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2001 DIGILAW 117 (CAL)

RAMAPADA SAMANTA v. STATE OF WEST BENGAL

2001-03-02

PRATAP KUMAR RAY

body2001
P. K. RAY,J. ( 1 ) IN this writ application the writ petitioner has prayed for the following reliefs :- (A)a writ in the nature of Mandamus commanding the respondents to cancel, rescind, withdraw and/or set aside the impugned memo dated May 13, 1999 issued by the respondent No. 3 (annexure-I to the petition) forthwith; (B)a writ in the nature of Mandamus commanding the respondents to absorb the petitioner in the post of Clerk in Salkia Sabitri Balika Vidyalaya (High School) forthwith; ( 2 ) IT is the case of the writ petitioner that on 3rd August, 1992 the Managing Committee of the school appointed him to perform the duties of class IV staff i. e. peon as well as clerk of the School in question. Since the writ petitioner was not absorbed in Class IV staff, the petitioner approached this Court by filling a writ petition C. O. No. 382 (W) of 1994 with a prayer to appear before the selection Committee for interview for the post of Class IV Staff. Though the name of the writ petitioner was not sponsored from the Employment Exchange, but his candidature was considered for the Class IV staff i. e. Peon as per order of said proceeding and his service was duly approved by the District Inspector of Schools (SE) Howrah with effect from 19th August, 1996. Subsequently when a vacancy occurred in the post of Clerk and the petitioner has requisite qualification for such, he moved a writ petition being W. P. 20918 (W) of 98 before this Court praying for his absorption in the said post as the writ petitioner was discharging duty of a Clerk of the School in addition to his service as peon being Class IV staff. By order dated 7. 1. 99 Amitava Lala, J. directed the respondents to consider the representation within a period of four weeks from the date of communication of that order by passing a reasoned order upon giving an opportunity of hearing to the petitioner. ( 3 ) IN pursuance of such direction of this Court hearing completed on 8th April, 1999 and the decision as communicated by letter dated 13th May, 1999 by the District Inspector of Schools (SE) Howrah has been impugned in the instant writ petition. ( 3 ) IN pursuance of such direction of this Court hearing completed on 8th April, 1999 and the decision as communicated by letter dated 13th May, 1999 by the District Inspector of Schools (SE) Howrah has been impugned in the instant writ petition. The petitioner's prayer for absorbing his in the post of Clerk has been rejected by the D. I. S. (SE) concerned on the ground that the petitioner was tendering the duty of the Clerk without any permission from the competent authority; no formal appointment letter was issued to him; no normal procedure of recruitment rules to appoint a Clerk was maintained in the case of the petitioner which was very much important in the appointment of teaching and non-teaching staff of recognised school. The writ petitioner in this writ petition has prayed for quashing of the said impugned decision and consequential relief of absorption. Though in the writ petition there is no pleading to this effect that the writ petitioner would be allowed to appear in interview for the post of Clerk along with other sponsored candidates when the said vacancy to be filled up, the learned Advocate for the petitioner submits that his client has accrued right in term of Clause 4c of the direction issued by the District Inspector of Schools (SE) under Memo No. 1736 (21) GA dated 1st November, 1999 for such consideration. The learned Advocate for the State, on the other-hand, opposed the writ application contending that the writ petitioner was not entitled to be absorbed in the post in question and for any direction to appear in the interview along with other candidates for the said post at this stage. ( 4 ) CONSIDERING the rival contention of the parties the following issues emerges for adjudication:- (A)whether the writ petitioner has accrued any right in the post in question and whether the impugned decision can be quashed or not? (B)whether the petitioner is entitled to appear in the interview for the post of Clerk under Clause 4 (c) of the Direction dated 1st November, 1999. ( 5 ) SO far point No. (a) is concerned, it is settled legal proposition that absorption or regularisation is not the mode of appointment. (B)whether the petitioner is entitled to appear in the interview for the post of Clerk under Clause 4 (c) of the Direction dated 1st November, 1999. ( 5 ) SO far point No. (a) is concerned, it is settled legal proposition that absorption or regularisation is not the mode of appointment. In the instant case the writ petitioner got appointment in the post of peon and under the service jurisprudence an employee cannot discharge duty or function to another post which has been submitted in the pleading of the writ petition. From the pleading itself it is clear that the petitioner is liable for departmental proceeding in view of the Rules and provision under the Education Code. It will appear further that a person working as peon will not be entitled to discharge duty or function further in another sanctioned post of Clerk. By discharging duty or functioning in the post of Clerk, the petitioner who is merely a Group-IV staff i. e. a Peon, has done, the action which is not only contrary to the Recruitment Rules but also against fundamental principle of service jurisprudence. The Managing Committee had no power to allow the writ petitioner to discharge duty and/or function in the post of a clerk and on that point this issue goes against the writ petitioner i. e. the writ petitioner did not accrue any right for absorption. ( 6 ) IN absorbing in the post in question i. e. to the post of Clerk, is elevation of the petitioner from the post of Peon to the post of Clerk. For such elevation, of course, certain procedure is required, namely, Government Letter, Circular, Recruitment Rules etc. ( 7 ) IN the case of B. N. Nagarajan v. State of Karnataka, reported in AIR 1979 SC 1676 Their Lordships held as follows :"apart from repelling the contention that regularisation connotes permanence, these observations furnish the second reason for rejection of the argument advanced on behalf of the promotes and that reason is that when rules framed under Article 309 of the Constitution of India are in force, no regularisation is permissible in exercise of the executive powers of the Government under Article 162 thereof in contravention of the Rules. " ( 8 ) FROM the Judgment of the apex Court it is clear that when there is existence of Recruitment Rules, there is no scope even by Government to exercise its executive power under Article 162 of the Constitution of India by issuing any circular as are in contravention of the Rule. ( 9 ) IN the instant case there is no circular or letter of the Government and the writ petitioner failed to produce any Government order, decision for upliftment from the post of Peon to the post of Clerk. Furthermore, the petitioner states that from the approved post of Peon he is entitled to be appointed to the post of approved Clerk of the School. In this context the view of apex Court is relevant. In the case State of M. P. and Anr. v. Dharam Bir, reported in (1998)6 SCC 165 wherein the Apex Court held that "specific Rules have to be followed in the change of status. In absence of such rule, no regularisation can be made by changing the status automatically. " ( 10 ) IN the instant case the picture is the same. There is no specific Rule by which the petitioner would be able to change the status of the petitioner from the post of peon to the post of Clerk. Furthermore, it is admitted, that the petitioner served in the post of Clerk while getting the salary for the post of Class IV staff i. e. Peon. So the petitioner is not entitled to get any relief in view of the said legal position for regularisation in the post of clerk. ( 11 ) THE Division Bench in the case of Managing Committee, Dinhata High School v. Ram Chandra Saha and Ors. , reported in 1997 Vol I CHN 105, have settled that regularisation is not mode of appointment. In view of such the decision impugned by the petitioner cannot be said to be illegal and arbitrary to exercise power of judicial review, Rather it can be said that the D. I. S. (SE) Howrah took the right decision. Accordingly, the writ application fails on that point. In view of such the decision impugned by the petitioner cannot be said to be illegal and arbitrary to exercise power of judicial review, Rather it can be said that the D. I. S. (SE) Howrah took the right decision. Accordingly, the writ application fails on that point. ( 12 ) SO far as point No. (b) aforesaid namely whether the writ petitioner is entitled to have an order for appearance in the interview along with the candidates who would be sponsored by Employment Exchange for the post of Clerk which is lying vacant is now to be considered. Clause 4 (c) of Memo No. 1736 (21) GA dated Calcutta, the 1st November, 1999 hereinafter refer to as Recruitment Procedure of 1999 is the guiding rule for recruitment of non-teaching staff as issued by Director of School Education. At present, relating to the vacancies to the teaching staff which is controlled and guided by School Service Commission Act and the procedure relating thereto. Under the said Recruitment procedure of 1999 the present vacancy of the Clerk to be filled up. The relevant clauses of the said Procedure namely Clauses 3 (a) and (b) and 4 (a) and (c) are relevant which are set out herein below:-"3 (A) When any vacancy occurs against any sanctioned post in any recognised and aided Schools, Madrasahs or an any set up school/madrasah: the management of these Institutions shall approach the D. I. S. (SE) for prior permission for taking steps for appointment with relevant papers. D. I. of Schools (SE) shall sponsor upto three eligible candidates from the Death-in Harness Category. If there are such names in the Register, in order to be counted from the date of registration along with the prior permission. However, in case of vacancy arising in a School where a deceased non-teaching staff had been working prior to his/her death the names of the eligible word of that deceased non-teaching staff if his/her educational qualifications suit shall be sponsored by the D. I. of Schools (SE) irrespective of seniority made under the Death-in-Harness Category. However, in case of vacancy arising in a School where a deceased non-teaching staff had been working prior to his/her death the names of the eligible word of that deceased non-teaching staff if his/her educational qualifications suit shall be sponsored by the D. I. of Schools (SE) irrespective of seniority made under the Death-in-Harness Category. 3 (b) The management of the School shall consider the candidature of the sponsored Candidates from Death-in-Harness category within 30 days from the receipt of the prior permission as per procedure laid down below and prepare a panel and forward the same to the D. I. of Schools (SE) within 15 days of the date of interview. A one man panel shall be prepared in case there is only one candidate in the Death-in-Harness Category. If there is no candidate in Death-in-Harness Category, the D. I. of Schools (SE) shall permit the school to obtain names from the Employment Exchange. 4 (a) On receipt of the prior permission from the School stage from the D. I. of Schools (SE), the School Authorities shall approach the Local Employment Exchange for sponsoring the names of the Employment Exchange candidates. 4 (c) All D. I. S. (SE) shall maintain a Roster to record the names of the qualified eligible approved non-teaching staff for the post of Clerk/librarian and forward three names of eligible candidates for interview along with the Candidates sponsored by Employment Exchange. " ( 13 ) HENCE, as per the Recruitment procedure, 1999, the present vacancy of the Clerk when to be intimated by the school Authority to the District Inspector of School (SE) Howrah hereinafter refer to as District Inspector of Schools concerned, the first priority to be given to the candidates listed under "death-in-Harness" Category and in the event of non-availability of candidates under said category, District Inspector of Schools concerned would proceed to accord prior permission to fill up the vacancy by directing School Authority to approach the names from local Employment Exchange in terms of Clause 4 (a) of the said Procedure. ( 14 ) HENCE, so long as there is no exercise of the power under Clause 4 (a), the writ petitioner is not entitled to have the benefit under Clause 4 (c) of the said procedure for his appearance along with other sponsored candidates for the said post in question. ( 14 ) HENCE, so long as there is no exercise of the power under Clause 4 (a), the writ petitioner is not entitled to have the benefit under Clause 4 (c) of the said procedure for his appearance along with other sponsored candidates for the said post in question. From the pleadings and the documents of the writ application it is clear that as yet the school Authority has not intimated the vacancy to the District Inspector of Schools concerned, so far as the post of Clerk as has recently been vacant, Even if there is intimation to such, still then, District Inspector of Schools concerned will have to consider the reference of the names from Death-in-Harness Category to fill up such vacancy. The right of candidates enlisted under Death-in-Harness Category is a superior right then the right of the approved non-teaching staff enlisted for the post of Clerk/librarian. Hence, as yet there is no occasion for reference of the name of the writ petitioner when District Inspector of Schools concerned has not exercised his power by directing that the vacancies would be filled up in terms of Clause 4 (a) after compliance of the Clause 3 (a) namely reference of the names of the candidates under Death-in-Harness Category. Hence, the prayer as made is premature and the writ Court cannot pass any order on such issue. In the present vacancy, the District Inspector of Schools concerned will refer the names of the candidates listed under Death-in-Harness Category. Such power of the District Inspector of Schools concerned cannot be taken away by this Court as the same would be usurption of the power as vested to the statutory body. In view of such position, the prayer, of the writ petitioner cannot be allowed. District Inspector Schools concerned has no discretion in the matter to fill up the vacancy without taking steps to fill up such vacancy from the candidates of death-in-Harness Category, Clause 3 has been inserted in the Recruitment Procedure, 1999 with a social welfare object to mitigate the suffering of the dependants of employees teaching and non-teaching staff who Die-in-Harness. The writ petitioner cannot claim a right over the statutory right of those candidates. Hence, the prayer not only being pre-matured but same is not based on any legal right, accordingly the point No. (b) is decided against the writ petitioner. The writ petitioner cannot claim a right over the statutory right of those candidates. Hence, the prayer not only being pre-matured but same is not based on any legal right, accordingly the point No. (b) is decided against the writ petitioner. Hence, the writ application fails and it is dismissed but in the facts and circumstances of this case there will be no order as to costs. Application dismissed.