Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 1042 (GAU)

MINA DEVI v. STATE OF ASSAM

2018-07-17

SUMAN SHYAM

body2018
JUDGMENT/ORDER : Suman Shyam, J. Heard Mr. N. Islam, learned counsel for the writ petitioner. I have also heard Mr. N. Sarma, learned Standing Counsel, Elementary Education Department, Assam, appearing for respondent Nos.1 to 4. 2. The writ petitioner in this case was appointed as stipendiary teacher against a vacancy in the Aziz Baruah L. P. School arising due to retirement of Smti. Dimbeswari Changmai and she was posted at the Mohaijan L. P. School vide order dated 08.03.2001 passed by the Deputy Inspector of Schools (In-charge), North Lakhimpur. The case of the writ petitioner is that pursuant to the order of appointment, she had joined the said post of Assistant Teacher and has been continuously rendering her services as a teacher. However, the respondents have failed to pay the salary and/or even the monthly stipend of Rs. 1800/- mentioned in the order of appointment dated 08.03.2001 for no valid reason. This writ petition has, therefore, been filed with a prayer for issuance of a direction upon the respondents to pay the salary and allowances to the petitioner as per the conditions of appointment. 3. The respondent No.2 has filed counter affidavit in this case, inter alia, stating that the post against which the writ petitioner had been shown to have been appointed was filled up by appointing another person, viz., Smti Dipali Gogoi who was appointed as an Assistant Teacher of Kadam Balijan L.P. School and transferred to Aziz Baruah L.P. School vice Dimbeswari Changmai retired. Since the post in question was filled up by appointing Smti Dipali Gogoi prior to the appointment of the petitioner in Aziz Baruah L. P. School, hence, the appointment of the writ petitioner was against a non-existent post as a result of which no salary could be paid to her. 4. The learned counsel for the petitioner has not been able to dispute the stand taken in the affidavit filed by the respondent No.2 but submits that it is not the fault of his client that the post in question was already filled up by appointing another person. Be that as it may, the law is fairly settled that an appointment made against a nonexistent post would be illegal. In that view of the matter, this Court cannot issue a writ of mandamus directing the respondents to pay the salary to the petitioner even if she has rendered services against a non-existent post. Be that as it may, the law is fairly settled that an appointment made against a nonexistent post would be illegal. In that view of the matter, this Court cannot issue a writ of mandamus directing the respondents to pay the salary to the petitioner even if she has rendered services against a non-existent post. Under the circumstances, the prayer made in the writ petition cannot be entertained by this Court. 5. Since Smti. Dipali Gogoi is not a party to the present proceeding, the question of validity of her appointment cannot be gone into in the present proceeding. It is, therefore, provided that notwithstanding the observations made herein above, it would be open for the petitioner to assail the appointment of Smti Dipali gogoi in the said post, if so advised, taking such plea as may be maintainable in the eye of law. With the above observation, this writ petition stands disposed of.