Non-communication of Termination Makes It Inoperative, But Does Not Regularise Irregular Teacher Appointments or Nullify Unchallenged Subsequent Policy Accommodation

1. Introduction

The Gauhati High Court (Division Bench) in THE STATE OF ASSAM AND 4 ORS. v. CHANDRESWAR SAIKIA AND ORS. (WA/35/2026, decided on 17-08-2026) considered a long-running dispute concerning lower primary school teachers appointed in 1989 in Dhemaji district. The State asserted that these appointments were irregular/illegal (including being against non-existent/non-sanctioned posts and made during a ban) and that the teachers were terminated in May 1992 after show-cause notices issued in March 1992. The teachers contended that although show-cause notices were received, the termination orders were never communicated; they continued to work and were paid intermittently (allegedly up to July 2007), until salary was stopped in August 2007.

The core issues before the Division Bench were:

  • Whether the 1992 termination was effective when the State could not prove communication/service of the termination orders.
  • Whether quashing such termination automatically entitled the teachers to be treated as regular Assistant Teachers with all retrospective benefits from 1989.
  • How later, unchallenged developments—a screening exercise, Cabinet decision (07.10.2020), and prospective “accommodation” orders (30.01.2021) as Tutors—should affect relief under Article 226.

2. Summary of the Judgment

  • The Court upheld the Single Judge’s finding that the termination order dated 18.05.1992 was ineffective because the State failed to establish its communication to each petitioner.
  • However, the Court set aside the Single Judge’s consequential direction that the petitioners must be treated as regular Assistant Teachers for all purposes with all attendant benefits.
  • The Court emphasised that setting aside an ineffective termination does not validate or regularise the initial appointment, especially where subsequent unchallenged screening/categorisation and Cabinet policy decisions led to prospective accommodation as Tutors.
  • Given the petitioners’ present status as Tutors, the Court directed that the competent authority should consider granting an appropriate scale of pay to the respondents as Tutors in accordance with law, including the determination in Mohor Ali Seikh & Others Vs. State of Assam and Others (2024) 5 GLT 689.

3. Analysis

3.1 Precedents Cited (and their influence)

A. Communication of termination order as a condition for operability

  • Union Of India v. Dinanath Shantaram Karekar & Ors (1998) 7 SCC 569
    Cited for the principle that an order affecting service rights must be communicated to be effective; mere issuance/retention on file does not operationalise it. The Division Bench treated this line of authority as reinforcing the “communication requirement”.
  • Municipal Corporation of Delhi v. Qimat Rai Gupta & Ors (2007) 7 SCC 309
    Relied upon for the same doctrinal core: service jurisprudence recognises that rights and liabilities cannot be altered by a non-communicated order.
  • National Textile Corporation (M.P) Limited Vs. MR Jadhav (2008) 7 SCC 29
    Again supports that the employer must show effective communication of a termination/penal order before it can take effect against the employee.
  • Dulu Devi v. State of Assam and others (2016) 1 SCC 622
    Treated as particularly relevant: the Division Bench expressly reiterated that “mere passing” of termination and keeping it on file does not end the relationship unless communicated. This precedent substantially underpinned the Court’s refusal to treat the 18.05.1992 termination as effective.

B. Long continuation does not cure illegality in public appointments

  • State of Bihar and others v. Devendra Sharma (2020)15 SCC 466
    Used to rebut the idea that decades of work can convert an illegal/irregular initial entry into a right to regular status and full statutory benefits. The Division Bench applied this to hold that invalid termination ≠ deemed regular appointment from inception.
  • R. Vishwanatha Pillai v. State of Kerala and others (2004) 2 SCC 105
    Cited to reinforce that statutory benefits of a regular public post are not claimable on the strength of a defective appointment. The Court used it as part of the caution against awarding “regular Assistant Teacher” status merely because termination was not proved communicated.

C. Tutor pay parity (as a consequential, status-sensitive issue)

  • Mohor Ali Seikh & Others Vs. State of Assam and Others (2024) 5 GLT 689
    Raised by the respondents to claim that Tutors (as government servants) are entitled to a scale of pay rather than fixed remuneration. The Division Bench did not itself grant the scale but directed the competent authority to consider extending an appropriate scale “in accordance with law” and “including” this coordinate bench determination.

3.2 Legal Reasoning

(i) The Court separated two legally distinct questions

  1. Effectiveness of the termination order (1992):
    The Court treated communication/service as a factual-legal prerequisite for the order to operate. Since the State could not produce original receipts or satisfactory proof of service on each petitioner, the termination could not be treated as having ended service.
  2. Entitlement to “regular Assistant Teacher” status and retrospective benefits:
    Even if termination was ineffective, the Court held it does not logically follow that the initial appointment becomes validated or that the petitioners acquire enforceable rights to all benefits attached to regular public posts from 1989.

(ii) Article 226 relief must account for unchallenged subsequent policy decisions

A decisive feature was the later screening exercise and Cabinet policy decision (07.10.2020) and the issuance of prospective accommodation orders (30.01.2021). The petitioners participated in screening, were categorised, and (save those who had already superannuated) accepted accommodation as Tutors on fixed pay against “personal posts”. Crucially, the petitioners never challenged the screening proceedings, categorisation, Cabinet decision, or the accommodation orders.

Against this backdrop, the Court held that a writ court cannot, while deciding the limited issue of effectiveness of a 1992 termination, grant a declaration that would effectively nullify or render nugatory subsequent unchallenged executive decisions and arrangements that “continue to hold the field”. Hence, while the termination could be set aside for want of communication, the relief could not extend to treating petitioners as regular Assistant Teachers for all purposes.

(iii) Acceptance of prospective accommodation constrained inconsistent retrospective claims

The judgment places substantial weight on the practical and legal significance of the petitioners having accepted the 2021 accommodation as Tutors and joined under those terms. The Court reasoned that they could not “simultaneously” rely on the subsequent arrangement and ask that it be treated as mere continuation of alleged Assistant Teacher service from 1989 for retrospective benefits—particularly when the later decisions remained unassailed.

(iv) Tailoring consequential relief: pay-scale consideration for Tutors

While denying “regular Assistant Teacher” status, the Court did not foreclose legitimate service-related claims consistent with the petitioners’ current status. It therefore directed consideration of an appropriate pay scale for Tutors “in accordance with law”, referencing Mohor Ali Seikh & Others Vs. State of Assam and Others (2024) 5 GLT 689. This reflects a remedial approach: status-based relief rather than status-transforming relief.

3.3 Impact

A. On service termination disputes

  • The judgment reaffirms, with appellate clarity, that non-communication of termination renders it inoperative. Public employers must maintain reliable records of service/communication, especially where termination is relied upon decades later.

B. On regularisation and retrospective benefits

  • The decision draws a firm boundary: quashing an inoperative termination does not equal regularisation or confer retrospective statutory benefits of a regular post.
  • It strengthens the proposition that courts must avoid “automatic” regular status as a mere corollary of procedural infirmity in termination, particularly where there are allegations of non-sanctioned posts, recruitment bans, or non-compliance with selection norms.

C. On interaction with subsequent executive policy and screening exercises

  • The ruling underscores a practical doctrine of judicial restraint: when employees have participated in and accepted outcomes of a later screening/policy accommodation, and those actions are unchallenged, a writ court should not grant relief that would effectively rewrite that later settlement through a backdoor retrospective declaration.

D. On Tutor remuneration litigation

  • By directing consideration of pay scale for Tutors with reference to Mohor Ali Seikh & Others Vs. State of Assam and Others (2024) 5 GLT 689, the judgment is likely to channel future disputes into the narrower, administratively manageable question of appropriate pay fixation for Tutors, rather than reopening older claims for “Assistant Teacher regularisation” where accommodation orders have been accepted.

4. Complex Concepts Simplified

  • “Communication of an order”: An order (like termination) affects an employee only when it is actually conveyed to them in a legally provable way. Keeping it in office files is not enough.
  • “Void ab initio” vs “irregular” appointment: “Void ab initio” means invalid from the start (as if it never legally existed); “irregular” can mean procedurally defective but potentially curable depending on law and facts. The Court did not finally decide which applied to each appointment; it held that this uncertainty prevents automatic granting of regular status.
  • “Regular Assistant Teacher” status: A legally recognised appointment to a sanctioned post through prescribed recruitment rules, carrying statutory pay scale, increments, pensionary benefits, etc.
  • “Screening committee/categorisation”: An administrative verification process to examine past appointments and classify teachers for policy-based outcomes. Here, it led to prospective “accommodation” as Tutors for those lacking required professional qualifications by a cut-off.
  • “Accommodation as Tutor” and “personal post”: A policy-based placement not equivalent to restoration/recognition of the earlier post. A “personal post” is created for a specific person under a policy decision, often without implying cadre seniority or retrospective regularisation.
  • “Prospective effect”: Effective from the date of the decision/order forward, not backward from the original appointment date.

5. Conclusion

The Division Bench crafted a nuanced rule of relief: it protected employees from the consequences of an uncommunicated termination while refusing to convert that procedural failure into a judicially created pathway to retrospective regularisation and full Assistant Teacher benefits. The judgment’s key significance lies in its insistence on remedial proportionality under Article 226—courts may invalidate an inoperative termination, yet must still respect (unless challenged) later screening outcomes and policy accommodations that define the employees’ present legal status. At the same time, the Court left open a meaningful avenue by directing consideration of appropriate pay scale for Tutors consistent with Mohor Ali Seikh & Others Vs. State of Assam and Others (2024) 5 GLT 689.