JUDGEMENT AND ORDER : 1. Heard Mr. N. Borah, the learned counsel for the petitioner. The learned standing counsel for the Department of Secondary Education, Mr. N. Sarma appears for the respondent Nos.1—4. The respondent No.5 & 7 are represented by Mr. P. Nayak, the learned standing counsel for the Finance Department. The Headmaster of the Sonia Gandhi L.P. School (respondent No.6) is, however un-represented. 2. The petitioner was appointed on 31.3.2001 (Annexure-A), as a fixed pay teacher by the DI of Schools, North Lakhimpur, in the Sonia Gandhi L.P. School. She challenges the speaking order dated 7.1.2009 (Annexure-K), whereby following the Court’s direction dated 26.4.2006 (Annexure-H), in the WP(C) No.1816/2006, the Director of Elementary Education (DEE), Assam, has considered and rejected the salary claim. The DEE has concluded that the petitioner’s appointment (on 31.3.2001), was during the ban period and no clearance of the State Level Empowered Committee (SLEC) was obtained, for the appointment. Moreover, the list prepared by the Sub-Divisional Level Advisory Board, North Lakhimpur, was not approved by the DEE. Thus, her appointment was declared to be illegal and on that basis, direction was issued to discontinue the service of the illegal appointee. The consequential order was then issued on 5.2.2009 (Annexure-L), whereby the DI of Schools, North Lakhimpur has directed the petitioner to not to attend the school and the school Head Teacher was also instructed, to stop the teacher for discharging her service. 3.1. Assailing the legality of the two impugned orders, the learned counsel Mr. N. Borah submits that the petitioner’s name appeared at Sl. No.64 of the select list dated 5.3.2001 and therefore, legal justification for appointment of the selected candidate, is claimed by the petitioner’s lawyer. 3.2. On the absence of clearance of the SLEC for the appointment, made during the ban period, the learned counsel reads the judgment dated 10.3.2015, in the WP(C) No.3408/2012 (Hem Chandra Borah & 32 others vs. State of Assam & others), to argue that these are procedural defects and are curable and accordingly it is submitted that ex-post facto approval to the appointment by the SLEC [Now Staff Inspection Unit (SIU)] can be considered for the petitioner, as was done for the 33 litigants, in the WP(C) No.3408/2012. 3.3. Since as many as 33 supernumerary posts were created for the 33 petitioners, of the WP(C) No.3408/2012, the learned counsel Mr. 3.3. Since as many as 33 supernumerary posts were created for the 33 petitioners, of the WP(C) No.3408/2012, the learned counsel Mr. N. Borah submits that the petitioner should also be similarly adjusted in a supernumerary post, in order to ensure parity of relief, for the similarly situated incumbents. 3.4. As regards the general direction issued on 30.5.2001, for cancellation of appointment of those inducted during the ban period without following the due process, the counsel refers to the order dated 27.11.2003, in the WP(C) No.4837/2001, where the petitioner was the second amongst the seven petitioners. He projects that this Court while considering the termination order dated 30.5.2001, had observed that the discharge should be only after affording opportunity, to the affected teacher and here the counsel argues the speaking order is passed without affording any hearing. 4.1. On the other hand, Mr. N. Sarma, the learned standing counsel for the Department of Secondary Education submits that the petitioner was never legally appointed in accordance with Rule 3(i)(a) & (b) of the Assam Elementary Education (Provincialisation) Rules, 1977 (hereinafter referred to as ‘the Elementary Education Rules’), in as much as, the so called select list dated 5.3.2001, was never authenticated or published by the DEE, as is mandated by Sub-Rule (b) of Rule 3(i) of the Elementary Education Rules. 4.2. The departmental lawyer refers to the ongoing screening process undertaken by the Education Department to identify the huge number of illegal appointment of teachers in the State and contend that preliminary findings show that, only 136 teachers were lawfully appointed amongst around 12000 illegal appointments made during 1991-2001. Accordingly, it is argued that the relief cannot be allowed to any such appointee, until his/her appointment status is established to be bonafide, by the screening process. 4.3. The respondents further contend that the Expert Committee which met on 26.9.2008, in pursuant to the Court’s direction in the WP(C) No.1816/2006, had verified that the petitioner was illegally appointed during the ban period, without the necessary clearance of the SLEC and the list in which her name appeared, was never approved by the DEE. It is therefore argued that the petitioner is disentitled to claim legitimacy, for her appointment. 5. It is therefore argued that the petitioner is disentitled to claim legitimacy, for her appointment. 5. The case of the petitioner is that in pursuant to the advertisement issued on 28.12.1996, by the DEE, Assam, she applied for the post of LP school teachers and her name was enlisted at Sl. No.64, in the list dated 5.3.2001, prepared for the North Lakhimpur Sub-Division. Therefore, the appointment letter issued on 31.3.2001, is contended to be through due process. As the appointed teacher was deputed to undergo the Junior Basic Training Course at DIET, Biswanath Chariali on 19.4.2004 and she was declared to have successfully completed the Training on 8.12.2004, the legitimacy to the appointment and continuation of service is claimed, by the LP school teacher. 6. The recruitment of teachers in L.P. Schools is governed by the Elementary Education Rules. The Rule 3 thereof (prior to the substitutions made on 10.11.2015 and 20.10.2012), being relevant and applicable for the petitioner’s appointment, is extracted here-in-below for ready reference:- “3.(i)(a) Method of recruitment:-In the month of January every year the Member-Secretary of the Selection Board shall invite applications in prescribed form, with application fee through advertisement in newspapers from desirous candidates registered with Employment Exchange prescribing minimum qualifications, number of posts Scheduled Tribes, other Backward Classes etc. for vacancies of Elementary School Teachers, Assam Legislative Assembly constituency-wise existing in the year in the Sub-Division. The amount of application fee shall be Rs.25/-. The State Government may revise the amount of application fee from time to time. (b) The Selection Board, on receipt of applications, shall scrutinize and process the application forms, the mark sheet and other necessary testimonials of the candidates for interview by the Interview Committee. The amount of application fee shall be Rs.25/-. The State Government may revise the amount of application fee from time to time. (b) The Selection Board, on receipt of applications, shall scrutinize and process the application forms, the mark sheet and other necessary testimonials of the candidates for interview by the Interview Committee. The Selection Board, on completion of interviews by the different Interview Committees, shall add marks secured by different candidates in the interview, the marks secured due to qualifications of the candidates over and above the minimum qualification and the marks secured due to experience as a teacher, in the manner provided in Schedule-I and prepare a list constituency-wise for each Assam Legislative Assembly Constituency in descending order of the total marks secured by a candidates out of the total marks mentioned in Schedule-I. Therefore, having provided for reservation the Selection Board shall finalize the select list constituency-wise for each Assam Legislative Assembly Constituency of only as many successful candidates as are the advertised vacancies with Roll Numbers and names of the candidates in order of merit and submit the lists to the Director of Elementary Education, Assam. If there is no vacancy of teacher in the School falling in a Legislative Assembly Constituency no select list shall be prepared. The Director shall authenticate and get the select list so prepared published by affixing copy thereof in the Office Notice Board of the Director, Elementary Education, Assam. Inspector of Schools, District Elementary Education Officer, Block Elementary Education Officer and Deputy Inspector of Schools and in any other manner as the Government may deed fit as and when they are received from different Sub-Divisions. The select lists containing the results shall be public documents and shall be made available to a bona fide member of the public on application with such requisite fees as may be determined by the Government from time to time. The Deputy Inspector of Schools or the District Elementary Education Officer as the case may be, shall appoint the selected candidates in order of merits only from this authenticated select lists. Any appointment given to persons outside the select lists shall be ab-initio invalid except the appointment given on compassionate ground by the Government as per rules of the Government in this regard. The validity of the lists shall not extent beyond one year from the date of its publication.” 7. Any appointment given to persons outside the select lists shall be ab-initio invalid except the appointment given on compassionate ground by the Government as per rules of the Government in this regard. The validity of the lists shall not extent beyond one year from the date of its publication.” 7. As can be seen from the above Rules, constituency wise selection is envisaged and the prepared list should then be submitted to the DEE. Most importantly, when there is no vacancy in the schools of a particular Legislative Assembly Constituency, the select list need not be approved or published for that Constituency. The Director must authenticate the prepared list and what is of extreme significance is that, appointment can only be made, from the authenticated select list. 8. Let me now examine the legality of the DEE’s decision challenged in this case. The impugned speaking order dated 7.1.2009 (Annexure-K), refers to double appointments against one post. On this controversy, the DI of Schools, North Lakhimpur on 8.9.2009, had furnished a report which reflects that when the incumbency list was prepared by the DEEO, Lakhimpur for the year 2003—04, the petitioner’s name was dropped in order to accommodate another person and that is how, two incumbents were posted against one vacant post. This report reflects that the double appointment was not at the stage when the petitioner was initially inducted on 31.3.2001 but it is relatable to the phase when the appointee was deputed to undergo the Junior Basic Training Course at Biswanath Chariali, on 19.4.2004. Therefore, I am of the considered opinion that the double appointment cannot by itself be an acceptable justification to hold that the petitioner was illegally appointed. 9. The next issue which the Court needs to address is whether the list prepared on 5.3.2001, by the North Lakhimpur Sub-Divisional Committee, was ever authenticated or published, in accordance with the Rule 3(i)(b) of the Elementary Education Rules. In none of the Court proceedings, relating to the appointments in LP schools of North Lakhimpur Sub-Division, the legitimacy of the list prepared by the Sub-Divisional Level Committee, was ever examined by the Court. In fact, it is not even the case of the petitioner that the list in which her name appeared at Sl. No.64, was ever authenticated by the DEE or published, as per the requirement of Elementary Education Rules. In fact, it is not even the case of the petitioner that the list in which her name appeared at Sl. No.64, was ever authenticated by the DEE or published, as per the requirement of Elementary Education Rules. Therefore, the claim of bonafide appointment from such un-authenticated and un-published select list, will have to be considered and decided, in this case. 10. In the Court’s judgment in the WP(C) No.3408/2012 (Hem Chandra Borah & 32 others vs. State of Assam & others), the learned Judge observed that when appointments are made during the enforcement of the model code of conduct and there was absence of SLEC clearance, such defects are curable and ex-post facto approval for the appointment can also be granted by the Staff Inspection Unit (SIU), of the Finance Department. On that basis, the case of the 33 litigants in the WP(C) No.3408/2012 was directed to be placed before the Finance (SIU) Department for the ex-post facto approval. On the basis of the Court’s verdict, the Assam Government created 33 supernumerary posts w.e.f. 1.9.2004 and the concerned litigants in the WP(C) No.3408/2012, were then regularized in those supernumerary posts, under the common order dated 31.12.2016, issued by the DEE, Assam. 11. The creation of supernumerary posts, w.e.f. 1.9.2004, for the concerned litigants suggest that vacancies were not available when appointments were given in the North Lakhimpur Sub-Division on the basis of the so called select list dated 5.3.2001. Moreover, the ongoing screening process undertaken by the Education Department, was also under Court’s rader and the learned Judge himself clarified that opinion is not expressed, on the merit of the State’s screening process. 12. In my perception, the verdict in the WP(C) No.3408/2012 (Hem Chandra Borah & 32 others vs. State of Assam & others), does not confer absolute legitimacy to the appointments made from the list prepared on 5.3.2001, by the North Lakhimpur Sub-Divisional Level Committee. In fact, the Court had no occasion to determine whether the list prepared on 5.3.2001, was ever published or was authenticated by the DEE, as required by the Rules with due regard to the vacancies available for appointment. Therefore, the validity of the list under the Elementary Education Rules, will have to be decided by the authority. 13. In fact, the Court had no occasion to determine whether the list prepared on 5.3.2001, was ever published or was authenticated by the DEE, as required by the Rules with due regard to the vacancies available for appointment. Therefore, the validity of the list under the Elementary Education Rules, will have to be decided by the authority. 13. On the other hand, large number of litigants whose names figured in the list of 5.3.2001, were regularized on 13.12.2016 by creation of supernumerary posts for them w.e.f. 1.9.2004. Therefore, it would be inappropriate to say that the petitioner is not entitled to claim parity of relief, under the ratio of State of Karnataka vs. C. Lalitha reported in (2006) 2 SCC 747 . 14. The impugned speaking order dated 7.1.2009 (Annexure-K), passed by the DEE, Assam, was in pursuant to the direction issued by this Court in the petitioner’s case i.e. in the WP(C) No.1816/2006. The Director had definitely observed that the list prepared by the Sub-Divisional Level Advisory Board, North Lakhimpur was not approved by the DEE. But at the same time, appointments made from that list have been adjusted/regularized, by creation of supernumerary posts, on the basis of the verdict in the WP(C) No.3408/2012. It is also important to be aware that when it was announced that the appointments made during the ban period are illegal and void ab initio, in the general termination order dated 30.5.2001, this Court in the case filed by the petitioner i.e. WP(C) No.4837/2001, had observed that the termination can be enforced only after affording due opportunity, to the concerned incumbent. 15. Following the above and more particularly the fact that the speaking order dated 7.1.2009 (Annexure-K), was passed without affording any hearing to the petitioner, whose service was discontinued, I deem it appropriate to remit the matter back to the authorities for fresh consideration, in light of the observation made in this judgment. The fresh consideration is ordered to be made by the Commissioner & Secretary to the Department of Elementary Education and not by the DEE. During the process, hearing be afforded to the petitioner. The impugned speaking order dated 7.1.2009 (Annexure-K) and the consequential order of 5.2.2009 (Annexure-L), will abide by the Commissioner’s final decision, under this order. The ordered exercise should be carried out expeditiously and preferably within four months from today. It is ordered accordingly. 16. During the process, hearing be afforded to the petitioner. The impugned speaking order dated 7.1.2009 (Annexure-K) and the consequential order of 5.2.2009 (Annexure-L), will abide by the Commissioner’s final decision, under this order. The ordered exercise should be carried out expeditiously and preferably within four months from today. It is ordered accordingly. 16. With the above order, the case stands disposed of. No cost.