Smt. Dulu Deka vs The State Of Assam

2023INSC752 NON-REPORTABLE

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)

JUDGMENT

Rajesh Bindal, J.

1. The writ petition1 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

dismissed2 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 appeal3. 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. Page 2 of 7 CA NO. 4455 OF 2012

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

Constituency was invalid and in violation of the Rules. 4 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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