WRIT PETITION 5540/2007 on 24 July 1998

1. These appeals are directed against the common judgment dated 09.04.2009,passed by the learned Single Judge of this Court dismissing writ petitions which were numbered as (i) WP(C) No. 5540/2007, (ii) WP(C) No.5486 /2007, (iii) WP(C) No.5536 /2007, (iv) WP(C) No.6261 /2007, (v) WP(C) No. 6419/2007 along with three other writ petitions including WP(C) No. 5650/2007 on holding that the petitioners therein cannot claim regularization of their services since they were appointed dehors the Rules.

2. Review petition No. 22/2015 was filed seeking review of the judgment dated 10.05.2010, rendered in WA No. 120/2010 under which WA No. 120/2010 stood dismissed on ground that the appellant in WA No 120/2009 was similarly situated with the appellant in W.A. 112/2010 (Smt. Sewali Deka Vs State of Assam & ors) which was already dismissed on merit and as such, similar treatment needs to be meted out to appellant in WA No 120/2010. However, contending that such decision wasbased entirely on misinformation since the appellants in those appeals were situated quite differently which, according to review petitioner, needs review of the judgment in W.A.No.120/2010.3.We have heard Mr. A. Borbora, learned Senior Counsel assisted by Ms. K Devi for appellant in WA No. 158 /2009 to WA No. 161 / 2009 and Mr. I.H. Borbhuyan, learned counsel for the appellant- WA No. 162/2009 and Ms. Ritumoni Rajkhowa,for review petitioner. Also heard Mr. S. Saikia, learned Standing Counsel, Education Department appearing for the respondents.4.Before we proceed further, we find it necessary to have a look at the facts projected in the aforesaid writ petitions. Since the learned Single Judge reproduced in detail the facts of each petition as well as the cases of the respondents therein, we find it necessary to re-reproduce the facts of each of thecase from the judgment under challenge in the following manner:-WP(C) NO. 5540/2007

The petitioner claims to be a graduate in Arts and had applied for a post of Assistant Teacher in a High School in the Nalbari District of the State. The Inspector of schools, Nalbari District Circle, Nalbari on a scrutiny of his application appointed him as Assistant Teacher on ad-hoc basis in Chamata High School vide Memo No. EST-3/65/04/2608 dated 16.05.1994. While, the petitioner was rendering his services, he was served with a slow cause notice dated 24.07.1998 issued by the same authority, whereby, he was asked to explain as to why his appointment would not be terminated in view of the irregularities referred to therein. The petitioner, accordingly, submitted his reply, where after, by order dated25.01.1999 of the Inspector of Schools, Nalbari District Circle, Nalbari he wassought to be discharged from service with immediate effect. Being aggrieved, heinstituted WP(C) No. 494/1999 before this Court and by order dated 09.02.1999 the operation of the order dated 25.01.1999 was kept in abeyance. According to the petitioner, in the meantime, his service book had been opened and deductions from his salary were being made for the General Provident Fund. He also claimed to have earned increments. The petitioner has further asserted that in terms of aCabinet decision dated 21.02.2000, the Government of Assam had decided to regularize 3511 teachers of various Schools in the State and, accordingly, a circularNo. A(I)E425/95/Pt-II/140 dated 10.08.2000 had been issued by the Commissioner & Secretary, Government of Assam, Education Department. The petitioner is aggrieved by an order under Memo No.EST-3/CC/WP'5412/2000/4044 dated 08.10.2007 of theInspector of Schools, Nalbari District Circle, Nalbari, whereby his services have been terminated.WP (C) NO. 5536/2007

The petitioner, a graduate in arts, had applied for a post of Assistant Teacher in a High School in the Nalbari district, whereafter, on due scrutiny ofher application, the Director of Secondary Education, Assam appointed her as an

Assistant Teacher on ad-hoc basis in Milan High School vide Memo No. GB-EST/APPTT/39/95/33 dated 16.11.1995. After she had joined the services, she was served with a show cause notice dated 24.07.1998 of the Inspector of Schools, Nalbari District Circle, Nalbari requiring her to explain as to why her appointment wouldnot terminated in view of certain irregularities accompanying the same. The petitioner replied on 03.08.1998, but by order dated 25.01.1999 issued by6 the Inspector of Schools, Nalbari District Circle, Nalbari, she was discharged from services with immediate effect. Being disconnected, she approached this court with WP(C) No. 506/1999 and by order dated 10.02.1999, the order affecting her discharge was stayed. The petitioner too has identically asserted that in due course oftime she had earned increments in pay, her service book had been duly opened and deductions were made from her salary for contributions to the General Provident Fund. Referring to the same Cabinet decision and the circular, the petitioner has contended that by order dated 15.07.2003 issued by the Inspector of Schools,Nalbari District Circle, Nalbari she had been confirmed in her post along with 15 similarly situated Assistant Teachers and non-teaching staff of her School. However, by the impugned order dated 08.10.2007 of the Inspector of Schools, Nalbari district Circle, Nalbari, her services have been terminated.WP(C) NO. 6419/2007

The petitioner, a graduate in Arts, had applied for a post of Assistant Teacher in a High School in the Nalbari district and the Director of Secondary, Assam on due scrutiny of his application appointed as such on ad-hoc basis in Koithaljuchi High School, Nalbari by Memo No.EST.3/65/94/2614-19 dated 16.05.1994.While the petitioner was rendering his services to the best of his abilities, he received notice dated 24.07.1998 of the Inspector of Schools, Nalbari DistrictCircle, Nalbari asking him to show cause as to why his appointment would not beterminated in view of certain irregularities referred to therein. Though, the petitioner duly submitted his reply, he was by order dated 25.01.1999 issued by the Inspector of Schools, Nalbari District Circle, Nalbari discharge was kept in abeyance. According to him as well, his service book had, by then been opened and apart from having earned increments in salary deductions were made therefrom for contribution to the GPF. The same Cabinet decision and the circular have beenreferred to and the petitioner has further asserted that his services had been regularized in the aforementioned post by 21.11.2003 of the Inspector of Schools, Nalbari District Circle, Nalbari. It was, thereafter, that his services were terminated by the impugned order dated 08.11.2007 of the Inspector of Schools, Nalbari District Circle, Nalbari.WP(C) NO. 5650/2007

The petitioner has pleaded that in response to the advertisement dated 03.09.1991 issued by the Education department of the State, he offered his candidature for a post of Assistant Teacher in High school in the district of Nalbari.According to him, after his selection, his name was empanelled at Sl. No. 45 ofDharampur Constituency of Nalbari District and he, accordingly, was appointed as Assistant Teacher in Milan High School, Benekuchi vide order dated 20.01.1996 of the Inspector of Schools, Nalbari District Circle, Nalbari. On receiving a show cause notice dated 24.07.1998, issued by the same authority, asking him to explain as to why his services would not be terminated, he submitted his reply asserting, inter alia, his selection as above. By order dated 25.01.1999 of the Inspector of Schools, Nalbari district Circle, Nalbari, he having been discharged from service with immediate effect, he approached this Court with WP(C) No. 441/1999 and by order dated 05.02.1999, the State respondents, in the interim, were directed not to disturb his services and to pay his salary regularly. This petitioner as well, has insisted that in the meantime, his service book has been opened and that increments in salary had been granted to him and further deductions from is salary were being made for contribution to the General Provident Fund. Referring to the same Cabinet decision and the circular, the petitioner has claimed regularization of his service and also his confirmation vide order dated 05.07.2003 of the Inspector of schools, Nalbari district Circle, Nalbari. The above notwithstanding, by order dated 08.10.2007 his services have been terminated.WP(C) NO. 6468/2007

The petitioner being a graduate was appointed as an Assistant Teacher ontemporary basis following her selection in the year 1996 on the basis of an advertisement against a retired vacancy. According to her, in the select list her name appeared at Sl. No. 13 and she was appointed by the Inspector of schools, Nalbari District Circle, Nalbari. Though she, accordingly, joined the services on 22.12.1997, by order dated 28.12.1998 the same was terminated. She approached this Court with WP(C) No. 804/1999 and by an interim order dated 22.02.1999 the respondents were restrained from disturbing her services. The petitioner has referred to an order of the Commissioner & Secretary, Government of Assam, Education Department bearing No. B(3)S.38/2002/Pt./125 dated 22.02.2005 conveying the decision of the Government to regularize all ad-hoc teachers/office assistant/grade-IV employees working against valid sanctioned posts. As the petitioner satisfiedall the prerequisites as mentioned in the aforementioned letter and was assuredof regularization of her services by the departmental authorities, she withdrewthe above writ petition on 14.09.2005. Subsequent thereto, by the impugned order dated 08.10.2007 of the inspector of Schools, Nalbari District Circle, Nalbariher services have been terminated.WP(C) NO. 6182/2007

The petitioner is a graduate in Arts and had applied for appointment as Assistant Teacher of a High School in response to an advertisement and on the completionof the process of selection, in the select list that was published on 12.04.1988 his name appeared at Sl. No. 12 thereof, in the order of merit. As the respondent authorities, the select list notwithstanding, restored to appointments beyond the same, several selectees approached this Court. According, several writ petitions including WP(C) No. 2276/1990, WP(C) No. 2324/1990 etc., were disposed ofby this Court directing the authorities to make appointments from the select list in order of merit till the same was exhausted and injuncted the respondent authorities from making appointment of any other person. Pursuant to the above direction, the petitioner was appointed as Assistant Teacher of Jagara High School vide order dated 07.05.1991 issued by the Inspector of Schools, Nalbari DistrictCircle, Nalbari. The order, inter alia, mentioned that he had been selected by the district Level section Board. On 04.01.1995 a select list for appointment ofAssistant Teachers and Subject Teachers in Nalbari District was published and as the departmental authority again made appointments from beyond the select list, a spate of writ petitions followed, questioning the legality of such action. This Court, eventually, intervened and directed the departmental authorities to make appointments strictly following the select list and to oust persons irregularly or illegally appointed, if necessary to accommodate the candidates with superior merit. According to the petitioner, having regard to the background of his appointment, the select list dated 04.01.1995 is of no relevance qua him and, therefore, the show cause notice dated 24.07.1998 asking him to explain as to why his appointment would not be cancelled on the ground that his name did not appear in that list is patently untenable and frivolous. The petitioner, however, submitted his reply, reiterating his selection in the year 1988 and appointment in 1991. As in spite thereof, he was discharged from service by order dated 25.01.1999 of the Inspector of Schools, Nalbari District Circle by order dated 08.02.1999, in the interim directed the respondent authorities not to disturb his services until further orders. He having been served thereafter with the impugned order of termination dated 08.10.2007 issued by the same authority, the petitioner could come to learn on enquiries made that WP(C) No. 474/1999 had been dismissed for non-prosecution on 13.12.2005.WP(C) NO. 5486/2007

The petitioner was initially appointed on ad hoc basis as Assistant Teacher Solmara HS School vide order dated 20.12.1994 of the Inspector of Schools, Nalbari District Circle, Nalbari. His initial term of three months was, thereafter, extended from time to time. Following a scrutiny of her appointment by the concernedTask Force/District Level Screening Committee appointed for the purpose along with that of similar situated appointees and in terms of the same Cabinet decision and the consequential circular dated 10.08.2000, her services were regularized by order dated 09.06.2003 of the Inspector of Schools, Nalbari District Circle

, Nalbari. The petitioner has also referred to the letter dated 22.02.2005 of the Commissioner & Secretary, Govt of Assam, Education Department. Referring to the same decision of the Govt. to regularize the services of all ad hoc teachers/office assistant etc, he has maintained that his service book had been opened in the year 1998 and deductions were being made regularly from his salary for contributions to the General Provident Fund. The petitioner has questioned the validity of the order dated 08.10.2007, terminating his services. He has asserted to be neither a prary in CR No. 5616/1996 and CR No. 5378/1997 as referred to in thesaid order, nor in any way connected therewith. He has also alleged discrimination, contending that teachers similarly appointed and equally placed are till date continuing in service. According to him, on an earlier occasio9n apprehendingtermination of his services, he had approached this Court with CR No. 3884/1998and by order dated 10.08.1998; the respondent authorities were interdicted fromousting him from service. The petition, however, stood dismissed for non-prosecution on 30.08.2000 .

WP(C ) No. 6261/2007

WP(C ) No. 6261/2007

The petitioner, who is a post graduate in Assamese, had applied for being appointed as Assistant Teacher in Pakowa High School against an existing vacancy. Eventually, the inspector of schools, Nalbari District Circle, Nalbari vide memo No.EST 3/81/88/326-31 dated 26.05.1994 appointed her thereto for a period of four months till the recommendations of the District Level Selection Committee, Nalbari, whichever was earlier. The petitioner, accordingly, joined the services and her initial term was extended from time to time. Her intermediate scale of pay was converted to graduate scale of pay of Rs. 1375-3375/- w.e.f. 07.06.1994 by memo dated 22.05.1996 of the Inspector of schools, Nalbari District Circle, Nalbari. Her services were, thereafter, regularized by the office memo dated 10.10.1996also of the said authority. While the matter rested at that she was served witha how cause notice dated 24.07.1998 requiring her to explain as to why her appointment would not be terminated, inter alia on the ground that her name did not appear in the select list prepared for appointment to the said post during the order dated 1995-1996. The petitioner duly submitted her reply, contending amongst others, that the select list for the year 1995-1996 was not relevant for her appointment. However, as she apprehended termination of service, she approached this Court with WP' No. 407/1999. Though by order dated 25.01,1999 of the Inspector of schools, Nalbari District Circle, Nalbari, she was discharged from service in deference to the interim order of this Court she was allowed to continue inservice. The petitioner has claimed to have been confirmed in service vide the memo dated 12.01.2001 issued under the signature of the in charge Inspector of Schools, Nalbari District Circle, Nalbai. She was also transferred in between andposted at Helacha High Schools. The letter dated 22.02.2005 of the Commissioner& Secretary, Govt. of Assam, Education Department , conveying the decision of the Govt to regularize all ad hoc teachers on the stipulations as mentioned therein, has also been referred. The petitioner has admitted about the dismissal of the CR No. 407/1999 on 16.11.2005 for non-production. While also referring to thejudgment and order dated 12.05.2000 passed in WA No.500/1997, the petitioner has assailed the impugned order dated 08.10.2007 terminating his services to be unsustainable in law.

The claim of the review petitioner in WP(C) No. 5650/2007 is that he was appointed in 1996 in pursuance to advertisement of 1991. Though he was continuing with the job, his service was terminated under the order 25.01.1999 issued by Inspector of Schools for which he approached this court by way of WP(C) No. 441/1999 and this Court by its order dated 5.2.1999 as an interim measure, directed the respondents not to disturb the service of the petitioner and directed to pay the salary. However, his service was confirmed in 2003 but he was dismissed from service under the order dated 08.10.2007 for which he approached this court by way ofWA No. 120/2010 which was, however, dismissed on 10.05.2010 on holding that appellants in WA No.112/2010 and WA No. 120/2010 are similarly situated and since WA 112/2010 was dismissed on merit , similar treatment needs to be meted out to appellant in WA No.120/2010 contending that such order was based on misconceptionof facts, the review petitioner sought for recall of such an order stating that

appellant in WA 120/2010 is very similarly situated with appellants in WA No. 158 of 2009 to WA No. 162 of 2009. 5.Learned Single Judge reproduces the case of the respondents in the aforesaid proceedings in his judgment in the following manner:-The Director of Secondary Education, Assam, respondent NO.2, in his affidavits, substantially alike in contents, has mentioned that 03.09.1999, an advertisement was issued by the then Director of Secondary Education, Assam inviting applications for selection to 200 posts of Assistant Teacher and 100 posts of Language Teacher along with some other categories for appointment in provincialised/ High/Higher Secondary Schools of Assam. On the completion of the process,so initiated, the concerned District Level Selection Board prepared and published the select list on 04.01.1995 for the five constituencies of Nalbari district, i.e Barama, Barkhetri, Dharmapur, Nalbari and Patacharkuchi. Some candidates with the grievances that the order of merit as reflected in the select list had not been adhered to in making appointments and that persons not included therein,had been favored therewith, instituted several writ petitions, praying for annulments thereof. The State respondents being noticed, they duly submitted their affidavits, where after, this court vided its judgment and order dated 02.08.1997passed in CR No. 5216/1996 (Shri Dulal Tahbildar Vs State of Assam & Ors) and 29 other connected matters as well as the judgment and order dated 05.05.1998 passed in CR No. 5378/1999( Sri Dibakar Sarma & 4 Anr. Vs State of Assam & ors)., directed the Commissioner and Secretary, , Education Department, Assam and Director of Secondary Education, Govt of Assam to cancel the appointments of the persons not included in the select list asf well as of those, who were not entitled to appointment on the basis of their intense merit position in the select list with regard to the aforementioned constituencies. The answering respondent maintained that this court, while ordering the compliance of the law of reservation, also required the said authorities to offer appointment jto the candidates, who were entitled thereto as per their positions in the select list with th clarification that if such candidate did not turn up for appointment within1 month of service of the appointment letter, offer would be made to the next person, in order of merit. The answering respondent insisted that by the aforementioned judgment and order, the State respondents were also directed to terminate all exist6ing ad hoc appointments forthwith. The aforementioned State respondents were also directed to file compliance report within two months thereof.

The respondent No.2 further averred that in compliance of the above directions, the Govt of Assam in the Education Department, on a scrutiny and examination of the relevant records prepared a list of Assistant Teachers, who were to be discharged i.e. those who had been appointed sans the merit orientation in the select list or beyond the same or on ad hoc basis and drew up a list of Assistant Teachers, who were entitled to be appointed in their places on the basis ofmerit and the law of reservation. Accordingly, the Govt vide its order dated 10.06.1998 and 28.12.1998 appointed such teachers, terminating the ineligible persons in terms of the determinations made by this court. The answering respondent disclosed the results of the exercise vis- -vis the five constituencies of the Nalbari district as quot4ed hereunder:-

10. That the Govt on proper scrutiny found that although the select list of Ba5ama Constituency of Nanbari district was published on 04.01.1965, ten persons were illegally and arbitrarily appointed, out of which nine were from outside the said select list and one was from the select list without following the merit position. As ten persons were appointed, it was evident that the vacancies were available in Barama Constituency. The Govt by order dated 10.06.1998 prepared a list of eight eligible candidates keeping two posts vacant for STP & STH candidates.

Similarly, for Barkihetri Constituency of Nalbari district select list was published 04.01.1995, forty five persons were appointed, it was evident thatforty-five vacancies were available in Barkhetri Constituency. The Governmentby order dated 10.06.1998 prepared a list of thirty-six eligible candidates keeping nine posts vacant for STH (2), STP (4), SC(2) and OBC (1) candidates.For Dharamapur Constituency of Nalbari district select list was publishe d on 04.01.1995, forty-two persons were illegally and arbitrarily appointed, it was evident from that forty-two vacancies were available in Dharmapur Constituency. The Government by order dated 28.12.1998 prepared a list of twenty-eight eligible candidates keeping fourteen posts vacant for STP (5), STH (2), OBC (5) and SC(2) candidates.

For Nalbari Constituency of Nalbari district select list was published on 04.01.1995, forty-five persons were illegally and arbitrarily appointed, out of which seventeen were from outside the said select list and ten were from the select list without following the merit position. It was evident that thirty-twovacancies were available in Nalbari Constituency. The Govern by order dated 29.12.1998 prepared a list of 26 eligible candidates keeping six posts vacant for STP (4) and STH (2) candidates.

Again for Patacharkuchi Constituency of Nalbari district select list waspublished on 04.01.1995, sixteen persons were illegally and arbitrarily appointed, out of which twelve were from outside the said select list. As sixteen persons were appointed, it was evident sixteen vacancies were available in Patacharkuchi Constituency. The Govt. by order dated 28.12.1998 prepared a list of ten eligible candidates keeping six posts vacant for STP (2), STH(1), OBC (2) and SC(1)candidates .

It has been further stated that in response to the queries made by this court in WP' No. 5412/2000, instituted by one Shri Subhash Sarma, claiming appointment on the basis of his selection (within Sl No. 34 of Dharampur Constituency), the State respondents made necessary enquiries, in course of which it transpired that the writ petitions filed by the petitioners, in the meantime, impugningtheir discharge by orders dated 25.01.1999 of the Inspector of Schools, NalbariDistrict Circle, Nalbari, had either been withdrawn or dismissed for non prosecution and that the interim restraints had ceased to exists. As they had, alreadybeen served with the show cause notices dated 24.07.1998 prior to the order of discharge, by the impugned order dated 08.10.2007 their services were terminatedin compliance of the judgment and orders dated 02.08.1997 and 05.05.1998 passedin CR No. 5216/1996 and CR No. 5378/1997.

The respondents have avowed that the petitioners in WP(C) Nos. 5540, 5536, 6261, 5486, 6419/2007 had not been selected and not being empanelled in the select list dated 04.01.1995, that services had been rightly terminated. Vis- -vis the petitioner in WP(C) No.6182/2007, the answering respondent, while also branding him as an outsider quo the select list dated 04.01.1995, has question the authority of the Inspector of Schools, Nalbari District Circle, Nalbari in making appointments from the select list drawn up by the District Level Selection Board, Guwahati and claimed to have been published in the month of April,1998. It has been stated further that the select list was for appointment in the intermediate cadre and not in the graduate scale of pay an that the judgment and order dated 04.03.1991 passed by this court in CR Nos 2276, 2324/1990 and WP(C) No. 517, 518/1991 relied upon by this court, not only are confined to the district of Kamrup, but also to appointments in the intermediate cadre. The pleaded stand of the respondents vis- -vis the petitioner (Smti. Sewali Deka) in WP' No. 6468/2007, is that she too is not enlisted in the select list dated 04.01.1995 and had been illegally appointed during the ban period.The respondents contend that Md. Gulzar Hussain (petitioner in WP' No. 5650/2007) is that though his name appears at Sl. No.45 in the select list dated 04.01.1995 of the Dharmapur Constituency, his appointment had been dehors his merit position. Further, he was favored with appointment after the expiry of the select list.

The respondents in all the writ petitions have insisted that having determined the illegalities in the appointment of the petitioners in terms of the judgment and orders of lthis court dated 02.08.1997 and 05.05.1998 individual showcause notices were issued on 24.07.1998, though the Inspector of Schools, Nalbari District Circle, Nalbari and on a consideration of the explanations submitted by them, they were discharged from service by orders passed by the said authority on 25.01.1999. In all, the answering respondents have asserted that the appointments had been in violation of the Assam Secondary Education (Provincialised)

.

6. We have heard the learned counsel for the appellants . Referring to paragraph 11 of the petition WP(C) No. 5486/ 2007, Mr. A. Borbora, learned senior counsel for appellants in WA No. 158 /2009 to WA No. 161/2009 submits that the petitioner in WP(C) No. 5486/ 2007 (corresponding to appellant in WA No 158/2009) was appointed on ad hoc basis against the vacant post in 1994 and in due course, his service was regularized on following the prescription of law. 7.Since he was appointed against the sanctioned post, since he had requisite qualifications to be appointed to such post and since he was regularized in due course, he could not have been terminated under the order dated 08.10.2007. For ready reference, paragraph 11 is reproduced below: ----

11. That the petitioner begs to submits that he was duly appointed by the appropriate authority against a sanctioned vacant post and the same has been regularized. The Government also duly approved the regularization of the service of the petitioner. In such a circumstances any attempt to terminate the services of the petitioners is totally unjust, improper and illegal.

12. That the petitioner begs to submit that termination order dated 08.10.2007 (annexure H) issued by the Inspectors of Schools, Nalbari is apparently contrary to the well-settled principles of natural justice. As such it is void ab-initio and no-est in the eye of law. It is a fit case where this Hon’ble Court may be pleased to interfere for the end of justice.

11. That the petitioner begs to submits that he was duly appointed by the appropriate authority against a sanctioned vacant post and the same has been regularized. The Government also duly approved the regularization of the service of the petitioner. In such a circumstances any attempt to terminate the services of the petitioners is totally unjust, improper and illegal.

12. That the petitioner begs to submit that termination order dated 08.10.2007 (annexure H) issued by the Inspectors of Schools, Nalbari is apparently contrary to the well-settled principles of natural justice. As such it is void ab-initio and no-est in the eye of law. It is a fit case where this Hon’ble Court may be pleased to interfere for the end of justice. —

8. According to him, petitioners in WP(C) No. 5536/2007, WP(C) No. 5540/2007, WP(C) No. 6261/2007 (corresponding to appellants in WA No. 159/ 2009, WA No. 160/ 2009 and WA No. 161/ 2009) are all similarly situated with the petitionerin WP(C) 5486/2007 since they all were appointed between 1994 and 1995 againstvacant posts on ad hoc basis and had been continuing with jobs without any intervention of the courts/ tribunals till their services were terminated under the impugned order. 9.Mr.Borbora, learned Senior Counsel admitted that there were large scale illegal appointments in the schools in the State of Assam in early 90th. But a one-man Monoharan Committee was constituted under the Chairmanship of Shri S. Monoharan, IAS to look into such irregularities. Such one-man Committee considered the cases of large number of teachers, believed to be appointed illegally which included appellants in WA 158/2009, WA 159/2009, WA 160/2009 and WA 161/2009.10. However, after due inquiry, the Committee, found that 3,531 teacherswere regularly appointed which included the appellants in WA 158/2009, WA 159/2009, WA 160/2009 and WA 161/2009 and, therefore, recommended their services tobe regularized. In due course, to be precise in 2003, such recommendation was given effect to and services of those appellants in WA 158/2009, WA 159/2009, WA 160/2009 and WA 161/2009 were regularized. 11.However, in spite of such recommendation and in spite of subsequent regularization of the services of appellants in WA 158/2009, WA 159/2009, WA 160/2009 and WA 161/2009 as back as in 2003, the appointments of appellants were doubted and ultimately under the impugned order, such appointments were terminatedequaling the case of appellants with ones who were said to be appointed illegally in pursuance to advertisement made in 1991, However, such treatment meted out to the appellants was highly illegal and is liable to be set aside and quashed.

12. Even otherwise, services of appellants in WA 158/2009, WA 159/2009, WA 160/2009 and WA 161/2009 could not have been terminated since they fulfilled all the criteria mentioned in the decision, rendered in the case of Uma Devi Vs State of Karnataka, reported in (2006) 4 SCC 1 which, amongst other things, speaks about the parameters under which even services of persons appointed irregularly are to be regularized as one time measure.13.In that connection, it is stated that since appellants in WA 158/2009, WA 159/2009, WA 160/2009 and WA 161/2009 were appointed in between 1994 and 1995, since they had been appointed against the sanctioned post and since they had fulfilled all the conditions in Uma Devi (supra) including the educational qua

lification to be appointed to the post in question, the service of appellants ought to have been regularized in terms of law laid down in Uma Devi (supra).14.In the aforesaid decision, it was held that if a person having requisite qualification is appointed against a sanction post and if he continues to serve against such sanctioned post without any break for a period of 10 (ten) years till 2006 and, that too without any intervention of the Court, the service of such employee needs to be regularized as a onetime measure-- even though--- his initial appointment was not in accordance with the service jurisprudence.15.In support of such contention our attention has been drawn to the Paragraph 53 of Uma Devi (supra). The relevant part of the judgment is reproduced below:---

53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N.NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits inthe light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as aone time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify thatregularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointedas per the constitutional scheme. — 16.Situation being such, the learned Single Judge was not right in dismissing the aforesaid writ petition. The learned counsel for appellant in WA No. 162/2009 (corresponding to WP(C) No. 6419/2007) as well as learned counsel for review petitioner have advanced argument on the line of arguments, advanced by learned counsel for the appellants in WA 158/2009, WA 159/2009, WA 160/2009 and WA 161/2009 stating that they were very similarly situated with appellants in those appeals. 17.Learned counsel for the review petitioners further submits that review petitioner is not similarly situated with the appellant in WA No. 112/2010 corresponding to WP(C) No. 6468/2007. Rather, he is very similarly situated with appellants in WA 158/2009, WA 159/2009, WA 160/2009 and WA 161/2009. However, on wrong appreciation of fact, considering the appellant in WA No. 120/2010 to be similarly situated with appellant in WA No. 112/2010, WA No. 120/2010 was dismissed which is unsustainable in law.18.Therefore, the review petitioner prays for recalling of the order dated10.5.2010 in WA No.120/2010 with a further request to extend all reliefs to the review petitioner which are granted to appellants in WA 158/2009, WA 159/2009, WA 160/2009, WA 161/2009 and WA 162/2009 since he is very similarly situated all respects with the appellants in WA 158/2009, WA 159/2009, WA 160/2009, WA 161/2009 and WA 162/2009. 19.However, such contention was opposed to by Mr. S.Saikia, learned counselfor the respondents stating that there is nothing on record to show that appellants in WA 158/2009, WA 159/2009, WA 160/2009, WA 161/2009 or for that matter, appellant in WA 162/2009 as well as review petitioner in Review Petition No.22/2015 had ever been appointed in accordance with prescription of law. Quite contrary to it, they were appointed without following the prescription in the Service Rules. 20.We have considered the rival submissions having regard to the pleaded cases of the parties as well as materials on record and have found that there are

materials to hold that the appellants in WA No. 158 /2009, WA No 159 /2009, WA No 160 /2009, WA No 161 /2009, WA No 162 /2009 were all appointed between 1994 and 1995.21.On perusal of record, we have also found that appellants in WA 158/2009, WA 159/2009, WA 160/2009, WA 161/2009 or for that matter, appellant in WA 162/2009 had been appointed against the sanctioned posts and had been continuing intheir jobs for a period more than 10 (ten) years when their services were terminated on 08.10.2007. 22.Equally important, there are materials on record to show that appellantshad necessary qualification to be appointed against such post in question and that they continued in their jobs without any intervention of the Court till their services were terminated on 08.10 2007. Though the counsel for the State respondents disputed that appellants were not appointed in accordance with prescription of service jurisprudence, yet, State respondents could not show anything to confront the claim of aforesaid appellants and review petitioner that they had fulfilled all the criteria stated in Uma Devi (supra).

23. On perusal of the materials on record, more and more, it is also found that there are materials to show that cases of appellants were considered by one-man Monoharan Committee and after making necessary inquiry, said Committee found their appointments to be in order. There is nothing on record to disbelieve such a state of affairs. Being so, here is ground to hold that the appointments of the aforesaid appellants are not illegal as contended by the State respondent.On this count also, the prayers of appellants in present appeals under consideration were to be allowed. 24.Be that as it may, in our opinion, the appellants had fulfilled all the conditions specified in Uma Devi (supra) and therefore, they could not have beenterminated under the order dated 08.10.2007. Being so, in our opinion, the termination order in so far as appellants are concerned become unsustainable.

25. In consequences of our foregoing discussion, all those appeals are allowed and the impugned termination order in so far as present appellants are concerned stands quashed and set aside. 26.The State respondents are directed to allow the aforesaid appellants to resume their jobs immediately. 27.However, the case of the review petition is not the same as the case of appellants in WA No. 158/2009 to WA No. 162/2009. Rather his case is very similar to that of appellant in WA No. 112/2010 since both of them were dismissed in1999 and thereafter on the basis of the interim order passed by this court, they continued till 2007. 28.The materials on record also reveal that the claim of the review petitioner that he was appointed regularly in pursuance to advertisement of 1991 remains far from being established. Being so, we have no hesitation in accepting claimof respondents in so far as the review petitioner is concerned and, therefore, his petition seeking recall of the order dated 10.5.2010 in WA No. 120/2010 isfound wholly unsustainable and same is accordingly rejected. 29.Since appellants are not in service since the date of termination of their services, they would not be entitled to back wages but the period in which they remain out of service may be counted towards the seniority but for the purpose of pension etc., only.