Once Appointment Is Declared Illegal & Void Ab Initio, One Cannot Legally Continue In Service & Claim Salary: Supreme Court

In a case pertaining to an Assistant teacher claiming the release of her unpaid salary from 2001 onwards, the Supreme Court recently held that once the appointment has been declared illegal and void ab initio by the Director of elementary education in Assam in 2001, continuing in service becomes untenable in the absence of challenge to the cancellation order.

The Court held that the failure to contest the cancellation order bars the appellant from claiming a legal right to continue in service and consequent salary claims.

The court observed “Once the appointment of the appellant had been declared illegal and void ab initio, and was canceled by the Director of Elementary Education, Assam vide order dated 18.10.2001, the appellant could not legally continue in service thereafter unless that cancellation order was set aside. It has been noticed by the High Court that the order dated 18.10.2001 was never challenged by the appellant. Thus, the appellant had no legal right to continue in service, especially when there was no order or letter placed on record by the appellant that she was allowed to continue beyond 31.03.2002. No claim for payment of salary could be made for any period.”

The Supreme Court bench comprising Justices Hima Kohli and Justice Rajesh Bindal was hearing an appeal against a judgment of the Gauhati High Court which dismissed the the claim of appellant for release of unpaid salary from 2001 onwards as an Assistant teacher in Assam.

The Supreme Court expressed skepticism about the plausibility of an individual working for an extended period, nearly two decades, without receiving any salary.

It observed “Even otherwise, it is difficult to believe that a person has been working for two decades without any salary. Even the writ petition was filed by her in the High Court in the year 2008, claiming salary from 12.03.2001 onwards i.e., seven years later.”

The Court refused to interfere in the concurrent finding of fact by HC and dismissed the appeal.

In this case, the appellant claimed that she was appointed as an Assistant Teacher at Bengabari M.E. School, under the purported vacancies in Udalguri Legislative Assembly Constituency.

The Sub-Divisional Selection Board, in a meeting held on 12.03.2001, was believed to have appointed her, based on an advertisement released by the competent authority on 28.12.1996. This advertisement was aimed at filling regular positions of Assistant Teachers across the region.

However, the court noted that no appointment letter was issued to the appellant as per the same. Instead, an appointment letter dated 12.03.2001, issued by the District Elementary Education Officer, Darrang, Mangaldoi, stated her appointment as an Assistant Teacher at Bengabari M.E. School. This institution falls under Mangaldoi, a sub-division of Darrang District, not within the Udalguri Legislative Assembly Constituency as initially claimed.

The court observed, “It is nowhere stated in the appellant’s appointment letter that the said appointment was in pursuance of any advertisement issued or the candidates had undergone any selection process for the same”.

The Court found that in fact, the Director of Elementary Education through an order dated 18.10.2001 declared a series of appointments, including the appellant's, made by the District Elementary Education Officer, Darrang, Mangaldoi as illegal and void as all such

appointments were made against non-existent posts.

Case title: Smt Dulu Deka v. State of Assam

Citation: 2023 LiveLaw (SC) 691

22nd August, 2023

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