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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  

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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  

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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  

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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  

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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.        

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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  

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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.  

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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  

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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:

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“9. Where the services are terminated, the status  of the delinquent as a government servant comes  to  an  end  and  nothing  further  remains  to  be  done in the matter.  But if  the order is passed  and  merely  kept  in  the  file,  it  would  not  be  treated to be an order terminating services nor  shall  the  said  order  be  deemed  to  have  been  communicated.”

18. In  the  background  of  the  facts  of  this  case,  

particularly, the continued service of the appellant for the  

last 25 years, the impugned order passed by the High Court  

cannot be sustained in law.

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

impugned order is set aside.  Consequently, the appellant  

shall be entitled to continue in service and further entitled  

to all arrears of salary in accordance with law.

…...................J  [M. Y. EQBAL]

…...................J [C. NAGAPPAN]

NEW DELHI; OCTOBER 09, 2015.  

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