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2017 DIGILAW 773 (CAL)

State of West Bengal v. Nazrul Haque

2017-09-13

MIR DARA SHEKO, RAKESH TIWARI

body2017
JUDGMENT : Rakesh Tiwari, J. This appeal arises against the judgment and order dated 5th November, 2015 passed in WP 27430(W) of 2015 on the grounds mentioned in the memorandum of appeal. 2. The appellants have filed this appeal assailing the order impugned on the ground that the learned Single Judge had no authority or jurisdiction to pass the same without serving copy of the writ application upon all the respondents except the office of the Government Pleader on 5th November, 2015, and further that the cause of action arose in 1984 and the Vacation Bench had jurisdiction only in respect of the matter which could not wait till sitting of the regular bench after reopening of the Court after long vacation as per notification issued by His Lordship the Hon’ble Chief Justice. 3. The order impugned is also assailed on the ground that the learned Single Judge failed to consider the material fact that before appointment of the writ petitioner by the managing committee in 1984, there was no prior approval from the State Government under 1963 Act, which was mandatory and further that West Bengal School (Control of Expenditure) Act, 2005 provided such mandatory approval for appointment under Section 5 of the said Act. Hence, the appointment of the writ petitioner/respondent, which was not approved by the District Inspector of Schools (SE), Murshidabad, was bad in law and was liable to be set aside. 4. The learned Single Judge failed to consider the provisions of Section 20 of the said Act, which has got overriding effect and the alleged appointment being void, the petitioner/respondent had no right to claim for approval as neither the post was sanctioned prior to appointment nor the rules were followed in appointing the petitioner/respondent. Therefore, the claim of the petitioner/respondent for regularization was without any basis and that the Writ Court could not pass mandatory order for grant of approval without waiting for reply from the Government, particularly in view of the fact that all the posts had to be advertised by the School Service Commission for making selection in accordance with law, and as such, any back door appointment cannot be approved by the appellants in violation of Article 14 and 16 of the Constitution of India. 5. 5. Learned Counsel for the appellants has argued that after advertisement for filling up the posts, only five selected candidates having requisite qualification were to be considered and as such, the impugned order passed by the learned Single Judge dated 5th November, 2015, being contrary to law, is liable to be set aside, particularly in the backdrop that the managing committee had no power to appoint teaching and non-teaching staff without prior approval of the State Government and as such the petitioner/respondent had committed fraud upon the Court relying on the representation dated 15th October, 2015, which was not received by the District Inspector of Schools (SE), Murshidabad, on which no reliance could be placed. 6. Learned Counsel for the respondent/writ petitioner submits that the petitioner was appointed as assistant teacher in the year 1984 and was claiming for regularization of his appointment since last 25 years. It is vehemently argued that the writ petitioner/respondent was discriminated by the State, as other teaching and non-teaching staff similarly situated had been regularized in service by the State Government after the direction issued by the Court in their respective cases for their consideration. 7. In rebuttal, Mr. Mukherjee, learned Counsel for the appellants submits that those teachers, who had claimed for regularization, were regularized pursuant to the order of this Court against the sanctioned posts and at present no further sanctioned post remains, on which the writ petitioner/respondent could be appointed pursuant to the order passed by the learned Single Judge in the writ petition which is against the provisions of law. 8. The moot question for consideration before this Court is as to whether a direction can be issued by the Court to regularize the appointment of the petitioner in the school by directing the District Inspector of Schools (SE) to comply with the direction. 9. We have perused the decisions cited by learned Counsel for the parties. 10. Mr. Mukherjee has relied upon the following decisions: 1. State of West Bengal & Ors. Vs. Smritikana Maity & Ors. reported in 2008(1) CHN 582 , delivered on 14th September, 2007. 2. State of West Bengal & Ors. Vs. Gopal Singh reported in (2008) 1 WBLR (Cal) 229, delivered on 27th November, 2007. 3. Manindra Nath Sinha & Ors. Vs. State of West Bengal & Ors. State of West Bengal & Ors. Vs. Smritikana Maity & Ors. reported in 2008(1) CHN 582 , delivered on 14th September, 2007. 2. State of West Bengal & Ors. Vs. Gopal Singh reported in (2008) 1 WBLR (Cal) 229, delivered on 27th November, 2007. 3. Manindra Nath Sinha & Ors. Vs. State of West Bengal & Ors. reported in 2006(4) CHN 513 , delivered on 6th September, 2006, which was upheld by the Supreme Court in Civil Appeal no. 7897 of 2010. 4. Kakali Basu Chatterjee vs. State of West Bengal & Ors. decided by the Division Bench of this Court on 17th July, 2017. 5. State of Orissa & Anr. Vs. Mamata Mohanty reported in (2011) 3 SCC 436 , paragraphs 56 & 57 thereof. 11. Learned Counsel for the respondent/writ petitioner in support of her submission has relied upon the following decisions: 1. Md. Bani Israil vs. State of West Bengal decided on 28th January, 2013 in FMA 238 of 2009; 2. Samaresh Kumar Mondal vs. State of West Bengal & Ors. decided on 10th March, 2014 in MAT 1250 of 2012; 3. Piyu Dutta vs. State of West Bengal & Ors. reported in (2012) 3 WBLR (SC) 715, delivered on 29th February, 2012. 4. Gauri Shankar PD Rai vs. State of Jharkhand reported in (2015) 8 SCC 163 . 5. State of Karnataka & Ors. Vs. M.L. Kesari & Ors. reported in (2010) 9 SCC 247 . 6. Amarkant Rai vs. State of Bihar & Ors. reported in (2015) 8 SCC 265 . 12. On perusal of the judgments aforesaid cited by the parties, it is apparent that law is well settled that the Court can only issue a direction for consideration of the case of a person who has approached the Court, but cannot direct to give appointment, particularly when such direction would be de hors the rules. This is so because relevant rules, circulars and Acts, which are applicable, may not be before the Court. Hence, direction is always given for consideration within the ambit of rules or in accordance with law. The Court cannot arrogate upon itself the task of making appointment and directing the authorities to comply with the direction for the reasons given aforesaid. 13. The contention of Mr. Hence, direction is always given for consideration within the ambit of rules or in accordance with law. The Court cannot arrogate upon itself the task of making appointment and directing the authorities to comply with the direction for the reasons given aforesaid. 13. The contention of Mr. Mukherjee is that there has been no discrimination with the petitioner or with any other person, as the other employees similarly situated claimed to have been given appointment, were considered by the District Inspector of Schools, as in their cases too, the appeals against the judgments preferred by the State are pending. It is true that a mistake cannot be perpetuated on the foundation of Article 14 and 16 of the Constitution of India. 14. It appears that in all the cases cited on behalf of the respondent/writ petitioner direction was issued for consideration of his case. However, the matter has been set at rest finally by several judgments, particularly the judgment rendered by this Court in Manindra Nath Sinha & Ors. (supra), as the leading one. Paragraphs 16 to 23 thereof are set out: “16. In our view, the Parent Act, namely, the West Bengal Board of Secondary Education Act, 1963 and rules framed thereunder to achieve the object of the said Act, there is no provision for appointment of any Organizing Managing Committee or organizer teacher nor is there any authority conferred upon such Organizing Managing Committee to appoint any teacher or employee before the recognition of the school and conferment of the prescribed sanction strength under the Act and the Joint Secretary of the Education Department by issuing certain circulars cannot lay down the guidelines for approval of any teacher or employee illegally appointed by the so-called Organizing Managing Committee. If the initial appointment is illegal according to the Parent Act and the rules, the Government by issuing notification through its Joint Secretary cannot approve or regularize such illegal appointments. 17. In this connection reference may be made to a Supreme Court decision in the case of R.N. Nanjundappa Vs. T. Thinmaiah & Anr. Reported in 1972 (1) LLJ 565 SC. In the said case, rules framed by the Governor of Mysore in exercise of power conferred under the proviso to Article 309 of the Constitution of India was challenged. The rules are quoted below: 1. T. Thinmaiah & Anr. Reported in 1972 (1) LLJ 565 SC. In the said case, rules framed by the Governor of Mysore in exercise of power conferred under the proviso to Article 309 of the Constitution of India was challenged. The rules are quoted below: 1. Title: These rules may be called the Mysore Education Department Services (Technical Education Department) (Special Recruitment) Rules, 1967. 2. Provisions relating to regularization of appointment of Principal, school of Mines, Oorgaum, Kolar Gold Fields. Notwithstanding any rules made under the proviso to Article 309 of the Constitution of India, or any other rules or order in force at any time, Dr. T. Thimmaiah, B.Sc. (Hons.) Ph.D. (Lond.) F.G.S. shall be deemed to have been regularly appointed as Principal, School of Mines, Oorgaum, Kolar Gold Fields, w.e.f. 15.02.1958. 18. In the aforesaid case, irregular appointment of the respondent to the post of the Principal, Kolar Gold Fields school of Mines was sought to be regularized by enacting the aforesaid rules in exercise of power under the proviso to Article 309 of the Constitution of India and it was contended on behalf of the State that under Article 309, the State had the power to make rules regularizing a previous appointment irregularly made. Shelter was taken behind Article 162 of the Constitution of India and the power of the Government to appoint. 19. In such circumstances, the Supreme Court was of the view that nobody could deny the power of the Government to appoint but regularization of appointment by stating that notwithstanding any rules, the appointment was regularized, struck at the root of the rules and if the effect of the regularization was to nullify the operation and effectiveness of the existing rules, such rules itself is open to criticism on the ground that it is in violation of the current rules. Therefore, the relevant rules at the material time as to the promotion and appointment were infringed and the impeached rules could not be permitted to stand to operate as regularization of appointment of one person in utter defiance of the rules requiring strength of seniority and merit. 20. Therefore, the relevant rules at the material time as to the promotion and appointment were infringed and the impeached rules could not be permitted to stand to operate as regularization of appointment of one person in utter defiance of the rules requiring strength of seniority and merit. 20. In the present case, according to the existing rules, there is no scope of appointment of an Organizing Managing Committee and even a regularly appointed Managing Committee is not vested the authority to appoint any teacher or non-teaching staff beyond the sanctioned strength; but by way of Government instructions such illegal act is sought to be regularized. Therefore, the facts of the present case are the worse that those involved in the case of R.N. Nanjundappa (supra), where statutory rules were framed to regularize illegal act. 21. We, thus, find that by merely issuing Government instructions, illegal acts committed by the Organizing Managing Committee which is a total busybody cannot be regularized in this way. The moment the school is recognized, the Managing Committee is to be constituted in accordance with the Act and the rules framed thereunder and such duly-constituted Managing Committee can alone appoint teachers and non-teaching staff according to the provision contained in Rule 28 of the Management Rules within the sanctioned strength but even there is no right conferred upon the duly-constituted Managing Committee to appoint any staff who before the recognition of the school was appointed by the Organizing Managing Committee and even the guidelines or circulars did not permit the appointment of any staff before the school is recognized and the sanctioned strength is declared. 22. Therefore, it is clear that initial appointments of the writ petitioners, even if those were really made, were contrary to the rules and any executive instruction issued by the Government cannot approve the illegal appointment contrary to the statutory rules. 23. As regards the applicability of the doctrine of promissory estoppel raised by Mr. Deb we are of the view that if the appointment itself is de hors the existing statutory enactment, there is no question of applicability of the doctrine of promissory estoppel. According to the Parent Act, namely, the West Bengal Board of Secondary Education Act, 1963 and the rules framed thereunder, there is no provision of appointment of organizer-teacher by a so-called Organizing Managing Committee before a school has been recognized by the Board. According to the Parent Act, namely, the West Bengal Board of Secondary Education Act, 1963 and the rules framed thereunder, there is no provision of appointment of organizer-teacher by a so-called Organizing Managing Committee before a school has been recognized by the Board. There is no statutory provision for giving appointment to the so-called organizer-staff after a school is recognized by the Board. According to the present law, a Managing Committee is to be duly constituted and such duly constituted Managing committee alone will appoint teachers and non-teaching staff by complying with the requirements of the Management Rules.” 15. The findings in the aforesaid case have been affirmed by the Apex Court in Civil Appeal no. 7897 of 2010, wherein the Apex Court rejected the appeal against the aforesaid judgment by holding that:- “After having considered the submissions advanced at the hands of the learned counsel for the appellants, and also after having heard Mr. Bandyopadhyay at great length, we are satisfied that the impugned order passed by the High Court does not call for any interference by this Court. The instant appeal is accordingly dismissed.” 16. During course of argument as we have been apprised of that there was never any concept of organizing teacher either in the old Act 1963 or the relevant Acts came into force thereafter. By several judgments referred to above, the law has been accordingly set at rest that the appointment of teaching and non-teaching staff has to be made only against sanctioned post and applying recruitment rules and regulations as applicable. Since for the education institutions apart from other circulars, the West Bengal School Service Commission Act, 1997 and the West Bengal (Control of Expenditure) Act, 2005 have also come into force without any saving clause for any teaching and non-teaching so-called staff allegedly appointed by the Managing Committee of any such recognized school against rules, the State authority cannot be directed to bear the liability of those teaching or non-teaching staff, if they have not been appointed against sanctioned post following the selection process. Therefore, the condition of their service, had there been if any, cannot be protected by the Court in absence of saving clause in the relevant Act or Rules, as we have already observed that had there been any wrong committed in the past, cannot be perpetuated by recurring the same in future. 17. Therefore, the condition of their service, had there been if any, cannot be protected by the Court in absence of saving clause in the relevant Act or Rules, as we have already observed that had there been any wrong committed in the past, cannot be perpetuated by recurring the same in future. 17. Therefore, for the reasons stated above, the order impugned is quashed and set aside. The appeal is accordingly allowed. 18. However, liberty is granted to the Organizing Committee to continue the respondent/writ petitioner in service at their own and in such case they shall pay him the salary and wages from their own pocket without burdening the Government. 19. No order as to costs. 20. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.