Lovely Singha vs State Of Assam And Ors

Manish Choudhury, J

This writ appeal is presented against the judgment and order dated 24.08.2018 passed by the learned Single Judge in the writ petition, W.P.(C) no.

2888/2013 whereby the challenge made by the writ appellant as the writ petitioner, to the order of termination of her services passed by the Deputy

Inspector of Schools, Mangaldoi on 12.10.2012 was negated by the learned Single Judge by holding that the initial appointment of the writ appellant-

writ petitioner as Assistant Teacher in Lower Primary School was dehors the statutory rules of recruitment and her appointment was void ab initio.

The facts leading to the filing of the writ petition, as projected in the writ petition, may be narrated, in brief, as follows :

2.1. The Director of Elementary Education, Assam issued an order dated 26.03.1999 wherein it was mentioned that 6 (six) posts of Primary School

(Mixed Medium) Teachers were allotted and placed at the disposal of the Deputy Inspector of Schools, Mangaldoi, District â€" Darrang as per the list

annexed as Annexureâ€"A thereto, subject to fulfillment of the conditions therein. With the said order, a list containing names of 6 (six) persons and

names of 6 (six) schools was purportedly annexed as Annexureâ€"A wherein the name of the appellant-petitioner was found mentioned against

Mahiakhat Lower Primary School. Subsequent to the said order dated 26.03.1999, the Deputy Inspector of Schools (I/C), Mangaldoi, District â€

Darrang issued an order on 04.12.1999 whereby the appellant-petitioner was temporarily appointed as a Stipendiary Teacher at Mahiakhat Lower

Primary School with monthly stipend of Rs. 1,800/-. The appellant-petitioner accordingly joined the said post on 06.12.1999.

2.2. It was a condition in the order dated 04.12.1999 that the appellant-petitioner would initially get a monthly stipend of Rs. 1,800/- and subsequently,

would be deputed to undergo basic training for a period of 1 (one) year and upon successful completion of such training, she would be given regular

scale of pay. By an order dated 19.05.2003 of the District Elementary Education Officer, Darrang, Mangaldoi, a number of Primary School Teachers

including the appellant-petitioner, were released for undergo Junior Basic Training in different training institutions. Accordingly, the appellant-petitioner

took part in the training course and passed the Assam Basic Junior Teacher’s Training Certificate Final Examination from Biswanath Chariali

DIET Centre. A certificate dated 22.04.2004 was issued to that effect. Upon completion of such training, the appellant-petitioner came to be

appointed in Mahiakhat Lower Primary School in the regular scale of pay, by an order dated 03.01.2005 of the Deputy Inspector of Schools,

Mangaldoi. Thereafter on 01.06.2005, the appellant-petitioner was transferred in her own post and grade from Mahiakhat Lower Primary School to

Salaimari Lower Primary School by an order of even date passed by the Block Elementary Education Officer, Khoidabari Block. The services of the

appellant-petitioner as Primary School Teacher got confirmed w.e.f. 01.12.2004 by an order dated 25.07.2008 when she was serving at Salaimari

Lower Primary School.

2.3. It was the case of the appellant-petitioner that the then Deputy Inspector of Schools, Mangaldoi by an order date 26.09.2012, brought 158 nos. of

posts serving under OBB (CSS) Scheme under non-plan posts for the period from 01.03.2012 to 28.02.2013 and amongst the names therein, the name

of the appellant-petitioner was included. But while the appellant-petitioner was serving as Assistant Teacher at Salaimari Lower Primary School, the

Deputy Inspector of Schools, Mangaldoi all of a sudden, by the impugned order dated 12.10.2012, cancelled the retention of the appellant-

petitioner’s post by making reference to a termination order of 285 nos. of Primary School Teachers dated 09.10.2012 of the Director of

Elementary Education, Assam. Aggrieved by such termination of her service, the appellant-petitioner preferred the writ petition, W.P.(C) no.

2888/2013. Faced with the dismissal of the writ petition before the learned Single Judge with the observations, briefly mentioned above, the present

intra-court appeal has been preferred.

We have heard Mr. F.U. Borbhuiya, learned counsel for the appellant-petitioner. We have also heard Mr. P.N. Goswami, learned Standing

Counsel, Education (Elementary) Department and Mr. A. Chaliha, learned Standing Counsel, Finance Department appearing for respondent no. 10.

Mr. Borbhuiya, learned counsel for the appellant-petitioner has submitted that the impugned individual order of termination dated 12.10.2012 passed

by the Deputy Inspector of Schools, Mangaldoi was in consequence of a termination order dated 09.10.2012 passed by the Director of Elementary

Education, Assam whereby the services of 285 nos. of teachers out of 302 teachers appointed in Darrang District were terminated en masse with

immediate effect. In the said termination order dated 09.10.2012, mention was made about an enquiry report submitted by the Deputy Commissioner,

Darrang and an enquiry report of the Director of Elementary Education, Assam. It is submitted by him that no opportunity of hearing was provided to

the appellant-petitioner in any such enquiry but her name got included in the list of 285 nos. of teachers arbitrarily and as such, the order of termination

in respect to the appellant-petitioner is not sustainable in view of violation of the principles of natural justice. It is further submitted by him that the

appellant-petitioner was appointed in the post initially at Mahiakhat Lower Primary School when she was serving as an Honorary Teacher in the said

School. Subsequently, after undergoing Junior Basic Training on being deputed by the competent authority in the Elementary Education Department,

Assam she was allowed to draw regular scale of pay and was confirmed in the post of Assistant Teacher. The appellant-petitioner was also

transferred from one school to another school in the same grade and scale of pay and, thus, the services of the appellant-petitioner cannot be held to

be illegal. It is his further submission that the learned Single Judge has erred in holding that the appointment of the appellant-petitioner was dehors the

rules of recruitment and void ab initio. In support of his submissions, Mr. Borbhuiya has placed reliance on a number of decisions in V.P. Ahuja vs.

State of Punjab and others, reported in (2000) 3 SCC 239; Jaswant Singh and others vs. State of M.P. and others, reported in (2002) 9 SCC 700;

Mohd. Sartaj and another vs. State of U.P. and others, reported in (2006) 2 SCC 315 ;and Civil Appeal no. 1622 of 2020 [Laxmibai vs. Collector,

Nanded and others], rendered on 14.02.2020.

Mr. Goswami on the other hand, has supported the observations made and findings arrived at by the learned Single Judge. He has submitted that

the appointment of the appellant-petitioner was not preceded by any process of selection, as mandated in the Assam Elementary Education

(Provincialisation) Rules, 1977. It is submitted by him that the enquiries were conducted in respect of the illegal appointments made in Darrang district

during the relevant point of time and it was found that the then Deputy Inspector of Schools (I/C), Mangaldoi appointed altogether 302 teachers vide

appointment orders dated 20.11.1999 and 04.12.1999. It has already been established that except 17 nos. of appointments made on compassionate

ground, the other 285 nos. of appointments were illegal. A challenge to the termination of services of 285 nos. of Primary School Teachers made by

order dated 09.10.2012 has already been rejected by a Division Bench of this Court in a batch of writ appeals i.e. Writ Appeal no. 79/2015 [Heramba

Kumar Saikia and others vs. State of Assam and others] and 11 other writ appeals along with 13 other writ petitions, reported in 2017 (2) GLT 109.

Thus, he submits that it is not open for the appellant-petitioner to reagitate the same issue. That any appointment made in contravention of the

procedure prescribed by the Assam Elementary Education (Provincialisation) Rules, 1977 is illegal and it has already been affirmed by the

Hon’ble Supreme Court in Nazira Begum Lashkar and others vs. State of Assam and others, reported in (2001) 1 SCC 143. Mr. Chaliha, learned

Standing Counsel for the Finance Department has adopted the submissions of Mr. Goswami. For the aforesaid reasons, they submit that this writ

appeal deserves to be dismissed.

We have considered the submissions advanced by the learned counsel for the parties and also perused the materials available on record. We have

also gone through the decisions cited by the learned counsel in support of their submissions reference about which would be made hereinafter at

appropriate places.

The case pleaded and urged by the appellant-petitioner in the writ petition was to the effect that in response to an advertisement made in the year

1988 for post of Assistant Teacher in Lower Primary/Middle English Schools she submitted her candidature. She thereafter, appeared in the interview

and was selected for the post of Assistant Teacher under the Deputy Inspector of Schools, Mangaldoi. Before the selection process, she was serving

as Honorary Teacher in Mahiakhat Lower Primary School. The appellant-petitioner along with some other similarly situated Honorary Teachers

approached the Director of Elementary Education, Assam for allotment of posts and the said authority allotted 6 (six) nos. of posts by order dated

26.03.1999. In Annexure-A thereof, the name of the appellant-petitioner had appeared and on that basis, the Deputy Inspector of Schools (I/C),

Mangaldoi by letter dated 04.12.1999 had appointed the appellant-petitioner as a Stipendiary Teacher at Mahiakhat Lower Primary School.

At this stage, it is apposite to refer to the provisions of the Assam Elementary Education (Provincialisation) Rules, 1977 (hereinafter referred to as

“the 1977 Rulesâ€​ and/or “the Rules, 1977â€​, for short) framed by the Governor of Assam in exercise of powers conferred by Section 27 of the

Assam Elementary Education (Provincialisation) Act, 1974. Rule 3 of the 1977 Rules has prescribed the method of recruitment of teachers in

provincialised elementary schools. As per Rule 3, the Selection Board constituted for the purpose has to invite applications from eligible candidates

through an advertisement made in the newspapers and the Selection Board after receipt of applications, shall have to scrutinize and process the

application forms, the marksheets and other necessary testimonials of the candidates for interview by the interview committee. The Selection Board

after completion of interviews, has to prepare a select list in order of merit in accordance with the procedure laid down therein for the vacancies

advertised and thereafter, to forward the same to the Director of Elementary Education, Assam. The Director of Elementary Education, Assam shall

authenticate the select list and get the same published. The Deputy Inspector of Schools or the District Elementary Education Officer, as the case

may be, shall appoint the selected candidates in order of merit only from such authenticated select list. It is further mandated therein that any

appointment given to persons outside such select list shall be ab initio invalid except the appointment given on compassionate ground by the

Government as per Rules framed by the Government in that regard.

It is in the context of such method of recruitment prescribed in the Rules, 1977, the case projected on behalf of the appellant-petitioner has to be

considered. Nothing has been brought on record by the appellant-petitioner to show that her appointment by order dated 04.12.1999 by the Deputy

Inspector of Schools (I/C), Mangaldoi was preceded by any process of selection. The appellant-petitioner has also failed to place on record any

advertisement in any newspaper or any select list prepared, authenticated and published by the respondent authorities wherein her name had

appeared.

On a perusal of the order dated 26.03.1999, it appears that 6 nos. of posts of Primary School (Mixed Medium) Teachers were shown to be allotted

and placed at the disposal of the Deputy Inspector of Schools, Mangaloi. In Annexureâ€"A purportedly a part of the said order dated 26.03.1999, the

names of 6 (six) Schools and 6 (six) persons including the appellant-petitioner, against those schools were shown. But nowhere it is reflected that the

said 6 (six) persons were persons selected pursuant to any selection process initiated through any advertisement published in any newspaper and from

a select list prepared, authenticated and published as per the 1977 Rules. In the order dated 04.12.1999 whereby the appellant-petitioner came to be

appointed by the then Deputy Inspector of Schools (I/C), Mangaldoi neither any reference was made to the order dated 26.03.1999 nor any reference

was made to any advertisement/selection process/select list. As it is the appellant-petitioner who has contended that she was appointed pursuant to a

valid selection process, the onus lies on the appellant-petitioner to substantiate such contention. Except bald contention, the appellant-petitioner has

failed to substantiate anything.

In Heramba Kumar Saikia and others vs. State of Assam and others, reported in 2017 (2) GLT 109, a Division Bench of this Court considered the

validity of appointments of the appellants and the petitioners involved therein who were appointed in Darrang district as Lower Primary School

Teachers when an allegation was made to the effect that the appointments made by the Deputy Inspector of Shcools, Mangaldoi, District â€" Darrang

by orders dated 20.11.1999 and 04.12.1999 were illegal on the premise that same were made without selection and approval of the Selection Board.

11.1. Notice was taken of the fact therein that an enquiry was conducted by one Sri P.C. Kakati, Extra Assistant Commissioner (EAC) on the

direction of the Deputy Commissioner, Darrang in respect of the alleged illegal appointments of the Lower Primary School Teachers in Darrang

district. The appellants and the petitioners therein were found to have produced their documents before the Enquiry Officer to establish their claims

that they were duly selected and appointed by the Selection Board after due process and approval. But the Enquiry Report submitted by the Enquiry

Officer on 15.07.2003 to the Deputy Commissioner, Darrang reflected that no records or documents etc. were made available from the Deputy

Inspector of Schools, Mangaldoi and that the appointments made on 20.11.1999 and 04.12.1999 were all illegal as those appointments were made

without selection and approval of the Selection Board.

11.2. Pursuant to the said Enquiry Report, the Secretary to the Government of Assam, Education Department vide its communication dated

22.01.2004 instructed the Director of Elementary Education, Assam to cancel the illegal appointments of teachers numbering 302 in Mangaldoi Sub-

Division after affording them an opportunity of personal hearing. A writ petition, W.P.(C) no. 6631/2003, came to be instituted by some of the persons

alleged to be illegally appointed and the same was disposed of by an order dated 14.02.2008 with certain directions. Thereafter, the Commissioner and

Secretary to the Government of Assam, Elementary Education Department issued instruction to the Director of Elementary Education, Assam to

serve a show cause notice upon the teachers who were appointed on 20.11.1999 and 04.12.1999. Upon issuance of show cause notices, personal

hearing was given to the said 302 nos. of teachers in the Darrang district who were identified as illegal teachers in the enquiry held by the Deputy

Commissioner, Darrang in the year 2003. Upon completion of the Enquiry, an Enquiry Report was submitted on 17.06.2010. The Director of

Elementary Education, Assam submitted the said Enquiry Report to the Government. The stand of the State respondents in Heramba Kumar Saikia

(supra) was that the appointment of 302 teachers made by appointment orders dated 20.11.1999 and 04.12.1999 by the then Deputy Inspector of

Schools (I/C), Mangaldoi were dehors the statutory prescription under Rule 3 of the 1977 Rules.

11.3. In Heramba Kumar Saikia (supra) the relevant records as regards 302 nos. of appointments were produced and the same were also perused by

the co-ordinate Division Bench. It was recorded thereafter that the records revealed that the show cause notices were served on 17.02.2009 and

12.09.2012 upon all the Lower Primary School Teachers who were appointed on 20.11.1999 and 04.12.1999 respectively. The replies to the show

cause notice were submitted by the teachers in the form of response format. The Division Bench further recorded that as per the Enquiry Report

dated 17.06.2010, available therein, out of 302 appointments that were made on 20.11.1999 and 04.12.1999, the case of 17 candidates were different

as they were appointed on compassionate ground. Upon perusal of the records, a finding was made to the effect that a communication vide letter no.

PMA.158/94 dated 18.01.1995 was made by the Commissioner and Secretary to the Government of Assam, Education Department to the Accountant

General, Assam intimating sanction for creation of 8153 nos. of posts of Lower Primary School Teachers â€" 7565 posts for General Areas and 588

posts for 6th Schedule Areas â€" from the date of issue of sanction upto 28.02.1995 during 1994-1995 under the Centrally Sponsored Scheme (CSS)

of Operation Black Board (OBB) from the Government of India.

11.4. The Division Bench took note of the fact that the said communication vide letter no. PMA.158/94 dated 18.01.1995 also indicated that the

necessary district-wise break-up for the post would be issued subsequently. The Division Bench in Heramba Kumar Saikia (supra) in its findings had

mentioned that the records did not reveal any further district-wise break-up for the 8153 nos. of posts. Upon such perusal of the records, the Division

Bench found that the procedure of selection contemplated by the 1977 Rules was not followed and after due consideration of all the materials on

record, the Division Bench found the appointments of the appellants and the petitioners therein who were amongst the 302 nos. of teachers against

whom enquiries were conducted, to be not legally sustainable.

Noticeably a copy of the said communication vide letter no. PMA.158/94 dated 18.01.1995 has also been appended to the memo of appeal herein

as Annexure-A to contend that the appellant-petitioner’s was post was one of those 8153 nos. of posts. The Commissioner Secretary to the

Government of Assam, Education Department while communicating the letter no. PMA.158/94 dated 18.01.1995, had directed the Director of

Elementary Education, Assam to submit district-wise break-up of posts to the Education Department to enable the Department to issue district-wise

allotment of posts for the purpose. It may be mentioned, at the cost of repetition, the Division Bench in Heramba Kumar Saikia (supra) had already

observed that no district-wise break-up for the said 8153 nos. of posts was made by the Department subsequent to the letter no. PMA.158/94 dated

18.01.1995. In the order dated 26.03.1999 issued in respect of the present appellant-petitioner, the Director of Elementary Education, Assam had

mentioned that the allotment and placement of 6 (six) nos. of posts was placed at the disposal of the Deputy Inspector of Schools, Mangaldoi in

pursuance of the said letter no. PMA.158/94 dated 18.01.1995 of the Government. But no mention was found to the effect that such allotment was

made after any district-wise break-up of posts by the Government in the Elementary Education Department. Since no district-wise break-up and

allotment of posts was found to have been made by the Government in respect of the said 8153 nos. of posts and no selection process in terms of the

provisions of the 1977 Rules was undertaken, the allotment of posts in 6 (six) Lower Primary Schools and appointment of 6 (six) persons including the

appellant-petitioner, made against those Schools as Stipendiary Teachers initially vide Annexure-A purportedly appended to the order dated 26.03.1999

and subsequently regularized as Assistant Teachers can only be held as illegal and unauthorized and in violation of the statutory rules governing the

method of recruitment to such posts in the face of abject failure on the part of the appellant-petitioner to establish anything in support of her contention

that she was appointed pursuant to a valid selection process undertaken in compliance of the statutory rules.

It has been stated by the appellant-petitioner herself that she was served with a notice dated 11.06.2003 by Sri P.C. Kakati, EAC who undertook

the enquiry as regards illegal appointments of Lower Primary School Teachers in Darrang district on the direction of the Deputy Commissioner,

Darrang, directing her to appear before him on 16.06.2003. It has also been stated by the appellant-petitioner that pursuant to the said notice, she

appeared in the said enquiry on 16.06.2003. It has been recorded by the Division Bench in Heramba Kumar Saikia (supra) after perusal of the

relevant records to the effect that show cause notices were served on 17. 02.2009 and 12.09.2012 upon all the Lower Primary School Teachers who

were appointed on 20.11.2009 and 04.12.2009 and replies to the said show cause notice were submitted by the teachers. It is not denied by the

appellant-petitioner that she was not amongst the 302 nos. of teachers appointed in Darrang district who were brought under the purview of the

enquiries. Thus, it can be seen that the appellant-petitioner was given the opportunity in the course of both the enquiries. The stand taken by the

appellant-petitioner is only to the effect that she was wrongly brought under the purview of those enquiries. Not affording an opportunity of hearing at

all and not affording sufficient opportunity of hearing are two different aspects. In such situation, the contention as regards not affording an

opportunity of hearing to the appellant-petitioner has no substance. When one raises the issue of not affording sufficient opportunity of hearing the

same has to be considered parallaly with the issue of prejudice.

In the order dated 09.10.2012 passed by the Director of Elementary Education, Assam, the names of 285 nos. of teachers were mentioned with

the appellant-petitioner at serial no. 269. The said order was passed in pursuance of an order passed by the Government dated 08.10.2012, whereby

the services of 285 out of 302 nos. of teachers appointed in Darrang District and whose names, as per the list as appeared both in the Enquiry Report

of the Deputy Commissioner, Darrang and the Enquiry Report of the Director of Elementary Education, Assam were terminated with immediate

effect. As has been found out from the above discussion, a co-ordinate Division Bench of this Court had already returned a finding that the

appointments of each of those 285 nos. of teachers was illegal. In view of such categorical finding of a co-ordinate bench, any finding to the contrary

is not called for. In any view of the matter, we have not found any material in the case in hand, in the light of the discussion made above to reach a

different finding.

Even assuming for a moment in view of the contention raised that while terminating the services of the appellant-petitioner the principles of natural

justice were not followed in that the appellant-petitioner was not afforded sufficient opportunity the same is required to be considered in the backdrop

of the fact situation obtaining in each case. In this regard, it is apt to refer to the following observations made by the Hon’ble Supreme Court in

Mohd. Sartaj (supra) :-

“18. In Aligarh Muslim University v. Mansoor Ali Khan, (2000) 7 SCC 529, this Court considered the question whether on the facts of the case the

employee can invoke the principle of natural justice and whether it is a case where, even if notice has been given, result would not have been different

and whether it could be said that no prejudice was caused to him, if on the admitted or proved facts grant of an opportunity would not have made any

difference. The Court referred to the decisions rendered in M.C. Mehta v. Union of India, (1999) 6 SCC 237, the exceptions laid down in S.L. Kapoor

case, (1984) 4 SCC 379, and K.L. Tripathi v. State Bank of India, (1984) 1 SCC 43, where it has been laid down that not mere violation of natural

justice but de facto prejudice (other than non-issue of notice) has to be proved. The Court has also placed reliance in the matter of State Bank of

Patiala v. S.K. Sharma, (1996) 3 SCC 364 ,and Rajendra Singh v. State of M.P., (1996) 5 SCC 460, where the principle has been laid down that there

must have been some ideal prejudice to the complainant. There is no such thing as merely technical infringement of natural justice. The Court has

approved this principle and examined the case of the employee in that light. In Viveka Nand Sethi v. Chairman, J&K Bank Ltd, (2005) 5 SCC 33,7

this Court has held that the principles of natural justice are required to be complied with having regard to the fact situation obtaining therein. It cannot

be put in a straitjacket formula. It cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case. The principle

of natural justice, it is trite, is no unruly horse. When facts are admitted, an enquiry would be an empty formality. Even the principle of estoppels will

apply. In another recent judgment in State of U.P. v. Neeraj Awasthi, (2006) 1 SCC 667, while considering the argument that the principle of natural

justice had been ignored before terminating the service of the employees and therefore, the order terminating the service of the employees was bad in

law, this Court has considered the principles of natural justice and the extent and the circumstances in which they are attracted. This Court has found

in Neeraj Awasthi case that if the services of the workmen are governed by the U.P. Industrial Disputes Act, they are protected under that law.

Rules 42 and 43 of the U.P. Industrial Disputes Rules lay down that before effecting any retrenchment the employees concerned would be entitled to

notice of one month or in lieu thereof pay for one month and 15 days’ wages for each completed year of service by way of compensation. If

retrenchment is to be effected under the Industrial Disputes Act, the question of complying with the principles of natural justice would not arise. The

principles of natural justice would be attracted only when the services of some persons are terminated by way of punitive measure or thereby a stigma

is attached. Applying this principle, it could very well be seen that discontinuation of the service of the appellants in the present case was not as a

punitive measure but they were discontinued for the reason that they were not qualified and did not possess the requisite qualifications for

appointment.â€​

In Nazira Begum Lashkar (supra), the challenge was made by the appellants who were appointed as Assistant Teachers in Lower Primary

Schools, against cancellation of their appointments by the State Government after giving show cause notices. The ground of cancellation of

appointments was that the appointments were made in violation of the prescribed procedure laid down in Rule 3 of the Assam Elementary Education

(Provincialisation) Rules, 1977. An enquiry was directed in view of allegations of illegal appointments in large scale by some officials of the

Government and the Enquiry Report was submitted reporting that the appointments of those teachers were not made in accordance with the statutory

rules, without any advertisement calling for applications, without any constitution of the Selection Committee and without any interview. What had

been observed therein were that as the initial appointments had been made illegally contrary to the statutory rules, the continuance of such appointees

must be held to be totally unauthorized and no right accrued to the incumbents on the score. It cannot also be said that the principles of natural justice

were violated or full opportunity was not given to the appointees concerned to have their say in the matter before their appointments were cancelled

and terminated. It was further observed that since the appointments to the posts had been made indiscriminately, immediately after posts were allotted

to different districts at the behest of some unseen hands, such appointments would not confer any right on the appointee nor can such appointee claim

even any equitable relief from the Court. In our considered view, the observations made above also apply on all fours in the case in hand.

In Mohd. Sartaj (supra) the orders of cancellation was challenged by the appellants therein as those were allegedly passed without issuing any

prior notice or giving opportunity of being heard and for violation of the principles of natural justice. The appointments of the appellants were cancelled

in view of their lack of requisite qualification by providing them an opportunity thereafter to submit the requisite documents for verification if they were

in possession of such documents satisfying the requisite qualification. It was in that backdrop, it was observed that in view of lack of requisite

qualification the appellants did not hold any right over the posts. Since the appellants could not have been appointed nor their appointments could have

been continued, the Hon‘ble Supreme Court had observed that no hearing was required before cancellation of their services, as admittedly they

were not qualified. The decision in Mohd. Sartaj (supra), relied on by the appellant-petitioner, rather than furthering the cause of the present appellant-

petitioner, is found adverse to her cause as the appellant-petitioner is found appointed in a post without being preceded by any kind of selection

process in compliance of the 1977 Rules.

Taking into consideration both the observations made in the afore-mentioned decisions and the facts and circumstances of the case in hand, we

are of the unhesitant view in the face of the clear finding that the initial appointment of the appellant-petitioner was not preceded by any process of

selection under the statutory rules i.e. the 1977 Rules, grant of a further opportunity of hearing as regards the termination of services of the appellant-

petitioner will not have any bearing in the final result that the initial appointment was invalid ab initio.

We have also surveyed the other decisions cited by the learned counsel for the appellant-petitioner.

19.1. The decision in V.P. Ahuja (supra) pertains to a probationer who was terminated during his probation period by an order dated 02.12.1998. The

Hon’ble Supreme Court found the termination order ex facie stigmatic and it was in that context, it was held that the services of the appellant

therein could not have been terminated in a punitive manner without compliance of the principles of natural justice.

19.2. The appellants in Jaswant Singh (supra) were appointed as Lower Division Clerks and their appointments were cancelled by the Collector in

exercise of power under Section 83(1) of the M.P. Panchayat Adhiniyam, 1981 (‘the Adhiniyam’, for short) on the premise that the prescribed

procedure for appointment was not followed. The order of cancellation of the appellants was interfered with on the ground that no order under Section

83(1) of the Adhiniyam could have been passed by the Collector without adherence to Section 83(2) of the Adhiniyam which provided that no order

under Section 83(1) could be made to the prejudice of a party without affording the opportunity of hearing to them. The appointments of the appellants

therein were cancelled for not following the prescribed procedure, by not calling for the candidates from the employment exchange.

19.3. In Laxmibai (supra), the issue involved was in respect of disqualification of the appellants there who contested as candidates in Panchayat

Election but failed to furnish details about election expenses within the stipulated period of time in the manner prescribed by the State Election

Commission and in terms of governing statute. The Hon’ble Supreme Court interfered to the limited extent on the doctrine of proportionality when

the appellants were found disqualified for a period of 5 (five) years to contest election by remanding the matter to the Collector to take into

consideration the nature of default, the purport for which the election expenses were sought to be furnished, etc. and to pass the order afresh in

respect of the period of disqualification in accordance with law.

19.4. The decisions in V.P. Ahuja (supra), Jaswant Singh (supra) and Laxmibai (supra) do not assist the case of the present appellant-petitioner in any

manner.

A submission is advanced, without however bringing any material, to the effect that by virtue of Annexure-A purportedly annexed to the order

dated 26.03.1999, 5 (five) other persons were also appointed as Assistant Teachers in different Lower Primary Schools by the then Deputy Inspector

of School (I/C), Mangaldoi like the appellant-petitioner. But the services of those 5 (five) persons are not terminated till date and in such view of the

matter, the order of cancellation passed in respect of the appellant-petitioner who is also similarly situated, ought to be recalled. We do not subscribe to

and accept such submission made on behalf of the appellant-petitioner whereby the appellant-petitioner is claiming negative equality when Article 14

of the Constitution of India only embraces positive equality.

In view of the above discussion, we do not find any ground to reach a different view than the view arrived at by the learned Single Judge in that

the initial appointment of the appellant-petitioner was void ab initio and resultantly, we find the writ appeal bereft of any merit. Therefore, the writ

appeal stands dismissed. There shall, however, no order as to cost.