Calcutta High Court (Appellete Side)
Swapan Kumar Bhunia vs The State Of West Bengal & Ors on 4 February, 2020
Author: Ravi Krishan Kapur
Bench: Ravi Krishan Kapur
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
BEFORE:
The Hon'ble Mr. Justice Ravi Krishan Kapur
W.P. NO.7266 (W) of 2014
Swapan Kumar Bhunia
-vs-
The State of West Bengal & Ors.
For the petitioner : Mr. Kanailal Samanta
For the State : Mr. Jaharlal De
Mrs. Debarati Sen (Bose)
Heard on : 11.12.2019
Judgment on : 04.02.2020
Ravi Krishan Kapur, J.:
1. The petitioner assails an order dated 7 February, 2014 being Memo 44-L (4) passed by the District Inspector of Schools (S.E) Purba Medinipur, inter alia, rejecting the representation of the petitioner for a higher scale of pay.
2. The brief facts of the case are as follows:
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(a) The petitioner passed the B.Sc (Bachelor of Science) Examination in Biology in 1984. He then completed his M.Sc (Master of Science) in Anthropology in 1990 and thereafter completed his P.G.B.T (Post Graduate Basic Training) in the year 1994.
(b) On 7 June, 1995 the petitioner was appointed as an Assistant Teacher in Work Education and Physical Education in the Ranichak Deshapran High School, District- Paschim Medinipur. This appointment was made following the Old Recruitment Rules and was approved by the District Inspector of Schools (S.E) vide Memo No.247-S dated 18 January, 1996. It was on the basis of this Memo that the petitioner was drawing the pass graduate scale of pay since his date of joining.
(c) Subsequently, the petitioner appeared for the selection test for recruitment of teachers conducted by the West Bengal School Service Commission. Upon being selected, the petitioner was appointed as an Assistant Teacher in the Work Education and Physical Education Group in the Changrachak Jagadish Smriti Vidyapith, Purba Medinipur with effect from 12 December, 2000.
(d) Such appointment had been approved by the District Inspector of Schools (S.E) vide Memo No.68/S dated 16 January, 2001. In the approval letter, the petitioner's qualification was recorded as B.Sc, PGBT and the scale of pay designated was pass graduate category i.e. Rs.4,650/- to Rs.10,175/-. Accordingly, the petitioner was drawing this scale of pay since joining the school.3
3. It is alleged by the petitioner that he is entitled to a higher scale of pay since the school authorities had permitted him to teach Anthropology in the Higher Secondary Department from the academic session 2002-03. The petitioner relies on a communication dated 9 September, 2002 issued by the West Bengal Higher Secondary Education, inter alia, granting permission to the Headmaster of the school to teach Anthropology from 2002-03 and further permitting the school to increase the number of students. The petitioner also relies on a resolution dated 8 August, 2003 for shifting the petitioner from the normal section to the High Secondary Section after submitting all the papers with the District Inspector of School (S.E). The petitioner also relies on a communication dated 10 January, 2005 issued by the District Inspector of Schools permitting the transfer of the petitioner from the normal section to the High Secondary Section in terms of the government order dated 6 December, 1994. In this background, the petitioner has made a demand for post graduate scale of pay. In an earlier writ petition, being WP No.7731 (W) 2013, by an order dated 2 September, 2013 a Learned Single Judge had directed the District Inspector of Schools to consider the representation of the petitioner for post facto approval of the appointment of the petitioner in the Higher Secondary Section of the Changrachak Jagdish Smriti Vidyapith, Purba Medinipur as an Assistant Teacher in Anthropology and also to extend the benefit of post graduate scale of pay in his favour.
4. Pursuant to the said order and in terms thereof, the District Inspector of Schools (SE) had on 7th February, 2014, considered the representation 4 of the petitioner and has rejected the same by a speaking order on the following grounds:
(i) The District Inspector, in passing the impugned order, had taken into account the law which was in force and prevailing at the material point of time i.e. post April 1997.
(ii) The District Inspector, in passing the impugned order, has come to a finding that the transfer/conversion of post from normal section to Higher Secondary Section was not an order because as per the existing Rules at the material point of time, the School Service Commission was the Appropriate Authority for recruitment of a teacher in any vacant/newly created post. Accordingly, the School Authorities were required to send the vacancy for a newly created post in Anthropology to the District Inspector of Schools for onward transmission to the School Service Commission for filling up the said post. However, the School Authorities did not act in terms of the prevalent law and practice and relied on an outdated and stale Notification dated 6 December, 1994 bearing government Order No.865 (SE).
(iii) It further appears from paragraph 5 of the impugned order, that the petitioner was placed in the Work Education and Physical Education Group in the normal section and his post has not been converted from the normal section to the High Secondary Section of the school till date. Hence, the petitioner was treated as a teacher in the Work Education and Physical Education group instead of a teacher in Anthropology in the Higher Secondary Section of the school. In view of the 5 aforesaid, by the impugned order, the prayer of the petitioner for a higher scale of pay was rejected by the District Inspector of Schools.
5. Counsel on behalf of the petitioner contended that the impugned order is erroneous and is liable to be set aside. He submitted that, the petitioner is entitled to conversion of his post as would be evident from Memo no.49/S dated 10 January, 2005. He submitted that the conversion of the post of the petitioner could not be reviewed after a long passage of time. He submitted that, the Memo on which he had placed reliance could not be assailed in this manner without the same being cancelled or withdrawn by the District Inspector of schools. He placed reliance on Section 10 of West Bengal School Service Commission Act 1997 to contend that the terms and conditions of the service of the petitioner could not be varied in a manner disadvantageous to the petitioner. He placed reliance on, the Memo dated 10 January, 2005 being Memo No 49- S and the G.O. dated 6 December, 1994 to contend that the same was still in force at the material point of time. He submitted that, the Government would be financially benefited if the post of the petitioner was converted as the petitioner would take the classes of two subjects i.e. Work Education in the Normal Section and Anthropology in Higher Secondary Section. Thus, one teacher would carry out the function of two teachers. He submitted that the petitioner was taking classes in Anthropology since 2003 without any financial benefits and the principles of natural justice would be violated if he was not paid in accordance with the post graduate scale of pay since 2003.
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6. Counsel on behalf of the respondent nos.1 to 3 contended that in view of the provisions of the West Bengal School Service Commission Act 1997, the petitioner was not entitled to a higher scale of pay and the impugned order had been justifiably and lawfully passed in the facts and circumstances of the case. He placed reliance on Section 7 and Section 9 of the said Act to contend that after the promulgation and introduction of the said Act, the rights of the petitioner have to be determined in terms of the said Act. He further contended that the impugned order was passed taking into account the law prevailing at the material point of time. He submitted that the permission granted to teach Anthropology was much after the petitioner had joined the school in the year 2000 in the normal section. He submitted that the post of an Anthropology teacher could not be filled through the backdoor as has been sought to be done in the instant case. He submitted that neither the School Authorities nor the District Inspector of Schools had any authority to take steps for shifting a teacher from the Normal Section to the Higher Secondary Section and the appointment of the petitioner to teach Anthropology was a temporary measure till the same had been filled up by the School Service Commission. He submitted that the petitioner having been appointed in the year 2000 on the recommendation of the West Bengal School Service Commission in the pass category long after the promulgation of the School Service Commission Act 1997 he could not be granted a post graduate scale having secured an M.Sc in the year 1990. He further placed reliance on the decisions reported in (2008) 2 CHN 1973 (Tarak Chandra Roy Vs. State of West Bengal) and in State of West Bengal Vs. Saidullah reported 7 in (2008) 2 CHN 234 to justify the impugned order. Accordingly, it was submitted on behalf of the respondents that the instant writ petition was liable to be dismissed and the impugned order called for no interference at all.
7. I have considered the rival submissions of the parties as well as the pleadings filed on their behalf.
8. It is now well settled that where an appointment is made in violation of the mandatory provisions of the West Bengal School Service Commission Act 1997 and ignoring the prescribed requirements, such an appointment is non est in law. The impugned order has taken into account the prevalent and relevant law in force existing at the material point of time. In passing the impugned order, there are sufficient and adequate reasons provided for by the District Inspector which have been spelt out hereinbefore.
9. As a proposition of law, "regularization cannot give permanence to an employee whose services are ad - hoc in nature" (A. Umarani Vs Registrar, Cooperative Societies and Ors. reported in (2004) 7SCC 112). Moreover, regularization is not a source of recruitment nor is it intended to confer permanency upon an appointment which has been made without following due process of law. It is well settled in such matters that "those who come by the backdoor should only go by the same" (State of U.P. Vs. Law Association reported in (1994) 2 SCC 204. As a matter of law, no vested right can be created in a temporary employment. As has been reiterated in Secretary, State of Karnataka and Others Vs Umadevi, (2006) 8 4 SCC 1 where it was held that " it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing this, it will be creating another mode of public appointment which is not permissible". In passing the impugned order, the District Inspector of Schools has taken into account the particular facts and circumstances of the case and has concluded that the reliance placed on the Government Order No. 865 (SE) dated 6 December, 1994 was misplaced and unfounded. The District Inspector of Schools has further come to a conclusion that the permission of transferring/conversion of the post from the Normal Section to the Higher Secondary Section was not in order because as per the existing Rules at the material point of time, the School Service Commission was the appropriate and the only Authority for recruitment of teachers in any retired vacancy/newly created posts. Thus, it was the duty and obligation of the School Authorities to send the vacancy for the newly created post in Anthropology to the District Inspector of Schools (S.E) for onward transmission to the School Service Commission for filling up the said vacant post. However, in the instant case the School Authorities have not followed the prescribed mandatory procedure.
10. All the actions of the School Authorities are found to have taken place against the existing Circulars and the law prevalent at the particular point of time. Another fact which has weighed with the District Inspector of Schools in passing the impugned order was that, the School Authorities 9 had not converted the post of the petitioner from the normal section to the Higher Secondary Section of the School as on date. Accordingly, I am of the view that the impugned order is a well reasoned order and does not warrant any interference whatsoever.
11. The other grounds urged by the petitioner are without any merit and have no substance at all. I find no merit in the submission of the petitioner that there has been any violation of the principles of natural justice in any manner whatsoever. I do not find that Section 10 of the West Bengal School Service Commission Act 1997 has any application to the facts of the instant case or protects the rights of the petitioner in any manner whatsoever. I reiterate that the case of the petitioner has been well considered in the impugned order and the District Inspector in passing the same had applied the law prevailing at the material point of time. Accordingly, there is no merit in the petition and the same is dismissed. However, there will be no order as to costs.
12. Urgent certified photostat copies of this judgment, if applied for, be supplied to the parties upon compliance of all requisite formalities.
(Ravi Krishan Kapur, J.)