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2020 DIGILAW 511 (CAL)

Shyamal Middya v. State Of West Bengal

2020-06-19

TAPABRATA CHAKRABORTY

body2020
JUDGMENT Tapabrata Chakraborty, J. - The present writ petition has been preferred inter alia praying for issuance of necessary direction upon the respondents to accord approval to the appointment of the petitioner to the post of a librarian with effect from 1st November, 2003 in Ramkrishna Ashram Library-cum-Museum (in short, the said library). 2. Mr. Dalapati, learned advocate appearing for the petitioner submits that the authorities of the said library published an advertisement on 1st October, 2003 inviting applications from eligible candidates for appointment to the post of a librarian. The petitioner applied and participated in the aptitude test and in the interview conducted by a selection committee and emerged to be successful. Such resolution of the selection committee was approved by the managing committee of the said library and an appointment letter was issued to the petitioner on 31st October, 2003 and he duly joined the said post on 1st November, 2003 but till date no steps have been taken by the respondent no.3 to accord approval to the petitioner's appointment. 3. Drawing the attention of this Court to the documents annexed at pages 21 to 26 of the writ petition, Mr. Dalapati submits that the said library was recognized as a government aided public library on and from the year 1961. For running the said library, one Sri Amulyadhan Mondal was initially appointed to the post of a librarian. He, however, resigned on 15th September, 1970 and in his place and stead one Rabindranath Das was appointed and one Sri Ranjit Kayal was appointed to the post of a cycle peon. After the said librarian retired on 31st October, 2003, he was issued a pension payment order on 12th May, 2004. From such facts it would be evident that the said library had functioned as a government aided library. 4. Mr. Dalapati submits that the petitioner was appointed after the retirement of the earlier librarian. Such appointment was issued after the petitioner emerged to be successful in the selection process conducted by the competent authority being the managing committee of the said library in terms of a notification dated 3rd July, 1997. The method of recruitment as provided in the said notification was strictly followed by the authorities of the said library and as such the respondent no.3 was under an obligation to approve such appointment of the petitioner with effect from 1st November, 2003. 5. The method of recruitment as provided in the said notification was strictly followed by the authorities of the said library and as such the respondent no.3 was under an obligation to approve such appointment of the petitioner with effect from 1st November, 2003. 5. Per contra Mr. Ali, learned advocate appearing for the respondent nos.2 and 3 submits that the said library was recognized as a rural library by a memo dated 10th May, 1963 subject to fulfilment of the conditions as specified in the said memo. Subsequent thereto, a deed of acceptance was also executed for receipt of maintenance grant. The said library is not a government aided library. 6. Drawing the attention of this Court to a document annexed at page 59 of the affidavit-in-opposition, Mr. Ali submits that in the State of West Bengal there are seven aided libraries and the name of the said library does not feature in the same. The said library is in fact a sponsored library, as would be explicit from the list of government sponsored libraries annexed at pages 86 to 90 of the said opposition. 7. Referring to the notification dated 3rd July, 1997 annexed at pages 52 to 54 of the affidavit-in-opposition, Mr. Ali submits that in case of direct recruitment the Local Library Authority (in short, LLA) in each district would be the selecting and appointing authority and that the selection committee is also required to be constituted by LLA. The said notification had been issued in exercise of the powers conferred under Rule 4 of the Service Rules for the Employees in the Government Sponsored/Public (other than Government) Libraries/Aided Libraries in West Bengal, 1985 (in short, 1985 Rules) under the West Bengal Public Libraries Act, 1979 (in short, 1979 Act). Rule 3 of the 1985 Rules categorically states that the LLA shall be the appointing authority in respect of appointment of employees of a library. The term 'library' has also been defined under rule 2(e). The said 1985 Rules are thus universally applicable to all the employees of all libraries. 8. Rule 3 of the 1985 Rules categorically states that the LLA shall be the appointing authority in respect of appointment of employees of a library. The term 'library' has also been defined under rule 2(e). The said 1985 Rules are thus universally applicable to all the employees of all libraries. 8. He further submits that in the year 2004 the said library filed a writ petition being WP 9948 (W) of 2004 challenging inter alia an order dated 7th April, 1988 passed by the respondent no.3 herein and seeking a declaration as regards its status and praying for issuance of necessary direction upon the respondent no.3 therein to approve the appointment of the petitioner and of one Gobindo Halder. Upon contested hearing, the said writ petition was dismissed by an order dated 24th October, 2017. Thereafter the present writ petition has been filed praying for identical reliefs and as such it is not maintainable. 9. He further submits that in the writ petition it has been stated that the petitioner herein was appointed as a librarian in the year 2003. After such appointment he did not approach the competent authority claiming approval. In the earlier writ petition though the petitioner herein was impleaded as the proforma respondent no.5, he chose not to appear in the same. It is only after dismissal of the writ petition the petitioner submitted a representation to the respondent no.3 on 10th April, 2018. There is no explanation as to why he waited since the year 2003 till the year 2018 to approach the authorities. 10. Mr. Bandhopadhyay, learned advocate appearing for the State respondents adopts the submissions of Mr. Ali and submits that the petitioner was not appointed following the recruitment rules and such illegal appointment cannot be regularised and approved. 11. Mr. Barua, learned advocate appearing for the respondent no.4 submits that the said library is a government aided library and upon being appointed by the competent authority the petitioner had served in the said library for a substantial period of time. Such appointment of the petitioner cannot be construed to be an illegal appointment. Challenging the order dated 24th October, 2017 passed in WP 9948 (W) of 2004 an appeal had been preferred on behalf of the said library and the same is still pending. 12. Such appointment of the petitioner cannot be construed to be an illegal appointment. Challenging the order dated 24th October, 2017 passed in WP 9948 (W) of 2004 an appeal had been preferred on behalf of the said library and the same is still pending. 12. The writ petition being WP 9948 (W) of 2004 was preferred by the Secretary of the said library primarily praying for the following relief: "(a) A writ of or in the nature of Mandamus directing the Respondent and particularly the Respondent no.3 to approve the appointment of the Proforma respondent no.4 and 5 as Librarian and Class IV staff (Cycle Peon) of Ramkrishna Ashram Library-cumMuseum and to pay and release all salaries and allowances-both arrear and current of Proforma respondent No.4 and 5 at approved scale." 13. The petitioner herein did not appear in the said writ petition, as would be explicit from the final order passed in the same on 24th October, 2017. In the said order it was inter alia observed that "this Court cannot be also oblivious of the fact that the writ petition, being of 2004 stood still till 2017 and, has been now taken up for consideration when, the proforma respondent nos.4 and 5 are no more in service and have not come forward themselves to press their claims but, are doing so through the agency of their employer, viz. The Sponsored Library". 14. The petitioner was appointed in the year 2003 but he approached the authorities claiming approval, in the year 2018. Such delay has not been explained in the present writ petition. It is a well settled position of law that the relief under Article 226 of the Constitution of India is discretionary. It would be a sound and wise exercise of discretion for the courts to refuse their extraordinary powers under Article 226 in the case of a person who does not approach the court expeditiously for relief and who stands by and allows things to happen and then approach the court to put forward stale claims. 15. There is no document on record that the said library is an aided library. Its name does not feature in the aided library list of the State. It is in fact a sponsored library and is bound by the provisions of the 1985 Rules. 15. There is no document on record that the said library is an aided library. Its name does not feature in the aided library list of the State. It is in fact a sponsored library and is bound by the provisions of the 1985 Rules. The notification dated 3rd July, 1997 was issued in terms of rule 4 of the 1985 Rules. From a composite reading of the said notification along with the 1985 Rules and the 1979 Act, it appears that the LLA is the competent authority to grant appointment in all libraries including aided libraries and sponsored libraries. Even if it is assumed that the said library is an aided one it could not have constituted its own selection committee for direct recruitment. The LLA is the appointing authority and the selection committee is required to be constituted by the LLA. In view thereof, the appointment of the petitioner cannot be construed to be a legal appointment. 16. It is well settled that the direction for regularization or approval or absorption or permanent continuance should not be granted by this Court in exercise of the power under Article 226 of the Constitution of India unless the employee claiming regularization has been appointed in accordance with the prevalent recruitment rules against a sanctioned post. Mere continuance of service does not entitle the petitioner to seek regularization. In the event such direction is passed it would simply reinvigorate a class of claims which have been shut out permanently by the judgment delivered in the case of State of Karnataka vs. Uma Devi (3), (1996) 4 SCC 1 . 17. For the reasons, as discussed above, this Court is unable to grant the relief as prayed for by the petitioner and the writ petition is, accordingly, dismissed. 18. There shall however no order as to costs. 19. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.