Order: In this application the writ petitioner has asked for regularisation of his appointment in the post of Assistant Headmaster in the Srigram G. C. Vidyamandir, P.O. Srigram, District: Burdwan. 2. The petitioner is a highly educated person having a Master's Degree in History, a Master's Degree in English (both from Calcutta University) and a B. T. Degree from the Berhanpur Union Christian Training College (also under the Calcutta University). He was appointed as Headmaster in 1958 in the Patipukur High School. He served as such Headmaster till 1966. In 1966 he was appointed as Assistant Teacher at Sri gram G. C. Vidyamandir (referred to the School). On 27th August 1976 the petitioner was appointed as Assistant Headmaster by the then Managing Committee of the School. 3. It appears from the correspondence annexed to the writ petition that the Secretary of the School did not take any steps for obtaining the approval of, the appointment of the petitioner as Assistant Headmaster because the roll-strength of the School did not satisfy the Government Memo. No. 1332-Edn. (S)/5-P-23/66 dated 24.12.66. 4. On 12.10.1983 the D.I. of Schools (SE) wrote to the Secretary of the School asking for certain clarifications as to whether the petitioner had been working as the Assistant Headmaster since 1976 without any additional remuneration/higher scale of pay/special pay/allowance etc. for holding the higher post. The Secretary was also to furnish certain documents including the attested copy of the resolution appointing the petitioner. The letter also stated that the post if sanctioned was to be filled up through observation of the formalities as provided in the recent appointment procedure/rules. 5. On 14.9.84 the Secretary wrote to the DI of Schools (SE) stating that the petitioner had been working as Assistant Headmaster since 1976 without any additional remuneration/scale of pay/special pay/allowance although the school had benefited from his services. It was also recorded that the conditions specified in the Government Memo. dated 24.12.1966 had since been fulfilled. It was also recorded that compliance with the "recent appointment procedure" did not arise as this was not a case of a new vacancy and that the vacancy was to be filled up by staff within the sanctioned strength. 6. It was also recorded that the conditions specified in the Government Memo. dated 24.12.1966 had since been fulfilled. It was also recorded that compliance with the "recent appointment procedure" did not arise as this was not a case of a new vacancy and that the vacancy was to be filled up by staff within the sanctioned strength. 6. On 18.2.89 a Memorandum was issued sanctioning the post of Assistant Headmaster in the School within the sanctioned strength on a temporary basis for 2 years with effect from 1.3.89 or any subsequent date of actual filling up of the post on condition that the total number of students remained above 300 in Classes V o X during the period. 7. On 29.9.1989 applications were invited in the School by the Secretary for appointment to• the post of Assistant Headmaster. The petitioner applied for the post. On 4.10.89 the petitioner was again selected by the Managing Committee as Assistant Headmaster. The petitioner's appointment was sent for approval to the DI of Schools (SE) by the Secretary of the School on 2.11.89. 8. On 19.12.89 the D.I. of Schools (SE) wrote to the secretary saying that the school should obtain necessary permission from his office for appointment to the post of Assistant Headmaster as sanctioned in DSEWB's Memo. No. 492/GH dated 18.2.89 in the "usual manner". 9. It appears from paragraph 6 of the Writ petition that by his letter dated 8.1.91 the D.I. of Schools (SE) asked the Secretary of the School to resubmit the case "maintaining proper procedure". As to what constituted the proper procedure has not been specified by the State respondents cither at the hearing or by way of affidavit. 10. On 19.1.01 a notice was issued by the Secretary inviting applications from the deserving candidates amongst the existing qualified teaching staff for the post of Assistant Headmaster. This notice has been impugned in these proceedings. On, 10.1.01 the petitioner applied 'for the post of Assistant Headmaster giving his qualifications to be so appointed. The respondent no. 15 applied for the post of, Assistant Headmaster on 29.1.91. At this stage it may be noted that the respondent no. 15 and the petitioner were the only two candidates for the post of Assistant Headmaster. 11. The respondent no. 15 had joined the School as part time teacher in 1976 and was a full time teacher from 1983. The respondent no. At this stage it may be noted that the respondent no. 15 and the petitioner were the only two candidates for the post of Assistant Headmaster. 11. The respondent no. 15 had joined the School as part time teacher in 1976 and was a full time teacher from 1983. The respondent no. 15 also has a Master's Degree in Political Science as well as a P. G. B. T. Degree. Till 6.6.1991 the respondent no. 15 had not been approved as the Assistant Teacher of the School. Such approval was granted by the D.I. of Schools (S.E.) on 1.7.91 with retrospective effect from 1985. 12. In the meanwhile on 12.5.91 the Secretary issued letters to the petitioner as well as to the respondent No. 15 asking them to be present in an interview to be held on 23.5.91. This was postponed. Another interview letter was issued on 3.10.91. 13. In this background the petitioner moved this writ application on 11th December, 1991. The petitioner has challenged the order dated 19.1.91. and has asked for direction on the respondents to accord approval to the petitioner as an Assistant Headmaster of School. An order was passed on 11.12.91 giving directions for filing affidavit and also directing that if in the meantime any approval of the post of Assistant Headmaster in the School in question was made that would abide by the result of the writ petition. On 20th February, 1992 the respondent no. 15 made an application for vacating the order dated 11th December, 1991 and for a direction on the Selection Committee to complete the selection of Assistant Headmaster in the school. 14. No affidavit -in-opposition however, has been filed by the respondent no. 15. As such the application for vacating the interim injunction is treated as the respondent no. 15's affidavit-in-opposition and the affidavit of the petitioner to the respondent no. 15's application as the affidavit in reply. 15. But in spite of being served and in spite of the directions for filing of affidavits being given in the presence of counsel for the State respondents, no affidavit-in-opposition has been filed by the State respondents at all. 16. Three contentions have been called by the petitioner. The first is that he has a right to be regularised in the post of Assistant Headmaster having served in the post since 1976. 16. Three contentions have been called by the petitioner. The first is that he has a right to be regularised in the post of Assistant Headmaster having served in the post since 1976. He claims that he is entitled to such regularisation from the date on which: the post was sanctioned in 1989. It is submitted by the writ petitioner that there was no dispute that he is qualified to be appointed to the post of Assistant Headmaster. The petitioner has relied upon the decision in All Manipur Regular Posts Vacancies substitute Teachers Association vs. State of Manipur: A.I.R. 1991 S.C. 2088; Jacab M. Puthuparambil vs. Kerala Water Authority; A.I.R. 1990 S.C. 2228; Aktar Hamid Sheikh vs. District Inspector of Schools (S.E.) Nadia and ors; Cal. L.T. 1992 (1) HC 281; Bakul Rej and ors., vs. State of West Bengal; 1987 Labour Industrial cases (Lab I.C.) 62; Manik Chandra Sarkar and ors., vs. State of West Bengal & ors. Cal. L.T. 1991 (2) H.C. 45; and Smt. Pratima Sarkar vs. State of west Bengal and ors; Cal. L.T. 1991 (2) H.C. 282. 17. The second contention is that the petitioner was entitled to be confirmed in the post of Asst. Headmaster under the provisions of Rule 28(7) of the Management of Recognised Non-Government Institutions (Aided & Unaided) Rules 1969. Reliance has been placed on the Bench decision in Gouri Deb vs. Maya Sarkar & ors., 91 C.W.N. 935 in this connection. 18. The third contention is that the Respondent No. 15 was in any event not an approved teacher when he applied pursuant to the impugned notice and as such no interview letter could have been issued to him. 19. Counsel appearing on behalf of the State respondents submitted that no instructions had been received from the State respondents. It was submitted that presumably in 1989 the petitioner's appointment was not approved only because one person was in the panel. No rule, however, could be cited by the State respondents in justifying such a stand. 20. As far as the respondent no. 15 is concerned it was submitted firstly that the petitioner had participated in the Selection process by applying pursuant to the impugned notice and that such participation estopped the petitioner from challenging the impugned notice. Reliance has been placed on the decision in Om. Prakash Sukla vs. Akhilesh Kumar Sukhla and ors. 20. As far as the respondent no. 15 is concerned it was submitted firstly that the petitioner had participated in the Selection process by applying pursuant to the impugned notice and that such participation estopped the petitioner from challenging the impugned notice. Reliance has been placed on the decision in Om. Prakash Sukla vs. Akhilesh Kumar Sukhla and ors. ; A.I.R. 1986 S.C. 1043 in this connection. 21. Secondly it is submitted that the previous selections of the petitioner as Asst. Headmaster were not in accordance with the procedure prescribed by the relevant rules. 22. Thirdly, it is contended that the respondent no. 15's services as Assistant Teacher had been approved with effect from 1985. A copy of the order by which the respondent no. 15 was approved in service with effect from 1.4.85 has been annexed to the respondent no. 15’s affidavit affirmed on 12th March, 1992. 23. There has been a veritable flood of cases relating to the regularisation of employees in different services. The cases cited by the petitioner are a representative trickle of this flood. Upon a consideration of the authorities cited it appears that there are 2 broad streams of classes. In the first stream are the cases which raise the question whether the employee concerned appointed initially on the basis of any extraneous reason or not or as to whether the appointment is made by ignoring the regular procedure provided for recruitment under a pretended need. Extraneous reasons would include the appointment of an employee as a favour or to accommodate some one. This has been characterised by the Supreme Court as an abuse of power which is unpardonable. In such cases the Supreme Court has directed that the Court should be reluctant to grant any indulgence (See; Karnataka State Private College Stop=Gap lecturers Association vs. the State of Karnataka; 1992 (2) S.C.C. 29 = 1992 Lab. I.C. 575 = 1992 (1) SLR 643). The second stream relates to those employees who were genuinely appointed due to the exigency of service. In such cases the Courts have directed regularisation subject to the fulfilment of three pre-conditions, namely; (a) The existence of a substantive post against which the employee concerned has served. (See; All Manipur Regular Posts Vacancies Substitute Teacher's Association• vs. State of Manipur (supra); Aktar Hamid Sheikh vs. D.I. Schools (supra) and Bakul Rej vs. State of West Bengal (supra). In such cases the Courts have directed regularisation subject to the fulfilment of three pre-conditions, namely; (a) The existence of a substantive post against which the employee concerned has served. (See; All Manipur Regular Posts Vacancies Substitute Teacher's Association• vs. State of Manipur (supra); Aktar Hamid Sheikh vs. D.I. Schools (supra) and Bakul Rej vs. State of West Bengal (supra). (b) The employee must be otherwise qualified to be appointed to the post; (See: J. M. Puthuparambil vs. Kerala Water Authority (supra) and (c) The employee must have served continuously in the post against which regularisation is asked, for a reasonably long period. (See: Manik Chandra Sarkar vs. State of West Bengal (supra) and Smt. Pratima Sarkar vs. State of West Bengal (supra). Judicial procedent also shows that the Courts have not taken happily to the refusal on the part of the State to regularise the post of an employee who has fulfilled all these preconditions merely on some technical plea; (See: Aktar Hamid Shaikh vs. D.I. of Schools (S.E.) (supra). 24. Applying these principles to the facts of this case it must be held that the writ petitioner's case falls within the ambit of the second stream. It is nobody's case that the petitioner was appointed in 1976 on any extraneous consideration or, in other words for any reason other than a genuine necessity. 25. As far as the three preconditions noted above are concerned, it is also undisputed that a substantive post of Assistant headmaster was sanctioned, as far as the school was concerned, at least in 1989. The petitioner has both the educational qualification and the experience to be appointed as the Assistant Headmaster. Even while not approving the appointment of the petitioner in 1976 and 1989 the D. I. of Schools (S. E.) has never stated that the petitioner was not qualified to be appointed as the Assistant Headmaster. The reason given for not approving the petitioner's appointment in 1989, at the hearing at least, is not acceptable in the absence of any rule justifying rejection of the selection of the petitioner as Assistant Headmaster on the ground that there was only one person in the selected panel. 26. Even if one considers the reason given in the letter dated 19-12-89 viz. prior approval of the D. I.'s office not having been obtained for the appointment. 26. Even if one considers the reason given in the letter dated 19-12-89 viz. prior approval of the D. I.'s office not having been obtained for the appointment. I find that the D. I. of Schools (S. E.) was well aware that the School desired to appoint the petitioner as Assistant Headmaster as is apparent from the letter dated 14-9-84 written by the Secretary of School to the D. I. of School's (S. E.). In the circumstances to reject the petitioner's selection on the ground that prior approval had not been obtained would be a hyper technicality which cannot be countenanced. 27. That the third pre-condition for regularistion has also been fulfiled by the petitioner has not been disputed even by the respondent no. 15. Admittedly the petitioner has been discharging the duties of Assistant Headmaster continuously since 1976 i.e., almost 15 years. 28. In the circumstances and on the basis of the authorities cited, the petitioner's service as the Assistant Headmaster of the School is bound to be regularised as such Assistant Headmaster from the date on which the post was sanctioned in 1989. 29. In this view of the matter the impugned notice calling for applications to the post of Assistant Headmaster in 1991 cannot be sustained. 30. The question then remains whether the petitioner is estopped from challenging the impugned notice. In my view the right to be regularised in the circumstances mentioned earlier- is one which is derived from Articles 14 and 16 of the Constitution of India which ensures to every citizen the right to be treated rationally and without arbitrariness in the matter of employment (See Maneka Gandhi vs. Union of India: A.I.R. (1978) S.C. 597; Ajay Hasia vs. K. M. Sehravardi; A.I.R. (1981) S.C. 487; Bechan Singh vs. State of Punjab; A.I.R. (1982) S.C. (1325), where the Supreme Court held that Article 14 was not to be equated with the principle of classification but was primarily a guarantee against arbitrariness in State Action). The refusal to regularise persons who were otherwise eligible for such regularisation has been struck down by Courts only on the principle that such refusal was arbitrary and irrational. The right to be regularised thus partakes of the fundamental rights guaranteed under the Constitution and cannot be waived nor create an estoppel. (See Olga Tellis vs. Bombay Municipal Corporation : AIR (1986 SC 180. The right to be regularised thus partakes of the fundamental rights guaranteed under the Constitution and cannot be waived nor create an estoppel. (See Olga Tellis vs. Bombay Municipal Corporation : AIR (1986 SC 180. Seen from this point of view the respondent no. 15's contention that the petitioner was estopped from challenging the impugned notice cannot be upheld. 31. In any event, the decision relied upon by the respondent no. 15 to contend that the petitioner was not estopped namely Om prakash vs. Akhilesh Kumar (supra) does not assist the respondent no. 15. In that case rules for recruitment of inter alia Ministerial Staff to Subordinate Civil Courts had been published in 1950. In 1975 the Subordinate Offices Ministerial Staff (Direct Recruitment) Rules were promulgated. In September 1981 a competitive examination was held for selecting candidates for appointment to the vacancies in Grade III of the Ministerial Staff in the Subordinate Courts in the District of Kanpur. Akhilesh Kumar, being the respondent no. 1 in the appeal before the Supreme Court, appeared in the examination which was held in accordance with the 1950 Rules. The results of the examination were announced on 25th July, 1983. Akhilesh Kumar was not successful. Aggrieved by the result, Akhilesh Kumar filed a writ application contending that the examination could not have been held under the 1950 Rules. The High Court accepted the contention of Akhilesh Kumar and quashed the examination. On an appeal preferred by one of the successful candidates in the examination, the Supreme Court held that the 1950 Rules were operative and the examinations had been validly held in accordance therewith. The Supreme Court then observed:- "Moreover, this is a case where the petitioner in the writ petition should not have been granted any relief. He had appeared for the examination without protest. He filed the petition only after he had perhaps realised that he would not succeed in the examination." 32. The decision in Akhilesh Kumar's case is clearly distinguishable. Firstly the observation of the Supreme Court appears in the nature of an obiter dictum. Secondly, the petitioner in this case had never appeared for the interview which he was called upon to do at all. It was therefore, not a case of being wiser after the event. The petitioner could not be sure of not being selected as was the case in Akhilesh Kumar. Secondly, the petitioner in this case had never appeared for the interview which he was called upon to do at all. It was therefore, not a case of being wiser after the event. The petitioner could not be sure of not being selected as was the case in Akhilesh Kumar. Accordingly I hold that the petitioner was not barred by any principle of estoppel from challenging the action of the respondents in refusing to regularise the petitioner's services in the post of Assistant Headmaster. 33. The second contention of the respondent no. Iii has, to some extent, been covered by the discussion on the principles of regularisation. This contention is also unsound. The very concept of regularisation envisages an initial appointment otherwise than in accordance with the prescribed procedure. Moreover, the reliance by the petitioner on the memorandum dated 2-12-89 also appears to be misconceived. The petitioner was selected as Assistant Headmaster prior to the issuance of that memorandum and his name had been forwarded on 2-11-89 for approval. The 1989 Rules do not appear to be retrospective in operation. 34. Having held in favour of the petitioner on the first ground it is not necessary to consider the argument advanced on the basis of the Rule 28(7) of the Management of Recognised Non-Government Institutions (Aided and unaided) Rules, 1969. However there is one aspect of the case which needs mentioning and that is that when the impugned notice was issued and the respondent no. 15 was called for being interviewed, the respondent no. 15 was not in fact, an approved teacher. The respondent no. 15 was approved as a teacher, with retrospective effect since 1985 only by an order dated 1st July, 1991 issued by the District Inspector of Schools (S. E.) much after the call for the interview. Therefore, if one were to consider the position existing on 19-1-91, the petitioner was the only eligible candidate. The ramifications of this fact of the case are not being considered in view of the finding that the petitioner is entitled to the reliefs claimed on the principles of regularisation as already enunciated. 35. The writ application is accordingly allowed: The impugned notice dated 19-1-91 is quashed. The respondent authorities are directed to regularise the petitioner's services in the post of Assistant Headmaster and to confirm him therein with effect from 18.2.89. 35. The writ application is accordingly allowed: The impugned notice dated 19-1-91 is quashed. The respondent authorities are directed to regularise the petitioner's services in the post of Assistant Headmaster and to confirm him therein with effect from 18.2.89. Such regularisation 'and confirmation shall be made within a period of 3 weeks from the date of communication of the order to the respondents. "36. In the facts of this case there will be no order as to costs. Impugned notice quashed; application allowed; directions given.