Calcutta High Court
Dina Nath Pandey vs State Of West Bengal And Others on 27 August, 2013
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
ORDER SHEET
WP No. 825 of 2013
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
DINA NATH PANDEY
Versus
STATE OF WEST BENGAL AND OTHERS
BEFORE:
The Hon'ble JUSTICE DEBASISH KAR GUPTA
Date : 27th August, 2013.
Appearance :
Mr. Subir Sanyal, Advocate.
Mr. Sakti Pada Jana, Advocate.
... for the petitioner
Mr.Jayanta Dasgupta, Advocate.
Mr. Balaram Patra, Advocate.
... for the respdt. nos. 4 to 7.
Mr. Manas Sadhu, Advocate.
... for the State.
The Court : This writ application is filed by the petitioner
challenging the order of termination dated April 10, 2013 passed by the
respondent no.6. By virtue of the impugned order, the service of the
petitioner in a non-teaching post (temporary clerk) was terminated.
At the outset, a preliminary objection is raised by Mr. Jayanta Dasgupta, learned Advocate appearing on behalf of the respondent nos. 4, 5, 6 and 7. According to Mr. Dasgupta, the school is private school and by virtue of the impugned order, the temporary service of the petitioner 2 was terminated. As a result, according to Mr. Dasgupta, an application under Article 226 of the Constitution of India is not maintainable. It is also submitted by Mr. Dasgupta that no relief is prayed for against the State-Respondents.
On the other hand, it is submitted by Mr. Subir Sanyal, learned Advocate appearing on behalf of the petitioner, that the respondent no.3 was in seisin of the matter of approval of service of the petitioner violating the principle of natural justice as also the provisions of the Management Rules, 1969, against a permanent vacancy at the material point of time in terms of the final order dated August 3, 2012 passed in the matter of Dena Nath Pandey -vs- State of West Bengal ( In Re : WP No. 606 of 2012). According to Mr. Sanyal, the appointment of the petitioner against a permanent vacancy was approved by the respondent no.3 by an order dated June 19, 2013. According to Mr. Sanyal, the impugned order of termination has lost its importance/effect after approval of the service of the petitioner against a permanent vacancy with effect from May 3, 2006.
Having heard the learned Counsels appearing for the respective parties as also after considering the facts and circumstances of this case, I find that though the school under reference is a private school, it is a DA getting school. The provisions of Management Rules, 1969 are applicable in this case. It is not in dispute that the violation of the provisions of the Management Rules, 1969 is the ground for challenging the impugned order. I further find that the submission made by Mr. Dasgupta with regard to seeking no relief against the State- Respondents is misconceived because in the event there is any violation 3 of a statutory provision, an application under Article 226 of the Constitution of India is maintainable so far as the service of a person in a recognised and aided educational institution is concerned.
In view of the above, I find no substance on the submissions made by Mr. Dasgupta and the preliminary objection is rejected.
Let affidavit-in-opposition be filed within three weeks from date. Affidavit-in-reply thereto, if any, be filed within one week thereafter.
Let this matter appear in the Monthly Combined List of November, 2013 under the heading "For Hearing".
Upon prima facie consideration of the merits of this case, I find that the petitioner has not only made out a strong prima facie case but the balance of convenience and/or inconvenience is in favour of granting interim relief in his favour. In view of the fact that filling up of vacancy under reference during the pendency of this writ application may frustrate the ultimate decision of this proceeding, the respondents are restrained from filling up the post under reference during the pendency of this writ application.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
( DEBASISH KAR GUPTA, J.) rnc.