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2019 DIGILAW 341 (CAL)

Ghanshyam Singh v. State of West Bengal

2019-03-11

ABHIJIT GANGOPADHYAY

body2019
JUDGMENT : 1. In this case the claim of the petitioners (there are three writ petitioners) is approval of their service with effect from the date of sanction of three posts of Assistant Teachers in the School i.e. with effect from June 27, 1990 with financial benefits as admissible in accordance with law. 2. The said three posts where additional posts of teachers wherein how the petitioners were appointed by the School authority has not been disclosed and has not come to light. The School was a Government aided High School. By order of Court passed on 26.08.1999 in C.O. No. 8865 (W) of 1991 the posts and the service of the petitioners were regularised. After such regularisation the petitioners continued as teachers. In compliance with the order of this Court as mentioned above, the services of the petitioners as Assistant Teachers were approved with effect from 01.09.1999. 3. The petitioners' case is that they were working as Assistant Teachers since 1983 and the posts were sanctioned by the Director of School Education on 27.06. 1990 but the approval of the petitioner's service was granted by the District Inspector of Schools (Secondary Education), D.I. in short hereafter, with effect from 01.09.1999. Their approval and all moneytary benefits, according to the petitioner should be given from 27.06.1990. 4. The petitioners made a representation for giving effect to the said approval with effect from 27.06.1990 instead of 01.09.1999 which was not considered by the D.I. 5. Against such non-consideration of the representation the petitioners filed one writ application being WP No. 7498 (W) of 2005 which was disposed by an order of this Court on 07.05 2012. By the said order, inter alia, the concerned respondent being the D.I. was directed to consider the representation of the writ petitioners. The operative portion of the said order passed by this Court on 07.05.2012 is required to be set out here-in-below. "The respondent no.3 is directed to consider the representation of the writ petitioners as to whether their regularisation in service may be fixed notionally from the date of sanction of the aforesaid permanent posts, that is on 1.8.1990. Such consideration shall be made by the respondent no. 3 herein within a period of four weeks from the date of communication of this order and he shall pass a speaking order thereon. Such consideration shall be made by the respondent no. 3 herein within a period of four weeks from the date of communication of this order and he shall pass a speaking order thereon. I make it clear that I have not gone into the legality of such claim for retrospective regularization on notional basis of the petitioners and the same is kept open to be decided by the respondent No. 3 in accordance with law. I, however, clarify that even if the petitioners are notionally regularised from the date of sanction of the aforesaid permanent posts, they would not be entitled to any financial relief for the said period but the said period may be counted for retiral benefits as if they were in service from that date. The impugned memo to the extent of regularisation in service of the petitioners on and from 1.9.1999 is kept in abeyance till such decision is arrived at". 6. After considering the representation in compliance with the Court's order dated 07.05.2012 the D.I. disposed of the said representation on 18.10.2012 regularising the service of the petitioners with effect from 27.06.1990 i.e. from the date of sanction of the additional posts on condition that they would not be entitled to any financial relief for the period from 27.06.1990 to 31.08.1999 but the said period would be counted for retiral benefits only. 7. Against this decision of the D.I. dated 18.10.2012 this writ application has been filed praying regularisation with financial benefits from 27.06.1990. 8. Against the order of this Court dated 07.05.2012 passed in WP 7491 (W) of 2005 wherein the Hon'ble Judge clarified that even if the petitioners were notionally regularised from the date of sanction of the said permanent posts they would not be entitled to any financial relief for the said period but the said period might be counted for retiral benefit as if they were in service form that date. No appeal was preferred against this order. 9. The said learned Judge in the order dated 27.05.2012 kept the legality of the claim for retrospective regularisation on notional basis of the petitioner open and it was to be decided by the respondent No. 3 in accordance with law. 10. No appeal was preferred against this order. 9. The said learned Judge in the order dated 27.05.2012 kept the legality of the claim for retrospective regularisation on notional basis of the petitioner open and it was to be decided by the respondent No. 3 in accordance with law. 10. Nowhere in the present writ application it has been shown or pleaded that the decision of the D.I. dated 18.10.2012 was not in accordance with law and that the said order of the D.I. was not a speaking order. That the D.I. failed to comply with the Court's order dated 07.05.2012 is not the case of the petitioner. 11. The petitioners did not challenge the observation of the Hon'ble Judge in the order dated 07.05.2012 in WP No.7498 (W) of 2005 also. Therefore, the order of this Court dated 07.05.2012 became absolute as no appeal there from was preferred. On that date the said writ application being WP No. 7498 (W) of 2005 was disposed of. 12. Thus, after accepting the clarification given by this Court in the order dated 07.05.2012 the petitioners proceeded to participate in the hearing given by the said D.I. in which the order of the D.I. dated 18.10.2012 was passed. 13. After accepting the said order of this Court dated 07.05.2005, which has been echoed in the order of the D.I. dated 18.10.2012, the petitioners again by filing a new writ application, being the present one, prayed that their regularisation is to be given effect from the sanction of the said posts from 27.06.1990 with financial benefit as admissible in accordance with law. This is the main prayer of the writ petitioners. 14. As the order of the Hon'ble Court dated 07.05.2012 has reached to its finality and as the D.I. in his order 18. 10.2012 has echoed such observation of the writ Court made on 07.05.2012 the writ petitioners are absolutely barred by law to reagitate the point in an indirect manner for regularisation with financial benefits. I hold that this is an indirect way to challenge the order of this Court dated 07.05.2012 which is not at all permissible on the principle that what cannot be done directly, cannot also be done indirectly. This ingenious endeavour of the petitioners for reopening the order of this Court which has become final is egregious. 15. I hold that this is an indirect way to challenge the order of this Court dated 07.05.2012 which is not at all permissible on the principle that what cannot be done directly, cannot also be done indirectly. This ingenious endeavour of the petitioners for reopening the order of this Court which has become final is egregious. 15. The writ petitioners have filed their short notes of argument on December 03, 2018 referring the following judgments. Now I discuss the said judgments to see whether the petitioners get any support from those judgments. (i) In the case of Shainda Hassan -vs- State of Uttar Pradesh and others, (1990) 3 SCC 48 the concerned institution being the college was a minority institution which prescribed qualification for the post of Principal which was, as decided by the Supreme Court, in conformity with the object of establishing the institution. Here, in this case nobody knows how the petitioners were appointed in a Government aided School; however, they got the regularisation and the approval in compliance of the order of this Court. Further, from paragraph 8 of the said judgment it is found that the learned counsel for the State (i.e. the respondent) after obtaining instruction agreed with the Court that asking the appellant to leave the job after 16 years would be doing injustice to her. In the present case there is no such concession granted by/or on behalf of the respondent. Here, there is no question of saying to the petitioners to leave the job. Thus this case cited by the petitioners are clearly distinguishable on facts and this cited case does not support the cause of the petitioner. (ii) The next judgment referred to by the petitioners is an unreported one, passed in WP No 1101 of 2009 dated July 03, 2013 (Om Prakash Mishra -versus- the State of West Bengal and others). In this case the petitioner was not at all given approval, either from the date of his appointment or from any other date due to overage though the writ Court directed the concerned District Inspector of Schools to take into consideration the prayer for condonation of age bar of the petitioner. In this case the petitioner was not at all given approval, either from the date of his appointment or from any other date due to overage though the writ Court directed the concerned District Inspector of Schools to take into consideration the prayer for condonation of age bar of the petitioner. Even then no approval was granted and therefore, taking a humane approach the Court directed approval of appointment from the date of his joining holding that the appointment of the writ petitioner was neither prejudicial to the State Authorities nor to the institution or its students. It is to be noted that in the above case cited the writ petitioner was not granted any approval at all initially, due to his overage. But in the present writ application the writ petitioners have been granted approval in the post from a certain and specific date and it is not at all their case that they have not been given approval at all. In the present case humane approach had been taken by this Court in C.O. No. 8865 (W)/ 1991. In the order dated 26.08.1999 the humane approach towards the petitioners is evident otherwise the petitioners whose appointment was obscure, unknown to Court and undisclosed before the Court could not get order for regularisation in service. At the subsequent stage there is no case for further humane approach. The petitioners were working in the School and were getting their due salary. There is no question mark put on getting the salary. As there is no case for humane approach in this matter, this Court restrains itself from showing any such humane approach as the same, if taken, will be a misplaced action. Therefore, this cited case is also distinguishable on facts and otherwise and this case does not give any support to the petitioners. (iii) The next case on which the petitioners rely, is actually an appeal from the last mentioned case i.e. the case of Om Prakash Mishra. The appeal Court did not interfere with the finding of the writ Court. In this appeal, naturally, there is no change of factual matrix or any introduction of new facts. Therefore, the distinguishing factual feature in this appeal case remain identical when compared with the present writ application. Therefore, this judgment of appeal Court also does not come to any aid to the petitioners. In this appeal, naturally, there is no change of factual matrix or any introduction of new facts. Therefore, the distinguishing factual feature in this appeal case remain identical when compared with the present writ application. Therefore, this judgment of appeal Court also does not come to any aid to the petitioners. (iv) The next case referred to by the petitioner is another unreported judgment delivered on 26-06-2012 in WP No 1115 of 2011(Surendra Bhanderi -versus- The State of West Bengal & Others). In this case one Laboratory Assistant of a D.A. getting School was not given approval of service from the date of his appointment i.e. with effect from 28.08.1996. 16. The approval was not granted mainly on three grounds: Not having vacancy in any sanctioned Group-D post; the appointed employee was under age; and appointment was made without taking prior permission. 17. In this case the Court held that when the said incumbent was appointed there was no recruitment rule framed by the concerned authority prescribing the procedure for appointment of any teaching and non-teaching staff in a D.A. getting School, the question of taking prior permission did not arise and for the same reason the objection of under age of the said incumbent, (who was the writ petitioner) was also not accepted by this Court. Further, the said incumbent/ petitioner's approval was sought form 20.08.1996 when he attended majority and he possessed the requisite qualification for the Group-D staff which is Class Eight pass. On the basis of these facts the Court directed granting him approval of service from 20.08.1996 when the said post fell vacant due to retirement of a staff of the said School. 18. This case does not have any factual similarity whatsoever to the present writ application; and therefore, this cited case also does not lend any support to the petitioners herein. 19. Therefore, I hold that the writ application not only does not have any merit but also is wholly frivolous one and the writ application is dismissed with cost of Rs. 15,000/- to be paid equally by the three petitioners (Rs. 19. Therefore, I hold that the writ application not only does not have any merit but also is wholly frivolous one and the writ application is dismissed with cost of Rs. 15,000/- to be paid equally by the three petitioners (Rs. 5000.00 each) by four weeks from the date of delivery of this judgment and the said amount of money is to be paid to the West Bengal Legal Aid services and the valid receipt in original showing such payment is to be filed with the Registrar General's office of this Court for keeping the same with the record of this case.