Back
2016 Supreme(Gau) 726
IN THE HIGH COURT OF GAUHATI
Ujjal Bhuyan, J.
Smti Hiranya Bhuyan Asstt. Teacher of Khagari Dihingia Lower Primary School, P.O. Nagakhelia, P.S. Dhemaji, Dist. Dhemaji, Assam - Petitioner
Versus
The State of Assam and Ors Rep. By The Commissioner and Secy. To The Govt. of Assam, Elementary Education Deptt., Sachivalaya, Dispur - Respondent
WP(C) No. 4046 of 2008
Decided On : 21-07-2016
For the Petitioner:Mr. S. Borthakur and Mr. A. Gohain, Advocates
For the Respondent:Mr. N. Sarma and Mr. B. Gogoi, Advocates
Headnote:
Constitution of India – Petitioner is Higher Secondary pass and at the relevant point of time, had the eligibility to be appointed as Assistant Teacher in Khagari Dihingia Lower Primary School in the State of Assam. According to the petitioner, following selection and interview he was appointed as Assistant Teacher in Khagari Dihingia Lower Primary School by the Deputy Inspector of Schools, Dhemaji, vide order pursuant to which, she joined and continued to discharge her duties – Though petitioner rendered service since her joining she was not paid salary. Despite requests made by the petitioner before the concerned authorities from time to time salary was not released –Held, 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 – Writ petition is allowed.
Ujjal Bhuyan, J.
1. Heard Mr. A Gohain, learned counsel for the petitioner and Mr. N. Sarma, learned counsel appearing for the Elementary Education Department, Government of Assam. Also heard Mr. B. Gogoi, learned Standing Counsel, Finance Department.
2. Core grievance of the petitioner appears to be non-release of her salary since August 2007.
3. Facts of the case may be briefly noted.
4. Petitioner is Higher Secondary pass and at the relevant point of time, had the eligibility to be appointed as Assistant Teacher in Khagari Dihingia Lower Primary School in the State of Assam. According to the petitioner, following selection and interview he was appointed as Assistant Teacher in Khagari Dihingia Lower Primary School by the Deputy Inspector of Schools, Dhemaji, vide order dated 19.12.1989, pursuant to which, she joined and continued to discharge her duties. Though petitioner rendered service since her joining she was not paid salary. Despite requests made by the petitioner before the concerned authorities from time to time salary was not released. Petitioner then came to learn that an order dated 18.05.1992 was issued by the Deputy Inspector of Schools, Dhemaji, terminating the service of the petitioner along with other teachers.
5. Aggrieved, petitioner approached this Court by filing Civil Rule No. 518 of 1996. The said writ petition was allowed vide order dated 08.04.1996 by quashing the termination order and directing the respondents to consider regularisation of the service of the petitioner. Departmental authorities were also directed to enquire as to whether petitioner was working since 1992 and if found working, to pay her the due salary.
6. No appeal or review was filed by the State against the aforesaid order. In the meanwhile, petitioner continued to discharge her duties. Subsequently, order dated 16.08.2000 was passed by the Deputy Inspector of Schools, Dhemaji, on the basis of order of Director of Elementary Education, Assam regularising the service of the petitioner. Thereafter, confirmation order was passed by the Deputy Inspector of Schools on 30.02.2001.
7. Following the same, petitioner was regularly paid her salary and in the course of her service, she also crossed the efficiency bar, which is mentioned in the order dated 11.01.2005, passed by the Deputy Inspector of Schools, Dhemaji, enabling her to draw higher salary.
8. It appears that Joint Secretary to the Government of Assam, Education (Elementary) Department, had issued instructions on 09.02.2007, stating that some 355 terminated teachers were still working, out of which, 193 were drawing salary. Treating such drawal of salary as illegal and a burden on the public exchequer, the Director was directed to stop the drawal of salary by the 193 terminated teachers and to treat them as if they were never in service since their termination w.e.f. 18.05.1992. The said communication also mentioned about initiation of departmental proceeding against the erring officials. This communication was forwarded to the departmental authorities of Dhemaji, who, thereafter, prepared a list of teachers drawing salary after termination on 18.05.1992. In the said list of teachers under Deputy Inspector of Schools, Dhemaji (Urban Area), name of the petitioner was shown at Serial No. 29, in respect of Khagari Dihingia LP School.
9. Petitioner was paid her regular monthly salary till July 2007 and since August 2007, her salary was stopped.
10. Aggrieved, present writ petition has been filed. This writ petition was filed in the year 2008 and is pending since then.
11. Respondent No. 2, i.e., Director of Elementary Education, Assam, has filed an affidavit. Stand taken in the affidavit is that though petitioner was appointed as Assistant Teacher in the Khagari Dihingia LP School on the basis of order passed by the Deputy Inspector of Schools, Dhemaji, on 19.12.1989, there is no mention in the appointment order that such appointment was pursuant to advertisement and select
