Research › Search › Judgment

Calcutta High Court · body

2011 DIGILAW 1338 (CAL)

Anil Kumar Jha v. The State Of West Bengal

2011-09-26

JYOTIRMAY BHATTACHARYA

body2011
Judgment : The petitioner was appointed as an Assistant Teacher in a non-sanctioned post in Shree Maheshwari Vidyalaya, which is a D.A. getting school. The petitioner joined his service in the said school in the Department of Commerce on 23rd March, 2004 and since then he has been rendering his service in the said school without any break. A vacancy in a sanctioned post in Social Science Group was created on 14th January, 2007 on the retirement of an approved Assistant Teacher, namely, Sri Ram Chandra Pandey, whose educational qualification was B.Sc., M.A., B.Ed. The school authority adopted a resolution recommending the petitioner’s absorption in the said vacancy which was created on the retirement of the said approved Assistant Teacher so that he may get the admissible dearness allowance from the State respondents. Since such proposal of the school authority remained unattended for a long time, the petitioner also requested the concerned District Inspector of Schools (S.E.) for early consideration of the school’s proposal for absorbing him permanently in the said sanctioned vacancy. Ultimately, however, in terms of the order passed by this Court on 19th November, 2008 in the earlier writ petition being W.P. No. 820 of 2008 filed by a number of unapproved Assistant Teachers of the said school, the concerned District Inspector of Schools (S.E.), Kolkata, considered the school’s proposal for regularizing the service of some of the unapproved Assistant Teachers including the petitioner and ultimately disposed of the school’s such proposal by an order passed by him on 20th August, 2009. As a matter of fact, the school’s proposal for approving the service of the petitioner in the aforesaid sanctioned vacancy was rejected by the said District Inspector of Schools as the appointment of the petitioner, according to the said District Inspector of Schools, was not made in conformity with the Government Orders, namely, G.O. No. 670- SE (S)/IM/14-98 dated 4th September, 1998 and Memo No. 169/1-SE(S)/4A-53/2001 dated 20th September, 2001. The legality and/or propriety of the said order as contained in Annexure P/2 to this writ petition at page 62, is under challenge in this writ petition at the instance of the said Assistant Teacher. Let me now consider as to how far the concerned authority was justified in passing the impugned order in the facts of the instant case. The legality and/or propriety of the said order as contained in Annexure P/2 to this writ petition at page 62, is under challenge in this writ petition at the instance of the said Assistant Teacher. Let me now consider as to how far the concerned authority was justified in passing the impugned order in the facts of the instant case. Since the concerned authority refused to approve the service of the petitioner in the said sanctioned vacancy on the basis of the aforesaid two Government Orders, this Court has carefully considered those two Government Orders which are annexed to this writ petition at page 69 and 46 respectively. So far as the Government Order dated 4th September, 1998 is concerned, this Court finds that the said Government Order was not issued by the Government for distribution of the teaching staff in a DA getting school. The said Government Order was issued on the subject of distribution of teaching staff in the recognized Non-Government Junior High School, Junior High Madrasah, High School, High Madrasah and Higher Secondary School (Normal Section). Thus, this Court can safely conclude that the said Government Order is not applicable to a DA getting school. As such the rejection of the school’s proposal for approving the service of the petitioner in the said sanctioned vacancy on the basis of said Government Order, cannot be supported. Let me now consider the other Government Order dated 20th September, 2001 which was relied upon by the concerned District Inspector of Schools for ascertaining its application in the facts of the instant case. No doubt the said Government Order was issued on the subject of filing up the vacant post within Government sanctioned strength of the school in receipt of D.A. from the Government. As such, this Court is of the view that the said Government Order dated 20th September, 2001 is applicable in the instant case. No doubt the said Government Order was issued on the subject of filing up the vacant post within Government sanctioned strength of the school in receipt of D.A. from the Government. As such, this Court is of the view that the said Government Order dated 20th September, 2001 is applicable in the instant case. On perusal of the said Government Order, this Court finds that the Government in the Education Department decided to permit the authority of such D.A. getting schools to fill up the vacant posts within the sanctioned strength by placing properly qualified teachers already working in the school for the Secondary/Higher Secondary Section but not in receipt of DA from the Government, on fulfillment of the following conditions:- (i) Such teachers, working beyond the sanctioned strength, should be placed whenever any vacancy arises within the sanctioned strength in strict adherence to the norms of the staff pattern in case of Normal Section (V to X). In case Higher Secondary Section only those teachers who possess Honours/Master Decree in the subjects in which the vacancy arises, should be considered; (ii) Before placement it is to be confirmed that the teachers to be placed within the sanctioned strength had minimum qualification and was within the prescribed age limit at the time of initial appointment. (iii) The Managing Committee whenever a vacancy arises will approach the concerned District Inspector of Schools for permission order, along with a copy of resolution resolving the placement of concerned teacher along with academic certificates of the incumbent. If there is more than one teacher of the same academic qualification preference should be given to the senior most. The State respondents in their affidavit contended that since no prior permission was taken for filing up the said vacancy by an existing non-approved teacher by the school authority from the concerned District Inspector of Schools, his appointment in the sanctioned vacancy, cannot be regularized. Such stand of the State authority cannot be supported in view of the unreported decision of this Hon’ble Court passed by a Learned Single Judge of this court on 10th September, 2002 in W.P. No. 1169 of 2002 wherein it was held that there was no requirement of obtaining prior permission for recruitment of an Assistant Teacher in a DA getting school. If the said principle is applied in the instant case then the irresistible conclusion which can be arrived at, is that approval of service of the petitioner in a sanctioned vacancy cannot be refused on the ground that his appointment was given in the said post without taking prior permission from the concerned District Inspector of School. It is rightly pointed out by Mr. Ganguly, learned Advocate, appearing for the State respondent, that without ascertaining the norms of staff pattern in the said school, the school’s proposal for regularizing the service of the petitioner in the any sanctioned vacancy, cannot be effectively considered. It is also rightly pointed out by him that none of the parties in their respective affidavits has disclosed the norms of staff pattern in the said school. Even the school authority has also not disclosed the norms of staff pattern in the said school in its affidavit. Under such circumstances, this Court is of the view that Mr. Ganguly was right in his submission that even though a vacancy in the sanctioned post exists in the said school still then service of the petitioner cannot be regularized without ascertaining the norms of staff pattern in the said school inasmuch as such ascertainment is absolutely necessary for finding out as to whether the service of the petitioner can be regularized in any sanctioned vacancy by adhering to the norms of the staff pattern. The school authority proposed to regularize the service of the petitioner in the place of Sri Ram Chandra Pandey who was an Assistant Teacher in the Social Science Group. His educational education was B.Sc., M.A., B.Ed. Thus, when a vacancy was created in the Social Science Group on the retirement of Sri Pandey, such vacancy is required to be filed up by an Assistant Teacher who has requisite qualification for teaching the students in Social Science subjects, namely, History and Geography. The educational qualification of the petitioner, as recorded in his service record, is M.Com. Annexure ‘P’ series shows that he was allotted teaching subjects in Business Organization and Accountancy. He does not have requisite qualification to teach the students in the Social Science Group. If that be so; can his appointment in Social Science Group be regularized? The educational qualification of the petitioner, as recorded in his service record, is M.Com. Annexure ‘P’ series shows that he was allotted teaching subjects in Business Organization and Accountancy. He does not have requisite qualification to teach the students in the Social Science Group. If that be so; can his appointment in Social Science Group be regularized? In my view, his appointment in Social Science Group cannot be regularized as he does not have requisite qualification for teaching Social Science subjects namely, History and Geography. As such, even though it is contended by Mr. Chattopadhyay, learned Advocate, appearing for the school authority, that on earlier occasions services of several other nonapproved teachers were ultimately approved in sanctioned vacancy whenever such vacancy arose, without adhering to the staff pattern, but still then this Court cannot direct the State authorities to commit repeated wrongs simply because of fact that such wrong was committed earlier. Mr. Chattopadhyay, learned Advocate, appearing for the school authority, further submits that though the Commerce Stream in the Higher Secondary Section in the said school was introduced in 1976, but no additional post of teacher was sanctioned for the Commerce Stream in the Higher Secondary level in the said school. As a result, the existing teaching staff of the Secondary Section are bearing the load of teaching the students in the Commerce Stream in the Higher Secondary Section in the said school. Mr. Chattopadhyay thus, submits that considering the aforesaid facts and circumstances, the concerned authority is required to consider as to whether the petitioner’s service can be regularized as an Assistant Teacher in the Commerce Stream in the Higher Secondary Section as the petitioner has the requisite qualification for teaching the students in the Commerce Stream in the Higher Secondary Section either by creation of new teaching post for the Higher Secondary Section in the Commerce Stream or by adjusting the existing vacancy in the Secondary Section against the post to be created for the Higher Secondary Section in the Commerce Stream. This part of the submission of Mr. This part of the submission of Mr. Chattopadhyay though appears to this Court as very reasonable and pragmatic one, but the relief which is claimed by the petitioner in this application cannot be allowed unless the additional posts are sanctioned for the Commerce Stream in the Higher Secondary Section of the school or any existing vacancy in the Secondary Section is allowed to be adjusted against any post to be created for the Commerce Stream in the Higher Secondary Section. Considering the length of service of the petitioner in the said school and also by considering that he has requisite educational qualification for the post of an Assistant Teacher in the Commerce Stream in the Higher Secondary Group, this Court disposes of this writ petition by directing the Director of School Education, West Bengal, to ascertain as to whether any sanctioned post was created for teaching the students in the Commerce Stream in the Higher Secondary Section in the said school or not. In the event, it is found that no such post has yet been created since the introduction of the Commerce Stream for the Higher Secondary Section in the said school and/or the school requires additional teachers for teaching the Commerce students in the Higher Secondary Section in the said school, the said authority will take step for creation of such post of an Assistant Teacher for teaching Commerce students in the Higher Secondary Section in the said school and will also consider the petitioner’s prayer for absorption in such post after its creation by following the Government Order dated 20th September, 2001. The alternative suggestion of Mr. Chattopadhyay as recorded above should also be borne in mind by the Director of School Education, while taking the ultimate decision in this regard. Such exercise should be completed within four months from the date of communication of this order. The impugned order which was passed by the concerned District Inspector of Schools, contained in Annexure ‘P/12’ to this writ petition to the extent of the claim of the petitioner for his absorption in the sanctioned vacancy in the place of Sri Ram Chandra Pandey, is not disturbed. The writ petition is, thus, disposed of with the above observations.