Read Time: 07 minutes

Synopsis

The Supreme Court has held that a person does not have any legal right to continue on service, once the appointment has been declared as illegal and void ab initio.

"The appellant had no legal right to continue in service, especially when there is no order or letter placed on record by her that she was allowed to continue. 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," the bench added.

A bench of Justices Hima Kohli and Rajesh Bindal dismissed an appeal filed by Dulu Deka against the concurrent findings of the Gauhati High Court's division and single bench decisions, rejecting her plea for release of salary from March 12, 2001 onwards.

The bench found no reason to differ with the views of the High Court, stating that it was difficult to believe that a person has been working for two decades without any salary. 

The appellant claimed she has been rendering service as an Assistant Teacher in Bengabari M E School and had not been paid any salary. 

She said she was appointed as Assistant Teacher in Bengabari school vide an order issued by the District Elementary Education Officer, Mangaldoi, Darrang, on a fixed salary of Rs 2,000 per month under the Central Government’s sponsored Scheme, namely, Operation Black Board Scheme.

Her counsel said she has been working in the said school since then, however, she has not been paid any salary. 

"Appellant cannot be made to work without payment of salary, which amounts to Begar, not permissible in law," the counsel said.

The counsel for Assam, on the contrary, claimed the appointment of the appellant itself was illegal. In 2001, the Director of Elementary Education, Assam conducted an enquiry into the matter and by his order of October 18, 2001, declared all the appointment (Total 509 teachers) including the appellant’s appointment, 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. 

This order was never challenged by the appellant, he said. Further, the appointment of the appellant beyond the Udalguri Legislative Assembly Constituency was invalid and in violation of the Rules.

After going through the facts of the case, the bench said it does not find any error in the order passed by the single judge and confirmed by the division bench.

The bench noted the appointment letter issued to the appellant by the District Elementary Education Officer, Darrang, Mangaldoi, showed that she was appointed as an Assistant Teacher in Bengabari M E School, which falls in Mangaldoi, a sub-division of Darrang District, and not 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 it. In fact all the appointments were declared as illegal and void ab initio, the state counsel said.

"Once the appointment of the appellant had been declared illegal and void ab initio, and was cancelled by the Director of Elementary Education, Assam, the appellant could not legally continue in service thereafter, unless that cancellation order was set aside," the bench said. 

It also pointed out even the writ petition was filed by her in the High Court in the year 2008, claiming salary from March 12, 2001 onwards i.e., seven years later.

Case Title: Smt Dulu Deka Vs State of Assam & Ors.

 

Click here to read judgment