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2009 DIGILAW 502 (CAL)

Sampa Goswami v. STATE OF WEST BENGAL

2009-07-13

KALYAN JYOTI SENGUPTA, MD.ABDUL GHANI

body2009
JUDGMENT 1. By this appeal, the appellant before us has impugned judgment and order of the learned Trial Judge dated 24th February, 2009, by which the petitioner's claim for continuation as part-time teacher, has been rejected and at the same time, relief for not appointing any, new part-time teacher in the school, in view of Government notification dated 27th April, 2007, has been refused. 2. Undisputed fact of the case is that the writ petitioner/appellant was engaged on the basis of a contract, pursuant to a Government notification as a part-time teacher and she was duly selected in the selection process and there has been a written contract network as part-time teacher and such period of contractual agreement was to come to an end in May, 2007. In the agreement there has been specific mention that she would not have any right to be absorbed nor to have any further extension, either by way of renewal or otherwise. The contract was signed by the parties keeping their eyes open and there is no challenge against the said contract. 3. In the meantime, when the period of this contractual agreement was going to be over, in anticipation a selection process was initiated for bringing fresh blood. The appellant/writ petitioner duly participated in the said selection process and she became unsuccessful. Before this contractual period was going to be over, fortuitously there has been a notification dated 27th April, 2007, whereby and whereunder it has been specifically mentioned that there shall not be any new part-time teacher but the existing part-time teacher will continue and also with an enhanced remuneration of Rs.3,000/-per mensem. 4. The appellant/writ petitioner basing on the aforesaid Government order has filed the writ petition for the aforesaid reliefs. 5. Mr. Pulak Ranjan Mondal, learned Advocate while pressing this appeal submits that the learned Trial Judge has wrongly interpreted the Government notification and has failed to appreciate that contractual .agreement cannot have any force overriding the Government notification which has got the statutory force. Moreover, the fresh appointment given by the school authority is contrary to the Government notification dated 27th April, 2007, though there has been a selection process and his client had participated in the same. He submits that the right accrued subsequently in terms of the Government notification, cannot be taken away by the contractual agreement. Moreover, the fresh appointment given by the school authority is contrary to the Government notification dated 27th April, 2007, though there has been a selection process and his client had participated in the same. He submits that the right accrued subsequently in terms of the Government notification, cannot be taken away by the contractual agreement. He, therefore, wants that the appellant/writ petitioner should continue with the job of part-time teacher with the enhanced remuneration of Rs. 3,000/- per mensem. 6. Mr. Pradyumno Sinha, learned Advocate appearing for the school authority submits that the writ petitioner is estopped from challenging the order of appointment made in favour of the respondent No.7. He further says that the writ petitioner has no justiciable right to come to this Court as admittedly she was appointed on contractual basis for one year and before expiry of one year, in order to have further lease of life, she participated in the selection process and was unsuccessful. After having participated in the selection process. She cannot file this writ petition on the strength of the notification dated 27th April, 2007. There has been no provision for renewal in the contract and it was only for one year. Therefore, appointment of each and every year has to be made with fresh selection process. He further submits, drawing our attention to the Government notification dated 27th April, 2007 that the selection process was started for appointing part-time teacher long before the issuance of the aforesaid notification. He submits that clause 3 of the said notification though mention that existing part-time teachers (on contract basis) may, however, continue until further order the same is directory and not mandatory. Moreover, he says that it is for the school authority to enter into contract with any person. So this Government notification is of no help to the writ petitioner. 7. Smt. Sima Sengupta, appearing for the State respondents supports and adopts the submission of Mr. Sinha. She says that the writ petitioner has no right to be appointed or to continue as she has participated in the selection process and being unsuccessful, has approached this Court drawing inspiration from the said notification dated 27th April, 2007. 8. Mr. Banerjee, appearing for the respondent No.7 says that his client has already been appointed as she was selected. He admits that the appointment is a contractual one and for a period of one year. 8. Mr. Banerjee, appearing for the respondent No.7 says that his client has already been appointed as she was selected. He admits that the appointment is a contractual one and for a period of one year. All the respondents submit that there is no reason to interfere with the judgment and order of the learned Trial Judge. 9. We have considered the respective contentions of the learned Counsels. The only point for consideration is whether the learned Trial Judge has dismissed the writ petition with legally correct approach having regard to the materials placed before His Lordship, or not. 10. Admitted position in this case is that the contractual appointment for one year was started pursuant to the Government decision dated 6th June, 2002 and at that time, non-Government schools were authorised to appoint part-time teacher on contract basis after having made proper selection with a salary of Rs. 2,000/- per month. From the order dated 6th, June, 2002, it is clear about the terms of the agreement to be incorporated in such agreements. Thus, these contracts might have been entered between the two private parties but this tannates from the Government decision, which has got the force of law. Under such circumstances, it cannot be said that breach and compliance of those contracts are beyond the scope of judicial review as the same are really statutory contract. 11. It is an admitted position further that the writ petitioner (appellant before us) duly participated in the selection process for the next term along with respondent No.7, but she was unsuccessful. Whether such conduct on the part of the writ petitioner/appellant amounts to waiver or she will be estopped from challenging the subsequent decision of the school authority, is a question to be examined. 12. We are of the view and it is also settled law that principle of estoppel and waiver does not apply as against the statutory or fundamental rights. Here, the writ petitioner/appellant's term of contract came to an end on 7th May, 2007 and in anticipation, she participated in the subsequent selection process, when the notification dated 27th April, 2007 did not see the light of the day. This notification of 27th April, 2007 has been given retrospective effect from 1st April, 2007. Here, the writ petitioner/appellant's term of contract came to an end on 7th May, 2007 and in anticipation, she participated in the subsequent selection process, when the notification dated 27th April, 2007 did not see the light of the day. This notification of 27th April, 2007 has been given retrospective effect from 1st April, 2007. Clauses 1 and 3 of the said notification are very important and relevant in this case which is reproduced below: "Clause 1: The enhanced emoluments Rs. 3,000/- (Rupees Three Thousand) only per Teacher per month will come into effect from the 1st April 2007. Clause 3: There will be no further appointment of any new Part-time Teacher (on contract basis) in Non-Govt. Higher Secondary Schools w.e.f. 1st April, 2007. The existing part-time Teachers (on contract basis) may, however, continue until further order:" 13. The aforesaid notification no doubt clearly stipulates that there shall be no further appointment of any new part-time teacher with effect from 1st April, 2007. Though the notification was issued of 27th April, 2007. retrospective effect was given. Under such circumstances, we are unable to accept the contention of all the respondents, because on the face of the aforesaid prohibition, no appointment could be given after 1st April, 2007. 14. We are of the view by the said notification dated 27th April, 2007, a valuable right has been accrued in favour of the writ petitioner/appellant making it clear that the existing teachers may, however, continue until further orders. We are unable to accept the contention that the aforesaid right has been given to the school authority to discontinue in exercise of its discretion. Rather, the language is very clear to enable the teachers concerned, either to continue or to discontinue with the said contractual appointment until further order. In our opinion, from 1st April 2007, the writ petitioner/appellant is entitled to get salary at the enhanced amount of Rs. 3,000/- per month, pursuant to the terms of the contract. This contractual right and obligation has merged with the notification dated 27th April, 2007 allowing the writ petitioner/appellant to continue until further order. 15. The Government is funding for engagement and continuation of the part-time teachers. When the Government had decided to allow the existing part-time teachers to continue, school authority has neither discretion nor any power to discontinue the writ petitioner/appellant in any manner, whatsoever. 15. The Government is funding for engagement and continuation of the part-time teachers. When the Government had decided to allow the existing part-time teachers to continue, school authority has neither discretion nor any power to discontinue the writ petitioner/appellant in any manner, whatsoever. Therefore, mere participation of the writ petitioner/appellant in the selection process, before issuance of the aforesaid notification, does not operate as an estoppel or waiver, for the aforesaid order no doubt created a right of livelihood, which is a part of life as guaranteed under Article 14 of the Constitution of India. We are of the opinion that this right cannot be taken away, either by the State or by the act and conduct of the writ petitioner/appellant applying the principle of estoppel as urged before us. The aforesaid proposition has been authoritatively decided in the case of Olga Tellis vs. Bombay Municipal Corporation, reported in AIR 1986 SC 180 : 1985(3) SCC 545 . 16. But then, question remains what would happen to those persons who had participated in the selection process before the aforesaid notification dated 27th April, 2007 was issued, particularly, in this case the case of the respondent No.7. We are of the view that though mere selection does not create any right to be appointed, she had reasonable expectation on being selected in this peculiar situation, but because of change of law this should not happen. 17. We think the Government should consider the case of the respondent No.7 in view of being successful in the selection process so that she can be engaged and/or accommodated in some other school. We, therefore, direct the Secretary, Education Department, Government of West Bengal to consider the case of the respondent No.7. 18. The learned Trial Judge, however, unfortunately did not take note of the aforesaid legal implication in view of the changed facts and circumstances of this case. The learned Trial Judge, with great respect, has, however, looked the expressed prohibition in the matter of appointment of part-time teacher on and from 1st April, 2007 and ignored the expressed prohibition against continuation of existing para teachers like the writ petitioner/appellant with enhanced emoluments. 19. Accordingly, we hold that the judgment and order of the learned Trial Judge is not sustainable. We, therefore, set aside the same. This appeal is thus, allowed, however, without any order as to costs. 20. 19. Accordingly, we hold that the judgment and order of the learned Trial Judge is not sustainable. We, therefore, set aside the same. This appeal is thus, allowed, however, without any order as to costs. 20. At the interim stage it was made clear that appointment of the respondent No.7 will abide by the result of the writ petition. Accordingly, the writ petitioner/appellant shall be reinstated but she will not get salary for the period during which she did not work and the respondent No.7 will get the remuneration for the period during which she worked in terms of the order of this Court. Appeal allowed.