The appointment against a non-existent post was without jurisdiction, and the managing committee was obligated to make payment of salary and allowances to the petitioner.

1. Heard Mr. I.H. Saikia, learned Counsel for the petitioner and Mr. J. Abedin, learned Standing Counsel for the Elementary Education Department. None appears for the respondent, Managing Committee of the Moinul Haque Choudhury Higher Secondary School.

2. As per the affidavit in opposition by the managing committee found on record, the petitioner who has the qualification of Masters Degree in Political Science was appointed as assistant teacher on honorary basis in the Moinul Haque Choudhury Higher Secondary School against the post of additional teacher of the additional section of class 8th and 10th. It is stated that the said post against which the petitioner was appointed was not a sanctioned post and secondly the petitioner was appointed by the managing committee of the concerned school although the school was provincilaised at the relevant point of time.

3. Mr. I. H. Saikia, learned Counsel for the petitioner refers to a communication dated 18.01.1996 from the Commissioner and Secretary to the Govt. of Assam in the Education Department addressed to the Director of Secondary Education, wherein an alternative procedure for appointment was prescribed. The consequence of such alternative procedure prescribed was that till the existence of the said communication the procedure prescribed under the relevant rules i.e., the Assam Secondary Education (Provincialisation of Service) Rules, 1982 was kept in abeyance or was deemed to have been not in force. The substituted procedure provided by the communication of 18.01.1996 was that the selection of the candidate for filling up the posts of assistant teachers would now be conducted by a selection committee mainly comprising of the managing committee of the school.

4. Accordingly, it is the submission of Mr. I.H. Saikia that the appointment of the petitioner was made by following the due procedure as was in force at the relevant point of time. It is also stated that the selection was made pursuant to an advertisement that was issued by following aforementioned substituted procedure.

5. But Mr. Abedin learned Standing Counsel, Education Department has brought to the notice of this court that in this writ petition the petitioner prays for payment of his salary and allowances from the date of initial appointment in the year 1996. It is also brought to the notice of the court that the petitioner had preferred an earlier writ petition being WP (C) 5773/2000 for the same purpose which was disposed of by the judgment and order dated 09.02.2004 requiring the petitioner to file a representation before the Commissioner and Secretary to the Govt. of Assam, in the Education Department. When the representation of the petitioner was rejected, the petitioner again approached this court by way of WP (C) 5184/2006, which was given its final consideration by the judgment and order dated 03.05.2011.

6. In the said judgment and order of 03.05.2011 this court provided and a concluded as such:

9. Assuming for the sake of analysis that the managing committees on the strength of Notification dated 18.01.1996 were empowered to make the appointment to posts in provincialised Higher Secondary Schools, the power so granted to the managing committee cannot be exercised, for making appointment when posts are not in existence. When managing committee is empowered to make appointment for a provincialised school, unless vacant posts are available, exercise of power of appointment by the managing committee has to be declared as without jurisdiction and without sanction of the Notification dated 18.01.1996 and accordingly, I see no enforceable right in favour of the petitioner to seek regularization of his service.

10. That apart, the petitioner seeks intervention of the Court by invoking "compassion" as the petitioner was made to serve on honorary basis without any remuneration and salary. But in a Court, "compassion" cannot get precedence over "Law", and accordingly, I am of the view that legality of the