Anil Chandra Kumar vs Stat of West Bengal

Ruma Pal, J.—The basic issue, raised in the writ petition relates to the right of regularisation of a school teacher in a post against which he was rendering service.

The school in question is the Ajodhya (Hills) Government Sponsored Ashram Type Senior High School for Boys'' (referred to hereafter as the School). The school was recognised as a ''two class school'' with effect from January, 1986. The Petitioner claims to have joined the school as ''Coaching Teacher'' in English in June, 1988. According to the Petitioner his service was continued as Assistant Teacher from May 1, 1994.

In May, 1996 the school was upgraded as a ''four-class school''. By reason of such upgradation the post of, inter alia, Assistant Teacher in English fell vacant. On December 9, 1996 the District Inspector of School, Purulia (D.I. for short) granted permission to the school to fill up the post of Assistant Teacher in English. The prescribed qualification for the post was ''B.A. with English (300 marks) and preferably B.T./B. Ed./ P.G.B.T.

The letter of the D.I. which was addressed to the Secretary of the School further provided:

He is requested to note the following points for guidance:

a) Directions of procedure for appointment of staff as contained in DSE, West Bengal Memo No. 2066(20) GA dt. 27.10.95 should strictly be followed.

b) Procedure for recruitment should be completed within a reasonable period.

c) If there be any problem causing unusual delay in processing any step the matter should immediately be intimated to the undersigned.

As no candidate, eligible for the post(s) (other than the posts stated above) is available in the relevant register of this office, the school authority may approach the employment exchange for sponsoring names of candidates as per para 4(a) of the directions laid down in DSE W.B.''s No. 1049/1(19) GA dt. 20.5.93.

The school sent a requisition to the local employment exchange. Twenty names including the Petitioner''s were sponsored by the employment exchange. The added Respondent''s (Biprasis Chatterjee) name was not one of the twenty. Biprasis filed a writ application being W.P. No. 5949 (W) of 1997 complaining that names of persons junior to him had been sponsored for the vacancy although he was qualified. The Court, by an order dated April 10, 1997, directed the Employment Exchange Officer to forward his name and also directed the School to allow Biprasis to appear at the interview.

On June 4, 1987 the Petitioner made a representation to the school. He asked for appointment to the post of Assistant" Teacher in English. He acknowledged that he did not have a B. Ed. or B.T. or a P.G.B.T. degree but said that he was otherwise qualified and would fulfil the training requirement after appointment.

By a notice dated June 18, 1997 the school authorities called the Petitioner for an. interview along with the other sponsored candidates on July 12, 1997. On July 12, 1997 the Petitioner did not appear for the interview nor did the nineteen other candidates. They boycotted the interview because two candidates namely Biprasis Chatterjee and Bhubaneswar Gorain, who were the only candidates who had degrees in Education (B. Ed.), had not been sponsored by the Employment Exchange. Incidentally, Bhubaneswar Gorain also appeared at the interview by virtue of an order dated June 26, 1997 passed by Court in W.P. No. 4526 (W) of 1997.

According to Biprasis Chatterjee the Selection Committee held an interview and prepared a panel but did not forward the panel to the D.I. for approval.

According to the writ Petitioner no interview was at all held by the Selection Committee.

According to the School Authorities an interview and demonstration were held but neither Biprasis Chatterjee nor Bhubaneswar Gorain, were awarded any marks at the interview or the demonstration test and ''were folind unsuitable for the post.

On July 28, 1997 the Managing Committee, of the school held a meeting. As to what transpired at the meeting will appear from the extract of the minutes of the meeting produced by the Petitioner:

At the time of meeting of the Managing Committee, the President placed a letter of Ld. Advocate, Mr. G.S. De, High Court, Calcutta (copy enclo) for discussion and after thorough discussion it is resolved that the matter be referred to the competent authority seeking instruction that-

i). Whether the above noted 2 persons may be considered for selection on the basis of academic, marks only specially when the other 19 candidates have walked out from the interview,

ii) Whether the candidature of the above noted 2 intervfewees may be cancelled by the Managing Committee in view of the existing Govt. Order No. 2066-GA dated 27.10.95 in para No. 6(j).

It is resolved that after receipt of the considered opinion from the Government through D.I./S(S.E.), Purulia in the above case, the matter may be placed before the M.C. in its ensuing meeting.

Biprasis Chatterjee filed a second writ application viz. W.P. No. 19194 of 1997 for directions on the School Respondents to prepare and forward the panel to the D.I. and for the D.I. to approve the panel as prepared. By an order dated December 12, 1997 as modified on February 13, 1998 the writ petition was allowed.

Prior to this date on September 16, 1997 the writ Petitioner filed this writ application claiming regularisation and appointment to the post of Assistant Teacher in English. Biprasis was not made a party. The application was taken up on January 8, 1998. Biprasis was added as a party. An ad interim order was also passed on January 8, 1998 directing status quo regarding the appointment of Assistant Teacher in English in the school.

Neither the school authorities nor the D.I. has filed any affidavit in opposition. The school authorities produced records relating to the interview after several directions and under threat of contempt proceedings. Although an exercises book which contains the resolution of the Selection Committee on July 12, 1997 was produced, the minute book of the Managing Committee of the school was not produced by the school authority.

The District Inspector has submitted a report to this Court pursuant to the court''s direction with regard to the position arising out of this writ petition and the writ petition filed by Biprasis Chatterjee. The relevant extract of the report which is dated February 3, 1998 reads as follows:

19 (Nineteen) candidates expressed their unwillingness to appear before the Selection Committee in view of the fact that two candidates namely, Sri Biprasis Chatterjee and Bhubaneswar Gorain have got higher qualifications. Marks on academic records were awarded in favour of Biprasis Chatterjee and Bhubaneswar Gorain. As the candidates were found unsuitable no marks were given on account of Viva & Demonstration but in view of Rule 59(r) of the Recruitment Rules, 1995 they are declared to get zero marks for Viva & Demonstration lesson. Thus the panel is deemed to be prepared but the same cannot be approved in view of the violation of Recruitment Rules 6(J).

The D.I. enclosed copies of the records which had been forwarded to him by the school authorities in respect of the interview held on July 12. 1997.

At the hearing the writ Petitioner contended that the school had a sanctioned vacancy in the post of Assistant Teacher in English from the date of its recognition. It was further stated that the school was van Ashram type school and was financed by the Tribal Department. On the basis of the funds made available to it the school opened Class VII and VIII from 1987. The expenses in connection with these, classes were borne by the Tribal Department, it was therefore, the Petitioner''s contention that there was a sanctioned vacancy in 1988 in the post of Assistant Teacher when the Petitioner was appointed. The second submission of the Petitioner was that the Procedure for Recruitment of Teaching and Non-Teaching Staff of a Nongovernment Recognised Secondary Schools promulgated by the Director of School Education by Memo No. 1828(17) GA dated August 28, 1987 were not at ail'' applicable to the school which was an Ashram Type school and funded by the Tribal Department. According to the Petitioner the Sub-divisional Officer and the District Inspector of Schools were part of the Managing Committee and that the Petitioner could be appointed from the panele of Tribal Coaching Staff. The third submission of the Petitioner is that the Government sponsored schools were brought under the perview of the 1987 Procedure for Recruitment of Teaching and Non-teaching Staff only with effect from May 20, 1993. The Petitioner''s contention is that when he was appointed in 1988, the procedure was not applicable and the Petitioner''s appointment was valid when made. The final submission of the Petitioner is that non-participation of the Petitioner at the interview did not mean that he was an unsuccessful candidate and that in any event as no panel had been prepared''by the Selection Committee, the appointment of the Petitioner would not prejudice any third party. The stand of the D.I. taken in his report has been challenged as being perverse and contradictory to the resolution of the Managing Committee dated July 28, 1997.

Biprasis Chatterjee has submitted: (1) the records show that there was no sanctioned post when the Petitioner was allegedly appointed in 1988 in the post of Assistant Teacher in English; (2) No valid appointment letter had been issued to the Petitioner by the Secretary of the School on behalf of the Managing Committee; (3) Even assuming the Petitioner was appointed by the Secretary or the Managing Committee of the school, the appointment was in violation of the Rules for Management of Recognised Non-Government Institutions (Aided and Unaided), 1969 and in particular Rule 28(7) thereof; (4) The Petitioner was not appointed through any selection process. The Petitioner''s appointment not being legal, he could not ask for regularisation; (5) that mere continuous work in the post did not further the Petitioner''s case. Several decisions of this Court and of the Supreme Court have been cited in support of this submission; (6) The Petitioner did not take part in the selection process because Biprasis Chatterjee had a higher qualification being a First Class in B. Ed. Examination. Having abstained from the interview he could not challenge the selection- of Biprasis; and (7) the Petitioner was guilty of laches. He had filed the writ application two months after the date of interview and after Biprasis had filed a writ application asking for approval of the panel.

The case sought to be made out by the Petitioner at the hearing is not reflected in the writ petition. The Petitioner changed his stand in his affidavit in reply. Apart from the question of inconsistency, I am not prepared to hold, as claimed by the Petitioner, that he has a right to be regularised in the post of Assistant Teacher in English at the school

By a series of decisions Courts have held that appointment can only be made in accordance with the recruitment rules and not otherwise. See: State of Haryana v. Piyara Singh AIR 1982 S.C. 2130 ; Dr. Arundhati Ajit Pargaonkar Vs. State of Maharashtra and others, ; Managing Committee, Dinhata High School v. Sri Ram Chandra Saha and Ors. 1997(1) C.H.N 105 (D.B.) ; Madhu Sundar Pal v. State of West Bengal 1995(2) C.L.T. 302; Madhyamik Siksha Parishad, U.P. Vs. Anil Kumar Mishra and others etc., and J. and J and K. Public Service Commission, etc. Vs. Dr. Narinder Mohan and others etc. etc.,

1 had also the occasion to consider the issue relating to regularisation pf an appointment of a teacher in Laxmi Narayan Ghosh v. State of West Bengal 1993 (1) C.H.N. 382 I had said:

There has been a veritable flood of cases relating to the regularisation of employees in different services. The cases cited by the Petitioner are a representative trickle of this flood. Upon a consideration of the authorities cited it appears that there are two broad streams of cases. In the first stream are the cases which raises the questions whether the employee concerned was appointed initially on the basis of any extraneous reason or not or whether the appointment is made by ignoring the regular procedure provided for recruitment under a pretended need. Extraneous reasons would include the appointment of an employee as a favour or to accommodate some one. This has been characterized by the Supreme Court as an abuse of power which is unpardonable. In such cases the Supreme Court has directed that the Court should be reluctant to grant any indulgence (See ; Karnataka State Private College Stop-Gap Lecturers Association Vs. State of Karnataka and Others, The second stream relates to those employees who were genuinely appointed due to the exigency of service. In such cases the Courts have directed regularisation subject to the fulfilment of three pre-conditions; namely:(a) The existence of a substantive post against which the employee concerned has served (See: All Manipur Regular Posts Vacancies Substitute Teacher''s Association v. State of Manipur (Supra: Aktar Hamid Sheikh v. D.I. of Schools (Supra) and Bakul Rej v. State of West Bengal (Supra), (b) The employee must be otherwise qualified to be appointed to the post (See J.M. Futhuparambil v. Kerala Water Authority (supra) and (c) The employee must have served continously in the post against which regularisation is asked for a reasonably long period (See Manik Chandra Sarkar v. State of West Bengal) (supra). Judicial Precedent also shows that the Courts have not taken happily to the refusal on the part of the State to regularise the post of an employee who has fulfilled all these preconditions merely on some technical plea (See Aktar Hamid Shaikh v. D.I. of Schools (SF) (supra).

In this case it is doubtful whether the Petitioner was duly appointed in 1988 as claimed. No appointment letter has been produced. The certificate issued by the Headmaster of the School in the Petitioner''s favour reads:

Certified that Sri Anil Chandra Kumar B.A. with English combination of S/o Sri Jogeswar Kumar of Vill. + P.O. - Pathardih P.S. Bagmundi Dist. Purulia has been serving in this institution since 1.5.94 as on Asst. Teacher against a minimum honorarium due to shortage of teaching staff after upgradation for the interest of the school with the full satisfaction of the authority upto date.

Before that he was appointed as the coaching teacher (Engg.) from 9.8.88 by the Committee.

The Petitioner has claimed that the Managing Committee was empowered under Rule 23 of the Rules, for Management of Sponsored Institutes (Secondary), 1972 (referred to as the 1972 Rules) to appoint him. That Rule provides:

Powers of the Committee-Subject to approval of the Director and subject to such further direction as the State Government may from time to time issue, the Committee shall have the power to -

i) appoint teachers and other employees on permanent and temporary basis ;

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No approval of the D.I. of the Petitioner''s'' appointment has been shown or indeed claimed.

However, the Resolution of the Managing Committee at its meeting held on December 20, 1993 produced and relied on by the Petitioner to show that he was appointed reads:

Agenda No. 7(e). As proposed by H.M., The Committee resolved to continue the service of Sri A.C. Kumar (Formal Tribal coach) due to shortage of Sub Teacher (Eng.).

Assuming the Petitioner was duly appointed as a coaching teacher in English in 1988 there is no warrant in law to hold, as contended by the Petitioner that there was a sanctioned vacancy, in respect of the post of Assistant Teacher in English in 1988.

The certificate of the Headmaster quoted earlier does not also say that there was a sanctioned vacancy in the post of Assistant Teacher in 1988. On the other hand it appears that the Petitioner was rendering service as an Assistant Teacher in English after upgradation. Upgradation took place in 1996.

The vacancy in respect of which the Petitioner claims regularisation legally arose on the upgradation of the school in 1996. Prior to that date i.e. on October 27, 1995 by his memo No. 2066-GA the Director of School Education issued directions in connection of recruitment of inter alia, teachers and non-teaching employees in respect of Non-government Aided Secondary Schools/Higher Secondary Schools/Government Sponsored Schools/All Types of Aided Madrassas. The school in question, being a Government Sponsored School is convered by the directions. The 1995 Directions specifically state that they are issued in exercise of power, inter alia, under the 1972 Rules.

Therefore, the appointment to the post of Assistant Teacher in English to the school in 1996 could only be made in terms of the 1995 Directions. Direction 1(a) provides:

All appointments of teaching...staff...shall be made with the prior permission of the Dl of Schools (SE) of the respective District against sanctioned post.

Direction 3(a) provides that when any vacancy occurs against any sanctioned post the School shall approach the DIS(SE) for prior permission for taking steps for appointment with relevant papers.

Direction 3(e) states that in the prior permission the DIS(SE) shall indicate the group/subject to which the post/posts belong, scale of pay admitted, the specific academic, training, professional qualifications to be required and preferably for the particular post/ posts in accordance with the prevailing government orders.

Direction 4(a) lays down the procedure to be followed by the School Authorities on receipt of the prior permission. They are required to approach the local Employment Exchange for sponsoring the names of the Employment Exchange candidates.

Direction 5 provides for the mode of selection and the constitution of the Selection Committee. All the candidates sponsored by the Employment Exchange are required to be called for interview under direction 5(q). Candidates are required to record their attendance before the interview. If after signing the attendance sheet any candidate subsequently abstains from the oral interview or the class room demonstration or both he/she should be marked with zero for that part/ parts but should be included in the tabulation sheet with a remark that he/she abstains from appearing at the interview.

Directive 6 lays down the marks to be awarded in respect of a candidate''s academic and other qualifications with different marks allocated for school final, higher secondary, regular honours degree, Training (B.T., B. Ed., PGBT) etc. Marks ranging from 10 to 20 are required to be awarded for each of the academic qualifications. For an Assistant Teacher full marks in an interview is 5 and full marks in demonstration of school room is also 5. Marks are to be awarded to each candidate against each individual item separately in the score sheet which is required to be sent in respect of all the candidate to the DIS (SE) along with the panel.

In the directions there is no provision for appointment by regularisation in the post of Assistant Teacher. There is also no provision for relaxation of the rules. Having regard to the decisions noted earlier, the Petitioner cannot seek appointment in the post of Assistant Teacher.

The entire process prescribed by the 1995 Directories was followed by the Selection Committee in this case upto the preparation of the score sheet.

According to the writ Petitioner he was discharging functions as an Assistant Teacher being fully qualified for the post from 1994. As already noted, the substantive vacancy in the post was created in 1996 after upgradation. As such there is no question of the Petitioner serving as an Assistant Teacher against a vacancy prior to that date. Besides, as stated by the Supreme Court in A. Pargaonkat''s case(Supra), eligibility and continuous working for, however, long a period should not be permitted to override the law. The requirement of the rules of selection cannot be substituted by humane considerations.

The decisions relied on by the Petitioner are inapposite and distinguishable on facts.

(i) In the case of Headmistress, Dubrajpur Girls'' High School v. Pradip Kumar Mitra (1994) (1) C.H.N. 237: the employee had been directed to be appointed by the Trial Court. The Dl directed the school to comply with the order. The Appellate Court held that the D Cs direction was binding on the school. The appeal of the school was accordingly dismissed. A similar direction had been issued by the DI in Gouri Bose v. State of West Bengal (1997) 1 C.L.J. 111. There is no such directive of the Dl in this case.

(ii) In District School Board v, Dudhiram Sardar 1991(11) C.H.N. 355 the Petitioner teacher had been serving in a primary school since 1975 as Assistant Teacher against a permanent vacancy in the recommendation of the Minister of Education. The Petitioner''s case was recommended for absorption to the school board by the school authorities. The Petitioner''s petition under Article 226 asking for absorption was contested only by the school board. Neither the District Inspector of School (Primary Education) nor the Director of Primary Education nor the school authorities opposed the writ petition nor did they appeal from the order of the Single Judge directing absorption of the Petitioner. The appeal was accordingly dismissed. In this case there was no vacancy in the post of Assistant Teacher when the Petitioner was appointed. Also the District Inspector has opposed the writ petition.

(iii) In Swapna Roy v. State of West Bengal 1996(2) C.L.J. 552 the Director of Secondary Education passed an order rejecting the Petitioners application for regularisation in 1980. This was challenged. This decision directing regularisation was rendered in the context of the law then prevailing by which organiser teachers had a right to be absorbed.

(iv) In Ashoke Kumar Biswas Vs. The State of West Bengal and Others, the writ Petitioner/teacher had been appointed as a departmental Assistant Teacher for a temporary period. After the period expired the Secretary of the Governing Body of the school had issued a letter of appointment to the writ Petitioner/ teacher directing him to continue in service as an Assistant Teacher ''till his service" was regularised and/ or he was absorbed permanently''. A post of Assistant Teacher was sanctioned. The school did not fill the post but continued the. services of the Petitioner at a temporary wage. All other temporary appointees were absorbed. Since no one was appointed in the vacancy and in the facts of the case the Petitioner''s service was directed to be regularised. In this case there was no such appointment of the Petitioner as Assistant Teacher either on an officiating or deputation basis. There is no evidence of any other teacher similarly situated as the Petitioner in the School being appointed. Finally, Biprasis Chatterjee''s right will be affected if the Petitioner is appointed.

(v) The decision in Air India Statutory Corporation, etc. Vs. United Labour Union and others [overruled], has no bearing on this case. It dealt with the effect of the abolition of contract labour u/s 10 of the Contract Labour (Regulation and Anr.) Act, 1970 on the rights of the employees of the contractor vis-a-vis'' the principal employer.

In view of the finding that the Petitioner was not serving against the substantive" post in 1988 or even from 1994, the Petitioner''s prayer for regularisation and appointment to the post of Assistant Teacher cannot be allowed. It is not necessary to consider the other points raised by the Respondent No. 7 which are accordingly left open.

The writ application is, in the circumstances, accordingly dismissed and the interim order vacated. There will be no order as to costs.