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2010 DIGILAW 1192 (CAL)

STATE OF WEST BENGAL v. Biman Mishra

2010-09-15

AMIT TALUKDAR, M.K.CHAUDHURI

body2010
JUDGMENT 1. JUSTICE must be always above law. But yet it has to be administered in accordance with law. Sense of Justice although should pervade the finding of a Court but at the same time sentiments and emotions however strong, the same cannot bind such reasoning or conclusion arrived at by a Court. 2. IN such curve we have been asked by the State Government to look into an order passed by the learned trial Court in connection with W.P. No. 28200(W) of 2008 passed on 7/8/2009 wherein a casual employee engaged by the respondent No.4 has been fructified into a permanent post. Background facts necessary for the purpose of proper disposal of this appeal can be put in a short compass. On 12.3.95 the Secretary, Kandi Raj High School (H.S.) gave appointment in favour of the respondent No.1 on a purely temporary basis in the post of Librarian. The Secretary (respondent No.4) in the Appointment Letter (Annexure - P/2) dated 12/3/1995 made it clear - "Please note that this is purely of a casual nature". The appointment given in favour of the respondent No.1 as a Librarian was also captioned Casual Librarian. Since the respondent No.1 continued in the said Post, he felt that he accrued an inalienable right and approached the Writ Court of the first instance (Annexure - P/6) which was disposed of on 18th June, 2008 by way of passing a direction upon the District Inspector of Schools (S.E.) "to consider the case of the petitioner in accordance with law and also taking into consideration the fact that he is continuously working since 1995 without any break or blemish, as has been accepted by.......and to take a decision within a period of six weeks from the date of receipt of a copy of this Order. Whatever action and/or decision he takes, should be based in accordance with law." 3. AFTER the matter was routed before the appellant No.3 (Annexure - P/6) he came to the conclusion - "Heard the parties and gone through the papers and records. It is found that the petitioner is appointed as a Casual Librarian on a monthly remuneration of Rs.200.00 as per resolution adopted by the then Managing Committee. The activities of the school authority do not admit the recruitment rules and procedure. In terms of Management Rules of Non Govt. It is found that the petitioner is appointed as a Casual Librarian on a monthly remuneration of Rs.200.00 as per resolution adopted by the then Managing Committee. The activities of the school authority do not admit the recruitment rules and procedure. In terms of Management Rules of Non Govt. Aided Educational Institution, the Managing Committee has no authority to appoint any person without following the recruitment procedure." 4. THIS saw the respondent No.1 in a second trip before this Court by way taking out a writ application which has resulted in the Order that has been the subject-matter of challenge in this appeal at the instance of the State Government. The Hon'ble trial Judge found fault with the appellant No. 3 for not complying with the direction passed by the Writ Court of first instance. The Hon'ble trial Court also found fault with the appellant No.3 to the effect that he did not consider the case of the petitioner in accordance with law and also take into consideration the fact that he is continuously working since 1995 without any break and found fault with his decision. 5. WE have been addressed on behalf of the appellants by Shri Banerjee in support of the appeal. Shri Banerjee has placed before us in details the entire facts which have culminated into the order passed by the Hon'ble Single Judge. Inviting our attention to the initial appointment made by the School Authorities (respondent Nos.4 and 5) Shri Banerjee showed that the Appointment was purely on a temporary basis. According to Shri Banerjee the petitioner (respondent No.1) being appointed de hors the rules governing the field of appointment in such category could not claim my benefit thereof. That apart, according to Shri Banerjee unless the post is notified, the appointment that too on a purely casual basis could not create any right in his favour. He was of the view this was against the constitutional mandate as it would render into a backdoor appointment without following the normal recruitment procedure. 6. MR. Dutta for the respondent No.1 led by Shri S. N. Mukherjee, learned Senior Counsel has controverted the submission of Shri Banerjee for the appellants. Referring to Paragraph 44 of the Constitution Bench decision in Secretary, State of Karnataka and Ors. 6. MR. Dutta for the respondent No.1 led by Shri S. N. Mukherjee, learned Senior Counsel has controverted the submission of Shri Banerjee for the appellants. Referring to Paragraph 44 of the Constitution Bench decision in Secretary, State of Karnataka and Ors. v. Umadevi and Ors., AIR 2006 SC 1806 , Sri Dutta submitted that since the respondent No.1 has been working for a period of more than ten years he had accrued a legal right. More so, in view of the finding of both the learned trial Judges to the effect that the respondent No.1 had an unblemished career and there was absolutely no complaint against him with regard to his functioning, it was only appropriate that the authorities should have absolved him on a permanent basis. He further submitted that the appellant No.3 did not properly consider the representation made by the respondent No.1 in terms of the order passed by the Writ Court of first instance on 18.6.2008. The appellant No.3 travelled beyond the scope of the guidelines laid down by the Writ Court of first instance on 18.6.2008 and abided by the West Bengal Schools (Control of Expenditure) Act, 2005. Sri Dutta further submitted that not only the said Act would have no application in connection with this question in issue as it was a direction passed by this Court, the appellant No. 3 was misguided by the said Act which has no binding on the Hon'ble High Court. He also submitted that the finding which was rendered by the appellant No.3 in terms of the order passed by the Writ Court of the first instance was not strictly in terms of the reference made before it for the purpose of considering the representation; on the contrary, it simply restricted itself to the question of casual nature of the job; whereas the scope of reference made by the Court of first instance is wider in nature. 7. The learned Counsel for the respondent Nos. 4 and 5 adopted the submission of Sri Dutta and also agreed with the views that this Act would have no manner of application on the Managing Committee apart from the fact that the appointment was made way back in 1995 this Act came into force on 27.2.2005 with immediate effect and could not have any retrospective force. 8. 4 and 5 adopted the submission of Sri Dutta and also agreed with the views that this Act would have no manner of application on the Managing Committee apart from the fact that the appointment was made way back in 1995 this Act came into force on 27.2.2005 with immediate effect and could not have any retrospective force. 8. AFTER we have carefully considered the rival contentions made at the Bar and have perused the materials made available, we are of the conclusive opinion that per se the order under appeal is liable to be set aside for the reasons which we would record in the following manner. Even if it is true that the respondent No.1 had carried on the functions of a Librarian for a period of more than ten years, as submitted by Sri Dutta, fact remains that her was a casual employee and not only that the appointment was de hors the normal recruitment rules, in other words it can be easily termed as a back-door appointment in the event the learned trial Court by regularizing such appointment has in a way shut out the legal rights of other eligible contesting candidate without the post being notified for filling up of the vacancy. 9. THIS order passed by the learned trial Court, however, may be based with human consideration; it militates against the ratio of the Constitution Bench decision in Umadevi's case (supra). Interpretation of Paragraph 44 by Shri Dutta of the Constitution Bench decision in Umadevi's case (supra), in our opinion, cannot retrieve him from the situation that has surfaced in the finding, arrived at by the learned trial Court. This is not a case of irregular appointment. But if the directions of the trial Court are to be carried out then it would give rise to an illegality. 10. ACCORDINGLY, having found that the Order which is under appeal not being legally sustainable in the eye of law as well as in the dictum of the Constitution Bench decision, the same is quashed and is set aside. Appeal accordingly stands allowed. 11. 10. ACCORDINGLY, having found that the Order which is under appeal not being legally sustainable in the eye of law as well as in the dictum of the Constitution Bench decision, the same is quashed and is set aside. Appeal accordingly stands allowed. 11. HOWEVER, as a parting view, we feel that in hindsight we cannot be oblivious of the fact that the respondent No.1, as we are told by the respondent Nos.4 and 5, is still in service and by virtue of this order under appeal his status as an unapproved staff would be liable to be terminated but as the post is required to be notified for filling up of the vacancy, in a manner as established under the law by way of the respondent Nos.4 and 5 (school authority) intimating the District Inspector School about subsistence of the substantive vacancy within a fixed time period (four weeks); till such time the respondent No.1 will continue in his unapproved service. 12. Furthermore it will be open for the respondent No. 1 to apply for the vacancy as and when the same is notified by the Chairman, West Bengal Regional School Service Commission (Northern Region). Obviously he will have an edge in such interview and in the event if he is overaged, the same would stand condoned without setting it as a precedent. Appeal stands allowed.