AKHTAR MIRZA Vs. COMMISSIONER OF WAKFS

JUDGEMENT

(1.) THE appellant held. the post of a lower division clerk in 'the office of the Commissioner of Wakfs; (respondent No. 1 ). At a meeting of the Board of Wakfs held on April 4, 1962, a resolution was passed creating the post of a Record Keeper, carrying the salary of an upper division clerk, on the scale of Rs. 130-5-180/ -. The board also authorised the respondent no; 1 to appoint the appellant to the newly created post. On March 11, 1963 the appellant asked for permission to draw the pay of the Record Keeper on the scale of an upper division clerk. The Commissioner of Wakfs made a note on the appellant's application as follows :

(2.) ON September 16, 1963 the deputy Commissioner of Wakfs (respondent No. 3) wrote to the Judicial department of the Government of West bengal that an appointment had been made to the post of Record Keeper with effect from June 1, 1962, in anticipation of Government's sanction. The state Government was requested to grant such sanction.

(3.) BY a letter dated December 11, 1964, the Joint Secretary to the Government of West Bengal, judicial Department, informed the respondent No. 1, that the creation of the post of Record keeper, and the appointment of the appellant to that post were illegal, and that the Board had no authority to create such a post, as the Government never sanctioned the creation of the post. It was also stated that unless previous sanction to the creation of the post was accorded, appointment to the post created by the Board would be illegal as that would be contrary to the provisions of section 23 of the Bengal wakf Act, 1934. The letter further directed the respondent No. 1 to revert the appellant to his original post of lower division clerk, and to recover from his salary as a lower division clerk, overpayments made to him as an upper division clerk, month by month, until overpayment made was fully adjusted. This letter was followed by a memorandum from the respondent No. 1 to the appellant dated January 12, 1965 in which it was stated that the appellant was reverted to his original post of a lower division assistant in accordance with the directions of the Government. It was also stated that payments made to him as an upper division clerk should be recovered from his pay as lower division clerk, until overpayments were adjusted. Aggrieved by this order of the respondent No. 1, the appellant challenged the order of the respondent No. 1, communicated to him by the memorandum of january 12, 1965, and obtained a rule nisi. This rule was discharged by a judgment and order dated December 4, 1969. This appeal is directed against this order.