners have also challenged the termination orders passed by the

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respondent authorities.

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9. The petitioners have prayed for similar relief as granted to one Dulu Devi, who is similarly situated as that of the petitioners, by the Hon’ble Supreme Court in the Case of Dulu Devi -vs- State of Assam and Others reported in (2016) 2 SCC 622 .

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10. Mr. N. Borah and Mr. J.I. Borbhuiya, learned counsels for the petitioners, submitted that the petitioners were appointed as Assistant Teachers after due selection process. It is submitted that the petitioners were never been terminated from their services as alleged by the respondent authorities. Neither any show cause notice for termination nor receive any termination orders. The petitioners were never served with the impugned termination order dated 18.05.1992. Therefore, the entire proceedings of alleged show-cause notice for termination from service and the consequent impugned termination order dated 18.05.1992 are not sustainable in law and the same are liable to be set aside and quashed.

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11. Learned counsel for the petitioners have relied upon the following judgements:-

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1. Union of India and Others -vs- Dinanath Shantaram Karekar and Others reported in (1998) 7 SCC 569 .

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2. Municipal Corporation of Delhi -vs- Qimat Rai Gupta and Others reported in (2007) 7 SCC 309 .

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3. Dulu Devi -vs- State of Assam and Others reported in (2016) 1 SCC 622 .

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4. National Textile Corporation (M.P) Limited -vs- M.R. Jadhav reported in (2008) 7 SCC 29 .

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12. On the other hand, Mr. R. Mazumder, learned standing counsel, Elementary Education Department, submits that in compliance to the order dated 02.03.2010 passed by this Hon'ble Court in W.P.(C) No. 1048/2004, the Education Department placed the matter of regularization of illegal/irregular teachers before the Cabinet in its meeting held on 26.02.2011. Thereafter, the Education Department proposed to constitute a Screening Committee to examine the validity of the appointments of these teachers. Accordingly vide OM dated 15.11.2011, a Screening Committee was constituted to examine the cases of illegally/irregularly appointed teachers so as to take a decision for their regularization and entitlement of salaries or otherwise. With a view to examine the selection procedure, the nature of appointment, status of posts, working status, status of salaries, academic qualifications, etc. the Director of Elementary Education, Assam invited applications from these irregularly/illegally appointed teachers during 1991 throughout the State by an advertisement dated 01.02.2012 and 04.02.2012 in local newspapers.

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13. He submits that in response to the said advertisements for screening, applications were received from irregularly/illegally appointed teachers throughout the State. After conducting preliminary examination at the Directorate level, the Elementary Education Department, vide notification dated 04.06.2012 constituted 5 (five) Screening Committees headed by the Divisional Commissioners concerned and Principal Secretaries of Sixth Scheduled area and BTC to examine these applications and the report of the committee. The said 5(five) Screening Committees were (1) Upper Assam Division, (ii) Lower Assam

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Division, (iii) North Assam Division, (iv) Hills and Barak Valley Division and (v) BTC area. Thereafter, the Divisional Screening Committees verified all the applications and submitted their reports with recommendation/views to the Government for further action. However, due to complaints from various corner, the Government directed for re-verification in respect of some of the districts. The respective screening committee after causing re-verification submitted their reports to the Government. After verification of the reports of the Divisional Screening Committees, the following categories of teachers were identified:-

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Category 1 - Recommended and working till date- 136 nos.

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Category 2 - Recommended but discontinued jobs – 250 nos,

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Category 3 - Not recommended but working till date - 8470 nos.

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Category4 - Not recommended and discontinued jobs -2900 nos.

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14. Pursuant to the report of the Screening Committees, a decision was taken to regularize the services of teachers who fall under category 1 and subsequently their services were regularized. With regard to the 2nd category of teachers who were recommended but discontinued jobs, the question of regularization of service and payment of salaries does not arise since they are not in service. Similarly, in case of 4th category since they have discontinued, consideration of their cases for regularization and payment of salaries does not arise. In respect of 3rd category of teachers who were not recommended but still in service, the State respondents had decided to issue individual show cause notice to all the 8470 candidates and 766 including 752 terminated teachers of Dhemaji and Lakhimpur districts indicating therein to show the reason as to why their appointments are not deemed to be illegal/irregular and as to why they

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should not be removed from services for being appointed in violation of the rules . However, in the meantime a discussion was held between the then Hon'ble Minister of Education and the Teachers Association or irregular/illegal teachers. As per decision of the meeting and as per suggestion of the Hon'ble Education Minister, the Department had proposed to take a decision to solve the problem of these irregularly/illegally appointed teachers subject to approval of the Cabinet. Accordingly, a Departmental Committee was formed by the Government in Elementary Education Department to verify the salary status and qualification of those category 3 illegal/irregular appointees. The said committee prepared 3(three) lists based on the Screening Committee Reports.

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List No. 1: The teachers who have received salaries upto 2007 and onwards and having JBT/D.El.Ed. are included in the list No. 1.

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List No. 2: The Teachers who have received salaries upto 2007 and onwards and not having JBT/BT/D.El.Ed. are included in the List No. 2.

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List No. 3: Who have neither received salaries nor having prescribed training i.e. JBT/D.El.Ed.

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15. After series of discussions and views of the various departments, it was decided to resolve the issue of illegal/irregular appointment by way of preparation of a Cabinet Memorandum for placing it before the Cabinet. Approval was sought for those who have received salary upto 2007 but have not acquired the professional qualification before 2011, their job can only be accommodated as tutor with prospective effect from the date of approval of the cabinet. (i.e. List No. 2 as Tutor). The Cabinet gave its approval on 07.10.2020 .

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16. Mr. Mazumder, learned standing counsel, submits that the petitioners in

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the present writ petitions participated in the said screening process by submitting their documents and upon verification, the petitioners find place in Category 3 i.e. not recommended but working till date and as per the aforesaid Cabinet decision, the petitioners, who fulfill the aforesaid conditions, were offered fresh appointment with prospective effect from the date of the Cabinet decision according to their qualifications. The name of the petitioners figured in the Screening Committee List-2 under Dhemaji district and all the petitioners being untrained, were accommodated as Tutor under illegal/irregular category. However, the petitioners No. 7, 9 and 10 namely-Smti Kanti Saikia, Shri Naren Hazarika and Smti Mineswari Dihingia in WP(C) 9573/2019 did not join as they had attained the age of superannuation before they were appointed as accommodated tutors. Therefore, in the peculiar circumstances, the petitioner No. 7, 9 and 10 could not accept their appointment letters as accommodated Tutors. All the petitioners except petitioner No. 7, 9 and 10, accordingly joined their respective schools as tutors accepting all the terms and conditions as laid down in their order of accommodation by forgoing their past service benefits.

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17. He submits that in the meantime the petitioner No. 1 (Chandreswar Saikia) and petitioner No. 2 (Naresh Baruah) have already retired from service on 31.10.2023, whereas the petitioner No. 5 ( Niru Boruah) and petitioner No. 12 (Juri Bala Hazarika) have retired from service on 30.05.2024 and 31.01.2022 respectively after their joining as accommodated tutors in their respective schools. Furthermore, the petitioner No. 11 (Rishindra Hajong) expired on 08.03.2022 after joining his service as accommodated tutor. Rest of the petitioners except petitioner No. 7, 9 and 10, (who had attained the age of superannuation before accepting the appointment and could not accept the appointment) are still in service.

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18. Mr. Mazumder, learned standing counsel, submits that it is an apparent case where the accommodation was made pursuant to the Cabinet Decision with prospective effect, as such the claim of the petitioners for arrear salary cannot sustain, which they had otherwise relinquished, acquiescenced and waived. He submits that petitioners have accepted the appointments after filing the writ petitions but have not brought it on record.

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19. Mr. Mazumder, learned standing counsel, submits that that the petitioners claim that they were appointed by the then Deputy Inspector of Schools, Dhemaji in the year 1989, however, it was discovered later that the appointments were against non-existent posts without following due process of law and for the said reason the petitioners were terminated from service by following due procedure. The name of the petitioners were included in the list of terminated teachers under Dehemaji District. The DI of Schools released their salary upto 2007. Show cause notices were issued to the petitioners and the replies of the show cause notices not being satisfactory, the petitioners were terminated from services. The show cause notices for termination and the

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termination letters were duly served on the petitioners.

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20. Mr. Mazumder, learned standing counsel, submits that in compliance to the order dated 27.04.2012, passed by this Honb'ble Court in WP(C) 5635/2007, the Director of Elementary Education, Assam examined the cases of the petitioners and perused the report submitted by the DEEO, Dhemaji and other relevant documents and records. the DEEO, Dhemaji reported that show cause notices were issued to the petitioners during March, 1992 before termination and they had submitted replies during April, 1992. The replies submitted by the petitioners were not satisfactory and they were appointed illegally against nonexistent posts. Hence, they were terminated in May 1992. Considering all aspect of the matter the Director of Elementary Education, Assam, vide order dated 05.05.2015 rejected the claim of the petitioners for payment of arrear salaries. These facts has already been brought on record by way of an affidavit by the DEE, Assam in W.P.(C) No. 3288/2016 including the orders of termination.

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21. Mr. Mazumder, learned standing counsel, further submits that in terms of the order dated 08.02.2023 passed in W.P.(C) No. 3288/2016, the Director of Elementary Education, Assam, filed additional affidavit to bring on record the show cause notices issued to the petitioners, replies to the show cause notices filed by the petitioners, communication dated 12.05.1992 issued by the DEE, Assam for termination and the termination order dated 18.05.1992. which clearly reflects that the show cause notices and the termination orders were duly served on the petitioners. Hence, the claim of the petitioners that they have not received either the show cause notices or the termination order are false and are made with malafide intention.

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22. He submits that a dmittedly, appointment of the petitioners in the instant case were made without any sanctioned post, without any advertisement giving

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opportunity to all eligible candidates to apply and seek public employment and without any method of recruitment. He submits that appointments without following procedure prescribed under the Rules and without advertisement amounts to breach of Article 14 and 16 of the Constitution of India. It is no more res integra that the right to salary, pension and other service benefits are entirely statutory in nature in public service and therefore these rights, including the right to salary, spring from a valid and legal appointment to the post. Since the very appointment of the petitioners are illegal and are non-est in the eye of law, therefore, the petitioners are not entitled for the relief as prayed for in the writ petitions. Hence, the writ petitions are devoid of any merits and are liable to be dismissed.

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23. Mr. Mazumder, learned standing counsel, submits that the petitioners have accepted and joined in their respective schools in terms of the order of accommodation dated 30.01.2021 in the year 2021 itself accepting all the terms and conditions without raising any grievance at the time of joining and after filing of the writ petitions and during its pendency. It was a conscious decision on the part of the petitioners to have joined pursuant to order of accommodation dated 30.01.2021, without raising any grievance which is reflected from the fact that the petitioners joined after the issuance of the order of accommodation dated 30.01.2021 and therefore they had enough time to reflect on the effect of the accommodation order. Hence the writ petitions are liable to be dismissed.

¶106

24. Mr. R. Mazumder, learned standing counsel, has relied on the decision of Hon’ble Supreme Court in the case of G.M. Haryana Roadways -vs- Jai Bhagwan & Anr. reported in (2008) 4 SCC 127, in support of his submission that suppression of material fact by a litigant disqualifies such litigant from

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obtaining any relief and the same is viewed seriously by the Superior Courts exercising their discretionary jurisdiction.

¶109

25. I have considered the rival submissions of the learned counsel for the parties and also the materials available on record.

¶110

26. Considering the claim of the petitioners that they were not served with any show-cause notices and the termination order, rather they have been continuously serving as Assistant Teachers pursuant to their selection in different L.P. Schools in the district of Dhemaji since 1989 and the contra stand of the State respondents that the petitioners were found to be not appointed in accordance with the law and they were served with show-cause notices and having found their reply unsatisfactory, they were terminated from their services way back in the year 1992, this court on many occasions, directed the respondent authorities to produce the records so as to ascertain whether the petitioners were issued with any show-cause notices or terminated from their services and the termination orders were served to the petitioners. Learned counsel for the State respondents on each time, when the matters were listed for hearing submitted that no record is traceable as regard the show-cause notices pertaining to the proceedings and consequent termination. Therefore, it is evident that the respondent authorities have failed to show that termination orders were served upon the petitioners.

¶111

27. On consideration of the materials available record, the petitioners were admittedly appointed in the year 1989 and thereafter they continued to serve as Assistant Teacher in different L.P. schools in the district of Dhemaji. Record reveals that the petitioners were served with show-cause notices and the reply were filed by the petitioners. Thereafter, the services of the petitioners were

¶112

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terminated vide impugned order dated 18.05.1992. However, the question is as to whether the termination orders were served on the petitioners.

¶114

28. As noted hereinabove, despite several opportunities provided to the respondent authorities to place the records so as to ascertain and determine as to whether the termination orders were served to the petitioners, the respondents authorities failed to produce the records on the ground that the same is untraceable, therefore, there is no other option, than to view that no termination orders were served upon the petitioners even if same were passed by the respondent authorities.

¶115

29. In this context, reference may be made to the decisions of the Hon’ble Supreme Court . In the case of Dinanath Shantaram Karekar (Supra) it has been held that where the services are terminated, the status of the delinquent, as a Government servant, comes to an end and nothing further remains to be done in the matter. But if the order is passed and merely kept in the file, it would not be treated to be an order terminating services nor shall the said order be deemed to have been communicated .

¶116

In Qimat Rai Gupta (Supra), the Hon’ble Supreme Court has held which is quoted herein below:-

¶117

“27. An order passed by a competent authority dismissing a Government servant from services requires communication thereof as has been held in State of Punjab v. Amar Singh Harika but an order placing a Government servant on suspension does not require communication of that order. What is, therefore, necessary to be borne in mind is the knowledge leading to the making of the order. An order ordinarily would be presumed to have been made when it is signed. Once it is signed and an entry in that regard is made in the requisite register kept and maintained in terms of the provisions of a statute, the same cannot be changed or altered. It, subject to the other provisions contained in the Act, attains finality. Where, however, communication of an order is a necessary ingredient for bringing an end-result to a status or to provide a person an opportunity to take recourse of law if he is aggrieved thereby; the order is required to

¶118

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be communicated. ”

¶120

In M.R. Jadhav (Supra) the Hon’ble Supreme Court has held which is reproduced herein below:-

¶121

“ 22 . What is the meaning of the word "communication" has been noticed by this Court in State of Punjab v. Amar Singh Harika in the following terms:

¶122

"11. …It is plain that the mere passing of an order of dismissal would not be effective unless it is published and communicated to the officer concerned. If the appointing authority passed an order of dismissal, but does not communicate it to the officer concerned, theoretically it is possible that unlike in the case of a judicial order pronounced in Court, the authority may change its mind and decide to modify its order."

¶123

A distinction, however, has always been made by this Court as to cessation of a contract of service by way of punishment visa-vis an order of suspension which does not bring about such a cessation.

¶124

In MCD v. Qimat Rai Gupta [(2007) 7 SCC 309], this Court opined:

¶125

"27. An order passed by a competent authority dismissing a government servant from services requires communication thereof as has been held in State of Punjab v. Amar Singh Harika but an order placing a government servant on suspension does not require communication of that order. (See State of Punjab v. Khemi Ram)"

¶126

24. Therefore, there cannot be any doubt whatsoever that communication of the acceptance of offer was necessary. An internal noting does not constitute a communication. Even in a case of order of suspension, only when the case goes out of the control of the appropriate authority, actual communication may not be necessary.

¶127

25. If for good and sufficient reasons, the competent authority did not communicate its decision, in our opinion, the respondent did not derive any legal right. Such a legal right cannot be claimed only on the basis of the letter of the General Manager dated 26.09.2000. What was communicated there was the administrative approval. However, it was also categorically stated therein that the Head Office had not sanctioned the funds for payment of VRS. It is in that situation, the request of the respondent to relieve him from his duties was not acceded to. Respondent continued in his service after 1.08.2000. He had been drawing his salary and other perks. There is nothing on record to show that he drew his salaries without prejudice to his rights and contentions. If he had drawn his salary for the entire period during which he was in service and reached the age of superannuation, by reason thereof, he must be held to have waived his right, if any.”

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30. In the case of Dulu Devi (Supra), a similarly situated case, the Hon’ble Supreme Court has held which is reproduced herein below:-below:-

¶130

“14. In our considered opinion, the approach of the High Court is not in accordance with law. The services of a teacher who has been working for the last 25 years shall not be assumed to have been terminated and deprived of from her legitimate claim.”

¶131

The Constitution Bench Judgment of this Court in the case of State of Punjab vs. Amar Singh Harika, considered this aspect of the matter. Writing the judgment, His Lordship (Gajendragadkar, C.J.) held that mere passing of an order of dismissal or termination would not be effective unless it is published and communicated to the officer concerned. If the appointing authority passes an order of dismissal, but does not communicate it to the officer concerned, theoretically it is possible that unlike in the case on a judicial order pronounced in Court, the authority may change its mind and decide to modify its order. The order of dismissal passed by the appropriate authority and kept with itself, cannot be said to take effect unless the officer concerned knows about the said order and it is otherwise communicated to all the parties concerned. If it is held that mere passing of order of dismissal has the effect of terminating the services of the officer concerned, various complications may arise.”

¶132

Similar view has been taken by this Court in the case of Union of India vs. Dinanath Shantaram Karekar, wherein this Court observed:

¶133

“9. Where the services are terminated, the status of the delinquent as a government servant comes to an end and nothing further remains to be done in the matter. But if the order is passed and merely kept in the file, it would not be treated to be an order terminating services nor shall the said order be deemed to have been communicated.”

¶134

31. Having regard to the submissions made by the learned standing counsel, Mr. R. Mazumder on the aspect of suppression of material fact that the petitioners have suppressed the receipt of show-cause notice and thereafter filing of reply, same appears to have some weightage. Nevertheless, since the respondent authorities failed to show the service of termination order to the petitioners, I am of the considered opinion that the petitioners were not terminated from their services legally as no proceedings have been shown to have conducted ever except issuance of show cause notices. More so, the

¶135

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petitioners have been allowed to continue to serve as Assistant Teachers for so many years thereafter they have been adjusted as tutor although the petitioners have accepted the appointment as tutor finally, considering that the petitioners may not have bargaining power with that of the State authorities by itself would not disentitle the petitioners of their claim to be Assistant Teachers, who appears to have been appointed way back in the year 1989. The case of Jai Bhagwan (Supra) relied by the learned Standing counsel, is a settled principle of law, however, in view of the attending contextual facts of the present case, in my view, would not be applicable.

¶137

32. Having considered the materials placed on record and the facts and circumstances of the present case, I am of the view that the respondent authorities ought to have proceeded against the petitioners in accordance with law if their appointments were illegal. But, have failed to recourse to such proceedings in accordance with law.

¶138

33. In the absence of the record, nothing is discernible that due process has been followed by the respondent authorities in terminating their services by the impugned order dated 18.05.1992 except the issuance of show-cause notice and the reply thereof and the impugned order of termination of the petitioners. Therefore, I am of the view that the termination of the petitioners cannot be sustained in law.

¶139

34 . For the foregoing reasons and in view of the Dulu Devi’s case (Supra), the impugned orders of termination dated 18.05.1992 is not sustainable as the respondent authorities have failed to place the record so as to show that a proper procedure has been followed and consequently the termination orders were served to the petitioners. As held by the Hon’ble Supreme Court, even if

¶140

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the order is passed and merely kept in the file, it would not be treated to be an order terminating services nor shall the said order be deemed to have been communicated.

¶142

35. Accordingly, the termination order dated 18.05.1992 is set aside and quashed. It is provided that the petitioners shall be entitled to all the benefits as Assistant Teachers as they have been allowed to continue to serve till filing of these petitions and they shall be treated as a regular Assistant Teachers for all purposes.

¶143

36. Writ petitions stand allowed and disposed of.

¶144

No order as to costs.

¶145

JUDGE

¶146

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Sashiprova Deori and 6 Ors. v. the State of Assam and 6 Ors.

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Sashiprova Deori and 6 Ors. v. the State of Assam and 6 Ors.

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