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2011 DIGILAW 551 (CAL)

Md. Alfajuddin v. The State Of West Bengal

2011-04-19

JYOTIRMAY BHATTACHARYA

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Judgment : Admittedly, the petitioner was appointed as a Clerk in Budhia High Madrasah on temporary basis in a sanctioned post on 3rd December, 2001 without following the recruitment guidelines which was in force at the relevant time. Fact remains that the petitioner has been rendering his service in the said school continuously since the date of his appointment with a very nominal remuneration. With the increase of the students’ strength in the said school from time to time, additional post of Clerk was created. But the school authority did not take any step to fill up the said post by following the Recruitment Rules of 2005 which was in force when such additional post was created. As a result, though the petitioner possessed all the requisite eligibilities for the said post under the Recruitment Rules of 2005, but he did not get any opportunity to offer his candidature for his appointment on permanent basis. Subsequently, a new Recruitment Rules, 2009 came into operation with effect from 9th July, 2009. With the enforcement of the said Rules, now all vacancies in the post of non-teaching staff in the Government Aided school are required to be filled up through the selection process to be conducted by this School Service Commission. As such, though the petitioner rendered his service for such a long period since 9th September, 2002 continuously till date but still then no extra weightage will be given to the petitioner for his past service in the said school. The petitioner has already crossed the prescribed age limit and as such the petitioner even cannot participate in the selection process for the said post under the Recruitment Rules of 2009. Under such circumstances, the petitioner prays for his absorption in the said post on permanent basis and/or regularization of his service. Regularization of service of those temporary employees and/or casual workers who were not appointed against vacant sanctioned posts by following the Recruitment Rules, was discarded by the Hon’ble Supreme Court in the case of State of Karnatake –vs. Umadevi; reported in AIR 2006 Supreme Court 1806. In that case, the Constitutional Bench of the Supreme Court held that the appointment made without following due process or the Rules relating to appointment did not confer any right on the appointees and Courts neither can direct their absorption, regularization or re-engagement nor make their service permanent. In that case, the Constitutional Bench of the Supreme Court held that the appointment made without following due process or the Rules relating to appointment did not confer any right on the appointees and Courts neither can direct their absorption, regularization or re-engagement nor make their service permanent. However, some protection was given to some irregularly appointed persons in sanctioned posts who were working continuously for more than ten years without any protection from court or tribunals (see paragraphs 43 and 44 of the said judgment). If the said principle which was laid down by the Hon’ble Supreme Court in the said case is applied in the instant case, this Court has no hesitation to hold that the regularization of the service of the petitioner cannot be made by this Court as admittedly the condition for regularization of service as laid down in paragraph 44 of the said judgment are not fulfilled in the instant case. Mr. Bhattacharya, learned Advocate, appearing for the petitioner, submitted before this Court that the law which was laid down by the said Constitution Bench of the Hon’ble Supreme Court in the case of Umadevi has subsequently been explained by the Hon’ble Supreme Court in the case of State of Karnataka and Ors.- vs.- M.L. Kesari and Ors.; reported in AIR 2010 Supreme Court 2587 wherein it was held that when the irregular appointees have been rendering their services for more than ten years without any protection from Court, their cases for regularization as one time measure can be considered by the employer provided the employees who have completed ten years service without any protection from court possessed educational qualification prescribed for the said post at the time of their appointment subject to fulfillment of the requirements mentioned in paragraph 53 of the Umadevi’s case. In fact in M.L. Kesari’s case, the Hon’ble Supreme Court simply followed the principle of law which was laid down by the Constitutional Bench of the Hon’ble Supreme Court in Umadevi’s case and that is why in M.L. Kesari’s case the Hon’ble Supreme Court made it clear that even such one time measure should be worked out in the light of direction given by the Hon’ble Supreme Court in paragraph 44 of Umadevi’s case with a rider that all those persons who have worked for more than ten years as on 10-04-2006 (the date of decision in Umadevi) without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. Before concluding, this Court feels it necessary to mention here that in the case of Umadevi’s case, the Constitutional Bench of this Hon’ble Supreme Court felt the necessity of regularising the service of these irregularly appointed employees who have worked for more than ten years without any protection from the court and tribunal and accordingly directed the authority to take one time measure for regularising their service with a rider that regularisation, if any already made, but not sub-judice, need not be reopened based on the said judgment, but there should be no further by-passing of the constitutional requirement and regularising or making permanent those not only appointed as per the constitutional scheme. This mandate of the Constitutional Bench of the Hon’ble Supreme Court cannot be overlooked by this Court. Thus, even by applying the principle as laid down by the Hon’ble Supreme Court in State of Karnataka –vs- M.L. Kesari (supra) this Court has no hesitation to hold that the service of the petitioner cannot be regularized as he did not work for more then ten years as on 10-04-2006 (the date of decision in Umadevi) has been working in a sanctioned post continuously since the date of his appointment. Accordingly, this Court does not find any merit in the petitioner’s claim. The writ petition, thus, stands rejected. Accordingly, this Court does not find any merit in the petitioner’s claim. The writ petition, thus, stands rejected. Considering the long period of service, the petitioner has rendered in the said school only for a nominal remuneration, this Court directs that in the event the petitioner offers his candidature for the said post in the regular selection process to be initiated by the selection for filling up any vacant post commensurate with his educational qualification, the selection authority will permit him to participate in the selection process by relaxing his age bar, provided however, he satisfies the other eligible criteria for the said post. The writ petition is, thus, disposed of. Urgent xerox certified copy of this order, if applied for, be given to the parties as expeditiously as possible.