High Court · 2012

The petitioner is aggrieved by Annexure-11 order dated 03.03.200 9 by which the service of the petitioner as Assistant Teacher in Pachim Chpra L. P. School has been terminated on the ground of non-fulfilling the conditions of appointment such as issuance of advertisement; approval of the State Level Empow ered Committee; non-availability of records of holding interview and preparation of the score sheets; non-availability of list of the candidates and finally non -approval of the then BAC authority for appointment. The impugned order was prec eded by the show cause notice dated 19.07.2008 issued by the Director of Educati on, BTC, Kokrajhar. In the notice, it was alleged as follows: (a) sed by the Govt. of Assam. (b) d by the Govt. of Assam. (c) The approval and clearance of the State Level Empowered Committee which was prerequisite for appointment was not obtained prior to issuing your appointm ent letter and even thereafter. (d) uthority. (e) (f) ppointment. (cid:29) You have been appointed against a non-sanctioned and non-existent post. No salary bill was prepared or drawn in our name from the date of your a Your appointment was made during the period of ban on appointment impose Your appointment was never approved by the erstwhile BAC the competent a

2. The petitioner had responded to the said show cause notice by submittin g his written reply on 31.07.2008 (Anexure-8). In the reply he mentioned about t he advertisement for filling up of the posts of the Assistant Teacher in L.P./M. E./M.V. Schools and offering of his candidature alongwith the treasury challan bearing No. 40 dated 02.01.1997, and also appearing in the selection with Roll N o. 1585. He also contended that the selection was conducted for Non-BTC area by the Directorate of Elementary Education, Assam and consequent upon his selection , he was appointed by Annexure-2 order dated 24.12.1998 issued by the D.I. of Sc hools, Nalbari. It was also contended that although he was initially appointed a s Stipendiary Teacher at monthly stipend of Rs. 900/-, but subsequently he havin g cleared the requisite training, he was provided with salary in the time scale of pay. In the show cause reply, the petitioner had also questioned the jurisdic tion of the BTC in issuing the show cause notice as according to the petitioner, he was appointed by the Directorate of Elementary Education in Non-BTC area.

3. Alongwith the show cause reply the petitioner also submitted a number of documents such as appointment order; joining report; certificate dated 13.07.20 07 issued by the Treasury Officer, Tihu showing drawal of salary; yearly stateme nts of GPF Account bearing No. PED/269771; Teachers Training pass certificate da ted 05.03.2004 etc. He also submitted other relevant documents such as documents pertaining to interview; Treasury Challan; transfer order; certificate issued b y the Headmaster etc.

4. After the service of the petitioner was terminated by Annexure-11 dated 03.03.2009 on the ground aforementioned, the petitioner submitted an appeal to t he Secretary to the Govt. of Assam in the Education (Elementary) Department seek ing interference in the matter. Alongwith the said appeal, the petitioner also s ubmitted all the relevant documents mentioned in the show cause notice. However, there being no response from the Secretary, Elementary Education, the petitione r had no option than to approach this court by means of this writ petition.

5. The respondents have filed their counter affidavit. In the affidavit fil ed by the Director of Education, BTC (respondent No. 4), it has been contended t hat the advertisement annexed to the writ petition was not meant for the BAC are a. It has been stated in the affidavit that the very appointment of the petition er in the school called Ranakuchi L.P. School is illegal inasmuch as the said sc hool being within the territorial jurisdiction of the then BAC area, the Directo r of Elementary Education, Assam could not have appointed the petitioner without consulting the authorities in the BAC. A copy of the Gazette notification date d 09.04.1999 has been annexed to the affidavit to show that Ranakuchi L.P. Schoo l is within the territorial jurisdiction of the BAC. The basic thrust of the aff idavit is that the petitioner having been appointed in a school included in the BAC area, same aught to have had the approval of the BAC and that the petitioner could not have been appointed by the Govt. of Assam without carrying out the re quired consultation with the authority of the BAC.

6. The Govt. of Assam in the Education Department has filed three affidavit s out of which two by Shri Dhandeb Mahanta, the earlier Director of Elementary E ducation and another by Shri Girish Ch. Sarma, D.I. of Schools, Nalbari. In the first affidavit filed by the Director of Elementary Education, Assam, it has bee n contended that the school in which the petitioner was first appointed falls wi thin the jurisdiction of the BTC area. Without taking any definite stand in the affidavit, the burden has been shifted to the petitioner to prove that he was le gally appointed. Likewise, in the second affidavit also, the Director has shifte d the burden to the petitioner to prove that he was appointed following due proc edure. However, both the affidavits do not disclose any material particulars as to why the appointment of the petitioner is not sustainable in law.

7. In the affidavit filed by the D.I. of Schools, Nalbari also, only the fa cts stated in the writ petition have been reiterated. Narrating the service part iculars of the petitioner, it has been stated that he having not disclosed the m aterial particulars regarding selection and appointment, his service has been te rminated by the authority of the BTC.

8. The petitioner has filed affidavits in reply to the aforesaid affidavits in which it has been categorically stated that at the time when the selection w as made and the petitioner was appointed as Assistant Teacher of Ranakuch L.P. S chool, the same was within the BTC area. Referring to the Gazette notification a nnexed to the affidavit filed by the Director of Elementary Education, BTC which is dated 09.04.1999, the petitioner has stated that the selection having been conducted in 1997 and he having been appointed on 24.12.1998, the Gazette notifi cation being later point of time, it cannot be argued that the school in questio n was within the BTC area. The petitioner has also referred to RTI application s ubmitted to the D.I. of School seeking required information regarding his select ion and appointment and the reply furnished by the said authority on 22.01.2010. On perusal of the said reply, it appears that the required information could no t be furnished. Alongwith the reply affidavit, the petitioner has enclosed a co py of the Treasury Challan receipt clearly indicating that he had applied for t he post of L.P. School teacher under the Directorate of Elementary Education, As sam. He has also enclosed the documents showing endorsement of receipt of his ap plication and assignment of roll number etc.

9. Mr. B.D. Das, learned senior counsel assisted by Mr. H.K. Sarma, learned counsel for the petitioner submits that the petitioner having been appointed fo llowing the due procedure, his service could not have been terminated in the man ner and method in which the same has been done. According to him, there is gross violation of the principles of natural justice. As regards the decision of this Court reported in (2010) 5 GLR 513 (Jagannath Kr. Dey vs. State of Assam and or s.) on which the respondents have placed reliance, he submits that the facts inv olved in the said case are totally different and consequently, the said judgment cannot be applied to the case of the petitioner. As in the instant case, in the said case also the service of the Elementary School teachers had been terminate d upon issuance of the show cause notice. Such termination of service was upheld when there was failure on the part of the appointees to produce any relevant do cuments such as advertisement, documents relating to selection etc. In that case , the advertisement was allegedly hanged in the notice Board by the office and t he petitioners had applied in response to the said employment notice. However, n o material particulars such as when they were invited for the selection and who had conducted the selection etc. could be disclosed. Mr. K. Das, learned SC, BTC fairly submits that when the selection was c 10. onducted, the school in question in which the petitioner was appointed was not w ithin the territorial jurisdiction of the BAC. However, referring to Annexure-4 order dated 06.06.2000 by which the petitioner was transferred to Pachim Chapara L.P. School which falls within the BAC area, he submits that the petitioner cou ld not have transferred to the said school without the approval of the BAC. The order was issued by the Block Elementary Education Officer, Tihu, Barama, transf erring the petitioner from No. 1130 Khana L.P. School to Pachim Chapara L.P. Sch ool (BAC). Referring to the Gazette notification filed by the BTC, he submits t hat the said Gazette notification dated 09.04.1999, notifying the BAC area, Rana kuchi village was included in BAC area. According to him, the same was preceded by another order dated 15.02.1999 by which also village Ranakuchi was included in the BAC. However, he fairly submits that when the selection was conducted in 1997 and the petitioner was appointed in 1998, Ranakuchi village was not in th e BAC area.

11. Mr. M.R. Pathak, learned Standing counsel appearing alongwith Ms. R. Cho kraborty, learned SC, Education Department, submits that there were wide anomali es/irregularities in conducting the selection which would require detailed enqui ry. As regards the stand in the said two affidavits filed by the Director of Ele mentary Education, Assam that Ranakuchi village is within the BAC area, he submi ts that the said stand is on the basis of the aforesaid Gazette notification. Ho wever, as regards the selection of the petitioner as highlighted in the report he could not contradict the same.

12. During the course of hearing of the writ petition, Mr. B.D. Das, learned counsel for the petitioner has produced the certificates dated 26.04.2010, 11.0 5.2010 and 17.04.2010 issued by the Circle Officer, Tihu ; Gaonburha of the vill age Ranakuchi and the Block Elementary Education Officer, Tihu. As per the said certificates, Ranakuchi village is still within Non-BTAD area. The question for determination is as to whether the petitioner was validly appointed and if so, by which authority. In support of the claim of the petitioner that he was validl y appointed, he has annexed a copy of the employment notice notifying various p osts of Assistant Teacher for L.P./M.E./M.V. schools. The last date of submissio n of application was 20.01.1997. The petitioner has also enclosed a copy of the Treasury Challan which was submitted alongwith the application. The said Treasur y Challan is dated 02.01.1997 and the same clearly indicates that it was in con nection with the application for the post of L.P. School teacher. The petitioner has also enclosed the documents endorsing the receipt of the application, regis tering the petitioner under serial No. 1585 etc. Most significantly the asserti on made by the petitioner that the teachers appointed alongwith him as indicated in Annexure-3, are still continuing in their services and their services have n ot been disturbed in any manner, has not been controverted by the respondents. According to the petitioner, the teachers named in Annexure-3 documents were app ointed alongwith the petitioner pursuant to the said advertisement and the selec tion in which all of them had appeared. This specific assertion made by the pet itioner has not been denied by the respondents in their affidavits.

13. Although the petitioner was appointed in Ranakuchi L.P. School by Annexu re-2 order dated 24.12.1998, but he could not join there as he was not allowed t o join in the said school. Thereafter the order dated 06.01.1999 was issued by t he respondent No. 3 and he was attached to 2 No. Nathkuchi L.P. School and joine d the said school on 08.01.1999. Thereafter he was transferred to 1130 No. Khana L.P. School by order dated 03.02.1999. Again he was transferred to Pachim Chapa ra L.P. School, which is under BAC area, by order dated 06.06.2000. In terms of the order of appointment he was provided with monthly stipend of Rs. 900/-. The appointment order stipulated that he would be entitled to get the regular scale of pay only after completion of prescribed training. As per the said stipulatio n, the petitioner on clearing of the basic training started receiving his pay in the time scale of pay from April, 2004. He received salary upto November, 2008. However, trouble started with the issuance of the show cause notice dated 19.07 .2008 referred to above. It is submitted that the petitioner has also received s alary up to the month of July, 2009. It is also submitted that although the impu gned order was issued on 03.03.2009 terminating the service of the petitioner, b ut same was not served on the petitioner immediately and he continued to receive d salary upto July, 2009. It is only thereafter his salary was stopped on furnis hing the copy of the order coupled with Annexure-10 communication dated 18.08.20 09 by the Headmaster of the school asking him not to discharge his duties and fu nctions in the school.

14. It appears that the case of the petitioner was mistakenly taken up alon gwith those illegal appointees whose dismissal from service has been upheld by t he Court in Jagannath Kr. Dey (supra). Although the respondents have placed rel iance on the said judgment to resist the case of the petitioner, but on perusal of the said judgment, it appears that the facts involved in the said case are t otally different than the facts involved in this case. In the instant case the advertisement was issued in 1996 and the selecti 15. on was held in 1997. But in case of the petitioners involved in the said judgmen t, there was no public advertisement. Only an employment notice was purportedly hanged in the notice Board. As against the advertisement of 1996 involved in th e instant case, in the said case the purported advertisement was issued on 07.07 .1999 and the interview was allegedly held from 18.08.1999 onwards. The petition ers involved in the said case were appointed much after the appointment of the p resent petitioner on different dates, such as 03.12.1999, 04.12.1999 and 06.12.1 999. Admittedly all of them were appointed in the schools falling within the BAC area. Selection was also held for the said area unlike the present case in whic h the selection was for Non-BAC area. By the show cause notice, the petitioner was directed to substantiate hi 16. s claim that he was legally appointed. It was alleged that appointment was not p receded by any advertisement and selection. It was also alleged that he was appo inted during the ban period of appointment. It was further alleged that approval of State Level Empowered Committee was not obtained. Further allegation made in the show cause notice was that the appointment of the petitioner was not approv ed by the BAC authority and he was appointed against non-sanctioned and non-exis tent post. It was again alleged that no salary bill had been prepared and drawn in favour of the petitioner.

17. The petitioner in his show cause reply clearly indicated that the appoin tment in question was for Non-BAC area and accordingly the selection was conduct ed by the Directorate of Elementary Education, Assam. Referring to the alleged b an period, it was contended that the ban was imposed w.e.f. 06.12.1999, but the petitioner was appointed on 24.12.1998. As regards the allegation that his appoi ntment was not approved by BAC authority, it was contended that no such approval was required as he was not appointed by BAC authority and for that matter in BA C area. So far as the allegations of appointment made against non-existent post is concerned, the petitioner made the position clear that he was appointed as St ipendiary Teacher against a converted sanctioned post created by notification da ted 16.11.1991.

18. Merely because the petitioner was transferred after initial appointment to a school falling under BAC area, his appointment cannot be termed as the appo intment within BAC area. Although Mr. Das, learned SC, BTC has argued that the a uthority could not have transferred the petitioner to a school falling under BTC area, but the same is not the issue in this writ petition. Even otherwise also the petitioner having been transferred to Pachim Chapara L.P. School which is un der BAC area vide order dated 06.06.2000 issued by the Block Elementary Educati on Officer, Tihu and thereafter there being no objection to the same by the BTC authority over the years, it will have to be presumed that there was tacit appro val on the part of the BAC. The fact of the matter is that the petitioner upon h is transfer to the said school continued to discharge his duties and functions a nd he continued to receive his salary upto July, 2009. That apart, the Annexure- 4 transfer order dated 06.06.2000 is not the foundation of the show cause notice and the termination of service of the petitioner by the impugned order.

19. For all the aforesaid reasons, the impugned order dated 03.03.2009 (Anne xure-11) issued by the Director of Education, BTC, Kokrajhar stands set aside an d quashed. The petitioner shall be deemed to be in service all through out with all consequential service benefits. However, in view of the facts and circumstan ces involved in the case, he may be paid 50% of the salary instead of full back wages. The petitioner shall be reinstated in service forthwith.

20. rder as to costs. With the above directions, writ petition is allowed. There shall be no o