Subodh Chandra Mondal vs State of West Bengal

Indira Banerjee, J.—This writ petition is directed against the action of the Respondents in not regularizing the appointment of the Petitioner as an Assistant Teacher in the language group in Bhutni Chandipur High School, Sukdevtola, Malda hereinafter referred to as the school.

The facts pretaining to this writ petition are briefly as follows:

The school was in urgent need of a permanent Assistant Teacher in the language group and had accordingly applied for sanction of an additional post in the language group.

In or about September, 1993, the Managing Committee of the school adopted a resolution to appoint a temporary Assistant Teacher of the school in the language group pending sanction of a permanent post.

Thereafter, the school advertised the post of Assistant Teacher of the school in the language group and invited applications for the said post from eligible candidates.

Pursuant to the said advertisement, the Petitioner, who is an M.A. in Bengali applied for the said post. The Petitioner, being eligible for the said post, was duly called for an interview and was selected for appointment.

By a letter of appointment dated September 25, 1993, the Petitioner was appointed an ad hoc teacher of the school in the language group on temporary basis.

The terms and conditions of appointment of the Petitioner as an ad hoc teacher of the language group of the school as contained in the said letter of appointment were inter alia as follows:

(1) The appointment would be purely on temporary and ad hoc basis.

(2) The Petitioner would have to teach in classes v. to x and take at least 26 periods in a week.

(3) The Petitioner would give due attention to his job and also show respect to and obey his superiors.

(4)The Petitioner would be paid remuneration from the contingency fund of the school.

(5) If the service of the Petitioner with the school and his conduct were found satisfactory, the Petitioner would be given priority for regular appointment when a vacancy arose.

The school at all material times was in need of a permanent Assistant Teacher in the language group for which sanction was awaited from the State-Respondents. Moreover, in view of the urgent, immediate requirement of a teacher, the school authorities decided to make an appointment on ad hoc and temporary basis in the expectation that the appointment would be regularized as and when a permanent post was sanctioned.

The Petitioner is said to have joined the school on September 29, 1993, and has since then been discharging his duties as a teacher of the school in the language group on a nominal monthly remuneration. There is no dispute that the Petitioner not only had the requisite educational qualification but was also within the prescribed age limit at the time, of his initial, appointment and as such there had been substantial compliance with the recruitment rules prevalent at the material times.

According to the Petitioner, he had been discharging his duties as a language group teacher of the school to the entire satisfaction of all concerned. A certificate to this effect issued by the Teacher-in-charge of the School has been annexed to the petition.

On or about September 30, 2000, one Ranjit Chandra Mondal, an approved Assistant Teacher of the school in the language group retired as a result of which a vacancy arose in a sanctioned post in the language group.

Having regard to the fact that the Petitioner had served the school as a teacher of the Language Group continuously for over 7 years and had the requisite educational qualifications for appointment to the post, which fell vacant by reason of the retirement of the said Ranjit Chandra Mondal, the Petitioner reasonably expected that the Petitioner would at long last be regularized in service.

However, the West Bengal School Service Commission Act, 1997 had come into force in the mean while. The said Act provides for the constitution of Regional School Service Commissions for the purposes of selecting persons of appointment to the post of teachers in schools within its jurisdiction, the school being an aided school within the meaning of the Act.

By a Memo No. 490(7)/W.B.R.S.S.C./NR/O.S.T./2000 dated August 30, 2000, the Regional School Service Commission Northern Region directed the District Inspector of Schools(S.E.), Malda to fill up the vacancy in the post of Assistant Teacher in the language Group caused by the retirement of the said Ranjit Chandra Mondal.

16; The aforesaid memo is according to the Petitioner prejudicial to his right to regularization of his service by absorption in the vacancy caused by the retirement of the said Ranjit Chandra Mondal.

Mr. Bari appearing on behalf of the Petitioner has submitted that the Petitioner had accepted appointment in the school on an ad hoc and temporary basis on the specific understanding that the appointment of the Petitioner would be regularized as and when a vacancy arose, in the event, the service of the Petitioner as also his conduct was found satisfactory.

The Petitioner having discharged his duties to the full satisfaction of all concerned for over 7 years is according to Mr. Bari, legitimately entitled to be regularized in the services of the school, now that a vacancy has arisen.

Mr. Bari relying on the decisions of the Supreme Court in the case of Rattan Lal and Others Vs. State of Haryana and Others, and Jacob M. Puthuparambil v., Jacob M. Puthuparambil and others Vs. Kerala Water Authority and others, strongly contended that a right had accrued to the Petitioner to have his services regularized of which the Petitioner could not be deprived at this stage.

In Rattan Lal''s case (1), the Supreme Court deprecated the practice of appointing teachers on ad hoc basis at the commencement of the session, terminating their service at the end of the session and reappointing them again in the next session on ad hoc basis and in the process obtaining their service for years on ad hoc basis. The Supreme Court directed the Respondent Government of Haryana to take immediate steps to fill up all existing vacancies, giving the teachers, who had been working on ad hoc basis, opportunity to apply, if they had the prescribed qualifications. The Government was directed to sympathetically consider relaxing the age limit prescribed for regular appointment in the case of those teachers who had been victims of the system of ''ad hoc'' appointments.

In jocob M. Puthuparambli''s (supra) case, the Supreme Court held as follows:

It is unfair and unreasonable to remove people who have been rendering service since sometimes as such removal has serious consequence. The family of the employee which had settled down and accommodated its needs to the emoluments received by the bread winner will face economic ruination if the job is suddenly taken away. Besides, the precious period of early life devoted in the service of the establishment will be wholly wasted and the incumbent may be rendered ''age barred'' for securing a job elsewhere it is indeed unfair to use him, generate hope and a feeling of security in him attune his family to live within his earnings and then suddenly to throw him out of job. Such behaviour would be an affront to the concept of job security and would run counter to the constitutional philosophy, particularly the concept of right to work in Article 41 of the Constitution.

In an unreported decision of this Court Sanjay Kumar Pal v. State and Ors. Company No. 16996 (W) of 1989 relied upon by the Petitioner, His Lordship the Hon''ble Mr. Justice Mahitosh Majumder (as His Lordship then was) held as follows:

The District Inspector of School(S.E), Hooghly did not take into account the fact and situation relating to the Petitioner''s appointment in the said Vidyamandir and also the number of years of service rendered by the Petitioner as Assistant Teacher. The Petitioner having rendered service and still continuing to function as Assistant Teacher in the said Vidyamandir has earned a right to be considered for appointment to the post of Assistant Teacher in the said Vidyamandir.

In another unreported decision Sabita Santra v. State and Ors. Company No. 2197 (W) of 1991. His Lordship the Hon''ble Mr. Justice Paritosh Kumar Mukherjee (as His Lordship then was) directed the educational authorities to create a supernumerary post in History and absorb the Petitioner in the post. In that case, the Petitioner had been appointed the Managing Committee of the school in question to function as an Assistant Teacher due to shortage of teaching staff although there was no sanctioned post to which the Petitioner could be absorbed.

Mr. Bari has also relied on the decision of this Court in the case of Gouri Bose v. State of West Bengal and Ors. 1997 (1) C.L.J. 111 where this Court held as follows:

Judgment and decision in the case of (19) Bakul Raj and Ors. v. State of West Bengal and Ors. reported in 91 C.W.N., 298 replied upon by learned Advocate for the Petitioner may be taken not 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 meagre 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 Govt. Orders being Memo No. 150 Edh, 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 practised against them 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 time posts, by recruiting fresh teachers.

Considering the facts and circumstancs 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.

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. Bari 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 service of the Petitioner.

In the decision of the Supreme Court referred to above an employee, who had worked as a Jr. Office Assistant-cum-typist for more than 5 years at a time, was directed to be regularized in service.

Mr. Bari 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 16 years.

Mr. Goswami appearing on behalf of the Respondent No. 4 has supported the writ petition and submitted that the school has no objection to the appointment of the Petitioner. On the other hand, the school would welcome the regularization of an existing teacher who has been rendering services for about 9 years to the satisfaction of all concerned.

Mr. Mitra appearing on behalf of the State-Respondents, however, submits that the appointment to the post which fell vacant on account of the retirement of the said Ranjit Chandra Mondal is liable to be made by the Regional School Service Commission, Northern Region strictly in accordance with the provisions of the West Bengal School Service Commission Act, 1997 and the R(sic)amed thereunder and the case of the Petitioner should at best be considered along with others, if he Was otherwise eligible as per the Rules of Recruitment of teachers framed under the West Bengal School Service Commission Act. According to Mr. Mitra, the Petitioner, whose appointment was entirely ad hoc and on temporary basis, was not entitled to any priority.

Mr. Bari has, on the other hand submitted, and, in my view rightly so, that even Rules relating to appointment are liable to be relaxed for regularization of exisiting teachers who have been serving the institution for several years at a stretch even though their initial appointment may have been on an ad hoc or temporary basis.

It is not disputed that the Petitioner was appointed in 1993 and have been rendering uninterrupted service to the satisfaction of all concerned for 7 years when a sanctioned post also in the language group fell vacant on account of the retirement of the said Ranjit Chandra Mondal. It is also not disputed that the Petitioner had the requisite educational qualification for appointment as Assistant Teacher of the school in the language group.

The very fact that the service of the Petitioner had been continued for 7 years shows that there was permanent requirement for an Assistant Teacher in the language group in addition to the said Ranjit Chandra Mondal who retired in 2000. It has been submitted that the number of sanctioned post in the school has at all material times been far below the number of sanctioned post to which the school Is entitled in view of its students strength. This factual assertion is not controverted.

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 Liquidators 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 50 per cent of the sanctioned posts 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 (II) 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 (I) 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 v. the State of Karnataka); 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 pre-conditions, 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 Bengal (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 (12) 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. State 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 (10) Court Liquidator''s Employees'' Association (9), Shainda Hasan (8) and Piara Singh (7) herd 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 socioeconomic 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 is also sufficiently long and there is no reason why the same principles should not apply in this case.

Mr. Bari has drawn my attention to the unreported decision of Ronojit Kumar Mitra J. Manisha Roy and Anr. v. State of West Bengal and Ors. W.P. No. 21380 (W) of 2000 the relevant portion whereof is extracted hereinbelow:

In the light of the decision of the Supreme Court, it must be understood that where there were vacancies and in such vacancies teachers had been given appointments, the school obviously required the services of the teachers. I would also understand that whether such appointments were temporary, the fact remains that there were vacancies and the school required the services of teachers in those vacancies. Further, where the teachers had been rendering services even if on the basis of temporary appointments for years together, again in the light of the decision of the Supreme Court I would be inclined to be of the view that it would be against the public policy to interfere in the services of the teachers. For those reasons, this application is allowed. The Respondent No. 3 is directed to take all necessary steps for approval of the appointments of the Petitioners as prayed for in the petition, in the light of the decision of the Supreme Court as also the observations made in this order.

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) and the decision of Ronojit Kumar Mitra, J, in the case of Manisha Roy (supra)

In any event, the Petitioner was at the time of his initial appointment, expressly given to understand that although the appointment of the Petitioner was initially on ad hoc and on temporary basis, the Petitioner would be given priority as and when a permanent vacancy arose in the event his services and conduct was found satisfactory.

It is nobody''s case that the Petitioner''s conduct or the quality of services rendered by him was unsatisfactory. On the other hand, the very fact the services of the Petitioner although ad hoc and temporary basis has been continued for 7 years in itself shows that there was no shortcoming in the quality of the service rendered by the Petitioner to the school. The school has on its part certified in writing that the Petitioner served the school to the satisfaction of all concerned.

The Petitioner having initially been appointed long before the enactment of the West Bengal School Service Commission Act, 1997, the terms and conditions of his service in the employment of the school cannot be varied to his disadvantage in view of the provisions of Section 10 of the said Act.

Section 10 said Act provides as follows:

S.10 Protection of Teachers. - Notwithstanding anything contained elsewhere in this Act, the terms and conditions of service of Teachers in the employment of a school immediately before the commencement of this Act shall not be varied to the disadvantage of such Teachers in so far as such terms and conditions relate to the appointment of such Teachers to the post held by them immediately before the commencement of this Act.

The Petitioner as an Assistant Teacher in the language group is entitled to the benefit of the said section Priority for regular appointment as and when a vacancy arose was one of the conditions of appointment of the Petitioner as stipulated in the letter of appointment issued to the Petitioner on May 23, 1993. Even otherwise, ignoring the claim of an existing teacher to permanent absorption in a regular post would amount to manifest injustice.

Teachers like the Petitioner whose services have been utilized for years are entitled to regularization of their service as and when a regular vacancy arises. It is expected that the Regional Service Commission in keeping with the judgment pronounced by this Court as also the Supreme Court will give priority to teachers who have actually been rendering services for several years in the matter of appointment to regular posts subject their possessing the requisite educational qualifications, if necessary by waiving the age limit for appointment, if any. In any event, the regularization of an existing teacher who had been rendering service prior to the enforcement of the West Bengal School Service Commission Act, 1997 by appointment to a sanctioned post which falls vacant subsequently would only technically be a new appointment and, therefore, not attract Section 9(2) of the said Act, more so in view of the judgments of the Supreme Court referred to above.

The writ petition is, therefore, allowed. The Respondents are directed to take necessary steps for the regular appointment and approval of the Petitioner in the post of an Assistant Teacher of the school in the language group in the light of the decision of the Supreme Court as also the decisions of this Court referred to above.

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