The State Cannot Extract Services Without Pay; De Facto Service Merit Salary On Principle Of Quantum Meruit.

In brief

The question

1. Whether the selection and appointment of the petitioner in 1999/2001 were valid based on the official records and select lists.

The court held

The Court allowed the petition, holding that the petitioner's appointment was legal and her right to salary is constitutionally protected.

It also directed

The Court issued a mandamus directing the respondent authorities to regularize the petitioner’s service effective from her original date of appointment and to release all arrear salaries and consequential benefits within three months.

01Facts

The petitioner was appointed as a Stipendiary Teacher at No. 499 Duhalia L.P. School on 20.11.1999 following a selection process by the Sub-Divisional Level Selection Board

p. 3

On 28.03.2001, she was appointed against a permanent vacant post at No. 394 Nilmoni L.P. School and has been serving there since

p. 3

Despite her service, she was not paid a salary. In previous litigation (WP(C) No. 5094/2013), the Court directed the authorities to verify her inclusion in the select list dated 27.10.1999

p. 6

The respondents contended that her name did not appear in the "valid" select list and that she was subsequently accommodated as a "Tutor" under the Assam Education (Provincialisation) Act, 2017, effective only from 01.11.2020

pp. 5-7

The petitioner produced a select list showing her name at Serial No. 35 and argued her appointment was valid under the 1974 Act and 1977 Rules

pp. 8-9

02Issues

i.1. Whether the selection and appointment of the petitioner in 1999/2001 were valid based on the official records and select lists.

pp. 10-12 / para. 11-12

ii.2. Whether the State can extract services from an employee without the payment of salary and consequential benefits.

p. 14 / para. 15

03Law Applied

Assam Elementary Education (Provincialisation) Act, 1974 and the Assam Elementary Education (Provincialisation) Rules, 1977.

p. 13

Constitutional principles under Articles 300A and 21, establishing that the right to salary is a human right, as held in Vidya Devi v. State of Himachal Pradesh.

p. 14

Doctrine of quantum meruit and the principle that the State cannot extract work without payment, as established in Sukhdeo Pandey v. Union of India and Man Singh v. State of Uttar Pradesh.

pp. 15-16

04Reasoning

The Court found that the petitioner’s name appeared at Serial No. 35 of the select list dated 27.10.1999, which the authorities had previously admitted was a valid list.

p. 11

The respondents failed to produce the original "valid" file to disprove the petitioner's documents, leading the Court to reject their claim of forgery.

p. 13

The Court noted that the petitioner's name was absent from the list of illegal/irregular appointees for the period 1991–2001, further validating her status.

p. 12

The Court reasoned that at the time of her appointment, "Matriculation" was the requisite qualification under the 1977 Rules, and the subsequent requirement for a D.El.Ed. (introduced in 2005) could not be applied retroactively to deny her status as a regular teacher or to demote her to a "Tutor".

pp. 13-14

Applying the principle of quantum meruit, the Court determined that having extracted her services since 1999, the State is legally and morally bound to pay her arrears and regularize her service.

pp. 15-16