Calcutta High Court (Appellete Side)
Such Creation Of Post. The Court Of Law ... vs Unknown on 4 March, 2008
Author: Pratap Kumar Ray
Bench: Pratap Kumar Ray
1
4.3.2008.
M.A.T. No. 2105 of 2000
Mr. Pradip Sen
Mr. Joydeep Sen
..... for the appellants.
_______
Pratap Kumar Ray, J
Let supplementary affidavit as per direction of the Court annexing the impugned judgement
under appeal be kept with the record.
Heard the learned Advocate appearing for the appellants.
Nobody appears for the respondents even at the second call.
The matter was adjourned earlier on different dates due to absence of learned Advocate for the respondents. Last week when the matter was adjourned due to absence of learned Advocate for the respondents, Mr. Pralhad Chandra Ghosh, learned Advocate for the appellants was directed to serve a notice that the matter would be taken up even in absence of learned Advocate for the respondents. A notice to that effect as has been served be kept with the record.
Having regard to such position, we are of the view that the appeal should be disposed of on hearing the appellants. The impugned judgement under appeal was passed on 13th October, 1999 by the learned trial Judge in W.P. No. 18761 (W) of 1999 whereby and whereunder an appointee by the Managing Committee of the school in the post of Assistant Teacher, whose appointment 2 admittedly was not made following the Recruitment Rules as prevalent at the material time, prayed for regularisation of service by creation of one additional post which was allowed by the learned trial Judge. The impugned judgement under appeal reads such:-
"13.10.99 - Let the affidavit of service filed in Court today be kept with the record. It appears from the instruction of the Education Department that there should be additional posts of Assistant Teacher as per class units in the school and the same may be provided with the approval of the Director.
It appears that the petitioner was given appointment as an Assistant Teacher in the concerned subject since the class unit exceeded and he school authority sought for confirmation of appointment by way of sanctioning the post but the same is not made for a considerable period.
Under the circumstances a Division Bench of this Court was pleased to pass an order on 24.7.97 in disposing of MAT 3146/97 directing the authority concerned to grant an additional post of clerk and to approve the appointment of the petitioner in the said post since he is working in the school and the salaries are paid by the school authorities till date. I do not think that there is any cause of deviation from the order already passed by the Hon'ble Division of this Court and having binding effect in passing a similar order to regularise the service of the petitioner by creation of an additional post of Assistant Teacher within a period of four weeks from the date of communication of this order.3
The writ petition is, thus, disposed of without any order as to costs. Mr. Amit Kr. Roy, ld. Advocate who normally appears on behalf of the State, is directed to appear in the instant case. The learned Legal Remembrancer is directed to regularise the appointment of Mr. Amit Kr. Roy...."
It was the case of the writ petitioner that the Managing Committee of the school issued appointment letter through Secretary by appointing the petitioner on temporary basis in a post of Assistant Teacher in Social Science (History) due to need of the school on 11th March, 1996. From the appointment letter which has been annexed at page 16 of the paper book it appears that the writ petitioner was appointed on adhoc basis with a condition that his service could be absorbed in a permanent vacancy when such vacancy would be created. In view of the very language used in the appointment letter and the pleadings of the writ petitioner in the writ application it appears that the writ petitioner was appointed not in any sanctioned post and in fact, there was no post at all. Appointment of Assistant Teacher in the schools which is controlled and guided by the Rules of Management of Recognised Non-Government Institutions (Aided and Unaided) Rules, 1969 hereinafter referred to as Management Rules, 1969 for brevity provides under Rule 28 that the Managing Committee would be entitled to give appointment on the basis of selection as to be made following the direction/guideline issued by the Director of School Education, West Bengal. Except that under Rule 28 of the said Rule the Managing Committee had no power/jurisdiction to appoint any Assistant Teacher in the school. The Management Rules, 1969 is an outcome of an application of the Rule 45 of West Bengal Board of Secondary Education Act, 1963. The Management Rules 1969 was framed and constituted by exercising power under sub-section 1 and in particular by 4 Clause (d) of sub-section (2) of Section 45 of the West Bengal Board of Secondary Education Act, 1963 by the Hon'ble Governor on previous publication of the said Rule in the Calcutta Gazette. Rule 28 of the Management Rules reads such:-
"28. Powers of Committee. - (1) In an aided institution the Committee shall, subject to the provisions of any Grant-in-aid Scheme or Pay Revision Scheme or any order or direction or guidelines issued by the State Government or the Director in connection therewith and in force for the time being, have the power-
(i) to appoint teachers and other employees on permanent basis against permanent vacancies, if available, within the sanctioned strength of teachers and other employees, approval of such appointment being thereafter sought for from the Director or any other officer authorised by him, ordinarily within a fortnight from the date of decision of the Committee".
In pursuance of Rule 28 the Director of School Education, West Bengal issued the direction which is called as "Recruitment Procedure for Recruitment of Teaching and Non-Teaching Staff of Secondary Schools" controlled by the Management Rules, 1969. This procedure was issued time to time and the relevant procedure as was existing when the petitioner was appointed, was the recruitment procedure issued by the Director of Schools Education, West Bengal under his Memo No. 2066-GA dated 27th October, 1995 effective from 1st December, 1995. Under the said Rule different procedural steps have been formulated which was required to be taken by the Managing Committee for giving appointment of a candidate in a teaching post which in brief are as follows.
Under Clause 3(a) when there will be a vacancy in a sanctioned post, such vacancy to be informed to the District Inspector of Schools concerned for his necessary action, namely, if there is 5 any name of candidate pending under the life register of died-in-harness category, to refer his/her name in such vacancy for consideration by the Managing Committee and in the event there is no such name in the said register, prior permission to be issued directing the Managing Committee to fill up the vacancy by inviting names from the Employment Exchange.
On receipt of such prior permission the school will request the concerned Employment Exchange to sponsor the names of the candidates and the Managing Committee on forming a Selection Committee will interview those candidates sponsored for preparation of a panel consisting of three candidates, by the Selection Committee. This panel thereafter is required to be placed to the Managing Committee for necessary recommendation and forwarding of the same to the District Inspector of Schools concerned for approval. After the panel is approved by the District Inspector of Schools concerned, the Managing Committee is entitled to issue appointment letter to the first candidate of the approved panel and on waiting for three months if the candidate fails to join, to issue appointment letter in favour of the second candidate and after waiting about three months thereafter if the second candidate fails to join, to give appointment letter to the third candidate of the panel. The life of the panel as prescribed is one year from the date of approval.
The relevant portion of Recruitment Rules, namely, Clauses 3(a), (e), 4(a), 5(q), 6(l) and (n) which read such :-
"3. (a) when any vacancy, occurs, against any sanctioned post in any recognised and aided school the management of the School shall approach the D.I.S. (SE) for prior permission for taking steps for appointment with relevant papers. D.I. of Schools (SE) shall sponsor upto three eligible candidates from the death-in-harness category, if there are such names in the register, in order of seniority to be counted from the date of registration along with the prior permission. However, in case of a vacancy arising in a school where a deceased teacher/non-teaching staff had been working 6 prior to his/her death, the name of th eligible ward of that deceased teacher/non-teaching staff if his/her educational qualification suits shall be sponsored by the D.I. of Schools (SE) irrespective of seniority under the death-in-harness category.
(e) In the prior permission, the D.I.S. (SE) shall indicate the group/subject to which the post/posts belong, scale of pay to be admitted, the specific academic, training/professional qualifications to be required and preferable for the particular post/posts in accordance with prevailing Govt. Orders. For recruitment to any teaching and non-teaching post other than the post of H.M. & A.H.M. specific academic qualification (i.e. not indicating any alternative) shall be mentioned by the D.I.S. (SE) in the prior permission.
4. (a) On receipt of the prior permission, and subject to the provisions in section 3(b) hereof, the school authorities shall approach the local Employment Exchange for sponsoring the names of the employment Exchange candidates upto Honours Graduate level and National Employment Exchange for Post Graduate candidates, accordingly to prior permission within 7 days.
5. (q) All the candidates sponsored by the Employment Exchange shall be called for interview. If the number of applications received through advertisement where permitted is more that 10 a preliminary screening may be made on the basis of marks obtained in different examinations in the norms prescribed below, by a team consisting of the Secretary/Administrator, Head of the Institution and Teachers' Representative in the Selection Committee. A record of receipt of names either through Employment Exchange or through advertisement should be preserved and will remain open for verification by the officers of the Education Directorate/Department.7
6. (l) Panel shall be prepared with average of marks awarded by each of the members of the Selection Committee. If any of the members want to keep his opinion reserved, average shall be calculated on the marks awarded by other members.
(n) The Selection Committee after preparing the panel on the date of interview shall
submit the same to the Managing Committee/Ad-hoc Committee/Ad-hoc
Committee/Administrator. On being examined by the Managing Committee/Ad-hoc
Committee/Administrator the panel shall be forwarded to the D.I.S. (SE) for approval with all relevant papers within 15 days from the date of interview. D.I.S. (SE) shall convey his decision within on month from the date of receipt of the panel.
(o) On getting approval of the panel, the Managing Committee/Ad-hoc Committee/Administrator of the school shall issue appointment letter to the 1st empanelled candidate within 15 days through Registered Postcard/Registered Inland letter. The panel shall remain valid for one year from the date of approval of the panel by the D.I. S(SE). If any candidate fails to join within 3 months from the date of receipt of appointment letter or leaves the post within the validity of the panel, the next empanelled candidate shall be offered appointment. Name of such candidates who do not join within 3 months from the date of receipt of appointment letter shall be struck off from the panel".
Hence having regard to such position of law, it is clear that the Managing Committee had no independent power and jurisdiction to appoint teaching and non-teaching staff unless a vacancy in a sanctioned post is processed through the recruitment procedure of Director of School Education, West Bengal as already referred to. Furthermore, there was no scope by the Managing Committee to appoint any person in any non-sanctioned post under any circumstances. 8
Having regard to such, we are of the view that the appointment letter issued by the Managing Committee was dehors of the statutory Rules and Regulations. As such, the writ petitioner did not accrue any right to claim regularisation. The learned trial Judge directed creation of additional post to regularise the service which ex-facie is bad in law. It is a settled legal position that the creation or abolition of the post is within the domain of executive and/or legislature and judiciary has no hand in the matter of such creation of post. The Court of Law cannot create any post as for creation of the post it requires consideration of different factors, namely, the financial condition of the employer and its stability thereof, need of the employer and also other administrative points which could be properly answered and looked into by the executive and/or by the legislature. Very recently the Apex Court has considered this aspect relying upon the earlier views of the Apex Court in the case State of Haryana & Ors. -vs- Navaneet Verma, reported in (2008) 2 SCC 65, relying upon the views expressed by the Apex Court in the case Abas Vikash Sansthan -vs- Engineers' Association, reported in (2006) 4 SCC 132. It is also a settled law that post can be created and/or filled up by the Government in exercise of its executive power. Reliance may be placed to the judgment passed in the case Ram Jawaya Kapoor -vs- State of Punjab, reported in A.I.R. 1955 SC 549, T. Caji -vs- Jormanik, reported in A.I.R. 1961 SC 276 and B.N. Nagarajan -vs- State of Mysore, reported in A.I.R. 1966 SC 1942.
Having regard to such legal position, we are of the view that the impugned judgement under appeal whereby the learned trial Judge directed creation of additional post is not legally sustainable. Furthermore, it is a settled legal position that when an appointee in a non-sanctioned post worked for so many years, appointee does not satisfy the test of permanent appointment. It is also a settled 9 legal position that elevation of status of an appointee from adhoc, temporary to permanent, requires application of a rule/regulation which has sanction by law. Reliance may be placed to the judgment passed in the case State of M.P. -vs- Dharamvir, reported in (1998) 6 SCC 165. It is also a settled legal position that even the Government in exercise of executive power under Article 162 of the Constitution of India cannot regularise any appointment on breach of any rule framed under Article 309 of the Constitution of India. Reliance may be placed to the judgement passed in the case B.N. Nagarajan & Ors. -vs- State of Karnataka, reported in A.I.R. 1979 SC 1676, a judgment of 3- Judges Bench which has recently been considered in the Constitution Bench Judgement passed in the case Secretary, State of Karnataka -vs- Uma Deb (3), reported in (2006) 4 SCC 1. It is also a settled legal position that an adhoc employee cannot be regularised even if any selection is made following the rules for such appointment. Reliance may be placed to the judgment passed in the case Dr. Chanchal Goyal -vs- State of Rajasthan, reported in (2003) 3 SCC 485. When an appointment letter is void ab initio in utter disregard of existing recruitment rules and on breach of Articles 14 and 16 of the Constitution of India it will be wholly illegal and no regularisation order could be passed. Reliance may be placed to the judgment passed in the case Mahadeo Bhau Khilara
-vs- State of Maharashtra, reported in (2007) 5 SCC 524. Any regularisation of such appointee who has come in a back-door and on breach of Recruitment Rules practically hits/infringes the basic feature of the constitution under Articles 14 and 16 of the Constitution of India and for that reason the Apex Court has cautioned that the High Court being the sentinel and guardian of constitution should not pass any such order as would breach the Article 14 of the Constitution of India. Reliance may be placed to the judgment Uma Debi (3) (supra), a Constitution Bench judgment to paragraphs 41 and 43 of the said report.
10
Hence having regard to those legal positions and application of those principles in the present case wherein (1) it is an admitted fact that there was no sanctioned post, (2) managing committee had no power to appoint any candidate in any non-sanctioned post, (3) managing committee of a school only can appoint in terms of Rule 28 of Management Rules 1969 on following the recruitment procedure as laid down by the Director School Education, West Bengal, we are of the view that the writ of mandamus as prayed for by the writ petitioner was not legally maintainable and there was no scope to pass any order of regularisation. The learned trial Judge was accordingly not correct in the approach of allowing the writ application by direction creation of an additional post when creation of the post is within the absolute domain of the Government.
Considering that, we are of the view that there is no merit at all in the writ application. Hence, the impugned judgment under appeal is set aside and quashed.
The writ application also stands dismissed.
The appeal is allowed accordingly.
(Pratap Kumar Ray, J.) I agree (Partha Sakha Datta, J.)