WA 120/2010 BEFORE HON’BLE MR. JUSTICE K. SREEDHAR RAO, THE CHIEF JUSTICE (ACTNG.) AND HON’BLE MR.JUSTICE P.K.SAIKIA 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 whic h 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 th ree other writ petitions including WP(C) No. 5650/2007 on holding that the peti tioners therein cannot claim regularization of their services since they were ap pointed dehors the Rules. 2. Review petition No. 22/2015 was filed seeking review of the judgment dat ed 10.05.2010, rendered in WA No. 120/2010 under which WA No. 120/2010 stood dis missed on ground that the appellant in WA No 120/2009 was similarly situated wit h the appellant in W.A. 112/2010 (Smt. Sewali Deka Vs State of Assam & ors) whic h was already dismissed on merit and as such, similar treatment needs to be mete d out to appellant in WA No 120/2010. However, contending that such decision was based entirely on misinformation since the appellants in those appeals were sit uated quite differently which, according to review petitioner, needs review of t he judgment in W.A.No.120/2010. 3. We have heard Mr. A. Borbora, learned Senior Counsel assisted by Ms. K D evi for appellant in WA No. 158 /2009 to WA No. 161 / 2009 and Mr. I.H. Borbhuya n, learned counsel for the appellant- WA No. 162/2009 and Ms. Ritumoni Rajkhowa, for review petitioner. Also heard Mr. S. Saikia, learned Standing Counsel, Educ ation Department appearing for the respondents. 4. Before we proceed further, we find it necessary to have a look at the fa cts projected in the aforesaid writ petitions. Since the learned Single Judge re produced in detail the facts of each petition as well as the cases of the resp ondents therein, we find it necessary to re-reproduce the facts of each of the case 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 pos t of Assistant Teacher in a High School in the Nalbari District of the State. Th e Inspector of schools, Nalbari District Circle, Nalbari on a scrutiny of his ap plication appointed him as Assistant Teacher on ad-hoc basis in Chamata High Sch ool vide Memo No. EST-3/65/04/2608 dated 16.05.1994. While, the petitioner was r endering his services, he was served with a slow cause notice dated 24.07.1998 i ssued by the same authority, whereby, he was asked to explain as to why his appo intment would not be terminated in view of the irregularities referred to therei n. The petitioner, accordingly, submitted his reply, where after, by order dated 25.01.1999 of the Inspector of Schools, Nalbari District Circle, Nalbari he was sought to be discharged from service with immediate effect. Being aggrieved, he instituted WP(C) No. 494/1999 before this Court and by order dated 09.02.1999 t he operation of the order dated 25.01.1999 was kept in abeyance. According to th e petitioner, in the meantime, his service book had been opened and deductions f rom his salary were being made for the General Provident Fund. He also claimed t o have earned increments. The petitioner has further asserted that in terms of a Cabinet decision dated 21.02.2000, the Government of Assam had decided to regul arize 3511 teachers of various Schools in the State and, accordingly, a circular No. 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 aggrie ved by an order under Memo No.EST-3/CC/WP'5412/2000/4044 dated 08.10.2007 of the Inspector of Schools, Nalbari District Circle, Nalbari, whereby his services ha ve 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 of her 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/APP TT/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 D istrict Circle, Nalbari requiring her to explain as to why her appointment would not terminated in view of certain irregularities accompanying the same. The pet itioner replied on 03.08.1998, but by order dated 25.01.1999 issued by6 the Insp ector of Schools, Nalbari District Circle, Nalbari, she was discharged from serv ices with immediate effect. Being disconnected, she approached this court with W P(C) No. 506/1999 and by order dated 10.02.1999, the order affecting her dischar ge was stayed. The petitioner too has identically asserted that in due course of time she had earned increments in pay, her service book had been duly opened an d deductions were made from her salary for contributions to the General Providen t 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. H owever, by the impugned order dated 08.10.2007 of the Inspector of Schools, Nalb ari 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 Ko ithaljuchi 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, h e received notice dated 24.07.1998 of the Inspector of Schools, Nalbari District Circle, Nalbari asking him to show cause as to why his appointment would not be terminated in view of certain irregularities referred to therein. Though, the p etitioner duly submitted his reply, he was by order dated 25.01.1999 issued by t he 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 an d apart from having earned increments in salary deductions were made therefrom f or contribution to the GPF. The same Cabinet decision and the circular have been referred 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 t erminated by the impugned order dated 08.11.2007 of the Inspector of Schools, Na lbari District Circle, Nalbari. WP(C) NO. 5650/2007 The petitioner has pleaded that in response to the advertisement dated 0 3.09.1991 issued by the Education department of the State, he offered his candid ature 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 of Dharampur Constituency of Nalbari District and he, accordingly, was appointed a s 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 sh ow cause notice dated 24.07.1998, issued by the same authority, asking him to ex plain as to why his services would not be terminated, he submitted his reply ass erting, inter alia, his selection as above. By order dated 25.01.1999 of the Ins pector of Schools, Nalbari district Circle, Nalbari, he having been discharged f rom service with immediate effect, he approached this Court with WP(C) No. 441/1 999 and by order dated 05.02.1999, the State respondents, in the interim, were d irected not to disturb his services and to pay his salary regularly. This petiti oner as well, has insisted that in the meantime, his service book has been opene d and that increments in salary had been granted to him and further deductions f rom is salary were being made for contribution to the General Provident Fund. Re ferring to the same Cabinet decision and the circular, the petitioner has claime d 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 n otwithstanding, 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 on temporary basis following her selection in the year 1996 on the basis of an adv ertisement against a retired vacancy. According to her, in the select list her n ame appeared at Sl. No. 13 and she was appointed by the Inspector of schools, Na lbari 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 th is Court with WP(C) No. 804/1999 and by an interim order dated 22.02.1999 the re spondents were restrained from disturbing her services. The petitioner has refer red 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 deci sion of the Government to regularize all ad-hoc teachers/office assistant/grade- IV employees working against valid sanctioned posts. As the petitioner satisfied all the prerequisites as mentioned in the aforementioned letter and was assured of regularization of her services by the departmental authorities, she withdrew the above writ petition on 14.09.2005. Subsequent thereto, by the impugned orde r dated 08.10.2007 of the inspector of Schools, Nalbari District Circle, Nalbari her services have been terminated. WP(C) NO. 6182/2007 The petitioner is a graduate in Arts and had applied for appointment as Assistan t Teacher of a High School in response to an advertisement and on the completion of the process of selection, in the select list that was published on 12.04.198 8 his name appeared at Sl. No. 12 thereof, in the order of merit. As the respond ent authorities, the select list notwithstanding, restored to appointments beyon d the same, several selectees approached this Court. According, several writ pet itions including WP(C) No. 2276/1990, WP(C) No. 2324/1990 etc., were disposed of by this Court directing the authorities to make appointments from the select li st in order of merit till the same was exhausted and injuncted the respondent au thorities from making appointment of any other person. Pursuant to the above dir ection, the petitioner was appointed as Assistant Teacher of Jagara High School vide order dated 07.05.1991 issued by the Inspector of Schools, Nalbari District Circle, 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 of Assistant Teachers and Subject Teachers in Nalbari District was published and a s the departmental authority again made appointments from beyond the select list , a spate of writ petitions followed, questioning the legality of such action. T his Court, eventually, intervened and directed the departmental authorities to m ake appointments strictly following the select list and to oust persons irregula rly or illegally appointed, if necessary to accommodate the candidates with supe rior 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, th erefore, 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 appea r in that list is patently untenable and frivolous. The petitioner, however, sub mitted 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 25.01.1 999 of the Inspector of Schools, Nalbari District Circle by order dated 08.02.19 99, in the interim directed the respondent authorities not to disturb his servic es until further orders. He having been served thereafter with the impugned orde r of termination dated 08.10.2007 issued by the same authority, the petitioner c ould 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 Solm ara HS School vide order dated 20.12.1994 of the Inspector of Schools, Nalbari D istrict Circle, Nalbari. His initial term of three months was, thereafter, exte nded from time to time. Following a scrutiny of her appointment by the concerned Task Force/District Level Screening Committee appointed for the purpose along with that of similar situated appointees and in terms of the same Cabinet decisi on and the consequential circular dated 10.08.2000, her services were regularize d 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 th e Commissioner & Secretary, Govt of Assam, Education Department. Referring to th e same decision of the Govt. to regularize the services of all ad hoc teachers/o ffice 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 contr ibutions to the General Provident Fund. The petitioner has questioned the validi ty of the order dated 08.10.2007, terminating his services. He has asserted to b e neither a prary in CR No. 5616/1996 and CR No. 5378/1997 as referred to in the said order, nor in any way connected therewith. He has also alleged discriminat ion, contending that teachers similarly appointed and equally placed are till da te continuing in service. According to him, on an earlier occasio9n apprehending termination of his services, he had approached this Court with CR No. 3884/1998 and by order dated 10.08.1998; the respondent authorities were interdicted from ousting him from service. The petition, however, stood dismissed for non-prosec ution on 30.08.2000 . WP(C ) No. 6261/2007 The petitioner, who is a post graduate in Assamese, had applied for being appoin ted as Assistant Teacher in Pakowa High School against an existing vacancy. Even tually, 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 m onths till the recommendations of the District Level Selection Committee, Nalbar i, whichever was earlier. The petitioner, accordingly, joined the services and h er initial term was extended from time to time. Her intermediate scale of pay wa s converted to graduate scale of pay of Rs. 1375-3375/- w.e.f. 07.06.1994 by mem o dated 22.05.1996 of the Inspector of schools, Nalbari District Circle, Nalbari . Her services were, thereafter, regularized by the office memo dated 10.10.1996 also of the said authority. While the matter rested at that she was served with a how cause notice dated 24.07.1998 requiring her to explain as to why her appo intment 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 o rder dated 1995-1996. The petitioner duly submitted her reply, contending among st 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 Inspec tor of schools, Nalbari District Circle, Nalbari, she was discharged from servic e in deference to the interim order of this Court she was allowed to continue in service. 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 S chools, Nalbari District Circle, Nalbai. She was also transferred in between and posted at Helacha High Schools. The letter dated 22.02.2005 of the Commissioner & Secretary, Govt. of Assam, Education Department , conveying the decision of t he Govt to regularize all ad hoc teachers on the stipulations as mentioned there in, has also been referred. The petitioner has admitted about the dismissal of t he CR No. 407/1999 on 16.11.2005 for non-production. While also referring to the judgment and order dated 12.05.2000 passed in WA No.500/1997, the petitioner ha s assailed the impugned order dated 08.10.2007 terminating his services to be un sustainable in law. The claim of the review petitioner in WP(C) No. 5650/2007 is that he was appoint ed 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 Inspect or of Schools for which he approached this court by way of WP(C) No. 441/1999 an d this Court by its order dated 5.2.1999 as an interim measure, directed the res pondents not to disturb the service of the petitioner and directed to pay the sa lary. However, his service was confirmed in 2003 but he was dismissed from servi ce under the order dated 08.10.2007 for which he approached this court by way of WA No. 120/2010 which was, however, dismissed on 10.05.2010 on holding that app ellants in WA No.112/2010 and WA No. 120/2010 are similarly situated and since W A 112/2010 was dismissed on merit , similar treatment needs to be meted out to a ppellant in WA No.120/2010 contending that such order was based on misconception of 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. 1 58 of 2009 to WA No. 162 of 2009. 5. Learned Single Judge reproduces the case of the respondents in the afore said 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 a dvertisement was issued by the then Director of Secondary Education, Assam invit ing applications for selection to 200 posts of Assistant Teacher and 100 posts o f Language Teacher along with some other categories for appointment in provincia lised/ High/Higher Secondary Schools of Assam. On the completion of the process, so initiated, the concerned District Level Selection Board prepared and publish ed the select list on 04.01.1995 for the five constituencies of Nalbari district , i.e Barama, Barkhetri, Dharmapur, Nalbari and Patacharkuchi. Some candidates w ith the grievances that the order of merit as reflected in the select list had n ot been adhered to in making appointments and that persons not included therein, had been favored therewith, instituted several writ petitions, praying for annu lments thereof. The State respondents being noticed, they duly submitted their a ffidavits, where after, this court vided its judgment and order dated 02.08.1997 passed in CR No. 5216/1996 (Shri Dulal Tahbildar Vs State of Assam & Ors) and 2 9 other connected matters as well as the judgment and order dated 05.05.1998 pas sed in CR No. 5378/1999( Sri Dibakar Sarma & 4 Anr. Vs State of Assam & ors)., d irected the Commissioner and Secretary, , Education Department, Assam and Direct or of Secondary Education, Govt of Assam to cancel the appointments of the perso ns not included in the select list asf well as of those, who were not entitled t o appointment on the basis of their intense merit position in the select list wi th regard to the aforementioned constituencies. The answering respondent maintai ned that this court, while ordering the compliance of the law of reservation, al so required the said authorities to offer appointment jto the candidates, who we re entitled thereto as per their positions in the select list with th clarificat ion that if such candidate did not turn up for appointment within1 month of serv ice 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 a d hoc appointments forthwith. The aforementioned State respondents were also dir ected to file compliance report within two months thereof. The respondent No.2 further averred that in compliance of the above dire ctions, the Govt of Assam in the Education Department, on a scrutiny and examina tion 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 t he select list or beyond the same or on ad hoc basis and drew up a list of Assis tant Teachers, who were entitled to be appointed in their places on the basis of merit 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 pers ons in terms of the determinations made by this court. The answering respondent disclosed the results of the exercise vis-à-vis the five constituencies of the N albari district as quot4ed hereunder:- 10. That the Govt on proper scrutiny found that although the select list of Ba5 ama Constituency of Nanbari district was published on 04.01.1965, ten persons we re 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 po sition. As ten persons were appointed, it was evident that the vacancies were av ailable in Barama Constituency. The Govt by order dated 10.06.1998 prepared a li st of eight eligible candidates keeping two posts vacant for STP & STH candidate s. Similarly, for Barkihetri Constituency of Nalbari district select list w as published 04.01.1995, forty five persons were appointed, it was evident that forty-five vacancies were available in Barkhetri Constituency. The Government by order dated 10.06.1998 prepared a list of thirty-six eligible candidates ke eping 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 Constituen cy. The Government by order dated 28.12.1998 prepared a list of twenty-eight el igible candidates keeping fourteen posts vacant for STP (5), STH (2), OBC (5) an d SC(2) candidates. For Nalbari Constituency of Nalbari district select list was published o n 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-two vacancies 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 S TP (4) and STH (2) candidates. Again for Patacharkuchi Constituency of Nalbari district select list was published on 04.01.1995, sixteen persons were illegally and arbitrarily appoint ed, out of which twelve were from outside the said select list. As sixteen perso ns were appointed, it was evident sixteen vacancies were available in Patacharku chi Constituency. The Govt. by order dated 28.12.1998 prepared a list of ten eli gible 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 appoi ntment on the basis of his selection (within Sl No. 34 of Dharampur Constituency ), the State respondents made necessary enquiries, in course of which it transpi red that the writ petitions filed by the petitioners, in the meantime, impugning their discharge by orders dated 25.01.1999 of the Inspector of Schools, Nalbari District Circle, Nalbari, had either been withdrawn or dismissed for non prosec ution and that the interim restraints had ceased to exists. As they had,