Zulekha Wahida Ahmed v. State of Assam) & Ors.

Heard Mr. P. Pathak, learned Sr. Counsel, Mr. I. Choudhury, Mr. D. Choudhury and Mr. H. Buragohain, learned counsels for the petitioners as well as Mr. P.N. Gos wami, learned Standing Counsel, Education Department. Since the facts involved i n all the cases and the issues raised are one and the same, they have been heard together and are being disposed of by this common judgment and order.

#2. The petitioners who were serving as Subject Teacher (Zoology) in various Higher Secondary Schools are aggrieved by orders dated 7.6.2011/25.7.2011, by w hich their services as such have been terminated. Such a course of action was ad opted pursuant to the judgment and order of this Court in PIL No. 14/2010/WP(C) No. 3178/2008 (Zulekha Wahida Ahmed Vs. State of Assam & Ors.)

#3. In the said writ petition, the case of the petitioner was that although she was entitled to get appointment as Subject Teacher, but she was deprived of the same, but on the other hand the candidates below her had been appointed.

#4. Having regard to the allegations made in the said writ petition, the wri t petition was converted to a PIL and the Division Bench of this Court after mon itoring the case, relevant report etc. from the SIT, finally decided the matter vide judgment and order dated 6.8.2010.

#5. Basing on the SIT report, the Division Bench was of the opinion that som e illegal appointments were made during the period 1995-2001. The proceeding was concerned with the selection that was conducted in 1995 pursuant to an advertis ement issued in 1992 for 20 posts of Subject Teacher in Zoology. According to th e SIT report, deserving candidates were not appointed and some undeserved candid ates, whose merit positions were down below in the select list had been appointe d. It was also alleged that the persons whose name did not figure in the select list had also been appointed.

#6. Under the aforesaid circumstances, the Division Bench made the following observations: (cid:28)10. In this case it has become quite apparent that undeserving candidates were appointed during 1995-2001 to the 20 posts of Zoology Subject Teachers in differ ent provincialised Higher Secondary Schools in Assam. When such illegal appointm ents are found to have been made appropriate judicial order(s) for termination o f such illegal appointment has to follow. In the present case however all such a ppointees are not before the Court i.e. Smti Manimala Kakoti, Smti. Banti Talukd ar, Smt. Gitanjali Deka (from Group-A); Smti. Bijuli Chakraborty (from Group-B) and Smti Dipali Bora (from Group-C). All the relevant facts i.e. circumstances i n which the 7 regularisation under Group-B and 3 regularisation under Group-C we re made are not before the Court. Whether such regularisation was against the ad vertised posts is also not known with certainty. In such circumstances it may no t be appropriate for the Court to pass any order for cancellation of the appoint ments. But considering the information gathered by the S.I.T, we deem it appropr iate to direct the State to take into account the report of the S.I.T. and there after take appropriate steps to discontinue the services of such appointees who got undeserved appointments. Of course if any adverse action is to be taken agai nst any appointee, they ought to be given an opportunity before termination orde rs are issued.

#11. Since relevant Government records pertaining to appointment in public office s have gone missing and were consequently withheld from scrutiny of the Court, n ecessary steps be taken by the State to unearth the missing records. Departmenta l action be taken against the persons identified by the S.I.T. as responsible fo r the above. The State must also fix responsibility and proceed against the erra nt officials who may be found to be responsible for the appointments that may be eventually set aside by the State.

#12. In so far as the relief claimed by the petitioner, considering that she is at merit position NO. 47 in the select list, she can claim appointment only a s per her turn. If vacancies become available through termination of illegal app ointees and if appointment is refused by those who are in higher merit position than the petitioner, only then the petitioner can be offered appointment. Accord ingly if the petitioner’s turn comes in order of merit she may then be appointed to the post of Subject Teacher of Zoology by virtue of her selection. However, considering the fact that the petitioner had largely conducted the present proce eding on her own and her painstaking efforts and perseverance have had same impa ct on attempts at cleansing public life the Court directs that the petitioner sh ould be suitably compensated for the efforts by payment of cost of Rs. 25,000/- (Rupees twenty five thousands) only which will be paid to her by the State Gover nment in the Education Department within 30 days from today. (cid:29)

#7. Pursuant to the said judgment and order, the candidates whom the authori ty suspected to have been appointed illegally were issued with the individual sh ow cause notices asking them to have their say in the matter. There is some disp ute regarding actual service of notice on some of the candidates. Some of the ca ndidates responded to the said show cause notice and some appeared in the office of the Director of Secondary Education and their statements were extracted. After observing the aforesaid formalities, the services of the petitione 8. rs have been terminated by the impugned orders dated 7.6.2011/25.7.2011. It will be pertinent to mention here that in all the show cause notices, same kind of a llegations had been made and even in the impugned orders of termination, the sam e ground has been stated for such course of action.

#9. It is in the above context, the learned counsels for the petitioners hav e submitted that there was no objective assessment of the mater and that everyth ing was done mechanically only to comply with the directions of this Court in th e aforesaid judgment and order.

#10. Mr. I. Choudhury, learned counsel involved in WP(C) No. 3954/2011 has pl aced reliance on the decision reported in (2001) 10 SCC 11 (Shiv Kumar Tiwari (D ead) by Lrs Vs. Jagat Narain Rai & Ors.) in which the Apex Court has held that j udgment or decree or order of court or any other authority binds only the partie s thereto. In that case, the appellant was a temporary appointee to the lone san ctioned post of Mathematics Teacher in a private inter college. On receipt of th e impending expiry of term of his appointment, he filed a suit against the colle ge and the management without impleading the departmental authorities and the re spondent who was by then appointed in that post. The Trial Court declared the ap pellant to be a permanent lecturer of the said college. Pursuant to the said jud gment, the controlling authority issued direction for termination of the service of the respondent. It was held that such a judgment could not have been invoked towards passing the order by the DDE to the detriment of the respondents right. Referring to the aforesaid judgment, Mr. I. Choudhury, learned counsel f 11. or the petitioner in WP(C) No. 3954/2011 has submitted that the aforesaid judgme nt of the Division Bench in which the petitioners were not party, cannot bind th em. He submits that had an opportunity of being heard been provided to the petit ioners, they would have made their position clear and the Division Bench would n ot have passed the direction as contained in the aforesaid judgment and order.

#12. I have verified the records produced by Mr. P.N. Goswami, learned Standi ng Counsel, Education Department and on perusal of the same, what I find is that there is absolutely no deliberation towards issuance of the show cause notices and the impugned orders of termination. Needless to say that irrespective of the directions contained in the aforesaid judgment and order, it was incumbent on t he part of the authorities issuing show cause notices to the teachers, whose app ointments were in doubt to give the facts and datas in details in each individua l case. In the instant case, the show cause notices are identically worded and h ad been issued in reference to the aforesaid judgment and order of this Court. R esponding to the said notices, the petitioners justified their appointments with the specific plea that the selection in respect of which the impugned judgment and order was passed had nothing to do with the case of the petitioners. It was their case that initially they were appointed on adhoc basis and having regard t o their continuity in service, the authority deemed it appropriate to appoint th em on regular basis. It will be pertinent to mention here that the petitioners b y now have rendered about 20 years of service.

#13. On perusal of the file that has been produced by Mr. Goswami, learned St anding Counsel, Education Department what is found is that the show cause notice s were issued without furnishing any particulars in respect of each one of the p etitioners. It was a mechanical exercise pursuant to the aforesaid judgment and order. Thereafter on receipt of show cause reply, certain notes were put up and eventually a note was prepared for termination of the services of 15 Subject Tea chers leaving aside 5 candidates. On that basis the services of 15 teachers were terminated without there being any deliberation and justification for terminati on.

#14. As regards remaining 5 Subject Teachers, the file has revealed that thei r services were terminated on the basis of telephonic instruction furnished by t he departmental Commissioner & Secretary. Thus, it was an empty formality to iss ue show cause notice extracting reply thereof from the petitioners and thereafte r to terminate their services.

#15. Some of the petitioners are confirmed teachers. The competent authority has confirmed their services. In that view of the matter, it was argued by the l earned counsels for the petitioners that service of such confirmed employees cou ld not have been terminated defying the mandate of Article 311 of the Constituti on of India and/or the provisions of Assam Services (Discipline & Appeal) Rules, which are applicable in the instant case.

#16. It was never the intention of the Division Bench of this Court that the services of the appointees be dispensed with by a mechanical exercise. The inten tion was to provide reasonable opportunity of being heard after issuance of show cause notice etc.. Although show cause notice was issued, but the same did not contain relevant particulars as to how the services of the appointees were illeg al. The petitioners submitted their replies thereto giving details of their appo intments. However, as noted above, without dealing with the said particulars, th eir services were terminated by a stroke of pen and even to the extent of acting on telephonic instruction of Commissioner & Secretary.

#17. In view of the above, I have no hesitation to set aside and quash the te rmination orders dated 7.6.2011/25.7.2011. Consequently, the continuity of servi ce of the petitioner shall be maintained and they will be entitled to all conseq uential benefits.

#18. All the writ petitions are allowed without any order as to costs.