Calcutta High Court (Appellete Side)
Md. Ghiasuddin Mullick vs State Of West Bengal & Ors on 17 May, 2018
Author: Arijit Banerjee
Bench: Arijit Banerjee
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
WP 4131 (W) of 2015
Md. Ghiasuddin Mullick
-Vs.-
State of West Bengal & Ors.
Coram : The Hon'ble Justice Arijit Banerjee
For the petitioner : Ms. Debasree Dhamali, Adv.
For the State : Mr. Tapan Kr. Mukherjee, Ld. Addl. Govt.
Pleader
Mr. K. M. Hossain, Adv.
Heard On : 06.04.2017, 25.04.2017, 28.07.2017,
09.08.2017
CAV On : 03.05.2018
Judgment On : 17.05.2018
Arijit Banerjee, J.:-
(1) In this writ application the petitioner challenges a memo dated 8
February, 2014 issued by the District Inspector of Schools (SE), South
24 Parganas (respondent no. 5), the operative portion whereof reads as
follows:-
"After perused through the relevant papers and documents of the said Madrasah, the undersigned is also of the opinion of not regularizing the petitioner as because the quota of organizing staff were duly fulfilled at that point of time when the Madrasah was upgraded. The liability of excess appointment of organizing staff should not be borne by the Government by paying public exchequer. In the light of the above observations, facts and circumstances the undersigned rejects the plea of the petitioner as it is against the prevailing rules and regulations at the material point of time as well as ultra vires with regards to the orders passed by Hon'ble Supreme Court of India and Hon'ble High Court of Calcutta. All concerns are being informed accordingly."
The petitioner prays for quashing of the said memo and for a direction on the respondents to absorb him in the post of assistant teacher in language group in Bishalaxmipur Puna Saha Mostania High Madrasah (in short 'the said Madrasah').
(2) The said Madrasah was recognized by the Madrasah Education Board (in short 'the Board') with effect from 1 January, 1971 with permission to teach up to Class-VIII. Subsequently, in 1975 the Management of the said Madrasah applied to the Board for its upgradation as High Madrasah. In view of the Board's refusal to grant such recognition as High Madrasah, the Management initiated legal proceedings. Ultimately, in terms of orders passed by the Court, the Secretary of the Board by his memo dated 10 December, 1991 granted provisional recognition to the said Madrasah as Class-X Madrasah, but no approval was given by the Board or the District Inspector (in short DI) of Schools with regard to the teaching and non-teaching staff of the said Madrasah. In the meantime, on 16 April, 1984 the petitioner was appointed as an assistant (organizer) teacher of the said Madrasah with effect from 1 May, 1984.
(3) In view of the authorities not granting approval in respect of the teaching and non-teaching staff of the said Madrasah in spite of granting it provisional recognition as High Madrasah, the Management of the said Madrasah filed a writ petition being CO No. 12099(W) of 1992. The writ petition was disposed of with a direction upon the Secretary of the Board to approve the newly elected Managing Committee and also with a direction on the DI of Schools to forward a copy of his report dated 25 November, 1994 as regards the functioning of the said Madrasah to the Board with comments for according approval in favour of 24 teaching and non-teaching staff of the said Madrasah (including the writ petitioner).
(4) The authorities preferred an appeal against the said order being FMAT 337 of 1994. The Hon'ble Division Bench by an order dated 9 February, 1994 directed the Board to give approval to the services of the 24 teaching and non-teaching staff of the said Madrasah including the writ petitioner.
(5) A contempt application was filed for alleged wilful violation of the Hon'ble Division Bench order dated 9 February, 1994, being CR No. 398 of 1994. At the hearing of the contempt application before the Hon'ble Division Bench, assurance was given on behalf of the authorities that provisional approval of the teaching and-non-teaching staff of the said Madrasah from their respective dates of joining would be issued. It appears that an order to that effect was also passed by the Court on 1 July, 1994.
(6) By a memo dated 5 July, 1994 the Secretary of the Board approved the appointment of 16 teaching and 3 non-teaching staff including the petitioner on a 'purely provisional basis, subject to the condition that this approval will abide by the results of the proper application to be filed and subject to further orders of the Hon'ble High Court'.
(7) The State of West Bengal assailed the Division Bench order dated 9 February, 1994 by filing a Special Leave Petition before the Hon'ble Apex Court. It appears that another Special Leave Petition was filed assailing an order dated 29 August, 1995 passed by the Hon'ble Division Bench of this Court. Special leave was granted and the said petitions were registered as Civil Appeal Nos. 4985-4896 of 1998. On 18 September, 1998 the Apex Court directed the concerned authorities to decide the matter by making any investigation as it may deem fit and proper and after giving due opportunity to the Management. The operative portion of the Apex Court's decision which is reported at (1998) 8 SCC 143 (State of West Bengal And Ors.-vs.-Nuruddin Mallick And Ors.) reads as follows:-
"30. On a perusal of the impugned order, we do not find that any consideration was given in the impugned orders on the issue in question. This apart, the High Court disposed of the main appeal on the date not fixed for the same, while disposing of the application. It seems that in the background of the anxiety of the management, in view of the various proceedings undertaken including contempt proceedings for implementing the learned Single Judge's order, the Court, instead of adverting to the question in issue, concentrated more to see the said 31 persons be approved within the specified time. As we have held above, without the statutory authority applying its mind for their approval and the impugned order not adjudicating the issue in question how could the impugned orders be sustained. The remote suggestion by the learned counsel for the respondents of mala fide also cannot stand as we do not find, firstly, any such allegation on record nor has any such person by name been impleaded as a party.
31. Finally, we accept the suggestion of the learned Senior Counsel for the respondents that in case the matter is to be decided by the authorities instead of leaving this matter for parties to go to the High Court again after such adjudication, if so advised, this matter be kept pending in this Court so that the matter may be finally decided here instead of the matter taking a long circular route again.
32. Accordingly, we direct the authorities concerned to decide the aforesaid question raised by making any inspections, as they deem fit and proper, after giving due opportunity to the management, decide the matter within four months and place its decision before this Court within three weeks thereafter, after giving a copy of the same to the management.
33. Let this case be listed after the aforesaid period for final disposal."
(8) Pursuant to the aforesaid order a memo dated 15 January, 1999 containing the findings and decision of the Secretary, School Education Department, Government of West Bengal was filed before the Apex Court.
(9) The matter came up before the Apex Court on 25 August, 1999 when the Apex Court passed an order disposing of the appeals, the operative portion whereof reads as follows:-
"Pursuant to our order dated September, 18, 1998 the concerned authorities have submitted a detailed report after inspections. The respondents as well as interveners have filed objections to the report submitted by the concerned authorities. When passing the said order dated 18.9.1998 it was considered that after receipt of reports called for, the appeals can be finally disposed. However, after hearing the learned counsel for both the parties in the light of the objections submitted by the respondents and interveners against the report, we are of the view that the matters have to be, in the first instance, heard and disposed of by the High Court.
In the circumstances and for the reasons stated in the order dated 18.9.1998 and also in this order, we set aside the orders under appeal for a limited purpose and restore the same to the file of the High Court for disposal. The High Court will look into the report filed by the concerned authorities and objections thereto filed by the respondents and the interveners. After hearing the parties the High Court will pass appropriate orders in the appeal. We make it clear that the scope of the remand is confined only to the objections filed by the respondents and the interveners.
We request the High Court to dispose of the appeals after remand preferably within a period of six months from the date of receipt of this order, if necessary by constituting a Special Bench. The parties are at liberty to approach the High Court for early hearing and for filling additional documents if necessary. Pending disposal of the matters by the High Court the status-quo as on the date will be maintained. The appeals are accordingly disposed of with no orders as to costs."
(10) Pursuant to the aforesaid order of the Apex Court, the matter was taken up by the Division Bench of this Court and was disposed of by a judgment and order dated 25 April, 2001, the operative portion whereof reads as follows:-
"The Secretary, Government of West Bengal considered the candidature of each of the candidates and after examining their qualification and eligibility he has given his finding for each of the teaching staff. We do not propose to make any comment on the individual teachers as those teachers are not before us. Therefore, any observation made by us can affect their right inter se. However, we leave it open to the teachers to make their grievances against the observations made by the Secretary, Education Department and if they are aggrieved, they can challenge the same in their individual capacity in accordance with law. No serious attempt was made by any of the counsel to impeach the finding of the Secretary with regard to the individual appointment of the teachers, except that a reference was made with regard to appointment of Sri Ghiasuddin Mallick. But Ghiasuddin Mallick was not a party before this Court. So we do not propose to make any observation on that count.
As a result of the above discussion, we are of the opinion that the sanction granted by the State Government of six teaching and one non-teaching staff is justified and beyond that the Madrasah is not entitled to any sanction of teaching and non- teaching staff. The appeal is accordingly disposed of. No order as to costs."
(11) By a resolution dated 19 September, 2006 the Management of the said Madrasah permitted the petitioner to increase his qualification so that he could be changed from Social Science Group to Language Group as was desired by him. By a memo dated 8 December, 2006, the DI of Schools (SE), South 24 Parganas permitted the petitioner to discharge his duties as an assistant teacher of the said Madrasah in Language Group in English subject, subject to enhancing his qualification to M.A (English).
(12) The petitioner obtained MA Degree in English in 2012. (13) By a letter dated 10 December, 2012 the petitioner informed the Managing Committee of the said Madrasah that he had obtained MA Degree in English. By a letter dated 11 December, 2012 the Management of the said Madrasah allowed the petitioner to discharge his duties as language group teacher in the vacant post of one Janardhan Ganguly.
(14) Subsequently, the petitioner filed a writ petition in this Court being WP 8318 (W) of 2013 claiming benefit of Government memo no. LS-542 dated 8 December, 2006 and approval of appointment as assistant teacher. By an order dated 18 November, 2013 a learned Single Judge disposed of the writ petition by directing the concerned DI of Schools to consider and dispose of the petitioner's representation by a reasoned order.
(15) Pursuant to the said order, the concerned DI of Schools issued the memo dated 8 February, 2014 which is under challenge in the present writ application.
(16) Learned Counsel for the petitioner submitted that the petitioner has not been approved as assistant teacher in the Social Science Group of the said Madrasah on the basis of GO No. 730-EDN (S) dated 20 July, 1990 issued by the Education Department, Government of West Bengal. The petitioner may not be having the requisite qualification as prescribed by the said memo. However, the petitioner was appointed on 16 April, 1984 and the memo of 1990 cannot apply to him. (17) Learned Counsel further drew my attention to memo no. 815- SE(S) dated 23 November, 1994 issued by the Education Department, Government of West Bengal, the relevant portion whereof states that no recognized non-Government aided/sponsored secondary School/Madrasah (junior high or high) in this State shall henceforth be permitted to appoint candidates with B.Com and M.Com degree to any teaching post on the strength of those degrees. He submitted that this memo demonstrates that appointment of teachers with B.Com qualification in secondary School/Madrasah was prevalent prior to 1994 and due to change in the secondary syllabus the said memo was issued. The said memo has only prospective operation. The said memo does not stand in the way of approval of the appointment of the petitioner as assistant teacher in the social science group. Learned Counsel relied on an order dated 29 December, 2014 passed by me in WP No. 34441 (W) of 2014 in support of his submission that an irregular appointment can always be regularised.
(18) Learned Counsel finally submitted that the impugned memo dated 8 February, 2014 is illegal and contrary to this Court's order dated 18 November, 2013 passed in WP 8218 (W) of 2013 wherein it was observed that the petitioner is entitled to get the benefit of the memo dated 8 December, 2006 issued by the DI of Schools and the petitioner is accordingly entitled to be approved as an assistant teacher either in English or in the social science group. (19) Learned Counsel appearing for the State submitted that in the report dated 15 January, 1999 filed by the Secretary, Department of Education before the Apex Court in Civil Appeal Nos. 4895 and 4896 of 1998, it was stated that in the social science group only two posts were available. In terms of GO No. 730 Edn (S) dated 20 July, 1990 a teacher with B.A. with History or Geography is to be taken for fitment. However, Ghiasuddin Mullick is B. Com, B.A. and did not have History or Geography as combination at graduate level. The said report was not challenged by the writ petitioner although such liberty was granted by the Division Bench by its judgment and order dated 25 April, 2001 passed in CR No. 398 of 1994 and FMAT No. 337 of 1994. (20) Learned Counsel further submitted that in the said judgment and order dated 25 April, 2001, the Division Bench observed that the sanction granted by the State Government to six teaching and one non- teaching staff was justified and beyond that the Madrasah was not entitled to any sanction of teaching and non-teaching staff. The said order of the Division Bench was not challenged by the writ petitioner and accordingly he waived his right to claim regularization and approval from 1984 when there was no sanctioned post. (21) Learned Counsel then submitted that the writ petition is barred by the principle of delay and laches. The alleged cause of action arose in 1998 and the writ petitioner first approached the Court in 2013 after a lapse of 15 years. In this connection, learned Counsel referred to the decisions in the cases of State of Jammu and Kashmir- vs.-R. K. Zalpuri & Ors., (2015) 15 SCC 602, Sundar Enterprise-vs.- State of West Bengal, (2006) 4 CHN 683 and Union of India & Ors.- vs.-Tarsem Singh, (2008) 8 SCC 648.
(22) Learned Counsel then submitted that there was no concept of organizer teacher under the West Bengal Board of Secondary Education Act, 1963 or the Rules framed thereunder, nor is there such concept under the West Bengal Board of Madrasah Education Act, 1994. The petitioner was appointed in 1984 by the Managing Committee of the said Madrasah illegally without following the Rules of 1969 and particularly Rule 28 thereof. In this connection, learned Counsel relied on the following decisions:-
(a) Manindra Nath Sinha & Ors.-vs.-The State of West Bengal & Ors.,(2006) 2 CLJ (Cal) 489.
(b) State of West Bengal & Ors.vs.-Sk. Manuruddin & Ors., (2007) 1 CHN 362.
(c) State of West Bengal & Ors.-vs.-Gopal Singh & Ors., (2008) 1 WBLR (Cal) 229.
(23) Learned Counsel finally submitted that a person appointed not having qualification on the date of initial appointment cannot seek regularization. When there are Recruitment Rules which have not been followed, subsequent enhancement of qualification will not suffice. Where a post falls vacant due to retirement of the incumbent, the Recruitment Rules in force as on the date of vacancy have to be followed by the Public Service Commission. The petitioner would be at liberty to apply when such advertisement is issued. Learned Counsel prayed for dismissal of the writ petition. (24) I have considered the rival contentions of the parties. I am unable to grant any relief to the petitioner for a number of reasons. (25) In the report dated 15 January, 1999 filed before the Apex Court by the Secretary to the Government of West Bengal, School Education Department, it was specifically stated as follows:-
"In Social Science Group the available posts are only two. In terms of G. O. No. 730 Edn (S) dated 20.07.90, the teacher with B.A. with History or Geography is to be taken for fitment. Here, Sri Abdul Sattar Molla is found with such combination but the next man, Sri Ghiasuddin Mallick is B. Com, B/A. is not having with History or Geography as combination in graduate level. Hence, he may be excluded."
This report was accepted by the Apex Court and also by the Hon'ble Division Bench of this Court in its judgment and order dated 25 April, 2001 passed in CR No. 398 of 1994 and FMAT No. 337 of 1994. The Division Bench also observed that the sanction granted by the State Government in respect of six teaching and one non-teaching staff for the said Madrasah was justified and beyond that the said Madrasah was not entitled to sanction of any other staff. The petitioner did not challenge either the said report dated 15 January, 1999 or the said judgment and order of the Hon'ble Division Bench. Hence, it is established that there was no sanctioned post when the petitioner was first appointed with effect from 1 May, 1984. Consequently, the petitioner cannot claim regularization. Further by not challenging the said report of the State Government and the said judgment and order of the Hon'ble Division Bench, the petitioner must be deemed to have waived his right to claim regularization.
(26) Secondly, when the petitioner was appointed in 1984, the West Board of Secondary Education Act, 1963 was the governing statute. It was held by a Division Bench of this Court in Manindra Nath Sinha & Ors. (supra) that under the 1963 Act and the Rules framed thereunder to achieve the object of the Act, there is no provision for appointment of any Organizing Managing Committee or Organizer Teacher. If the initial appointment is illegal according to the parent Act and the Rules framed thereunder, the Government by issuing notification cannot regularize such illegal appointment. The Division Bench referred to Rule 28 of the Management Rules framed by the State Government in exercise of power under Sec. 45 of the West Bengal Board of Secondary Education Act, 1963. Rule 28 reads as follows:-
"28. Power of the Committee-(1) In an aided institution the Committee shall, subject to the provisions of any Grant-in-aid Scheme or Pay Revision Scheme or any order or direction or guidelines issued by the State Government or the Director in connection therewith and in force for the time being, have the power.
(i) To appoint teachers and other employees on permanent basis against permanent vacancies, if available, within the sanctioned strength of teachers and other employees, approval for such appointment being thereafter sought for from the Director or any other officer authorized by him, ordinarily within a fortnight from the date of decision of the Committee;
(ii) To appoint teachers and other employees on temporary basis against permanent or temporary vacancies, if available, within the sanctioned strength of teachers and other employees, approval for such appointment being thereafter sought for from the Director or any other officer authorized by him, ordinarily within a week from the date of decision of the committee."
After referring to the said Rule, the Division Bench at paragraph 15 of the said judgment observed as follows:-
"15. According to the aforesaid provision, the Managing Committee of a school was vested with the power subject to the provision of any Grant-in-aid scheme or pay-revision scheme or any order or direction or guidelines issued by the State Government or Director and in force for the time being to appoint teachers and other employees on permanent basis against permanent vacancies if available within the sanctioned strength of teachers and other employees and approval of such appointment should be thereafter sought for from the Director or any other officer authorized by him within a specified period. Similarly, such Managing Committee had also power to appoint teachers and other employees on temporary basis against permanent or temporary vacancies within the sanctioned strength of teachers and other employees in the similar manner but in the rules no power has been given to the Managing Committee of a school to appoint any teacher or non-teaching staff beyond the sanctioned strength of teachers and other employees. In the case before us, the petitioners are claiming that before approval of the school, they were appointed by the Organizing Managing Committee of the school and as such, their appointments should be regularised after the recognition of the school. Therefore, the appointment of the petitioners, according to their own case, as so-called organizer-teacher was not in conformity with the Parent Act or the rules because they were not appointed by any Managing Committee constituted in accordance with the Act or the rules framed thereunder but by a purported Organizing Managing Committee. Although, there are several notifications issued by the Government giving instruction for approval of organizer-teachers in a school, the term "organizer-teacher" is unknown in the Parent Act or the rules. Moreover, even no instruction has been given by the Government permitting any purported Organizing Managing Committee to appoint teaching or non-teaching staff as "organizer-teachers" before a school is formally recognized. Therefore, it is apparent that the appointment of the petitioners by the Organizing Managing Committee, even if the same is true, was without any authority of law."
(27) The appointment of the petitioner was neither in accordance with the applicable Rules nor was the post in which the petitioner was appointed a sanctioned post. The petitioner was admittedly appointed as an Organizer Teacher which concept was alien to the statute that governed the field at the time of his appointment. Although, subsequently, Government notifications may have recognized the concept of 'Organizer Teacher', that in my opinion, would not confer any right on the petitioner or improve his case. In my opinion, the petitioner is not entitled to be regularized from the date of his appointment as claimed by him.
The Government memo dated 8 December, 2006 on which the petitioner relied on heavily cannot be construed to have conferred any kind of right for regularization on the petitioner. It was a memo issued by the DI of Schools (SE), South 24 Parganas to the Administrator of the said Madrasah informing the latter that the petitioner may be allowed to discharge his duties as an Assistant Teacher of the said Madrasah in language group in English subject, subject to he increasing his qualification by acquiring MA in English. The petitioner cannot claim regularization on the basis of the said memo. In this connection one may also refer to the Division Bench decision of this Court in State of West Bengal & Ors.-vs.-Gopal Singh & Ors. (supra), wherein at paragraph 12 of the reported judgment it was observed as follows:-
"(12) The Division Bench in the case of West Bengal Board of secondary Education, reported in (1997)1 WBLR 165, observed that an organising staff means a person who is involved in establishment of the organisation which requires recognition. While discussing in detail the division Bench observed that resolution of the first managing committee must feature the name of the staff who is asking for regularisation as organising staff. A person who is subsequently appointed might be called as teacher in position and has no right to claim himself as organising staff. In the instant case both the groups were appointed subsequently as appears from the documents disclosed before the learned Single Judge and produced before us through the respective paper books. One group claims that they are old staff and other group claims that others left the school in between and thereafter they joined and they are still functioning as organising staff. We do not wish to enter into such controversy. Assuming they were appointed in the unrecognised section, admittedly the school committee did not follow any norms and procedure while appointing them."
In the present case, the said Madrasah was given recognition with effect from 1 January, 1971. The petitioner was appointed with effect from 1 May, 1984. His appointment letter described his appointment as 'Organizer (Assistant) Teacher. Going by the aforesaid Division Bench decision, the petitioner could not have been appointed as Organizer Teacher after recognition of the said Madrasah. Assuming that there was a mis-description of the petitioner's appointment in the appointment letter and that he was appointed as a teacher in position, the same was done without following applicable Rules. Such appointment cannot be regularized. Appointment of teachers in a Government aided Madrasah/School must be in terms of the applicable Recruitment Rules and cannot be otherwise.
(28) Thirdly, the petitioner has approached this Court after an inordinate delay. The report of the Secretary to the Education Department, Government of West Bengal, which was filed before the Apex Court was dated 15 January, 1999. The report was to the effect that the petitioner was not entitled to regularization. The petitioner approached this Court for the first time more than 14 years later in 2013. There is no explanation as to why there was such delay. In Sundar Enterprise (supra), the Division Bench of this Court observed that though there is no specific period prescribed for moving a High Court under Art. 226 of the Constitution of India, the law is settled that the applicant should come within a reasonable period and if there is any delay, this should be explained in the writ application itself. If the Court is convinced that the petitioner was prevented by sufficient cause from approaching the Court within a reasonable time, in appropriate cases, the Court can entertain the writ petition condoning the delay.
(29) In City and Industrial Development Corporation-vs.-Dosu Aardeshir Bhiwandiwala, (2009) 1 SCC 168, the Apex Court while dilating on High Court's jurisdiction under Art. 226 of the Constitution observed that the Court while exercising its writ jurisdiction is duty bound to consider the following:-
"(a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved;
(b) the petition reveals all material facts;
(c) the petitioner has any alternative or effective remedy for the resolution of the dispute;
(d) person invoking the jurisdiction is guilty of unexplained delay and laches; (emphasis is mine).
(e) ex facie barred by any laws of limitation;
(f) grant of relief is against public policy or barred by any valid law; and host of other factors."
(30) In Karnataka Power Corporation Ltd.-vs.-K. Thangappan, (2006) 4 SCC 322, the Apex Court observed that delay or laches is one of the factors which has to be kept in mind by the High Court while exercising its discretionary powers under Art. 226 of the Constitution. In appropriate cases, the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the applicant's part to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. The High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner which is not satisfactorily explained, the High Court may decline to intervene. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its trail new injustice. If writ jurisdiction is exercised after unreasonable delay, it may cause not only hardship and inconvenience but also injustice to third parties. (31) In Chennai Metropolitan Water Supply and Sewerage Board-vs.- T.T. Murali Babu, (2014) 4 SCC 108, at paragraph 16 of the reported judgment the Apex Court observed as follows:-
"16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the Court would be under legal obligation to scrutinize whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the Court. Delay reflects inactivity and inaction on the part of a litigant - a litigant who has forgotten the basic norms, namely, "procrastination is the greatest thief of time" and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis."
(32) The aforesaid decisions were recounted and followed by the Apex Court in State of Jammu and Kashmir-vs.-R. K. Zalpuri (supra). (33) In the present case, there is no explanation at all far less satisfactory explanation, as to why the petitioner did not approach this Court until 2013 when his real cause of action arose with effect from filing of the report dated 15 January, 1999 by the Secretary to the Education Department, Government of West Bengal. (34) I cannot accept the submission made on behalf of the petitioner that the impugned memo dated 8 February, 2014 is contrary to this Court's order dated 18 November, 2013 passed in WP 8218 (W) of 2013 since by the said order this Court recognized the entitlement of the petitioner to be absorbed as a regular teacher. The sentence in the said order that learned Counsel relied upon is to the following effect -
"It appears that the writ petitioner is entitled to get the benefit of the aforesaid memo', i.e. memo dated 8 December, 2006. As I have already indicated above, the said memo does not confer any right of absorption on the petitioner. By the order dated 18 November, 2013, the learned Judge referred the matter to the concerned DI for passing a reasoned order in accordance with the relevant circulars/documents/judgments. I am unable to construe the said order as recognizing any right of the petitioner to be regularized.
(35) The petitioner has contended that he has served as a teacher at the said Madrasah for a long period of time and he should be absorbed.
I have full sympathy for the petitioner but sympathy cannot be the basis of passing a judicial order. The applicable law must be followed. In the event vacancy arises in any sanctioned teaching post at the said Madrasah, the petitioner would be entitled to participate in the recruitment process for filling up such vacancy if he is otherwise eligible to do so as per the applicable Recruitment Rules. (36) For the reasons aforesaid, this writ application fails and is dismissed. There will, however, be no order as to costs. (27) Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities.
(Arijit Banerjee)