WP(C) 825/2007 BEFORE THE HON’BLE MR. JUSTICE AMITAVA ROY JUDGMENT AND ORDER The show cause notice dated 08.09.2016 as well as the order date d 22.12.2006, terminating the petitioner’s service as Assistant Teacher of a Low er Primary School of the State comprise the subject matter of challenge in the i nstant proceeding. 02. I have heard Mr. AS Choudhury, Senior Advocate assisted by Mr. I H Saikia, Advocate for the petitioner and Mr. A Deka and Ms. M Gogoi Medhi, lear ned Standing Counsel, Education Department, Assam. 03. In brief, the petitioner’s recorded case is that the DI of Schoo ls, Nalbari with the prior approval of the Sub-Divisional Elementary Education A dvisory Board, Nalbari by his order dated 30.05.1995 appointed her as a stipendi ary teacher on ad-hoc basis for a period of three years and posted her at No. 2 Ghoga Tribal LP School on a monthly stipend of Rs. 900/-. After her such appoin tment against a post sanctioned by the Director of Elementary Education, Assam, vide Memo No. EPD/P/21/92/147-A, dated 12.01.1993, she was by order dated 18.08. 1995 of the Block Elementary Education Officer, Barkhetri transferred and posted her in the same capacity at Chungabari LP School. It was, thereafter, that her initial term of ad-hoc appointment was extended until further orders by the ord er dated 07.09.1995 of the Deputy Inspector of Schools, Nalbari as dissolved by the Advisory Board for Elementary Education, Nalbari vide its Memo No. 2, dated 06.08.1995. In terms of the order 07.09.1995, the petitioner was to initially r eceive a stipend of Rs. 900/- per month to be deputed to undergo Junior Basic Tr aining course. The letter also mentioned that she would receive regular scale o f pay and allowances as per the relevant rules on her successful completion of t he said training. According to her, she was, thereafter, sent for the said training, which she suc cessfully completed in the year 2001. Subsequent thereto, she was transferred a nd posted at Dirua Tribal LP School by order dated 29.05.2002 of the Block Eleme ntary Education Officer, Barkhetri and had been rendering their services thereat till the same were terminated by the order impugned. Meanwhile, she along with other similarly situated persons were allowed to draw time scale of pay of Rs. 3130-660/- per month together with other allowances by the order dated 04.12.200 2 of the Director of the Elementary Education, Assam on her successful completio n of the aforementioned training course. Her services were also confirmed by th e order dated 24.08.2004 of Deputy Inspector of Schools, Nalbari. It was, there after that in course of the scrutiny of the reported anomalies in the appointmen t of teachers in the district of Nalbari in the year 1999 that the impugned show cause notice dated 08.09.2006 issued by the Director of Elementary Education, A ssam was served on her requiring her to explain as to why her appointment would not be cancelled as it was not preceded by any selection under the Assam Element ary Education (Provincialisation) Rules, 1977 (for short hereafter referred to a s the Rules). According to the petitioner, on enquiries being made by her she w as made to understand that the exercise undertaken to unearth the irregular and illegal appointments made in the year 1999 was not relatable to her. The petiti oner has stated that being led to belief as above, she did not file any reply. The impugned order followed thereafter terminating her services on the purported ground that she had not been selected under the Rules and that consequently she was not entitled to continue in her post. Being aggrieved, the petitioner on 1 8.01.2007 submitted a representation before the Director, Elementary Education, Assam reiterating the facts pertaining to her appointments as alluded hereinabov e emphasizing in particular that she had been denied an opportunity of hearing t o represent against the action proposed. Through her additional pleadings, the petitioner sought to asser t that her appointment was preceded by due selection and the approval of the Sub -Divisional Elementary Education Advisory Board, Nalbari. While reiterating tha t she had not submitted her explanation to the show cause notice being dissuaded from doing so by the concerned departmental authorities and that persons simila rly situated are still continuing in service, she has pleaded that having regard to the sequence of events culminating in her confirmation, the impugned action, per se, is unsustainable in law. She has also brought on record documents and intra official correspondences highlighting the Cabinet decision dated 24.02.200 5 of the Government, deciding on principle to regularise 2776 teachers detected to have been appointed in excess of posts by the one man Enquiry Committee heade d by Sri S Monohoran, IAS and subsequently by the Task Force/District Level Scre ening Committee and Departmental Screening Committee entrusted with the responsi bility to that effect. She has also sought to rely on the letter dated 21.08.20 09 of the Deputy Inspector of Schools, Nalbari in response to her representation with the Government against the termination of her services, wherein, she has b een stated to be selected by the Sub-Divisional Advisory Board vide its resoluti on No. 1, dated 27.03.1995. 04. The Director of Elementary Education, Assam in his affidavit has averred that the Government of Assam in the Education (Elementary) Department i n order to enquire into the reported irregular and illegal appointments as well as consequential unauthorized drawal of salary in the Nalbari district had const ituted a committee vide its notification 26.06.2006. This was necessitated by t he inputs received about excess irregular appointments said to have been made by the then District Elementary Education Officer and the Deputy Inspector of Scho ols, Nalbari ignoring the procedure prescribed by the Rules and the number of sa nctioned pots available therefor inter alia representing that several such incum bents had been transferred from the schools located in the areas presently inclu ded within the territorial limits of Bodoland Territorial Council (erstwhile Bod oland Autonomous Council) of the undivided Nalbari District. According to the a nswering respondent, the enquiry brought to the fore 436 illegal appointments wi th the following break up: - Pub Nalbari Block 151 Borigog Bonbhag Block 81 Paschim Nalbari Block 14 Urban Area 12 Barkhetri Block 166 Tihu Barama Block 12 Total 436 In its report dated 10.08.2006, the Committee inter alia hinted at the falsification of records, criminal conspiracy, forgery indulged in by the various officials of the Department as referred to therein to cause misappropri ation of the Governments funds. Accordingly, the Secretary to the Government of Assam, Education (Elementary) Department vide his order dated 23.08.2006 forwar ded a copy of the enquiry report to the Director of Elementary Education, Assam instructing him to terminate the services of all such teachers, who had secured their appointments by illegal means. The show cause notice dated 08.09.2006 and the impugned order of termination followed thereafter. The affidavit reveals t he actions taken against the erring departmental officers, which include registr ation of criminal cases against them and suspension from service. 05. Mr. Choudhury has persuasively argued that the petitioner having been duly inducted in service and eventually confirmed thereat in view of her b lemish free performance over the years, her appointment by no means could be bra nded as illegal and, therefore, the impugned action is, per se, invalid. Referr ing to the enquiry report of the Committee aforementioned produced in course of the arguments by the learned Standing Counsel, Education Department, Assam, the learned Senior Counsel has contended that as it is apparent therefrom that it (C ommittee) did not express its final opinion with regard to the selection or othe r wise of the petitioner and others of the Barkhetri block in the then Nalbari d istrict, the adverse presumption against her by the departmental authorities is wholly unfounded, thus vitiating the impugned action. According to Mr. Choudhur y, the fact that the petitioner had been sent to undergo the basic training cour se, which she completed successfully and that thereafter she was accorded a regu lar scale of pay, unmistakably demonstrate the validity of her appointment and, therefore, the impugned action being wholly presumptuous, is liable to be set as ide in the interest of justice. The learned Senior Counsel without prejudice to the above, has also argued that even assuming that the petitioner’s initial app ointment was not in accordance with the Rules, in view of the policy decision of the Government to regularise the illegal teachers, the impugned action vis-a-vi s the petitioner was uncalled for. The learned Senior Counsel has also urged un fairness in action against the impugned decision, contending that the petitioner had not been afforded any opportunity to represent against the same. An endeav our has also been made by Mr. Choudhury to rely on the decision of this Court re ndered on 05.06.2007 in a batch of writ petitions, the lead case being WP(C) NOS . 579/2007 (Sri Bikash Pratim Bhattacharja & Ors. Vs. State of Assam & Ors.) to buttress his arguments. 06. In reply, the learned Standing Counsel Education Department has maintained that it being evident from the orders relating to the petitioner’s in itial recruitment that the same was not consequent upon any selection envisaged by the Rules, her entry in the service is clearly illegal and, therefore, her co ntinuance therein is impermissible. Referring to the official records pertainin g to the issue, he has urged that it would be apparent therefrom that there is n o semblance of proof of any selection preceding her appointment and that she hav ing failed to satisfactorily reply to the show cause notice, the impugned action in the facts and circumstances of the case ought to be sustained. 07. I have duly considered the pleadings of the parties and the argu ments advanced. Noticeably, the writ petitioner in her writ petition at the fir st instance did not, in clear terms claim to have been selected by the Sub-Divis ional Elementary Education Advisory Board, Nalbari prior to her appointment by o rder dated 30.05.1995 of the Deputy Inspector of Schools, Nalbari. It, however, passes one’s comprehension as to why, if she had, in fact been selected under t he Rules, her initial appointment was on ad-hoc basis for a period of three year s. The order dated 07.09.1995 of the Deputy Inspector of Schools, Nalbari disti nctly records a resolution of the Advisory Board for Elementary Education, Nalba ri dated 06.08.1995 extending the term of the petitioner’s initial ad-hoc appoin tment. In other words, even if the orders dated 30.05.1995 and 07.09.1995 are t aken on their face value, the petitioner continued on ad-hoc basis till she comp leted the junior basic training course and was granted a regular scale of pay to be confirmed thereafter in service. All these, however, cannot in law sum up t o substitute a selection prescribed by the Rules as a condition precedent for va lid appointment in the service. 08. The report dated 10.08.2006 submitted by the Committee constitut ed for the purpose of enquiring into irregular, illegal and excess appointments vis-a-vis the district of Nalbari in clear terms identifies the petitioner to be one of the 60 LP Schools teachers, who had been transferred from the Bodoland T erritorial Administrative District area. She had been shown to be serving at No . 2 Ghoga Tribal LP School disclosing her date of joining thereat to be 06.12.19 99. The report indicates the date of her appointment not shown . It has been mentioned further that for the non receipt of the select list(s) (stated to be s eized by DC Nalbari for enquiry), it could not be ascertained as to whether the appointment of these teachers were made on the basis of selection conducted by t he Sub-Divisional Level Advisory Board, Nalbari. The records pertaining to the process initiated by the impugned show cause notic e dated 08.09.2006 contains an explanation dated 20.09.2006 submitted by the pet itioner, enclosing therewith copies of her appointment orders referred to herein above, her basic training course pass certificate and orders of grant of regular scale of pay and confirmation in service. The impugned order of termination of her services is based on the ground of want of her selection under the Rules as indicated in the impugned show cause notice. The plea of unfairness raised on behalf of the petitioner, therefore, is not convincing. Opportunity of personal hearing in all circumstances cannot be claimed as a matter of right. The extra cts of the records furnished by the Deputy Commissioner, Nalbari vide his letter dated 31.12.2008, however, do not throw much light on the issue. 09. In SRI BIKASH PRATIM BHATTACHARJA & ORS. (Supra), this Court int erfered with the termination of the services of only those petitioners, who clai med to have been selected in a process initiated by an advertisement issued by t he then Bodoland Autonomous Council on the ground that the State Government in t hat factual backdrop, having regard to the provisions of the Bodoland Autonomous Council Act, 1993, lacked in authority to do so. Their claim of selection had remained unrefuted by the respondents. Vis-a-vis the other petitioners, the imp ugned action of termination of their services was sustained. In the case in han d, pleadings on record do not unassailably evidence selection of the petitioner even by the then Bodoland Autonomous Council authority so as to save her appoint ment by the analogy of reasonings recorded in the said decision. 10. On a totality of the considerations as above and in absence of a ny unimpeachable evidence in support of the petitioner’s selection prior to her initial appointment, the impugned action is unassailable in law and on facts. T hough, the Deputy Inspector of Schools, Nalbari in his letter dated 21.08.2009 ( Annexure 14 to the additional affidavit filled by the petitioner) stated that sh e had been selected by the Sub-Divisional Advisory Board, Nalbari, vide its reso lution No. 1, dated 27.03.1995, there is no reference thereof in the order dated 30.05.1995 appointing her on ad-hoc basis. The statement, per se, therefore, c annot clinch the issue in her favour, more so as the said authority in the same letter had also underlined that she is amongst the 436 illegal teachers identifi ed. The petition, therefore, lacks in substance and is dismissed. It is made c lear that this determination has been made strictly on the basis of the material s available before this Court and applying the touchstone of the mandate of the Rules. Any action by the State respondents vis-a-vis the petitioners in terms o f the State policy, as referred to hereinabove, would be within their discretion and domain, if considered expedient and apposite in the facts and circumstances of the case. The petition stands dismissed in the above terms. No costs.