Setting Aside Termination for Non-Communication Doesn't Grant Regular Teacher Status: Gauhati High Court

The Gauhati High Court has clarified that quashing a termination order for lack of communication does not automatically entitle an employee to regular status from the original appointment date, especially when subsequent government policies and unchallenged proceedings exist.

A Division Bench comprising Chief Justice Ashutosh Kumar and Justice Arun Dev Choudhury partly allowed an appeal by the State of Assam against a Single Judge’s order that had directed the reinstatement of several primary school teachers as regular Assistant Teachers with all consequential benefits. The Court upheld the setting aside of the 1992 termination orders—issued to teachers appointed in 1989—on the ground that the State failed to prove the orders were communicated. However, the Bench reversed the direction to treat them as regular Assistant Teachers, noting that the teachers had later participated in a screening process and accepted fresh appointments as Tutors under a 2020 Cabinet decision.

Case Background: Appointments, Termination, and a Long Road

The respondents were appointed as Assistant Teachers in various Lower Primary (LP) schools in Dhemaji district in December 1989. The State subsequently asserted that these appointments were irregular—made against non-existent posts, without following departmental norms, and during a ban on recruitments. In March 1992, show-cause notices were issued, and after receiving replies, termination orders were passed in May 1992.

The teachers, however, maintained that they were never served with the termination orders and continued to work. Salary payments were stopped in August 2007, prompting them to file a writ petition (WP(C) 5635/2007). That petition was disposed of in 2012, with the court directing the authorities to verify if the show-cause notices and termination orders had actually been served. The Director of Elementary Education concluded in 2015 that notices and orders had been served, but the teachers disputed this.

Meanwhile, the state government undertook a comprehensive screening exercise to determine the status of irregularly appointed teachers. A Screening Committee was formed, and the respondent teachers—except for a few—submitted their documents and participated. Based on the committee’s report, the Cabinet approved a policy in October 2020 to offer those who had been paid salary up to 2007 but lacked the required professional qualification, fresh accommodation as Tutors (on a fixed pay basis) with prospective effect.

Orders under this policy were issued in January 2021, and most of the teachers accepted and joined as Tutors. They neither challenged the screening proceedings nor the Cabinet decision or the accommodation orders.

The Core Legal Issue

The Single Judge had quashed the termination orders, relying on the settled principle that a termination order becomes effective only upon communication. Citing Dulu Devi v. State of Assam and other Supreme Court judgments, the Single Judge held that the State’s failure to prove communication rendered the termination ineffective, and consequently directed that the teachers be treated as regular Assistant Teachers from 1989 with all benefits.

The State appealed, arguing that the Single Judge had overstepped by granting regular status, especially when the teachers had accepted a subsequent arrangement as Tutors.

Arguments from Both Sides

For the State (Appellants): Led by Mr. NJ Khataniar, the State argued that the original appointments were illegal and that the mere absence of proof of communication of the termination order did not validate the appointments. The State highlighted the subsequent screening exercise and the unchallenged Cabinet decision, which offered fresh accommodation as Tutors. It was contended that granting regular status retrospectively would nullify these proceedings. The State relied on State of Bihar v. Devendra Sharma and R. Vishwanatha Pillai v. State of Kerala to argue that long service cannot cure a fundamentally flawed appointment.

For the Teachers (Respondents): Represented by Mr. N Borah and Mr. P Hazarika, the teachers contended that their appointments were made through a selection process and that they had continued to serve without interruption. They argued that the termination orders were never served, and that the State’s own subsequent conduct—including issuing confirmation orders and allowing them to cross efficiency bars—indicated that they were treated as regular employees. They also cited Mohor Ali Seikh v. State of Assam , where a coordinate bench had held that teachers appointed as tutors are entitled to a scale of pay.

Legal Analysis: Communication vs Regularisation

The Division Bench carefully distinguished between the invalidity of the termination and the right to regular status. The Bench upheld the Single Judge’s finding that the termination orders were ineffective because communication was not established—reiterating the principle from Dulu Devi and Union of India v. Dinanath Shantaram Karekar that “the mere passing of an order or retaining the same on the file does not, by itself, amount to the communication of the order to the employee.”

However, the Bench noted that the Single Judge had erred in “assuming that, once the termination orders are held to be ineffective for want of communication, the petitioners must necessarily be treated as regular Assistant Teachers from the date of their original appointments and granted all consequential service benefits.” The Court emphasized that the legality of the original appointment remains a separate question.

The Bench also observed that the teachers had willingly participated in the state’s screening process and accepted the subsequent accommodation as Tutors without challenging the Cabinet decision or the screening committee’s categorization. “A Court exercising its jurisdiction under Article 226 of the Constitution of India cannot, while deciding the limited question of the effectiveness of the 1992 termination order, grant a consequential declaration that would nullify or render nugatory subsequent unchallenged policy decisions and proceedings,” the judgment stated.

Key Observations

“Setting aside an ineffective order of termination does not amount to a declaration that the original appointments were made in accordance with the prescribed recruitment procedure or that the appointee acquired an indefensible right to the post and all statutory benefits attached to a regular appointment.”

“The fact that a person has worked for a long period, even if such service has been permitted by the authorities, cannot, by itself, create a substantive right to a regular post when the subsequent governmental process has dealt with the appointment in a different manner, and the consequential orders have not been challenged.”

“The mere passing of an order or retaining the same on the file does not, by itself, amount to the communication of the order to the employee.”

The Decision

The Gauhati High Court partly allowed the appeal. It upheld the setting aside of the termination order dated 18 May 1992 for want of proof of communication. However, it set aside the direction that the teachers be treated as regular Assistant Teachers for all purposes and granted all consequential benefits.

The Court directed the competent authority to consider extending an appropriate scale of pay to the teachers in their capacity as Tutors, in line with the law and the decision in Mohor Ali Seikh (supra) . The writ appeal was disposed of with no order as to costs.

The judgment clarifies a crucial distinction in service law: an uncommunicated termination is void, but it does not automatically transform an irregular appointment into a regular one—especially when the employee has subsequently accepted a different arrangement under government policy.