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2011 DIGILAW 395 (CAL)

Sushil Kumar Biswas v. STATE OF WEST BENGAL

2011-03-17

AMIT TALUKDAR, PRABHAT KUMAR DEY

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JUDGMENT Talukdar, J. 1. ".........................WHERE will I go if cashiered ? 'How will I survive when I am too old to be newly employed and too young to be superannuated...." V.R. Krishna Iyer, J. speaking for the Supreme Court Bench, has sought to unriddle the said situation in Baldev Raj Chadha v. Union of India and Ors. reported in (1980) 4 SCC 321 . "Unusual fact situation posing issues for resolution is an opportunity for innovation. Law, as administered by courts, transforms into justice......." So wrote R.C. Lahoti, Chief Justice of India, Author of the decision in B.P. Achala Anand v. S. Appi Reddy and Anr., (2005) 3 SCC 313 : (2005) 2 WBLR (SC) 82. 2. BETWIXT the aforesaid two phrases of V.R. Krishna lyer,J. and R.C.Lahoti, C.J.I we would be required to hammer out a solution for this appellant, for whom it was Just Desert on 24.03.2005 [Page-54 of the Paper Book] when by virtue of the Order passed by a learned Single Judge in the interim stage, he was absorbed as a Clerk in the School of the respondent No.4 and 5 being peremptorily approved by respondent No. 3 (Page 85 of the Paper Book). Fortune did not sustain the appellant at the final hearing of the Writ Application when it was found by the learned Single Judge on 02.12.2009 that as the publication of employment notice was not made, the selection process from the stage of sending interview letter to the candidate stands quashed and the appointment of the appellant in terms thereof, also stands quashed. The said final Order of the Hon'ble Single Judge passed on 02.12.2009 in connection with W.P. No. 228(W) of 2005, has been carried in appeal. 3. SHRI Shamim ul Bari appearing for the appellant has raised a number of points in support of the appeal. SHRI Bari has submitted by way of an interim Order, the relief sought for in the Writ Application, was granted (we have a reservation whether the same could have been done). As such, the entire Writ became infructuous and the Order passed by the learned Single Judge dismissing the Writ Application, was redundant. 4. SHRI Bari has submitted by way of an interim Order, the relief sought for in the Writ Application, was granted (we have a reservation whether the same could have been done). As such, the entire Writ became infructuous and the Order passed by the learned Single Judge dismissing the Writ Application, was redundant. 4. SHRI Bari made a very forceful contention to the effect that he had taken out the Writ so as to allow him to participate in the selection process and when by virtue of the Order of the First Instance (24.03.2005) he had been allowed to do so and in consequence of the same he had been absorbed in the school, final Order passed by the learned Single Judge was not warranted. Shri Bari also submitted that the question of wide publication was not contained in the parent Order dated 24.03.2005. As such, the finding of the learned Single Judge at the final stage was also not appropriate. 5. HE was also of the view that at the time the interview was held, the relevant Rules did not permit the school authority for making such publication. 6. SHRI Bari has submitted that it would now be appropriate to allow the appellant to continue in service by way of setting aside the Order passed by the learned Single Judge on 21.12.2009 in W.P. No. 228(W) of 2005. Shri Robiul Islam with Shri Ali Hossain Alamgir for the respondent No. 5 has supported Shri Bari. According to Shri Islam with Shri Hossain Alamgir, who has referred to the various documents annexed in the Paper Book to show that through proper process the appointment was made. As such, the finding of the learned Single Judge was not correct. 7. SHRI Islam with SHRI Hossain Alamgir referred to Page 39 of the Paper Book whereby permission was taken for filling up the vacancy, way back in 07.12.2004. SHRI Islam with SHRI Hossain was also of the view that as the appellant was working in a sanctioned post against a permanent vacancy, there is no question of any irregular appointment. As such, he has prayed for allowing this appeal. 8. NOTWITHSTANDING service of notice, none appears on behalf of the State respondents. SHRI Islam with SHRI Hossain was also of the view that as the appellant was working in a sanctioned post against a permanent vacancy, there is no question of any irregular appointment. As such, he has prayed for allowing this appeal. 8. NOTWITHSTANDING service of notice, none appears on behalf of the State respondents. As such, we have proceeded to hear Shri Bari for the appellant and Shri Islam with Shri All Hossain Alamgir for respondent No. 5 and would see as to whether the Order under appeal can be sustained. One cannot jump the queue. In that event he would leave aside the more meritorious. The appointment has to be through the channels as known to the procedure. Any other form would not receive the approval of the Constitution Bench decision in Secretary, State of Karnataka v. Uma Devi, (2006) 4 SCC 1 ." 9. IN the shade of the aforesaid situation, we would be required to see whether we can sustain the Order under appeal. 10. SEQUENCE of events which has crawled up till such time when the learned Single Judge quashed the appointment, which has been carried in appeal, in our opinion, cannot pass Muster for the reasons which we would be discussing hereinbelow :- On 14.12.2002, the appellant was appointed on a temporary basis by respondent No.4 (Saptagram Kishore Bharati Girls' High School) [See: Page 31 and 32 of the Paper Book]. 11. PERMISSION was accorded for filling up vacant post in respect of non teaching staff by the respondent No.2 on 22.07.2004 [Page 38 of the Paper Book]. 12. APPROVAL was granted thereafter by respondent No. 3 in favour of the respondent No. 4 (school authorities) as the previous incumbent Balailal Ghosh retired [Page 39 of the Paper Book]. Accordingly, respondent No. 5 and requisition for filling up the post to the respondent No.6 by her letter dated 10.12.2004 [Page 40 of the Paper Book]. 13. IN compliance thereof, the respondent No.6 send the list on 23.12.2004 (Page 45 of the Paper Book]. However, the name of the appellant did not find place. 14. ACTING on the basis of the prayer for considering the candidature in the vacant sanctioned Group-C post of Clerk at the institution of respondent No. 4, the appellant preferred the instant Writ Application. However, the name of the appellant did not find place. 14. ACTING on the basis of the prayer for considering the candidature in the vacant sanctioned Group-C post of Clerk at the institution of respondent No. 4, the appellant preferred the instant Writ Application. The learned trial Court by her Order dated 24.03.2005 in connection with W.P. 228(W) of 2005 relying on the decisions of Supreme Court in Excise Superintendent, Malkapatnam, Krishna District, A. P. v. K.B.N. Visweshwara Rao reported in (1996) 6 SCC 216 and Raj Kumar v. Shakti Raj reported in (1997)9SCC 527 and directed the respondent No. 4 and 5 to consider the candidature of the appellant and allow him to appear for the interview. [See : Page 54 of the Paper Book]. 15. SHE, however, directed that in the event he is selected, his selection shall abide by the result of the Writ Application. 16. IN the quirk of events, the respondent No.3 approved the appointment of the appellant as a Clerk in the institution of respondent No.4 subject to the result of the Writ Application by his Order dated 19.09.2005 (Page 85 of the Paper Book). Be it noted that the appellant stood first in the selection. It should be kept in mind that there was a permanent vacancy and on the basis of prior approval by the respondent No. 3, recruitment process was initiated, in terms of which the appellant was absorbed. 17. FURTHERMORE, neither the West Bengal Schools (Control and Expenditure) Act, 2005 nor The West Bengal School Service Commission (Selection of Persons for Appointment to the Post of non Teaching Staff) Rules, 2009 which came into force on 09.07.2009 was prevalent at that point of time. 18. AS such, we gather the appellant was working as a Clerk in the School of respondent No. 4 and when the vacancy arose, as he was not sponsored by the Employment Exchange, he prayed for necessary directions to that effect from the Writ Court, which allowed him to participate in the interview and in such process he became successful as the first candidate in the list and he was given appointment by respondent No. 3 [See : Page 85 of the Paper Book]. Shri Bari is quite correct that the relief sought for by the appellant before the learned trial Court was for allowing him to participate in the interview. Shri Bari is quite correct that the relief sought for by the appellant before the learned trial Court was for allowing him to participate in the interview. Once he was allowed to do so and have been selected as the first candidate and obtaining approval by the respondent No. 3 (Page 85 of the Paper Book) - there was end of the Matter. 19. OF course there was a rider in the approval made by respondent No. 3 that the same would be subject to the result of the Writ Application. In our view, Shri Bari is quite correct as already relief sought for, having been obtained-the impugned Order passed by the learned Single Judge with regard to circulation, was redundant and not appropriate in the factual matrix of the present case. It was against a sanctioned post and on a permanent vacancy, the appellant, who was working hitherto, have been absorbed with a thither that it would be subject to result of the writ petition-which, in our opinion, again, was not necessary. 20. IT should also be borne in mind that the case of the appellant was not simply an instance, where he was allowed to participate by Court's order picking him out from the rest. This is not the case here. A perusal of the Memo of the respondent No. 6 sent to the respondent No. 5 enclosing the name of the candidates forwarded for selection in terms of the vacancy, makes the position quite clear. On the contrary, we would find that the appellant, who had hitherto been serving the School, was left out from the same. 21. REFERENCE may be made to the latest decision of the Supreme Court in State of Karnataka and Ors. v. M. L. Kesari, AIR 2010 SC 2587 where the difference between an irregular and illegal appointment in the light of the Constitution Bench decision in Secretary, State of Karnataka v. Umadevi (supra) has been discussed. In our opinion, the appointment of the appellant cannot be termed as an illegal appointment. 22. ACCORDINGLY, we set aside the Order passed in W.P. No. 228(W) of 2005 on 02.12.2009 recorded by the learned Single Judge and allow the appeal. The appointment of the appellant in terms of the approval given by respondent No. 3 (Page 85 of the Paper Book) should be treated as final. 23. APPEAL allowed. 24. 22. ACCORDINGLY, we set aside the Order passed in W.P. No. 228(W) of 2005 on 02.12.2009 recorded by the learned Single Judge and allow the appeal. The appointment of the appellant in terms of the approval given by respondent No. 3 (Page 85 of the Paper Book) should be treated as final. 23. APPEAL allowed. 24. NO Order as to costs. Dey, J.- I Agree.