Dr. Ashis Paul vs Chairman College Service Commission and Others

Basudeva Panigrahi, J.—Since in both the revisions the parties are same and the points involved are identical, those have been taken-up together and are decided hereunder. These are applications under Article 226 of the Constitution of India for writ of mandamus against the opposite parties to rescind/cancel the recommendation that has been made in favour of the respondents Paresh Ghosh, Smt. Bula Das and Sri Anup Sinha as well as to cancel their appointments and to recommend the name of the writ petitioner in the present vacancies in Abhyananda Maha Vidyalaya and/or Seuri College and/or any other Colleges under the University of Burdwan. It has been further claimed by the petitioner for writ of mandamus against the Chairman of College Service Commission and other authorities to recommend the name of the petitioner with retrospective effect for the post of leacturer in Plant Protection Department which was created with effect from June 1992 in Netaji Maha Vidyalaya, Arambagh, Hooghly,

The writ petitioner in C.O. 526 (W)/96 has stated inter alia, that a post of lecturer in Plant Protection Department of Netaji Maha Vidhalaya was created and sanctioned in terms of Memo No. 883 EDL-CS dated 29.11.95 with retrospective effect from June, 92 pursuant to the Judgment dated 11.8.95 passed in C.O. 1319 (W) of 1995 by Mr. G.R. Bhattacharjee, J. The writ petitioner had filed the above writ petition seeking a direction against the State Government to consider for creation of the post in Plant Protection Department and sanction the same as well as, absorb him with full salaries, allowances and other benefits. He has been working as a part time lecturer since the year 1987 on a meagre salary of Rs. 1000/- per month with full load of a lecturer of the College. In the above writ case, it was directed to consider for absorption of the writ petitioner in the post in question, in the event of sanction of the post. The State Government in its turn has sought instruction from the College Service Commission for the recommendation of the writ petitioner. Since it has, inter alia, been stated by State Government that but for want of recommendation from the College Service Commission the petitioner''s appointment has been held-up; therefore the writ petitioner has filed the present writ for appropriate direction against the College Service Commission to recommend his name to the State Government for the appointment of lecturer in the Plant Protection subject giving retrospective effect from June, 92. It has been further claimed that the University Grants Commission had accorded approval of creation of a post in Plant Protection subject from the academic session 1986-87 on condition that 2 posts of lecturer were created whose financial liabilities would not be extended after 5 years and it shall be shouldered by the college authority i.e. the State of West Bengal. Pursuant to the approval. Burdwan University advertised for 3 part time lecturers and accordingly, selection of teachers was held by the Board of experts. The petitioner and two others were appointed as part time lecturers who had agreed to take the full work-load on a monthly allowance of Rs. 1000/-, out of the other two candidates. Dr. Swapan Roy left the service and joined as a lecturer at T.D.B. College, Ranigunj. The other candidate Rabindranath Bhattacharjee also had left the service and joined Vidyasagar University. Therefore, only the petitioner was left out who is presently working in the college ever since 27.10.97. The petitioner has been engaged in teaching Want-Protection subject having requisite qualification, M.Sc. in Zoology with specialisation in Entomology.

In course of time, due to intake of more students the college authorities made requests to the State Government to sanction and create the 2nd post as at the time of creation of the 1st post it was noted that as and when workload would justify the 2nd post would be created. Thereupon, an enquiry was conducted by the Additional Director of Public Instruction who eventually recommended narrating full justification for sanction of the 2nd post in Zoology with specialisation paper in Entomology in Ph.D. level. In the meanwhile, the writ petitioner appeared before the College Service Commission for empanelment of his name and in the list of March. 1990 he was selected and empanelled which is till now valid. Since no new list has yet been published, the writ petitioner secured 17(a) position in Zoology subject. But the College Service Commission without taking into account about the petitioner''s seniority position did not recommend him to any other college for joining as a lecturer in Zoology so also to the present college. The further grievance of the petitioner is that though the College Service Commission recommended Sri Paresh Ghosh whose panel position was 32 (b). Arup Sinha his panel position 23 and Smt. Bula Das her panel position 26 to different colleges but the reasons best known to the authorities why had they not sent the recommendation of the petitioner for appointment as a lecturer. Therefore, the petitioner being aggrieved by such conspicuous inaction of the College Service Commission as well as of the State Government filed a writ petition in 13196 (W)/95 to vindicate his right. In the aforementioned case, a Single Bench decision of this Court defected the State Government for creation of a post in Plant Protection and absorb the petitioner against such post. Pursuant to the direction a post has been created but the College Service Commission is not recommending the name of the writ petitioner. Therefore he has filed the instant writ for appropriate direction.

Mr. Pratap Roy, the learned senior advocate appearing for the writ petitioner, has seriously contended that file service selection commission has unreasonably withheld the recommendation of the writ petitioner. It is further urged that though the post is created in the Arambagh College with effect from June, 1992. the service commission which is merely a recommendatory authority has sat over the matter for quite sometime. Service Selection Commission which is a public body is expected to act impartially while recommending different candidates for empanelment. Though few candidates who are Junior to the writ petitioner have been already recommended, it is not understood why the College Service Commission has observed total silence about the petitioner''s appointment. Petitioner''s position in the panel is placed in 17 (a) in the 1990 list. Though the other candidates viz., Paresh Ghosh. Arup Sinha and Smt. Bula Das who are Junior to the petitioner have been appointed but the petitioner has been unreasonably kept-back.

A post of a lecturer to Plant Protection in Zoology subject was created ever since 1987. The University Grants Commission had shouldered its responsibility to provide finance for a period of 5 years. The petitioner has been undisputedly working since the creation of the post i.e. 1987 with meagre salary of Rs. 1000/- expecting to be observed as and when such post would be available to him But the College Service Commission unreasonably, illegally and arbitrarily treated the petitioner with a stepmotherly attitude in not recommending him to the Government for his appointment, when the entire responsibility was agreed to be taken by the State Government after 5 years term.

Mr. Roy has argued alternatively that the petitioner''s case should not be treated as a new appointment but it should be taken to be a mere regularisation. Since the petitioner has been working as a lecturer from the time of creation of the post by the U.G.C and by agreement the financial responsibility was to be shouldered by the State Government, it was a case of mere regularisation but not a fresh appointment. Therefore, it is a plausible plea taken by the petitioner that in this background, his continuance in the post of lecturer in Plant Protection subject can mean nothing but a regularisation of his service. In the above background, the stand taken by the College Service Commission does not hold good that the petitioner is required to be recommended afresh by it.

Mr. Mondal, the Learned Counsel appearing for the College Service Commission, has strongly urged that since the petitioner having been appointed as a part time lecturer, he has no right to claim for regularisation. It is further submitted that in the case of part time lecturer, it is only the college who makes the payment towards his salary and not the Government. Therefore, the writ petitioner''s claim for his regularisation of service is otherwise untenable in law. In the writ petition, it is highlighted that the petitioner has admittedly been working as a part time lecturer. The Commission has, further, taken a stand that ho direction could be passed against it to recommend the name of the writ petitioner.

He has placed the sanctioned, order which is attached to writ petition as Annexure ''F'' by the Government of West Bengal whereunder the 2nd post of a lecturer under Botany Department was created interms of the order passed by Mr. G.R. Bhattacharjee, J. Since the petitioner does not possess requisite qualification to be recommended as a lecturer in Botany Department, the Commission has rightly withheld his name. Mr. Mondal has cited Judgments reported in Dr. Arundhati Ajit Pargaonkar Vs. State of Maharashtra and others, and contended that the part time lecturer does not have any lien to be regularise in service. He has also cited a Judgment reported in AIR 1980 SC 1041.

From the contention of the Commission, it further appears that since all the candidates who were above the writ petitioner in the panel drawn by the Commission have not been added, the validity or otherwise of their appointment cannot be considered in their absence. He relied upon a decision reported in Prabodh Verma and Others Vs. State of Uttar Pradesh and Others, The commission has submitted its ground for superseding the claim of the writ petitioner that when the respective college authorities where the opposite parties 3, 4 and 5 in C.O. 12217 (W)/95 were working desired their recommendation to be sponsored by the commission. Therefore, the commission, on the ground that they being possessed requisite qualification in specialised paper the Commission deemed proper to recommend their names. Even assuming the names of respondents 3 to 5 where improperly recommended, the petitioner cannot claim for his appointment since the panel which was drawn in 1985 had already lost its force after expiry of one year, therefore, on that ground the petitioner cannot also claim to be recommended.

Mr. Roy has submitted in reply that the Commission has in its affidavit-in-opposition unambiguously stated that the panel was valid till 31st January, 1995. Therefore, in view of such specific averments in the affidavit-in-opposition in does not be on the mouth of the Commission to suggest that the panel has lost its force after one year. It is further claimed that assuming the panel was lost after expiry of one year how the commission could recommend that names of the other candidates who were positioned below the petitioner after the expiry. Though the rule may prescribe that the panel drawn by the commission shall remain valid for one year, it must have been extended from time to time and remained valid till 31st January. 1995. Since by the time, the post was vacant the petitioner was empanelled, therefore, he could claim for recommendation from the aforesaid panel. The sanction order has revealed for creation of a post in the Plant Protection subject; therefore, the petitioner having the requisite qualification should be considered for appointment against such post.

Mr. Roy has also placed a circular issued by the Government that a part time lecturer who is taking the full work-load of a teacher can be treated as a full-fledged lecturer. Because, the petitioner has been taking the full work-load of a lecturer which is evident from the recommendation of the College Authority and accepted by the State Government his service required to be regularised. It has been submitted that as per the order passed by Mr. G.R. Bhattacharjee, J. on the writ application filed by the petitioner temporary post of lecturer in Plant Protection was done-away with and a permanent post in Plant Protection subject has been created. Therefore, it has to be assumed that such post in the Plant Protection subject must be from Zoology Department though it has been stated in the order under the Department of Botany. He has also highlighted all Director''s order whereunder the 2nd post for lecturer in Plant Protection has been created and the consideration of the petitioner was deferred subject to the recommendation by the Commission. Thus in the aforesaid situation, no other inference could be drawn than that of creation of 2nd post in the Zoology Department from Plant Protection subject.

Undisputed facts are that the U.G.C. who is the authority for creation of new subjects in different colleges of the University, had intended to initiate a new subject in plant protection at degree level of two colleges affiliated to Burdwan University viz. Netaji Maha Vidhyalaya, Arambagh within Hooghly District and Seuri Vidyasagar College, Seuri within Birbhum District The then under Secretary of U.G.C. vide letter No. F.28-9/86 (D-II) dated 14.11.86 had, accordingly, informed Netaji Maha Vidyalaya, Arambagh, Hooghly thereinafter referred to as the concerned College) that University Grants Commission had accorded approval for restructuring of the course in Plant Protection from the academic session 86-87. On condition that two lecturers to be appointed along with Laboratory Assistants and Laboratory Attendants. The staffs were to be appointed on payment basis which would be taken over by the concerned College on subsequent cessation of the financial assistance by the U.G.C. at the end of 5 years. The copy of that letter was sent to the Registrar. Burdwan University and the Education Secretary, Government of West Bengal. In terms of the letter issued by the U.G.C. to the Registrar, Burdwan University it was communicated again by the University to the Principal on the following effect "Executive Council of University of Burdwan in its meeting on 12.12.86 was pleased to grant extension of affiliation in Plant Protection at the 2 year Degree (Pass) Course in Science to Netaji Maha Vidyalaya, Arambagh, Hooghly. The extension of affiliation was granted in accordance with U.G.C.s assistance available under the scheme ''Restructuring of courses at degree level in respect of teachers, etc. in regard to introduction of the course for 5 years only. The authorities had referred the whole matter to the State Government thereafter for their concurrence, so that the State Government may sanction whole-time teaching and non-teaching staffs and to bear the financial liability after lapse of 5 years. The College had been, however, permitted by the University for appointing 4 part-time teachers competent to teach curriculum of Plant Protection. Accordingly, the college authorities appointed the writ petitioner in Zoology with special paper of Entomology. After he was selected by the Selection Committee which was constituted under the guide-lines of the UGC, the writ petitioner was awarded of Ph.D. degree with varied research experience and was capable of taking full-time load for the purpose of imparting education in the subject and thus, was appointed as a part-time lecturer with the condition of taking full workload at a consolidated sum of Rs. 1000/- per month in lieu of his pay. It is revealed from the letter dated 16.289 issued by the Deputy Secretary, Government of West Bengal, Education Department under No. 166- Edn (CS) addressed to the Director of Public Instruction that the U.G.C. scheme was approved of introduction of Plant Protection course at the Under Graduate level in the concerned college. U.G.C. provided financial assistance for a period of 5 years and thereafter such financial liabilities was agreed to be undertaken by the college concerned. Since the college has no financial resources to meet this liability, the Government was pleased to decide that expenditure on salary of the staff appointed to be paid by it, but, condition that the college would maintain the staff for running the course as per pattern approved by other science subjects.

At the beginning, the financial responsibility of one whole time lecturer was taken-up by the Govt. and further agreed to take-up the liability for the 2nd post if there is enough justification for creation of the 2nd post. The said decision was taken by the State Government after the due concurrence of the Finance Department vide E.C. No. Group D/Viz. dated 28.1.89. After completion of 5 years term as a lecturer, since, petitioner''s salary was not enough in commensurate with the other counterpart who have been working in the College, the writ petitioner filed a writ in this Court seeking appropriate direction against the State Government for regularisation of his service and for giving equal salary as that of the other lecturers working in the Institution. It was, inter alia, stated in the writ petition that since the petitioner had reasonably expected to be absorbed permanently in the aforesaid post necessary direction be made against the State for his regularisation. The matter, however, appeared before the Hon''ble Justice G.R. Bhattacharjee, who directed the State Government for creation of the post and consequent absorption of the writ petitioner in Plant Protection subject, since he was already an appointee for a period of 5 years under the U.G.C. Scheme. It was, inter alia, directed as follows :

It is really very unfortunate that the matter of according sanction for the second post should be kept unattended for such a long time while the petitioner has already been serving in that post and also there has been many intake of students. It is further submitted that on the sanction of the second post which is justified by the inspection reports the petitioner should be absorbed In the sanctioned post and should be paid regular salary, another the petitioner Was also appointed by the duly constituted selection committee and there should not be any difficulty in absorbing the petitioner now tea the regular post after the post in sanctioned. In the circumstances, I direct the respondent No. 4, the Director of Public Instruction, Govt. of West Bengal, and the respondent No. 14, the Secretary to the Department of Higher Education, Government of West Bengal, to consider the question of according sanction for the second post of lecturer in Plant Protection subject in the Netaji Maha Vidyalaya, Arambagh, in the light of the inspection reports, referred to above, and also forward their proposal in the matter to the respondent No. 2, the Secretary of Finance, Government of West Bengal, after giving an opportunity of hearing to the writ petitioner and the school authorities within a period of eight weeks from the date of communication of this order. On receipt of the necessary proposal/sanction the Secretary, Finance Department, Government of West Bengal, will communicate his decision regarding concurrence to the proposal/sanction within two weeks from the date of receipt of the proposal/sanction from the Secretary to the Higher Education Department, Govt. of West Bengal/the Director of Public Instruction, simultaneously their decision regarding the absorption of the petitioner in the post shall also be communicated and whatever decisions are taken by the authorities concerned will be supported by recorded reasons. They will also consider the question of approving the appointment of the petitioner with retrospective effect and release all salary as may be admissible. Till disposal of the matter by the respondents concerned as directed above, status quo in respect of the petitioner''s service shall be maintained. While communicating this order to the respondents concerned the petitioner shall also enclose therewith a copy of the writ petition.

After the decision by the Court, it appears the State Government has taken appropriate steps for creation of the 2nd post in Plant Protection vide their letter dated 229th November, 1995 No. 883-Edn(Cs)/55-35/95. But the Government of West Bengal has not appointed the writ petitioner after regularising his service, and, referred the matter to the College Service Selection Commission for sending their recommendation to appoint the writ petitioner. On the plea that Section 7(1) of the West Bengal College Service Commission Act, 1978 provides that "notwithstanding anything contained in any other, law for the time being in force or in any contract, custom or usage to the contrary, it shall be the duty of the Commission to select persons for appointment to the posts of Teachers of a college." Even though, the letter was sent to the College Service Commission for sponsoring the name of writ petitioner to be appointed, as a lecturer, it did not evoke any response at their end therefore the writ petitioner had again to knock the door of the, court. In the earlier writ referred to above C.O. No. 13196(W)/95 the College Service Commission though was a party it had significantly failed to raise, any objection regarding the regularisation of the writ petitioner.

Mr. Mondal, the Learned Counsel appearing for the College Service Commission has strenuously urged that since no notice was served upon the College Service Commission, it had no opportunity to know such direction purported to have been issued by the court. But on reference to the order book, it appears that Mr. Bandana Basu had appeared for the College Service Commission and in her presence the order was passed.

Mr. Roy, the learned advocate appearing for the writ petitioner submitted that it was Mrs. Bandana Das but not Bandana Basu as it was wrongly set out in the order. Therefore, it should be accepted that the College Service Commission was a party and the case Was decided in their presence. They having failed to raise any objection relating to the regularisation of the writ petitioner, it would not be legitimate at this stage for raising protest. It was further contended that since it is not a case of fresh appointment the College Service Commission need not be consulted. Therefore, in the previous writ petition, there was no direction to the College Service Commission for consideration of the writ petitioner''s name.

Mr. Roy has contended that in this case, since the Commission did not Challenge the earlier findings passed by Mr. G.R. Bhattacharjee, J. it is not open to raise the voice of protest on the petitioner''s absorption and such plea would be barred by the doctrine of constructive res-judica. In support of his contention. He has relied upon a decision reported in Forward Construction Co. and Others Vs. Prabhat Mandal (Regd.), Andheri and Others, in the case of Prabhat Mondal & Ors. v. Municipal Corporation of Greater Bombay & Ors., it has been held :

An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. Where a matter has been constructive in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. Therefore, the judgment of the High Court in the earlier writ petition would operate as res judicata even where one of the grounds taken in the subsequent writ petition before the High Court was absent in the earlier petition.

Mr. Mondal, the learned advocate appearing for the C.S.C. has submitted that the 2nd post was under the Department of Botany and the writ petitioner hawing no requisite qualification for such appointment no direction could be passed by the Court. Mr. Roy, the teamed counsel retorting the said submission has indicated that in the Government letter it had been mistakenly shown that a whole time post of a lecturer in Plant Protection subject under the Department of Botany in the concerned college was created because one such post in the Botany Department had been already created and it has already been filled-up, the 2nd past must be meant for zoology.

The University authorities who are competent to lay-down the requisite qualification for the appointment of teaching staff in Plant Protection subject (Zoology) has indicated as follows :

Any person who passed his/her M.Sc. examination or its equivalent from any University in Zoology or Botany will be eligible, provided he/she had in the M.Sc. course of studies in case of Botany - Plant Pathology as the special paper; and in case of Zoology -- Entomology as the special paper. The persons who had special papers other than plant protection in Botany or Entomology in Zoology if worked on the applied entomology problem or plant pathological problem in the Ph. D. programme subsequently and were successful in getting the award of Ph. D. are also eligible. The extension of privilege to this category of persons is provided in the interest of maintaining quality in teaching because these persons by virtue of having research experience in the area are more equipped as teachers.

Therefore, it can safely be concluded that the Finance Department''s letter under which the post was created though indicated that it was for Plant Protection it was, mistakenly, shown to be under Department of Botany. Since there is already a lecturer working in Plant Protection subject under the Department of Botany, it has to be meant for ''Zoology'' only.

It is nodoubt true that the writ petitioner was appointed in the post of a part time lecturer. But from the correspondence Annexure ''A-1'' to the writ petition it is revealed that he has been taking the full-load of a lecturer in a week as he is teaching 30 periods to 2nd years B. Sc. He was also appointed after facing the interview conducted by the College authorities interms of the guide-lines fixed by the Burdwan University for a period of 5 years as per the tripartee agreement among the U.G.C., Burdwan University, College Authority and the West Bengal Government that the financial burden of the teaching and non-teaching staff has to be met by the Government after the expiry of the 5 years term. The petitioner having already worked for 5 years without interruption his service needs to be regularised after expiry of the aforesaid period. In the above background, this Court issued a direction to the State Government for regularising petitioner''s service, the government at its end has referred the matter to the C.S.C. On this premises it has to be considered as to how far it was justified for the government to refer the matter to C.S.C. for petitioner''s regularisation.

Mr. Pratap Roy, the learned advocate has again placed another decision reported in Jaipal and Others Vs. State of Haryana and Others, in the case of Jaipal vs., State of Haryana and has contended that though the petitioner was appointed as a part-time lecturer, but in view of the fact he has been taking full work-load of a lecturer, he should be considered as full fledged lecturer. It has been held in the aforesaid judgment as follows :

The respondents plea that instructors are not transferable does not affect the doctrine of equal pay for equal work. The instructors are appointed locally to implement the Adult and Non-formal Education Scheme because they are in a better position to motivate the adults and drop-outs children for participating in the scheme. An outsider may be handicapped in motivating the local residents for participating in the scheme. As regards the difference in qualification is concerned it is true that the squad teachers possess JBT certificate and many of them are graduates but minimum qualification for squad teachers is also matric. Similarly, minimum qualification for instructors is matric, but many of the petitioners are graduates and some of them are trained teachers possessing JBT certificates. Great emphasis was laid on behalf of the respondent State that Instructors are part-time employees while squad teachers are full time employees. Similar arguments were raised of behalf of the State in the case of Bhagwan Dass in resisting the claim of supervisor but the submission was rejected by this Court on the ground that having regard to the duties and functions which the supervisors are required to perform it was difficult to uphold the plea that he was a part-time employee. In the instant case also we have already noticed the details of the duties and functions assigned to an instructor which normally say that the petitioners are required to teach at the centre for four hours and in addition to that they are required to motivate adults and drop-out children of the locality and to prepare survey reports, in addition to that they are further required to implement various schemes initiated by the government, they are further required to organise sports, athletics programme and to persuade local affluent people for making donations. They are required to educate the local residents with regard to the various welfare schemes initiated by the government for the welfare of the residents of the rural areas. Having regard to their duties and functions it is difficult to uphold the respondent''s plea that the instructors are part-time employees as they work only for four hours.

In case of Bhagwan Dass and Others Vs. State of Haryana and Others, it has been held as follows :

It is therefore futile to contend that the petitioners in their capacity as Supervisors were required only to perform part-time work. As per clause (d) of the aforesaid extract, the supervisors were required to stay for the whole day in the village and were required to visit the Informal Education Centre and the Adult Education Centre in the night. They were also required to go on tour and to remain at the headquarter once a week from 9.30 a.m. to 4.00 p.m. The conclusion is therefore inevitable that the petitioners were not part-time functionaries but were whole-time functionaries.

Therefore, in the light of the above observation of the Supreme Court, the writ petitioner has to be regarded as a full-time lecturer even though his appointment was shown as part-time. Apart from it, the principal of the college has also indicated that the writ petitioner has been discharging duties as a full-time lecturer. Mr. Roy, the learned advocate appearing for the writ petitioner, has contended that since it is a matter of mere regularisation of petitioner''s service in the post of a lecturer, therefore, it was redundant for the government to seek the, advise from the service selection commission. The post was created and the petitioner has been functioning as a lecturer against that post for the, last 5 years, and from the previous agreement it transpired that the financial obligation were to be undertaken by the State Government, therefore, in this exigency it has to be taken as a mere regularisation and not a case of fresh appointment. He has filed in support of his contention a judgment reported in Karnataka State Private College Stop-Gap Lecturers Association Vs. State of Karnataka and Others, in the case of Karnataka State Private College Stop Gap Lecturers Association vs. State of Karnataka & Ors. :

If the intention behind the Government''s order to reappoint with one day''s break was to differentiate between appointments for more than three months and others it was futile exercise. That had already been achieved by providing two different methods of selection one by Selection Committee and other by management. Distinction between appointment against temporary and permanent vacancies are well known in service law. It was unnecessary to make it appear crude. If the purpose was to avoid any possible claim for regularisation by the temporary teachers then it was acting more like a private business house of narrow outlook than government of a welfare state. Such provisions cannot withstand the test of arbitrariness. Such policy was likely to give opportunity to exploit the educated youth who have to survive even at cost of one meal a day. That is apparent from continuance of these teachers for 8 to 10 years with sword of termination hanging on their head ready to strike every three months at the instance of either the management or the Director. Provision of stopgap appointments might have been well intended and may be necessary as well but their improper use results in abuse. And that is what has happened on a large scale. The helplessness expressed by the State that the managements went on continuing such teachers without holding regular selections despite orders of educational authorities sounds like surrender in favour of private management. An appointment may be temporary or permanent but the nature of work being same and the temporary appointment may be due to exigency of service, non availability of permanent vacancy or as stopgap arrangement till the regular selection is completed, yet there can be no justification, for paying a teacher, so appointed, a fixed salary by adopting a different method of payment than a regular teacher. Fixation of such emoluments is arbitrary and violative of Article 14. The evil inherent in it is that apart from the teachers being at the beck and call of the management are in danger of being exploited as has been done by the management committees of State of Karnataka who utilised the services of these teachers for 8 to 10 years by paying a meagre salary when probably during this period if they would have been paid according to the salary payable to a regular teacher they would have been getting much more. Payment of nearly eight months salary, by resorting to Government''s order, and, that too fixed amount, for the same job which is performed by regular teachers is unfair and unjust. A temporary or adhoc employee may not have a claim to become permanent without facing selection or being absorbed in accordance with rules but no discrimination can be made for same job on basis of method of recruitment. Such injustice is abhorrent to the constitutional scheme.

The practice of management of not making regular selection utmost within six months of occurrence of vacancy must also be deprecated. Many of the temporary teachers who have faced selection and have secured higher marks and are in zone of selection are being denied the benefit because it is claimed that such regularisation would be contrary to reservation policy of the State. The policy is under challenge in another proceedings in the Court. Without entering into validity of the policy, which according to petitioner results in cent per reservation, it must be held that such practice should be put an end to.

Having regard to the facts and circumstances, the following directions are issued : (1) The provision in the Government order of one day''s break in service is struck down as ultra vires. (2) Orders for payment of fixed salary to temporary teachers is declared invalid. But it shall operate prospectively. A teacher appointed temporarily shall be paid the salary that is admissible to any teacher appointed regularly. (3) Any teacher appointed temporarily shall be continued till the purpose for which he has been appointed exhausts or if it is in waiting of regular selection then till such selection is made. (4) Managements shall, take steps, whenever necessary, to fill up permanent vacancies in accordance with rules. Delay in filling up the vacancies shall not entitle the management or Director to terminate the services of temporary teachers except for adequate reasons. But it shall entitle the government to take such steps including supersession of management or stopping grants-in-aid if permitted under law to compel the institutions to comply with the rules."

He has also relied upon a recent Judgment reported in Baseruddin M. Madari v. State of Karnataka in the case of Baseruddin M. Madari & Ors. vs. State of Karnatak & Ors. :

We, therefore, allow these appeals and direct as under :

(1) Services of the petitioners/appellants who have worked for three years, including the break till today shall not be terminated and they shall be absorbed in regular vacancies as and when they arise.

(2) In the case of Appellant 5 who has since left service, regular appointment has been made and that shall not be disturbed.

The petitioners/appellants other than No. 5 shall be paid salary as is admissible to a teacher appointed on regular basis against a permanent post. They shall also be treated as continuing during vacation and be paid salary accordingly.

Mr. Roy has contended since the petitioner has been performing the service from at least 1969 till today, therefore, the State Government should be directed for regularisation of his service. The petitioner has reasonably expected to be absorbed in service and for that reason has been rendering service so long. In support of his submission he relied upon a judgment reported in State of Haryana and others Vs. Piara Singh and others etc. etc., in the case of State of Hariyana & Ors. vs. Piara Singh & Ors. From the ratio of the above judgment, it appears that if a candidate has been allowed to work for a long time with the reasonable expectation that he would be absorbed in service, later on, the authorities cannot turn-down his request without regularising his service.

Mr. Mondal the learned advocate appearing for the College Service Commission has contended that in view of proviso to Section 7, the Government could not appoint the writ petitioner without his name being cleared by the CSC. Assuming Section 7(1) of the West Bengal College Service Corn-mission, Act 1971 was applicable why the College Service Commission did not context the earlier writ petition filed by the petitioner in C.O. No. 13196 (W) of 1995. Mr. Mondal was submitted that such order was passed without hearing the CSC. In case, the commission was not heard, it was open to them to file an appeal against the judgment of Mr. G.R. Bhattacharjee. J. Without the challenging the propriety of the judgment/order now it is not open to the Commission to take such plea. Moreover, it was a case of mere regularisation of the service and a not fresh appointment. In case of fresh appointment it could be only apposite for the State Government to ask the Commission for forwarding a panel for the appointment of the post of a lecturer. The function of the Commission is only recommendatory. Therefore, in the above situation notwithstanding the absence of recommendation by the CSC it is open to the State Government for consideration about the petitioner''s regularisation. Since, the second post in the Plant Protection subject has been created after taking concurrence from the finance department, it is not legitimate for the Government to defer the appointment of the petitioner expecting a panel to be sponsored by the CSC.

In Writ No. 526(W) of 96 the petitioner has sought a direction against the Commission for forwarding his name to the State Govt. with recommendation to be appointed as a lecturer against any vacancy arising under Burdwan University. The petitioner has submitted that his name was serially arranged in accordance to merit in Serial No. 17(a). The candidate who ranked junior to the writ petitioners have been already appointed. Therefore, there is no logic for the Commission to withold the name of the petitioner for being appointed as a lecturer. Mr. Mondal has taken several objections as to why the petitioner''s name could not be recommended to the State Government for appointment The first objection has been stated that since the panel has already lost its life the Commission is not duty bound to send recommendation to the Government. In support of his submission, he has relied upon the Regulation framed by the Commission which reads as follows :

Panel of candidates :

(1) On the result of the interview the Commission shall, for each subject, prepare a panel of candidates found fit for appointment strictly in order of merit, each such panel shall ordinarily includes names 50% in excess of the vacancies referred to in regulation 3 or names in excess of such number as may be considered necessary by the Commission.

(2) There shall be a separate set of panels for appointment in college under each University.

(3) Each panel shall remain valid for one year from the date of its finalisation by the Commission.

Mr. Roy has seriously objected to the aforesaid contention and contended that since the said Regulation is not notified in the gazette it has no statutory force. Even otherwise, also the petitioner''s case is not covered by this regulation since the vacancy had occurred in 1982 by that time. While the panel was valid, the commission has no power to forward the names of the candidates those who are Junior to the petitioner. In support of his submission, he has relied upon a Judgment reported in 1996 (11) CHN 497 in the case of P. Sinha Roy vs. Hon''ble. C.J. Cal. High Court held :

If the validity of a panel of eligible candidates expires during the pendency of the litigation, the claim of the petitioners cannot be defeated on the ground that the panel has lost its validity. The petitioners do have a right to be considered for appointments to the posts in respect of vacancies which occurred before the expiry of the validity of the panel.

Mr. Mondal has relied upon a decision of the Supreme Court reported in MR 1994 SC 736 in the case of State of Bihar vs. Secretarial Asstt. S.E. Union, it has been held as follows :

A person who is selected does not, on account of being empanelled alone, acquire any indefeasible right of appointment. Empanelment is at the best a condition of eligibility for purpose of appointment and by itself does not amount to selection or create a vested right to be appointed unless relevant service rule says to the contrary.

Mr. Mondal has also relied upon an unreported decision in the case of The Principal Bangabasi College of Commerce vs. Rita Niyogi &. Ors., No. S.A.T. No. 1840 of 95 with S.A.T. No. 2471 of 95 with S.A.T. No. 2123 of 95.

But on a plain reading of the judgment it appears that the facts mentioned in the above case are quite distinguishable from the present case. The Division Bench has considered in the above case about the desirability of creation of a supernumerary post on account of having worked continuously for a long time. Such observation does not help the commission in the matter of regularisation. Since in the other writ the Government was directed to absorb the petitioner in a post of lecturer in Plant Protection subject under Department of Zoology, the finding in this writ about the empanelment and its effect became more or less an academic. Accordingly, no detail discussion, appears to be necessary. In the result, the writ petition No. 526(W) of 96 succeeds in directing the Secretary Higher Education Department Govt. of West Bengal Director of Public Instruction West Bengal and the State of West Bengal to appoint the writ petitioner as a lecturer in the post of Plant Protection under the Department of Zoology from June 1992 with the usual salary without waiting for the recommendation of the Commission within 4 (four) months from date.

In the light of the above discussion the case C.O. 526 (W) of 96 is hereby disposed of. Accordingly, the writ application is disposed of but in the circumstances without cost.