IMPORTANT POINT
Salary claims in public service are contingent upon the legality of the appointment; illegal appointments do not confer entitlement to salary.

JUDGMENT :

N. Unni Krishnan Nair, J.

Heard Mr. R.P. Kakoti, learned senior counsel, assisted by Mr. S. Sutradhar, learned counsel, appearing on behalf of the appellant. Also heard Mr. Nayanjyoti Khataniar, learned standing counsel, Elementary Education Department, Government of Assam, appearing on behalf of all the respondents.

2. The present appeal has been so preferred by the appellant, herein, presenting a challenge to the order, dated 17.07.2018, passed by the learned single Judge in WP(C)5492/2012, rejecting the claim of the petitioner so made therein.

3. The aforesaid writ petition was so instituted by the present appellant as petitioner, praying for a direction upon the respondent authorities for releasing her arrear salary from the date of her initial appointment as a stipendary teacher in Mohaijan Lower Primary School, North Lakhimpur.

4. The appellant as petitioner in the said writ petition being WP(C)5492/2012, had contended that she was so selected by the Sub-Divisional Advisory Board for Elementary Education, North Lakhimpur, and her name was placed at Serial No. 15 of the select list so prepared. The appellant not being issued with a formal order of appointment, she had approached this Court along with similarly situated candidates by way of instituting a writ petition being Civil Rule No. 283/1995. The said writ petition was disposed of by this Court, vide an order, dated 14.02.1996, with a direction to the District Elementary Education Officer (DEEO), North Lakhimpur, Assam, to make an inquiry with regard to the averments made by the petitioners in the said writ petition and if the same are found to be correct; to consider the cases of the petitioners, therein, in a just and fair manner for appointment as Assistant Teachers.

5. The appellant has further contended that in terms of the directions passed by this Court; the Deputy Inspector of Schools, North Lakhimpur, vide order, dated 08.03.2001, proceeded to appoint her as a stipendary teacher against a retirement vacancy of one Smt. Dimbeswari Changmai of Aziz Baruah Lower Primary School and posted her in such capacity at Mohaijan Lower Primary School. The said order of appointment of the appellant, authorized to her, a stipend of Rs.1,800/- p.m. with effect from the date of her joining. The appellant had joined her service on 13.03.2001.

6. It is seen that vide an order, dated 19.07.2001, the services of the appellant along with other similarly situated teachers, came to be so cancelled. However, the said order of cancellation in respect of the appellant and another stipendary teacher was reviewed and vide order, dated 08.08.2001, they were held to be entitled to their monthly salary as usual. The appellant has further contended that in terms of her initial order of appointment, she continued to render her service in Mohaijan Lower Primary School.

7. The salary of the appellant not being released since the date of her initial appointment; the appellant had approached this Court by way of instituting a writ petition being WP(c)1322/2002, praying for release of her salary. This Court, vide order, dated, 04.03.2002, was pleased to dispose of the said writ petition, with a direction to the Director, Elementary Education Department, Assam, to examine the matter and to release the salary of the appellant, herein, if she was found eligible for the same. However, the salary of the appellant not being released; she had approached this Court again by way of instituting writ petition being WP(c)5492/2012, with the prayers as noticed hereinabove. The learned single Judge on consideration of the matter and by holding that the initial appointment of the appellant being so effected against a non-existent post; her such appointment would be deemed to be an illegal one and accordingly, she was held to be not entitled to any salary. This Court, further in the facts so involved; proceeded to hold that the Court cannot issue a writ of mandamus, directing the respondents to pay the salary