Calcutta High Court (Appellete Side)
Smt. Rupali Mallick (Chatterjee) vs The State Of West Bengal & Ors on 23 June, 2010
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
1
Form No. J.(2)
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present :
The Hon'ble Mr. Justice Ashim Kumar Banerjee
And
The Hon'ble Mr. Justice Raghunath Ray
R.V.W. 40 of 2010
Smt. Rupali Mallick (Chatterjee)
-Versus-
The State of West Bengal & Ors.
In re.: C.A.N. 5553 of 2010 (Section 5)
C.A.N. 4536 of 2010 (Stay)
For the Review : Mr. Subhendu Mukherjee
Applicant Mr. Anadi Banerjee
For the State : Mr. Tapas Banerjee
For the School : Mr. Atarup Banerjee
Authority
Heard on : June 23, 2010.
Judgment on : June 23, 2010.
ASHIM KUMAR BANERJEE, J :
The application for review is delayed by 452 day.
Causes shown being sufficient, delay is condoned.
The review application is taken on record.
CAN 5553 of 2010 is disposed of by treating the same as on day's list.
2Heard Mr. Subhendu Mukherjee, learned Counsel for the review applicant, Mr. Tapas Banerjee, learned Counsel for the State and Mr. Atarup Banerjee, learned Counsel for the School Authority.
The review applicant approached the learned Single Judge for her regularization in the concerned School. According to her, the School Managing Committee appointed her in 1993. The learned Single Judge allowed her writ petition and directed regularization. Being aggrieved, the State preferred the instant appeal, which was heard by the Division Bench on December 10, 2008, presided over by one of us (Ashim Kumar Banerjee, J.) sitting with Tapas Kumar Giri, J. since retired. At the time of hearing of the appeal it was contended by the review applicant before the Division Bench that she was appointed as a temporary staff at monthly remuneration of Rs. 500/- per month with effect from May, 1993. The Division was, however, not sure whether such regular recruitment process was followed or not. The learned Counsel appearing for the review applicant is also not able to satisfy us on that score.
The review applicant contended before the Division Bench that the School was in need of a teacher as such she was given appointment by the Managing Committee. A regular post felt vacant from 1997 on the retirement of Ms. Kalpana Maity, hence, the review applicant should be regularized in the place and stead of Ms. Kalpana Maity. Pertinent to note, Ms. Kalpana retired in 1997, whereas the writ petition was filed in 2003, by that time West Bengal School Service Commission Act, 1997 had already came into force. The Division Bench observed that in 1993 the Management Rule was in force. School was obliged to obtain prior permission from the Government. Such prior permission was not obtained. The Regular Recruitment Process was not followed. The Employment Exchange was never consulted. Hence, the appointment of Smt. Rupali Mallick 3 (Chatterjee) was illegal. On the issue of regularization in a regular vacancy in 1997 the Division Bench observed, by that time the School Service Commission came into force, hence there was no scope.
The Division Bench allowed the appeal and set aside the judgment and order of the learned Single Judge. While doing so the Division Bench observed that if the School Authority wanted they would be at liberty to take service of Rupali in any leave or casual vacancy if she was otherwise eligible.
Mr. Mukherjje appearing for the review applicant contends that the review applicant has approached this Court only for correction of factual error to the extent that Rupali was never an organizing teacher and as such her regularization as organizing staff could not arise and the judgment and order of the Division Bench in the case of State of West Bengal and ors. Vs. Smritikana Maity and ors. reported in 2008(1) CLJ 316 would have no application. Such fact was not brought to the notice of the Court at the time of the disposal of the appeal.
Mr. Mukherjee further contends that the State has recently issued a circular dated April 23, 2010 wherein the casual or daily rated workers working in various posts in Government Departments, Directorates and Regional Offices for not less than 10 years should be allowed to continue as such on the terms and conditions stipulated therein.
We have considered the rival contentions on the first issue. We are of the view that although Rupali, the review applicant, was not an organizing staff, the principle enunciated in the Division Bench decision of Smritikana Maity (Supra) would have application. In the said decision the Division Bench considered the 4 principle ratio as decided in the case of Secretary, State of Karnataka Vs. Uma Devi reported in (2006) 4 SCC 1 wherein the Apex Court deprecated the attempt to regularize an irregular staff entered through backdoor illegally. In the instant case Rupali was appointed by the Managing Committee without following the prevalent recruitment rules, hence, her entry was very illegal. Be that as it may, the situation would not change even if we take note of the so-called factual error.
On the second issue we are of the view that we have already observed that the School Authority would be entitled to utilize the service of Rupali in any casual or leave vacancy if she is otherwise eligible. We are constrained to say that the circular relied on by Mr. Mukherjee would not be applicable in the instant case as the effect is restricted to Government Departments, Directorates and Regional Offices, as would appear from a plain reading of the said circular.
Let xerox copy of the said circular No. 2966-F(P) dated April 23, 2010 be kept on the record.
With these observations the review application along with the application for stay being CAN5436 of 2010 is disposed of without any order as to costs.
Urgent xerox certified copy of this order, if applied for, be given to the parties, on priority basis.
( Banerjee , J.) 5 ( Raghunath Ray, J.) akb.