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TMI Blog2004 (1) TMI 674X X X X Extracts X X X X X X X X Extracts X X X X ..... id School. It appears that the primary education in the State of Assam used to be governed by three Acts, known as 'Assam Basic Education Act, 1954', Assam, Elementary Education Act, 1962' and 'Assam Elementary Education Act, 1968'. In terms of the 1968 Act, the Regional Boards of Elementary Education were constituted which took over the management of elementary schools and pre-primary schools. There also existed a State Board of Elementary Education constituted under Section 4 of Assam Elementary Education Act, 1968. The State thereafter enacted the Assam Elementary Education (Provincialisation) Act, 1974 (Assam Act No. VI of 1975) to provide for provincialisation of the elementary education in the State of Assam, in terms whereof the services of employees of the different categories of the State Board and Regional Boards for Elementary Education were to be provincialised for the purpose of bringing them under the direct management and control of the State Government. Pursuant to or in furtherance of the said Act, all assets and liabilities of the State Board and all Regional Boards vested in the State Government. In terms of Section 3 of the 1974 Act, the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vacancies shall be excluded. (b) They shall be entitled to such scales of pay and allowances and other benefits as may be admissible to the teachers of corresponding rank of the Government School services with effect from the date of provincialisation. (c) They shall be superannuated on attaining 58 years of age." The said school was not being maintained by any authority constituted under any of the aforementioned statutes. A notification, however, was issued on or about 19.11.1991 whereby and whereunder the said school was provincialised. Indisputably, the names of the appellant herein and a large number of teachers were dropped from the list of approved teachers and their services had not been provincialised under the provisions of the 1974 Act. All Assam Middle English School Association of which the appellant is said to be a member filed a writ petition before the Assam High Court for regularization of services of the dropped teachers, which was marked as Writ Petition No.2833 of 1997. The said writ petition was dismissed where- against an appeal before the Division Bench was filed being Writ Appeal No.474 of 1997. The Division Bench while reversing the judgment of the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n was filed wherein in his affidavit the District Elementary Education Officer alleged that in compliance with the order of the court dated 13.11.1998, the services of 105 dropped teachers were regularized w.e.f. 24.4.1998 by an order dated 30.10.2000, and therein the name of the appellant found place at Sl. No.28. It, however, appears that the appellant herein stopped attending the said school whereafter the Head Master of the said School by letters dated 2.5.2000, 12.6.2000 and 21.8.2000 asked the appellant to come to the school with sufficient cause for his absence failing which action would be taken against him. The appellant neither joined the School nor replied to the said notices. The Managing Committee of the said School adopted a resolution to the following effect : "Since Md. Sultan Sadique, Assistant Teacher has unauthorisedly been absent from his duty without any notice/intimation and it has been informed him on 2.5.2000, 12.6.2000 and 21.8.2000 by serving written notices. But no reply has been received from him in this regard. The matter has thoroughly been discussed in today's and unanimously decides that in the interest of the school, Md. Sultan Sadik, Assistan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Legislative Assembly of the 191(1)(A) of the Indian Constitution and Section 100(1)(a) and Section 100(1((d)(iv) of the Act ?" HIGH COURT JUDGMENT : The High Court in its impugned judgment held that : (i) an Assistant Teacher in the school whose services had been provincialised by the Government of Assam would be holder of an office of profit under the State of Assam, in view of the order of the High Court in Writ Appeal No.474 of 1997 whereby and whereunder the State was directed to consider cases of 1123 dropped teachers for regularization/provincialisation; (ii) As pursuant to or in furtherance thereof the services of several teachers including that of the appellant were regularized in terms of order dated 8.1.1999 (Ext.9) as also the order dated 30.10.2000 (Ext.14) wherein the name of the appellant found place at Sl. No.28, he would be deemed to have become an Assistant Teacher with retrospective effect from 24.4.1998. Keeping in view the fact that the appellant was in Government service on 25.8.2000, the Managing Committee of the said school had no authority to terminate his services without approval of the appropriate authority of the Government thereabout; (iii) Altho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finality. The learned counsel would submit that in terms of Rule 8 of 1981 Rules, a register is required to be opened at the beginning of service by the DI of School and as no service records had been opened the appellant cannot be said to be holder of an office of profit under the State. Relying on or on the basis of a decision in R.P. Moidutty vs. P.T. Kunju Mohammad and Another [(2000) 1 SCC 481], the learned counsel would argue that the first respondent herein has failed to discharge his heavy onus. Mr. Mohta would also contend that the High Court committed an error in setting aside the election on mere surmises and conjectures. Mr. U.N. Bachawat, learned Senior Counsel appearing on behalf of the respondents, on the other hand, would submit that the expression 'regularization' connotes that the services of a person who has irregularly been appointed would be made regular and, thus, such an order can be given to have a retrospective effect. Strong reliance, in this regard has been placed on State of Mysore and Another vs. S.V. Narayanappa [AIR 1967 SC 1071] and B.N. Nagarajan and Others etc. vs. State of Karnataka and Others etc. [AIR 1979 SC 1676]. The learned counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erms and conditions of his job are not known. It is admitted from the records that he fought election in the year 1998 and during the relevant period he discontinued going to the School but thereafter again he started going to the School. It is also not disputed he had not been going to the School for a long time, as a result whereof the said letters 2.5.2000, 12.6.2000 and 21.8.2000 came to be issued . The authenticity of the letter of the Head Master dated 30.8.2000 is not in dispute. The question in the aforementioned situation would be as regard the effect thereof vis-`-vis his purported regularization in terms of letter dated 30.10.2000 w.e.f. 24.4.1998. LEGAL IMPLICATIONS: The statutory provisions, as referred to hereinbefore, ex facie demonstrate that the 1974 Act was enacted for the purpose of the provincialisation of services of employees of different categories of the State Board and Regional Boards for Elementary Education and bringing them under direct management and control of the State Government. The pleadings of the parties before the High Court do not reveal that the School in question was maintained by the Regional Board. Had it been so, the question of the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o authenticate list of working teachers before regularization of services of such teachers. Despite that the name of the appellant appeared at Sl. No.56 thereof, such a direction was not final. The letter of the District Elementary Education Officer dated 16.12.1999, although discloses that he had finalized the list of 97 names, no order pursuant thereto had been issued. Even the order dated 30.10.2000 says that such purported provincialisation/regularization was provisional in nature. Such regularization was further subject to the outcome of order dated 25.9.2000 in Writ Appeal No.474 under C.R. No.2833 of 1997 in Contempt Case (C) No. 420 of 2000 of the High Court of Gauhati. From the list of dropped teachers purported to have been regularized from 24.4.1998, it appears that there existed a factual dispute as to whether the appellant superseded one Mst. Naseema Begum who had joined the said School on 1.4.1984 or not. The appellant contended that he even did not receive the said purported order of regularization. The High Court having regard to the provisions contained in Section 114 of the Evidence Act, was of the opinion that a presumption that he had received the said order cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vides that local service prior to regularization would be counted for the purposes of leave, pension and increments though not for seniority as seniority was to be fixed from the length of service calculated from the date of regularization. It is manifest that unless the local service was continuous such service could not be taken into account for the purposes, in particular of pension and increments. How would increments, for example, be granted unless the service prior to such increments was continuous? The same consideration would also apply in the case of pension. It had, therefore, to be provided as has been done in sub-cl. (iv) that a break in service would not be condoned for a period howsoever short. Continuity of service is thus a condition for both sub-cls. 2 and 3..." Yet again in B.N. Nagarajan (supra), this Court repelled the argument that regularization gives a colour of permanence and the appellants therein must be deemed to have acquired substantive rights stating : "...The argument however is unacceptable to us for two reasons. Firstly the words "regular" or "regularization" do not connote permanence. They are terms calculated to condone any procedural irregular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tutory authorities that such a relationship had come into being. The decision of this Court in Khemi Ram (supra) relied upon by Mr. Bachawat is not apposite as therein an order of suspension was in question. This Court in the said decision itself referred to its decision in State of Punjab vs. Amar Singh Harika [(AIR 1966 SC 1313], which stated that communication of an order dismissing an employee from service is imperative. If communication of an order for terminating the jural relationship is imperative, a fortiori it would also be imperative at the threshold. The High Court proceeded to render its opinion on a wrong premise. It was not a case where the High Court having regard to the provisions contained in Article 191 of the Constitution of India vis-`-vis- Section 100 of the Representation of the People Act was required to determine a question as to whether the appellant being holder of an office of profit of the Government of the Assam was wrongfully dismissed from his services. Only holding of an office of profit under the Government of India or the Government of any State would render a candidate disqualified from contesting an election. Only in that event, the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of precedent has the consequence of enabling the benefit of it to accrue to all other persons whose legal rights have been interfered with in reliance on the law which the statutory instrument purported to declare. In effect, therefore, the court's judgment of nullity operates ergaomnes, i.e. for and against everyone concerned. Patent and latent invalidity In a well-known passage Lord Radcliffe said : An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders. This must be equally true even where the 'brand of invalidity' is plainly visible : for there also the order can effectively be resisted in law only by obtaining the decision of the court. The necessity of recourse to the court has been pointed out repeatedly in the House of Lords and Privy Council, without distinction between patent and latent defects. Lord Diplock spoke still more clearly, saying that it leads to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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