Asif Sultan vs State of West Bengal & Ors

Tapabrata Chakraborty, J

The present writ petition has been preferred primarily praying for the following relief: -

"a) A Writ in the nature of Mandamus directing the respondents, their men, agents and each one of them particularly the respondent nos.3, 4 and 5 to forthwith accord approval of appointment of the petitioner in the post of Group-C lying vacant in Haringhata Mahavidyalaya, Post Office: Subarnapur, District: Naida, Pin: 741249 where the petitioner has been rendering service since 13th October, 2015 till now and pay him salaries and other allowances as admissible in law month by month;"

Mr. Ali, learned advocate appearing for the petitioner submits that the petitioner's claim has been rejected by the respondent no.2 by a cryptic order dated 2nd September, 2019 without disclosing the grounds on the basis of which the said respondent had expressed his inability on behalf of the Directorate to approve the appointment of the petitioner.

He submits that the petitioner was appointed to a Group-C post in the Haringhata Mahavidyalaya (in short, the said college) by a letter dated 7th October, 2015 after he emerged to be successful in a selection process. Since then, he is discharging his services but his service has not been approved and he has also not been awarded a regular scale of pay. Several representations were submitted but the same were not considered. Aggrieved thereby, the petitioner was constrained to approach this Court earlier by a writ petition being W.P. No.30657 (W) of 2016, which was disposed of on 2nd March, 2017 with a direction upon the respondents to consider the representation submitted by the petitioner on 14th December, 2016. Subsequent thereto, by a memo dated 9th August, 2017 issued by the respondent no.5 the petitioner was appointed to the post of LD Clerk in the pay scale of Rs.5,400/- to 25,200/- on the basis of the memo dated 17th August, 2016 by which two non-teaching posts were created. Upon receipt of all documents the respondent no.2 passed the impugned order dated 2nd September, 2019.

Mr. Dutta, learned AGP appearing for the State respondents submits that the college authorities have illegally appointed the petitioner by the memo dated 9th August, 2017 without following the procedure, as detailed in the memo dated 17th August, 2016 and as such, the petitioner's claim was not entertained and there is no infirmity in the order dated 2nd September, 2019.

It appears from the memo dated 9th August, 2017 issued by the respondent no.7 that the petitioner was given such appointment on the basis of a letter dated 16th May 2017 issued by the Senior Law Officer & Ex-Officio Assistant Secretary (Law), Department of Higher Education, Science & Technology & Bio-Technology, Government of West Bengal and as per the direction of the respondent no.4 vide memo dated 7th August, 2017. Such facts do not appear to have been taken into consideration by the respondent no.2 prior to issuance of the impugned order. The said order does not reveal any independent application of mind and the petitioner's claim has been rejected mechanically without detailing the reasons and as such the same is not sustainable in law.

In view thereof, the order dated 2nd September, 2019 passed by the respondent no.2 is set aside and the said respondent is directed to consider the petitioner's claim afresh, upon granting an opportunity of hearing to the petitioner and a representative of the college authorities and to take a decision, in accordance with law and to communicate the same to the petitioner.

The above exercise shall be completed by the respondent no.2 within a period of six weeks from the date of communication of this order along with a copy of the writ petition.

It is made clear that this Court has not gone into the merits of the petitioner's claim and all points are kept open to be decided by the said respondent no.2.

The writ petition is, accordingly, disposed of.

There shall, however, be no order as to costs.

Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties upon compliance of all necessary formalities.