1. The petitioner is aggrieved by Annexure-11 order dated 03.03.2009 by which the service of the petitioner as Assistant Teacher in Pachim Chpra L.P. School has been terminated on the ground of non-fulfilling the conditions of appointment such as issuance of advertisement; approval of the State Level Empowered Committee; non-availability of records of holding interview and preparation of the score sheets; non-availability of list of the candidates and finally non-approval of the then BAC authority for appointment. The impugned order was preceded by the show cause notice dated 19.07.2008 issued by the Director of Education, BTC, Kokrajhar. In the notice, it was alleged as follows: (a) Your appointment was not preceded by the procedure of advertisement imposed by the Govt. of Assam. (b) Your appointment was made during the period of ban on appointment imposed by the Govt. of Assam. (c) The approval and clearance of the State Level Empowered Committee which was prerequisite for appointment was not obtained prior to issuing your appointment letter and even thereafter. (d) Your appointment was never approved by the erstwhile BAC the competent authority. (e) You have been appointed against a nonsanctioned and non-existent post. (f) No salary bill was prepared or drawn in our name from the date of your appointment.” 2. The petitioner had responded to the said show cause notice by submitting his written reply on 31.07.2008 (Anexure-8). In the reply he mentioned about the advertisement for filling up of the posts of the Assistant Teacher in L.P./M.E./M.V. Schools and offering of his candidature alongwith the treasury challan bearing No. 40 dated 02.01.1997, and also appearing in the selection with Roll No. 1585. He also contended that the selection was conducted for Non-BTC area by the Directorate of Elementary Education, Assam and consequent upon his selection, he was appointed by Annexure-2 order dated 24.12.1998 issued by the D.I. of Schools, Nalbari. It was also contended that although he was initially appointed as Stipendiary Teacher at monthly stipend of Rs. 900/-, but subsequently he having cleared the requisite training, he was provided with salary in the time scale of pay. In the show cause reply, the petitioner had also questioned the jurisdiction of the BTC in issuing the show cause notice as according to the petitioner, he was appointed by the Directorate of Elementary Education in Non- BTC area. 3. 900/-, but subsequently he having cleared the requisite training, he was provided with salary in the time scale of pay. In the show cause reply, the petitioner had also questioned the jurisdiction of the BTC in issuing the show cause notice as according to the petitioner, he was appointed by the Directorate of Elementary Education in Non- BTC area. 3. Alongwith the show cause reply the petitioner also submitted a number of documents such as appointment order; joining report; certificate dated 13.07.2007 issued by the Treasury Officer, Tihu showing drawal of salary; yearly statements of GPF Account bearing No. PED/269771; Teachers Training pass certificate dated 05.03.2004 etc. He also submitted other relevant documents such as documents pertaining to interview; Treasury Challan; transfer order; certificate issued by the Headmaster etc. 4. After the service of the petitioner was terminated by Annexure- 11 dated 03.03.2009 on the ground aforementioned, the petitioner submitted an appeal to the Secretary to the Govt. of Assam in the Education (Elementary) Department seeking interference in the matter. Alongwith the said appeal, the petitioner also submitted all the relevant documents mentioned in the show cause notice. However, there being no response from the Secretary, Elementary Education, the petitioner had no option than to approach this court by means of this writ petition. 5. The respondents have filed their counter affidavit. In the affidavit filed by the Director of Education, BTC (respondent No. 4), it has been contended that the advertisement annexed to the writ petition was not meant for the BAC area. It has been stated in the affidavit that the very appointment of the petitioner in the school called Ranakuchi L.P. School is illegal inasmuch as the said school being within the territorial jurisdiction of the then BAC area, the Director of Elementary Education, Assam could not have appointed the petitioner without consulting the authorities in the BAC. A copy of the Gazette notification dated 09.04.1999 has been annexed to the affidavit to show that Ranakuchi L.P. School is within the territorial jurisdiction of the BAC. The basic thrust of the affidavit is that the petitioner having been appointed in a school included in the BAC area, same aught to have had the approval of the BAC and that the petitioner could not have been appointed by the Govt. of Assam without carrying out the required consultation with the authority of the BAC. 6. The Govt. The basic thrust of the affidavit is that the petitioner having been appointed in a school included in the BAC area, same aught to have had the approval of the BAC and that the petitioner could not have been appointed by the Govt. of Assam without carrying out the required consultation with the authority of the BAC. 6. The Govt. of Assam in the Education Department has filed three affidavits out of which two by Shri Dhandeb Mahanta, the earlier Director of Elementary Education and another by Shri Girish Ch. Sarma, D.I. of Schools, Nalbari. In the first affidavit filed by the Director of Elementary Education, Assam, it has been contended that the school in which the petitioner was first appointed falls within the jurisdiction of the BTC area. Without taking any definite stand in the affidavit, the burden has been shifted to the petitioner to prove that he was legally appointed. Likewise, in the second affidavit also, the Director has shifted the burden to the petitioner to prove that he was appointed following due procedure. However, both the affidavits do not disclose any material particulars as to why the appointment of the petitioner is not sustainable in law. 7. In the affidavit filed by the D.I. of Schools, Nalbari also, only the facts stated in the writ petition have been reiterated. Narrating the service particulars of the petitioner, it has been stated that he having not disclosed the material particulars regarding selection and appointment, his service has been terminated by the authority of the BTC. 8. The petitioner has filed affidavits in reply to the aforesaid affidavits in which it has been categorically stated that at the time when the selection was made and the petitioner was appointed as Assistant Teacher of Ranakuch L.P. School, the same was within the BTC area. Referring to the Gazette notification annexed to the affidavit filed by the Director of Elementary Education, BTC which is dated 09.04.1999, the petitioner has stated that the selection having been conducted in 1997 and he having been appointed on 24.12.1998, the Gazette notification being later point of time, it cannot be argued that the school in question was within the BTC area. The petitioner has also referred to RTI application submitted to the D.I. of School seeking required information regarding his selection and appointment and the reply furnished by the said authority on 22.01.2010. The petitioner has also referred to RTI application submitted to the D.I. of School seeking required information regarding his selection and appointment and the reply furnished by the said authority on 22.01.2010. On perusal of the said reply, it appears that the required information could not be furnished. Alongwith the reply affidavit, the petitioner has enclosed a copy of the Treasury Challan receipt clearly indicating that he had applied for the post of L.P. School teacher under the Directorate of Elementary Education, Assam. He has also enclosed the documents showing endorsement of receipt of his application and assignment of roll number etc. 9. Mr. B.D. Das, learned senior counsel assisted by Mr. H.K. Sarma, learned counsel for the petitioner submits that the petitioner having been appointed following the due procedure, his service could not have been terminated in the manner and method in which the same has been done. According to him, there is gross violation of the principles of natural justice. As regards the decision of this Court reported in (2010) 5 GLR 513 (Jagannath Kr. Dey vs. State of Assam and ors.) on which the respondents have placed reliance, he submits that the facts involved in the said case are totally different and consequently, the said judgment cannot be applied to the case of the petitioner. As in the instant case, in the said case also the service of the Elementary School teachers had been terminated upon issuance of the show cause notice. Such termination of service was upheld when there was failure on the part of the appointees to produce any relevant documents such as advertisement, documents relating to selection etc. In that case, the advertisement was allegedly hanged in the notice Board by the office and the petitioners had applied in response to the said employment notice. However, no material particulars such as when they were invited for the selection and who had conducted the selection etc. could be disclosed. 10. Mr. K. Das, learned SC, BTC fairly submits that when the selection was conducted, the school in question in which the petitioner was appointed was not within the territorial jurisdiction of the BAC. However, no material particulars such as when they were invited for the selection and who had conducted the selection etc. could be disclosed. 10. Mr. K. Das, learned SC, BTC fairly submits that when the selection was conducted, the school in question in which the petitioner was appointed was not within the territorial jurisdiction of the BAC. However, referring to Annexure-4 order dated 06.06.2000 by which the petitioner was transferred to Pachim Chapara L.P. School which falls within the BAC area, he submits that the petitioner could not have transferred to the said school without the approval of the BAC. The order was issued by the Block Elementary Education Officer, Tihu, Barama, transferring the petitioner from No. 1130 Khana L.P. School to Pachim Chapara L.P. School (BAC). Referring to the Gazette notification filed by the BTC, he submits that the said Gazette notification dated 09.04.1999, notifying the BAC area, Ranakuchi village was included in BAC area. According to him, the same was preceded by another order dated 15.02.1999 by which also village Ranakuchi was included in the BAC. However, he fairly submits that when the selection was conducted in 1997 and the petitioner was appointed in 1998, Ranakuchi village was not in the BAC area. 11. Mr. M.R. Pathak, learned Standing counsel appearing alongwith Ms. R. Chokraborty, learned SC, Education Department, submits that there were wide anomalies/irregularities in conducting the selection which would require detailed enquiry. As regards the stand in the said two affidavits filed by the Director of Elementary Education, Assam that Ranakuchi village is within the BAC area, he submits that the said stand is on the basis of the aforesaid Gazette notification. However, as regards the selection of the petitioner as highlighted in the report he could not contradict the same. 12. During the course of hearing of the writ petition, Mr. B.D. Das, learned counsel for the petitioner has produced the certificates dated 26.04.2010, 11.05.2010 and 17.04.2010 issued by the Circle Officer, Tihu ; Gaonburha of the village Ranakuchi and the Block Elementary Education Officer, Tihu. As per the said certificates, Ranakuchi village is still within Non-BTAD area. The question for determination is as to whether the petitioner was validly appointed and if so, by which authority. As per the said certificates, Ranakuchi village is still within Non-BTAD area. The question for determination is as to whether the petitioner was validly appointed and if so, by which authority. In support of the claim of the petitioner that he was validly appointed, he has annexed a copy of the employment notice notifying various posts of Assistant Teacher for L.P./M.E./M.V. schools. The last date of submission of application was 20.01.1997. The petitioner has also enclosed a copy of the Treasury Challan which was submitted alongwith the application. The said Treasury Challan is dated 02.01.1997 and the same clearly indicates that it was in connection with the application for the post of L.P. School teacher. The petitioner has also enclosed the documents endorsing the receipt of the application, registering the petitioner under serial No. 1585 etc. Most significantly the assertion made by the petitioner that the teachers appointed alongwith him as indicated in Annexure- 3, are still continuing in their services and their services have not been disturbed in any manner, has not been controverted by the respondents. According to the petitioner, the teachers named in Annexure-3 documents were appointed alongwith the petitioner pursuant to the said advertisement and the selection in which all of them had appeared. This specific assertion made by the petitioner has not been denied by the respondents in their affidavits. 13. Although the petitioner was appointed in Ranakuchi L.P. School by Annexure-2 order dated 24.12.1998, but he could not join there as he was not allowed to join in the said school. Thereafter the order dated 06.01.1999 was issued by the respondent No. 3 and he was attached to 2 No. Nathkuchi L.P. School and joined the said school on 08.01.1999. Thereafter he was transferred to 1130 No. Khana L.P. School by order dated 03.02.1999. Again he was transferred to Pachim Chapara L.P. School, which is under BAC area, by order dated 06.06.2000. In terms of the order of appointment he was provided with monthly stipend of Rs. 900/-. The appointment order stipulated that he would be entitled to get the regular scale of pay only after completion of prescribed training. As per the said stipulation, the petitioner on clearing of the basic training started receiving his pay in the time scale of pay from April, 2004. He received salary upto November, 2008. 900/-. The appointment order stipulated that he would be entitled to get the regular scale of pay only after completion of prescribed training. As per the said stipulation, the petitioner on clearing of the basic training started receiving his pay in the time scale of pay from April, 2004. He received salary upto November, 2008. However, trouble started with the issuance of the show cause notice dated 19.07.2008 referred to above. It is submitted that the petitioner has also received salary up to the month of July, 2009. It is also submitted that although the impugned order was issued on 03.03.2009 terminating the service of the petitioner, but same was not served on the petitioner immediately and he continued to received salary upto July, 2009. It is only thereafter his salary was stopped on furnishing the copy of the order coupled with Annexure-10 communication dated 18.08.2009 by the Headmaster of the school asking him not to discharge his duties and functions in the school. 14. It appears that the case of the petitioner was mistakenly taken up alongwith those illegal appointees whose dismissal from service has been upheld by the Court in Jagannath Kr. Dey (supra). Although the respondents have placed reliance on the said judgment to resist the case of the petitioner, but on perusal of the said judgment, it appears that the facts involved in the said case are totally different than the facts involved in this case. 15. In the instant case the advertisement was issued in 1996 and the selection was held in 1997. But in case of the petitioners involved in the said judgment, there was no public advertisement. Only an employment notice was purportedly hanged in the notice Board. As against the advertisement of 1996 involved in the instant case, in the said case the purported advertisement was issued on 07.07.1999 and the interview was allegedly held from 18.08.1999 onwards. The petitioners involved in the said case were appointed much after the appointment of the present petitioner on different dates, such as 03.12.1999, 04.12.1999 and 06.12.1999. Admittedly all of them were appointed in the schools falling within the BAC area. Selection was also held for the said area unlike the present case in which the selection was for Non-BAC area. 16. By the show cause notice, the petitioner was directed to substantiate his claim that he was legally appointed. Admittedly all of them were appointed in the schools falling within the BAC area. Selection was also held for the said area unlike the present case in which the selection was for Non-BAC area. 16. By the show cause notice, the petitioner was directed to substantiate his claim that he was legally appointed. It was alleged that appointment was not preceded by any advertisement and selection. It was also alleged that he was appointed during the ban period of appointment. It was further alleged that approval of State Level Empowered Committee was not obtained. Further allegation made in the show cause notice was that the appointment of the petitioner was not approved by the BAC authority and he was appointed against non-sanctioned and non-existent post. It was again alleged that no salary bill had been prepared and drawn in favour of the petitioner. 17. The petitioner in his show cause reply clearly indicated that the appointment in question was for Non-BAC area and accordingly the selection was conducted by the Directorate of Elementary Education, Assam. Referring to the alleged ban period, it was contended that the ban was imposed w.e.f.06.12.1999, but the petitioner was appointed on 24.12.1998. As regards the allegation that his appointment was not approved by BAC authority, it was contended that no such approval was required as he was not appointed by BAC authority and for that matter in BAC area. So far as the allegations of appointment made against non-existent post is concerned, the petitioner made the position clear that he was appointed as Stipendiary Teacher against a converted sanctioned post created by notification dated 16.11.1991. 18. Merely because the petitioner was transferred after initial appointment to a school falling under BAC area, his appointment cannot be termed as the appointment within BAC area. Although Mr. Das, learned SC, BTC has argued that the authority could not have transferred the petitioner to a school falling under BTC area, but the same is not the issue in this writ petition. Even otherwise also the petitioner having been transferred to Pachim Chapara L.P. School which is under BAC area vide order dated 06.06.2000 issued by the Block Elementary Education Officer, Tihu and thereafter there being no objection to the same by the BTC authority over the years, it will have to be presumed that there was tacit approval on the part of the BAC. The fact of the matter is that the petitioner upon his transfer to the said school continued to discharge his duties and functions and he continued to receive his salary upto July, 2009. That apart, the Annexure-4 transfer order dated 06.06.2000 is not the foundation of the show cause notice and the termination of service of the petitioner by the impugned order. 19. For all the aforesaid reasons, the impugned order dated 03.03.2009 (Annexure-11) issued by the Director of Education, BTC, Kokrajhar stands set aside and quashed. The petitioner shall be deemed to be in service all through out with all consequential service benefits. However, in view of the facts and circumstances involved in the case, he may be paid 50% of the salary instead of full back wages. The petitioner shall be reinstated in service forthwith. 20. With the above directions, writ petition is allowed. There shall be no order as to costs. _____________