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2020 Supreme(Gau) 664
IN THE HIGH COURT OF GAUHATI
Manish Choudhury, J.
Lovely Singha - Appellant
Versus
State Of Assam And Others To Be - Respondent
Writ Appeal No. 61 of 2020
Decided On : 15-12-2020
H.R.A. Choudhury, Advocate, Sc, Advocate, Elem, Advocate
The main legal point established in the judgment is that appointments made in contravention of the prescribed selection process under the Assam Elementary Education (Provincialisation) Rules, 1977 are illegal and void ab initio.
Headnote:
Appointment - Statutory Rules - Assam Elementary Education (Provincialisation) Rules, 1977 - Summary of the acts and sections referenced and discussed by the court: The court discussed the provisions of Rule 3 of the 1977 Rules, which prescribe the method of recruitment of teachers in provincialised elementary schools. The court highlighted that any appointment made in contravention of the procedure prescribed by the 1977 Rules is illegal, as affirmed by the Hon'ble Supreme Court in Nazira Begum Lashkar and others vs. State of Assam and others, reported in (2001) 1 SCC 143. The court also referred to the decision in Heramba Kumar Saikia and others vs. State of Assam and others, reported in 2017 (2) GLT 109, where a Division Bench found the appointments of teachers to be not legally sustainable due to non-compliance with the statutory rules.
Fact of the Case:
The appellant-petitioner was appointed as a Stipendiary Teacher at a Lower Primary School without following the prescribed selection process under the Assam Elementary Education (Provincialisation) Rules, 1977. The services of the appellant-petitioner were terminated based on an enquiry report that found the appointments of teachers in the district to be illegal.
Finding of the Court:
The court found that the initial appointment of the appellant-petitioner was not preceded by any process of selection under the statutory rules, rendering it void ab initio. The court also noted that the appellant-petitioner was given the opportunity to be heard in the enquiries conducted, and any further opportunity of hearing as regards the termination of services would not have any bearing on the final result.
Issues: The issues involved the legality of the appellant-petitioner's appointment as a Stipendiary Teacher and the subsequent termination of her services based on the findings of an enquiry report.
Ratio Decidendi: The court held that the appointment of the appellant-petitioner was illegal as it did not comply with the prescribed selection process under the Assam Elementary Education (Provincialisation) Rules, 1977. The court also emphasized that the principles of natural justice were not violated in the termination of services, and any further opportunity of hearing would not change the outcome.
Final Decision: The writ appeal was dismissed, and no order as to cost was made.
JUDGMENT
Manish Choudhury, J. - This writ appeal is presented against the judgment and order dated 24.08.2018 passed by the learned Single Judge in the writ petition, W.P.(C) no. 2888/2013 whereby the challenge made by the writ appellant as the writ petitioner, to the order of termination of her services passed by the Deputy Inspector of Schools, Mangaldoi on 12.10.2012 was negated by the learned Single Judge by holding that the initial appointment of the writ appellant-writ petitioner as Assistant Teacher in Lower Primary School was dehors the statutory rules of recruitment and her appointment was void ab initio.
2. The facts leading to the filing of the writ petition, as projected in the writ petition, may be narrated, in brief, as follows :
2.1. The Director of Elementary Education, Assam issued an order dated 26.03.1999 wherein it was mentioned that 6 (six) posts of Primary School (Mixed Medium) Teachers were allotted and placed at the disposal of the Deputy Inspector of Schools, Mangaldoi, District Darrang as per the list annexed as Annexure A thereto, subject to fulfillment of the conditions therein. With the said order, a list containing names of 6 (six) persons and names of 6 (six) schools was purportedly annexed as Annexure A wherein the name of the appellant-petitioner was found mentioned against Mahiakhat Lower Primary School. Subsequent to the said order dated 26.03.1999, the Deputy Inspector of Schools (I/C), Mangaldoi, District Darrang issued an order on 04.12.1999 whereby the appellant-petitioner was temporarily appointed as a Stipendiary Teacher at Mahiakhat Lower Primary School with monthly stipend of Rs. 1,800/-. The appellantpetitioner accordingly joined the said post on 06.12.1999.
2.2. It was a condition in the order dated 04.12.1999 that the appellant-petitioner would initially get a monthly stipend of Rs. 1,800/- and subsequently, would be deputed to undergo basic training for a period of 1 (one) year and upon successful completion of such training, she would be given regular scale of pay. By an order dated 19.05.2003 of the District Elementary Education Officer, Darrang, Mangaldoi, a number of Primary School Teachers including the appellant-petitioner, were released for undergo Junior Basic Training in different training institutions. Accordingly, the appellant-petitioner took part in the training course and passed the Assam Basic Junior Teacher's Training Certificate Final Examination from Biswanath Chariali DIET Centre. A certificate dated 22.04.2004 was issued to that effect. Upon completion of such training, the appellant-petitioner came to be appointed in Mahiakhat Lower Primary School in the regular scale of pay, by an order dated 03.01.2005 of the Deputy Inspector of Schools, Mangaldoi. Thereafter on 01.06.2005, the appellant-petitioner was transferred in her own post and grade from Mahiakhat Lower Primary School to Salaimari Lower Primary School by an order of even date passed by the Block Elementary Education Officer, Khoidabari Block. The services of the appellant-petitioner as Primary School Teacher got confirmed w.e.f. 01.12.2004 by an order dated 25.07.2008 when she was serving at Salaimari Lower Primary School.
2.3. It was the case of the appellant-petitioner that the then Deputy Inspector of Schools, Mangaldoi by an order date 26.09.2012, brought 158 nos. of posts serving under OBB (CSS) Scheme under non-plan posts for the period from 01.03.2012 to 28.02.2013 and amongst the names therein, the name of the appellant-petitioner was included. But while the appellantpetitioner was serving as Assistant Teacher at Salaimari Lower Primary School, the Deputy Inspector of Schools, Mangaldoi all of a sudden, by the impugned order dated 12.10.2012, cancelled the retention of the appellant-petitioner's post by making reference to a termination order of 285 nos. of Primary School Teachers dated 09.10.2012 of the Director of Elementary Education, Assam. Aggrieved by such termination of her service, the app
