High Court
Case Details
WP(C) 629/2007 BEFORE HON’BLE MR. JUSTICE UJJAL BHUYAN Heard Mr. S.K. Goswami, learned counsel for the petitioner and Ms. P. Chakrabort y, learned Standing counsel, Education Department. 2. By way of this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 26.12.2006 passed by the Director of El ementary Education, Assam directing the Headmaster of Tihu Adarsha Jr. Basic Sch ool to disallow the petitioner to work in the institution with immediate effect. Facts of the case may be briefly noted. 3. The Managing Committee of Makhibaha Mathurapur Prathamik Bidyalaya appoi 4. nted the petitioner as Assistant teacher in the said school on 27.07.1980, pursu ant to which he joined his service. The said school was provincialised w.e.f. 01 .03.1982. However, the service of the petitioner was not provincialised. Assista nt Inspector of Schools, Tihu Circle inspected the school on 11.09.1989 and as p er inspection report, petitioner was found working in the school since 01.08.198 0 on being appointed by the school Managing Committee on 27.07.1980. 5.
Legal Reasoning
Petitioner had approached this Court earlier in Civil Rule No. 3891/1998 seeking a direction to the respondents to appoint him as Assistant teacher in t he said school. After considering the factual context of the petitioner’s claim, this Court disposed of the said writ petition vide order dated 12.08.1998, dire cting the petitioner to submit a detailed representation to the Joint Secretary to the Government of Assam, Education Department, who was also the Chairman of t he Teachers’ Grievance Cell, through the Deputy Inspector Schools, Nalbari, who was also directed to forward such representation with his comments to the Chairm an for consideration and passing of necessary order. 6. Petitioner submitted representation which was forwarded by the Deputy In spector of Schools with his comments. What happened thereafter is not quite clea r but the Deputy Inspector of Schools, Nalbari passed an order dated 08.10.1999 appointing the petitioner as Assistant teacher in the said school against an exi sting vacancy on monthly stipend basis. Petitioner was deputed to undergo teache r’s training in the District Institute of Education and Training (DIET), Howly. After the petitioner successfully completed the training, he was paid the regula r scale of pay. Thereafter, by order dated 27.11.2002 passed by the Deputy Inspe ctor of Schools, Nalbari, the service of the petitioner was adjusted at Tihu Ada rsha L.P School. 7. Petitioner was served with a notice dated 08.09.2006 issued by the Direc tor of Elementary Education, Assam asking him to show cause as to why his appoin tment should not be treated as illegal and should not be cancelled. Petitioner s ubmitted his show cause reply. However, by the impugned order dated 26.12.2006, he was removed from service. 8. lief(s) as indicated above. 9. This Court by order dated 07.02.2007 while issuing notice had suspended the impugned order dated 26.12.2006 till the returnable date. However, on the re turnable date, this Court was not inclined to stay the impugned order. Thereafte r, by a subsequent order dated 04.01.2008, the Court on being prima facie satisf ied that the present case is distinguishable from the cases of illegally appoint ed teachers in Nalbari District, directed that the present case be delinked from the batch of illegally appointed teachers and further directed that the interim order dated 07.02.2007 would continue to govern the parties. Aggrieved, petitioner has filed the present writ petition seeking the re
Legal Reasoning
10. Respondents have neither filed any affidavit nor any application for vac ation/modification of the order dated 04.01.2008, though this case is pending si nce the year 2007. 11. Today at the hearing, Mr. Goswami, learned counsel for the petitioner su bmits that following the interim order of this Court, petitioner continued in se rvice and finally retired on attaining the age of superannuation on 28.02.2007. He, however, submits that because of the impugned order dated 26.12.2006, petiti oner has not received any retirement dues. 12. Learned counsel for the petitioner submits that the impugned order was p assed in a very casual manner without considering the case of the petitioner in its proper perspective. It was not a case of fresh appointment but a case of pro vincialisation of service under the Assam Elementary Education (Provincialiation ) Rules, 1977. He further submits that no proper enquiry was conducted and whate ver enquiry was conducted, report was not furnished to the petitioner. Therefore , there is violation of the principles of natural justice. Learned Standing counsel expresses her difficulty in the absence of any 13. affidavit filed by the respondents. She, however, submits that the contention of the petitioner would require re-verification of facts by the Department. 14. 15. Submissions made have been considered. The impugned order dated 26.12.2006 reads as under:- (cid:28)Whereas the report of the Enquiry Committee constituted vide Govt. Noti fication No. AEE661/2002/1 dated 26/06/2006 and pursuant to the Govt. letter No. AEE.877/06/38 dated 24/8/2006 reveal that Sri Padma Ram Kalita was not appointe d as per the Assam Elementary Education (Provincialisation) Rules, 1977. That he obtain appointment in violation of the said rules. Whereas he was not selected as per rules for appointment as a teacher, i t appears that his appointment was made in violation of rules. Whereas the appointment was not made against valid sanctioned post his a ppointment was not as per rules. Whereas he was served with show cause notice duly dated 8.9.2006 and the reply submitted by him dated 15.9.2006 was not found satisfactory. Hence it is hereby ordered that he has no legal right to continue as a t eacher of the institution any more and the appointment letter, if any, is infruc tuous and is treated as if it was never served. The Head of the said institution is hereby ordered to disallow the perso n to work in his/her institution with immediate effect. Sd/- (B.K. Nath) Director Elementary Education, Assam Kahilipara, Guwahati-19 Memo No. EAA/NAL/ENQ/386/06/13 Dated Kahilipara, the 26th December,2006 (cid:29). 16. A perusal of the aforesaid order would indicate that the respondents had considered the case of the petitioner as a fresh candidate seeking recruitment. Learned counsel for the petitioner has demonstrated from the documents placed o n record which were earlier also looked into by this Court that it was a case of petitioner’s service being left out at the time of provincialisation of the sch ool. This aspect would be borne out from the Inspector’s report submitted by the departmental authority. Petitioner’s case was considered by the Teachers Grieva nce Cell and, thereafter, he was appointed. He had also undergone the teacher’s training course whereafter, he was granted the regular scale of pay. 17. In view of above, the finding recorded by the Director of Elementary Edu cation that the petitioner was not selected as per Rules does not appear to refl ect the correct position. 18. As already noticed above, the impugned order was stayed by this Court pu rsuant to which petitioner had rendered his service and paid his salary and, the reafter, he had retired on superannuation. It is seen from the documents placed on record that petitioner had rendered service as a teacher for about 27 years s ince his initial entry. 19. m the retirement dues for the services rendered by him. 20. Consequently, the impugned order dated 26.12.2006 is quashed. Since peti tioner has retired, respondent shall ensure that he receives his retirement dues In such circumstances, it would neither be fair nor justified to deny hi without any further delay. 21. Writ petition is allowed.