Headmistress, Dubrajpur Girls' High School v. Pradip Kumar Mitra — 1993 DIGILAW 270 (CAL)

JUDGMENT BHAGABATI PRASAD BANERJEE, J. 1. This appeal under Clause 15 of the Letters Patent is against the judgment and order dated 18th January, 1991 passed by K.M. Yusuf, J. in C.O. No. 9933 of 1990. The writ petition was filed by the respondent writ petitioner for non-regularisation and/or absorption against a permanent vacancy of Group 'D' post in Dubrajpur Girls' High School, Birbhum. The case of the writ petitioner-opposite party was that the writ petitioner served in a Para-military force of the country, namely, Infantry Battalion Territorial Army as Lance Nayak for a period of 15 years and for his excellent work he was awarded two medals by the authorities concerned. It is not in dispute that the appellant no.1 had engaged and or appointed the writ petitioner as Night Guard of the said school on temporary basis since 21st May, 1988 and served as a Night Guard of the said school at a monthly salary of Rs. 70/- per month only on the basis of the assurance given by the appellant no.1 and another member of the Managing Committee of the said school that in due course his service would be regularised against the permanent vacancy. No formal letter of appointment was issued by the authorities concerned for such appointment. But the fact that he was appointed on such temporary basis was clearly admitted by the appellants. It was not in dispute that the said salary was paid from the school fund and that the service of the respondent writ petitioner was terminated by the managing committee of the said school allegedly on the basis of the resolution dated 8th August, 1990 which was not communicated to the writ petitioner-opposite party but disclosed for the first time before the learned trial Judge on affidavit. It is also not in dispute that at the time when the writ petitioner-opposite party was appointed, there was no regular vacancy but subsequently a permanent Group-D post was created by the Government Order No. 618-GA dated 1st March, 1988 issued by the Director of School Education, West Bengal. It was the case of the writ petitioner-opposite party that he was allowed to serve the said school in a permanent vacancy of Class IV staff at least from March, 1989. It was the case of the writ petitioner-opposite party that he was allowed to serve the said school in a permanent vacancy of Class IV staff at least from March, 1989. The writ petitioner filed the writ application in August, 1992 alleging non-regularisation in the said Group-D post when he was serving the said school since 1st May, 1988 till the filing of the writ application. The claim for regularisation was made by the writ petitioner-opposite party on the basis of certain memorandum issued by the Labour Department of the Government of West Bengal for absorption of casual and other categories of workers who had been engaged in a perennial type of work and have rendered at least 240 days service in a year. It was alleged in the writ petition that the appellants were going to fill up the said permanent Group-D post on the basis of a fresh selection without regularising his case. It is also on record that the appellant no.1 has certified in writing on 7th May, 1990 that the writ petitioner is serving in this institution as a Night Guard from 21.5.88 on purely temporary basis, and that when the said permanent vacancy was sought to be filled up by the outsiders the writ petitioner-opposite party approached the commanding Officer 121, Infantry Battalion (TA) for taking necessary steps for permanent absorption of the writ petitioner opposite party as Night Guard in the said School whereupon the Capt.-Adjutant for Offg. Commanding Officer, 121 Infantry Battalion (TA) forwarded the application filed by the writ petitioner-opposite party before that authority for consideration and suitable action. The learned trial Judge on consideration of the matter by order and judgment dated 18.1.91 held that the writ petitioner opposite party should be absorbed in Group-D post to work in any capacity the School likes and the interview held on 26th August, 1990 should not be taken into consideration and the same should be cancelled. The District Inspector of Schools (SE), Birbhum is directed to implement this order forthwith by approving the writ petitioner-opposite party and the appointment letter should accordingly be issued to him within 15th February, 1991. The District Inspector of Schools (SE), Birbhum is directed to implement this order forthwith by approving the writ petitioner-opposite party and the appointment letter should accordingly be issued to him within 15th February, 1991. It may be mentioned that the power to appoint under rule 28(1) of the rules provides that the District Inspector of Schools is the authority to appoint and/or to approve the appointment or all teaching and non-teaching staff under the control of those authorities and that pursuant to the order passed by the learned trial judge, the District Inspector of Schools. Secondary Education, Birbhum passed the following order on 4th February, 1992 under Memo No. 2949/G dated 1.2.1991:- "Re: C.O. No. 9933(W) of 1990. Pradip Kumar Mitra vs. State of West Bengal & other. In reference to the above, the undersigned has to request him to comply with the order of Hon'ble Mr. justice K.M. Yusuf dated 18.1.1991 in the above mentioned C.O." 2. Mr. A.P. Sarkar, learned advocate appearing on behalf of the appellants submitted that the writ petitioner was not entitled to get relief by way regularisation in view of the fact that he was not appointed by the Managing Committee of the School at any point of time. The appointment given by the appellant no.1 was in her individual capacity and for that purpose School authorities were not at all responsible. It was further submitted that as there was no valid initial appointment by the Managing Committee of the said school the same could not be regularised. It was submitted that if there was any irregularity by the managing committee the same could have been regulariesd. But the appellant no.1 had done some irregularity and so he could not be directed to be regularised by the managing committee of the said school. It was further alleged by Mr. It was submitted that if there was any irregularity by the managing committee the same could have been regulariesd. But the appellant no.1 had done some irregularity and so he could not be directed to be regularised by the managing committee of the said school. It was further alleged by Mr. Sarkar that on the basis of certain certificates produced and obtained after the filing of the writ application and annexed in the affidavit-in-opposition filed before the learned trial judge indicating that the writ petitioner-opposite party was also receiving certain sums from other establishments for performing duties as night guard and accordingly, the writ petitioner- opposite party must be held to be a self-employed person and that on the basis of the certificates it was submitted that the writ petitioner-opposite party was not an employee of the said school as he was not appointed by the managing committee and in that event he Was not in service of the said school. In that connection reference was made to the decision of the Supreme Court in the case of State of Haryana vs. Piara Singh, 1992(4) SCC 118 wherein the Supreme Court held that the Courts have no jurisdiction to issue directions affecting public exchequer and consequently, increasing cadre strength and court cannot issue a direction for blanket regularisation without considering the each and every case in its true perspective. 3. Mr. Pratap Chatterjee learned advocate appearing on behalf of the writ petitioner-opposite party submitted that the appellant cannot contend that the writ petitioner-opposite party was not under the employment of the said school in view of the fact that it was admitted by the school authorities in writing that the salaries were paid to the writ petitioner-opposite party from the school fund and that at the time of moving the writ application the writ petitioner-opposite party was in service but in the affidavit-in-opposition for the first time the appellants came out with the case that the managing committee of the said school had adopted a resolution on 8th August, 1990 relieving the writ petitioner-opposite party from his service as Night Guard with effect from 1st August, 1990 pursuant to an oral instruction given by the District Inspector of Schools (SE), Birbhum to the Headmistress. It was suggested that this resolution was subsequently brought into existence for the purpose of creating an impression in the mind of the court that at the date when the writ application was filed he was no longer in service and as he was no longer in service he could not possibly claim for regularisation of service which got terminated before date. According to Mr. Chatterjee, no explanation was forthcoming from the appellants why the said decision and/or resolution was not communicated to the writ petitioner-opposite party if the same was taken on 8th August, 1990 and that under such circumstances it was very significant that same was disclosed as annexure to the affidavit-in-opposition before this court. It appears that the said resolution dated 8th August 1990 was attested on 1.9.90 xerox copy whereof annexed to the affidavit-in-opposition to the court below. Mr. Chatterjee further pointed out that all the certificates produced before the court below in the respective affidavit-in-opposition show that the writ petitioner-opposite party was performing as Night Guard under some other persons also. The said certificates were obtained by the school authority subsequent to the filing of the writ application and that those documents were brought into existence for the purpose of the case. Those documents were not contemporaneous documents and that no affidavit was obtained from any of the persons who had issued such certificates showing that the writ petitioner-opposite party was also under their employment. Under such circumstances Mr. Chatterjee submitted that those certificates were procured with an oblique purpose and this court should not place any reliance on the same. Mr. Chatterjee further submitted that after regular and permanent post was created the appellants were interested in appointing somebody else of their choice and that is why all these pleas and pretext had been bolstered up. Mr. Chatterjee submitted that the time when the writ petitioner-opposite party was initially appointed there was no sanctioned post but subsequently the post was created with effect from 1st March, 1989 and admittedly till the filing of the writ application, viz. August 1992 he was allowed to serve as a Night Guard against the permanent vacancy. He was serving for several years and in the facts and circumstances of the case, he was bound to be regularised by the authorities concerned. August 1992 he was allowed to serve as a Night Guard against the permanent vacancy. He was serving for several years and in the facts and circumstances of the case, he was bound to be regularised by the authorities concerned. In this connection a reference was made to the notification issued by the Director of Schools Education, West Bengal on 31st August, 1987 in which it was provided that appointment of non-teaching employees in a non-government recognised secondary school will be made with prior permission of the District Inspector of Schools (SE) of respective district only against sanctioned post provided the school has no surplus non-teaching employee as the case may be. It was submitted that in the instant case the service of the writ petitioner-opposite party has not yet been regularised and he was serving the school as non-teaching employee and accordingly the school authorities cannot take any steps for giving appointment to any non-teaching employee prior to absorption of the writ petitioner-opposite party against a permanent vacancy which existed at the relevant time in the said school. Mr. Chatterjee submitted that the alleged termination made on 8th August, 1990 with retrospective effect from 1st August, 1990 was on the face of it bad in law. In this connection reference was made to several decisions of the Supreme Court in support of the case for regularisation. In Bharatiya Dak Tar Mazdoor Manch vs. Union of India, AIR 1987 SC 2342 , it was held by the Supreme Court that where appointment was made on stop gap basis and continued for several years, the employees were entitled to be regularised in service, otherwise such acts would be an affornt to the concept of job security and would run counter to the constitutional philosophy, particularly the concept of right to work in Article 41 of the Constitution. In Jacob M. Purhuparambila vs. Kerala Water Authority, AIR 1990 SC 2228 , it was held by the Supreme Court that the question of regularisation in service must be examined keeping in mind the historical as well as Constitutional perspective. Our Constitutional Makers were aware of the hardships and insecurity faced by working classes. The preamble promises socio-economic justice, the fundamental rights confers certain justiciable socio-economic rights and the directive principles fix the socioeconomic goals which the state must strive to attain. These three altogether constitute the core and conscience of the Constitution. Our Constitutional Makers were aware of the hardships and insecurity faced by working classes. The preamble promises socio-economic justice, the fundamental rights confers certain justiciable socio-economic rights and the directive principles fix the socioeconomic goals which the state must strive to attain. These three altogether constitute the core and conscience of the Constitution. India is a developing country. It has a vast surplus market. Large scale unemployment offers a matching opportunity to the employer to exploit the needy. Under such market conditions the employer can dictate his terms of employment taking advantage of the absence of the bargaining power in the other. The unorganised job seeker is left with no option but to accept employment on take-in-or-leave-it terms offered by the employer. Such terms of employment offer no job security and the employee is left to the mercy of the employer. The employers have betrayed an increasing: tendency to employ temporary hands even on regular and permanent jobs with a view to circumventing the protection offered to the working classes under the benevolent legislations enacted from time to time. It is unfair and unreasonable to remove people who have been rendering service since sometime as such removal as serious consequences. The family of the employee which have settled down and accommodated its needs to the emoluments received by the bread winner will face economic ruination if the job is suddenly taken away. Besides the precious period of early life devoted in the service of the establishment was to be wholly wasted and incumbent may be rendered age barred for securing a job elsewhere. It is indeed unfair to use them, generate hope and feeling of security in him attune to the concept of job security and would run counter to the constitutional philosophy, particularly the concept of right to work in Article 41 of the Constitution. In Manipur Regular Post Vacancies Substitute Teachers Association vs. State of Manipur, AIR 1991 SC 2088 , the Supreme Court held that substituted or ad-hoc teachers working for several years with requisite qualifications on the date of initial appointment was directed to be regularised without any Departmental Promotion Committee. 4. In the facts of this case it is not in dispute that the writ petitioner-opposite party served the said school as Night Guard from 21st May, 1988 till the filing of the application, viz. August, 1992. 4. In the facts of this case it is not in dispute that the writ petitioner-opposite party served the said school as Night Guard from 21st May, 1988 till the filing of the application, viz. August, 1992. Under the statutory rules namely under the rule 28(1) of the rules it provides that the power of the managing committee to appoint any teaching or non-teaching staff is subject to approval. The managing committee can make a selection but the selection is subject to approval of the District Inspector of Schools. Unless it is approved the selection does not become effective. In other words, the District Schools Inspector is the authority to create posts and to fill up the post. The District Inspector of Schools was not bound by recommendation made by the managing committee. In that event sense of the terms is that the managing committee is not appropriate authority to appoint and/or terminate service. The termination is also subject to certain conditions and restrictions and ultimately approval of the Board and/or other authorities. In the instant case, the appellant, cannot contend that the appointment was not given by the managing committee as the salaries were paid to the writ petitioner-opposite party from the school fund year after year with the approval and sanction of the managing committee as well as other higher authorities. It is also on record that the managing committee sought to remove the writ petitioner-opposite party by resolution adopted by the managing committee pursuant to oral order allegedly given by the District Inspector of Schools. The writ petitioner-opposite party was 40 years old at the time of filing of the writ petition who served about 15 years in a paramilitary force to serve the country for about 15 years with distinction and he is now 43 years of age. There was no complaint about the efficiency and/or integrity required for the post. In the instant case after the order was passed by the learned trial Judge the District Inspector of Schools who was the competent authority to give appointment and/or to approve appointment directed the appellants to comply with the order passed by the learned trial Judge by issuing the letter of appointment. In the instant case after the order was passed by the learned trial Judge the District Inspector of Schools who was the competent authority to give appointment and/or to approve appointment directed the appellants to comply with the order passed by the learned trial Judge by issuing the letter of appointment. But it appears that ignoring the direction given by the Inspector of Schools appellants have preferred the appeal against the writ petitioner and the District Inspector of Schools, State of W.B. and the Director of School Education and other. No appeal was preferred by the District Inspector of Schools or Director of Schools Education. Under the rules directions and orders passed by the District Inspector of Schools are binding upon the managing committee. But unfortunately, in spite of such direction issued by the District Inspector of Schools the appellants who had independent right in such matter preferred this appeal. In view of the principles laid down by the Supreme Court on this question and in view of the fact and circumstances of the case and particularly in view of the direction issued by the District Inspector of Schools dated 4th February, 1992 upon the appellants which was binding upon them under the law we do not find any substance in this appeal and we also do not find any reason to interfere with the order passed by the learned trial Judge. Accordingly, the appeal is dismissed with costs assessed at 30 G.Ms. 5. The appellants and the concerned authorities are directed to carry out the order passed by the learned trial Judge within a month from date. Let a xeroxed copy of the above order be given to the parties on the usual undertaking. I agree. Appeal dismissed with costs assessed at 30 G.Ms. Direction given.