Full Judgment Text
CA NO. 4455 OF 2012
NON-REPORTABLE
2023INSC752
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4455 OF 2012
SMT. DULU DEKA … Appellant(s)
VERSUS
STATE OF ASSAM & ORS. … Respondent(s)
J U D G M E N T
Rajesh Bindal, J.
1
1. The writ petition was filed by the appellant in the
Gauhati High Court in the year 2008 praying for release of her
salary from 12.03.2001 onwards. It was claimed that she was
rendering service as an Assistant Teacher in Bengabari M.E.
School and had not been paid any salary. The writ petition was
Signature Not Verified
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dismissed by the Single Judge. The order was upheld in an
Digitally signed by
GEETA AHUJA
Date: 2023.08.22
17:38:44 IST
Reason:
1 WP (C) No.595 of 2008.
2 Dated 08.09.2008.
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intra-court appeal . The said orders are impugned in the
present appeal.
2. The facts of the case as enumerated in the order
passed by the High Court are that, on 28.12.1996 an
advertisement was issued by the Director of Elementary
Education, Assam, for filling up 7,500 posts of Assistant
Teachers in M.E./M.V. Schools. The appellant claimed that she
applied for the post and appeared for interview in July 1997.
The selection list was not published by the Director of
Elementary Education, Assam, because the Government of
Assam imposed a ban on the appointments. After the ban was
lifted, the Selection Committee for Udalguri Sub-Division
(General Area) in its meeting held on 12.03.2001,
recommended the appellant’s name with other candidates for
appointment against vacancies in three Legislative Assembly
Constituencies, namely, Dalgaon, Majbat and Udalguri. The
appellant’s name appeared against the vacancies in the
Udalguri Legislative Assembly Constituency. The appellant was
appointed as Assistant Teacher in Bengabari M.E./M.V./M.E.M.
School vide order dated 12.03.2001 issued by the District
3 W.A. No.42 of 2009 Dated 08.01.2010.
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Elementary Education Officer, Mangaldoi, Darrang, on a fixed
salary of ₹ 2,000/- (Rupees Two Thousand) per month under the
Central Government’s sponsored Scheme, namely, Operation
Black Board Scheme. According to the appointment order, the
term of the service was upto 31.03.2002. It is claimed by the
appellant that she has been working in the said school since
then, however, she has not been paid any salary. A direction
was sought to the State to pay the salary to the appellant.
However, the High Court did not find any merit in the
submissions made.
3. Learned counsel for the appellant submitted that the
order passed by the High Court deserves to be set aside as the
appellant cannot be made to work without payment of salary,
which amounts to Begar, not permissible in law.
4. On the other hand, the learned counsel for the
respondents submitted that the appointment of the appellant
itself was illegal. In 2001, the Director of Elementary
Education, Assam conducted an enquiry into the matter and
vide his order dated 18.10.2001, declared all the appointment
(Total 509 teachers) including the appellant’s appointment,
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made by the then District Elementary Education Officer,
Darrang, Mangaldoi as illegal and void ab initio , as all such
appointments were made against non-existent posts. The
aforesaid order was never challenged by the appellant. It was
further submitted by the respondents, that the selection of the
appellant, as claimed, was made against the vacancies in the
Udalguri Legislative Assembly Constituency, however, she was
appointed as an Assistant Teacher in Bengabari
M.E./M.V./M.E.M. School by the District Elementary Education
Officer, Darrang, Mangaldoi, which was beyond the Udalguri
Legislative Assembly Constituency. Therefore, the appointment
of the appellant beyond the Udalguri Legislative Assembly
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Constituency was invalid and in violation of the Rules. There is
no error in the orders passed by the High Court and the appeal
deserves to be dismissed.
5. After hearing learned counsel for the parties, we do
not find any error in the order passed by the learned Single
Judge, as confirmed by the Division Bench of the High Court.
4 Assam Elementary Education (Provincialisation) Rules, 1977
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6. The appellant claimed that she was appointed as an
Assistant Teacher in Bengabari M.E. School against the
vacancies in Udalguri Legislative Assembly Constituency by the
Sub-Divisional Selection Board in the meeting held on
12.03.2001, pursuant to an advertisement dated 28.12.1996
issued by the competent authority to fill up the regular posts of
Assistant Teachers. However, no appointment letter was issued
to the appellant in pursuance thereof. Rather, the appointment
letter dated 12.03.2001 issued to the appellant by the District
Elementary Education Officer, Darrang, Mangaldoi, shows that
she was appointed as an Assistant Teacher in Bengabari M.E.
School, which falls in Mangaldoi, a sub-division of Darrang
District. As is noticed in the impugned order passed by the
Division Bench of the High Court, the same does not fall within
the Udalguri Legislative Assembly Constituency. It is nowhere
stated in the appellant’s appointment letter that the said
appointment was in pursuance of any advertisement issued or
the candidates had undergone any selection process for the
same. In fact, all the appointments made by the District
Elementary Education Officer, Darrang, Mangaldoi, from
08.03.2001 to 31.03.2002 were declared to be illegal and void
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ab initio by the Director of Elementary Education vide order
dated 18.10.2001. The appointment of the appellant was also
included therein. It was found that the District Elementary
Education Officer had appointed 509 teachers illegally against
non-existent posts. The appellant did not challenge the order
dated 18.10.2001. The Division Bench, further noticed that the
appellant having been selected against the vacancy in Udalguri
Legislative Assembly Constituency could not have been
appointed in a school beyond the jurisdiction of the said
Constituency. It was further noticed by the High Court that the
appellant had not placed on record any material to show that
there was any advertisement issued or the selection process
undertaken for appointment in the school, where she was
offered appointment and claims to be working.
7. Once the appointment of the appellant had been
declared illegal and void ab initio, and was cancelled by the
Director of Elementary Education, Assam vide order dated
18.10.2001, the appellant could not legally continue in service
thereafter, unless that cancellation order was set aside. It has
been noticed by the High Court that the order dated
18.10.2001 was never challenged by the appellant. Thus, the
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appellant had no legal right to continue in service, especially
when there is no order or letter placed on record by the
appellant that she was allowed to continue beyond 31.03.2002.
No claim for payment of salary could be made for any period.
Even otherwise , it is difficult to believe that a person has been
working for two decades without any salary. Even the writ
petition was filed by her in the High Court in the year 2008,
claiming salary from 12.03.2001 onwards i.e., seven years later.
8. For the reasons mentioned above, we do not find any
reason to differ with concurrent findings of facts recorded by
the High Court. While concurring with the reasons recorded by
the High Court, the appeal is dismissed. There shall be no
order as to costs.
…..……………..J
(HIMA KOHLI)
…………………..J
(RAJESH BINDAL)
New Delhi
August 22, 2023.
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