Chittaranjan Mondal vs State of West Bengal

Satyabrata Sinha, J.—The Petitioner in this application has, inter alia, prayed for the following reliefs:

(a) A writ/order in the nature of mandamus commanding the Respondents their agents, servants, subordinates and/or employees to absorb the Petitioner in the post of an Assistant Teacher at any Primary School under the District School Board, 24-Parganas (South), in view of the appointments of Dharamraj Mondal, Sudhanshu Sekhar Gayen and Kanailal Shaw and others forthwith preferably near about to his native village and further command them to pay him his emoluments regularly month by month and further forbear them from depriving the Petitioner the benefits of the said services in any manner and in any form.

(b) A writ/order in the nature of certiorari commanding the Respondents to produce the entire original records of Court cases and further appointments made in favour of (1) Dharamraj Mondal, (2) Sudhanshu Sekhar Gayen and (3) Kanailal Shaw at different schools within Diamond Harbour Sub-Division and all other relevant material records as to Government premises and assurances noted in different annexures in the instant writ application on such production being made administer conscionable justice by quashing the illegal direction order if any and further command the Respondents to absorb the Petitioner within the peripheri of the District School Board, 24-Parganas (South) preferably near about to his native village as far as possible and practicable.

The fact of the matter lies in a very narrow compass. The educational qualifications of the Petitioner is matriculte. On or about September 25, 1973, the Petitioner was appointed purely on temporary basis to act as teacher of Chandanpiri P.P. School, in a deputation vacancy, vice Tapas Kumar Chakraborty. The contention of the Petitioner is that other teachers similarly situated and who were also appointed on deputation vacancy, vice Dharamraj Mondai, Sudhanshu Sekhar Gayen and Kanailal Shaw have since been appointed on regular basis.

Mr. Zahirul Islam, learned Counsel appearing on behalf of the Petitioner, submitted that keeping in view of the facts and circumstances of this case, the service of the Petitioner should be regularized. The learned Counsel submitted that the Petitioner had a legitimate expectation to be appointed on a regular basis. It was further submitted that there was no reason as to why the Petitioner would not be treated alike other three candidates-referred to hereinabove.

In support of the aforementioned contention of the learned Counsel has relied upon Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Others Vs. V.R. Rudani and Others, K.I. Shephard and Others Vs. Union of India (UOI) and Others, Navjyoti Coo-Group Housing Society etc. Vs. Union of India and Others, C.A. Shankar Prasad and others Vs. Karnataka State Adult Education Council and others, and Union of India and Others Vs. Basant Lal and Others,

The Petitioner came to this Court earlier. By a judgment dated April 6, 1992, passed by K.M. Yusuf J. High Court directed the President of the District School Board, 24-Parganas, to give personal hearing to the Petitioner and pass an appropriate order. Pursuant to the said order the Petitioner appeared before the said authority on June 26, 1992 and produced some documents.

The Petitioner in support of his case also relied upon a circular dated August 30, 1978; in terms whereof, according to the Petitioner, he was entitled to be permanently appointed.

The President, District School Board, upon hearing the Petitioner passed the following order:

It appears from the appointment, letter being Memo No. 2833/4 dated 25.9.73 that His service will terminate on the date of resumption of duty by the deputed Teacher concerned at the respective school immediately after completion of training from the college concerned.

Said conditional appointment letter was accepted by the Petitioner. And as per condition imposed in the appointment letter mentioned above his service was automatically terminated on resumption of deputed teacher Sri Tapan Kr, Chakraborty. So the claim of the Petitioner is not entertainable and as such the claim of the Petitioner is rejected. He informed accordingly.

In my opinion, the order passed by the President, District School Board, can neither be said to be illegal or irrational.

As noticed hereinbefore, the Petitioner was appointed on a purely temporary basis for the period during which the afore-mentioned Sri Tapan Kr. Chakraborty was to remain on deputation. The said Tapan Kr. Chakraborty having rejoined the school, the Petitioner in terms of the aforementioned offer of appointment could not have continued in service of the school concerned. The Petitioner had not in the writ petition stated in details as to under what circumstances three other teachers named hereinbefore were appointed, on regular basis.

So far as the circular dated January 28, 1978 is concerned the same has no application in the facts and circumstances of this case. The circular dated September 27, 1977, states thus:

The undersigned is directed to refer to his letter No. 4510/SC/P dated 7.9.1977 on the above subject and to state that they can imposed on appointment of primary school teachers from out of panel already approved may be enlarged in case of (a) further appointment on deputation and (b) ultimate absorption in respect of those teachers who have once before been appointment in deputation vacancies from panel, but no new appointment on deputation for out of the panel shall be allowed.

In the circular letter dated January 27, 1978, it was stated:

The undersigned is directed to invite a reference to this Department Order No. 1660-Edn(P) dated 27.9.1977 on the above subject and to state that decision contained in (b) therein regarding ultimate absorption in respect of those primary teacher who have once before been appointed in deputation vacancies from the panel should be kept in operative until further orders.

The aforementioned letter, therefore, does not confer as a legal right upon the Petitioner to be permanently absorbed in the state services.

Moreover, it is not disputed that thereafter the Recruitment Rules had been framed by the Director of School Education in exercise of his power conferred upon him under the Rules. Upon coming into force of the said Rules, all recruitments have to be done in terms thereof and no appointment, therefore, can be made in contravention of the said Rules.

Reference in this connection may be made to the State of Orissa and others Vs. Smt. Sukanti Mohapatra and others, and J and K. Public Service Commission, etc. Vs. Dr. Narinder Mohan and others etc. etc., . In Bangalore Medical Trust Vs. B.S. Muddappa and others, the Apex Court held:

When a statute either provides guidance or rules or regulations are framed for exercise of discretion then the action should be taken in accordance with it.

The appointment of the Petitioner has not been made by the following Recruitment Rules or upon compliance of the provisions of Article 16 or the Constitution of India. Such ad hoc appointment without following the procedures laid down under the Recruitment Rules cannot be said to be legal and thus the Petitioner cannot be said to here derived any legal right pursuant thereto.

In State of U.P. and others Vs. U.P. State Law Officers Association and others, the Supreme Court has observed:

Those who come by the back door have to go by the same door. This is more so when the order of appointment itself stipulates that the appointment is terminable at any time without assigning any reason. Such appointments are made, accepted and understood by both sides to be purely professional engagements till they last. The fact that they are made by public bodies cannot vest them with additional sanctity. Any appointment made to a public office, howsoever, made is not necessarily vested with public sanctity. There is, therefore, no public interest involved in saving all appointments irrespective of their mode. From the inception some engagements and contracts may be the product of the operation of the spoils system. There need be no legal anxiety to save them.

In Sri Andi Mukta Sadguru Gree Muktajee Vandasjiswami Suvarna Jayanti Mohatsav Smarak Trust v. V.R. Rudani (Supra) the Supreme Court was, inter alia concerned with the question as to whether the school discharging public function will be amenable to the writ jurisdiction of the High Court under Article 226 of the Constitution of India. In this case the said question does not arise for consideration.

Reliance placed by the learned Counsel upon the decision of the Supreme Court in C.A. Sankar Prasad v. Karnataka State Adult Education Council (Supra) is misplaced. The Supreme Court in that case made an observation in exercise of its jurisdiction under Article 142 of the Constitution of India. Even in that decision no direction for regulation was given. It is now well-known that the Supreme Court in exercise of its jurisdiction under Article 142 of the Constitution of India can pass an appropriate order in a particular ease, but no such power has been conferred upon this Court. The Supreme Court itself in State of Punjab and others Vs. Surinder Kumar and others, held:

A decision is available as a precedent only if it decides a question of law. The Respondents are, therefore, not entitled to rely upon an order of this Court which directs a temporary employee to be regularised in service without assigning reasons.

Yet recently the Supreme Court in Madhyamik Siksha Parishad, U.P. Vs. Anil Kumar Mishra and others etc., observed:

We are unable to uphold the order of the High Court. There were no sanctioned posts in existence to which they could be said to have been appointed. The assignment was an ad hoc one which anticipatedly spent itself out. It is difficult to envisage for them, the status of workmen on the analogy of the provisions of the Industrial Disputes Act, 1947, importing the incidents of completion of 240 days'' work. The legal consequences that flow from work for that duration under the Industrial Disputes Act, 1947, are entirely different situation by way of analogy. The completion of 240 days'' work does not, under that law import the right to regularisation. It merely imposes certain obligations on the employer at the time of termination of the service. It is not appropriate to import and apply that analogy, in an extended or enlarged form here.

There cannot be any doubt that the school teachers are not workmen within the meaning of Industrial Disputes Act, 1947. The Petitioner, accordingly, therefore, has no enforceable legal right in his favour.

In Navjyoti Co-Group Housing Society v. Union of India the Supreme Court held:

Doctrine of legitimate expectation therefore is confined to the rule of law. No relief can be sought for only on the basis of doctrine of legitimate expectation. See Food Corporation of India Vs. M/s. Kamdhenu Cattle Feed Industries, .

In Accounting and Secretarial Service Pvt. Ltd. and v. Union of India and Ors. 1994 (1) C.H.N. a Division Bench of this Court held:

The learned Counsel in this connection has referred to the principles laid down in Union of India and others Vs. Hindustan Development Corpn. and others, . The learned Lawyer for the Respondent Bank has referred to the principles laid down in Narendra Kumar Maheshwari Vs. Union of India (UOI) and Others, and Food Corporation of India Vs. M/s. Kamdhenu Cattle Feed Industries,

In Kamdhenu''s case AIR 1993 S.C. 71 (77, para. 7) it has been held in paragraph 7 at page 77 of the reported decision as follows:

In contractual sphere as in all other State actions, the State and all its instrumentalities have to conform to Article 14 of the Constitution of which non-arbitrariness is a significant facet. There is no unfettered discretion in public law. A public authority possess powers only to use them for public good. This imposes the duty to act fairly and to adopt procedure which is fair play in action. Due observance of this obligation as a part of good administration raises a reasonable or legitimate expectation in every citizen to be treated fairly in his interaction with the State and its instrumentalities with this element forming a necessary component of the decision making process in all State actions. To satisfy this requirement of non-arbitrariness in a State action, it is, therefore, necessary to consider and give the weight to the reasonable or legitimate expectations of the persons likely to be affected by the decision or else that unfairness in the exercise of the power may amount to an abuse or excess of power apart from affecting the bona fides of the decision in a given case. The decision so made would be exposed to challenge on the ground of arbitrariness. Rule of law does not completely eliminate discretion in the exercise of power, as it is unrealistic but provides for control of its exercise by judicial review.

But the note of caution has been sounded in the next paragraph of the same judgment which is quoted below:

The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary and this is how the requirement of due consideration of a legitimate expectation forms part of the principles of non-arbitrariness a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision making process, whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant''s perception but in larger public interest wherein other more important consideration for outweigh what would Otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner arid to this extent.

In Narendra Kumar''s case 1994 (1) C.H.N. it has been held at page 2164 in para. 64 as follows:

We accept the position that the power of discretion of the Government in the matter of grant of larger including award of jobs, contracts, quotas, licences, it must be confirmed and structured by rational, relevant and non-discriminatory standard or norm and if the Government departed from such standard or norm in any particular case or cases, the action of the Government would be liable to be struck down, unless it could be shown by the Government that the departure was not arbitrary but was based on some valid principle which in itself was not irrational, irrelevant, unreasonable or discriminatory.

In Sudip Kumar Saha v. State of West Bengal and Ors. 1991 (1) C.H.N. 199 again a Division Bench observed:

As has been pointed out by the Supreme Court in Union of India v. Hindustan Development Corporation judgments Today 1993 (3) S.C.C 15, the concept of legitimate expectation is the latest recruit to a long list of concepts fashioned by the Courts for the review of administrative action; but that principle has got to be invoked and applied with great care and caution. Otherwise a resourceful litigant having vested interest in contracts, licences etc. can successfully indulge in getting welfare activities thwarted to further his own interest. Relying on Attorney-General for New South Wales v. Quin 1990 64 Aus LJR 327, it has been held the to strike down the exercise of administrative power solely on the ground of avoiding the administrative power solely on the ground of avoiding the disappointment of the legitimate expectations of an individual would be to set the Courts adrift on a featureless sea of pragmatism and that notion of legitimate expectation not amounting to a legal right, is too nebulous to form a basis for invalidating the exercise of a power when its exercise otherwise accords with law. Only when the denial of legitimate expectation in a given case amounts to denial of legitimate expectation in a given case amounts to denial of guaranteed right or is arbitrary, discriminatory, unfair or biased, them same can be questioned on the well-known grounds attracting Article 14 of the Constitution, But otherwise, a claim based solely on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles. In the case at hand there is no denial of any guaranteed legal right. And the case not being that others similarly situated have been granted Ijaras for longer period, the question of arbitrariness, discrimination, unfairness or bias cannot be said to have been made out.

In State of Maharashtra Vs. Abhay and Others, I had considered the aforementioned supreme Court decisions and hold:

So far as the submission of Mr. Gadodia on the doctrines of legitimate expectation is concerned, the same has no application in relation to a dispute arising out of a contract qua contract. The said doctrine is applicable in the cases of ''State action''.

However, the Supreme Court recently in Union of India and Ors. v. Hindustan Development Corporation and Ors. reported in judgments Today 1993 (3) S.C.C. 15, has clearly held that no enforceable right is created in terms of the doctrine of legitimate expectation, but the same only checks arbitrariness on the part of the State.

The Supreme Court has reiterated its earlier views recently in Madras City Wine Merchants'' Association and Another Vs. State of T.N. and Another, Ghaziabad Development Authority and State of U.P. Vs. Delhi Auto and General Finance Pvt. Ltd. and Maha Maya General Finance Co. Ltd. and another, and Assistant Excise Commissioner and Others Vs. Issac Peter and Others,

In absence of any legal right, thus, no relief can be granted on the basis of alleged legitimate expectation. Legitimate expectation, as is evident, from the decisions referred to hereinbefore, may arise out of doctrine of rule of law and not otherwise. In this case however no promise was made to the Petitioner that his service would be regularised and thus the question of invoking the doctrine of legitimate or reasonable expectation does not arise. In view of the decisions of the Supreme Court itself the Petitioner being not entitled to be a regularised in service, question of granting any relief to him in terms of doctrine of legitimate expectation does not arise.

For the reasons aforementioned there is no merit in this application, which is, accordingly, dismissed.

However, in the facts and circumstances of this case there will be no order as to costs.

Let xerox copy of the order passed today be supplied to the learned Counsel for the parties on usual undertaking.