Purna Sen Gupta vs State of West Bengal

Amitava Lala, J.—This writ petition is made challenging non-consideration of service of the Petitioner by the authority from 1995 onwards. The Petitioner contended that she was a part-time physical Instructor or an Assistant Teacher of Physical Education. Subsequently she became full timer. She rendered service for about twenty years without any regularization of the service by the appropriate authority. In the year 1995 vacancy arose for the permanent post and that was filled up by a regular candidate from the schedule caste category taking a plea that the post is reserved for schedule caste candidate. But from 1995 onwards no hearing was given to the Petitioner either by the District Inspector of Schools (SE), Howrah or by the Director of Public Instruction, Government of West Bengal as a result whereof writ jurisdiction was invoked.

Initially an order was passed by this Court as far back as on July 7, 1995, to the extent that any step taken during the pendency of the writ petition that will be subject to the result of the writ petition.

The candidate who was given appointment on the regular basis has resigned and the post is vacant. Therefore, according to Mr. Maity, learned Counsel for the Petitioner that his client''s service should be regularized by the authority.

Mr. Dasgupta, learned Counsel for the State, on the other hand, contended the following:

(a) there was no prior approval of appointment of the Petitioner;

(b) the post was reserved for schedule caste candidate;

(c) the Petitioner is not eligible for the post;

(d) now for the school service commission, there is no scope of the Petitioner to get regularization of service in the manner as stated.

I find that prior approval is now become myth since even after representation in 1995 no step was taken by either of the authorities to consider the representation of the Petitioner.

So far the reservation of the post is concerned the Supreme Court of India deprecated reservation of a single post. Here there is only one post of Assistant Teacher of physical Education. The assistant Teacher for physical Education cannot be categorized with the other Assistant Teachers since they are previously recognized as physical Instructor and always keeps a separate entity from other Assistant Teachers as experience says.

So far the eligibility part is concerned, as transpired, the Petitioner completed a short course which was the then prevailing course but on the basis of such course he rendered twenty years of service when the post was regularized providing completion of a course for the same.

So far the question of public service commission is concerned I am of the view that the recruitment procedure arose long prior to School Service Commission came into force also the cause of action for filling up the vacancy or regularization thereof was available prior thereto, as a result whereof coming of School Service Commission Act in 1977 cannot be embargo for the authority in taking decision on the basis of the them prevailing Act and Rules.

The Petitioner is supported with various judgments. Initially he cited District School Board, 24-Parganas (North and South) v. Dukhiram Sardar 1991 (2) C.H.N. 355 wherein a Division Bench of this Court held that to refuse regularization of service to a teacher rendered though voluntarily at the beginning but allowed to continue to serve the School for fourteen years uninterruptedly on the plea that his service was not approved, therefore, long uninterrupted service confers a right upon the employee to continue in service,

Mr. Dasgupta, learned Counsel for the contesting state Respondents opposed this application by saying that the authority had knowledge of the service of the Petitioner but the authority had also the knowledge that the vacancy, if any, was approved for schedule caste candidate. Therefore, cause of the Petitioner cannot be accepted by this Court.

I am of the view that such objection cannot be tenable at all since specific or ample knowledge on the part of the authority is apparent on that score and the authority did hot care to consider the case from 1995 onwards. Therefore, as considered by the Court as above, such opposition is not acceptable by the Court.

Secondly, Mr. Maity cited a judgment reported in Asoke Kumar Biswas v. State of West Bengal and Ors.(2) 1994 C.L.T. (H.C.). 269 which is similar in line.

Thereafter he relied upon a decision reported in Karnataka State Private College Stop-Gap Lecturers Association Vs. State of Karnataka and Others, wherefrom I come to know that the teachers appointed temporarily for three months or less by privately managed Degree Colleges receiving cent percent grants-in-aid controlled administratively and financially by the Education department of the State cannot ignore invocation of equitable estoppels arising out of implied assurance to the employees in the regularization of the service due to their continuance. He "also relied upon another judgment being. Jacob M. Puthuparambil and others Vs. Kerala Water Authority and others, which is also similarly placed. The appointment by a stop-gap arrangement and continued in service for many years, therefore, such employee is entitled that his service should be regularized.

Considering the aforesaid aspects I am of the view that there cannot be any hindrance for the purpose of regularization of the service of the Petitioner. Therefore, the service of the Petitioner is directed to be regularized within a period of four weeks from the date of communication of this order. The Petitioner will be entitled to all service benefits from the date of regularization of the service but his notional regularization will be given effect from the date of her original appointment.

The writ petition is thus disposed of There will be no order as to costs.

Stay of operation of the order, as prayed for by the Respondent is made, considered and refused.

If an urgent Xerox certified copy of the order is applied for, the same be supplied to the applicant within seven days from the date of putting in the requisites.