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2000 DIGILAW 642 (CAL)

Aparna Bhattacharyya v. State of West Bengal

2000-12-18

PRANAB KUMAR CHATTOPADHYAY

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JUDGMENT P.K. CHATTOPADHYAY, J. 1. The petitioner herein was appointed as Assistant Teacher in Urban Basic Unit-I of All India Women's Conference, Buniadi Vidyapith at Beliaghata and the petitioner joined on 6th May, 1985 in the said School as an Assistant Teacher on temporary basis. The Managing Committee of the said School recommended and forwarded the name of the petitioner to the Director of School Education (Primary) for obtaining necessary approval in respect of the appointment of the petitioner along with other unapproved temporary Teacher of the said School. The petitioner was appointed as Assistant Teacher on temporary basis at a fixed salary of Rs. 125/- per month and subsequently the same was enhanced. At present the petitioner has been drawing salary of Rs. 425/- per month. 2. According to the petitioner, since 1980 few posts of Assistant Teacher had been lying vacant in the said School on account of retirement, resignation and death of some teachers. The School Authorities also admitted the said facts in their representation dated 14th June, 1991 made to the Director of School Education (Primary). It has been submitted on behalf of the petitioner that the School Authorities appointed the petitioner and few others against the said vacant posts of Assistant Teachers but the services of the said unapproved teachers could not be confirmed as the said appointments were never approved by the respondent authority. Since the respondent authority did not consider the question of approving the appointment of petitioner as an Assistant Teacher of the said School against the permanent vacant post, an application was moved earlier before this Hon'ble Court by the petitioner along with one other Assistant Teacher. The said writ petition was numbered as C.O. 1334(W) of 1991. 3. N.K. Mitra, J. (as His Lordship then was) by an order dated 3rd October, 1991 disposed of the said writ petition directing the District Primary School Council, Calcutta, to fill up the posts lying vacant in the school in question in accordance with law and also in accordance with the requisite Rules possitively within 31st October, 1991. 3. N.K. Mitra, J. (as His Lordship then was) by an order dated 3rd October, 1991 disposed of the said writ petition directing the District Primary School Council, Calcutta, to fill up the posts lying vacant in the school in question in accordance with law and also in accordance with the requisite Rules possitively within 31st October, 1991. The petitioner thereafter sent a representation to the Chairman, Calcutta District Primary School Council on 30th April, 1992 referring to the aforesaid order dated 3rd October, 1991 passed by N.K. Mitra, J. (as His Lordship then was) and prayed for her absorbtion against the permanent vacancy in the said School and also demanded necessary approval of her appointment in this regard. The petitioner was thereafter asked by the respondent no.3 to appear before the Chairman, Calcutta District Primary School Council with all relevant papers and documents for the purpose of considering the claims of the petitioner for approval of her appointment as an Assistant Teacher in the said School. On 9th February, 1995 the petitioner appeared before the Chairman, Calcutta District Primary School Council with all relevant papers and documents including a certificate granted by the Honorary Secretary of the School certifying that the petitioner had been working on temporary basis in the said school since 6th May, 1985 as Assistant Teacher. The Chairman after considering the prayer of the petitioner passed a reasoned order rejecting the claims of the petitioner and did not grant any relief to her. The said reasoned order was communicated by the Chairman, Calcutta District Primary School Council by the written communication dated 29th March, 1993. 4. The petitioner herein has challenged the said decision of the Calcutta District Primary School Council in the present writ petition. 5. Heard the learned Counsel appearing for the respective parties and also considered the materials on record including the written notes of arguments filed on behalf of the respective parties. It is true that the Calcutta District Primary School Council being statutory body cannot act ignoring the provisions of the West Bengal Primary Education Act, 1973 and Rules framed thereunder. The procedure for appointment of School Teachers in Calcutta had been laid down in the Notification being no. It is true that the Calcutta District Primary School Council being statutory body cannot act ignoring the provisions of the West Bengal Primary Education Act, 1973 and Rules framed thereunder. The procedure for appointment of School Teachers in Calcutta had been laid down in the Notification being no. 1614 Edn (P) dated 8th November, 1974 wherein it has been specifically provided that the Managing Committee of the recognised Primary and Junior Basic Schools shall appoint teachers from out of the approved panels. In the said Notification, it was also mentioned that the cases of unapproved teachers working in Primary and Junior Basic Schools and appointed prior to 1st April, 1974 may be considered at the time of preparation of the panel by the Advisory Committee. 6. In the instant case, the appointment was, admittedly, given by the School authorities in the year 1985 and furthermore the School authorities were very much aware in respect of the non-compliance of the aforesaid procedures which were required to be complied with in terms of the aforesaid Notification dated 8th November, 1974 and that is why the School authorities by written representation dated 14th June, 1991 requested the Director of School Education (Primary) to empanel the unapproved temporary teachers of the said School including the petitioner herein. Such prayer could not be entertained in respect of the candidate appointed in the year 1985, as in terms of the aforesaid Notification dated 8th November, 1974 appointments made by the Managing Committee prior to 1st April, 1974 were required to be taken into consideration at the time of preparation of the panel by the Advisory Committee. 7. It was submitted on behalf of the respondent no.3 that the Managing Committee had no power to appoint the petitioner in the post of Assistant Teacher in the said School and as such the appointment of the petitioner was illegal and according to the respondent same cannot be regularised by granting subsequent approval by the respondent, Calcutta District Primary School Council. 8. Mr. Moitra appearing on behalf of respondent no.3 submitted that the respondent, Calcutta District Primary School Council has rightly rejected the approval and regularisation of the appointment in the post of Assistant Teacher in the concerned school as the petitioner was not recruited in the said post following the statutory provisions as were applicable in this regard at the relevant point of time. According to Mr. According to Mr. Moitra several decisions of the Supreme Court as also of this Court have already made it clear that this Court cannot direct regularisation of service in violation of the statutory Rules and regularisation cannot be a mode of recruitment. Mr. Moitra also submitted that the appointment of the petitioner cannot be regularised by granting necessary approval by the Calcutta District Primary School Council in violation of the Circular dated 8th November, 1974 and/or in violation of the provisions of the West Bengal Primary Education Act, 1973 and Rules framed thereunder. It has been further submitted on behalf of respondent no.3 that this court cannot direct the respondent authorities to act in violation and/or in deviation of the mandatory provisions of the statutory Rules as are applicable in this regard. 9. Admittedly, the petitioner was appointed in May, 1985 and had been allowed to work by the Managing Committee even on temporary basis as an unapproved teacher since then and therefore the claims of the petitioner should be considered in the light of the principles of socio-economic justice. It is unfair and unreasonable to discontinue all of a sudden the service of a teacher who has been rendering service since 1985. Such discontinuation will have serious repercussion in the life of the concerned teacher. The petitioner herein had invested the best part of her life in the service of the institution and the same will be totally wasted, if such devoted service of the petitioner is altogether ignored. It would be, indeed, an inhuman and unfair approach on the part of the authorities to deny any benefit to the petitioner in spite of rendering such long devoted service in the School. The petitioner herein got an appointment in the school as Assistant Teacher in the year 1985 and has been allowed to remain in service since then, i.e. for a period of long 15 years and admittedly no step has yet been taken by the respondents to fill up the said post. The petitioner herein got an appointment in the school as Assistant Teacher in the year 1985 and has been allowed to remain in service since then, i.e. for a period of long 15 years and admittedly no step has yet been taken by the respondents to fill up the said post. Furthermore, the service of the petitioner was continuously utilised on a very meagre salary for save guarding the academic interest of the students of the school but unfortunately, when the petitioner's claim for regularisation of service by approving her appointment came up for consideration then the respondents particularly respondent no.3 objected to such regularisation on the plea of non-compliance of the statutory Rules at the time of initial appointment of the petitioner by the School authorities. The petitioner herein had no control over the authorities who were responsible for such irregular appointment of the petitioner. The petitioner herein being a qualified candidate offered herself for appointment against the vacant post of Assistant Teacher in the said School. The School authorities herein did not care to perform their statutory obligation under the Rules in the matter of filling up the post of Assistant Teacher in the School and as a matter off act the respondent no.3 also did not take any steps against the School authorities for such illegal and/or irregular act in the matter of appointing teachers without following statutory Rules. 10. The respondent authorities, particularly, the District Inspector of Schools (Primary Education) should have taken necessary steps to fill up the said vacant posts of Assistant Teachers in the said School in order to protect the academic interests of the students. The respondent authorities though did not care to perform their duties properly and failed to discharge their duties and obligations under the statute in the matter of filling up the vacant posts of Assistant Teachers in the school but surprisingly did not hesitate to raise finger at others for recruiting a teacher without complying with the requisite statutory formalities. Such conduct of the respondent authorities cannot be appreciated under any circumstances. The Director of School Education (Primary) and also the District Inspector of Schools (Primary Education) cannot feign ignorance in respect of the affairs of the school and particularly about the functioning of the petitioner as an Assistant Teacher since 1985. Such conduct of the respondent authorities cannot be appreciated under any circumstances. The Director of School Education (Primary) and also the District Inspector of Schools (Primary Education) cannot feign ignorance in respect of the affairs of the school and particularly about the functioning of the petitioner as an Assistant Teacher since 1985. The School being a recognised school must have been inspected by the concerned Inspector of Schools on regular intervals and as such the aforesaid information regarding the affairs of the School and functioning of the petitioner as an Assistant Teacher in the said School were very much within the knowledge of the concerned authorities and accordingly at least, the District Inspector of Schools (Primary Education) cannot avoid his responsibility for allowing the petitioner to remain in service for last 15 years. 11. Admittedly, at the time of initial appointment the petitioner herein had the requisite qualifications for the said post of Assistant Teacher and was within prescribed age-limit and thus major part of the Recruitment Rules had been complied with. So, when the petitioner was appointed with the requisite qualifications and was allowed to continue for more then 15 years, it would be a great wrong and serious injustice to the petitioner if she is now thrown out of employment after long lapse of 15 years and such action would be certainly against the principles of socio-economic justice. In the instant case, the recruitment norms and criteria were virtually substantially complied with. 12. The respondents authorities by allowing the petitioner to remain in service for long 15 years have generated legitimate hope in the mind of the petitioner that in course of time such temporary service would be regularised. The family members of the petitioner have also believed that the petitioner would be economically re-habiliated in future when she will be drawing emoluments at the admissible pay scale. The petitioner has already invested precious part of her life in the service of the School and has already become age-barred for securing any other job. The School authorities have allowed the petitioner to serve for protecting the academic interests of the students of the said School and thereby generated the hope in the mind of the petitioner that the temporary appointment of the petitioner in the post of Assistant Teacher would be ultimately regularised against a permanent vacant post. 13. The School authorities have allowed the petitioner to serve for protecting the academic interests of the students of the said School and thereby generated the hope in the mind of the petitioner that the temporary appointment of the petitioner in the post of Assistant Teacher would be ultimately regularised against a permanent vacant post. 13. Now, if the petitioner is thrown out of employment, her life would be totally ruined and this Court cannot be a silent spectator in such a situation. The respondent authorities cannot remain totally indifferent to the contributions of the petitioner in making of the future citizens of the country and such valuable considerations for the benefits of the society cannot go un-rewarded. 14. The Apex Court under similar circumstances in the case of Shainda Hasan vs. State of Uttar Pradesh, AIR 1990 SC 1381 , directed Lucknow University and its Vice-Chancellor to grant necessary approval to the appointment of the appellant, after appreciating the fact that asking the appellant to leave the job after 16 years would be unjust. 15. In the case of Government of India vs. Court Liquidator's Employees Association & other, AIR 2000 SC 405 , the Supreme Court held that the company paid-staff appointed by Court Liquidator and Official Liquidator cannot be denied regularisation on the ground that they were not employed by the Government in accordance with the Rules. 16. In the case of State of Haryana & other vs. Piara Singh & other, (1992) 4 SCC 118 at page-152, the Supreme Court held in para-49:- "If for any reason, an ad-hoc or temporary employee is continued for a fairly long spell the authorities must consider his case for regularisation provided he is eligible and qualified according to the rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State." 17. In the case of Arun Kumar Rout & other vs. State of Bihar & other, AIR 1998 SC 1477 , the Supreme Court held:- "Although the appellants had not been appointed by following the due procedure and, therefore, they cannot claim regularisation as a matter of course but considering the fact that they had satisfactorily served the department even without getting any salary for a long time and they were not guilty of any fraud or sharp practice and also did not lack in requisite qualification and they had been appointed against sanctioned posts, we feel that the appellants deserve sympathetic consideration in getting appointment against such sanctioned posts on humane consideration." 18. It has been admitted by the School authorities that the petitioner herein has been serving A.I.W.C. Buniadi Vidyapith, Urban Basis Unit-I since 1985 and the same has been specifically mentioned in the representation of the President, A.I.W.C. dated 14th June, 1991 and also in the resolution of the Managing Committee meeting held on 11th April, 1991. The copy of such resolution as well as the said written representation of the President, A.I.W.C. dated 14th June, 1991 are annexure-B to the writ petition. Accordingly the findings of the respondent no.3 as mentioned in the office Memorandum No. 239/1 (4)/ PC dated 29th March, 1993, in respect of the appointment of the petitioner is incorrect and the decision of the respondent no.3 is, therefore, not acceptable and liable to be quashed. Accordingly, the said office Memorandum issued by the respondent no.3 is quashed. 19. For the reasons mentioned herein and considering the aforesaid decisions of the Apex Court, I direct the respondent no.1 to take immediate appropriate steps for regularising the service of the petitioner by directing the appropriate authorities to grant necessary approval to the appointment of the petitioner as an Assistant Teacher in Urban Basic Unit-I of A.I.W.C., Buniadi Vidyapith, Calcutta, against the vacant permanent post of the said School without any further delay and positively within a period of six weeks from the date of communication of this order. 20. The School authorities, namely, respondent Nos. 20. The School authorities, namely, respondent Nos. 6 and 7 herein are directed to submit all relevant papers and documents in respect of the petitioner herein to the respondent no.1 within a week from the date of communication of this order, so that the respondent no.1 can issue necessary directions upon the appropriate authorities for grant of approval of the appointment of the petitioner as Assistant Teacher as has been directed hereinabove. This writ petition is thus allowed to the extent indicated above. In the facts and circumstances of the case, there will, however, be no order as to costs. 21. Mr. Maity appearing for respondent no.3 prays for stay of the operation of this order. I do not find any reason to grant such stay. Accordingly, the prayer for stay is refused. 22. Urgent xerox certified copy of this order, if applied for, be made available to the parties on priority basis. Writ petition allowed.