JUDGMENT : N. Unni Krishnan Nair, J. Heard Mr. S. Banik, learned counsel appearing on behalf of the appellant in both these writ appeals. Also heard Mr. R. Mazumdar, learned standing counsel, Secondary Education Department, appearing on behalf of the State Respondents; and Mr. F.U. Barbhuiya, learned counsel, appearing on behalf of respondent No. 1, in both these appeals. 2. The above-noted intra-Court appeals have been instituted by the appellant, herein, assailing the judgment & order, 16.06.2023, passed by the learned single Judge in WP(c)1651/2015 and WP(c)2428/2016, allowing the said writ petitions. 3. For the purpose of adjudication of the issues arising in the present appeals; the facts and the placement of the parties are so denoted from Writ Appeal No. 355/2023. 4. As projected in the writ appeal; the respondent No. 1, herein, was appointed as a Lower Division Assistant by the Managing Committee of Tarinipur High School on 28.02.1996 and she had joined her service on 01.03.1996. At the time of joining of the respondent No. 1, in the said school; there was another employee, namely, Jalal Uddin, who was appointed as a Lower Division Assistant, against the first post of Lower Division Assistant. However, said Jalal Uddin died-in-harness in the year 2008. Thereafter, the appellant, herein, came to be appointed by the Managing Committee of the said school as a Lower Division Assistant vide order, dated 04.02.2008. The order, dated 04.02.2008, also reflects that the appellant was engaged on honorary basis w.e.f. 01.01.2000. Upon the enactment of the Assam Venture Educational Institutions (Provincialization of Services) Act, 2011, the above-noted school being found to be eligible for provincialization of the services of its employees; the school authorities had forwarded the names of the employees working in the said school. In the initial list so submitted by the authorities of the said school; the name of the respondent No. 1, herein, was not so forwarded. However, subsequently, the name of the respondent No. 1, herein, was so forwarded by the authorities of the said school. On a consideration being so made in terms of the provisions of the Assam Venture Educational Institutions (Provincialization of Services) Act, 2011; the Director, Secondary Education Department, Assam, vide order, dated 20.08.2013, proceeded to provincialize the services of the appellant, herein, as Junior Assistant. 5. On a consideration being so made in terms of the provisions of the Assam Venture Educational Institutions (Provincialization of Services) Act, 2011; the Director, Secondary Education Department, Assam, vide order, dated 20.08.2013, proceeded to provincialize the services of the appellant, herein, as Junior Assistant. 5. Being aggrieved, the respondent No. 1, herein, instituted WP(c)1651/2015; assailing the provincialization so effected in the case of the appellant, herein. The appellant, herein, along with the Headmaster of the said school filed a joint affidavit-in-opposition in the said writ petition and therein; contended that the respondent No. 1, herein, was terminated from her service w.e.f. 31.10.1999, in terms of a resolution adopted by the Managing Committee of the said school, on account of her long absence. It was further projected in the said affidavit-in-opposition that the appellant, herein, was initially engaged on temporary and honorary basis against the post of Lower Division Assistant w.e.f. 01.01.2000 by the Managing Committee of the said school and thereafter, appointed as Lower Division Assistant(i), vide order, dated 04.02.2008. 6. The respondent No. 1/writ petitioner, thereafter, instituted WP(c)2428/2016, assailing her order of termination. 7. Both the above-noted writ petitions were heard analogously and the learned Single Judge vide judgment & order, dated 16.06.2023, proceeded to allow the said writ petitions by interfering with the provincialization as effected in the case of appellant, herein, as well as by interfering with the order of termination, dated 31.10.1999, as issued in respect of the respondent No. 1, herein. 8. Mr. Banik, learned counsel for the appellant, has submitted that the respondent No. 1, herein, having been terminated from her service vide a resolution so adopted by the Managing Committee of the said school w.e.f. 31.10.1999; the respondent No. 1 cannot be deemed to be an existing employee in the said school and accordingly, she would not be entitled to have her case so considered for provincialization of her service under the provisions of the Assam Venture Educational Institutions (Provincialization of Services) Act, 2011, which mandates a continuous nature of service till the date, the said Act was brought into force, for being so considered. 9. Mr. 9. Mr. Banik, learned counsel, has further submitted that the engagement of the appellant, herein, as a Junior Assistant in the said school being against the first post of Lower Division Assistant and she being in the service of the said school, w.e.f. 01.01.2000, and the respondent No. 1, not being in her service after 31.10.1999; the respondent authorities have not committed any error in provincializing the service of the appellant, herein, vide order, dated 20.08.2013. 10. Mr. Banik, learned counsel, has also submitted that the materials brought on record would go to demonstrate that the school authorities had issued various notices to the respondent No. 1, herein, requiring her to resume her service and on receiving no response from the respondent No. 1; the Managing Committee of the said school had adopted a resolution in its meeting held on 31.10.1999, terminating the service of the respondent No. 1, herein. It was further contended by Mr. Banik, learned counsel, that the termination as effected in respect of respondent No. 1, herein, was never put to challenge by her and the same has attained its finality. 11. Mr. Banik, learned counsel for the appellant, in the above premises; has contended that the order, dated 20.08.2013, issued by the Director, Secondary Education Department, provincializing the service of the appellant, herein, against the post of a Junior Assistant in the school, in question, ought to have been upheld and accordingly, he has submitted that the impugned judgment & order, dated 16.06.2023, requires an interference by this Court. 12. Per contra, Mr. Barbhuiya, learned counsel appearing for the respondent No. 1; has submitted that the termination order as effected in respect of the respondent No. 1, herein, was never served upon her at any point of time and has further contended that the same was so projected as an afterthought so as to justify the provincialization of the service of the appellant, herein, in the said school. 13. Mr. Barbhuiya, learned counsel, has also submitted that although the school authorities have contended that the service of the respondent No. 1, herein, was terminated w.e.f. 31.10.1999, it is seen that the school authorities in the year 2015; had forwarded the name of the respondent No. 1 to the respondent authorities for consideration of her case for provincialization of her service and therein, there was nothing mentioned with regard to the termination of her service. 14. 14. Mr. Barbhuiya, learned counsel, has submitted that the notices purportedly stated to have been issued to the respondent No. 1 by the school authorities prior to the adoption of the resolution towards terminating her service; were never served upon her and she had continued to serve in the said school as Junior Assistant all along. 15. Mr. Barbhuiya, learned counsel, has further submitted that the appellant, herein, was engaged in the said school only on 04.02.2008 and accordingly, even going by the dates of the engagement of respondent No. 1 and appellant, herein; it would be the respondent No. 1 who would be senior to the appellant, herein, against the post of Junior Assistant in the said school. 16. Mr. Barbhuiya, learned counsel, has submitted that the appellant, herein, being a matriculate at the time of her such engagement, did not possess the requisite qualification for being considered against the post of a Lower Division Assistant and accordingly, on the count of her educational qualification also; the services of the appellant, herein, was not mandated to be so provincialized. 17. We have heard the learned counsels appearing for the parties and also perused the materials available on record. 18. In the above-noted writ petitions; the issues which arose for consideration of the learned Single Judge were with regard to the validity of the termination of the service effected in respect of the respondent No. 1, herein, by the Managing Committee of the said school on 31.10.1999, and as to whether the provincialization as effected in respect of the appellant, herein, was proper and in terms of the provisions of the Assam Venture Educational Institutions (Provincialization of Services) Act, 2011. 19. The learned Single Judge with regard to the issue pertaining to the termination of the service of the respondent No. 1, herein; on examination of the materials coming on record, proceeded to draw the following conclusions : “27. The petitioner has challenged the order of termination of service which had passed in the year 1999. Such challenge had to be instituted after coming to know about the said order from an affidavit filed jointly by the School Authorities and the respondent no. 8 in the earlier writ petition i.e. WP(C) No. 1651/2015 which was qua the provincialisation of the services of the respondent no. 8 by depriving the petitioner. Such challenge had to be instituted after coming to know about the said order from an affidavit filed jointly by the School Authorities and the respondent no. 8 in the earlier writ petition i.e. WP(C) No. 1651/2015 which was qua the provincialisation of the services of the respondent no. 8 by depriving the petitioner. The petitioner has made a categorical statement in paragraph 14 of the writ petition wherein it has been stated that at no prior point of time, she was aware or was issued a copy of the termination order dated 31.10.1999 and it was only from the affidavit filed by the respondents in WP(C) No. 1651/2015 that she, for the first time came to know about such termination order. 28. For ready reference, the averments made in paragraph 14 of the WP(C) No. 2428/2016 is extracted herein below:- 14. That the petitioner begs to state that she was all along attending the school and was discharging the duties by putting signatures in the Attendance Register even after filing of the writ petition(c) No. 1651/2015. However, the Respondent Nos. 6/7 and 8 on receipt of notice in the above mentioned writ petition, the petitioner was debarred from entering into the school and she was not allowed to put her signature in the Attendance Register. The petitioner states that on receipt of the affidavit-in-opposition filed by Respondent Nos. 6/7 and 8 in the above mentioned case, the petitioner came to learn that she was terminated from service way back on 31.10.1999. The petitioner further states that she was never absent from duty and neither she received any notice from the School Managing Committee nor she received termination letter dated 31.10.2009, it has only come to her knowledge when she received the affidavit-in-opposition filed by respondent nos. 6/7 and 8 in the above mentioned writ petition. To substantiate the proof of regularly attending the school and discharging her duties as LDA, the petitioner is annexing herewith a copy of the working certificate dated 28.1.2015 issued by Respondent No.6/7 is annexed hereto as Annexure-17 to this petition. 29. The aforesaid averments have not been denied by the Department as no affidavit has been filed by the Department in either of the cases which has already been recorded above. 29. The aforesaid averments have not been denied by the Department as no affidavit has been filed by the Department in either of the cases which has already been recorded above. In the affidavit filed by the private respondent, the averments of paragraph-14 has been replied in paragraph-6 of the affidavit-in-opposition, which has extracted herein below:- “that the contention in paragraph 14 of the petition are categorically denied being not at all true & correct. It may stoutly be stated that the writ petitioner though was appointed as honorary basis in on 01.03.1996, she did not continue particularly since 01.07.1997 for the reasons best known to her. She even did not at all respond to the repeated notices ultimately her services were terminated as per law by the resolution dated 31.01.1999 of which she was well aware of but she did never challenge nor protested. It is very unfortunate to state that after the provincialisation of the services of the staff of the institution along with that of the petitioner, the writ petitioner with an ulterior motive of harassing and causing loss to the deponent started her foul play. She more cleverly mislead the outgoing Head Master of the School seeking an experience certificate for herself for applying for a job of Anganwadi Worker (as told by the outgoing Head Master) who casually on humanitarian consideration gave such a certificate dated 28.01.2015 to her, which is no doubt long after the provincialisation of the services of the staff of the school along with the deponent. Thus thereafter taking the alleged certificate as an weapon for her foul play the writ petitioner has been filing case after case for harassing and causing loss to the petitioner. It is therefore respectfully prayed that the petition of the writ petitioner which is based on no lawful basis at all for her such grievance, is liable to be dismissed in liminie and with costs to the humble deponent.” 30. A reading of the said reply would show that there is no denial of this fact and in fact, the said issue has not even been dealt with. Therefore, this Court is left with no other alternative but to come to a conclusion that termination order dated 31.10.1999, if any was never served upon the petitioner. 31. It is a settled law that orders, until and unless it is communicated will not take effect. Therefore, this Court is left with no other alternative but to come to a conclusion that termination order dated 31.10.1999, if any was never served upon the petitioner. 31. It is a settled law that orders, until and unless it is communicated will not take effect. The Hon’ble Supreme Court in the case of Bachhittar Singh v. State of Punjab, reported in AIR 1963 SC 395 had laid down that “…Merely writing something on the file does not amount to an order…” 32. Further in the instant case, the contemporaneous materials would rather show that all along, the petitioner was continuing her service. In this regard, there is no denial from any of the respondents regarding forwarding of the name of the petitioner on 03.10.2012 for the purpose of provincialisation of her services. Though an objection has been raised with regard to the Certificate produced by the petitioner that such Certificate was issued on the request of the petitioner for some other purpose, even ignoring the said Certificate, the materials on record establishes that the petitioner was in service. 32. Though Shri F. U. Borbhuiya, the learned counsel for the petitioner has also assailed the termination order dated 31.01.1999 on merits with the submission that the same was not preceded by the due process of law, the said aspect of the matter need not be gone into in view of the findings arrived at by this Court that the impugned order of termination is otherwise not sustainable. 33. This Court however would observe at this stage that no semblance of any prescribed procedure is seen to have been followed before issuing the termination order dated 31.10.1999 and the same appears to have been done without any enquiry or giving adequate opportunity. 34. Therefore, this Court is of the unhesitant opinion that the termination order dated 31.10.1999 cannot be stand the test of judicial scrutiny and is therefore set aside.” 20. The contentions of the appellant, in the present proceedings, is to the effect that the respondent No. 1, herein, was issued with notices on account of she being unauthorizedly absenting herself from duties and no response being received; the Managing Committee of the said school had adopted a resolution on 31.10.1999, to terminate the service of the respondent No. 1, herein. The said notices purportedly issued to the respondent No. 1, herein, by the school authorities have not been brought on record and further, no materials have been brought to demonstrate that such notices if issued, were so served upon the respondent No. 1, herein. Further, there is no material to demonstrate that the order of termination of the respondent No. 1, herein, issued in pursuance of the resolution adopted by the School Managing Committee of the said school, was served upon her in any manner. 21. In view of the above position and it being not demonstrated that the termination of the service of the respondent No. 1, herein, was so carried-out after giving her an opportunity of hearing in the matter and the fact that the order of termination was never demonstrated to have been served upon her; the conclusions as reached by the learned Single Judge in the judgment & order, dated 16.06.2023, would not call for any interference. 22. Having drawn the above conclusions with regard to the issue of service of the respondent No. 1, herein, we would now examine the further issue pertaining to the provincialization of the services of the appellant, herein, vide order, dated 20.08.2013. 23. The service of the respondent No. 1, herein, having been held to have not been terminated; the name of the respondent No. 1 being duly forwarded by the school authorities in the year 2015, for provincialization of her service under the provisions of the Assam Venture Educational Institutions (Provincialization of Services) Act, 2011; it has to be held that the respondent No. 1 had continued in her service in the said school. 24. The respondent No. 1, herein, having been so appointed on a date prior to the appointment effected in respect of the appellant, herein, also, against the post of Lower Division Assistant(now, renamed as Junior Assistant); it has to be held that the respondent No. 1 is senior to the appellant, herein, in the post of Lower Division Assistant in the said school. 25. The learned Single Judge on a consideration of the said issue pertaining to the provincialization as effected in the case of the appellant, herein; had drawn the following conclusions : “35. The question which now arises for adjudication is the action of provincialisation of the services of the respondent no. 8 by depriving the petitioner. Admittedly, the respondent no. 25. The learned Single Judge on a consideration of the said issue pertaining to the provincialization as effected in the case of the appellant, herein; had drawn the following conclusions : “35. The question which now arises for adjudication is the action of provincialisation of the services of the respondent no. 8 by depriving the petitioner. Admittedly, the respondent no. 8 is junior in service to the petitioner and does not possess the requisite qualification of Higher Secondary. The respondent no. 8 also appears to be disqualified so far as age is concerned as the prescribed age for entry into the service between 18-36 and the respondent no. 8 was 41 years while she has entered the said service. 36. Shri Rajborbhuiya, learned counsel for the respondent no. 8 has tried to convince this Court that the induction of the respondent no. 8 should be taken from the year 1999 when a resolution was adopted to allow her to work. However, on a close perusal of the said resolution, it appears that the resolution was only allowing the respondent no. 8 to assist her husband who was holding the post of LDA and was unwell. This Court is also unable to accept the preposition advanced on behalf of the respondent no. 8 that she being an existing staff, the qualifications laid down of Higher Secondary may not be essential. This Court is of the opinion that when the statute prescribes a minimum qualification, the same has to be followed. 37. The records which has been produced by Ms. Terangpi, the learned Standing Counsel for the Department is the records forwarded by the School Authorities through the Office of the Inspector of Schools, Cachar. The very act of filing a common affidavit-in-opposition by the School Authorities along with the respondent no. 8 in the first writ petition i.e. WP(C) No. 1651/2015 would prima facie demonstrate that the stand of the School Authorities cannot be stated to be a neutral one as apparently the School Authorities have taken the side of the respondent no. 8. Of course, the School Authorities would have all the rights to defend his action but while doing so, the School Authorities have merged their stand with that of the respondent no. 8 by filing a common affidavit which itself creates a serious doubt on the neutral conduct of the School Authorities. 8. Of course, the School Authorities would have all the rights to defend his action but while doing so, the School Authorities have merged their stand with that of the respondent no. 8 by filing a common affidavit which itself creates a serious doubt on the neutral conduct of the School Authorities. Juxtaposed, there is no doubt regarding the qualification and eligibility of the petitioner for consideration of provincialisation of her service.” 26. The learned Single Judge upon drawing the above conclusions, has proceeded to set aside the provincialization as effected in the case of the appellant, herein. The respondent No. 1, herein, having been deprived of the appointment only on the ground of her purported termination from her service, which has already been concluded hereinabove, to be not sustainable, the respondent No. 1 having continued in her service; her case for provincialization of her service was mandated to be so considered in terms of the provisions of the Act holding the field at the relevant point of time. The non-consideration of the case of the respondent No. 1 for provincialization of her service, has caused prejudice to her service interest. 27. The appellant, herein, being junior to the respondent No. 1, herein, and also as concluded by the learned Single Judge of not having possessed the requisite qualification to hold the post of Lower Division Assistant; the conclusions reached by the learned Single Judge with regard to the provincialization as effected in respect of the service of the appellant, herein, would not mandate any interference. 28. Accordingly, the interference so made by the learned Single Judge with regard to the provincialization of the service of the appellant, herein, would not call for any interference. 29. In view of the conclusions reached by us, hereinabove, with regard to the issues so arising in the present proceedings; we are of the considered view that the judgment & order, dated 16.06.2023, passed by the learned Single Judge in WP(c)1651/2015 and WP(c)2428/2016, would not call for any interference. The services of the respondent No. 1 would now be required to be considered for provincialization as per the provisions of the Act holding the field i.e. the Assam Education (Provincialization of services of non-teaching staff of venture educational institutions) Act, 2018. 30. The services of the respondent No. 1 would now be required to be considered for provincialization as per the provisions of the Act holding the field i.e. the Assam Education (Provincialization of services of non-teaching staff of venture educational institutions) Act, 2018. 30. In view of the above; these writ appeals are held to be devoid of any merit and accordingly, the same are hereby dismissed. However, there shall be no order as to costs.