REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.8249 OF 2015
(Arising out of SLP(C) No.19947 of 2010)
DULU DEVI .....APPELLANT
VERSUS
STATE OF ASSAM AND OTHERS ....RESPONDENTS
J U D G M E N T
M.Y. Eqbal J.
Leave granted.
2. The appellant has preferred this appeal by special leave
against the impugned order dated 06.04.2010 passed by the
Gauhati High Court in Writ Petition (Civil) No.2560 of 2007,
filed by the appellant seeking a direction to the respondents
to allow her to continue in service as Headmistress
in-charge of the Dhemaji Rastrabhasha Hindi Lower
Primary School; for regularisation of her service and for
payment of regular salary to her for the service being
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rendered. The High Court dismissed the said writ petition.
3. The facts of the case which reveals from the list of
dates furnished by the appellant and have not been
disputed by the respondents, are as under.
4. The appellant was first appointed as an Assistant
Teacher in Assamese subject in the Dhemaji Hindi Lower
Primary School in 1976. By order dated 19.12.1989 of the
Deputy Inspector of Schools, Dhemaji, appellant was finally
appointed as an Assistant Teacher as against the
substantive vacancy in the said school. Even though the
appellant was rendering continuous service as Assistant
Teacher for more than 10 years, she was not paid her
salary. Aggrieved by the same, she filed a writ petition
being W.P.(C) No.833 of 1999. Thereafter, the
respondents-Authority directed the Deputy Inspector of
Schools, Dhemaji to enquire into non-payment of salary and
furnish a report. On submission of such report, the
Additional Secretary, Education Department by order dated
03.05.2000, directed the Deputy Inspector of School,
Dhemaji, to release the salary of the appellant for the period
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she rendered her services. Thereafter, by order dated
12.09.2000, the High Court disposed of the said writ
petition with a direction to the respondents to release the
salary of the appellant not only from the current month but
also for the period she actually rendered her services as a
Teacher and to make an enquiry as to the appellant's
entitlement for regularisation of her services and pass
necessary orders. It is stated that the respondents have not
filed any appeal against the said order and, therefore, the
findings and directions as aforestated has since attained
finality.
5. In view of the directions given by the High Court vide
its order dated 12.09.2000 passed in W.P.(C) No.833 of
1999, the appellant was paid all arrears of her salary and
other allowances till August, 2007.
6. In the year 2005, the appellant had been given charge
of the Head Mistress. On the date of crossing the “Efficiency
Bar”, she was also given the next increment by order dated
05.03.2005.
7. It is pertinent to note that in connection with another
writ petition being W.P.(C) No.4468/2006, the Deputy
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Inspector of Schools, Dehmaji, submitted a report on
03.11.2006 enclosing therewith a list of 193 teachers who
had been appointed in 1989 but were subsequently
terminated, still drawing their salaries. In the said list of
193 candidates, the name of the appellant was shown at
Serial No.168. The Deputy Inspector of Schools, Dhemaji,
vide his letter dated 09.11.2006, informed the Director,
Elementary Education, Assam, that the said report was
prepared without going through the official records and
relevant files and the same was not wholly correct.
Consequently, the respondents-authority by order dated
09.02.2007, stopped the salary of 193 teachers including
the appellant. Aggrieved by the same, the appellant filed the
writ petition being W.P. No.2560 of 2007 which was
dismissed by the High Court. In the said writ petition, it was
categorically averred that the appellant had never been
terminated from her service and no order of termination had
ever been served upon her.
8. It is also evident from the report dated 25.02.2008 of
the Deputy Inspector of School, Dhemaji that the appellant
was never terminated from her services and her name was
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not included in the list of 752 teachers who were terminated
in the year 1992 as per letter dated 12.05.1992 of the
Director, Elementary Education, Assam. Thereafter, the
appellant also filed a Miscellaneous Case No.2049 of 2008
inter alia praying that the respondents be directed to release
her salary till the disposal of the pending writ petition.
Learned counsel appearing for the respondents-authority on
instruction, informed the High Court that the appellant was
still continuing in her service. Accordingly, the High Court
vide its order dated 02.02.2009 directed the respondents to
pay the salary to the appellant. Thereafter, the Director of
Elementary Education, Assam, vide his letter dated
11.02.2010 directed the District Elementary Education
Officer, Dhemaji, to submit a clear report as to whether the
name of the appellant was enlisted in the lists of terminated
teachers. In response thereof, the District Elementary
Education Officer, Dhemaji, submitted a report that the
name of the appellant appeared in the list of 193 teachers
which was sent on 03.11.2006 to the Director, Elementary
Education, Assam and the said report was prepared without
going through the relevant records and files.
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9. We have heard learned counsel appearing for the
parties and perused the record.
10. Learned counsel appearing for the appellant submits
that the appellant had never been terminated from her
service and that no order of termination had ever been
served upon her. He further submits that without going
through the relevant records and files, the
respondents-Authority prepared a list of 193 teachers and
included the name of the appellant for terminating their
services. Indisputably, the appellant has been paid salary by
the respondents-Authority for at least 25 years without
serving any termination letter upon her.
11. Learned counsel appearing for the respondents
contends that appointment of the appellant is itself illegal
on the ground that she was under age at the time of her
appointment. He further contends that as the appellant was
appointed in a non-existent post, she did not get her salary
till July, 2000.
12. Learned counsel appearing for the respondents
submits that the respondents-Authority terminated the
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services of illegally appointed teachers including the
appellant but they were continuing in service and drawing
their salary till July, 2007. However, their salary was
stopped with effect from August, 2007. Thus, the appellant's
salary was also stopped as she was appointed illegally and
her service was terminated in 1992. He further submits that
the High Court has rightly held that if the service of the
appellant stood terminated in the year 1992 then she has
no legal right to claim salary, regularisation and promotion
of service as the relevant materials were not produced before
it when the earlier order was passed by the High Court
directing the respondents to release salary and allowances
to the appellant and also to make enquiry with regard to the
claim of the appellant for regularisation.
13. We bestow our anxious consideration to the rival
submissions made by learned counsel appearing for the
parties and find substance in the submission made by
learned counsel appearing for the appellant.
14. Indisputably, the appellant has been continuously
serving as a teacher since 1989 and pursuant to the order
passed in the earlier writ petition the appellant was paid
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entire salary since the date when the salary was not paid.
The High Court took notice of the fact that while considering
the regularization of services of the appellant, she being the
senior most teacher of the school was allowed to cross the
Efficiency Bar two times, initially in the year 2003 and
subsequently in the year 2005. The High Court in the
impugned order further noted that the letter of termination
was neither issued nor the services of the appellant were
terminated. Admittedly, some of the terminated teachers
filed their writ petition challenging the termination, which
was interfered with by the High Court, but the Court
observed that the said benefit cannot be granted to the
appellant as she was not a party in the said writ petition.
The High Court, assuming that the services of the appellant
were terminated, refused to grant relief and dismissed the
writ petition.
15. In our considered opinion, the approach of the High
Court is not in accordance with law. The services of a
teacher who has been working for the last 25 years shall not
be assumed to have been terminated and deprived of from
her legitimate claim.
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16. The Constitution Bench Judgment of this Court in the
case of State of Punjab vs. Amar Singh Harika, AIR 1966
SC page 1313, considered this aspect of the matter. Writing
the judgment, His Lordship (Gajendragadkar, C.J.) held that
mere passing of an order of dismissal or termination would
not be effective unless it is published and communicated to
the officer concerned. If the appointing authority passes an
order of dismissal, but does not communicate it to the
officer concerned, theoretically it is possible that unlike in
the case on a judicial order pronounced in Court, the
authority may change its mind and decide to modify its
order. The order of dismissal passed by the appropriate
authority and kept with itself, cannot be said to take effect
unless the officer concerned knows about the said order and
it is otherwise communicated to all the parties concerned. If
it is held that mere passing of order of dismissal has the
effect of terminating the services of the officer concerned,
various complications may arise.
17. Similar view has been taken by this Court in the case
of Union of India vs. Dinanath Shantaram Karekar,
(1998) 7 SCC 569, where this Court observed:
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“9. Where the services are terminated, the status
of the delinquent as a government servant comes
to an end and nothing further remains to be
done in the matter. But if the order is passed
and merely kept in the file, it would not be
treated to be an order terminating services nor
shall the said order be deemed to have been
communicated.”
18. In the background of the facts of this case,
particularly, the continued service of the appellant for the
last 25 years, the impugned order passed by the High Court
cannot be sustained in law.
19. For the aforesaid reason, this appeal is allowed and the
impugned order is set aside. Consequently, the appellant
shall be entitled to continue in service and further entitled
to all arrears of salary in accordance with law.
…...................J
[M. Y. EQBAL]
…...................J
[C. NAGAPPAN]
NEW DELHI;
OCTOBER 09, 2015.
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