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2018 Supreme(Gau) 846

IN THE HIGH COURT OF GAUHATI
Ujjal Bhuyan, J.
State of Assam and Ors. - Appellants
Vs.
Farman Ali (Md.) - Respondent
Rev. Pet. No. 57 of 2017
Decided On : 06-03-2018

Advocates:
Advocate Appeared:
For the Appellants : P. Chakraborty

Headnote:

Constitution of India - 1950 – Appointment – Quashed - Related writ petition filed for quashing order passed Inspector Schools District Circle terminating service respondent Assistant Teacher direction to review petitioners continue his service Assistant Teacher – Held, When termination order was found illegal and petitioner was directed to be reinstated in service declaration that petitioner would entitled all benefits consequential direction - Principle work no pay would have application in case of this nature - Petitioner did not keep away from work his own volition rather he was forcibly kept away from work because termination order issued review petitioners which found illegal by writ Court thereby interdicted - Denial back wages arrear salary in such case would amount indirectly punishing employee who suffered for illegal act employer - Please see Gundu Junior – Petition dismissed

ORDER :

Ujjal Bhuyan, J.

1. Heard Ms. P. Chakraborty, learned counsel for the review petitioners. State of Assam in the Secondary Education Department and Director of Secretary Education, Assam are the review petitioners. This petition seeks review of judgment and order dated 19.12.2014 passed by the writ Court in WP(C) No. 2525/2012 allowing the writ petition filed by the respondent

2. Related writ petition was filed for quashing of order dated 21.05.2012 passed by the Inspector of Schools, Nalbari District Circle terminating the service of the respondent as Assistant Teacher and for a direction to the review petitioners to continue his service as Assistant Teacher.

3. Grievance of the respondent (writ petitioner) was summed up by the writ Court in the following manner:-

"5. An advertisement was issued by the Education Department, Govt. of Assam on 03.09.1991 for filing up of about 200 vacancies in the post of Assistant Teacher in provincialised higher secondary schools of the State. Petitioner applied pursuant to the said advertisement and participated in the selection. Select list was prepared legislative assembly constituency wise and in respect of Barkhetri constituency in the district of Nalbari which concerns the petitioner, the select list was published on 04.01.1995. Petitioner was selected and was placed at Sl. No. 13 in the said select list.

6. Inspite of his selection, petitioner was not appointed though all the candidates placed above him in the said select list were appointed and even some candidates placed below the petitioner in the select list were appointed. At this stage, petitioner approached this Court by filing Civil Rule No. 1474/1996 which was heard alongwith other similar cases. This Court by the common judgment and order dated 2.8.1997 disposed of the said writ petition alongwith other connected cases by directing the Commissioner and Secretary to the Government of Assam, Education Department and the Director of Secondary Education, Assam to cancel the appointments of persons outside the select list as well as the appointments of all those persons who were not entitled to appointment on the basis of their merit position in the select list and in their place to offer appointment to the persons who were entitled to appointment as per their merit position in the select list.

7. Petitioner was appointed as Assistant Teacher in the Raghu Nath Choudhury Higher Secondary School vide order dated 31.10.1998 issued by the respondent No. 3 pursuant to which he joined on 03.11.1998. Following the above judgment, Government of Assam passed an order dated 28.12.1998 finalising a list of deserving candidates entitled to appointment which included the petitioner in respect of Barkhetri constituency. Thereafter, the service of the petitioner was adjusted against a non-plan vacant post vide order dated 10.03.1999. Since his joining on 03.11.1998, petitioner rendered service as Assistant Teacher without any break. His service book has been opened and his GPF contribution is regularly deducted from his salary.

8. Long thereafter on 18.05.2012, respondent No. 3 issued show-cause notice to the petitioner calling upon him to show-cause as to why his service should not be terminated. It was alleged that petitioner received appointment during 1998 on the basis of a purported select list which had been declared as not genuine. It was stated that the High Court in WP(C) No. 3949/2001 had doubted the validity of the select list. Therefore, his appointment was treated not only as irregular but also as illegal. Ten days time was granted to the petitioner to submit his show-cause reply. However, without waiting for the petitioner's reply or expiry of the show-cause period of 10 (ten) days, respondent No. 3 passed the impugned order dated 21.05.2012 terminating the petitioner's service forthwith. It was stated that the show-cause noti





















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