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2002 DIGILAW 271 (CAL)

Saguni Muchi v. State of West Bengal

2002-04-23

PRANAB KUMAR CHATTOPADHYAY

body2002
JUDGMENT The judgment of the Court was as follows :–– This petition though was filed on behalf of both the petitioner Nos. 1 and 2 herein but subsequently the petitioner No. 2 left the service and as such the learned Advocate of the petitioner confined his submissions only in respect of petitioner No. 1 and did not argue anything in support of the claims of petitioner No.2. 2. The petitioner No.1 was appointed as an Assistant Teacher of Dr. B. R. Ambedkar Vidyalaya on 26th March, 1976 and the petitioner joined the school as Assistant Teacher on 1st April, 1976. The petitioner No. 1 has claimed that he has been discharging his duties as an Assistant Teacher of the said school since the date of joining i.e. on and from 1st April, 1976. 3. There were only three approved posts of teachers in the school at the time of appointment of the petitioner No. 1 and admittedly the petitioner was not appointed against any approved vacant post of Assistant Teacher. However, the Secretary of the said school after appointing the petitioner No. 1 as an Assistant Teacher of the school, forwarded the relevant papers in respect of petitioner No. 1 to the District Inspector of Schools (PE), Calcutta for grant of approval of the appointment of petitioner No.1. 4. The Secretary of the said school, thereafter, sent several reminders for approval of the appointment of the petitioner as an Assistant Teacher in the said Dr. B. R. Ambedkar Vidyalaya. The petitioner also made several representations to various authorities including the Minister-in-Charge, Department of Education, Govt. of West Bengal. The District Inspector of Schools (PE), Calcutta prepared a list of unapproved teachers working in normal/additional posts in different schools under Calcutta District on 5th January, 1985 and the name of the petitioner No. 1 has been specifically mentioned in the said list of unapproved teachers as working in the additional post in Dr. B. R. Ambedkar Vidyalaya. 5. The learned Advocate of the petitioner submitted that the appointment of the petitioner was made by the Managing Committee of the school in accordance with the Government Order No. 1472-EDN (P) dated 20.7.1972 and as such the District Inspector of Schools concerned should have accorded approval to the appointment of the petitioner in terms of the Government Order No. 390-EDN(P) dated 22/24 March, 1979. According to the learned Advocate of the petitioner, the District Inspector of Schools has failed to discharge his statutory duties in the matter of according approval to the petitioner herein without any valid reason. 6. The learned Advocate of the petitioner No. 1 also submitted that the legitimate claim of the petitioner under Rule 4(i) of the rules framed under West Bengal Primary Education Act was wrongly denied to the petitioner by the respondent authorities. The learned Advocate of the petitioner further contended that school of the petitioner No.1 is governed by the Free and Compulsory Primary Education Scheme and appointment made by the Managing Committee of Urban Aided Primary Schools upto 31st December, 1976 should have been approved in terms of the Government Order No. 896-EDN(P) dated 28.04.78. 7. It has been urged by the learned Advocate of the petitioner that the petitioner No. 1 has been discharging his duties to the satisfaction of the school authorities but the salary and allowances of the petitioner could not be paid due to the failure of the District Inspector of Schools concerned in granting necessary approval to the appointment of the said petitioner No.1. 8. The learned Advocate of the petitioner submitted that one Smt. Pratima Pal who was identically placed like the petitioner and, was working as an Assistant Teacher in Durgabala Dutta Girls Primary School, Calcutta was absorbed in normal vacancy pursuant to the order of this Court. 9. The learned Advocate of the petitioner placed reliance on the following decisions in support of his arguments:–– (1) 2000(2) CLT 231 (HC), Swapan Kumar Chatterjee v. Calcutta District Primary School Council & Ors. (2) Aparna Bhattacharyya (Mukherjee) v. State and Ors, reported in 2001 (1) CLJ page 423. (3) 1991 Supp. (2) Supreme Court Cases 421, H. C. Puttaswamy & Ors. v. The Hon'ble Chief Justice of Karnataka High Court, Bangalore & Ors., page 421. (4) Daily rated casual labour employed under P & T Department through Bharatiya Dak Tar Mazdoor Mach. v. Union of India & Ors. and National Federation of P & T Employee and Anr. v. Union of India & Ors. reported in 1988(1) SCC 122 . (5) 1999 (II) CHN page 355, The District School Board, 24 Parganas (North & South) and Ors. v. Dukhiram Sardar & Ors. (6) Dhirendra Chamoli & Anr. v. State of U.P. reported in 1986 (1) SCC 637 . and National Federation of P & T Employee and Anr. v. Union of India & Ors. reported in 1988(1) SCC 122 . (5) 1999 (II) CHN page 355, The District School Board, 24 Parganas (North & South) and Ors. v. Dukhiram Sardar & Ors. (6) Dhirendra Chamoli & Anr. v. State of U.P. reported in 1986 (1) SCC 637 . (7) Smt. Gouri Bose v. The State of West Bengal & Ors. reported in 1997 (1) CLJ page 111. 10. The learned Counsel of the Calcutta District Primary School Council, however, submitted that the Managing Committee of the school had no power to appoint teacher, in a primary school recognised, controlled and run by the Council in view of Government Order No. 1614-EDN(P) dated 8.11.74. It has been specifically urged on behalf of the respondent Council that the power of appointment was vested with the District Inspector of Schools (PE), Calcutta at the relevant point of time when the petitioner No. 1 was appointed by the Managing Committee of the school. 11. The learned Advocate of the Council submitted that the Government Order No. 1772-EDN(P) dated 28th July, 1972 was modified by the subsequent Government Order No. 1614-EDN(P) dated 8th November, 1974 and as such the petitioner is not entitled to claim any benefit in terms of the Government Order dated 28th July, 1972. The learned Advocate of the respondents specifically urged that the petitioner was illegally appointed by the school authority as there was no approved vacancy in the said school. 12. The learned Counsel of the respondents referred to and relied upon various decisions of the Supreme Court and also of this Hon'ble Court and submitted that the appointment of the petitioner cannot be regularized as the petitioner was appointed in clear violation of the statutory rules as were applicable at that point of time. It has been specifically urged by the learned Counsel of the respondent Council that the Managing Committee of the school had no power to create any post without obtaining approval from the competent authority and therefore, the service of the petitioner No.1 cannot be regularized as the appointment of the petitioner No.1 was made in violation of the relevant provisions of the Recruitment Rules as were applicable at the relevant point of time. 13. 13. The decisions cited by the learned Counsel of the respondent Calcutta District Primary School Council are mentioned hereunder:– (8) 1996 Lab IC 1990, Calcutta District Primary School Council and Anr. v. Smt. Anuva Roy (Chakraborty). (9) 1996 Lab IC 1999, Managing Committee D.C. Arya Sr. Sec. School v. Administrator, Delhi and Others. (10) AIR 1997 SC 1628 , Ashwani Kumar and Ors. v. State of Bihar and Others. (11) AIR 1995 SC 962 , Dr. Arundhati Ajit Pargaonkar v. State of Maharashtra. 14. Undisputedly, the petitioner No.1 was appointed by the Managing Committee of the school without following the relevant provisions of the Recruitment Rules as were applicable at that point of time. Furthermore, the petitioner No. 1 was never appointed against an approved vacant post. The Managing Committee of the school had no power to create any post or to appoint any teacher at the relevant point of time when there is no vacancy. 15. Accordingly, the petitioner No. 1 herein has no legal right to claim any relief against the respondents in view of the fact that the said petitioner was admittedly appointed in clear violation of the relevant provisions of the Recruitment Rules. It has been specifically held by this Court in the case of (12) Director of Public Instructions of West Bengal and Others v. Dr. Ashish Pal and Ors. reported in 1998 (II) CHN 241 that High Court has no jurisdiction to issue an order directing the regularization of service contrary to mandatory provisions of the relevant status. 16. The learned Counsel of the petitioner though submitted that the Managing Committee of the school had to appoint teachers considering the total number of students of the school but no rule was mentioned before this Court which authorised the Managing Committee to create a post without obtaining necessary approval from the competent authority. The Managing Committee of the school cannot act without any authority of law. In the present case, the Managing Committee of the school appointed the petitioner No. 1 even though there was no sanctioned vacant post in the said school. 17. Admittedly, an appointing authority is empowered to fill up the duly sanctioned vacant posts in accordance with the provisions of the Recruitment Rules but no appointment can be made in the absence of a sanctioned vacancy. 17. Admittedly, an appointing authority is empowered to fill up the duly sanctioned vacant posts in accordance with the provisions of the Recruitment Rules but no appointment can be made in the absence of a sanctioned vacancy. If any appointment is made by the appointing authority in violation of the Recruitment Rules then such appointment is a nullity in the eye of law. 18. In the present case, the Managing Committee of the school appointed the petitioner in the post of an Assistant Teacher in the school even though there was no sanctioned vacant post of teacher in the said school at that time. The Managing Committee of the school, therefore, appointed the petitioner in clear violation of the relevant provisions of the Recruitment Rules as wee applicable at that time. 19. This aspect of the matter was specifically considered by this Court in the case of (13) Smt. Pushpa Singh and Anr. v. State of West Bengal reported in Cal L T 1999 (1) (HC) 393. 20. It is true that the petitioner No. 1 herein was appointed in the year 1976 and has been working since then but admittedly he was never appointed against any sanctioned vacant post of Assistant Teacher in the said school and as such the service of the petitioner cannot be regularized and this Court, therefore, cannot direct the respondent to regularize the service of the petitioner in the aforesaid circumstances. 21. No right has accrued in favour of the petitioner even after working as an Assistant Teacher since 1976 as the service of the petitioner was never against any sanctioned vacant post. 22. In the aforesaid circumstances, the petitioner cannot claim any right against any post of teacher in the said school as the petitioner never served against any sanctioned and approved post of teacher in the said school. 23. The learned Counsel of the petitioner though referred to various Government Orders as have already been referred to hereinbefore but the same cannot be of any help to the petitioner in the present case. The decisions cited by the learned Counsel of the petitioner are clearly distinguishable and also not applicable in the facts of the present case. 24. For the aforementioned reasons, I do not find any merit in the present writ petition and this writ petition therefore, stands dismissed. 25. There will be, however, no order as to costs. The decisions cited by the learned Counsel of the petitioner are clearly distinguishable and also not applicable in the facts of the present case. 24. For the aforementioned reasons, I do not find any merit in the present writ petition and this writ petition therefore, stands dismissed. 25. There will be, however, no order as to costs. Let xerox certified copy of this judgment be made available to the respective parties, if applied for, on urgent basis. Later––Prayer for stay of operation of this judgment and order is considered and refused.