WP(C) 521/2009 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA . Heard Mr. M. Phukan, learned counsel for the petitioner as well as Mr. U .K. Goswami, learned Standing Counsel, Education. This writ petition has been filed praying for a direction to the respond ents to release pay and allowances to the petitioner stated to be payable from M arch 2001. According to the petitioner, he was appointed as Assistant Teacher of the particular M.V. School by the District Elementary Education Officer, Darr ang. Such appointment was made by Annexure-B order dated 12.3.2001. It is the st and of the petitioner that he has been serving in the school since the date of appointment, but without any salary. The respondents have filed their counter affidavit. The stand in the af fidavit is that the then District Elementary Education Officer had issued the An nexure-B order dated 12.3.2001 illegally, without the approval of the higher aut hority. As per the said affidavit, the adjustment of the petitioner was against the post of Headmaster and thus, could not have been so done by a newly recruit ed teacher. The further stand in the affidavit is that there is no record in the off ice of the District Elementary Education Officer to show that the petitioner wa s validly appointed and that the appointment done by way of the aforesaid order dated 12.3.2001 was at the time when the ban on appointment was already imposed . By referring to Annexure-R/1 letter dated 22.1.2004 issued by the Secretary to the Government of Assam in the Education Department to the Director of Elementa ry Education, Assam, it is contended that the appointments made during the perio d from 8.3.2001 to 31.3.2001 by the incumbent District Elementary Education Offi cer, who had issued the Annexure-B order showing the appointment of the petition er, has already been cancelled. On being asked, as to whether the petitioner is in possession of any other appointment order other than the order Annexure-B, M r. M. Phukan, learned counsel for the petitioner submits that the Annexure-B is the order of appointment of the petitioner. For a ready reference, the said ord er is quoted below :- O R D E R Shri Dimbeswar Baishya, asstt. teacher of Kamala Kuwari M.V. School who was appo inted against the post created under Centrally Sponsored Schemes Head & attached in the Office of the undersigned is hereby adjusted to the Non-Plan post of Shr i Tarini Barua retired teacher of Kamala Kuwari M.V. School with effect from 1.3 .2001. The O.B.B. vacant post is lying at Kamala Kuwari M.V. School. On perusal of the aforesaid order dated 12.3.2001, what has transpired is that t he order was passed showing appointment of the petitioner earlier and his attach ment in the office of the District Elementary Education Officer, Darrang Mangald oi but in fact, there is no such order. The Annexure-B order was issued showing appointment of the petitioner earlier. Thus, a colour was sought to be given th at the petitioner was earlier appointed as teacher and adjusted against the part icular post in the particular school. Apart from the above, as has been contended in the counter affidavit, there is n o record to show the appointment of petitioner. The petitioner could not have b een appointed at the time when there was ban on appointment. Thus, everything w as done by the then District Elementary Education Officer illegally. If the pet itioner was appointed illegally and his service was already terminated by the af oresaid order (Annexure-R/1 dated 22.1.2004), he cannot take salary for the peri od of appointment based on illegality. In the writ petition also, it is not the case of the petitioner that he was appo inted pursuant to any advertisement and regular process of selection. The Distr ict Elementary Education Officer could not have made appointment as per his whim s. As noted above. Annexure-B itself speaks that the attachment of the petition er in the particular office was illegal. In this connection, I gainfully refer to the decision of Of the Apex Court in (2007) 5 SCC 65 (State of Manipur & Ors. v. Y. Token Singh & Ors), in which the Apex Court has also stated that in case of illegal appointm ent, the State cannot be burdened with payment of salary. In view of the above, no relief can be granted to the petitioner and accordingly , the writ petition is dismissed.