IMPORTANT POINT
The right to salary is contingent upon a valid appointment made in accordance with statutory provisions.

JUDGMENT :

(N. Unni Krishnan Nair, J)

Heard Dr. R. Sarma, learned counsel appearing for the appellant. Also heard Mr. N. J. Khataniar, learned Standing Counsel for the Elementary Education Department appearing for the respondent nos. 1, 2, 3 & 5 and Mr. B. Gogoi, learned Standing Counsel for the Finance Department appearing for the respondent no. 4.

2. The present Intra Court Appeal has been instituted, assailing the Judgment & Order dated 28.04.2023, passed by the learned Single Judge in WP(C)6427/2017. The appellant herein, as petitioner, had instituted WP(C)6427/2017, praying for a direction upon the respondent authorities for release of her salaries which were in arrears since the date of her initial appointment i.e. w.e.f. 06.12.1999.

3. The appellant, herein, was appointed vide the order dated 06.12.1999 by the District Elementary Education Officer, Barpeta, as an Assistant Teacher and was posted at Kaurpara M. E. School. The appellant continued to serve in the said school; however, her salaries were not released. The petitioner had also highlighted that the Government in the Education had, vide a communication dated 19.12.2000, required the District Elementary Education, Barpeta to release the salaries of the appellant and other persons mentioned in the list annexed to the said communication. However, the salaries of the appellant were not released on account of the fact that in the said list, the name of the school wherein the appellant was appointed was wrongly reflected as “Adarsa Vidyapith M.E.”. The Government in the Elementary Education Department had constituted Screening Committees, for the purpose of screening the teachers, whose appointments were found to be either illegal and/or irregular. The appellant, in the year 2014, was required to appear before a Screening Committee for verification of her records. The Elementary Education Department, in terms of the recommendation of the Screening Committees proceeded to appoint teachers so recommended as “Tutors”, however, the name of the petitioner not having been recommended for such appointment by the constituted Screening Committee, the appellant was not extended with an appointment as “Tutor”. The appellant although was not released her salaries w.e.f. the date of her initial appointment i.e. w.e.f. 06.12.1999, she had not instituted any proceedings claiming her salaries, till instituting WP(C) No. 6427/2017.

4. The learned Single Judge upon examining the matter in details had vide order dated 28.04.2023, proceeded to draw the following conclusions:-

“19. The question which arises for consideration on the basis of the materials on record and the relief sought for in the writ petition is as to whether the petitioner is entitled to the salary for the period from the date of her appointment i.e. 6/12/1999 till her alleged date of retirement in the year 2021. It may not be out of place to take note that the petitioner though as submitted by the counsel for the petitioner that the petitioner retired in the year 2021 but has not been issued any superannuation notice. Mr. R. Sarma, the learned counsel however submitted that the petitioner was verbally informed that she would retire in the year 2021 and it is on account of the pendency of the writ petition, no superannuation notice was issued.

20. Be that as it may, it is relevant to take note of that this Court in exercise of the power under Article 226 of the Constitution would be in a position to issue a writ in the nature of mandamus for the purpose of directing the respondents to release the salary of the petitioner, provided that it is found that the petitioner was entitled to salary for the period she claims to be rendering service in connection with the affairs of the respondent Department. It is no longer res integra that the right to salary would depend upon an appointment being given to the person in accordance with law. Therefore, it is only in respect to a valid legal appointment, the right to salary accrues and a