Achal Kumar Dubey @APPELLANT@Hash State of West Bengal & Ors

Abhijit Gangopadhyay, J.

In this writ application the main prayer of the petitioner is for quashing, cancellation and setting aside of Memo No 89/1 (3) L.S. dated February 13,

2015 issued by the Commissioner of School Education, West Bengal whereby the claim of the petitioner for appointment in a school in the post of a

clerk (Wherein his service was ceased) has been rejected.

The case made out by the petitioner in his writ application is as follows.

On March 5, 1995 the petitioner was appointed as a clerk of a school namely Adarsha Vidya Bhawan on compassionate ground, due to the death of

his father. He joined his duty on November 10, 1995. He started absenting from the school just after 20 days from the date of joining and did not

attend school from March 30, 1995 to May 12, 1995. According to the petitioner on May 13, 1995 the petitioner went to join the school after remaining

absent but he was not allowed to join.

In 2010 he filed the writ application being WP No. 20394 (W) of 2010 claiming certain reliefs. Between May 13, 1995 and filing of the writ application

being WP No 20394 (W) of 2010 (which was the petitioner’s first writ application) he made several representations. This first writ application

was disposed of by this Court on January 12, 2011 directing the Director of School Education to consider the report of the District Inspector of

Schools (submitted on September 4, 2008). The order of this Court was complied with by the Commissioner of School education West Bengal

(Commissioner, in short, hereafter) who in his reasoned and speaking order passed on November 14, 2012 refused to extend any favourable benefit to

the petitioner and thus his prayer was rejected.

Challenging this order of the Commissioner dated November 14, 2012 the petitioner filed another writ application (his second writ application) being

WP No, 4077(W) of 2013 on February 19, 2014. This writ application was disposed of by this Court by setting aside the said order of the

Commissioner dated November 14, 2012 and this Court directed the Commissioner, School Education , West Bengal to dispose of the matter of the

petitioner afresh after giving the petitioner as well as the school authorities an opportunity of hearing.

The order passed by this court on February 19, 2014 has been complied with by the Commissioner, by passing an order dated February 13, 2015. This

order is the order impugned herein. By this order the Commissioner held that the School authority after taking approval of the West Bengal Board of

Secondary Education in terms of sub - rule 8 of rule 28 of the Rules for Management of Recognised Non- Government Institution (Aided and

Unaided) 1969, ceased the service of the petitioner. After recording reasons including the above observation, the Commissioner held that he was

unable to give any relief to the petitioner. Against this order of the Commissioner dated February 13, 2015 the petitioner has filed the present writ

application (his third writ application).

The respondents have not filed any affidavit-in-opposition in this matter but have opposed the prayers of the petitioner as baseless by alleging that the

petitioner was given several notices by the School for joining immediately to which he did not even respond and it is not correct that he went to join

school on 13.5.1995 when he was not allowed to join. It has been submitted by the respondents that he filed his first writ application in 2010 whereas

allegedly he was not allowed to join the school on 13.5.1995. The respondents have further submitted that the allegation of not allowing the petitioner

to join his service is very serious in nature but the petitioner took shelter of law after 5 years; from the alleged event; this casual act of the petitioner in

respect of the allegation of serious nature shows that his allegation in this regard is false.

The respondents have relied on the following two judgements:

(i) New Delhi Municipal Council â€"versus- Pan Singh & Ors. ((2007) 9 SCC 278)

(ii) State of Uttarnchal and another â€"versus- Shiv Charan Singh Bhandari & Ors. ((2013) 12 SCC 179).

These two judgements have been placed before me by the respondents to show that the petitioner has made enormous delay in filing the writ

application and such delay defeats equity and several representations during period of delay cannot give any fresh cause of action to the petitioner and

though there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, ordinarily, a writ petition should be

filed within a reasonable time which has not been done in this case.

In this application I find that while challenging the order of the Commissioner dated February 13, 2015 the petitioner has taken as many as ten (10)

grounds for setting aside the said order of the Commissioner dated February 13, 2015. But it is found from those grounds, in actuality, he has alleged

against the impugned order one ground in respect of rule 7 of the leave rules of West Bengal Board of Secondary Education (WBBSE) which is an

incorrect ground as the order of the Commissioner refers to rule 11 of the leave rule of WBBSE. In any event, if it is presumed that the petitioner has

taken the ground against observation of the Commissioner in respect of said rule 11, nowhere in the writ application it is found as to why the said rule

11 cannot be applied in respect of the petitioner’s case who was not at all a permanent employee of the school and was an unapproved staff of

the School. The writ application is totally silent as to why the said Rules cannot be made applicable in his case.

I hold that mere allegation that a provision of any Act or Rules has been incorrectly and illegally made applicable while deciding a case is not sufficient

for claiming relief in a writ application. It has to be shown in a writ application as to why and how the application of provision of the Act or Rules is

incorrect and illegal. In absence of any such pleading in the writ application the allegation becomes a bald allegation and becomes baseless. Mere

allegation does not substantiate the allegation. To establish the allegation some more acts are required to be done. Allegation cannot take the place of

proof.

The other grounds which have been taken by the petitioner against the order of the Commissioner dated February 13, 2015 is that the said order is

arbitrary, whimsical and in violation of principles of natural justice. Again there is absolutely no pleading as to why the said order of the Commissioner

has been termed as arbitrary and whimsical and how it was in violation of the principles of natural justice. It is categorically stated in the impugned

order that on the dates of hearing the petitioner and the Head Master of the concerned School were present. There is no allegation in the writ

application or otherwise that the petitioner was not heard by the Commissioner before passing the order dated February 13, 2015.

This Court by its order dated February 19, 2014 made it clear that the observation made by the Court (in the said order) should not be construed as an

expression of opinion of the Court about the validity of the petitioner’s case and the same was to be decided by the appropriate authority in

accordance with law. The Court directed the Commissioner to hear the matter afresh by giving the petitioner as well as the School authority,

opportunity of being heard. Such opportunity was granted. There is no allegation in this respect and the matter has been disposed of by passing the

order afresh which is a reasoned and speaking order, in respect of which the petitioner has not been able to make any pleading and has not taken any

ground and thus failed to make out a case which could be even be considered by the Court for giving relief to the petitioner.

Considering all the facts and circumstances of the matter I hold that the petitioner has failed to show any reason and has failed to plead anything for

which the said order of the Commissioner dated February 13, 2015 can be set aside or quashed or cancelled. In respect of delay of the petitioner as

has been submitted by the respondents I will only point out a deficiency in the writ application which is fatal and becomes another ground for dismissal

of this writ application. In annexure P-24 of the writ application the petitioner has annexed the order of the Commissioner dated November 14, 2012

which was set aside by the order dated February 19, 2014 in W.P. No 4077 (W) of 2013. From this Annexure it is found that after cease of service of

the petitioner from the School, in the said vacancy one Kajal Roy was appointed on November 3, 1997 whose service was dully approved by the

District Inspector of School (S.E.) Kolkata by his order dated May 6, 1998. This is the result of delay of the petitioner.

 A third party right has been created in the post even before filing of the first writ application by the petitioner in the year 2010. The appointment and

approval of service of one Kajal Roy in the said post in the said School was clearly within the knowledge of the petitioner from the date of receipt of

the order of the Commissioner dated November 14, 2012. But in the present writ application which has been affirmed on 10th day of April 2015 said

Kajal Roy has not been made party and without making the said Kajol Roy a party the petitioner has come before the Court praying for an order to

allow him to join his duty in the said post in the School.

It is clear that the petitioner wanted to obtain an order from this court in the present writ application behind the back of said Kajal Roy who has been

appointed long back as clerk in the school i.e. in the post where the petitioner worked only for 20 days. Such action of the writ petitioner is not only

unfair and mischievous but also wholly illegal. It does not appear that the petitioner made any endeavour whatsoever for making said Kajal Roy a

party respondent in whose absence the writ application, in the facts and circumstances of the matter, cannot be even heard. For the reasons as

aforesaid I do not find any merit in the writ application and the writ application is dismissed with cost of Rs. 1000/- (Rupees one thousand only).