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2000 DIGILAW 484 (CAL)

Arati Mukherjee v. State of West Bengal

2000-09-18

MAHEMMAD HABEEB SHAMS ANSARI

body2000
JUDGMENT 1. The petitioner in the instant case has prayed for the substantive relief, inter alia, as under :- "(a) A writ of and/or in the nature of Mandamus commanding the respondents, each one of them, to accord approval to the appointment of the petitioner particularly' in terms of the Government order dated 26th November, 1981 being Annexure 'G' herein with effect from the date of her appointment and release all benefits of service pursuant thereto." 2. The foundation for the said relief as stated in the writ application is that the petitioner was appointed as assistant teacher by the letter of appointment dated 7.1.1976 being Annexure' A' to the application. In Paragraph 3', it has been asserted that the aforesaid appointment of petitioner was made against the normal vacancy caused by promotion of one Sri S.S. Prodhan, Assistant Teacher to the post of Head Teacher of the said school and superannuation of Shri H.P. Ukil, then Head Teacher on and from 17.3.1977. The petitioner, it has been asserted, joined the school pursuant to the said order of appointment on 2.2.1976 and has been continuously working as assistant teacher without any break and without any remuneration. 3. The petitioner has relied upon the statement being Annexure 'E' to the writ application said to be the staff pattern wherefrom it was sought to be contended that there are 8' approved posts of teachers out of which 3 posts were approved at the material point of time and 5 posts had been lying vacant. The petitioner due to her continuous service for the past several years since 2.2.1976, it is contended, is entitled to be approved in one of the said posts. 4. In the affidavit-in-opposition filed by the State-respondents, it is strenuously urged therein that the alleged appointment of the petitioner was in a post which did not exist. There was no vacancy which could have been filled up with the appointment of the petitioner. It has been further contended that as per the Recruitment Rules, it was mandatory on the school authorities to have made appointments only from out of the panels prepared. The petitioner being from outside the panel, her appointment is illegal being in derogation of the statutory rules for appointment under the Primary Education Act, 1930. It has been further contended that as per the Recruitment Rules, it was mandatory on the school authorities to have made appointments only from out of the panels prepared. The petitioner being from outside the panel, her appointment is illegal being in derogation of the statutory rules for appointment under the Primary Education Act, 1930. It is further stated that no permission was sought for before appointment of the petitioner from the Calcutta District Primary School Councilor D.I. of Schools (PE) enabling the Managing Committee of the school to appoint the petitioner. The writ petition suffers from the vice of delay, inasmuch as, the same was filed in 1990 when the alleged appointment is of the year 1976. The alleged appointment of the petitioner being in blatent violation of the statutory rules operating in the field, the same it was asserted cannot be approved. 5. A supplementary affidavit was filed by the petitioner liberty for which was given by D.K. Basu, J., in his order dated 3.3.98. Therein, it is Stated that the petitioner is working continuously from 2.2.1976 and her position is that of the 9th teacher in the institution. The said Annexure 'X' is the monthly return filed by the school authorities and is dated 21.8.1976. 6. Reliance has also been placed upon X-1 and X-2 being the list of unapproved teachers working in normal and additional post in different schools. The said list, it has been stated is prepared by the District Inspector of Schools (SE), Calcutta, X-1 is dated 21.8.81. The date of X-2, however, is not stated. Based thereon, it is contended that the petitioner Smt. Arati Mukherjee at Sl. No.5 was appointed on 2.2.76 and the appointment was in the normal vacancy. 7. Mr. Swapan Kr. Dutta, learned Advocate for the petitioner sought to contend that the State-respondents are aware of the said appointment of the petitioner. Reliance has also been placed upon a Government Circular No. 390-Edn. (P) dated 22/24th March, 1979 issued in the name of the Governor wherein, it has been stated that since the District Inspector of Schools (PE) could not prepare panels of qualified candidates for appointment as teachers in urban areas, implementation of G.O. No. 1614-Edn. (P) dated 8.11.1974 was in effect held up till 30.6.1977. (P) dated 22/24th March, 1979 issued in the name of the Governor wherein, it has been stated that since the District Inspector of Schools (PE) could not prepare panels of qualified candidates for appointment as teachers in urban areas, implementation of G.O. No. 1614-Edn. (P) dated 8.11.1974 was in effect held up till 30.6.1977. Teachers appointed by the Managing Committee's from 1.1.1977 to 30.6.1977 may, therefore, be approved by the D.I. of Schools (PE) subject to the conditions imposed in item No. 'C' of G.O. No. 896 dated 28.4.1978. 8. Mr. T.D. Maity, learned Counsel for the respondent-District Primary School Council contended that even according to the petitioner's own showing and the alleged letter of appointment being Annexure 'A' to the writ application and the various averments made in that behalf in the writ application as also in the supplementary affidavit, the petitioner it was contended was allegedly appointed in the vacancy which accrued on and from 17.3.1977. 9. Admittedly, it is contended by Mr. Maity there was no vacancy before 17.3.1977 in the approved posts of teacher to which the petitioner could have been appointed, The appointment being by letter dated 17.1.1976 and the petitioner having joined the post from 2.2.1976, the only conclusion that can be arrived at contends Mr. Maity is that the petitioner had been appointed in a non-sanctioned post. The vacancy in the post, even according to the petitioner's own showing arose one year later that is on and from 17.3.1976 when the then Headmaster retired on attaining superannuation. Mr. Maity relied upon the judgment of this Court in (1) Anuva Roy's case reported in 1996 Lab IC 1990; and (2) Smt. Puspa Singh v. State of West Bengal & Ors. reported in Calcutta Law Times 1999 (1) HC 393., wherein the principles governing regularisation have been clearly spelt out and it was held that in case of appointment in a non-existing vacancy, the petitioner can have no claim for regularisation. 10. Mr. P.K. Basu, learned Counsel for the State submitted that the petitioner not having been appointed from out of the panel can have no right for regularisation. By Government Circular No. 1614-Edn. (P) dated 8.11.1974 specific directions have been issued to the Managing Committee to appoint teachers from out of the approved panels for the respective municipal areas after the names of candidates are formarly communicated by the D.I. of Schools (PE). By Government Circular No. 1614-Edn. (P) dated 8.11.1974 specific directions have been issued to the Managing Committee to appoint teachers from out of the approved panels for the respective municipal areas after the names of candidates are formarly communicated by the D.I. of Schools (PE). The petitioner being out of the said panel can have no right to regularisation. 11. There can be no dispute as to the submissions made by Mr. Maity that the appointment of the petitioner was made in a vacancy that did not exist on 17.1.1976 (the date of letter of appointment). The vacancies arose only on 17.3.1977 when the Head Teacher retired on superannuation. 12. In terms of the G.O. No. 1614-Edn. (P) dated 8.11.1974, the appointments could be made by the Managing Committee from out of the approved panels. However, as can be seen from the G.O. No. 390-Edn. (P) dated 22/24.3.1979, the D.I.S. (PE) could not prepare panels and implementation of the said G.O. No. 1614-Edn. (P) was held up till 30.6.1977. The teachers appointed from 1.1.1977 to 30.6.1977 were, therefore, directed to be approved by the D.I. of Schools (PE). The appointment of the petitioner, thus, being during the period when the panels of qualified candidates for appointment as teachers in aided schools in urban areas could not be prepared. The implementation of the G.O. No. 1614-Edn. (P) dated 8.11.1974 was, thus, held up till 30.6.1977. The appointment of the petitioner being during the said period cannot be said to be irregular or contrary to the provisions. On account of the appointment of the petitioner by letter of appointment dated 17.1.1976 in a vacancy which occurred subsequently that is on 17.3.1976, such appointment can be at best an ad hoc appointment. It is not as though on 17.3.1977 when the post fell vacant, any other person was appointed in the said post by following the Recruitment Rules invogue. The school authorities, it appears, considered the appointment of the petitioner though made earlier in the post that fell vacant subsequently on 17.3.77. The State has not filed any affidavit-in-opposition and it is, therefore, remains a disputed question of fact as to whether the vacancy in the post which the petitioner has been appointed arose on 17.3.1977 or at any date subsequent, thereto. This is for the reason that in terms of G.O. No. 390- Edn. The State has not filed any affidavit-in-opposition and it is, therefore, remains a disputed question of fact as to whether the vacancy in the post which the petitioner has been appointed arose on 17.3.1977 or at any date subsequent, thereto. This is for the reason that in terms of G.O. No. 390- Edn. (P), appointments made by the Managing Committee for the period from 1.1.1977 to 30.6.1977 have been saved and directed to be approved subject to the fulfilment of the conditions prescribed therein. 13. In my view, therefore, the judgments relied upon by Mr. Maity are distinguishable and their ratio cannot be applied to the instant case. This is for the reason that by virtue of G.O. No. 390-Edn. (P) dated 22/24th March, 1979, directions have been issued for approving appointments made between the said period upto 30.6.1977 and also on the basis of the ratio in (3) Swopan Kr. Chatterjee v. Calcutta District Primary School Council & Ors. reported in 2000(2) Calcutta Law Times 231. 14. A Division Bench of this Court in (4) West Bengal Essential Commodities Supply Corporation Ltd. v. Md. Sarif reported in 2000 (1) CLT 308 (HC), while rejecting the claim for regularisation of the petitioner in that case who was appointed on contractual basis temporarily made certain relevant observations based upon the judgments of the Supreme Court in the following terms ;- “The respondent was given a temporary appointment on 17th October, 1996 on contractual basis to temporarily for six months till the pleasure of the Chairman. This order was, subsequently, extended from time to time. The respondent No.1 filed a writ application asking for regularisation of his service. In a judgment delivered by us today viz., (5) State of West Bengal and Others v. Ashoke Ranjan Chandra (W.P.T.T. No.1 of 1999) dated 18th August, 1999 in a similar situation this Court held on the basis of the decision of the Supreme Court in (6) J & K Public Service Commission v. Narider Mahon & Ors., 1994 (2) SCC 630 ; (7) Surinder Singh Jamual v. State of J & K, AIR 1996 SC 2775 ; as well as the decision in (8) State of Madhya Pradesh v. Dharambir, 1990 (6) SCC 165, that an ad hoc appointee has no right to be regularised unless the Recruitment Rules so specifically provide." 15. In the light of the above observations, the case of the petitioner has to be considered for regularisation as in the instant case, the Circular No. 390-Edn. (P) specifically provides for granting approval subject to the fulfilment of the conditions contained therein. The case directly in point, however, is one referred to supra, in Swapan Kr. Chatterjee, 2000 (2) CLT 231, wherein G. O. No. 1614-Edn. (P) dated 8.11.1974 was considered and in the light of the judgments of the Supreme Court and as also of this Court, having relevance to the question in issue. The case of Anuva Roy reported in 1996 Lab IC 1990, has been distinguished. The learned Single Judge in that case observed as under :- "........................ That apart it should be remembered that relevant Recruitment Rules and/or Notification, Government Order, Circular prescribing procedure for appointment of a teaching staff in a school should be read in the best interest of the students of the school Recruitment Rules, Notification, Government Order or Circular for appointment of teaching staff in a school cannot be read to have an idea that the authorities have no obligation whatsoever even if the sanctioned posts do lie vacant for long years causing serious hindrance to the teaching of the students in such school or to notify to the school against any appointment made irregularly. Because all such rules prescribing the procedure for appointment of teaching staff in a school in the best possible manner by appointing most suitable available teacher. The purpose will be frustrated altogether if it is read in the said rules that the authority concerned in spite of knowledge of a vacancy in a School or of an irregular appointment is under no obligation to ask the school authority to take steps for filling up the vacancy in compliance with the relevant rules. The authority concerned after having failed to discharge its obligation cannot be permitted to turn round and contend that something was irregular and not permissible in law." 16. In view of the identity of facts as noticed in Swapan Chatterjee's case, cited supra, with the facts on the case in hand, the instant writ application, in my view, is liable to be disposed of with certain appropriate directions upon the Director, Primary Education, respondent No.2 herein. 17. In view of the identity of facts as noticed in Swapan Chatterjee's case, cited supra, with the facts on the case in hand, the instant writ application, in my view, is liable to be disposed of with certain appropriate directions upon the Director, Primary Education, respondent No.2 herein. 17. Accordingly, a mandamus shall issue directing the respondent No.2, Director, Primary Education to consider the matter with regard to the granting approval to the appointment of the petitioner in the post of Primary Teacher of Jogendra Institution after ascertaining whether the appointment of the petitioner was in a sanctioned post or at least there existed a sanctioned post to which the petitioner could have been appointed within the approved and sanctioned post of primary teacher and whether the petitioner is entitled to the benefit of such directions as contained in G.O. No. 390-Edn. (P) dated 22/24th March, 1979 and also whether the conditions prescribed therein are fulfilled warranting the directions to be issued to the District Inspector of Schools (PE) to approved such appointment of the petitioner. The aforesaid exercise shall be completed within a period of four (4) months from the date of communication of a copy of this order. For the aforesaid purpose, the petitioner shall place a copy of the instant writ application together with its annexures as also a copy of this judgment and order along with the affidavit-in-opposition filed on behalf of the respondent Nos. 6 and 7 before the Director of Primary Education who shall thereupon after affording an opportunity of hearing the petitioner, school authorities and such other parties as to him may seem appropriate dispose of the matter by a reasoned speaking order and communicate the same to the petitioner as also the school authorities and the concerned District Inspector of Schools (PE). There shall, however, no order as to costs.