DULU DEVIversusSTATE OF ASSAM AND OTHERS

                   [2015] 12 S.C.R. 961


                     OULU DEVI                                 A

                         v.
            STATE OF ASSAM AND OTHERS
              (Civil Appeal No.8429 of 2015)
                                                               B
                    OCTOBER 09, 2015
          [M.Y. EQBALAND C. NAGAPPAN, JJ.]
      Service law: Regularisation of service of appellant-
teacher'- Claim for - Payment of salary stopped after 10 c
years of continuous service - On writ petition, High Court
directing release of salary to her and thereafter she continued
in service and crossed efficiency bar twice -After few years
authorities stopped par.ment to appellant along with other
192 teachers on the ground that her name appeared in the D
list of terminated teachers - Writ petition by appellant seeking
continuance in service - Held: Appellant was never
terminated from service nor any such order was served upon
her - Authorities without going through relevant records
prepared list of 193 teachers and included the name of the E
appellant for terminating services- Mere passing of an order
of termination would not be effective unless it is
communicated to the employee concerned - In the
background of the facts of this case, particularly, the continued
service of the appellant for the last 25 years, the impugned F
order passed by the High Court n.ot sustained in law -
Appellant entitled lo continue in service and to all arrears of
salary in accordance with law.
    Allowing the appeal, the Court                             G
    HELD: 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 from the date when        H
                         961
962      SUPREME COURT REPORTS             [2015] 12 S.C.R.


A 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
8 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
c 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
  ~ourt, assuming that the service~ of the appellant were
o terminated, refused to grant relief and dismissed the writ
  p1etition. 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
E legitimate claim. 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. [Paras 14, 15, 18]
  [967-B-F; 968-F]
 F
        State of Punjab v. Amar Singh Harika AIR 1966
        SC 1313; Union "of India v. Dinanath Shantaram
        Karekar1998 (3)SCR 933: (1998) 7    sec  569-
        relied on.
 G
                     Case Law Reference

      AIR 1966 SC 1313       relied on.   Para 16
      1998 (3) SCR 933       relied on.   Para 17
 H
       CIVIL APPELLATE JURISDICTION: Civil Appeal No.
     OULU DEVI v. STATE OF ASSAM AND OTHERS                       963


8429of2015.                                                       A
   From the Judgment and Order dated 06.04.2010 of the
Gauhati High Court in Writ Petition (C) No. 2560 of 2007.

      Manish Goswami (For Rameshwar Prasad Goyal), Adv., ·8
for the Appellant.

   Avijit Roy (For M/s. Corporate Law Group), Adv., for the
Respondents.

    The following judgment of the Court was delivered.            c
    M.Y. EQBAL, J. 1. Leave granted.

     2. The appellant has preferred this appeal by spec!al
leave against the impugned order dated 06.04.2010 passed 0
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 E
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       F
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. ·i 2.1989 of the       o
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      H
9€34       SU.PREME COURT REPORTS                  [2015] 12 S.C.R.


 A  same, she filed a writ petition being W.P.(C) No.833of1999.
    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
·n 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
 c: to the respondents to release the salary of the appellant not
    only from the current month but also forthe 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
 D 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 Courtvid~its
 E order dated 12.09.2000 passed in W.P.(C) No.833of1999,
   the appellant was paid all arrears of her salary and other
   allowances till August, 2007.

        6. In the year ~005, the appellant had been given charge
 F 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
 G 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
 11 appellant was shown at Serial No.168. The Deputy Inspector
    of Schools, Dhemaji, vide his letter dated 09.11.2006, informed
     OULU DEVI v. STATE OF ASSAM AND OTHERS                        965
                   [M.Y. EQBAL, J.]

the Director, Elementary Education, Assam, that the said report A
was prepared without going through the official records and
relevant Tiles and the same was not wholly correct.
Consequently, the respondents-authority by order dated
09.02.2007, stopped the salary o~ 193 teachers including the
appellant. Aggrieved by the same, th~ appellant filed the writ 3
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 c
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
                                                                   0
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    E
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       F
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    G
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.                      H
966        SUPREME COURT REPORTS                  [2015] 12 S.C.R.


A          9. We have heard learned counsel appearing for the
      parties and perused the record.

         1O. Learned counsel appearing for the appellant submits
   that the appellant had never been terminated from her service
 B 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
 C 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
 o 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.

 E          12. Learned counsel appearing for the respondents
     submits thatthe 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
 F · 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
 G 1992 then she has no legal right to claim salary, regularisation
     and promotion of service as th~ 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
 H regard to the claim of the appellant for regularisation.
       OULU DEVI v. STATE OF ASSAM AND OTHERS                           967
                    · [M.Y. EQBAL, J.]

      13. We bestow our anxious consideration to the rival A
 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           B
   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    C
   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
                                                                        D
   services of tl;le 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.   E
   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 F
 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.
                                                                        G
      16. The Constitution Bench Judgment of this Court in the
 case of State of Punjab vs. Amar Singh Harika, Al R 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 H
 not be effective unless it is published and communicated to
968          SUPREME COURT REPORTS                   [2015] 12 S.C.R.


A 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
8     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
c     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:
D
            "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
E
            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,
·F    the continued service of the appellant for the last25 years, the
      impugned order passed by the High Court cannot be sustained
      in law.

       19. For the aforesaid reason, this appeal is allowed and
G 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.

      Devika Gujral                                        Appeal allowed.
H