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2014 DIGILAW 594 (CAL)

Bipan Das v. State of West Bengal

2014-07-07

TAPABRATA CHAKRABORTY

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JUDGMENT Tapabrata Chakraborty, J. This writ application has been preferred stating inter alia that the petitioner passed the annual examination of Class-IX from Khandayat Patkira High School and that his date of birth is 8th June, 1972. The petitioner’s father was a Group-D staff at Sree Ramkrishna Ananda Ashram Girls High School (hereinafter referred to as the said school). The petitioner, having the requisite qualification, participated in a selection process for filling up a leave vacancy which occasioned due to the leave obtained by Sridhar Das. The petitioner emerged to be successful in the said selection process and was empanelled at the first position. The said panel was duly approved by the respondent no.3 vide memorandum dated 11th March, 1997 and pursuant thereto the petitioner worked in the said leave vacancy in the post of Darwan-cum-Mali for the period from 15th November, 1996 till 14th February, 1997. Thereafter, the petitioner’s father retired on 31st December, 1999 and in consideration of the petitioner’s prayer, the school authorities appointed him in the concerned Group-D post with effect from 2nd January, 2000. Thereafter, the school authorities approached the respondent no.3 seeking approval of appointment of the petitioner through representations dated 20th May, 2000, 4th July, 2000 and 15th January, 2001 and in the said representations it was explained by the school authorities that the petitioner’s appointment was made in the exigencies of administration of the school as it was impossible to run the said school, having a roll strength of 500 students, in the absence of Darwan. The said representations were not considered by the respondent no.3 and the petitioner’s claim was kept in abeyance and that as such the instant writ application. The petitioner subsequently filed a supplementary affidavit bringing on record, documents to establish that the vacancy in respect of which the petitioner was appointed was within the sanctioned strength and the fact that the said vacancy was reserved for Schedule Caste candidates was certified by the competent authority vide memorandum dated 18th December, 2008. The said respondents entered appearance in the writ application and filed an affidavit-in-opposition stating inter alia that there was no vacancy for Group-D post and there are only two Group-D posts in the said school and the same had been filled up through appointment of one Sri Abhimanyu Das and one Smt. Gita Bhattacharjee. The said respondents entered appearance in the writ application and filed an affidavit-in-opposition stating inter alia that there was no vacancy for Group-D post and there are only two Group-D posts in the said school and the same had been filled up through appointment of one Sri Abhimanyu Das and one Smt. Gita Bhattacharjee. The respondents further stated that in the absence of a Group-D post question of regularization of the petitioner does not occasion. The petitioner filed an affidavit-in-reply stating inter alia that his appointment on 2nd January, 2000 was pursuant to an urgent need of the school as it was impossible to run the said girl’s school in the absence of a Darwan. Mr. Chakraborty, learned advocate appearing for the petitioner submits that the fact of the continuous service of the petitioner in the concerned post till date has not been denied by the respondents. Such appointment of the petitioner was against a post within the sanctioned strength of non-teaching staff of the said school and that the petitioner was qualified for the said post. According to Mr. Chakraborty, the contention of the respondents to the effect that there was no vacancy within the sanctioned strength of the said school, is absolutely erroneous. In support of such argument, Mr. Chakraborty has drawn the attention of this Court to the documents annexed to the supplementary affidavit and in the affidavit-in-opposition. The documents at pages 5, 6, 9 of the supplementary affidavit together with the document at page 10 of the affidavit-in-opposition clearly reveal that the petitioner’s father was working in a Group-D post (Darwan-cum-Mali) and that such appointment was approved with effect from 1st April, 1976 and that the vacancy in the said post occasioned due to the retirement of the petitioner’s father on 31st December, 1999. The document at page 7 of the supplementary affidavit together with the document at page 9 of the affidavit-in-opposition reveal that Sri Abhimanyu Das was appointed against a 3rd post of Class-IV staff which was sanctioned in favour of the said school vide memorandum dated 27th February, 1981. The document at page 8 of the supplementary affidavit reveals that the vacancy which occasioned due to the retirement of the petitioner’s father was certified to be a vacancy reserved for Schedule Caste candidates. In support of his submissions, Mr. The document at page 8 of the supplementary affidavit reveals that the vacancy which occasioned due to the retirement of the petitioner’s father was certified to be a vacancy reserved for Schedule Caste candidates. In support of his submissions, Mr. Chakraborty has placed reliance upon the following judgments :- a) State of Karnataka & Ors. –vs- M. L. Kesari & Ors., reported in AIR 2010 SC 2587 . b) Gobinda Chandra Mondal –vs- Principal, Rabindra Mahavidyalaya, reported in 2013 (1) CHN (CAL) 9. Mr. Chakraborty further submits that considering the ratio of the judgment delivered in M. L. Kesari (Supra), the Hon’ble Division Bench of this Court in Gobinda Chandra Mondal (Supra) has, inter alia, observed that candidates engaged on temporary basis against substantive post should be allowed to compete in the selection process along with other eligible candidate at the time of regular recruitment process condoning the age. Mr. Pal, learned advocate appearing for the State respondents, placing reliance upon the affidavit-in-opposition, submits that there was/is no vacancy for Group-D post in the said school and that the petitioner was selected by the school authorities without undergoing the process of open competitive selection. In support of his arguments, Mr. Pal has placed reliance upon the judgment delivered in the case of Secretary,State of Karnataka & Ors –vs- Umadevi & Ors, reported in AIR 2006 SC 1806 . I have heard the submissions made by the learned advocates appearing for the respective parties and I have considered the materials on record. The defence of the state authorities is twofold as follows : a) There was no vacancy within the sanctioned strength of nonteaching staff in the said school and that as such the petitioner’s appointment was not against a sanctioned post and mere continuance of the petitioner in the said post does not confer any right upon the petitioner to seek approval of such appointment. b) The petitioner was appointed by the school authorities without undergoing the process of open competitive selection. The documents annexed to the supplementary affidavit and affidavit-in-opposition clearly reveal that initially the said school had two Group-D posts and in the same one Sri Sridhar Das was appointed and approved with effect from 1st April, 1976 and in the other Smt. Gita Bhattacharjee was appointed and approved with effect from 1st January, 1978. The documents annexed to the supplementary affidavit and affidavit-in-opposition clearly reveal that initially the said school had two Group-D posts and in the same one Sri Sridhar Das was appointed and approved with effect from 1st April, 1976 and in the other Smt. Gita Bhattacharjee was appointed and approved with effect from 1st January, 1978. Sri Abhimanyu Das was appointed in the 3rd post of Group-D staff which was sanctioned in favour of the said school with effect from 1st April, 1980. It is evident from the memorandum dated 31.10.2011 that the vacancy in Group-D post which occasioned due to retirement of Sri Sridhar Das is yet to be filled. Furthermore, no material has been produced before this Court by the respondents to show that the said vacancy has been filed up through a regular recruitment process. In the conspectus of the said facts it is clear that the post held by the petitioner’s father was a sanctioned post and a vacancy in the same occasioned with the retirement of the petitioner’s father on and from 31st December, 1999 and the petitioner was appointed in the said post by the school authorities with effect from 2nd January, 2000 as it was impossible to run the said girl’s school without a Group-D staff. Clauses-(I) and (II) of Sub-rule (1) of Rule 28 of the rules for Management of Recognized Non-Government Institution (Aided and Unaided) 1969, (hereinafter referred to as the Management Rules) were substituted vide notification dated 22nd October, 1997, published in the Calcutta Gazette Extraordinary, dated 1st November, 1997. Clauses-(I) and (II) of Sub-rule (1) of Rule 28 of the rules for Management of Recognized Non-Government Institution (Aided and Unaided) 1969, (hereinafter referred to as the Management Rules) were substituted vide notification dated 22nd October, 1997, published in the Calcutta Gazette Extraordinary, dated 1st November, 1997. Clause-(II) of Sub-rule (1) of Rule 28, as operative on the date of the petitioner’s appointment on 2nd January, 2000 was as follows :- “(II) To appoint non-teaching employees on permanent or temporary basis against permanent or temporary vacancies, if and when available, within the sanctioned strength of non-teaching employees and on approval by the Director or any officer authorised by him, such approval being sought for within a fortnight from the date of decision of the Committee in this behalf.” The word “Sanctioned post” stands define under Rule 2 (ff) of the Management Rules which runs as follows :- “(ff) “Sanctioned post” means the post of teaching or nonteaching staff sanctioned by the Director or by an officer authorized by him in this behalf.” A perusal of the said Clause-(II) clearly reveals that the Managing Committee was conferred the jurisdiction to appoint nonteaching employees on permanent or temporary basis in posts available within the sanctioned strength and on approval by the Director or any officer authorized by him, such approval being sought for within a fortnight for the decision of the committee. Thus the petitioner was appointed on 2nd January, 2000 by the competent authority under the Management Rules and subsequent thereto the school authorities approached the competent authority seeking approval but the said authorities maintained a deceptive silence and for such inaction, the petitioner cannot be made to suffer. The argument of Mr. Pal, to the effect that the petitioner was selected and appointed without undergoing the process of open competitive selection, does not render the petitioner’s appointment to be an illegal appointment. The filling up of a post within the sanctioned strength without undergoing the process of open competitive selection, renders such appointment to be an irregular appointment and not an illegal one. Such proposition stands reflected in the judgment delivered by the Hon’ble Supreme Court in the case of M. L. Kesari (Supra). There is no dispute that the vacancy, which had occasioned due to the retirement of the petitioner’s father, is within the sanctioned strength of non-teaching staff of the said school. Such proposition stands reflected in the judgment delivered by the Hon’ble Supreme Court in the case of M. L. Kesari (Supra). There is no dispute that the vacancy, which had occasioned due to the retirement of the petitioner’s father, is within the sanctioned strength of non-teaching staff of the said school. There is also no dispute as regards the petitioner’s qualification and entitlement inasmuch the petitioner was appointed in a leave vacancy in the said post as would be explicit from the memorandum dated 11th March, 1997 at page 25 of the writ application. According to the petitioner he has worked in the said school in the Group-D post within the sanctioned strength for a period of more than 10 years without the benefit or protection of any interim order of this Court. In my opinion, the petitioner’s appointment in the concerned post, at best, can be said to be an irregular appointment and as the petitioner has admittedly served in a post within the sanctioned strength, he has acquired a right to be considered. Accordingly, the respondents are directed to allow the petitioner to compete and or participate in the selection process along with other eligible candidates at the time of regular recruitment process, condoning the age. Until such regular appointment is made, the respondents are directed to allow the petitioner to continue to function on temporary basis in the concerned Group-D post of the said school. With the above observations and directions, the writ application is disposed of. In the facts of the present case, there will be no order as to costs.