Laxmi Narayan Neogi vs State of West Bengal

M.H.S. Ansari, J.—The Petitioner in the instant case is the Secretary of the Managing Committee of Raipur Marendranath Vidyamandir. The Petitioner has espoused the cause of the Performa Respondent and prayed for directions inter alia as under:

A writ of and/or in the nature of Mandamus to issue commanding the Respondents and/or each of them, by themselves their agents, subordinates or otherwise however to grant approval the proforma Respondent to his posts without giving any effect and/or further effect of the office Memo. No. 1380(20) G.A. dated 27.9.1996;

A writ in the nature of mandamus do issue commanding the Respondents and/or each of them, by themselves, their agents, sub-ordinates or otherwise however to confirm the withdrawn termination notice and/or restoration notice dated 22.6.1998 issued by the Secretary, Raypur Narendra Nath Vidyamandir and the proforma Respondent be allowed to teach the students for education till the finalisation of the instant writ application ;

Direction be made upon the Respondents No. 2, Director of Schools Educations E.) West Bengal to forthwith consider the case of the Petitioner for sanction of 6(six) additional posts and made approval and/or regularise the proforma Respondent as he fulfilled the requisite qualification and was appointed according the staff pattern and in accordance with law and the proforma Respondent be allowed to work to his post in confirmity of the restoration letter dated 22.6.98 issued by the Secretary, Raypur Narendra Nath Vidyamandir without giving any effect of the G.O. No. 1880 (20) G.A. dated 27.9.96 till the finalisation of the writ petition.

Mr. Bijoy Krishna Adhikary, learned Counsel for the Petitioner appearing along with Mr. Nirmal Banerjee, very strenuously urge before Court that the Petitioner is entitled to the reliefs as prayed for. Various averments made in the writ application in support of the said reliefs has been placed in extense before this Court, Brief reference to the averments made in the writ application is, therefore, necessary.

It is stated that the proforma Respondent is working as Assistant Teacher under Work Education and Physical Education group on and from March 10, 1994, and as such, a resolution had been taken with regard to the said appointment on or about February 22, 1994.

It is further stated in para 4 of the petition that since the proforma Respondent was working in the said school, he requested the school authority to take steps for absorption on permanent basis. As a result of which, the school authority made necessary steps for sanctioning additional posts. Annex. ''A'' is the letter of appointment issued by the Petitioner to the proforma Respondent wherein it is stated that as per resolution of the Managing Committee, appointment is made as Assistant Teacher in the additional posts for additional section in Work Education and Physical Education group. The service will be permanent whenever the Government will issue prior approval in favour of you.

It is further stated in the writ application that the school was granted recognition from the concerned authority for Class v. and VI with the effect from January 1, 1954, Class VII and VIII with the effect from January 1, 1956, and granted upgradation for Class IX with the effect from January 1, 1958. The organiser teachers of the said school got approval. Only 12 teachers were approved including the Headmaster. Out of the 12 approved teachers, one teacher in Social Science group retained on July 1, 1997, and one teacher in Language group (English) has got permission to transfer to same other school on and from August 1, 1997. The school, it is stated, is running by 10 approved teachers and six non-approved teacher.

It is further stated that due to increase of student strength, the school authorities were compelled to open 16 units for the education of the children and the school authorities are entitled to get 27 posts as teachers. The school authorities asked the D.I.S. (SE) firstly on March 10, 1988, to grant sanction for 6 (six) additional teachers in accordance with the staff pattern. Further representations were made on August 8, 1988, June 26, 1988, and April 20, 1988 that due to non-response, the school authorities went to the office of the D.I.S. (SE) and came to know that the said letters have been lest. The school authorities upon instructions further submitted representation on February 8, 1996, along with the statements for requirement of additional posts. Further representation was made on March 6, 1997, and latter came to know that the then D.I.S. (SE) directed concerned Law Cell for inspection about the present position of the school but nobody made a visit to the school.

Another relevant averment is about inaction and/ or whimsical action on the part of the concerned Respondents with regard to the non-sanctioning of additional posts in favour of the school. It is stated that the proforma Respondent have been appointed by the school authorities in the exigency of the service and in the interest of the students of the school much before the implementation of the School Service Commission Act. As such, there is no par for regularisation of the service of the proforma Respondent.

Learned Counsel for the Petitioner has relied upon an unreported order dated November 9, 1998, passed by His Lordship Justice Amitabha Lala in W.P. No. 15533 (W) of 1998 whereby directions were issued to the Director of School Education to consider the representation of the writ Petitioner and pass appropriate and reasoned order.

It has, however, not been stated as to how the said order has been complied with by the Director of School Education. In para 24 of the writ application, Petitioner stated that the proforma Respondent challenged the termination letter and for regularisation of his service, moved a writ petition before this Court being W.P. No. 9277(W) of 1998 Smt. Bharati Mondal and Ors. v. State of West Bengal and Ors. The same was dismissed, it is stated, by the order of His Lordship Justice Bhaskar Bhattacharya on the ground that the writ Petitioner has no right to challenge the decision of the school authorities when the same have been issued in compliance with the circular of the Government of West Bengal.

In view of the averments made in para 24 of the writ application, the instant writ application itself deserves to be dismissed on the ground of the bar of res judicata.

Mr. Bijoy Krishna Adhikary, learned Counsel for the Petitioner, however, sought to contend that the proforma Respondent in the instant case is entitled to regularisation of his service on the authority of the judgments of the Apex Court in Jacob M. Puthuparambil and others Vs. Kerala Water Authority and others, Reliance was also placed upon in the case of Narendra Kumar Chandla Vs. State of Haryana and others, wherein it was held that Article 21 protects the right to livelihood as an integral facet of right to life. Reliance was also placed upon the judgment of the Supreme Court in the case of State of Haryana and others Vs. Piara Singh and others etc. etc., Reliance was also placed upon in the case of Rabindra Nath Ghosh v. State of West Bengal and Ors. 1997 (2) C.L.J. 389.

Mr. Pabitra Kr. Basu, learned advocate on behalf of the State submitted that the admitted position as per very averments made in the writ application is that the proforma Respondent has been appointed in an unsanctioned post. Such appointment being contrary to the Recruitment Rules, which have statutory force cannot be regularised. The locus standi of the Petitioner to file the instant writ application espousing the cause of the proforma Respondent was also raised. It was further contended by Mr. Basu that Rule 28 of the Management Rules specifically lay down that the Managing Committee can appoint teachers on permanent basis within the sanctioned strength and approval for such appointment should be sought from the concerned authorities. The Managing Committee, it was contended is bound to follow the statutory rules in the matter of appointment of Teaching and non-teaching staff. The appointment in the instant case being not in a sanctioned post nor in conformity with the Recruitment Rules cannot be regularised, it was contended in the light of the various judgments of this Court as also of the Supreme Court.

In so far as the question of regularisation of services of teachers are concerned, a Division Bench of this High Court in Managing Committee, Dinhata High School v. Ram Chandra Shah and Ors. 1997(1) C.H.N. 105 considered the matter with respect to the question whether the continuous service would give rise to a claim for regularisation, when the initial appointment is not in an accordance with the Recruitment Rules. The Court in that case held that the recruitment rules have statutory force and are mandatory in nature. Reference was made to the case of Ram Sharan Sastri v. State of West Bengal and Ors. 1995(1) C.H.N. 419 wherein it was held that any teacher appointed de-hors the rule does not derive any legal right to continue in the said post. Reference was also made to the judgment of the Supreme Court in Dr. Arundhati Ajit Pargaonkar Vs. State of Maharashtra and others, wherein it was held that a continuous service by itself does not give rise to the claim of regularisation. The Division Bench upheld the order of the learned trial Judge in that case holding that the Petitioner therein was not entitled to be absorbed in service.

in a recent judgment in Smt. Ruspa singh and Anr. v. State of West Bengal and Ors. 1999 (1) C.L.T. 393 Ruma Pal J. as Lordship then was, after considering the judgments of the Supreme Court stated the principles governing the regularisation. A relevant portion of the said judgment is extracted hereunder:

The Petitioners relied upon the decision in Jacob M. Puthuparambil and others Vs. Kerala Water Authority and others, to contend that they were entitled to be regularised because they have been in continuous service without break and to the satisfaction of all concerned. This decision was considered subsequently by a larger Bench of the Supreme Court in Ashwani Kumar and Others Vs. State of Bihar and Others,

Briefly stated, the Supreme Court said that the question of regularisation would arise when;

a) The appointment is made against ''an available named vacancy'';

b) The appointment against such vacancy is made following the rules and regulations governing such appointment;

c) The incumbent has been employed for a long period of time against such vacancy.

If any one of the factors were missing, regularisation cannot be granted.

This is the present law. See also L.N. Ghosh v. State of West Bengal, 1993(1) CHN 382.

With regard to the question of additional posts to be created on the basis of the student strength, the said question was also considered in Puspa Singh''s case, (Supra) and it was held at para. 16 as under:

Assuming the school roll did have the number of students warranting the appointment of two additional teachers, but the justification for creation of a post, does not authorise the Managing Committee to create a post without the approval of the competent authority. There was thus no sanctioned post against which the Petitioners claim to have been appointed.

As regards the power of the Managing Committee to make appointments, the learned Judge in para 20 of the said judgment held as follows:

Whoever the appointing authority may be, the appointing authority can only appoint against a sanctioned vacancy and in accordance with the procedure prescribed.

In Rabindra Nath Ghosh''s (Supra) case, upon which much reliance has been placed by the learned Counsel for the Petitioner, it must be noticed that the learned Judge in that case gave the directions on the facts of that case which are disclosed in para 2 of the judgment and are to the effect:

Since the Petitioner has been rendering continuous service without break having required qualification, against a regular vacancy and the concerned authorities have accepted his service, there is no reason not to regularise the service of the Petitioner.

Thus Rabindra Nath Ghosh''s (Supra) case, is of no assistance to the Petitioner and is distinguishable on the facts of the instant case.

In a recent judgment of the Division Bench in Sairindhri Dolui v. State of West Bengal and Ors. 2000(1) S.C.R. 803 the Division Bench considered a similar matter with regard to the appointments made in non-sanctioned posts. In that case, the school authorities had applied for two additional posts of assistant teachers and the said request was recommended by the Assistant Inspector of Schools, Misreading the said recommendation, the District inspector of Schools granted prior permission whereafter the Appellants in that case were appointed as Assistant Teachers. Their appointments were also approved by the D.I. of Schools. Within a few days thereafter, the D.I.S. withdrew the approval on the ground that the said posts were not sanctioned. Writ petition filed by the Appellants was disposed of with a direction upon the Director of School Education to consider the matter. The Director of School Education rejected the claim of the Appellants in that case holding that there was no sanction for additional posts in the said school. Therefore it was held by the D.S.E, that no relief could be given to the Appellants since they had been given appointment in unsanctioned posts. The Division Bench noticed the provisions of the West Bengal Board of Secondary Education Act, 1963 as also rules made under the said Act, called Rules for Management of Recognised Non-Government Institutions (Aided-unaided), 1969. It was further noticed that Rule 28 provides for powers of the Managing Committee to appoint teachers and other employees on permanent basis against permanent vacancies if available within sanctioned strength of teachers and other employees. It was also observed that the posts are required to be sanctioned by the Director of School Education. The Division Bench rejecting the claim of the Appellants held as follows:

As no sanction had been given to increase the additional post, the entire exercise undertaken by the District Inspector of Schools and the Managing Committee of the Schools was futile....

It was further held as follows:

The appointment of the Appellants thus, having been made contrary to the provisions of the Rules must be held to be illegal. The rules have the force of the statute. See U.P. State Cooperative Land Development Bank Ltd. Vs. Chandra Bhan Dubey and Others, This aspect of the matter has also been considered by a Full Bench of this Court in Debasish Dutta v. State of West Bengal reported in 1998(2) C.L.J, as also a Division Bench of this Court in Ziaul Islam v. State of West Bengal and Ors. reported in Cal. L.T. 1999(1) H.C. 509 and Muktipada Maity v. State reported in 1999 W.B.L.R. 252 : [1999(2) SLR 178 (Cal.)].

Applying the above principles to the instant case, it will be noticed that in the instant case, the Managing Committee has taken upon itself to make the appointment even though the additional posts had not been sanctioned. The appointment of the proforma Respondent was thus not against any available vacancy nor the appointment was made following the rules and a regulations governing such appointment.

I therefore find no merit in the instant writ application and the same is accordingly dismissed, however, without any order as to costs.

Urgent xerox certified copy of the order be supplied to the Learned Counsel appearing for the parties, if the same is applied for.

Writ application allowed.