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Monday, October 19, 2015

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 rendered. The High Court dismissed the said writ petition.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. 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.

                                                                  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 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  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  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 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.

 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  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  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.
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:

“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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