Calcutta High Court
Sri Swapan Kumar Ghosh vs State Of West Bengal And Ors. on 18 August, 2003
Equivalent citations: (2004)2CALLT473(HC)
Author: I. Banerjee
Bench: Indira Banerjee
JUDGMENT I. Banerjee, J.
1. In this writ petition, the petitioner a member of the staff of Saradeswari Kanya Vidyapith, which is hereinafter referred to as the school has prayed for regularisation of his service by appointment to a vacant sanctioned post of Class IV staff in the school.
2. The facts pertaining to this writ petition, are briefly as follows.
The petitioner has been working as clerk of the school, which is a Government sponsored Girls High School since 1974.
3. The petitioner has been serving the institution continuously, without any break since then. According to the petitioner, the petitioner has been signing the attendance register of the school since 1976.
4. A vacancy now having arisen in a sanctioned post of clerk of the school, the petitioner claims regularisation of his service by appointment to the said vacant post.
5. No directions for affidavits having been sought on behalf of the respondents nor any affidavit-in-opposition having been filed, which could have been done as per the Appellate Side Rules of this Court, irrespective of directions in this regard, the factual averments in the writ petition stand uncontroverted.
6. Mr. Bari relying on the decisions of the Supreme Court in the cases of Rattanlal and Ors. v. State of Haryana and Ors. and Jacob M. Puthuparambil v. Kerala Water Authority strongly contended that a right had accrued to the petitioner to have his services regularised of which the petitioner could not be deprived at this stage.
7. In Rattan Lal's case (supra), the Supreme Court deprecated the practice of appointing teachers on ad hoc basis at the commencement of the next session terminating their service at the end of the session and reappointing them again 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.
8. In Jacob M. Puthuparambil's case (supra), the Supreme Court held as follows:
"It is unfair and unreasonable to remove people who have been rendering service since sometime as such removal has serious consequences. The family of the employee, which has 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."
9. In an unreported decision of this Court (Sanjoy Kumar Pal v. State and Ors.) being C.O. 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 Schools (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."
10. In another unreported decision in C.O. No. 2197(W) of 1991 (Sabita Santra v. State and Ors.) His Lordship the Hon'ble Mr. Justice Paritosh Kumer 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 by 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.
11. Mr. Bari has also relied on the decision of this Court in the case of Gouri Bose v. State of West Bengal and Ors. reported in 1997(1) Calcutta Law Journal where this Court held as follows:
"Judgment and decision in the case of (19) Bakul Rej and Ors. v. State of West Bengal and Ors. reported in 91 CWN 298 relied upon by learned advocate for the petitioner may be taken note of. The aforesaid decision relates to the case of regularisation of the three writ petitioners who were working as approved part time teachers in Higher Secondary streams for a number of years on a meagre pittance of Rs. 75/-. They were neither regularised 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. 146 (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 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 time posts, by recruiting fresh teachers.
Considering the facts and circumstances of the case, in my view, the petitioners should be absorbed on regular basis in the said school considering her long years of experience as a teacher in Work Education Group."
12. Relying on the decision of the Supreme Court in the case of Registrar, University of Hyderabad and Anr. v. M.V. Santa Kumari reported in 2001 W.B.L.R. (SC) 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 services of the petitioner.
13. 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 5 years at a time, was directed to be regularised in service.
14. Mr. Bari submitted and rightly so that the petitioner who had rendered service to the school for over 29 years continuously was entitled to regularisation of his service as Clerical Staff of the school,
15. In this context reference may also be made to the case of State of Haryana and Ors. v. Piara Singh and Ors., 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 regularisation.
If for any reason, an ad hoc or temporary employer is continued for a fairly long spell the authorities must consider his case for regularisation 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."
16. Reliance may also be placed on the decision of the Supreme Court in the case of Shainda Hasan v. State of Uttar Pradesh , where the Supreme Court directed the appointment of a person who had been working for 16 years.
17. Mr. Bari has. submitted and, in my view rightly so, that even Rules relating to appointment are liable to be relaxed for regularisation of existing employees 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.
18. It is not disputed that the petitioner was appointed in 1974 and has been rendering uninterrupted service to the satisfaction of all concerned for 29 years. A sanctioned post of clerk having fallen vacant, the petitioner is entitled to be absorbed in the vacancy.
19. The very fact that the services of the petitioner had been continued for almost 29 years shows that there was permanent requirement for clerk in addition to the post of clerk that has since fallen vacant.
20. In the case of Government of India and Ors. v. Court Liquidation's Employees Association and Ors., , the Supreme Court held that the company paid-staff appointed by Court Liquidator and Official Liquidator cannot be denied regularisation on the ground that they were not employed by the Government in accordance with the Rules.
21. In the case of Arun Kumar Rout and Ors. v. State of Bihar and Ors., , 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."
22. In the case of Tapan Kumar Haldar v. State of West Bengal reported In 1999 (II) CHN 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 regularised in the permanent vacancy that arose in the post subsequently.
23. In the case of L.N. Ghosh v. State of West Bengal reported in 1993(1) CHN 382, Ruma Pal, J. held as follows:
"There has been a veritable flood of cases relating to the regularisation of employees in different services. The eases 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 had been characterised 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 regularisation subject to the fulfilment 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.J. 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 regularisation 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 regularise the post of an employee who has fulfilled all these preconditions merely on some technical plea; (see: Akhtar Hamid Sheikh v. D.I. of Schools (S.E.) (supra)."
24. Applying the above principles laid down in L.N. Ghosh's case (supra) 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.
25. Reference may also be made to a recent decision of this Court in the case of Aparna Bhattacharyya (Mukherjee v. State reported in 2001(1) CHN 517 where P.K. Chattopadhyay, J. following the decision of the Supreme Court in the cases of Arun Kumar Rout (spra). Court Liquidator's Employees' Association (supra), Shainda Hasan (supra) and Piara 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."
26. In the aforesaid case His Lordship directed the respondent authorities to forthwith take steps to regularise the service of the teacher concerned.
27. Mr. Bari has drawn my attention to the unreported decision of Ronojit Kumar Mitra. J. in W.P. No. 21380(W) 2000 (Manisha Roy and Anr. v. State of West Bengal & Ors.), 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."
28. As a Bench of coordinate strength, this Bench is bound by the decision of P.K. Chattopadhyay, J. in the case of Aparna Bhattaharyya (Mukherjee) (supra) and the decision of Ronojit Kumar Mitra, J. in the case of Manisha Roy (supra). The principles laid down in the aforesaid judgment apply in the case of non-teaching employees as well.
29. The issues involved in this writ application are covered by the judgment and order of this Court in the case of W.P. No. 21025 (W) of 2000 being Subodh Chandra Mondal v. State of West Bengal and Ors.
30. Following the aforesaid judgment, another single Judge of this Court passed an order dated 23rd May, 2003 in W.P. 529(W) of 2001 disposed of by directing the concerned District Inspector of Schools to pass necessary orders for approval of the appointment of the petitioners in that case within a period of four weeks from the date of communication of the said order.
31. 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 that the services of the petitioner although ad hoc and temporary basis has been continued for years in itself shows that there was no shortcoming in the quality of the service rendered by the petitioner to the school.
32. Employees like the petitioner whose services have been utilised for years are entitled to regularisation of their service as and when a regular vacancy arises.
33. The writ application is, therefore, allowed. The respondents concerned, District Inspector of Schools is directed to take necessary steps for the regular appointment and approval of the petitioner in the vacant sanctioned post of clerk of the school in the light of the decisions 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.