ANOWARA KHATUN vs THE STATE OF ASSAM & ORS.

Heard Mr. A. Adhikary, learned counsel for the petitioner. Also heard Mr. N. Sarma, learned standing counsel for the Elementary Education

Department.

The Swahid Jatin Kalita (venture) L.P. School was established in the year 1988 with one Smt. Radhika Chetri as its Headmistress. The

petitioner Anowara Khatun was appointed as Asstt. Teacher by the School Managing Committee on 01.01.1989. In the aforesaid premises, an

earlier writ petition was preferred by the petitioner being WP(C) No.3117/2011, wherein, an assertion was made that the Headmistress of the

school was trying oust the petitioner and on the other hand allowed one Akhil Biswas to join as an Asstt. Teacher in her place without following

any procedure of law. It was also the case of the petitioner that in the year 2003, when an inspection was made by the Deputy Secretary of the

School, Rangiya, it was found that the petitioner was discharging her duties.

In the aforesaid premises, the order dated 20.06.2011 was passed by this Court directing the respondent No.2 being the Director, Elementary

Education, Assam to dispose of the representation submitted by the petitioner. Pursuant thereto, the order dated 01.11.2011 was passed. Being

aggrieved by the said order dated 01.11.2011, the present writ petition has been preferred.

In the order dated 01.11.2011, a finding had been recorded that the petitioner had misappropriated certain amount from the school fund in

collaboration with her husband who was at that time the Secretary of the school. A further finding was that the petitioner was irregular in attending

the school. Accordingly, in the order dated 01.11.2011, it was recorded that the School Managing Committee had taken a resolution in its meeting

dated 04.02.1993 to discharge the petitioner from her service w.e.f. 08.02.1993. After discharging the petitioner, the School Managing

Committee had allowed one Akhil Biswas to be appointed in her place. Further on 01.01.2009, the said Akhil Biswas had died. Thereafter, the

School Managing Committee had appointed one Dinesh Paul as the Asstt. Teacher in place of Akhil Biswas on 28.09.2009. Accordingly, in the

order dated 01.11.2011, the Director had concluded that although the decision of the School Managing Committee in respect of appointment,

dismissal etc. is final, but the case of the petitioner was examined by the Director inasmuch as there is a direction from this Court. Accordingly, the

Director rejects the claim of the petitioner on the ground that he had not been attending the school from the date of her discharge.

Mr. A. Adhikary, learned counsel for the petitioner states that although an order of discharge had been taken on record by the Director in

arriving it is conclusion in the order dated 01.11.2011, but no such order of discharge had been served on the petitioner. As per law laid down by

the Hon''ble Supreme Court if an order is passed, but the same is kept on file without being served on the concerned person, the order is to be

considered as nonexistent in the eye of law. As the order of discharge had not been served on the petitioner, therefore, the same cannot be the

basis for the Director to arrive at its conclusion as made in the order dated 01.11.2011.

In such view of the matter, this writ petition stands disposed of by directing the Director, Elementary Education, Assam to revisit the order of

01.11.2011 by providing the petitioner with a copy of the order of discharge dated 04.02.1993. Thereafter, the Director shall allow the petitioner

to have her response against the order of discharge and after considering the response and after hearing the petitioner, pass an appropriate order

thereto. Subsequent order to be made by the Director shall supersede the earlier order of 01.11.2011.

Writ petition is accordingly disposed of. The aforesaid exercise shall be completed within a period of three months from the date of receipt of

certified copy of the order.