Mojibur Rahaman vs State of West Bengal

Indira Banerjee, J.—In the first writ petition being W.P. No. 4488 (W) of 1999, the Petitioner has prayed inter alia for orders directing the Respondent No. 3 to approve the appointment of the Petitioner as Assistant Teacher of Geography of Baraduary Jr. High School, which is hereinafter referred to as the school.

While the said writ petition was pending, the Managing Committee of the school took the decision to remove the Petitioner from service in compliance with an alleged directive of the Respondent No. 3 and such decision was communicated to the Petitioner vide a letter dated March 3, 1999 which is alleged to have been received by the Petitioner on July 15, 1999.

The said decision to remove the Petitioner from service is under challenge in the second writ petition being W.P. No. 15412 (W) of 1999.

Since the two writ petitions involve common issues of law as well as facts, the same were heard together and are being disposed of by a common judgment and order.

The facts as stated in the writ petitions are briefly as follows:

The school issued a notice in the Notice Board of the school inviting applications for the post of Assistant Teacher of Geography.

The Petitioner, who had the requisite educational qualifications for appointment as Assistant Teacher of Geography of the school duly applied for the post. The Petitioner is an Honors graduate in Geography.

The Petitioner was call for an interview in which the Petitioner performed well. The Petitioner was duly selected for appointment by the Managing Committee of the school on the basis of his performance in the interview as also his educational qualifications.

By a letter being Memo No. 1/P/95 dated February 1, 1995, the Secretary of the school informed the Petitioner of the resolution taken by the Managing Committee of the school on February 1, 1995 being Resolution No. A/5(B) appointing the Petitioner as a teacher of the school on ad hoc basis with effect from February 1, 1995.

The Petitioner duly joined his duties as teacher of the school with effect from February 1, 1995 and continued as such till the time mentioned hereinafter.

At the material time, when the Petitioner was appointed teacher of the school, the school which is aided by the Government of West Bengal had classes . V. to VIII comprising 9 sections ; three sections in class V. and two sections in each of the three other classes. Only six posts of teachers were, however, sanctioned by the Government of West Bengal.

There being an acute shortage of teachers in the school an application had been made by the Managing Committee of the school for sanction of 7 additional posts of Assistant Teachers which, was pending. A copy of a letter dated October 6, 1994 written by the Headmaster of the school to the Respondent, Director of School Education, West Bengal, requesting immediate sanction of the said posts is annexed to the first writ petition as annexure D.

Aided non-Government schools like the school in the insttt. it case, are provided with financial assistance from the Government but are managed by the respective Managing Committees constituted I accordance with f the relevant Management Rules.

The salary burden of the approved members of the staff of such schools is borne by the Government. The Government does not, however, pay the salary or allowances of any teacher appointed to a post not sanctioned by the Government.

There being immediate requirement for a teacher but no vacant sanctioned post the Managing Committee of the school had to appoint the Petitioner on ad hoc basis on a meager monthly remuneration of Rs. 300/- to be paid by the Managing Committee from its own limited resources since aided schools cannot charge fees from its students and consequently have no income.

At the material time, when the Petitioner was appointed, an application for up gradation of the school upto class X was also pending. It has been submitted that the school has since been upgraded to class X and additional posts of Assistant Teachers have been sanctioned by the Government of West Bengal. The said sanctioned posts have not all been filled up and there are vacancies in which the Petitioner can be absorbed.

It is alleged that the Petitioner was given a specific assurance by the Managing Committee of the school that his services would be regularized as soon as an additional teaching post was sanctioned either for the existing classes or upon up gradation of the school upto class X.

On or about March 10, 1999, after the Petitioner had rendered continuous service-for over four years, the Headmaster of the school is alleged to have verbally requested the Petitioner not to attend school any further on the alleged ground that the District Inspector of Schools had directed that unapproved teachers should not be allowed to teach in the school any longer.

In the circumstances aforesaid, the writ Petitioner filed the first writ petition. On or about July 15, 1999, after the first writ petition was filed but before it could be moved, the Petitioner was served with a letter dated March 3, 1999 informing the Petitioner that the Petitioner was being removed from service with effect from March 2, 1999 in terms of the decision of the Managing Committee dated March 1, 1999 taken in view of Memo No. 90/G dated February 20, 1999 of the District Inspector of Schools (S.E.), Malda. The decision to remove the Petitioner is under challenge in the second writ petition.

The Respondents having chosen not to seek directions to file any affidavit-in-opposition to either of the writ petitions, the writ petitions were list for final hearing. In view of chap. IV. Rules 13 to 15 of the Appellate Side Rules of this Court, the Respondents could even have filed an affidavit-in-opposition as of right without directions from this Court but they did not do so. The writ petitions were, therefore, taken up for hearing without affidavits.

Mr. Ajoy Krishna Chatterjee, Senior Advocate appearing on behalf of the Petitioner submitted that there was genuine permanent requirement for teachers in the school, which necessitated the appointment of the Petitioner. There being no sanctioned posts lying vacant the Petitioner was appointed on ad hoc basis pending sanction of an additional post of teacher on the assurance that his services would be regularized when an additional post of teacher was sanctioned.

Relying on the decision of the Supreme Court in the case of Registrar, University of Hyderabad and Anr. v. M.V. Santa Kumari 2001 W.B.L.R. (S.C.) 9 Mr. Chatterjee submitted that the fact that the Petitioner was made to work for over 4 years in itself showed that there was permanent requirement for an Assistant Teacher of Geography and as such there was absolutely no reason to terminate the services of the Petitioner.

In the decision of the Supreme Court referred to above an employee, who had worked as a Junior Office Assistant-cum-typist for more than five years at a time, was directed to be regularized in service.

Mr. Chatterjee submitted and rightly so that the Petitioner who had rendered service to the school for over four years continuously was entitled to regularization of his service as teacher of the school..

In this context reference may also be made to the case of State of Haryana and others Vs. Piara Singh and others etc. etc., where the Supreme Court held as follows:

A person should not be kept in a temporary or ad hoc status for long. Where a temporary or ad hoc appointment is continued for long the court presumes that there is need and warrant for a regular post and accordingly directs regularization.

If for any reason, an ad hoc or temporary employee is continued for a fairly long spell the authorities must consider his case for regularization provided he is eligible and qualified according to the rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State.

Reliance may also be placed on the decision of the Supreme Court in the case of Miss Shainda Hasan Vs. State of Uttar Pradesh and others, where the Supreme Court directed the appointment of a person who had been working for sixteen years.

Mr. Chatterjee has also relied on a decision of this Court Gouri Bose (Smt.) v. State of West Bengal 1997 (1) C.L.J. 111 the relevant portion whereof is extracted hereinbelow:

Judgment and decision in the case of (19) Bakul Rej and Others Vs. State of West Bengal and Others, relied upon by learned Advocate for the Petitioner may be taken note of. The aforesaid decision relates to the case of regularization of the three writ Petitioners who were working as approved part time teachers in Higher Secondary Streams for a number years on a meager pittance of Rs. 75/-, They were neither regularized nor absorbed in the full time posts. The Petitioner''s case was that the Respondents were taking steps to fill up their posts by making fresh appointments. They claimed absorption on the basis of the Government Orders being Memo No. 150 Edn., dated September, 1978 and Memo No. 1464 (16 G.A./3B-49/81) dated August 28, 1981. The arguments made on their behalf was that they ought to have been absorbed in the permanent posts, that hostile discrimination was practiced against them and that the State could be directed in appropriate cases such as the present one not to fill up the posts of the Petitioners who were highly qualified, eligible and experienced and were setting in part Jaime posts, by recruiting fresh teachers.

Considering the facts and circumstances of the case, in my view, the Petitioner should be absorbed on regular basis in the said school considering her long years of experience as a teacher in Work Education Group.

Mr. Chatterjee submitted that the school having since been upgraded and additional posts of Assistant Teachers having since been sanctioned, the Petitioner who had been rendering services to the school for several years had a right to be regularized.

II is submitted that there is no dispute that the Petitioner had the requisite educational qualifications and was within the prescribed age limit at the time of his initial appointment. The rules for recruitment of teachers are prevalent at the material time had duly been complied with.

It is not in dispute that the appointment of the Petitioner was necessitated by a genuine requirement for teachers including in particular a teacher of Geography, It is a matter of record that an application^ for sanction of additional posts of Assistant Teachers had been pending at the time; of the Petitioner''s appointment.

Moreover, the continuance of the service of the Petitioner for over four years without any interruption clearly indicates genuine requirement. The Respondent authorities do not appear to have objected to the appointment of the Petitioner or to the continuation of his services till after tie had rendered three to four years of service.

At the material time, when the Petitioner was appointed teacher of the school, the Managing Committee of the school had full power to appoint teachers of their choice subject to such teachers fulfilling the requisite educational qualifications and other eligibility .criteria as prescribed.

In the instant case, the Petitioner, who being an Honors graduate in Geography, duly possessed the requisite educational qualifications, was appointed by the Managing Committee of the school. The Managing Committee had the power to appoint the Petitioner. The materials on record including in particular the affidavit of the Petitioner in verification of the Petitioners show that the Petitioner was within the prescribed age limit at the material time. The rules for recruitment of teachers prevalent at the materials time, appear to have been complied with at least substantially, even if not wholly.

In the case of Government of India and Others Vs. Court Liquidator''s Employees Assn. and Others, the Supreme Court held that the company paid-staff appointed by Court Liquidator and Official Liquidator cannot be denied regularization on the ground that they were not employed by the Government in accordance with the Rules.

In the case of Arun Kumar Rout and Others Vs. State of Bihar and Others, the Supreme Court held:

Although the Appellants had not been appointed by following the due procedure and, therefore, they cannot claim regularization as a matter of course but considering the fact that they had satisfactorily served the department even without getting any salary for a long time and they were not guilty of any fraud or sharp practice and also did not lack in requisite qualification and they had been appointed against sanctioned posts, we feel that the, Appellants deserve sympathetic consideration in getting appointment against such sanctioned posts on humane consideration. Considering the special facts of this appeal it appears to us that it will be just, proper and consistent with ends of justice to direct that fifty per cent of the sanctioned posits which were held by, these Appellants should be filled from amongst the Appellants on the basis of their inter se merit position by taking into account their academic qualifications by waiving question of age bar if any and usual proceedings for such appointment.

In the case of Japan Kumar Haldar v. State of West Bengal 1999 (11) C.H.N. 569 a learned single Judge of this Court directed a teacher who had worked in a leave vacancy for about four years is to be regularized in the permanent vacancy that arose in the post subsequently.

In the case of L.N. Ghosh v. State of West Bengal 1993(1) C.H.N. 382 Ruma Pal, J. held as follows:

There has been a veritable flood of cases relating to the regularization of employees in different services. The cases cited by the Petitioner are a representative tickle of this flood. Upon a consideration of the authorities cited it appears that there are 2 broad streams of cases. In the first stream are the cases which raise the question whether the employee concerned appointed 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 regularization subject to the fulfillment of three preconditions, 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); Akhtar Hamid Sheikh v. D.I. 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. Puthuparambil v. Kerala Water Authority (Supra) and (c) The employees must have served continuously in the post against which regularization is asked, for a reasonably long period. (See: Manik Chandra Sarkar v. State of West Bengar (Supra) and Smt, Pratima 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 regularize the post of an employee who has fulfilled all these preconditions merely on some technical plea ; (See: Aktar Hamid Sheikh v. D.I. of Schools (S.E:) (Supra).

Applying the above principles laid down in L.N. Ghosh''s (Supra) case to the facts of this case, it must be held that the Petitioner''s case falls within the second stream. It is nobody''s case that the Petitioner was appointed for any reason other than a genuine necessity.

Reference may also be made to a recent decision of this Court in the case of Aparna Bhattacharyya (Mukherjee) v. Stated 2001 (1) C.H.N. 517 .where P.K. Chattopadhyay, J. following the decision of the Supreme Court in the cases of Arun Kumar Rout (Supra), Court Liquidaor''s Employees'' Association (Supra), Shainda Hasan (Supra) and Paiara Singh ( Supra) held as follows:

Admittedly at the time of initial appointment the Petitioner herein had the requisite qualifications for the said post of Assistant Teacher and was within prescribed age limit and thus major part of the Recruitment Rules had been complied with. So, when the Petitioner was: appointed with the requisite qualifications and was allowed to continue for more than 15 years, it would be a great wrong and serious injustice to the Petitioner if she is now thrown out of employment after long lapse of 15 years and such action would be certainly against the principles of socio-economic justice. In the instant case, the recruitment norms and criteria were virtually substantially complied with.

In the aforesaid case, His Lordship directed the Respondent authorities to forthwith take steps to regularize the service of the teacher; concerned.

Although it is true that the period of service rendered by the teacher in that case was much longer, the period of service rendered by the Petitioner in this case too is also sufficiently long and there is no reason why the same principles should not apply in this case. As a Bench of coordinate strength, this Bench is bound by the decision of P.K. Chattopadhyay, J. in the case of Aparna Bhattacharyya (Mukherjee) {Supra).

The impugned letter informing the Petitioner of his removal from services does not disclose any reason but merely refers to an order of the District Inspector, which does not appear to have been made an enclosure to the said letter. There is no allegation of any laces, lapses, negligence or misconduct on the part of the Petitioner.

The action of the Respondents in removing the Petitioner from service after four years cannot be sustained. The impugned resolution of the Managing Committee of the school taken on February 1, 1999 and the impugned letter dated March 3, 1999 communicating the aforesaid decision to the Petitioner are set aside and quashed.

From the averments in the petition, which stands uncontroversial. it appears that the school is entitled to have 7 additional posts of teachers sanctioned in terms of Government Circulars and the relevant Rules with regard to student-teacher ratio in such schools. It appears that the school has, in the meanwhile, been upgraded to class X and additional posts of teachers have been sanctioned. It is submitted that there are sanctioned posts lying vacant.

In the event, any sanctioned post is vacant as submitted by the Petitioner the Respondent No. 3 will forthwith take steps for appointment of the Petitioner to the said sanctioned post and accord approval to his -appointment. If no sanctioned post is vacant then the Respondent authorities shall ascertain, if any, additional posts are required to be sanctioned in terms of the Rules and/or circulars having regard to the number of students enrolled in the school. If it is found that the school is entitled to any additional posts, the said authorities will forthwith create/sanction a post of Assistant Teacher and regularize the service of the Petitioner with the school by appointing the Petitioner to such post and by according approval to his appointment.

The writ petitions are disposed of accordingly.

Xerox certified copy of this judgment and order, if applied for, be given to the parties expeditiously subject to compliance with the requisite formalities.