Swapna Roy v. State of West Bengal — 1996 DIGILAW 351 (CAL)

JUDGMENT 1. The short facts involved in this writ petition inter alia are that the petitioner has been rendering service as a teacher prior to its recognition in the Shaktigarh High School since 1980 when the said school was a Junior School and was not upgraded as a High School. The school was ultimately upgraded as High School with effect from 1.1.1986. Since the school was originally a Junior High School, the school had been trying for upgradation and in the bid of such attempt to get upgradation, the students were admitted and classed were taken for Class IX & X with some of the teachers who had been rendering voluntary service. The petitioner is one of such teacher who has been teaching in the school since 1982 without any remuneration whatsoever as an organiser teacher to organise Class IX & X in the said school. 2. It has been stated by the petitioner that upon the application of the Managing Committee of the school to get the upgradation and recognition for High School by the West Bengal Board of Secondary Education, there was an inspection conducted by the Govt. of West Bengal through the Assistant Inspector of Schools, Secondary Education (General), Calcutta. The said Assistant Inspector of Schools made a physical inspection in the school on 21st February, 1985. In the said inspection report, which was prepared by him after thorough and roving inspection, he found that the petitioner being qualified to be appointed as Assistant Teacher of the said school, has been rendering services with effect from 1st January, 1982 without any approval as an organiser teacher. 3. The said report of the Assistant Inspector of Schools, Secondary Education has been annexed to the petition. 4. Since the school was upgraded with effect from the academic session on 1.1.86 the question of absorption of petitioner came into consideration. The Managing Committee of the School immediately applied before the District Inspector of Schools praying for approval and/or regularisation of service of the petitioner who has been rendering services voluntarily in the interest of the institution. 5. The District Inspector of Schools referred the case for taking appropriate action enclosing approval forms. The said letter of the District Inspector of Schools, Secondary Education addressed to the District Inspector of Schools, Calcutta, dated 18.5.1987 has also been annexed to the petition. 6. 5. The District Inspector of Schools referred the case for taking appropriate action enclosing approval forms. The said letter of the District Inspector of Schools, Secondary Education addressed to the District Inspector of Schools, Calcutta, dated 18.5.1987 has also been annexed to the petition. 6. Since no step was taken by the Director of School Education, the petitioner moved a writ petition whereby B.P. Banerjee, J. directed the Director of School Education to consider the case of the petitioner for approval in accordance with law. The Director of School Education, however, passed order on 29.2.88 whereby the Director accepted the resolution passed by the School Committee and rejected the case for appointment of the petitioner. The said order of the Director of School Education has been challenged in the instant writ petition on 29.2.88. 7. It has been submitted on behalf of the petitioner that the Director of School Education did not apply his mind but mechanically took the matter for consideration and dismissed the same on the ground which is not valid or tenable. 8. It has been further submitted on behalf of the petitioner that the Director of School Education ought to have taken the resolution of the Managing Committee as a primary consideration specially when the fact remains that the petitioner has been serving the institution since 1982 till date as a regular teacher. 9. It has been submitted that five posts of Assistant Teacher in the school are lying vacant on account of upgradation of the school since 1.1.86. The petitioner was appointed by the Secretary of the School in one of the five vacancies for which approval was sought for. As the petitioner holds the requisite qualifications, there is no bar to get her appointment approved in the clear vacancy to which petitioner was appointed with effect from 1.1.1986, the date of recognition as Class X, High School. It has been running with eight teachers one of 12 including petitioner. Four candidates sat for the Madhyamik Examination in 1988 under the direct supervision in the work and Physical Education Group. 10. The petitioner has been working in the school without any interruption since 1982 and a vested right has accrued to him to be absorbed. It has been running with eight teachers one of 12 including petitioner. Four candidates sat for the Madhyamik Examination in 1988 under the direct supervision in the work and Physical Education Group. 10. The petitioner has been working in the school without any interruption since 1982 and a vested right has accrued to him to be absorbed. It appears from the order dated 29.2.88 passed by Director of School Education that the Director failed to consider the inspection report of the Assistant Inspector of Schools, Secondary Education (General). The said inspection clearly records the name of the petitioner as an Assistant Teacher and the date of appointment has been mentioned as 1.1.82. The said report also provides that she was designated as an organiser teacher. It appears from inspection report made by the Assistant Inspector of Schools dated 21.2.95 that the petitioner was appointed as an organiser teacher with effect from 1.1.82. The Director of School Education, it appears, has not considered the inspection report. He has also not considered the letter addressed to him by the District Inspector of School. Secondary Education, Calcutta dated 18.5.87. The said letter clearly records that the School Authority has prayed for approval of two teachers, one of them is the petitioner and her qualification is B.A. Senior Trained L.B.D. holder and her date of appointment was 1.1.82 and date of birth is 26.3.61. 11. It was also mentioned in the said letter that since the District Inspector of Schools is not competent to accord approval in the matter, he seeks necessary instruction. Approval forms were enclosed with the letter. Had the Director of School considered the report and the said letter of the District Inspector of Schools, it could have been easily found out that the date of appointment of the petitioner was 1.1.82. There is no dispute that the petitioner is duly qualified for the said post. The petitioner has been rendering service since 1.1.82. However, the school was upgraded with effect from 1.1.86 and the petitioner has been discharging her duties in one of the five vacancies for which approval was sought for since 1.1.86. 12. It is well-settled that the Director of School Education has been vested with the authority to approve the appointment of teachers made by the Managing Committee. However, the school was upgraded with effect from 1.1.86 and the petitioner has been discharging her duties in one of the five vacancies for which approval was sought for since 1.1.86. 12. It is well-settled that the Director of School Education has been vested with the authority to approve the appointment of teachers made by the Managing Committee. From the said order dated 29.2.88, it is clear that the Director of School Education failed to consider the material aspect for approval of appointment of the petitioner and did not take note of the inspection report and the letter seeking approval of appointment dated 18.5.87. 13. It therefore appears that the Director of School Education only mechanically passed his order and did not consider the appropriate documents which are on record and which he was obliged to do under the statute. 14. It is well settled that the employee rendering service for several years has a right to be absorbed and it is unfair and unreasonable to remove persons who have been rendering service since sometimes as such removal has serious consequences. 15. It is also well-settled that when the petitioner has been appointed as qualified teacher and has acquired experiences, it would be doing great wrong and injustice to throw her out of employment and to continue her in such a precarious state of affairs. Such action on the part of the respondent, are contrary to Article 41 of the Constitution. In this connection judgment and decision in the case of (1) Bakul Rej v. State of W.B. & Ors. reported in 91 CWN p. 298 delivered by B.P. Banerjee, J. may be taken note of. The aforesaid decision involves the case of three writ petitioners. They were working as approved part time teachers in Higher Secondary Streams for a number of years on a mere rittance of Rs.75/-. They were neither regularised not absorbed in the full time posts. The petitioner's case was that the respondents were taking steps to fill up their posts by making fresh appointments. They claimed absorption on the basis of the Government Order being Memo No. 50 Edn. dated September 15, 1978 and Memo No. 1464 (16 G.A/3B-49/81) dated August 28, 1981. They were neither regularised not absorbed in the full time posts. The petitioner's case was that the respondents were taking steps to fill up their posts by making fresh appointments. They claimed absorption on the basis of the Government Order being Memo No. 50 Edn. dated September 15, 1978 and Memo No. 1464 (16 G.A/3B-49/81) dated August 28, 1981. These arguments made on behalf of the petitioners was that they ought to have been absorbed in the permanent posts, that hostile discrimination was practised against them and that the State could be directed in appropriate cases such as the present order not to fill up the posts of the petitioners, who were highly qualified, eligible and experienced and were get ting in part time posts, by recruiting fresh teachers. 16. It was held when the petitioners have been appointed as qualified teachers and they have acquired vast experience, it would be doing a great wrong and injustice to throw them out of employment and/or to allow them to continue in such precarious state of affairs when nobody has been appointed in the full time and permanent posts and as such the question of deprivation of any accrued right of any person would not arise in this case at all if the petitioners are absorbed and/or appointed by the respondent in full time and permanent posts in the respective schools in which the petitioners are serving. The respondents should appoint the petitioners in their respective schools in permanent and full time vacancies in the respective schools in view of the Circulars and in order to secure Justice, social or legal and for securing the right to work as provided in Article 41 of the Constitution. 17. The Division Bench judgment in the case of (2) Ashoke Kumar Biswas v. State of West Bengal reported in 99 CWN 595 may also be considered in this connection. In the aforesaid decision the facts involved have that the petitioner was appointed as qualified teacher and he acquired sufficient experience by working in the school for long years in the deputation vacancy. In the aforesaid decision the facts involved have that the petitioner was appointed as qualified teacher and he acquired sufficient experience by working in the school for long years in the deputation vacancy. While considering his ca6e for regularisation, the Division Bench took into account the principle of social Justice and the right to livelihood of a citizen and in this connection took note of several decisions of the Supreme Court and held that' it would be doing great wrong and injustice to throw him out of employment and/or not to allow him to continue in such pervious state of affairs when nobody has been appointed in the full time and permanent post of the Asstt. Teacher of the School. Since post has been sanctioned and since nobody has been appointed in the said post no question of deprivation of accrued right of anybody in this case can arise if the petitioner is absorbed and/or appointed in full time and permanent post in the school. For ends of Justice and more particularly in view of the law laid down by the Supreme Court of India in this behalf in order to secure Justice, social, economic and legal and for security the right to work as provided in Article 41 and the right to work as provided in the Article 21 of the Constitution of India, we are firmly of the opinion that the petitioner should be spared the formal ritual of appearing before the Selection Committee for interview and he should be appointed to the post of Assistant Teacher which is lying vacant." 18. The petitioner having been given the assurance that he would be absorbed in the post of Assistant Teacher and his service having been obtained in the said post on a mere pittance and he being highly qualified man and having rendered unblemished service in the School since 1989 it was the duty of the respondent authority to absorb and/or regularise him in the post of Assistant Teacher and we cannot permit the petitioner to be thrown out of the employment on the whims of the respondent authorities by holding any sham interview and finding him subsequently unsuitable for the said post as the chances of the petitioner not getting a fair treatment from respondent Nos. 1-3 in the circumstances of the case, can not be absolutely ruled out. 1-3 in the circumstances of the case, can not be absolutely ruled out. Such appointment of the petitioner to the post of Assistant Teacher in the School on a permanent basis shall not affect the respondents prejudicially and we desire a society to be governed by the rule of law and the principles of social Justice and respondents should discharge their liabilities towards that. 19. In the facts and circumstances, I am of the opinion that the petitioner has a specific right to be appointed to the said post of Assistant Teacher and the order of the Director of School Education dt. 29.2.88 suffers from inherent lacuna and accordingly is set aside. The Director of School Education is directed to grant approval of appointment of the petitioner with effect from 1.1.86, the date of the recogoition of the said School as Class-X, High School. Apart from the fact that the petitioner is an organiser teacher from 1982, the petitioner has been rendering services against the approved vacancy on the basis of the appointment issued by the school authorities from-1.1.86 and the petitioner being duly qualified, her approval of such appointment cannot be refused on the basis of record. No affidavit-in-opposition has been filed by any of the respondents. 20. The Director of School Education is accordingly directed to accord approval of the service of the petitioner w.e f. 1.1.86 within 15.10.96. The petitioner is also entitled to all arrears of salaries and the benefits from 1.1.86 and the same will be paid within 15th October, 1996. 21. It has also been recorded that the age of the petitioner will not stand in the way of her approval of appointment since the matter is pending adjudication before the appropriate authority and this Court for long years. 22. The writ petition is accordingly disposed of as above. There will be no order as to costs. Let a plain copy of the operative part of the judgment and order duly countersigned by the Assistant Registrar (Court) be supplied to the learned Advocate for the petitioner on usual undertaking.