Calcutta High Court (Appellete Side)
Ratikul Sk vs The State Of West Bengal & Ors on 9 July, 2014
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
1 09.07.2014 srm W.P. No. 35882 (W) of 2013 Ratikul Sk.
Versus The State of West Bengal & Ors.
Md. Ahsanuzzaman ...For the Petitioner.
Mr. Kamalesh Bhattacharya, Mrs. Bratati Roy Chowdhury ...For the State.
Mr. Kumaresh Dalal ...For the School Authority.
Let affidavit‐of‐service be kept on record. This writ application is filed by the petitioner for regularisation of his service in the post of a non‐teaching staff (Group‐D) in Fatullapur S.K. High School (H.S.).
Having heard the learned Counsel appearing for the respective parties as also after considering the facts and circumstances of this case, I find that the petitioner was engaged in the post under reference by the Managing Committee of the above school as a casual worker with a consolidated pay of Rs.1,200/‐ per month.
At the material point of time a permanent vacancy in the post of a non‐ teaching staff of Non‐Government Aided Educational Institution should have been filled up in accordance with the provisions of the Management of 2 Recognised Non‐Government Institutions (Aided and Unaided) Rules, 2009. No material is brought before this Court to show that the petitioner was appointed against a permanent vacancy adhering to the provisions of the above Rules.
It is the settled principles of law that the Recruitment Rules are to be followed strictly and not in breach. Reference may be made to the decision of Arundhati A. Pargaonkar vs. State of Maharashtra reported in AIR 1995 SC 962 and the relevant portions of the above decision are quoted below:
"Nor the claim of the appellant, that she having worked as Lecturer without break for nine years on the date of advertisement was issued she should be deemed to have been regularised appears to be well founded. Eligibility and continuous working for howsoever long period should not be permitted to over‐reach the law. Requirement of rules of selection through Commission cannot be substituted by humane considerations. Law must take its course. Consequently the appellant was not entitled to claim that she should have been deemed to have been regularised as she had been working without break for nine years."
Subsequently, a Constitution Bench of the Hon'ble Supreme Court approved the above proposition of law in the matter of Secretary, State of Karnataka vs. Uma Devi (3) reported in 2006(4) SCC 1 and the relevant portion of the above decision is quoted below:
"43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering 3 the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were en engagement or appointment on daily wages or cause basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Court acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the court, which we have described as "litigious employment" in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates."
(Emphasis supplied) 4 In view of the above settled principles of law no relief can be granted to the petitioner considering the facts and circumstances of this case.
This writ application is, therefore, dismissed. There will be, however, no order as to costs. Urgent photostat certified copy of this order be supplied to the parties, if applied for, subject to compliance with all necessary formalities.
( Debasish Kar Gupta, J. )