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2016 DIGILAW 391 (CAL)

Mehebuba Begum v. State of West Bengal

2016-04-29

DEBANGSU BASAK

body2016
JUDGMENT : Debangsu Basak, J. The petitioner has sought absorption as an assistant teacher of philosophy in Kabi Nazrul College. 2. Learned Advocate for the petitioner has submitted that, the petitioner was appointed as an assistant teacher of philosophy by the Managing Committee of the college, by its resolution dated August 19, 1997. An appointment letter dated September 30, 1997 was issued to the petitioner by the college authorities. The petitioner had joined the college pursuant thereto. He has been working in such college since then. The petitioner was allowed to continue to work by the Managing Committee of the college till the post was not filled up by the School Service Commission. The post has not been filled up yet. 3. Learned Advocate for the petitioner has relied upon an unreported decision dated September 11, 2002 passed in W.P. No. 4488 (W) of 1999 (Mojibur Rahaman v. The State of West Bengal & Ors.) and an unreported decision dated March 13, 2015 rendered in W.P. No. 4560 (W) of 2006 (Shyamal Majumdar v. State of West Bengal & Ors.) and has submitted that, the petitioner is similarly situated and circumstanced as that of the petitioners in those two writ petitions. The appointments of those petitioners in those writ petitions were approved by the State. The State should be directed to approve the appointment of the petitioner. The State should not be allowed to discriminate against the petitioner herein. 4. Learned Advocate for the petitioner has relied upon a Full Bench decision of this Court reported at 2005 Volume 3 Calcutta High Court Notes page 337 (Rabindra Nath Mahata v. State of West Bengal & Ors.) in support of the proposition that, even if the initial appointment of the petitioner is said not to be in accordance with the directions issued by the Director of School Education, then also such appointment is valid inasmuch as the directions of the Director of School Education has been held not to have statutory force. 5. Learned Advocate for the State has submitted that, the prayer of the petitioner cannot be granted in view of 2006 Volume 4 Supreme Court Cases page 1 (Secretary, State of Karnataka & Ors. v. Umadevi (3) & Ors.) as well as the provisions of the West Bengal Schools (Control of Expenditure) Act, 2005. 5. Learned Advocate for the State has submitted that, the prayer of the petitioner cannot be granted in view of 2006 Volume 4 Supreme Court Cases page 1 (Secretary, State of Karnataka & Ors. v. Umadevi (3) & Ors.) as well as the provisions of the West Bengal Schools (Control of Expenditure) Act, 2005. He has submitted that, the petitioner has failed to establish that, the initial appointment of the petitioner was valid. It is the obligation of the petitioner to establish such fact. The initial appointment of the petitioner not being valid, the petitioner cannot be absorbed. The petitioner is, therefore, not entitled to the relief as prayed for. 6. I have considered the rival contentions of the parties and the materials made available on record. 7. The Managing Committee of Subarnapur Kabi Nazrul College had by a resolution dated August 19, 1997 resolved to appoint the petitioner as an assistant teacher for Philosophy. The petitioner was issued an appointment dated September 30, 1997. The petitioner joined pursuant thereto. The appointment of the petitioner was continued by the College concerned as would appear from a writing dated September 22, 2005. The petitioner has been working as such. No material has been placed to suggest that the post the post has been filled up subsequently. 8. In Rabindra Nath Mahata (supra) it has been held that, the directions issued by the Director of School Education are mere directions/guidelines issued in exercise of powers under the Management of Recognized Non-Government Institutions (Aided and Unaided) Rules, 1969 and that such directions are neither statutory provisions nor statutory rules. Any deviation from such directions by the Managing Committee cannot be held to be an illegal action. 9. Applying such ratio to the facts of the present case the appointment of the petitioner by the Managing Committee therefore cannot be said to be illegal, assuming that the appointment was done in violation of the directions issued by the Director of School Education. The petitioner was issued an appointment letter by the college authorities pursuant to a resolution of the managing committee. The petitioner had jointed the college pursuant thereto. Her initial appointment has since been continued by the college authorities. Consequently, the petitioner has he appointment. The petitioner was issued an appointment letter by the college authorities pursuant to a resolution of the managing committee. The petitioner had jointed the college pursuant thereto. Her initial appointment has since been continued by the college authorities. Consequently, the petitioner has he appointment. In view of Rabindra Nath Mahata (supra) and in absence of any material establishing the initial appointment to the invalid, one has to proceed on the basis that the appointment of the petitioner is valid. 10. In Uma Debi (3) & Ors. (supra) it has been held that, an irregular appointment cannot be absorbed. In the present case, the initial appointment is regular. The appointment is required to be approved by the State Government. 11. The provisions of the West Bengal Schools (Control of Expenditure) Act, 2005 came into effect from December 27, 2005. The appointment herein is prior thereto. 12. In Mojibur Rahaman (supra) the Court had considered a similar situation where an assistant teacher was given an appointment by the Managing Committee. The authorities were directed to give approval to such appointment. In Shyamal Majumdar (supra) the petitioner was given an appointment by the Managing Committee. The authorities were directed to give approval to such appointment. Several directions were passed with regard to such approval of appointment. 13. The petitioner is an Honours graduate in Arts. She is otherwise qualified to be appointed as a teacher at the point of time concerned. She has been working uninterruptedly since her initial appointment. 14. In such circumstances, the respondent no. 2 is directed to give approval to the appointment of the petitioner as an assistant teacher of the school subject to the availability of vacancy. If such vacant post as an assistant teacher is available and if the appointment of the petitioner is approved by the respondent no. 2, the salary of the petitioner will be fixed on notional basis from the date of appointment, that is, September 30, 1997 till the date of approval. No financial benefit will be given to the petitioner for such period except that, the service during such period will be counted for the purpose of retirement benefits. The financial benefit will be given to the petitioner only from the date of approval of the appointment. It is expected that the respondent no. No financial benefit will be given to the petitioner for such period except that, the service during such period will be counted for the purpose of retirement benefits. The financial benefit will be given to the petitioner only from the date of approval of the appointment. It is expected that the respondent no. 2 will complete the entire exercise within a period of six weeks from the date of communication of this order to him. 15. W.P. No. 5412 (W) of 2006 is disposed of. No order as to costs. 16. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.