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2009 DIGILAW 788 (CAL)

Krishna Ghosh v. STATE OF WEST BENGAL

2009-10-26

KALYAN JYOTI SENGUPTA, Md.Abdul Ghani

body2009
JUDGMENT: Mr. Tulsi Das Maiti 1. LEARNED Counsel appearing for State consents to disposal of the application as well as the appeal finally dispensing with all the formalities. 2. THE appeal is taken out against the judgment and order dated 3rd September, 2008 by which the petitioner's challenge against the speaking order passed by the D.I pursuant to order of Justice Soumitra Pal dated 30th June, 2008 was turned down. The case of the appellant/petitioner before us is as follows :- 3. SHE was appointed part-time teacher on contractual basis with effect from 30th January, 2003 and according to the petitioner, her service (contractual basis) was extended from time to time till February, 2008 but all of a sudden her service was discontinued and extension was not granted and at the same time, her salary was not released by the D.I. 4. WITH the aforesaid grievance the petitioner approached earlier with a writ petition being W.P. No. 1621(W) of 2008 on which the aforesaid order of Justice Soumitra Pal came to be passed. In terms of order of Justice Pal, the D.I considered the matter. While considering and recording certain facts, the D.I rejected the prayer. The learned Trial Judge upheld the findings of the D.I observing that no relief could be granted as the petitioner's service was contractual basis. 5. IN the aforesaid background we are to consider whether the judgment and order of the learned Trial Judge is justified in upholding the order of D.I. 6. WE have heard learned Counsel for both the parties and have considered the aforesaid matter. WE are. of the view that the learned Trial Judge is clearly error in not interfering with the order of the D.I as according to us, the core issue has not been addressed either by D.I or by the learned Trial Judge. It is not the case of renewal of the contract. It is the claim and contention of the appellant that his contractual period of service on the strength of Order No. 73 SE(HS)3S-03/06 dated 27th April. 2007 is deemed to continue until further orders. According to the petitioner, subsequently there has been no order varying or withdrawing the said decision. Thus, the contract already entered into by the petitioner with the school authority that the part-time engagement has duly been accepted and approved by the government by the aforesaid order. 2007 is deemed to continue until further orders. According to the petitioner, subsequently there has been no order varying or withdrawing the said decision. Thus, the contract already entered into by the petitioner with the school authority that the part-time engagement has duly been accepted and approved by the government by the aforesaid order. Needless to say that the Government is to fund and to take the burden of payment of salary. Unfortunately, the D.I. in fact, has not considered the aforesaid Notification dated 27th April, 2007 without which, in our view, the grievance of the petitioner cannot be decided. 7. WE accordingly set aside the speaking order of the D.I and naturally we also set aside the order of the learned Trial Judge. WE direct the D.I to consider the matter afresh in terms of the order of Justice Soumitra Pal dated 4th March, 2008 and to decide the following issue whether the petitioner has been in service as a part-time teacher on contractual basis till 2008 or not. If so, then the D.I shall take decision whether by virtue of order dated 27th April, 2007 as quoted above, the petitioner's service on contractual basis is deemed to have been continuing with effect from 1st April, 2007 or not. This fresh consideration shall be done by the D.I within eight weeks from the date of communication of this order. However, we make it clear that salary shall be paid to the petitioner during the period when she worked forthwith. 8. IN the meantime there shall not be any appointment and in fact having regard to the provision of law there cannot be any appointment in view of the recent Order dated 25th February, 2009 by which no further appointment can be made until further orders. There will be no order as to costs. 9. BOTH the application and appeal are, thus, disposed of.