Both these cases raise the same question of law and facts and as such they are taken up for disposal together. 2. Misc Case No.716 of 1995 has been filed by the respondentNo.2 praying for modification/alteration of the order dated 1.3.95 passed by this Court in Civil Rule No.853 of 1995. 3. Misc Case No.717 of 1995 has been filed by the same respondent praying for revocation of the same order dated 1.3.95 passed in Civil Rule No.854 of 1995. 4. Civil Rule No.853 of 1995 has been filed by the 7 petitioners claiming relief by quashing the order dated 23.12.94 Annexure 6 to the writ application. 5. Other Civil Rule has been filed by the two petitioners challenging the legality and validity of the same order dated Annexure 5 to the writ application i.e. Civil Rule No.854 of 1995. 6. The impugned order dated 23.12.94 passed by the District Elementary Education Officer, Nagaon, Assam is at Annexure 5 (Annexure 5A translated copy) to the writ application i.e. Civil Rule No.854 of 1995. That is quoted below: “Office of the District Elementary Education Officer, Nagaon, Assam. No.A-14 APR-1/94/-16171-83 Dated 23.12.94 From : Dr.Gopal Chandra Medhi, MA, Ph.D. District Elementary Education Officer, Nagaon, Assam. To : 1. Deputy Inspector of Schools, Nagaon and Hojai. 2. All Block Elementary Educatiqn Officers. Subject: Government WT Message No.PMA-198/92/Pt-I/63 dated 17.12.94 and Nagaon Deputy Commissioner's letter No.NC-9/94/41 dated 19.12.94. Sir, With reference to the above it is informed that all appointments of teachers in ME and Middle Schools have been stopped on and from 3.12.94. As such, in respect of teachers appointed after the aforesaid date, they are to be kept out of service and their salaries are not to be paid. As regards teachers who were appointed in the month of November to newly created posts and who had joined in, the month of December, such teachers are to be kept out of service and their salaries not to be paid. Moreover, those teachers who were appointed in the month of November in new posts, their salaries are no to be paid until further orders. It is requested that this order be given due priority. This has reference to the discussion dated 10.12.94. Your faithfully, Sd/- Illegible District Elementary Education Officer, Nagaon, Assam.” 7. Moreover, those teachers who were appointed in the month of November in new posts, their salaries are no to be paid until further orders. It is requested that this order be given due priority. This has reference to the discussion dated 10.12.94. Your faithfully, Sd/- Illegible District Elementary Education Officer, Nagaon, Assam.” 7. The interim order passed by this Court on 1.3.95 is quoted below : “Until further orders from this Court, Annexure 6 so far as affecting the right of the petitioner, shall stand suspended and the petitioner shall be paid their regular salary etc in accordance with law. Liberty is granted to the respondents to come up for verification, alteration and modification of this order.” 8. Thereafter, as this order was not complied with, two contempt petitions were filed being COP (C) No.210 of 1995 and COP (C) No.209 of 1995 and notice was issued on 10.5.95 on the alleged contemners. Thereafter, these applications for modification were filed on 28.6.95. 9.1 have heard Shri DP Chaliha, learned Govt Advocate for the Govt of Assam in support of the application for modification and Shri AK Phukan, learned Advocate for the writ petitioners. Shri Phukan, learned Advocate initially raises preliminary objection regarding consideration of these two applications the ground that these two applications for modification/alteration etc. cannot be heard until he has purged the contempt and in this connection Shri Phukan, learned Advocate relied on a decision reported in 1952 (2) All England Law Report 567 (Hadkinson vs. Hadkinson). The brief facts of that case are as follows: On a petition by a wife for the dissolution of her marriage, a decree nisi was granted, and it was directed that the child of the marriage should remain in the custody of his mother, but that he should not be removed out of the jurisdiction without the sanction of the Court. On the decree being made absolute, the mother re-married, and without the sanction of the Court she removed the child to Australia. On a summons by the father an order was made directing the mother to return the child within the jurisdiction. On an appeal by the mother against the order the father objected that, as she was in contempt, she was not entitled to be heard. 10. On a summons by the father an order was made directing the mother to return the child within the jurisdiction. On an appeal by the mother against the order the father objected that, as she was in contempt, she was not entitled to be heard. 10. Thereafter, Denning, J. pointed out as follows : “It was the plain and unqualified obligation of every person against, or in respect of, whom an order was made by a Court of competent jurisdiction to obey it unless and until it was discharged, and disobedience of such an order would, as a general rule, result in the person disobeying it being in contempt and punishable by committal or attachment and in an application to the Court by him not being entertained until he had purged his contempt; where an order related to a child the Court would be adamant on its due observance, for such an order was made in the interests of the welfare of the child, and the Court would not tolerate any interference with or disregard of its decisions on those matters, and least of all would permit disobedience of an order that a child should not be removed outside its jurisdiction; in the present case the mother was not entitled to prosecute or be heard in support of her appeal until she had taken the first and essential step towards purging her contempt of returning the child within the jurisdiction. Per Denning J.: The Court would only refuse to hear a party to a cause when the contempt impeded the course of justice by making it more difficult for the Court to ascertain the truth or to enforce its orders and there was no other effective means of securing his compliance. The Court might then in its discretion refuse to hear him until the impediment was removed or good reason was shown why it should not be removed.” 11. A bare perusal of this decision will show that the Court may in its discretion refuse to hear him until the impediment was removed or good reason was shown why it should not be removed. 12. A bare perusal of the case in hand will show that the instant cases are not such where the matter may not be heard till the contempt is purged. 13. 12. A bare perusal of the case in hand will show that the instant cases are not such where the matter may not be heard till the contempt is purged. 13. Let us have some looks at the facts of these cases: The petitioners were appointed to the post vide the appointment letter quoted below : “Office of the District Elementary Education Officer : Nagaon. In anticipation of the approval of Sub-divisional Advisory Board for Elementary Education, Nagaon, the following candidates are hereby appointed as Assistant Teacher and posted of the following Middle School in the scale of Pay Rs.l 185/-23957- PM plus other allowances as admissible with effect from the date of their joining in the post. The arrangement are purely temporary basis and may terminated at any time without any notice thereof. The post is originally created vide Govt. letter No.NPG-567/91/109 dated 16.11.91 and DEE, Assam order No.EPD/P/9/92/Pt-I dated Kahilipara, the 10th February, 1994. Name of the candidates Name of the school where posted 1. Md. Idrish Ali Rupahi Town Tiniali Girls ME. 2. Smti Nizubala Bora Pachim Nonoi ME. 3. Smti Jyotsna Saikia Dimuruguri ME. 4. Sri Tapan Saikia Mohkhuli ME School. The expenditure is debitable to the head of account “2202-Gen-Edn-(l)-ll-other State plan schemes--Ol-Ele-Edn-10-(c) Govt. Middle Schools for boys and Girls-1-Salaries Plan) 1994-95.” 14. All the appointment letters are under the same terms and conditions and of the same date i.e. 4.11.94 (for all the petitioners). 15. It will be seen that this appointment was subject to the approval of the Sub-divisional Advisory Board for Elementary Education, Nagaon. It is not the case of the petitioner that these appointments have been approved by the Sub-divisional Advisory Board for Elementary Education, Nagaon, as such prima facie it appears that all these appointments are void ab-initio, and not in accordance with the recruitment rules for appointment as Assistant Teacher in the Middle Schools. If the initial appointments are not according to the recruitment rules and the appointments are not legitimate appointments, the petitioners shall not get any right and the Court cannot be utilised to uphold the legality and validity of an appointment which prima facie appears to be void-ab-initio and against the recruitment rules. 16. If the initial appointments are not according to the recruitment rules and the appointments are not legitimate appointments, the petitioners shall not get any right and the Court cannot be utilised to uphold the legality and validity of an appointment which prima facie appears to be void-ab-initio and against the recruitment rules. 16. The statements made in the application for modification of the stay order is as follows: “(a) That the applicant states that the respondent No.3 by passing the order dated 23.12.94 in fact have carried out the order of the Govt. communicated vide WT Message No.PMA/198/92/Pt-I/63 dated 17.12.94. It may be pertinent to mention here that Govt. of Assam vide its letter No.EPG/567/91/91/109 dated 16.11.91 and created 5474 posts of Assistant Teacher for appointment in Middle Schools. Subsequently the aforesaid sanction have been revised/modified vide Govt. letter No.EDG.525/91/57 dated 6.3.92 and EDG.525/91/58 dated 7.3.92 by which 3775 posts have been diverted for provincialisation of 755 ME/MEM Schools with effect from 19.11.91 with five posts per school, so there was a balance of 1699 Additional posts for appointment in Middle Schools from out of original sanction of 5474 posts. . Your applicant further states that after verification of the available records of the Directorate it is found that Shri PC Konwar, the then Director of Elementary Education, Assam has already allotted 1797 posts as against the total sanction strength of 1699 posts. The number of issue of such excess posts will be more than this 1797 since no proper records of issuance of such allotment letters was maintained by the Ex-Director of Elementary Education, Assam with a view to extinguish evidence of issue of excess allotment of posts during his tenure. This has been found but since such many more allotment letters are coming out from various district without official records of issue in the Directorate. This has already resulted and excess allotment of 98 posts as per records available in the office file. It is, therefore, obvious that no posts for further allotment, appointment was available. It is also alleged that such allotment orders were issued with forged signature of the then Director of Elementary Education, Assam. This has already resulted and excess allotment of 98 posts as per records available in the office file. It is, therefore, obvious that no posts for further allotment, appointment was available. It is also alleged that such allotment orders were issued with forged signature of the then Director of Elementary Education, Assam. (b) That your applicant states that all the petitioners were appointed in the month of November, 1994 (that is after the retirement of the then Director of Elementary Education, Assam on 31.10.94), on the basis of allotment orders issued under the signature of Sri PC Konwar, the then Director of Elementary Education, Assam. The allotment letter i.e.No.EPD/P/35/92/27 dated 18.6.92 appear to have been issued in June, 1992 and appointment has been made in November, 1994 that too without verification of genuineness of the said allotments as well as without approval from the Sub-Divisional Advisory Board for Elementary Education, Nagaon as required in the Rules. (c) That the applicant states that the petitioners are appointed in violation of the Rules prescribed. So as soon as the information of such irregular appointments brought to the notice of the Government, there was no other alternative but to cancel such appointments made by the District Elementary Education Officer, Nagaon. The applicant further states that the Department cannot pay salary against any irregular appointment in accordance with law. (d) That the applicant states that the petitioners had already admitted that they were appointed in November, 94 and reported their joining in December, 94 that to on the basis of allotment of posts under the signature of Sri PC Konwar, the Ex-Director of Elementary Education, Assam, who was retired on 31.10.94. Further all such appointments were made without any approval from the Sub-divisional Advisory Board for Elementary Education, Nagaon as required under rules. This shows that District Elementary Education Officer, Nagaon had never followed the statutory provisions made under Assam Elementary Education (Provincialisation), Rules, 1977 (as amended), and issued all such appointments by adopting pick and choose method. The applicant states that the order dated 23.12.94 is not illegal, arbitrary as because no right has accrued to the petitioners from their illegal appointment. As the petitioners have no legal right the order dated 23.12.94 can be made applicable in respect of the petitioners. The applicant states that the order dated 23.12.94 is not illegal, arbitrary as because no right has accrued to the petitioners from their illegal appointment. As the petitioners have no legal right the order dated 23.12.94 can be made applicable in respect of the petitioners. (e) That the applicant states that all the appointments made in different district of Assam including Nagaon District without the knowledge of the higher authority and as such Govt had to take decision on receipt of information about such irregularities in addition to general order of cancellation issued vide WT Message No. PMA 198/92/Pt-I/63 dated 17.12.94. That with further reference to the paragraphs, the dependent states that all the appointments made on the basis of the so-called allotment letters issued by the then Director mush excess of the sanctioned posts being illegal, none of the teachers have been paid their salaries by the order dated 23.12.94. Only enquiries are being made to verify upto what extent these appointments are irregular and illegal and for that reason their salaries have been stopped. It is denied that they are existing teachers. The petitioners were not selected at any stage for appointment in the school. Since the initial appointment of the petitioners was not according to the Rules, the actions on the part of the respondents in withholding the salaries of the petitioners is not arbitrary, unreasonable and discriminatory.” 17. The allegations of fraud are there in making the appointments by the officer ie Shri Gopal Chandra Medhi, District Elementary Education Officer, Nagaon. Shri DP Chaliha, learned Govt Advocate submits at the Bar that he has instructed to the authority concerned to take appropriate action as against this officer for making irregular and illegal appointments. That from the materials I find that the appointments of the petitioners are irregular and not legitimate and not in accordance with the recruitment rules, and accordingly I am of the opinion that the Court cannot protect such irregular and illegal appointments and as such, the interim order passed earlier on 1.3.95 shall stand vacated. That from the materials I find that the appointments of the petitioners are irregular and not legitimate and not in accordance with the recruitment rules, and accordingly I am of the opinion that the Court cannot protect such irregular and illegal appointments and as such, the interim order passed earlier on 1.3.95 shall stand vacated. But before I part with the records, I direct the authority, specifically Director of Elementary Education, Assam, to do as follows : (i) Appropriate action against the officer ie Shri GC Medhi, District Elementary Education Officer, Nagaon shall be taken by the authority within a period of 2 (two) months from today as assured by Shri DP Chaliha, learned Govt Advocate inasmuch as it was the illegal conduct of this officer which placed these petitioners in such a pitiable condition. (ii) The inquiry stated to be made in paragraph 7 shall be completed by the authority expeditiously and preferably within a period of two months and if it is found that the appointments made to the petitioners are not illegal, the petitioners shall be allowed to continue in their services and necessary salary shall be paid to them. (iv) This is a hard case and I am conscious that by vacating the interim order, I am placing these petitioners in a really hard and difficult situation but I am constrained to observe that a writ Court is not a Court of charity it must act within the bounds of law and this Court cannot issue a Mandamus directing the authority to enforce some illegal orders. (iv) Accordingly, stay orders passed earlier stand vacated. 18. This dispose of the misc applications.