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2014 DIGILAW 590 (CAL)

Amrita Bishnu v. State of West Bengal

2014-07-04

DEBASISH KAR GUPTA

body2014
ORDER : DEBASISH KAR GUPTA, J. 1. Let affidavit-in-opposition filed by the respondent No. 2 be kept on record. 2. The subject matter of challenge in this writ application is a communication issued by the respondent No. 2 in the matter of approval of appointment of the petitioner in the post of an Assistant Teacher in Bio-Science (P) of Kapasdanga Khadem Hossain High School, District-Birbhum imposition a condition of regularisation of the leave of the petitioner. 3. The fact of this case in a nutshellis as follows: The petitioner participated in the selection process relating to seventh Regional Level Selection Test (AT), 2006. She was a successful candidate. Her name was recommended by the West Bengal School Service Commission (Eastern Region) in respect of a regular vacancy in the post of an Assistant Teacher in Bio-Science (P) of Kapasdanga Khadem Hossain High School, District-Birbhum under General category. On the basis of the above recommendation the authority of the above school issued an appointment letter in favour of the petitioner under its Memo No. 138/07 dated October 5, 2007. The above appointment was also approved by the respondent No. 3 for a period of two years with effect from October 6, 2007 by virtue of an order under Memo No. 1777 (2)G dated December 7, 2007 (Annexure P2 at page 22 of this writ application). By virtue of the impugned order the respondent No. 2 directed the respondent No. 3 to instruct the authority of the above school to regularise the leave of the petitioner without pay for the purpose of retention of the additional post of Assistant Teacher for the purpose of approval of the appointment of the petitioner in the post under reference on substantive basis. 4. Having heard the learned Counsel appearing for the respective parties as also after considering the facts and circumstances of this case, Find that in the affidavit-in-opposition a stand is taken by the State-respondents that the vacancy under reference was not a permanent vacancy and the petitioner was appointed on temporary basis. Therefore, the retention of the above vacancy was the precondition for approval of the petitioner on substantive basis. 5. Therefore, the retention of the above vacancy was the precondition for approval of the petitioner on substantive basis. 5. For proper adjudication of the issue involved in this matter the provision of sub-rule (7) of Rule 28 of the Management of Recognised Non-Government Institutions (Aided and Unaided) Rules, 1969 (hereinafter referred to as the said Rules, 1969) are quoted below: “(7) In all cases of appointment, both permanent and temporary, the Committee shall issue letters of appointment specifying the terms and conditions of such appointment. In the case of a permanent appointment, a teacher or an employee appointed on probation shall be confirmed on the expiry of the period of probation unless an order to the contrary is issued at least six weeks before the date on which confirmation normally falls due. In the case of an appointment on temporary basis against a permanent post the teacher or the employee so appointed shall be confirmed on completion of two years' continuous satisfactory service in the institution: Provided that no appointment shall be made in a vacancy if it is not against a sanctioned post, permanent or temporary. After perusing the above provisions, I find that the letter of appointment of an Assistant Teacher should specify the nature of vacancy either permanent or temporary. In case of permanent vacancy an Assistant Teacher is usually appointed on probation for two years and his appointment is confirmed after expiry of the above period unless an order to the contrary is issued at least six weeks from the date on which the confirmation normally falls due. After considering the letter of recommendation issued by the School Service Commission the letter of appointment issued in favour of the petitioner as also approval of the appointment of the petitioner, I do not find that the appointment was made against any temporary vacancy for a specified period. To the contrary it appears from the letter of recommendation that the appointment of the petitioner was made against a regular vacancy. No material is brought on record to show that a contrary order was issued before the date on which the confirmation became due. Therefore, this is no scope of improving the case of the respondent authorities assigning a reason in the affidavit-in-opposition which is not based on evidence. 6. No material is brought on record to show that a contrary order was issued before the date on which the confirmation became due. Therefore, this is no scope of improving the case of the respondent authorities assigning a reason in the affidavit-in-opposition which is not based on evidence. 6. Reference may be made to the decision of Manindar Singh v. Chief Election Commissioner reported AIR 1978 SC 851 and the relevant portion of the above decision is quoted below:- “8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought, out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (1) “Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in Ms mind, or what he intended to, do. Public orders made by public authorities are meant to have public effect and are intended to effect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.” Orders are not like old wide becoming better as they grow older.” 7. In view of the settled principles of law the respondent authority is not entitled to improve their case by way of filing the affidavit-in-opposition. 8. So far as the second ground of regularisation of the leave taken by the petitioner during her probational period I am of the opinion that the sanctioning of the above leave has no nexus with the question of confirmation of the appointment of the petitioner. 9. In view of the above, the impugned order is quashed and set aside. 10. So far as the second ground of regularisation of the leave taken by the petitioner during her probational period I am of the opinion that the sanctioning of the above leave has no nexus with the question of confirmation of the appointment of the petitioner. 9. In view of the above, the impugned order is quashed and set aside. 10. The respondent authorities are directed to take necessary steps which are consequential to the confirmation of the service of the petitioner after expiry of the period of her appointment on probation, i.e. October 5, 2009 as also to release the pay and allowances, if any, within two months from the date of communication of this order. 11. This writ application is, thus, disposed of. 12. There will be, however, no order as to costs. 13. Urgent photostat certified copy of this order be supplied to the parties, if applied for, subject to compliance with all necessary formalities.