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2001 DIGILAW 32 (CAL)

Suparna Dey v. State of West Bengal

2001-01-19

PRATAP KUMAR RAY

body2001
Judgment 1. The instant writ application is directed praying for regu1arisation of service in the post of Assistant Teacher of Lady Abala Bose Balika Vidyalaya. 2. The following reliefs have been prayed for in the writ application ;" (a) A writ in the nature of Mandamus directing the respondents to show-cause why the appointment of the petitioner in the post of Assistant Teacher of Life Science of Lady Aba1a Bose Balika Vidyalaya should not be approved and further directing them to show-cause why the impugned memo being No. 306/D dt. 26.7.1993 issued by the respondent No.4 and the impugned Memo No. 2118-GA dated 22.12.1993 issued by the respondent No.3 should not be set aside, rescinded, cancelled and/or withdrawn; . (b) A writ in the nature of Mandamus directing the respondents to approve the appointment of the petitioner in the post of Assistant Teacher of Life Science in Lady Abala Bose Balika Vidyalaya permanently with immediate effect and further directing them to pay her salary as per grant-in-aid rules to which the petitioner is entitled." 3. It is the case of the writ petitioner that on 1.9.89, she was appointed in terms of the appointment letter issued by the Secretary of the Managing Committee of the school in the post of Assistant Teacher in Bio-Science in terms of her application dated 16.8.89. The said appointment letter dated 29th August, 1989, was issued by the Secretary of the Managing Committee of Lady Abala Bose Balika Vidyalaya (hereinafter referred to as the said school). It is submitted that from time to time such appointment was extended by the Secretary, and the petitioner is still working in the said school. It is further submitted that the petitioner is entitled to have the regularisation in a vacancy caused due to Sm. Chitra Saha, whose service was declared as cancelled applying Rule 11(i) of Leave Rules as per the decision of the Secretary of the West Bengal Board of Secondary Education. 4. Affidavit-in-opposition has been filed by the Teacher-in-Charge contending, inter alia, that since 1991 there was a dispute about the functioning of the Managing Committee and the service of the petitioner was not extended. 5. Learned Senior Advocate Mr. Ghosal submitted as follows in support of the writ application :- (a) That in terms of Education Department Memo No. 536-Edn. 4. Affidavit-in-opposition has been filed by the Teacher-in-Charge contending, inter alia, that since 1991 there was a dispute about the functioning of the Managing Committee and the service of the petitioner was not extended. 5. Learned Senior Advocate Mr. Ghosal submitted as follows in support of the writ application :- (a) That in terms of Education Department Memo No. 536-Edn. (Estt.) /9A-9/80 dated 16th July, 1980, the petitioner is entitled for approval of appointment in view of completion of 2 years from the date of initial appointment on temporary basis; (b) That due to continuous service since 1989, the petitioner has acquired a right to be absorbed, and denial of such is nothing but cruelty in terms of Article 39(d) of the Constitution of India. 6. Reliance has been placed by the learned Advocate for the petitioner III the case of (1) H. C. Puttaswamy & Ors. v. The Hon'ble Chief Justice of Karnataka High Court & Ors. reported in 1991 Supp (2) SGC 421, in the case of (2) Dhirendra Chamoli & Anr. v. State of U. P. reported in 1986 (I) SCC 637 , and in the case of (3) Daily Rated Casual Labour v. Union of India & Ors. reported in 1988(1) SCC 122 , and an unreported judgment of this Court passed by a Division Bench of this Court in Appeal from Original Order No. 285 of 1992, (4) State of W. B. v. Sm Santa Chakraborty, disposed of on 21st December, ]992. Learned Advocate for the petitioner further submitted that in terms of Rule 28(7) of the Management Rules, the appointment of the petitioner was required to be regularised. 7. On the basis of the aforesaid contentions, it is submitted that the writ petition be allowed directing absorption with retrospective effect and payment of salary, allowance and service benefits upon quashing the impugned letter refusing such approval dated 26th July, 1993, by the District Inspector of Schools (S.E.), Calcutta, whereby and whereunder a decision was reached by the said authority that since the appointee was not appointed following the recruitment rules without any prior permission upon declaration of such vacancy from the District Inspector of Schools concerned, and since there was no valid Managing Committee at the material time the writ petitioner was not entitled to get the benefit of absorption of service. This impugned decision is at page 41, being Annexure 'F' to the writ application. 8. Considering the entire matter, the following points emerge for adjudication :- (i) Is the writ petitioner entitled for absorption in service on the ground of continuous service and on the basis of the judgments as relied upon? (ii) Whether the writ petitioner has legal right to maintain the writ application? 9. It is an admitted at the Bar that at the relevant time when the appointment was made by the Secretary in favour of the writ petitioner a recruitment rule was existing having a statutory force, being the recruitment rule issued under Memo No. 1828 (17) G. A. dated 31.8.87 issued by the Director of School Education, West Bengal in exercise of his power under Rule 28 of the Management Rules, 1969. The said recruitment rule provides the procedure for appointment. The Managing Committee had no authority to give any appointment without following such recruitment rules. In terms of the said recruitment rule, the school authority was required to file requisition to fill up vacancy to the District Inspector of Schools concerned, who in turn, was required to accord prior permission to fill up the vacancy either sending the names from his reserve list of died-in-harness category and/or physically handicapped category or by directing to fill up the vacancy inviting names from Employment Exchange. After such procedure, the selection committee, as was required to be constituted under the rules, was required to assess the merits of the candidates and prepare a panel. This panel was required to be recommended by the Managing Committee for approval to the District Inspector of Schools concerned, and after approval of the panel, there was a question of appointment. Hence, it is an admitted fact that on the material time when the writ petitioner was appointed there was a recruitment rule and it is an admitted fact that the writ petitioner was not appointed following the recruitment rules. Hence, her appointment is de hors the statute and violative of Articles 14 and 16 of the Constitution of India. The writ petitioner sought for regularisation of her service though her appointment was not made following the recruitment rules. Hence, her appointment is de hors the statute and violative of Articles 14 and 16 of the Constitution of India. The writ petitioner sought for regularisation of her service though her appointment was not made following the recruitment rules. In the case of (5) B. N. Nagrajan v. State of Karnataka reported in AIR 1979 SC 1676 , a judgment of 3 Judges Bench of the Apex Court in Paragraph 5 decided as follows : "When rules framed under Artic1e 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 of the Constitution thereof in contravention of the rules." 10. It has been further decided by the Apex Court :- "What could not be done under the sets of rule as they stood, would thus be achieved by an executive fiat and such a course is not permissible because an act done in the exercise of executive power of the Government already stated cannot override the rules framed under Article 309 of the Constitution of India." 11. On the reflection of the aforesaid judgment, it is clear that the writ petitioner cannot be regularised since her appointment itself IS in violation of the statutory rule. The writ petitioner has been appointed in a back door method despite the existence of recruitment rule at the material time, whereby and whereunder the candidates who were waiting in the Employment Exchange register were entitled to appear at the interview for the post in question had the recruitment rules would have been followed in the matter of appointment. The appointment of the writ petitioner thus is a back door appointment and, accordingly, in view of the decision of the Apex Court in the case of (6) State of U. P. v. U. P. State Law Officers' Association reported in 1994(2) SCC 204 , the writ petitioner must go through this back door. The circular letter, as referred to by Mr. Ghosal, learned Advocate, has no applicability in the instant case, as the recruitment rules for appointment of teaching and non-teaching staff came into effect from 16th August, 1981, and, accordingly, all circular letters issued earlier became nonest in the eye of law. Furthermore, the purport of the circular letter of 16th July. The circular letter, as referred to by Mr. Ghosal, learned Advocate, has no applicability in the instant case, as the recruitment rules for appointment of teaching and non-teaching staff came into effect from 16th August, 1981, and, accordingly, all circular letters issued earlier became nonest in the eye of law. Furthermore, the purport of the circular letter of 16th July. 1980, was to accord approval of a regular appointee in temporary vacancy and/or a temporary appointee though appointment was made in permanent vacancy, but in temporary capacity. The condition precedent of applicability of the said rule was to receive all salary and allowance as per grant-in-aid rules. In the instant case, it is an admitted position that the writ petitioner was not getting salary as per grant-in-aid rules as her appointment was not made following the recruitment rule. Hence the circum letter has no applicability. The submission of the learned Advocate Mr. Ghosal that due to continuous service, the petitioner got a right to be absorbed and reliance has been made to the judgments above referred to. Those judgments, with due respect, at the present moment, have no applicability in view of several judgments of the Apex Court on the point that any appointment de hors, the statutory rule is itself a nullity and violative of Articles 14 and 16 of the Constitution of India. The Apex Court further held that continuous service ipso facto cannot be a ground to claim for regularisation in service. This point is already settled by different judgments of this Court and the Apex Court. Regularisation is not a mode of appointment. In the judgment in case of (7) Managing Committee, Dinhata High School v. R.C. Shaw reported in 1997 (1) CHN 104, a Division Bench of this Court considering a large number of cases of Apex Court, held that any appointment in violation of statutory provision would be ultra vires and continuous service by itself cannot be a ground for regularisation. The learned Advocate of the petitioner has relied upon judgments related to appointment of industrial worker or Class IV staff. Regularisation theory and for principles as are considered for regularisation of Class [V staff, casual worker, labourer, has no applicability in so far as regularisation of service to a teacher. This has been decided by the Apex Court in the case of (8) Dr. (Mrs.) Meera Massey v. Dr. Regularisation theory and for principles as are considered for regularisation of Class [V staff, casual worker, labourer, has no applicability in so far as regularisation of service to a teacher. This has been decided by the Apex Court in the case of (8) Dr. (Mrs.) Meera Massey v. Dr. S. R. Mehrotra reported in AIR 1998 SC 1153 . In that judgment, the Apex Court has categorically held that regularisation of a teacher cannot be as per on the same principles of regularisation of Class IV staff and/or industrial workman. The judgment as relied upon by Mr. Ghosal, learned Advocate for the petitioner in the case of Dhirtl1dra Chamoli (supra), is a case relating to Class iv staff and that was also a judgment passed by the Apex Court i!1 exercise of jurisdiction under Article 142 of the Constitution of India. The judgment in the case of Daily Rated Casual Labour (supra), is also a case related to casual labourer. Hence, on the reflection of the judgment of the Apex Court in Dr. (Mrs.) Meera Massey, those two judgments are distinguishable, and it has no applicability in deciding a case of regularisation of a teacher. The judgment as referred to in H. C. Pultaswamy (supra), also has no applicability in the instant case, as in that case, the Chief Justice of Karnataka High Court agreed to pass necessary order of regularisation of service when the matter came up for review before the Apex Court. In that case in violation of the recruitment rules issued by the Public Service Commission, appointment was made and after challenge and being unsuccessful. a Special Leave Petition was filed. The same was dismissed by the Apex Court, and, there after, the review application was filed for consideration of the matter on sympathetic and' humanitarian ground, when notices were issued, and in response there to the Karnataka High Court itself came forward to regularise their staff and, accordingly, the judgment was delivered by the Apex Court in that case. This has also no applicability in the instant case. This has also no applicability in the instant case. It is a settled legal position that a judgment can be considered as a precedent if the factual matrix and the legal points involved are identical, otherwise it cannot be considered as a precedent in terms of the view of the Apex Court on deciding the question about binding effect of judgment in the case of (9) The Regional Manager v. Pawan Kumar Dubey reported in AIR 1976 SC 1766 , wherein the Court held :- "One additional or different fact can make a world of difference between ~wo consequences in two cases even when the same principles are applied in each case to similar facts." 12. In the instant case, there is no such circular letter by which the petitioner's service can be regularised by way of amendment of the rule, that is, the recruitment rules. Thus, an executive order in terms of Article 162 of the Constitution of India to that effect cannot rescue the petitioner, though admittedly, in the instant case, there is no such circular letter. Very recently, in a Division Bench wherein I was a member, being W.P.S.T. No. 362 of 1999, being a case of D. D. T. spray workers who wanted regularisation of service on the basis of circular letter of the Labour Department, being No. 1700 E. M. P. of 1978, it has been held relying upon the judgment of the Apex Court in the case of (10) State of M. P. v. Dharam Bir reported in 1998(6) SCC 165 , as well as the judgment of 8. N. Nagrajan (supra), that no regularisation is possible even by that executive decision and the Government circular letter, when already a recruitment rule is existing. In the instant case, there is an existing. rule, being recruitment rule and there is absence of any circular letter for regularisation of service even by an executive decision. In that view of the matter, the writ petitioner is not entitled to get any benefit. It has already been decided by the Apex Court that continuous service cannot be a ground for regularisation of service and it is not a mode of appointment by the judgment in (11) Dr. Arundhati Ajit Pargaonkar v, State of Maharashtra reported in AIR 1995 SC 962 . Furthermore, it is the contention of the learned Advocate Mr. It has already been decided by the Apex Court that continuous service cannot be a ground for regularisation of service and it is not a mode of appointment by the judgment in (11) Dr. Arundhati Ajit Pargaonkar v, State of Maharashtra reported in AIR 1995 SC 962 . Furthermore, it is the contention of the learned Advocate Mr. Ghosal that sympathetic consideration and humanitarian approach may be applied by this Court. It is a settled legal position that sympathy and law both cannot duel together. In the instant case, there is a clear violation of recruitment rule and many unemployed youths were deprived to have consideration of their cases on merits. The petitioner was appointed as per pleasure of the Secretary of the Managing Committee and that too without any sanction and approval of Managing Committee or D.I. of Schools. There was no scope of giving such appointment by the Managing Committee in terms of Rule 28 of the Management Rules of 1969, and, accordingly, there was no valid appointment. There is no scope to favour the petitioner by this Court as sympathy cannot be extended in violation of the statutory rule, which is a settled legal principle. In the case of (12) Debirani Bhattacharya & Anr. v. The District Inspector of Schools (S.E.), Burdwan & Ors. reported in 1996 (2) CHN 415 , a Division Bench of this Court has decided this point. Furthermore, in the case of (13) Latham v. Johnson & Nephew Ltd. reported in (1911-13) All England Reports 117, at page 123, it has been held :. "Sentiment is a dangerous will of the wisp to take as a guide in the search for legal principles." 13. The unreported judgment of this Court as referred to by writ petitioner, with due respect, at the present moment with the change of law and the judgments of the Apex Court has no applicability. 14. Considering the entire matter, accordingly the first point is answered that the writ petitioner is not entitled to have regularisation of service. 15. So far as the second point that the petitioner has no legal right to come to writ Court and whether the writ application is maintainable, I am of the view that the writ petitioner has no legal right, and as such, the writ petition itself is not maintainable. 16. 15. So far as the second point that the petitioner has no legal right to come to writ Court and whether the writ application is maintainable, I am of the view that the writ petitioner has no legal right, and as such, the writ petition itself is not maintainable. 16. In view of the aforesaid findings and reasons, the writ application is dismissed. Since the writ petitioner has no legal right to come to this writ Court and there is no pleading to that respect, a cost of Rs. 1,700/- is imposed upon the writ petitioner as a token cost. Xerox certified copy of the order, if applied for, be supplied as early as possible.