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.
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.
