Lovely Das vs The State Of Assam And 4 Ors

Court
Gauhati High Court

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GAHC010030842023

2026:GAU-AS:5970
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1573/2023
LOVELY DAS
W/O- SRI DILIP ROY, R/O- STATION ROAD, KARIMGANJ, OPPOSITE
MOYURI HOTEL, P.O. AND DIST. KARIMGANJ, ASSAM
VERSUS
THE STATE OF ASSAM AND 4 ORS
REPRESENTED BY THE SECRETARY TO THE GOVT. OF ASSAM,
DEPARTMENT OF EDUCATION (ELEMENTARY), DISPUR, GUWAHATI-6.
2:THE DIRECTOR
ELEMENTARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI-19.
3:THE DISTRICT ELEMENTARY EDUCATION OFFICER
KARIMGANJ
ASSAM
4:THE DEPUTY INSPECTOR OF SCHOOLS
KARIMGANJ
DIST. KARIMGANJ
ASSAM
PIN-788710.
5:THE DEPUTY COMMISSIONER
KARIMGANJ
ASSAM
PIN-788710

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Advocates for the petitioner : Mr. R. P. Sarma, Sr. Counsel, assisted by,
Mr. A. Roshid.
Advocate for the respondents : Mr. P. N. Sarma, Standing Counsel, Elementary
Education Department.
Date of which Judgment is reserved : 05.03.2026
Date of pronouncement of Judgment: : 30.04.2026
Whether the pronouncement is of the : N/A
operative part of the Judgment?
Whether the full judgment has been : Yes
pronounced?
BEFORE
HONOURABLE MR. JUSTICE ROBIN PHUKAN
JUDGMENT & ORDER (CAV)

Heard Mr. R. P. Sarma, learned Senior Counsel, assisted by Mr. A. Roshid,
learned counsel for the petitioner and Mr. P. N. Sarma, learnedStanding
Counselfor the respondents in Elementary Education Department.

2. In this petition, under Article 226 of the Constitution of India, the petitioner
has prayed for issuing direction to the respondent authorities to regularize her
service as Lower Primary School Teacher and also, to release the arrear monthly
and current salariesof the petitioner, who has been serving as Assistant Teacher,
under the respondent authorities.
Background facts :-
3. The background facts, leading to filing of the present petition, are briefly
stated as under -
“
Pursuant to an advertisement, issued by the respondent authorities,

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the petitioner had applied for a post of Assistant Teacher, under the
jurisdiction of Deputy Inspector of Schools, Karimganj, now Sribhumi, and
she had appeared before the Sub-Divisional Level Selection Board, for
Elementary EducationTeacher, Karimganj and she was selected and
approved by the Sub-Divisional Level Selection Board for Elementary
Education, Karimganjfor appointment in Primary School, as Primary
Teacher and she was appointed and posted at No. 499,DuhaliaLower
Primary School, temporarily, as StipendiaryTeacher, with monthlystipend
@Rs. 900 only, vide Memo No. DIK/99/2000/A-8/1241-48, dated
20.11.1999.
Thereafter, she was appointed against a permanent vacant post, by
the Deputy Inspector of Schools, Karimganj, on 28.03.2001, vide Letter
No. DIK/2000-2001/A-8/1506-569, and she has been posted at No. 394
Nilmoni L.P. School, in a regular vacant post and she had joined there on
30.03.2001, and since then she has been rendering her service in the said
school.
Thereafter, the Deputy Inspector of Schools, Karimganj, had issued a
direction on 28.03.2001, to the Headmaster of the concerned School,
directing to prepare ‘Kachabill’, with a view to forwarding the same to the
concerned Block Elementary Education Officer/Deputy Inspector of
Schools, for drawal of her salary and accordingly, the same was forwarded
by the Headmaster, after preparation for drawal of the salary. But, no
action was taken upon the same. She has not been paid any salary. Being
aggrieved, the petitioner had filed one writ petition, being WP(C) No.
1103/2011, and the same was disposed of on 15.12.2011; directing the
petitioner to submit all the relevant documents to the Commissioner and

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Secretary to the Govt. of Assam, Education Department, to examine her
claim.
Thereafter, the petitioner had submitted all relevant documents before
the authority and the same were examined by the Commissioner,
Education Department, Dispur, Guwahati-6,and vide order, dated
18.07.2013;the prayer of the petitioner was rejected on the ground that
her name does not appear in the select list of 112 Nos. of candidates,
dated 27/10/1999.
It is the case of the petitioner that she had obtained the select lists,
dated 27/10/1999 and 13/11/1999, through R.T.I. and found that her
name appeared in the select list, dated 27/10/1999, at Serial No. 112; and
that, the Order, dated 18.07.2013, was issued without due application of
mind and the same is illegal and arbitrary and is liable to be set aside and
quashed. And, it is also the case of the petitioner that she has not been
paid salary, for which, she has been suffering from serious financial
hardship.
Thereafter, vide letter, dated 11.05.2001, from the Secretary to the
Government of Assam, Education Department, the salaries of 105
candidates were released, but the petitionerwas deprived of the same.
Thereafter, the petitioner had filed one application before the
competent authority under the RTI Act, and the competent authority had
issued a list of employees, whose nameshad been sent to the Treasury
Officer for salary and the name of the petitioner also appeared in the said
list. But, the name of the petitioner was not sent to the Treasury Officer,
Karimganj as she had filed another writ petition, being WP(C) No.

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1103/2011. Her name was also deleted for the years 2011, 2012 and 2013
against No. 394 Nilmoni LP School and instead, the name of one Smti.
Sabita Das was shown, who had retired from service on 31.12.1997.

Thereafter, the Secretary to the Government of Assam, Education
(Elementary) department, Guwahati, issued an order on 19.08.2009,
directing the Director, Elementary Education, Assam to appoint 111
persons selected by the Sub-Divisional Level Advisory Board, Karimganj,
on 27/10/1999,and the same was issued incompliance with the order,
dated 24/03/2008, passed in Writ Appeal No. 86/2008; and accordingly,
the list of selected persons, dated 27/10/1999,were appointed.But, the
petitioner was singled out and was also not paid any salary.
Thereafter, the petitioner had preferred another writ petition, being
WP(C) No. 5094/2013, which was disposed of vide order,dated
12.03.2020, holding that the petitioner is entitled to all the consequential
benefits including arrears and current salary, if the select list dated
27.10.1999 is valid and if the name of the petitioner is found to be
included in the said select list after verification. But, nothing was done.
The Director, Elementary Education, Assam, Kahilipara, had also issued a
letter, dated 21.09.2020, to the Principal Secretary, Govt. of Assam,
Education Department, Guwahati; but the same also failed to yield any
result.
Thereafter, the Director, Elementary Education, Assam, had
accommodated the petitioner at 394 Nilmoni L.P. School under District
Elementary Education Officer, Karimganj, vide order dated 30.01.2021; on
temporary basis, w.e.f. 01.11.2020; and that she has not been granted the

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arrear salary by the Director, Elementary Education, Assam.”
4. The respondent authoritieshave filed their affidavit-in-opposition, wherein, a
stand has been taken that as reported by the District Elementary Education
Officer, (DEEO), Karimganj, vide letter dated 01.06.2023, the advertisement was
issued, but the petitioner was not selected and pursuant to the order passedby
this Court on 15.12.2013, in WP(C) No. 1103/2011,the case of the petitioner
was placed before the Expert Committee for consideration of her claim for
payment of salary and after verifying all her records, the Expert Committee had
issued an order, dated 18.07.2013, stating that the name of petitioner did not
appear in the proper select list, dated27.10.1999, which was approved by the
Sub-Divisional Level Advisory Board, Karimganj; and that the petitioner has
obtained the select list from one ShyamalDutta, who is not the official authority
and oneFIR has been filed by the Deputy Director of School, Karimganj,against
said ShaymalDutta,for fraud and forgery.
4.1 It has been further stated that though, the name of the petitioner figured
in the list dated 13.11.1999, the sameis not a valid original documents. So, the
appointment of the petitioner is found to be illegal, as her name was not
enlisted in the valid select list and as per Government order, dated 18.07.2013,
the petitioner is not entitled to arrears salary, as claimed.
4.2. And, this Court, vide order dated 12.03.2020, passed in WP(C)
No.5094/2013;had directed the authorities to re-examine the claim of the
petitioner in the light of the select list produced by thepetitioner and to conduct
another verification, as to ascertain whether the name of the petitioner finds
place in the select list, dated 27.10.1999, with further direction that if the name
of the petitioner is found to be included in the said select list, the petitioner

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would be entitled to be declared as validly appointed teacher and she shall be
entitled to all the consequential benefits including arrear and current salary.
4.3. Thereafter, verification was conducted, during which, it was found that the
name of the petitioner did not figure in the valid select list, dated 27.10.1999,
and as such, the petitioner is not entitled to any benefit.
5. The petitioner has filed heraffidavit-in-reply in response to the affidavit-in-
opposition filed by the respondent No. 2, wherein, she had denied all the
statements and averments made by the respondent No. 2 in the affidavit-in-
opposition.
6. It is also to be noted here that the respondent No. 2 has filed one
additional affidavit on 15.05.2025, bringing on record the Select List, dated
27.10.1999, as per direction of this Court, dated 07.04.2025.
7. The petitioner has also filed one additional affidavit on 01.09.2025,
wherein, she has stated that she was duly selected and regularly appointed to
the post of L.P. School teacher, w.e.f., 20.11.1999.
8. Mr. R. P. Sarma, learned Senior Counsel for the petitioner submits that the
petitioner herein had applied for the post of teacher and participated in the
selection process and she was selected by the Sub-Divisional Level Advisory
Board, Karimganj,and her name figured in the list of selected candidates dated
27/10/1999. And thereafter she was appointed as teacher was appointed and
posted at No. 499, Duhalia Lower Primary School, temporarily, as Stipendiary
Teacher. He also submits that as per Annexure 2,the Order, dated 28.03.2001,
the Deputy Inspector of Schools, Karimganj, has forwarded the name of the
petitioner, which figured at Serial No. 13, directing the Head teachers to prepare
a Kacha bill for onward submission of the same to the Block Elementary

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Education Officer, for drawal of salary.
8.1 Referring to the order passed by this Court in WP(C) No. 5094/2013, dated
12.03.2020, Mr. Sarma submits that this Court has observed that “the petitioner
was able to show a list stated to be the select listdated 27.10.1999, supported
by affidavit that her name indeed appears at Sl.No.35 of the said list. Thus,
from the above, what is clearly evident is that the finding by the Committee that
the select list dated 27.10.1999, does not include the name of the petitioner and
the production of the list by the petitioner in this petition, in which the name of
the petitioner is included in the select list, dated 27.10.1999, is within the realm
of ascertainment of facts.”Mr. Sharma also submits that thereafter, to ascertain
the correctness of either of the claims, the respondent authorities were directed
by this court to re-examine the claim of the petitioner in the light of the select
list produced by the petitioner and to make another verification, as to whether
the name of the petitioner finds place in the select list dated 27.10.1999. Mr.
Sharma further submits that it has also been observedby this court that the
select list, dated 27.10.1999, is valid and if the name of the petitioner is found
to be included in the said select list as claimed by the petitioner, on the strength
of the document relied upon in this petition or any other document as may be
available,the petitioner would be entitled to be declared as a validly appointed
teacher and she would also be entitled to all the consequential benefits. Mr.
Sarma also submits that thereafter, the respondent authorities had conducted
the verification and illegally declared that the claim of the petitioner as invalid.
8.2. Mr. Sarma also submits that the petitioner has been rendering her service
since the date of her appointment, but no salary was paid to her until her
accommodation, w.e.f. 01.11.2020, vide order, dated 30.01.2021; and that, vide
said order, she has been accommodated as Tutor, under the Assam Education

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(Provincialisation of Services of Teachers and Re-organisation of Educational
Institutions) Act, 2017; with prospective effect only.
8.3. Mr. Sarma also submits that the petitioner has been rendering her service
since the date of her appointment, but no salary was paid to her until her
accommodation, w.e.f. 01.11.2020, vide order, dated 30.01.2021; and that, vide
said order, she has been accommodated as Tutor, under the Assam Education
(Provincialisation of Services of Teachers and Re-organisation of Educational
Institutions) Act, 2017; with prospective effect only.
8.4. He also submits that, the petitioner was appointed under the Assam
Elementary Education (Provincialisation) Act, 1974 and the Assam Elementary
Education (Provincialisation) Rules, 1977, and the same are still holding the
field, and at that time, the qualification for being appointed as Lower Primary
School teacher was only matriculation and the requirement of DLED as
qualification, was introduced in the year 2005, and the same was not there in
the Rules of 1977, as such her accommodation as Tutor subsequently by the
respondent authority is illegal.
8.5. Under the abovementioned facts and circumstances, Mr. Sarma submits that
the petitioner is entitled to be regularized in service, with effect from the date of
her appointment and also, she is entitled to arrear monthly salary and therefore,
he has contended to allow this petition.
9. Per contra, Mr. Sarma, learned Standing Counsel for the respondents in
Elementary Education Department submits that the select list dated
27.10.1999is annexed to the affidavit-in-opposition filed by the respondent
authorities, as ‘Annexure I’, but the name of the petitioner did not figure in the
same; and that the petitioner has already been accommodated as a Tutor and

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the said accommodation order has not been challenged by the petitioner herein.
9.1 Mr. Sarma further submits that the petitioner herein also lacks the
educational qualification for being appointed as Teacher, for which, she has
been appointed as Tutor, and having accepted the same, now, she cannot turn
around and claim for herarrear salary and regularization of service.Under such
circumstances, Mr. Sarma has contended to dismiss this petition.

10. Having heard the submission of the learned counsel for both the parties,
this Court has carefully gone through the petition and the documents placed on
record, and also gone through the order passed by a Co-ordinate Bench of this
Court in WP(C) No. 5094/2013, dated 12.03.2020.
11. It appears that in the Order, dated 12.03.2020, passed in WP(C) No.
5094/2013; this Court has recorded a categorical finding as under:-
“ 5. On the other hand, learned counsel for the petitioner has
drawn attention of this Court to Annexure-7, which is stated
to be select list dated 27.10.1999, which was also referred
to by the Committee and reflected in the impugned order dated
18.07.2013. In the said select list produced by the
petitioner, copy of which is annexed as Annexure-7, the name
of the petitioner finds place at Sl.No.35 under Interview
No.UR 1538 and the petitioner has been recommended against
the vacancy which was earlier held by one Sandhya Rani Dey,
991(A), NobinVidyapith. The said select list is signed by one
Deputy Inspector of Schools, Karimganj and stated to be
verified by the Superintendent, Directorate of Elementary
Education, Assam.
………………………
…………………………
.
7. Thus, from the above, what is seen is that while the

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authorities have given the finding as reflected in the
impugned order dated 18.07.2013 that the petitioner's name
does not figure in the valid select list dated 27.10.1999,
the petitioner has been able to show a list stated to be the
select list dated 27.10.1999 supported by affidavit that her
name indeed appears at Sl.No.35 of the said list. Thus, from
the above, what is clearly evident is that the finding by the
Committee that the select list dated 27.10.1999 does include
the name of the petitioner and the production of the list by
the petitioner in this petition, in which the name of the
petitioner is included in the select list dated 27.10.1999 is
within the realm of ascertainment of facts. As such, this
Court for obvious reasons cannot undertake the exercise
correctness of either of the claims. However, since the
petitioner has been to ascertain able to show certain
document supported by affidavit, this Court would direct the
respondent authorities to re-examine the claim of the
petitioner in the light of the select list produced by the
petitioner in this petition and make another verification as
to whether the name of the petitioner finds place in the
select list dated 27.10.1999.
8. It goes without saying that since there is already a
finding by the authorities that the select list dated
27.10.1999 is valid and if the name of the petitioner is
found to be included in the said select list as claimed by
the petitioner on the strength of the document relied upon in
this petition or any other document as may be available, the
petitioner would be entitled to be declared as a validly
appointed teacher and she shall be also entitled to all the
consequential benefits including arrear and current salary,
for which the respondent authorities will undertake a fresh
verification process as directed above and inform the result
of the same to the petitioner by issuing a speaking order in
this regard, which exercise shall be undertaken within a
period of 2(two) months from the date of receipt of a

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certified copy of this order.”
11.1. Thus, it appears that there is a finding by the authorities that the Select
List, dated 27.10.1999, is valid one. The only question is whether the said list is
valid one or not. Said select list was earlier produced before this Court in earlier
writ proceeding W.P.(C) No. 5094/2013, as Annexure 7, and in the present
proceeding as Annexure-5. The name of the petitioner appeared at Serial No. 35
of the said list, under Interview No.UR 1538 and the petitioner has been
recommended against the vacancy which was earlier held by one Sandhya Rani
Dey, 991(A), NobinVidyapith. The said select list is signed by one Deputy
Inspector of Schools, Karimganj and stated to be verified by the Superintendent,
Directorate of Elementary Education, Assam.
11.2. Further, from Annexure 2, of the present petition, which is the Order,
dated 28.03.2001, of the Deputy Inspector of Schools, Karimganj, indicates that
vide said order the name of the petitioner, which figured at Serial No. 13, the
Head teachers of the Schools were directed to prepare a Kacha bill for onward
submission of the same to the Block Elementary Education Officer, for drawal of
salary.
11.3. Further, from the additional affidavit filed by the petitioner on 01.09.2025
indicates that she had filed an application dated 20-10-2014, before the
Commissioner and Secretary to the Govt. of Assam (Education) Elementary,
Dispur, Guwahati praying for information documents of illegally/irregular
teachers from 1991 to 2009 of L.P. Schools in Karimganj district and the
authority has provided information/documents of teachers who were appointed
irregularly/illegally during the period from 1991 to 2001, in L.P. Schools District
Karimganj, and the said list is annexed as Annexure- 19, and her name did not
figure in the said list, and as such her selection and appointment is legal and

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she is entitled to get regular salary. Notably, the respondent authorities have not
controverted the same by filing any counter affidavit.
12. Thus, Annexure 2, Annexure-5and coupled with the fact that the name of
the petitioner did not figure in the list of illegally appointed teachers from 1991
to 2001, in L.P. Schools District Karimganj, in view Annexure- 19, of the present
petition, couple with the submissions advanced by R.P. Sharma, the learned
counsel for the petitioner, goes a long way to show selection and appointment
of the petitioner is legal and she is entitled to get regular salary.Over and above,
subsequent accommodation of the petitioner as Tutor vide order dated
30.01.2021, also fortified her stand to a considerable extent.
13. Though, on the basis of the ‘Annexure-I’, at page No.68 in the affidavit-in-
opposition filed by the respondent authorities, and also Mr. P.N. Sharma, learned
Standing Counsel for the respondent, haveclaimed that the name of the
petitioner did not figure in the same; yet, Mr. P. N. Sarma, learned Standing
Counsel for the respondents in Elementary Education Department has failed to
produce the original copy of the same, inspite of asking by this court, on the
ground that the file is not available now with the department. In absence of the
concerned file, to support their stand and the statements and averments made
in the affidavit-in-opposition and the ‘Annexure-I’, enclosed with the said
affidavit-in-opposition, to the considered opinion of this Court, cannot be
accepted.
14 . It is a fact that the petitioner was appointed vide order, dated 20.11.1999,
and at that time, the Act of 1974 and the Rules of 1977 were prevailing and
under the said Act and Rules, the qualification for being appointed as a Lower
Primary School Teacher was Matriculation and the qualification of DLED was

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introduced only in the year 2005, and as such, the accommodation of the
petitioner as Tutor, for want of qualification, also appears to be unjustified. But,
the case of the petitioner ought to have been considered under the Act of 1974
and the Rules of 1977; which, Mr. Sarma, learned Senior Counsel for the
petitioner has rightly pointed out during the course of argument and he has also
made a categorical submission that the said Act and Rules have not yet been
repealed, either by the Act of 2011 or by the Act of2017. But, indisputably, the
accommodation orderdated 30.01.2021, is not the subject matter of challenge in
this petition.
15. Another aspect of the matter, which should not lose sight of is the fact that
the petitioner has been rendering service since the year 1999 and she has not
been paid her salary till her accommodation as Tutor, vide order, dated
30.01.2021.It is well settled that the state respondent cannot extract service of
the employees without paying salary. In this regard reference may be made to s
decision of Hon’ble Supreme Court in the case of
Vidya Devi vs. State of
, reported in , held that
Himachal Pradesh and Others (2020) 2 SCC 569
right to salary is a right recognized under Article 300(A) and 21 of the
Constitution of India and right to property is a human right also.

15.1. The issue of extraction of service without payment of salary, was dealt
with by Hon’ble Supreme Court in the case of
SukhdeoPandey vs. Union of
India, reported in (2007) 7 SCC 455, wherein it has been held that it is
well-settled principle in service jurisprudence that a person must be paid if he
has worked and should not be paid if he has not. The relevant para is extracted
herein below:-
“ 17. Before parting with the matter, however, we may make one

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thing clear. From the record, it appears that after the
appellant was reverted from the cadre of Postman to his
substantive post of EDBPM , he has not joined duty and has not
worked. No interim relief was granted by any court including
this Court in his favour. In the circumstances, it was
obligatory on him to report for duty as EDBPM . He, however,
failed to do so. We, therefore, hold that if the appellant
has not worked, he will not be paid salary for the period for
which he has not worked. It is well-settled principle in
service jurisprudence that a person must be paid if he has
worked and should not be paid if he has not. In other words,
the doctrine of “no work, no pay” is based on justice, equity
and good conscience and in absence of valid reasons to the
contrary, it should be applied. In the present case, though
the appellant ought to have joined as EDBPM , he did not do so.
He, therefore, in our considered opinion, cannot claim salary
for that period. But he will now be allowed to work as
Postman. He will also be paid salary as Postman but we also
hold that since the action of the respondent authorities in
reverting him to his substantive post of EDBPM was strictly in
consonance with law, the appellant would be entitled to
pensionary and other benefits not as Postman but
EDBPM
as which post he was holding substantively.”

15.2. Again, a Division Bench of this Court in the case of
ArunimaChetia
answered the same as under:-
(supra),

“
9. Upon hearing the rival contentions and after going
through the order of the learned single Judge in
question, it is an admitted fact that all the respondents
in the appeals are continuously working as teacher and
their salaries are being paid by virtue of the Court's
order. Arrears of salary from July 2007 are not being
paid. When the respondents are continuously serving as

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teacher, the question whether they are illegally
appointed or otherwise it matter-less. However, for the
services rendered by the private respondents and availed
by the State, on the principle of "quantum meruit" the
salaries have to be paid. In that view of the matter we
find no ground to interfere in the order of the learned
single Judge. Accordingly the appeals are dismissed.”
15.3. Thus, on the principle of "quantum meruit" the petitioner is entitled to
salary for the past service rendered by her from the date of her appointment on
20.11.1999, till her accommodation 01.11.2020.
15.4. Further, in the case of Man Singh vs. the State of Uttar Pradesh
Through Secretary & Ors., reported in 2022 LiveLaw(SC) 341, also
Hon’ble Supreme Court has held as under:-
“ The Single Judge in its order dated 11.05.2000 maintained
the order dated 24.12.1998 of cancellation of appointment of
the appellant as Principal on account of violation of Chapter
3 Rule 4 of U.P. Educational Manual prescribes that a close
relation mentioned in said Rule cannot be appointed as
Principal.
The appellant was appointed as a principal in the year
1974-75 when junior High School was upgraded as High School
and was recognized by the State Government. Thus, the
appellant has worked for almost 24 years before the services
came to be cancelled for the reason that he is Reason:
relative of the member of the Selection Committee.

The order dated 24.12.1998 also records that the money be
recovered from the appellant which has been paid to him, as a
result of his irregular appointment for the post of
Principal.
We find that the High Court has failed to consider the fact
that even if the appointment was irregular, the appellant had

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discharged the duties and in lieu of duties, he had to be
paid. The State cannot take any work from any employee
without payment of any salary.”

16. Under the abovementioned facts and circumstances on record, this Court
finds sufficient merit in this petition and accordingly, the same stands allowed.
17. By a mandamus of this Court, the respondent authorities are directed to
regularize the service of the petitioner with effect from the date of her
appointment and also to pay her the salary, and all consequential benefits which
she is legally entitled to.
18. Let the abovementioned exercise be carried out within a period of 3
months from the date of receipt of certified copy of this order. The petitioner
shall obtain a certified copy of this order and place the same before the
respondent authorities within a period of 1 (one) week from today.

19. In terms of the above, this writ petition stands disposed of.
JUDGE
Comparing Assistant