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GAUHATI HIGH COURT
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA,HONOURABLE THE CHIEF JUSTICE
THE MANAGING COMMITTEE OF THE MOINUL HAQUE CHOUDHURY HIGHER SECONDARY SCHOOL – Appellant
Versus
ARAMUL HAQUE CHOUDHURY AND 3 ORS – Respondent
WA/175/2018
An appointment made de hors the law is void and cannot be regularized.
Headnote:
Fact of the Case:
The Managing Committee of Moinul Haque Choudhury Higher Secondary School challenged the order of the learned Single Judge dated 05.04.2018 passed in W.P.(C) No. 3208/2013. The writ petition was filed by a subject teacher in Moinul Haque Choudhury Higher Secondary School who was appointed by the Managing Committee in the year 1990 and had thereafter prayed for regularization of his service, a claim which was rejected by the State Government vide order dated 21.10.2005.
Finding of the Court:
The Court found that the appointment of the writ petitioner/respondent No. 1 was made de hors the law. It was made by the Managing Committee on a non-existent post and in fact the Managing Committee had no authority to make such an appointment and, therefore, since the appointment itself was bad and was made against a non-existent post, no order for regularization could have been made.
Issues: Whether the appointment of the writ petitioner/respondent No. 1 was made de hors the law.
Ratio Decidendi: The Court held that the appointment of the writ petitioner/respondent No. 1 was made de hors the law. It was made by the Managing Committee on a non-existent post and in fact the Managing Committee had no authority to make such an appointment and, therefore, since the appointment itself was bad and was made against a non-existent post, no order for regularization could have been made.
Final Decision: The Court dismissed the writ appeal.
ORDER
06.01.2022 The matter is taken up through video conferencing.
Heard Mr. A.M. Barbhuiya, learned counsel for the appellant.
This writ appeal has been filed by the Managing Committee of Moinul Haque Choudhury Higher Secondary School challenging the order of the learned Single Judge dated 05.04.2018 passed in W.P.(C) No. 3208/2013.
The writ petition was filed by the private respondent No. 1 who was a subject teacher in Moinul Haque Choudhury Higher Secondary School which is run by the Managing Committee and his claim was for regularization as a teacher and for payment of salary. His case was that he was appointed by the Managing Committee in the year 1990 and had thereafter prayed for regularization of his service, a claim which was rejected by the State Government vide order dated 21.10.2005. The private respondent No.1 had approached this Court earlier also by filing WP(C) No. 5184/2006 wherein he had challenged the order dated 21.10.2005 and had prayed that effective orders be passed for payment of his salary.
The learned Single Judge vide order dated 03.05.2011 passed in WP(C) No.
5184/2006, after hearing all the concerned parties, came to the conclusion that appointment of the writ petitioner/respondent No. 1 was made de hors the law. It was made by the Managing Committee on a non-existent post and in fact the Managing Committee had no authority to make such an appointment and, therefore, since the appointment itself was bad and was made against a non- existent post, no order for regularization could have been made. Accordingly, his claim for regularization of service was rejected. As regarding payment of salary, it was stated in Paragraph No. 13 as follows:-
“13. But since it was the managing committee which appointed the petitioner against a non-existent post, if any salary claim is to be entertained, the obligation to make such salary payment would lie on the appointing authority i.e. the managing committee and not against the Government and the Public ex-chequer. Accordingly, while rejecting he petitioner’s claim for salary from the Public ex-chequer, he is permitted to make a claim for salary payment from the concerned managing committee which gave him appointment to the non-existent post.”.
The Managing Committee has now filed the present appeal stating that it has no money and it cannot pay the salary. We, however, fail to understand as to how an interference can be made with the order of the learned Single Judge. The admitted position is that it was the Managing Committee which had appointed the private respondent No. 1 in violation of law and therefore, if there is any claim regarding salary, it has to be paid by the Managing Committee and none else.
Therefore, we find no scope for interference with the order of the learned Single Judge. The writ appeal is dismissed.
JUDGE CHIEF JUSTICE
