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2010 DIGILAW 473 (CAL)

Kartik Chandra Singha v. STATE OF WEST BENGAL

2010-05-04

BISWANATH SOMADDER

body2010
JUDGMENT 1. THE judgment of the Court was as follows : THE writ petitioner has approached this Court seeking, inter alia, issuance of a writ in the nature of mandamus commanding the respondent authorities to regularise his appointment in the educational institution where he has stated to be working for the past five years as a Group-D Staff (Peon). In this context, he has annexed a couple of certificates issued by the Secretary as well as the Headmaster of the school to the writ petition as evidence of his employment in the school as peon/attendant on a temporary basis. 2. LEARNED Advocate appearing on behalf of the writ petitioner submits that having been allowed to continue in service for around five years, the writ petitioner has a right to claim regularisation of his service that he has been rendering to the school. He submits that the writ petition has been filed before this Court on 23rd December, 2008, and at that point of time, recruitment of non-teaching staff of the school was governed by the recruitment policy of the Government, as enumerated in the guidelines issued by the Director of School Education on 1st November, 1999, and although the writ petitioner made a representation before the concerned District Inspector of Schools, the same was not considered by the said authority. The learned Advocate for the writ petitioner refers to a judgment of the Supreme Court in the case of U.P. State Electricity Board v. Pooran Chandra Pandey and Ors., reported in 2007 (11) SCC 92 . Referring to the judgment, he submits that in the facts of that case, the writ petitioner, who had been working for long years in temporary service made a claim for regularization, which was initially denied by the U.P. State Electricity Board. The Supreme Court, however, observed that it would surely not be reasonable if the writ petitioner's claim for regularization was denied, even after such a long period of service. The Supreme Court had gone on to observe that apart from discrimination, Article 14 of the Constitution would also be violated on the ground of arbitrariness and unreasonableness, if employees who had put in such a long service were denied the benefit of regularisation and were made to face the same selection which fresh recruits have to face. The Supreme Court had gone on to observe that apart from discrimination, Article 14 of the Constitution would also be violated on the ground of arbitrariness and unreasonableness, if employees who had put in such a long service were denied the benefit of regularisation and were made to face the same selection which fresh recruits have to face. Learned Advocate submits that with the above observations, the Supreme Court had proceeded to dismiss the appeal preferred by the U.P. State Electricity Board. He thus submits that the said judgment is squarely applicable in the facts of the case and that the writ petitioner is entitled to the reliefs as prayed for. 3. ON the other hand, learned Advocate representing the State respondents submits that the process of recruitment of non-teaching staff in respect of such educational institutions as the one where the writ petitioner is presently working, at the material point of time, was to be in conformity with the guidelines for recruitment of non-teaching staff (Librarian, Clerk, Group-D Staff of Non-government. Aided Secondary School, Higher Secondary School, Government Sponsored Schools, D.A. Getting School and all types of Aided Madrasa including Senior Madrasa and newly set up Educational Institution at Secondary Level in West Bengal which was formulated and brought into effect by means of a memo dated 1st November, 1999, issued by the Director of School Education). He submits that if any non-teaching employee of such educational institutions seeks regularisation of service, the same is not - possible without the concerned educational institutions adhering to the above mentioned guidelines. He submits that since 14th January, 2009, however, recruitment of non-teaching staff of such educational institutions are routed through the West Bengal Central School Service Commission. In any event, he submits that the issue that has been sought to be raised by the writ petitioner is no more res Integra in view of the definitive pronouncement of the Supreme Court in the case of Secretary, State of Karnataka and Ors. v. Umadevi (3) and Ors., reported in 2006 (4) SCC 1 , which has been reiterated by the Supreme Court in its latter judgment rendered in the case of Official Liquidator v. Dayanand and Ors., reported in 2008 (10) SCC 1 . 4. v. Umadevi (3) and Ors., reported in 2006 (4) SCC 1 , which has been reiterated by the Supreme Court in its latter judgment rendered in the case of Official Liquidator v. Dayanand and Ors., reported in 2008 (10) SCC 1 . 4. AFTER considering the submissions made on behalf of the parties and upon perusing the writ petition, it appears beyond any shadow of doubt that the issue which has been sought to be raised by the writ petitioner is no more res integra. The judgment of the Supreme Court in U.P. State Electricity Board (supra), which has been cited by the learned Advocate for the writ petitioner, has been considered by the Supreme Court in Official Liquidator (supra). The observation of the Supreme Court in Official Liquidator makes it clear that the judgment of the Supreme Court rendered in U.P. State Electricity Board should be read as obiter and the same should neither be treated as binding by the High Courts, tribunal and other judicial foras nor should they be relied upon or made basis for bypassing the principles laid down by the Constitution Bench. In the facts of the instant case, it is the admitted position that the writ petitioner was working on a temporary basis in the concerned school for around five years. It is inconsequential as to when the writ petition has been filed since what the writ petitioner is essentially seeking before this Court is regularization of his service. The contention of the learned Advocate for the writ petitioner that the writ petition has been filed prior to the notification dated 14th January, 2009, is of no consequence since, as observed hereinbefore, the writ petitioner is essentially seeking regularization of his service one way or the other. 5. THE Supreme Court, in Umadevi (3) (supra) has observed, inter alia, as follows: "Normally, what is sought for by such temporary employees when they approach the Court, is the issue of a writ of mandamus directing the employer, the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Rai Shivendra Bahadur (Dr.) v. Governing Body of the Nalanda College. In this context, the question arises whether a mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Rai Shivendra Bahadur (Dr.) v. Governing Body of the Nalanda College. That case arose out of a refusal to promote the writ petitioner therein as the Principal of a College. This Court held that in order that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favour of the employees directing the Government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the Courts or of tribunals. THE question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the Courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. THE process must be set in motion within six months from this date. THE process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub-judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme. It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents." 6. THE above position in law has been reiterated by the Supreme Court in its latter decision rendered in Official Liquidator. In Official Liquidator, the Supreme Court has laid great emphasis on judicial discipline, The Supreme Court in a recent decision rendered in the case of State of Uttaranchal v. Balwant Singh Chaufal and Ors., reported in 2010 (3) SCC 402 , while dealing with initiation of a frivolous Public Interest Litigation on the ground that the Advocate-General of the State of Uttarkhand could not hold the august office in view of Article 165 read with Article 217 of the Constitution of India observed, inter alia, as follows: ".....Unfortunately, the same controversy has been repeatedly raised from time to time in various High Courts. When the controversy is no longer res Integra and the same is raised repeatedly, then it not only wastes the precious time of the Court and prevents the Court from deciding other deserving cases, but also has the immense potentiality of demeaning a very important constitutional office and person who has been appointed to that office, In our considered view, it is a clear abuse of process of Court in the name of Public Interest Litigation...." 7. THE above observations of the Supreme Court makes it clear that when a point of law is no more res nova or not res Integra, any attempt to have the same point of law raised before the High Courts repeatedly amounts to abuse of process of Court. This is more so when such attempts invariably results in precious time of the Court getting wasted and prevents the Court to decide more deserving cases. This is more so when such attempts invariably results in precious time of the Court getting wasted and prevents the Court to decide more deserving cases. That apart, in the instant case, the learned Advocate for the writ petitioner has cited a judgment of the Supreme Court (U.P. State Electricity Board), which is clearly an overruled decision, only in order to get relief as prayed for in the writ petition. This is impermissible, since such endeavour also invariably leads to precious time of a Court getting wasted while the Court has to pen a reasoned judgment, just to thwart such an utterly frivolous attempt to have a writ petition decided on the basis of an overruled decision. 8. FOR reasons stated above, I have no hesitation in observing that the instant writ petition is a classic example of abuse of process of Court where the writ petitioner has attempted to invoke the jurisdiction of a Single Judge of a High Court, sitting in its Constitutional Writ Jurisdiction, in respect of a legal issue that has been squarely settled by a Constitutional Bench of the Supreme Court, by citing an overruled decision of the Supreme Court. Although the instant writ petition is liable to be dismissed with exemplary costs based on the observation of the Supreme Court in State of Uttaranchal (supra), this Court refrains from doing so, only having regard to the fact that the litigant is economically challenged and his temporary service as a peon has already been terminated, as stated in the supplementary affidavit affirmed on 12th April, 2010. 9. THE writ petition thus stands dismissed without any order as to costs. Urgent xerox certified copy of the order, shall be given to the learned Advocates for the parties as early as possible. S. B.