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2013 DIGILAW 351 (CAL)

MD. Rafique Khan v. STATE OF WEST BENGAL

2013-06-19

ASHOKE KUMAR DASADHIKARI, GIRISH CHANDRA GUPTA

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Judgment :- Ashoke Kumar Dasadhikari, J. This appeal has been preferred assailing the judgment and order impugned dated 10th September 2008, passed by the learned Single Bench in disposal of W.P. No.21796 (W) of 2007. The petitioner’s contention in his writ petition, he was appointed an Assistant Teacher on 28th January, 1998 in a lien vacancy for one year and subsequently extended up to 10th July, 1999. In order to get appointment in lien vacancy the petitioner had to pass through a selection process upon observing all formalities. While the petitioner was working in the said lien vacancy, the post became permanently vacant since Sri Bikash Chandra Saha left the school on 3rd July, 1999 by submitting his resignation. The petitioner approached the authorities for regularization of his appointment in the said vacancy as the post became permanently vacant. The respondents did not take any step the petitioner was compelled to file a writ petition on 6th July, 1999 which was disposed by the learned Single Judge of this Hon’ble Court. The Hon’ble Single Judge directed the District Inspector of Schools (SE) Birbhum, to consider the representation of the petitioner within a period of four weeks from the date of communication of that order. In spite of that communication, the concerned District Inspector of Schools did not comply with the order. Petitioner filed a contempt application. In the meantime, the concerned District Inspector of Schools preferred an appeal before the Hon’ble Division Bench which was dismissed as infructuous. Thereafter, the concerned District Inspector of Schools asked the petitioner to appear before him on 28th June, 2007 with all documents for the purpose of hearing as per the learned Single Judge’s order. After hearing the writ petitioner the District Inspector of Schools by his order dated 2nd July, 2007 rejected the prayer of the petitioner on the ground that upon resignation of the erstwhile teacher the appointment of the petitioner was automatically terminated with effect from 3rd July, 1999 and it was also observed that since 1st November, 1997 the School Service Commission Act has come into effect and since then School Service Commission started its function recording and after holding proper selection process. School Service Commission prepared a panel and recommend for giving appointment to the Assistant Teachers in different schools and as such the claim of the petitioner was held to be unjustified. School Service Commission prepared a panel and recommend for giving appointment to the Assistant Teachers in different schools and as such the claim of the petitioner was held to be unjustified. Being dissatisfied the order impugned passed by the District Inspector of Schools (SE), Birbhum petitioner preferred this writ petition which was dismissed by the learned Trial Court against which this appeal has been preferred. The writ petition was dismissed by the learned Single Judge on the ground that appointment in a lien vacancy does not create any permanent right to the post and its continuation depends so long the permanent incumbent to the post did not return back. In the instant case it appears that the permanent teacher against whom the petitioner was appointed in post in question resigned on 3rd July, 1997. Naturally the petitioner’s appointment on lien vacancy was terminated with effect from that date. The other ground for which the writ petition was also rejected is that, after 1st November, 1997 since when School Service Commission has come into effect, the School Service Commission has its power an authority to prepare a panel and to recommend the name of the candidate for appointment as Assistant Teacher. Therefore, the concerned District Inspector of Schools is not authorized to give any appointment and/or regularize service of the petitioner in the vacancy that occur due to resignation of the concerned teacher. Learned Judge also came to a conclusion that the decision cited by the learned Advocate for the writ petitioner are delivered on different set of facts which has no manner of the application in the case. Mr. Jaharlal De, learned Counsel appearing for West Bengal Regional School Service Commission submits that Section 9 of School Service Commission Act clearly bar any such appointment and/or regularization. It is the School Service Commission to prepare a panel after holding a selection and to recommend the names from the panel for such appointment. According to Mr. De as soon as the erstwhile teacher resigned, the petitioner’s appointment on lien vacancy stands terminated with effect from that date. Since the vacancy arose, the School Service Commission is to take appropriate steps. There is no question of appointing the petitioner or regularizing the service in the vacant post. Mr. According to Mr. De as soon as the erstwhile teacher resigned, the petitioner’s appointment on lien vacancy stands terminated with effect from that date. Since the vacancy arose, the School Service Commission is to take appropriate steps. There is no question of appointing the petitioner or regularizing the service in the vacant post. Mr. Ali, learned Counsel appearing in support of the appointment of writ petitioner submits that writ petitioner had to pass through a selection process for being appointed in lien vacancy although on temporary basis for a year and thereafter his service was extended but in view of the impugned order passed by the District Inspector of Schools the petitioner is without employment. He submitted that the judgment which was cited by him before the Division Bench is the appropriate judgment and in that case the appointment was in lien vacancy which was directed to the regularized. He again cited the same judgment as was referred before the learned Single Judge reported in 2007 (2) CHN page 836 (Banibrata Ghosh Vs. State of West Bengal). Mr. Ali submitted this is not a back door appointment rather the appointment was made through a proper selection, although in a lien vacancy. Petitioner has a legitimate expectation to the absorbed and regularized in the said vacancy. Learned Counsel submitted that the case of the writ petitioner is standing on a different footing. Therefore, both the impugned orders passed by the District Inspector of Schools concerned and the learned Single Judge are liable to the set aside and the writ petitioner’s regularization should be ordered and the writ petitioner should be allowed to join the post. Hearing rival contentions we have carefully considered the matter. It appears to us that the appointment of the writ petitioner was a temporary appointment on lien vacancy. On resignation of the concerned teacher the petitioner appointment on lien vacancy is terminated in natural course. Petitioner’s appointment was not as a permanent teacher nor his case was recommended by School Service Commission for permanent absorption in the vacancy. Therefore, the District Inspector of Schools, in our view is correct in his findings that the writ petitioner’s appointment stands terminated on resignation of the permanent teacher. Accordingly the writ petitioner is not entitled to be absorbed permanently. There is also no question of regularization of his service as a permanent teacher in the lien vacancy. Therefore, the District Inspector of Schools, in our view is correct in his findings that the writ petitioner’s appointment stands terminated on resignation of the permanent teacher. Accordingly the writ petitioner is not entitled to be absorbed permanently. There is also no question of regularization of his service as a permanent teacher in the lien vacancy. In this regard it would be very relevant to look into the provisions under Section 9 of the Collage Service Commission Act which provides as follows:- The aforementioned section is a bar against giving any appointment without commissions’ recommendation. On that ground also writ petitioner’s claim can not be entertained and the findings of the District Inspector of Schools in that regard is in accordance with law. Needless to mention that after coming into force of School Service Commission Act on 1st November, 1997 no Assistant Teacher could be appointed either by the school or by the District Inspector of Schools without any recommendation of the School Service Commission. Similarly in the instant case writ petitioner’s appointment could not be regularized and/or writ petitioner could not be permanently absorb unless and until his name is recommended by the School Service Commission after holding a selection process. Therefore, the submission of Mr. De is accepted by this Court and this Court do not find any illegality and irregularity in the order passed by the learned Trial Court. So far the judgment cited by the learned Counsel for the writ petitioner is concerned that judgment was delivered in a different set of facts and in that case appointment was given prior to coming into force of the School Service Commission Act. Therefore, the case is not similar to that of the present one and the writ petitioner cannot get any benefit out of the said decision. In our considered opinion the order passed by the learned Trial Court is strictly in accordance with law and do not suffer from any illegality. Therefore, we are not inclined to interfere in it. The appeal stands dismissed. Accordingly the application is also dismissed. However, there would be no order as to costs. Let urgent Xerox certified copy of this judgment, if applied for, be given to the learned Advocates of the parties on usual undertaking. Therefore, we are not inclined to interfere in it. The appeal stands dismissed. Accordingly the application is also dismissed. However, there would be no order as to costs. Let urgent Xerox certified copy of this judgment, if applied for, be given to the learned Advocates of the parties on usual undertaking. Ashoke Kumar Dasadhikari, J. GIRISH CHANDRA GUPTA J. I have had the opportunity of going through the detailed judgment drafted by my learned brother Ashoke Kumar Dasadhikari, J. I concur with the order proposed by him. I need to add a few words only to indicate the issue in question briefly. The writ petitioner admittedly was appointed on a leave vacancy on 28th January, 1998 for a period of one year. The duration of such appointment was extended till 10th July, 1999. He did not continue with the school any longer. The appointment of the writ petitioner was necessitated by the fact that Sri Bikash Chandra Saha, an assistant teacher of the concerned school, had initially taken leave for one year and thereafter obtained extension of the aforesaid leave and ultimately left the school on 3rd July, 1990. After Sri Bikash Chandra Saha left the school a permanent vacancy arose. The School Service Commission Act had already come into force on 1st November, 1997. Under Section 9 of the aforesaid act no permanent vacancy could be filled up otherwise than on the basis of a recommendation of the School Service Commission. The difficulty in the matter of regularization or absorption of the writ petitioner is thus insurmountable. There is, as such, no scope to accede to the prayer of the writ petitioner for regularization or absorption.