KANAN DEKA Vs. STATE OF ASSAM

JUDGEMENT

(1.) Heard Mr. S Nath, learned counsel for the petitioner. Also heard Mr. R Mazumdar, learned counsel for the respondent Nos.1 to 5, Ms. N Medhi, learned counsel for the respondent No.6 and Ms. G Mohilary, learned counsel for the respondent Nos.7 and 8.

(2.) Pursuant to advertisement of January 1997 and selection by the District Secondary Education Advisory Board constituted by the Bodoland Autonomous Council (BAC), the petitioner was appointed as an Assistant Teacher and posted at Bhakatpara Milan Lower Primary School vide order dated 4.12.1999 issued from the office of Deputy Inspector of Schools, Nalbari (under BAC area). The school in which the petitioner was appointed falls within the BTAD area. In the year 2000 and more particularly, vide order issued by the Deputy Inspector of School, Nalbari, the petitioner was allowed to draw regular scale of pay. Upon an allegation that the petitioner had been appointed as a teacher in a provincialised lower primary school after its provincialisation without valid post and having subsequently been adjusted against a vacancy, a show cause notice was issued under the hand of the Director of Elementary Education, Assam on 8.9.2006, to which the petitioner had submitted reply. A fresh show cause notice was once again issued against the petitioner by the Director of Elementary Education, Assam on 17.10.2006. The petitioner was made to explain that since there are no records to show that she had been selected as per rules for appointment, therefore, why the appointment granted to her should not be treated as illegal and as to why it should not be cancelled. The petitioner also duly replied to the said show cause notice vide reply dated 9.11.2006. On 26.12.2006, the impugned order came to be issued. By the said order issued under the hand of the Director of Elementary Education, Assam, it was held that the petitioner had no legal right to continue in service as a teacher and accordingly, the Head of the institution was directed not to allow the petitioner to work in the institution. Aggrieved, the petitioner has filed the instant proceeding.

(3.) At the very outset, the petitioner brings to the notice of this Court the judgment and order rendered in similar circumstances in a batch of writ petitions, where the leading case is WP(C) 579/2007. This Court vide judgment and order dated 5.6.2007 rendered in the said WP(C) 579/2007 had the occasion to deal with facts similar to instant case. Taking note of the appointments made by the BAC authority in the schools located within the BAC area, this Court in WP(C) 579/2007 held that the State Govt. was not competent to decide on the validity of the appointments. It was also held that the show cause notices issued alleging that initial appointments are contrary to rules and against non-existent post, is beyond the competence, power and jurisdiction of the State authorities. The same can only be determined by the present BTAD authority under the scheme contemplated by the provision under the 6th Schedule to the Constitution of India, as amended. In conclusion, this Court in the said WP(C) 579/2007 interfered with the impugned order of termination granting liberty to the State and the BTC authority to proceed, if so desired and so advised, in accordance with the observations made in the said judgment and order.