LOHIT CHANDRA SARMA Vs. STATE OF ASSAM

JUDGEMENT

(1.) The petitioner was a member of the Assam Education Service and by order dated 17.5.99 of the Government of Assam, Education Department, he has been compulsory retired from service under FR 56(b) with immediate effect in the public interest before the age of superannuation. Along with the said order, a bank draft for Rs. 25,314.00 has been served upon the petitioner towards his three months gross salary in lieu of three months notios in writing. Aggrieved by the said order of compulsory retirement, the petitioner has filed this writ petition under Article 226 of the Constitution for quashing the said order.

(2.) An affidavit-in-opposition has been filed by the Secretary to the Government of Assam, Education Department, on behalf of the respondent Nos 1 and 2 and in the said affidavit-in-opposition it has been stated (that the Government of Assam by notification dated 9.9.96 passed an order for administaitive enquiry to be conducted by Shrii S. Monoharan, the then Commissioner of Lower Assam Division, into the irregular and illegal appointment of school teachers in various categories of schools in Assam during; the period 1991 -1996. Pursuant to the said order, Shri Monoharan conducted an enquiry on the basis of records made available to him by the concerned officials of the respective districts and Sub-divisions and submitted his report. The Government then constituted a task force to go into the details of the Monoharan Committee Report. The task force submitted an exhaustive report indicating the names of the illegal appointees and the officers responsible for the appointments. The State Cabinet then took a decision on 13.9.98 for constituting a Screening Committee and the Screening Committee was constituted on 10.10.98 consisting of three members. The Screening Committee examined the records of the task force and recommended that those officers who had been found to be involved in flouting the Rules laid down for recruitment in appointment of teachers and had completed 25 years of service or attained the age of 50 years be compulsorily retired under FR 56(b). The Screening Committee found that the petitioner was one such officer and accordingly recommended action against him under FR 56(b). Pursuant to the said recommendation, the petitioner was compulsorily retired from service by the impugned order dated 17.5.99 of the Government of Assam, Education Department. It has also been stated in the said affidavit-in-opposition that the petitioner was involved in flouting the Rules laid down for recruitment in making illegal appointments of four L.P. School teachers during his incumbency as Deputy Inspector of Schools, Barpeta, in the year 1995-96 and it is for this reason that action was taken by resorting to the provisions of FR 56 (b) as recommended by the Screening Committee.

(3.) At the hearing of this writ petition, Mr. A.K. Phookan, learned counsel for the petitioner, relied on the averments made in affidavit-in-reply filed by the petitioner in this court on 28.9.99 and submitted that it was not factually correct that the petitioner had made four appointments during his incumbency as Deputy Inspector of Schools, Barpeta. The petitioner had only passed an order regularising the service of a Second founder teacher, namely Smti Radhika Das of 1859 No. Jyotinagar LP School pursuant to instructions of the Government in the letter dated 6.3.95 and the instruction of the Director of Elementary Education, Assam, dated 15.3.95. A copy of the said regularisation order of Smt Radhika Das issued by the petitioner has been annexed to the affidavit-in-reply as Annexure- D. He explained that in respect of the other three founder teachers, it is not the petitioner but his successor Shri D. Baishya, Deputy Inspector of Schools, Barpeta, who had issued the orders for regularisation. Copies of the said three orders of regularisation have been annexed to the said affidavit-in-reply as Annexures E, F and G. Mr. Phookan further submitted that since the regularisation order for the founder teacher had been issued by the petitioner in accordance with the instructions of the Government and Director of Elementary Education, Assam, the petitioner cannot be held responsible for the regularisation order. In this context, he referred to rule 3(iv) of the Assam Elementary Education (provincialisation) Rules, 1977, which, inter alia, provided that the Deputy Inspector of Schools will appoint the selected candidates in order of merit from the list approved by the Director of Elementary Education as and when required as per Government rules and Government instructions for the time being in force and submitted that when Government instructions are issued for making appointment of a candidate without the approval of the Director of Elementary Education, the Deputy Inspector of Schools will have to comply with such instructions and make the appointment without approval of the select list by the Director of Elementary Education. He referred to the instructions of the Government in the letter dated 8.6.97 to the effect that no approval of the Director of Elementary Education was necessary if the Sub-divisional Advisory Board which made the recommendation was headed by a minister. According to Mr. Phookan, therefore, this is a case where the impugned order of compulsory retirement had been passed without any application of mind. He also submitted that in S. Ramchandra Raju Vs. State of Orissa, AIR 1995 SC 111, the Supreme Court has held that the entire service records and more particularly the latest should from the foundation for the opinion as to whether or not a government servant should be compulsorily retired from service and that where (the Government took only solitary adverse report of one year against the employee to compulsorily retire him from service, the order of compulsory retirement was artbitrary and liable to be set aside. According to Mr. Phookan, therefore, a case of one [irregular appointment even if made out against the petitioner cannot constitute the basis for compulsory retirement in the public interest under FR 56 (b) and the impugned order of compulsory retirement was liable to be quashed.