Calcutta High Court (Appellete Side)
Yunus Ali vs The State Of West Bengal & Others on 23 April, 2019
Author: Shekhar B. Saraf
Bench: Shekhar B. Saraf
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Shekhar B. Saraf
W.P. No. 23503 (W) of 2017
Yunus Ali
Versus
The State of West Bengal & Others
And
W.P. No. 23504 (W) of 2017
Srikumar Bhattacharjee
Versus
The State of West Bengal & Ors.
For the Petitioner : Mr. Sidhartha Banerjee, Advocate
Mr. Arunava Ganguly, Advocate
For the State :Mr. Joytosh Majumder,
Learned Government Pleader
Ms. Chaitali Bhattacharya, Advocate
Mr. Pinaki Dhole, Advocate
Mr. Avishek Prasad, Advocate
Heard on : 10.07.2018, 19.07.2018, 02.08.2018, 11.12.2018, 29.01.2019, 19.02.2019,
26.02.2019 &12.03.2019
Judgment on : 23.04.2019
Shekhar B. Saraf, J.:
1. The grievances raised and issues involved in the two writ petitions are common arising out of a common order dated 8th August, 2017, and 2 accordingly, they were heard together and are being decided conjointly. The main issue in the writ petitions is that the writ petitioners were appointed as temporary teachers and are now seeking regularization of their temporary appointments.
2. For the purpose of convenience, the facts in writ petition no. 23503 (W) of 2017 are being taken into consideration and are chronologically delineated hereinbelow:
a. By way of a resolution dated 27th January, 1987 an unanimous decision was taken by the members of the Managing Committee of the Banksimulia Group Junior High School, P.O. Pariharpur, Burdwan - 713373 (hereinafter referred to as the 'said school') and a recruitment process was undertaken for appointment of teachers in the said school.
b. A letter dated 26th March, 1987 was issued to the writ petitioner by the said school for his appointment as a temporary teacher in the said school for a period of six months.
c. Through a letter dated 19th November, 1987 by the said school to the writ petitioner it was informed that his service as a temporary teacher has been extended for six months with effect from 23rd November, 1987.
d. A writ petition bearing W.P. No. 16637(W) of 2001, was filed by the writ petitioner before this Court in order to direct the 3 concerned State authorities for the approval of the writ petitioner as an assistant teacher in the said school.
e. Through an order dated 19th October, 2001 the writ petition bearing W.P. No. 16637(W) of 2001 was disposed of directing the District Inspector of Schools to get the concerned school inspected by the District Level Inspection Team (hereinafter referred as 'the D.L.I.T') within four weeks and also to take necessary steps for approval of the service of the petitioner as an Assistant Teacher in the said school within a period a six months. It may be noted that no appeal was preferred against this order.
f. Pursuant to the order dated 19th October, 2001 an inspection was conducted by the D.L.I.T on 19th December, 2001 and report filed on 2nd May, 2002. The D.L.I.T report stated that the writ petitioner was appointed as an assistant teacher temporarily for six months on a consolidated Pay of Rs. 125/- per month with effect from 27th March, 1987 in the meeting of the then Managing Committee (Vide No.5/87, dated 21st March, 1987) against an unsanctioned post when the school was a Class IV Junior High School and all sanctioned posts of Teachers remained filled in.
g. Thereafter, the present writ petitioner, filed a contempt application bearing W.P.C.R.C. No. 11259(W) of 2003 alleging that the District Inspector of Schools (S.E.), Burdwan has failed 4 to comply with the order dated 19th October, 2001 passed by the Court.
h. On 24th September, 2004 the concerned District Inspector of schools affirmed an Affidavit-in-Opposition in the contempt proceeding bearing W.P.C.R.C. No. 11259(W) of 2003 stating that the approval of the service of the writ petitioner as the Assistant Teacher could not be complied with only for the want of information from the Principal Secretary, School Education Department, Government of West Bengal.
i. By the order dated 18th July, 2005, the contempt rule in W.P.C.R.C. No. 11259(W) of 2003 was discharged by the Court recording the submissions made by the respondents that the present District Inspector Schools would make his best endeavour to persuade the Principal Secretary, Education Department so that a decision is taken at the earliest. j. In the year 2007, the writ petitioner once again approached the Court with another writ petition bearing no. W.P. No. 15282(W) of 2007 under Article 226 of the Constitution of India as no effective measure were taken by the concerned authorities to approve the writ petitioner as an Assistant Teacher of the said school.
k. The writ petition bearing no. W.P. No. 15282(W) of 2007 was disposed of by an order dated 5th October, 2007 directing the Principal Secretary, School Education Department, Government 5 of West Bengal to consider the entire aspect of the matter in light of the earlier orders passed by the Court and to take a decision supported with reasons within six weeks.
l. The Principal Secretary, School Education Department, Government of West Bengal, after granting an opportunity of hearing to the petitioner by way of an order dated 23rd September, 2008 ruled out the scope of regularisation as prayed for by the writ petitioner after taking into account the Judgment passed by the Apex Court in Secretary, State of Karnataka & Ors. Vs. Umadevi & Ors. reported in (2006) 4 SCC 1. The findings of the Principal Secretary are relevant and are delineated below:-
"5. Upon perusing the relevant documents and considering the submission made on behalf of the petitioners and the school authority the matter is disposed of with the decision that the service of both the petitioners do not deserve regularisation. The grounds for such a decision are as follows,-
I. There was no vacant post at the relevant point of time against which the petitioners were given engagement.
II. The school authority never took prior permission for such engagement, which is mandatory in case of a recognised Government aided school.
III. It has been alleged in writ petition and consequently in the contempt petition that the case of upgradation is pending before the School Education Department with the DLIT report dated 19/12/01. But it appears from records that the school was upgraded on and from 1/5/2000 prior to the date of inspection of the DLIT dated 19/12/01 which was conducted pursuant to the order of the Hon'ble Justice Amitava Lala, as His Lordship then was.6
IV. Both the petitioners accepted the offer of engagement as "purely temporary teachers" and joined the school fully acknowledging and consenting to such conditions, which were binding upon them. As such the provision of Section 115 of the Indian Evidence Act applies in both the cases, which has stopped them from claiming any regularisation of service.
V. In terms of the provisions of West Bengal School Service Commission Act and West Bengal Schools (Control of Expenditure) Act, recruitments to all recognised and aided High Schools are to be made through the West Bengal Central School Service Commission.
VI. And last but not the least, the order of the Hon'ble Apex Court passed in the matter of Secretary State of Karnataka & ors - Vs - Uma Devi & ors, which is the law of the country [as reported in (2006) 4 SCC 1], clearly rules out any scope of such regularisation as prayed for."
m. The writ petitioner being aggrieved by the order passed by the Principal Secretary, School Education Department, Government of West Bengal once again approached the Court by way of a Writ Petition bearing No. W.P. No. 27471(W) of 2015. n. The Court by way of an order dated 5th November, 2015 disposed of the matter directing the District Inspector of Schools (SE), Burdwan to take a decision regarding approval of the writ petitioner in the post of an Assistant Teacher in the said school within a period of eight weeks. The above order, however, did not quash the order dated 23rd September, 2008 passed by the Principal Secretary.
7o. By way of a Memo No. 23/L-S dated 21st January, 2016 the District Inspector of Schools (SE), Burdwan informed the writ petitioner that no relief could be granted to him as the Principal Secretary, School Education Department, Government of West Bengal had already passed an order dated 23rd September, 2008 stating the reasons behind non appointment of the petitioner as an Assistant Teacher of the said school.
p. The writ petitioner being aggrieved by the Memo No. 23/L-S dated 21st January, 2016 filed an application bearing no. C.A.N. 1640 of 2016 in W.P. No. 27471(W) of 2015 for seeking a clarification of the order dated 5th November, 2015. The Court by an order dated 20th April, 2016 directed the District Inspector of Schools (SE), Burdwan to take a decision afresh in the matter without being influenced by the order passed by the Principal Secretary, School Education Department, Government of West Bengal dated 23rd September, 2008.
q. On 8th August, 2017 an order was passed by the District Inspector of Schools (S.E.), Burdwan wherein the prayer of the writ petitioner was not granted and thus the regularization was denied.
3. The petitioner has now filed a writ petition challenging the order dated 8th August, 2017 passed by the District Inspector of Schools (S.E.), Burdwan. It is to be noted that the writ petitioner in W.P. 23504(W) of 8 2017 is also challenging the same order dated 8th August, 2017 that had dealt with the issue of regularization of both the writ petitioners.
4. Mr. Sidhartha Banerjee learned counsel appearing on behalf of the petitioner (in both the writ petitions) submits that as the petitioner has been serving the said school for over thirty years as a temporary teacher, his case should be seen in a sympathetic manner and he should be allowed regularization and be absorbed as an Assistant Teacher in the said school. Mr. Banerjee drew the attention of the court towards the report dated 28th July, 2017 that was submitted by the Headmaster of the said school during the hearing before the District Inspector of Schools (S.E.), Burdwan. While arguing before this court, Mr. Banerjee relied on a recent Supreme Court Judgment in the matter of Amarkant Rai v. State of Bihar and Others, reported in (2015) 8 SCC 265 [Coram: V. Gopala Gowda and R. Banumathi, JJ.] wherein the court has examined the question of distinction between irregular and illegal appointment. Further, Mr. Banerjee has also relied on a Supreme Court judgement in the matter of Arun Kumar Rout and Others v. State of Bihar and Others reported in (1998) 9 SCC 71 [Coram: G.N. Ray and S.P. Bharucha] wherein the Supreme Court has allowed regularisation of the daily wage workers who were appointed in Class III and Class IV post on sympathetic grounds. 9
5. Mr. Banerjee further relied on a division bench judgment of this Court in State of West Bengal and Ors. v. Smt. Husna Banu & Ors. reported in (2010) 4 CHN 438 (CAL) (DB) wherein the court held that the principles laid down in Umadevi (supra) shall have no application in a clear case of discrimination under Article 14. He submitted that other teachers who had been appointed by the managing committee had subsequently been regularized by the State and the action of the State in not regularizing the petitioner is clearly an arbitrary and capricious act. In the writ petition, one such example of Hira Prasad Singh has been highlighted by the petitioner. He further submitted that the Managing Committee under the unamended provisions of Rule 28 of the Management of Recognized Non-Government Institutions (Aided and Unaided) Rules, 1969 had the power for confirmation of appointments that had been made on a temporary basis upon completion of continuous satisfactory service in the institution for two years. Mr. Banerjee further submitted that even though the D.L.I.T report had not been objected to by the petitioner at any point prior to this writ petition, the report was factually incorrect as would be evident from the approved staff pattern provided at page 120 of the writ petition. He submitted that the staff pattern has been provided by the headmaster of the said school as on March, 1987.
6. Mr. Joytosh Majumder, learned Government Pleader appearing for the respondent authorities submitted that the findings in the D.L.I.T report 10 dated 2nd May, 2002 clearly indicate that the petitioner was appointed as an Assistant Teacher temporarily on a consolidated pay of Rs. 125 per month while the School was a recognised Class IV Junior High School leaving no sanctioned post to be filled up. Accordingly, he submitted that appointment of the petitioner to an unsanctioned post and that too on a temporary basis did not entitle the petitioner to seek regularization. He further relied on the Supreme Court Judgment in the matter of Secretary, State of Karnataka and Others Vs. Umadevi & Ors. reported in (2006) 4 SCC 1 [Coram: Y.K. Sabharwal, C.J. and Arun Kumar, G.P. Mathur, C.K. Thakker and P.K. Balasubramanyan, JJ.], Raj Balam Prasad and Others v. State of Bihar and Others reported in (2018) 12 SCC 50 [Coram: R.K. Agrawal and Abhay Manohar Sapre, JJ.], State of Jammu and Kashmir and others v. District Bar Association, Bandipora reported in AIR (2017) SCC 11 [Coram: T.S. Thakur, C.J.I., Dr. D.Y. Chandrachud and L. Nageswara Rao, JJ.] and National Fertilizers Ltd. and Others v. Somvir Singh reported in (2006) 5 SCC 493 [Coram: S.B. Sinha and P.P. Naolekar, JJ.], to buttress his arguments that when an appointment has been made in an illegal manner, there is no scope for regularization.
7. Mr. Majumder submitted that the school was recognized as a Class IV Junior High School with effect from 1st April, 1960. He submitted that the present writ petitioner was never an organizing staff of the said 11 school at any point of time and the Secretary of the Managing Committee had given a temporary appointment to the petitioner dehors the existing rules. He submitted that there was a violation of the extant rules while giving the appointment to the petitioner. He further relied on the office memorandum dated 1st August, 1981 that lays down the entire procedure for selection of assistant teacher which clearly states that the appointments should be made with prior permission of the District Inspector of Schools (S.E.) against sanctioned post only, whether permanent or temporary. He further placed reliance on the D.L.I.T report to indicate that the petitioner was appointed to an unsanctioned post as all sanctioned post in the said school were filled up. Mr. Majumder finally submitted that the D.L.I.T report having been accepted by the petitioner and not having been challenged at any stage of the various proceedings, the findings therein are final and cannot be touched. In light of the above submissions, he submitted that the appointment of the petitioner was done in an illegal manner and to an unsanctioned post, and accordingly, the writ petition is devoid of merit and should be dismissed.
8. I have heard learned counsel for both the parties and perused the materials on record.
9. At this juncture it would be prudent to examine the Supreme Court judgments cited on behalf of both the parties on the subject issue. The 12 Constitutional Bench judgment in Umadevi (supra) has categorically deprecated the practice of regularizing temporary teachers and has also held that if an appointment was illegal, there is no scope for regularization. The relevant portion of the judgment is delineated below:
"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme."
10. In Raj Balam Prasad and Others (supra) the Apex Court has held that grant of extension to tenure based employee does not confer on them status of permanent employee and they cannot seek regularisation of their services in absence of any statutory rule recognising such right in their favour. The relevant portion of the Judgment is delineated below:
"17. This is what the Division Bench held for allowing the appeal and dismissing the Appellants' writ petition:13
"We have heard learned Counsel for the parties and find that the order passed by the learned Single Judge is not sustainable in law. The order passed in LPA No. 434 of 2001 dated 28th of July 2008 was not brought to the notice of the learned Single Judge. It is further contended that even if the order dated 10.10.2006 was not have set aside, the fact remains that such order of regularization could not have been passed since the services of the Muharrir have come to an end in 1991 itself. The permanent status could be conferred to those who were in service and not to those whose service had come to an end many years ago. Such an order could not be made basis of permanent status through the writ court. Such order dated 10.10.2006 is not enforceable in law. The representation having been declined in the light of the circular dated 16.04.2008, we do not find that the writ Petitioners was entitled to any direction to treat them as regular employees."
18. We agree with the reasoning of the Division Bench quoted supra.
19. In our opinion also, when the appointment of the Appellants (writ Petitioners) was made for a fixed period in exercise of the powers under Rule 57-A and the said appointment period having come to an end in the year 1991 after granting some extension, we fail to appreciate as to how the Appellants could claim to remain in service after 1991.
20. One cannot dispute that the State has the power to appoint persons for a temporary period under the Act and Rules framed there under and once such power was exercised by the State, the status of such appointee continued to be that of temporary employee notwithstanding grant of some extensions to them for some more period.
21. In other words, the grant of extension to work for some more period to the writ Petitioners could never result in conferring on them the status of a permanent employee or/and nor could enable them to seek regularization in the services unless some Rule had recognized any such right in their favour.
22. That apart, when the period fixed in the appointment orders expired in the year 1991 then there was no scope for the Appellants to have claimed continuity in service for want of any extension order in that behalf.
23. We have perused the Circular dated 16.04.2008 (Annexure P-7) issued by the State. This Circular only says that if any temporary persons are appointed for a particular project and if they are found to be of some utility, their services can be regularized as per Rules."
11. In District Bar Association, Bandipora (supra) the Apex Court has further discussed the issue of 'illegal' and 'irregular' appointment. The relevant paragraph of the judgment is delineated below: 14
"10. The third aspect of Umadevi which bears notice is the distinction between an "irregular" and "illegal" appointment. While answering the question of whether an appointment is irregular or illegal, the Court would have to enquire as to whether the appointment process adopted was tainted by the vice of non-adherence to an essential prerequisite or is liable to be faulted on account of the lack of a fair process of recruitment. There may be varied circumstances in which an ad hoc or temporary appointment may be made. The power of the employer to make a temporary appointment, if the exigencies of the situation so demand, cannot be disputed. The exercise of power however stands vitiated if it is found that the exercise undertaken (a) was not in the exigencies of administration; or (b) where the procedure adopted was violative of Articles 14 and 16 of the Constitution; and/or (c) where the recruitment process was overridden by the vice of nepotism, bias or mala fides. If the appointment process is not vitiated by any of the above faults, can it be said that appointments made as an outcome of such an exercise cannot be regularised under a scheme framed in that regard by the employer? This is particularly when the employer himself proceeds to frame a scheme to bring these employees within the protective umbrella of regular service without the intervention or command of a court direction. This is the issue to which we turn. We propose to analyse the precedents before formulating the principles."
12. In Somvir Singh (supra) the Supreme Court held that just because someone has held an illegal post for a long period of time, the same cannot give rise to a right for regularization. The relevant portion of the judgment is delineated below:
"23. The contention of the learned counsel appearing on behalf of the respondents that the appointments were irregular and illegal, cannot be accepted for more than one reason. They were appointed only on the basis of their applications. The recruitment 15 rules were not followed. Even the Selection Committee had not been properly constituted. In view of the ban on employment, no recruitment was permissible in law. The reservation policy adopted by the appellant has not been maintained. Even cases of minorities has not been due consideration.
***
25. Judged by the standards laid down by this Court in the aforementioned decisions, the appointments of the respondents are illegal. They do not, thus, have any legal right to continue in service.
26. It is true that the respondents had been working for long period of time. It may also be true that they had not been paid wages on a regular scale of pay. But, they did not hold any post. They were, therefore, not entitled to be paid salary on a regular scale of pay. Furthermore, only because the respondents have worked hard for some time, they same by itself would not be a ground for directing regularization of services in view of the decision of this Court in Umadevi (3) [(2006) 4 SCC 1]."
13. In light of the above Supreme Court judgments, it is clear that regularization is not a source of recruitment nor is it intended to confer permanency upon appointments which have been made without following the due process envisaged by Articles 14 and 16 of the Constitution of India. Furthermore, it is axiomatic that only irregular appointments could have been regularized. Umadevi (supra) clearly made the distinction between illegal and irregular appointments, that has subsequently been followed and further clarified in Raj Balam 16 Prasad and Others (supra), District Bar Association, Bandipora (supra) and Somvir Singh (supra).
14. With regards to the judgment of Amarkant Rai (Supra) it is to be noted that the Supreme Court has looked into the peculiar circumstances of the case therein, where a resolution was passed by the State Government stating that the employees working up to 10th May, 1986 were to be adjusted against vacancies arising in future. The Supreme Court, accordingly, held that in light of the various communications that were made by the State Government and also the Human Resource Development Department it was clear that the State Government issued orders to regularize the services of the employees who worked up to 10th May, 1986. In the present case, such is not the case. Neither the State of West Bengal nor any other department of the government had issued any such resolution or made any such communication in terms of regularizing the services of the temporary teachers to an unsanctioned post. Accordingly, the Supreme Court judgment in Amarkant Rai (Supra) is clearly distinguishable in the facts and circumstances of the present case.
15. In Arun Kumar Rout (Supra) the Supreme Court had looked into the facts of the case therein and held that the appointment was made against the sanctioned posts and taking this into consideration the Supreme Court had allowed such appointment on sympathetic and 17 humane grounds, specially mentioning that this order is confined to the special facts of the case and not to be treated as a precedent. In the present case, the appointment of the writ petitioner as a temporary teacher was made by the school authority to an unsanctioned post. Hence, the facts and circumstances of the present matter is clearly distinguishable from the case of Arun Kumar Rout (Supra) where the writ petitioner therein had been appointed to a sanctioned post.
16. In Smt. Husna Banu (supra) the division bench of the Calcutta High Court had held that when the action of the State in not regularizing a person is arbitrary and against principles established in law then Umadevi (supra) shall have no application. The division bench had distinguished the judgment of Umadevi (supra) and held that persons who have been treated in an arbitrary manner against the principles enunciated in Article 14 of the Constitution of India shall have the right to be regularized irrespective of the fact that their appointments were illegal. One cannot join issue with the above proposition laid down by the division bench of this Court. However, it is to be noted that this judgment is an exception to the rule and would come into play only in cases where there is a clear cut act of arbitrariness on behalf of the State authorities. In the present case, the petitioner has pointed out that one Hira Prasad Singh has been regularized. On examination it is noted that there is nothing on record to show that Hira Prasad Singh had been appointed in an illegal manner. Furthermore, it is clear that Hira Prasad Singh was appointed to a 18 permanent post as would be evident from the records. In view of the same, comparing the example of Hira Prasad Singh with that of the petitioner amounts to a comparison between apples and oranges. Accordingly, I am of the view that the judgment in Smt. Husna Banu (supra) is of no help to the petitioner as the factual requirement of proving arbitrariness has not been satisfied by the petitioner in the present case.
17. It is trite law that for a Writ of Mandamus to be issued, the writ petitioner is required to show before the Writ Court that he has a legally enforceable right. In the absence of the same, the Writ Court cannot and should not issue a Writ of Mandamus in favour of such a petitioner. In the present case, there is no doubt that the writ petitioner has been working over thirty years in the said school as a temporary teacher. However, just because the said school has appointed the writ petitioner as a teacher on a temporary post creating a contractual relationship with the school authority, the same does not give rise to a right to the writ petitioner to claim regularization. The case cited by the respondent authorities of Umadevi (supra) categorically declares that illegal appointments cannot be regularized. It is only in the cases of irregular appointments that the court had allowed regularization to take place within six months of passing of the judgment. In the present writ petition, the appointment of the writ petitioner as a temporary teacher was made in the year 1987 and 19 considering the report dated 2nd May, 2002 submitted by the D.L.I.T which stated that the writ petitioner was appointed as an assistant teacher temporarily for six months against an unsanctioned post and all sanctioned posts of the teachers remained filled in, the appointment of the writ petitioner as a temporary teacher in the said school was not merely irregular but palpably illegal.
18. Furthermore, it is crystal clear that the writ petitioner was never appointed to a sanctioned post. In fact, at the time of his appointment there were no sanctioned posts available to be filled in. The findings of the D.L.I.T report that was submitted before this High Court in the contempt proceedings have neither been objected to by the petitioner nor was an exception to the report filed by the petitioner. Keeping that in mind, the findings in the said report are to be taken as the final word with regard to the sanctioned post available and with regard to the temporary appointment of the petitioner. The report of the school dated 28th July, 2017 itself states that records are not available for the concerned period. In light of the same, the report dated 28th July, 2017 cannot be relied upon as the same are not based on records and is accordingly rejected by me.
19. Mr. Banerjee, appearing for the petitioners has argued that even though the petitioner was appointed as a temporary teacher, the fact that there were sanctioned post available in the school, and therefore, 20 the appointment of the petitioner cannot be termed as illegal. This argument is premised on the fact that sanctioned posts were available in the school on the date of appointment of the petitioner as a temporary teacher. As pointed out in paragraphs 17 and 18 hereinabove, I have rejected the report dated 28th July, 2017 issued by the headmaster and held that the D.L.I.T report is the primary report that clearly state that no sanctioned posts were available on the date of appointment of the petitioner. Accordingly, this argument holds no water. For the sake of argument, if one were to accept the report of the headmaster that sanctioned posts were vacant, even then I am unable to agree with this argument as the judgment in Umadevi (supra) does not give any automatic rights to a person appointed as a temporary teacher for regularization just because sanctioned posts were available on the date of the petitioner's temporary appointment. Furthermore, the Supreme Court in District Bar Association, Bandipora (supra) has laid down the ratio that an appointment process tainted by the vice of nonadherence to an essential prerequisite would qualify as an illegal appointment. The principles laid down in District Bar Association, Bandipora (supra) were followed in Somvir Singh (supra) wherein the Supreme Court held that an appointment wherein the recruitment rules were not followed cannot give rise to a legal appointment and the same would be treated as illegal. In the present case, the petitioner has not been able to show as to how the rules and regulations prescribed under memo dated 1st August, 1981 were complied with by the school with regard to the appointment of the 21 petitioner. As it is evident from memo dated 1st August, 1981, the school was required to take prior permission of the District Inspector of Schools (S.E.) against sanctioned posts only, whether permanent or temporary, before embarking on a procedure for selection of assistant teacher. In the present case of the petitioner, the said school obviously did not take such prior permission and the non compliance of the rules and regulations clearly makes the appointment of the petitioner (as a temporary teacher) an illegal appointment.
20. In light of the above findings and the law established by the Supreme Court, I am of the view that the petitioner was neither appointed to a sanctioned post nor his appointment to a temporary post was a legal appointment. This being the position, I find no legally enforceable right available to the writ petitioner and therefore, hold that no writ of mandamus can be issued in his favour. The next limb of the argument of the petitioner that the petitioner has worked for over thirty years and accordingly the period of work entitles him to a sympathetic appointment is also rejected by me as the same itself would not be a ground for directing regularization of services as categorically held by the Apex Court in Somvir Singh (supra). The last limb of the argument of the petitioner that similarly situated persons have been regularized by the State and the State has acted in an arbitrary and capricious manner in rejecting his application is not borne from the facts as dealt by me in paragraph 16 hereinbefore. Mere allegations of 22 arbitrariness are not sufficient unless the same is proved with concrete material. Unfortunately for the petitioner, no concrete evidence has been provided by the petitioner to prove that any arbitrariness exists in the present case. Furthermore, the example of Hira Prasad Singh is not an appropriate example as that person was appointed in a permanent post following the correct procedure for appointment. In light of the above, I uphold the order dated 8th August, 2017 passed by the District Inspector of Schools (S.E.), Burdwan and see no reason to interfere with the same.
21. As an epilogue, I am summarising the principles that emerge in relation to the issue of regularization as follows:
A. The constitutional bench judgment in Umadevi (Supra) categorically deprecated the practice of regularizing the temporary teachers. As an one time measure, the Apex Court allowed regularization of temporary employees within a period of six months from the date of the judgment.
B. Umadevi's (Supra) judgment made it clear that the temporary appointments to be regularized within six months of the judgment would only be applicable to irregular appointments and would not apply to illegal appointments.
C. If an appointment is a temporary appointment, the employee cannot seek regularization in absence of any statutory rule recognising such right in his favour.23
D. Nonadherence to an essential prerequisite in the appointment process would amount to the appointment being an illegal appointment.
E. The factum of an employee having worked for a very long time as a temporary employee cannot be a ground for directing regularization of his services if the appointment of such an employee was illegal. F. If an employee is neither appointed to a sanctioned post nor his appointment to a temporary post was a legal appointment then such appointment cannot be regularized.
G. Only in exceptional circumstances where the employee is able to prove arbitrariness and identify that the State has resorted to a pick and choose policy with similarly situated employees, the court may grant a relief based on Article 14 of the Constitution of India.
22. The above judgment would also apply to the second writ petitioner in writ petition no. W.P. 23504 (W) of 2017 and accordingly, writ petitions bearing no. W. P. 23503 (W) of 2017 and W. P. 23504 (W) of 2017 are dismissed without any order as to costs.
23. It is made clear that the employment the writ petitioners are enjoying currently are not affected by this judgment in any manner whatsoever as the same are temporary appointments given by the concerned school authority.
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24. Urgent photostat certified copy of this order, if applied for, should be made available to the parties upon compliance with the requisite formalities.
(Shekhar B. Saraf, J.)