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2014 DIGILAW 496 (CAL)

State of West Bengal v. Biman Mishra

2014-06-09

MRINAL KANTI CHAUDHARI, TAPAN KUMAR DATT

body2014
JUDGMENT : 1. We have heard the learned Advocates for the respective parties and we have considered the relevant materials on record. 2. The facts of the case, very briefly, are as follows: The petitioner has been serving the Kandi Raj High School (H.S.) in the district of Murshidabad as a Librarian since 12th March, 1995. The review-petitioner had to move this Court by way of a writ petition as the writ petitioner was not being absorbed in the said post as the review-petitioner was appointed on a casual basis. A learned Single Judge of this Court was pleased to direct the authority concerned to consider the case of the writ petitioner. It appears that the authority concerned did refused to absorb the writ-petitioner in the said post on certain grounds. The review-petitioner had to move again before this Court and a learned Single Judge of this Court by order dated 07.08.2009 passed in W.P. 28200(W) of 2008 was pleased to dispose of the said writ petition and set aside the order of the District Inspector of Schools concerned and the said District Inspector of Schools concerned was directed to approve the appointment of the review-petitioner and it was directed that the review-petitioner will be entitled to all the financial benefits with effect from the date of his appointment, that is, 12th March, 1995 once the order of approval is made. 3. The State of West Bengal authorities filed an appeal against the said order dated 7.8.2009 being F.M.A. 1455 of 2009 and a learned Division Bench of this Court by order dated 15.09.2010 was pleased to set aside the said order dated 07.08.2009 upon finding that the appointment of the review petitioner as a Librarian in the said School was purely on a temporary basis and that such appointment was de hors the normal recruitment rules. The said learned Division Bench was also pleased to observe that such appointment can be easily termed as a back-door appointment and it was a case of illegal appointment and not merely an irregular appointment. The said learned Division Bench was also pleased to observe that such appointment can be easily termed as a back-door appointment and it was a case of illegal appointment and not merely an irregular appointment. However, the said learned Division Bench was pleased to take note of the fact that the review-petitioner has been in service for a long time as an unapproved staff and it will be open for the review-petitioner to apply for the vacancy as and when the same is notified by the Chairman, West Bengal Regional School Service Commission (Northern Region). Their Lordships were pleased to observe that obviously, the review-petitioner will have an edge in such interview and in the event if the review-petitioner is found to be over-aged, the same would stand condoned without setting it as a precedent. 4. The review-petitioner has in the present review application sought for review of the said order dated 15.09.2010. 5. The learned Advocate appearing on behalf of the review-petitioner submitted that unfortunately the Full Bench decision of this Court reported in 2005(3) C.H.N. 337 was not brought to the notice of the learned Division Bench which disposed of the appeal on 15.09.2010. The said learned Advocate referred to paragraph 17 of the said reports in support of his contention that the recruitment rules that prevailed when the review-petitioner was appointed in the post of Librarian on 12.03.1995 did not have any statutory force and such recruitment rules were mere guidelines. The said learned Advocate submitted that any deviation from such guidelines cannot render the appointment an illegal one but it may be called an irregular appointment and nothing more. Thus, according to the said learned Advocate even if the recruitment rules which prevailed at the relevant point of time were not adhered to, it cannot be said that there was an illegal act on the part of the authority concerned. The said learned Advocate submitted that it was not proper to term the said appointment as an illegal one on the basis of the judgment reported at 2006 (2) WBLR (SC) 183, that is, Umadevis case. The said learned Advocate referred to a judgment reported at (2010) 9 SCC 247 (State of Karnataka and Ors. v. M.L. Kesari and Ors.) and referred to paragraph 7 of the said reports. The said learned Advocate referred to a judgment reported at (2010) 9 SCC 247 (State of Karnataka and Ors. v. M.L. Kesari and Ors.) and referred to paragraph 7 of the said reports. In paragraph 7 of the said reports, it has been stated that there is an exception to the general principles against "regularisation" enunciated in Umadevis case, if the following conditions are fulfilled: i. The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. ii. The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular. 6. The said learned Advocate submitted that thus it will be seen that the Hon'ble Supreme Court did consider the said Umadevis case and a subsequent case and thus the said paragraph 7 of the said reports (2010) 9 S.C.C. 247 , is relevant. The said learned Advocate also cited another unreported decision dated 13.09.2006 passed by a learned Division Bench of this Court in R.V.W. No. 3606 of 2004 wherefrom it appears that their Lordships were also pleased to observe that the said Full Bench decision in Rabindra Nath Mahatas case (supra) was also not brought to the notice of the Hon'ble Division Bench when the said case was decided initially and the review court was of the opinion that at the relevant point of time the fact of the said case is that there was no recruitment rules and the guidelines have been held by the Special Bench as having no statutory force and, accordingly, their Lordships were also of the view that the review application should succeed. 7. 7. The said learned Advocate now submitted that the said decision of the Full Bench ought to have been brought to the notice of the Hon'ble Division Bench of this Court the recruitment rules prevailing at the time when the review-petitioner was appointed as a Librarian had no statutory force and, therefore, the appointment of the review-petitioner was only an irregular one at the most and not an illegal one. The said learned Advocate cited another decision reported in 2012 (3) CLJ (Cal) 482 (Asoke Sawoo v. State of West Bengal) and referred to paragraph 52 of the said reports in support of his contention that the Rules which were prevailing when the vacancy in the instant case arose should be taken into consideration, that is, the Rules which prevailed when the review-petitioner was appointed in the year 1995. One important fact must be noted here as the learned Advocate appearing on behalf of the School authorities and also the learned Advocate appearing on behalf of the Headmaster of the school concerned, i.e., the proforma respondent nos. 2 and 3 in the review petition have very candidly stated that the post in question was sanctioned in the year 2007. The learned Advocates appearing on behalf of the School authorities and the Headmaster of the school concerned, respectively, very candidly submitted that they are not in a position to dispute such statement of fact. Thus, a clear fact emerges that the post in question was sanctioned in the year 2007. The learned Advocate appearing on behalf of the review-petitioner was also not in a position to dispute such fact. However, the learned Advocate for the review-petitioner submitted that since the appointment of the review-petitioner may be, at the most, termed an irregular as one and not an illegal one, the learned Division Bench was not correct in holding such appointment as an illegal one in its order dated 15.09.2010 and as such the said order should be reviewed. 8. The learned Advocate appearing on behalf of the State authorities submitted that a look at Rule 28(7) of the Management of Recognised Non-Government Institutions (Aided and Unaided) Rules, 1969 would show that no appointment could have been made in a vacancy if it is not against a sanctioned post, permanent or temporary. 8. The learned Advocate appearing on behalf of the State authorities submitted that a look at Rule 28(7) of the Management of Recognised Non-Government Institutions (Aided and Unaided) Rules, 1969 would show that no appointment could have been made in a vacancy if it is not against a sanctioned post, permanent or temporary. We have perused the said Rules and find that it has been provided that no appointment shall be made against a vacancy if it is not a sanctioned post, permanent or temporary. The said learned Advocate cited one decision reported in 2013 (3) CLJ (Cal) 171 (Binoy Mahato v. State of West Bengal) wherefrom we find that in paragraph 6 of the said reports a learned Division Bench of this Court was pleased to take into consideration the said Umadevis case (supra). In paragraph 10 of the said reports, the said Hon'ble Court was pleased to observe that all decisions rendered prior to the decision in the said Umadevis case would stand overruled and the said decision is still holding the field. 9. Before we come to a finding, it is necessary to note that the learned Advocate appearing on behalf of the review-petitioner submitted that the learned Division Bench which passed the order under review was not correct in observing that the review-petitioner would be entitled to apply for vacancy as and when the same is notified by the Chairman, West Bengal Regional School Service Commission (Norther Region) as he submits that the said Chairman has no part to play as far as the relevant recruitment Rules were concerned when the post was sanctioned in the year 2007. 10. It may also be recorded here that the learned Advocates appearing on behalf of the respective proforma respondent nos. 2 and 3 have submitted that they adopt the argument made on behalf of the review-petitioner. 11. Having heard the learned Advocates appearing on behalf of the respective parties, we find that a fact clearly emerges from the materials on record that the post of Librarian in the school concerned was not a sanctioned post in the year 1995 when the review-petitioner was appointed on 12.03.1995. 11. Having heard the learned Advocates appearing on behalf of the respective parties, we find that a fact clearly emerges from the materials on record that the post of Librarian in the school concerned was not a sanctioned post in the year 1995 when the review-petitioner was appointed on 12.03.1995. The learned Advocate appearing on behalf of the State authorities very emphatically submitted that the post was sanctioned in the year 2007, a statement which could not be disputed by the learned Advocate for the review-petitioner and the learned Advocate for the proforma respondent nos. 2 and 3 respectively. Thus, if we read the judgment reported in Umadevis case (supra) and also the subsequent judgment reported in M.L. Kesaris case (supra), it will be clear that the review-petitioner cannot take the benefit of the observations made by the Hon'ble Supreme Court in paragraph 7 of M.L. Kesaris case for the basic reason that the review-petitioner was not appointed in any sanctioned post in the year 1995. The post came to be sanctioned only in the year 2007. Thus, the submissions made by the learned Advocate appearing for the review-petitioner that the Full Bench decision of this Court was not brought to the notice of the learned Division Bench which passed the order under review cannot be of any assistance to the review-petitioner. This is not a case where we have to consider as to whether the recruitment rules had any statutory force or not. The question before this Court is whether the review-petitioner was appointed in a sanctioned post in the year 1995 in order to have the benefit of the observations made by the Hon'ble Supreme Court in M.L. Kesaris case. 12. We find that the review-petitioner is not entitled to such benefit for the reasons stated earlier. We are of the view that the learned Advocate for the State authorities was right in his submissions that the appointment of the review-petitioner in the said post was an illegal one. We, thus, concur with the observations made by the Hon'ble Division Bench which passed the order under review in this aspect of the matter. We are of the view that the learned Advocate for the State authorities was right in his submissions that the appointment of the review-petitioner in the said post was an illegal one. We, thus, concur with the observations made by the Hon'ble Division Bench which passed the order under review in this aspect of the matter. It may be noted here that the learned Advocate appearing on behalf of the review-petitioner submitted that in the year 2007 when the post came to be sanctioned a certain set of the recruitment Rules were prevailing and were brought into force and as such, the Hon'ble Division Bench was not correct in making the observations, as noted earlier, that the review-petitioner would be entitled to apply for the vacancy when it is notified by the said Chairman. According to the said learned Advocate, the said recruitment Rules which were prevailing when the post came to be sanctioned in the year 2007 should have been followed. 13. The learned Advocate appearing on behalf of the State authorities was not in a position to dispute such state of affairs. 14. The learned Advocates appearing on behalf of the School authorities and the Headmaster concerned, were also not in a position to dispute such statement made by the learned Advocate for the review-petitioner. 15. In such circumstances, we review the order under review only to the extent that the appropriate person and/or authority will be entitled to apply for the vacancy when it next arises in terms of the recruitment rules that was prevailing in the year 2007 when the post in question was sanctioned. We do not interfere with the rest of the judgment under review. 16. The review application is, thus, disposed of. 17. There will be, however, no order as to costs. 18. Urgent certified xerox copy of this order, if applied for, shall be given to the parties as expeditiously as possible on compliance of necessary formalities.