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1995 DIGILAW 142 (CAL)

Sadhana Dey v. Kalyani Mukherjee

1995-05-01

BHAGABATI PROSAD BANERJEE, RAM PRAKASH GUPTA

body1995
JUDGMENT This is an appeal against the judgment and order dated 27.11.91 passed by the learned trial Judge allowing the writ application filed by the respondent Kalyani Mukherjee. The learned trial Judge held by that order that the writ petitioner was to be treated as senior to that of the appellant and as such the writ petitioner should be entitled to higher scale of pay according to the qualifications on the basis of seniority in respect of the appointment of the school. 2. The question that calls for consideration in this appeal is whether the appellant should be treated as senior to that of the respondent/petitioner Kalyani Mukherjee or not in the school which is a aided one under the control of the West Bengal Board of Secondary Education. 3. It is not in dispute that the appellant Smt. Sadhana Dey obtained B.A. degree in the year 1964 and B.T. in the year 1969 whereas the writ petitioner Kalyani Mukherjee passed B.A. Examination in the year 1968 and B.T. Degree in the year 1970. It is also not in dispute that both the writ petitioner and the appellant ultimately secured higher qualification by obtaining M.A. Degree in the year 1974. 4. The West Bengal Board of Secondary Education by its letter dated 21st September, 1967 informed the school authorities that the appellant Smt. Sadhana Dey was appointed as Asstt. Teacher on a substantive basis with effect from 1st February, 1966 and Smt. Kalyani Mukherjee B.A. (Part I pass) on a temporary basis with effect from 1st January, 1966 until she possesses B.A.B.T. Examination. It also appears that the Director of School Education by an order dated 3rd February, 1984 informed the District Inspector of School with reference to the question of seniority between Sadhana Dey and Kalyani Mukherjee and held “that it was decided that Smt. Sadhana Dey shall be treated as senior to Kalyani Mukherjee”. 5. Thereafter the same question again came up for consideration before the Director of Secondary Education and by the Memo dated 9th October, 1980 it was held as follows : "Sm. Dey happens to be the senior in service to Sm Kalyani Mukherjee, who as per Board's Memo No. 22234/G/L dt. 21.9.67 could not get substantive appointment before 1968 the year in which she passed the B.A. Examination whereas Smt. Dey got her approval of appointment as a substantive teacher with effect from 1.2.66. Dey happens to be the senior in service to Sm Kalyani Mukherjee, who as per Board's Memo No. 22234/G/L dt. 21.9.67 could not get substantive appointment before 1968 the year in which she passed the B.A. Examination whereas Smt. Dey got her approval of appointment as a substantive teacher with effect from 1.2.66. The seniority should be counted from the date of substantive appointment". 6. The question arose who would be entitled to the higher scale of pay and accordingly it was decided that the appellant being the senior would be entitled to the higher scale of pay by virtue of her seniority. 7. Appearing on behalf of the appellant Mr. Asok De learned Advocate contended that the learned trial Judge was wrong in holding that the writ petitioner should be treated as senior in view of the fact that she could not be appointed validly as Asstt. Teacher of the school as she was under qualified on 1.1.67 that is why she was appointed purely on a temporary basis with effect from 1.1.67 until she possesses B.A.B.T. qualification and that the said temporary service came to an end after she had acquired requisite qualifications which were long after the appellant herein. Admittedly on 1.1.66 the writ petitioner had not the requisite qualification and ultimately B.A. Degree was obtained by her in 1968 and the B.T. in 1970. 8. In the background of this fact Mr. De submitted that the writ petitioner could not be treated as senior by any principle and in this connection reference was made to the decision of the Supreme Court in the case of (1) Sirala Prosad Shukla v. State of U.P. & Ors., reported in AIR 1986 SC 1859 wherein it was held by the Supreme Court that the appointment would be valid and lawful with regard to the acquisition of the requisite qualification and it was observed that late comes to the regular stream cannot steal march over the early arrivals in the regular queue. 9. The learned trial Judge in support of the contention of the writ petitioner Sm. Kalyani Mukherjee did not give any reason and came to the finding on the basis of the date of acquisition of qualification. 9. The learned trial Judge in support of the contention of the writ petitioner Sm. Kalyani Mukherjee did not give any reason and came to the finding on the basis of the date of acquisition of qualification. The learned trial Judge had no occasion to decide the question whether the writ petitioner could have been appointed validly or lawfully when she was admittedly under qualified and that temporary appointment for a temporary period and that too limited to the period and that period will come to an end on the strength of the order since she has acquired requisite qualification. The learned trial Judge had no occasion to decide the question with reference to the facts of the case. 10. But attention was drawn to the Circular of the Board, dated June 29, 1954 in which the Board had laid down the requisite qualification of first appointment of non-graduate or untrained under-graduate in a High School as hereunder:- "It is hereby notified that ordinarily appointment for the first time of an under-graduate teacher, or in the case of girls school, appointment for the first time of an untrained under-graduate teacher will not be approved by the Board on a permanent basis". Pursuant to that principle laid down in the said circular appointment of the writ petitioner was approved by the Board on temporary basis with effect from January 1, 1966 until she passes B. A. B. T. examination. It is not in dispute that she has passed the B.A. in 1968 and B. T. in 1970. If at the time of initial appointment the writ petitioner was qualified, in that event nothing prevented the Board for approving her service on substantive basis with effect from January 1, 1966, but the Board could not do it because of the restriction on the Board in the matter of giving approval to under-qualified teacher. 11. The question is when an unqualified teacher is appointed and subsequently acquired necessary qualification, he or she may be treated as regularly appointed from the date of regular appointment. 12. Law is clear on this point. In the case of Masood Akhtar Khan v. State of M.P., reported in 1970(4) SCC...wherein it was held that if the initial appointment was not made according to the rules, subsequent regularisation of service of an employee does not entitle him to benefit of intervening service for seniority. 12. Law is clear on this point. In the case of Masood Akhtar Khan v. State of M.P., reported in 1970(4) SCC...wherein it was held that if the initial appointment was not made according to the rules, subsequent regularisation of service of an employee does not entitle him to benefit of intervening service for seniority. The same view was taken by the Supreme Court in the case of (2) Union of India v. S.K. Sharma, reported in AIR 1992 SC 1180 and subsequent decisions of the Supreme Court also laid down the said principle. 13. Applying the principles laid down by the Supreme Court it is clear to us that on January 1, 1966 the writ petitioner was under-qualified and could not be appointed on substantive post and that is why her service was approved purely on temporary basis with a condition that temporary service could come to an end and she shall be appointed on substantive post as soon as she passes B.A. B.T. degrees. Admittedly, she obtained B.A. B.T. Degrees in the years 1968 and, 70 respectively. In case a person is appointed in a post on temporary or ad hoc basis having requisite qualification and accordance with law, but for want of post or otherwise she or he could not be appointed on the substantive post, subsequently when he or she would be appointed on the substantive post, his seniority should be given from the initial date of appointment as she or he is entitled to get such appointment from the initial date of joining. 14. Accordingly, we are of view on the basis of the materials on record and on the basis of principles laid down by the Supreme Court in this behalf that the writ petitioner could not be treated as senior to Sadhana Dey, the appellant herein. The learned trial Judge had not given any reason why the writ petitioner Kalyani Mukherjee should be treated as senior to the appellant herein Sm. Sadhana Dey in the facts and circumstances of the case. 15. Accordingly, the order of the learned trial Judge is set aside and the writ application is dismissed. The appeal is allowed on the above terms. There will be, however, no order as to costs.