State of West Bengal
& Ors. Vs. Banibrata Ghosh & Ors. [2009] INSC 197 (2 February 2009)
Judgment
"REPORTABLE"
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 559 OF 2009 (Arising out
of SLP(C) No. 25130 of 2007) State of West Bengal & Ors. .... Appellants
Versus Banibrata Ghosh & Ors. .... Respondents
V.S. SIRPURKAR, J.
1.
Leave
granted.
2.
State
of West Bengal has come up against the judgment of the Division Bench of the
High Court allowing the appeal filed by the respondent no.1 herein and
directing the State to treat the respondent no.1 as an approved Assistant
Teacher of the concerned school and further to allow the respondent no.1 to
resume his duties as an approved Assistant Teacher of the concerned school
immediately. The High Court has further directed the authorities to pay 50% of
the back-wages for the period the 2 said respondent was out of service. It is
further ordered that the respondent would also be entitled to receive all other
admissible service benefits as a duly approved Assistant Teacher of the
concerned school pursuant to the order of approval. Thereby, the High Court
allowed the appeal filed against the judgment of the learned Single Judge of
that court who had dismissed the Writ Petition filed by the respondent no.1. In
his Writ Petition the respondent no.1 had sought for a writ of mandamus for
regularization of his appointment as a Teacher in Shimulia High School in the
State of West Bengal.
3.
The
following facts would clarify the controversy.
4.
There
is a school called Shimulia High School at Krishnanagar, District Nadia, West
Bengal. A leave vacancy occurred in the post of Assistant Teacher (Bio
Science), as the permanent teacher went on leave for six months initially. As
per the Rules of the Government, the Managing Committee decided to fill up the
said leave vacancy and for that purpose, obtained permission from the District
Inspector of Schools, Secondary Education, Nadia. An advertisement came to be
published on 11.12.1990 inviting applications from the eligible candidates. In
pursuance thereto, the respondent no.1 applied with other candidates and the panel
was ultimately prepared empanelling three candidates wherein the respondent
no.1 was at the first position. The same panel was forwarded to District
Inspector of Schools, Nadia who approved the said panel on 18.1.1991. On
23.1.1991, the respondent no.1 came to be appointed on temporary basis in the
said 3 leave vacancy for a period of six months from 24.1.1991 to 2.7.1991.
His appointment was later on approved by the concerned District Inspector by
his order dated 14.2.1991. Eventually, the said leave vacancy continued for
more than six months and as a result, the respondent continued to work. His
services were extended from 3.7.1991 to 31.12.1991 and this extension was also
approved by the District Inspector of Schools. After the tenure of service ended
on 31.12.1991 for some explicable reasons, the respondent no.1's appointment
was extended from 2.1.1992 to 31.3.1992.
However, this
extension was not approved by the District Inspector of Schools, instead
District Inspector of Schools requested the school to take fresh steps to fill
in the said vacancy. A fresh advertisement was, therefore, published on
23.2.1992. The respondent no.1 applied and was again selected and he was thus
given appointment on the previous terms for a period from 3.4.1992 to 30.6.1992.
On 3.7.1992, the original incumbent on the post who had gone on leave and in
whose place the respondent was appointed resigned and as a result, a
substantive vacancy arose in the permanent sanctioned post of Assistant Teacher
in Bio Science group. A representation came to be made by the respondent no.1
on 14.8.1992 that since he had worked in the school as Assistant Teacher on and
from 24.1.1991 to 30.7.1992 on adhoc basis and since the original incumbent of
the post one Shri Shanker Biswas had submitted his resignation, the services of
the respondent no.1 should be regularized. A Writ Petition came to be filed by
him on 25.8.1992 registered as CO No.18711 (W) of 1992. Amongst other prayers,
the respondent no.1 herein 4 sought his absorption and regularization in the
permanent vacancy with effect from his appointment and also sought an
injunction against the appellants herein restraining them from proceeding in
any way, in filling up the said vacancy.
5.
On
15.12.1992, when the Writ Petition came up before the learned Single Judge of
the Calcutta High Court, an interim order was passed directing the District
Inspector of Schools to regularize the appointment of respondent no.1 by
15.1.1993 and also to submit a report about the regularization by 22.1.1993.
Since this interim order was not complied with, the respondent no.1 filed an
application for initiating contempt proceedings on 16.2.1993. Learned Single
Judge directed the District Inspector of Schools, Nadia, namely, Ranjit Kumar
Ghosh to appear in person on 2.7.1993 at 10.30 and to show cause why contempt
proceedings should not be drawn against him for the alleged violation of the
court's order dated 15.12.1992 and that he should not leave the court without
permission. It is worthwhile to mention that when the interim order was passed
by the court, the Learned Single Judge merely recorded that the petitioner had
served the copy of the Writ application upon the present appellants and yet
nobody had appeared on behalf of the Government.
Thus, the interim
order came to be passed in the absence of any representation to the appellants
herein. In the teeth of the contempt proceedings, the approval was accorded on
15.10.1993 w.e.f. from 4.1.1993 and then the respondent continued to serve
merrily on the basis of the orders passed.
6.
Ultimately
after 10 years, the Writ Petition came up for hearing before the learned Single
Judge of that court who posed himself a right question as to whether the
approval granted in terms of the interim order should or should not be
retained. The Learned Judge also posed a further question as to whether the
respondent was entitled to any such interim order at all to begin with. The
learned Single Judge then went on to hold that the respondent no.1 was
appointed only against the leave vacancy and was not selected against a
permanent vacancy complying with the Rules for the selection of such permanent
post. The Learned Single Judge further took the view that there was no rule,
atleast brought to his notice suggesting that a person selected against a leave
vacancy should be treated as an appointee against a regular vacancy and further
should be entitled for the approval as such. The Learned Single Judge treated
the appointment of the respondent no.1 as adhoc appointment who was not
entitled for the grant of permanent status or as the case may be, approval for
a permanent appointment. In that view of the matter, the Learned Single Judge
dismissed the Writ Petition holding that the petitioner in the writ petition
had no right whatsoever for permanency. The learned Single Judge also found
that no such interim order could have been given by his predecessor which was
in the nature of a final order. Even noting that the petitioner in the writ
petition and the respondent no.1 herein was in the post and serving for 10
years, the learned Single Judge refused to entertain the petition.
7.
A
Writ Appeal came to be filed against this judgment which came to be allowed by
the Division Bench. The said Division Bench judgment has now fallen for our
consideration.
8.
Shri
Bhaskar P. Gupta, Learned Senior Counsel, appearing on behalf of the
appellants, firstly urged that the Division Bench, which allowed the Appeal,
had posed itself an incorrect question and completely missed the real
controversy involved. According to the Learned Senior Counsel, there could be
no dispute that the approval, which was granted by the Director of Education by
his order dated 13.8.1993 was in pursuance of the interim order passed by the
Learned Single Judge on 16.7.1993. If that was so, it was clear that it was not
the final approval, as the said approval was for a vacancy, which was
admittedly not a clear vacancy, as it was a leave vacancy. According to the
Learned Senior Counsel, it is also to be seen that the Learned Single Judge had
not disposed of the Writ Petition, therefore, the said order could not have
been treated as a final relief.
Under such
circumstances, the Division Bench could not have tested the propriety of the
Learned Single Judge (Hon. Barin Ghosh, J.), who finally decided the petition.
According to the Learned Counsel, there was nothing wrong in finally deciding
upon the petition. Therefore, the Division Bench should have firstly tested as
to whether the final judgment, disposing of the petition, was correctly decided
or not, instead of addressing itself to a question whether the Learned Single
Judge should have considered ultimate effect of the interim order. The Learned
Counsel also invited our attention to the Recruitment Rules reflected in the Office
Memorandum No 7 2816(17) G.A. dated 4.12.1989 issued by the Director of School
Education, Government of West Bengal, to suggest that there are different
procedures for filling up of leave vacancy and permanent vacancy.
9.
Shri
Bijan Kumar Ghosh, Learned Counsel, appearing on behalf of the respondents,
however, submitted that the original Writ Petitioner (respondent herein) was
undoubtedly, appointed after a full-fledged advertisement, not once, but twice.
He also had the necessary qualification and in fact, during long pendency of 10
years of the Writ Petition, he was also chosen and sent for doing his B.Ed.
Course and thus, had bettered his qualification, which was a proper
qualification for the post of Assistant Teacher. Under such circumstances,
since the petition pended, not for the fault on the part of the respondents,
the Learned Single Judge (Hon. Barin Ghosh, J.) should have allowed the
petition, instead of tinkering with the interim order passed by the Learned
Single Judge (Hon. D.K. Basu, J.) earlier. As an alternative argument, Learned
Counsel argued that it will be of no use now to send back the teacher, who is
not only a qualified teacher, but has an experience of 10 years, and that would
ruin the respondent financially and he would be thrown in the ditch of
unemployment.
10.
We
have carefully seen the Division Bench Judgment and are unable to agree with
the same. Very strangely, the Division Bench has expressed:- "Even after
the aforesaid regularization of the service of the appellant/Writ petitioner,
pursuant to the earlier interim order 8 passed by this Hon'ble Court, Learned
Single Judge, while deciding the Writ petition finally again considered the
issue relating to regularization of the service of the said appellant/Writ
Petitioner and quashed the approval already granted to the appellant/Writ
Petitioner and further directed the school authorities to fill up the permanent
vacancy in accordance with law. It is true that the service of the Writ
Petitioner was approved pursuant to the earlier interim order passed by this
Court but the competent authority of the State Government including the
Director of School Education and the District Inspector of Schools concerned
did not challenge the said interim order......" (Emphasis supplied) The
Division Bench further posed itself a question:
"... it is now
to be decided whether the Learned Single Judge was justified in considering the
issue relating to approval of service of the Writ Petitioner once again at the
time of final hearing of the Writ Petition, when such approval was granted by
the Competent Authority pursuant to the earlier order of this Court without
raising any objection and imposing any condition." (Emphasis Supplied)
11.
We
are afraid, this approach (highlighted by emphasis) of the Division Bench was
wholly incorrect. The circumstances, under which the earlier approval was
granted, were writ large before the Division Bench, firstly, it was by an
interim order that the Learned Single Judge (Hon. D.K. Basu, J.) proceeded to
award the approval and a direction to regularize the services of the
respondent. The Learned Single Judge had not even 9 bothered to quote any
rule, under which the respondent was entitled for getting his services
regularized. In fact, there is a detailed procedure for filling up the
vacancies. This was a case, where that procedure was not followed. The
appointment of the respondent was merely on the basis of an advertisement for
filling up the leave vacancy. The respondent very well knew that it was for the
leave vacancy that he was competing with others.
Under such
circumstances, we fail to know as to what right was there in the respondent to
insist on regularization of his appointment. The Division Bench has further
made a rather casual statement in the judgment to the effect that the
prescribed procedure for recruitment of teacher, both for leave and permanent
vacancies, is substantially the same. We were told at the time of hearing that
the respondent was not even registered with the Employment Exchange, which fact
could not be and was not disputed by Shri Ghosh, Learned Senior Counsel for the
respondents, before us.
Again, it must be
pointed out that if the advertisement was for a leave vacancy, it would not
have attracted substantial number of applications, which would not be the case,
if the advertisement was for a permanent vacancy. We fail to understand,
therefore, as to how, even without referring to the relevant rules or procedure
for recruitment of teachers in permanent vacancies, the Division Bench could
make such a casual statement in its judgment.
12.
The
aforementioned Office Memorandum No. 2816(17) G.A. dated 4.12.1989 deals with
the Recruitment Procedure. These are the directions issued by the Director of
School Education, West Bengal, who is 10 empowered by Clause (i) and (ii) of
sub-Rule (I) and Clause (i) of sub-Rule 28 of the Rules for Management of Recognized
Non-Government Institutions (Aided and Unaided), 1969 (Education Department
Notification No. 1598-Edn.(S) dated the 15.7.1969). Direction 1 requires a
prior permission of the District Inspector of Schools (SE) of the respective
District against the sanctioned post, provided the school has no surplus
teacher on its staff. This pre-supposes that the District Inspector of Schools
has to take an exercise to decide as to whether the concerned school had any
surplus teacher at the relevant time when the permanent post is to be filled
up. Direction 2 suggests that no such prior permission would be required in
case of an appointment against a deputation vacancy or against a leave vacancy,
provided that leave is not more than 3 months.
It also suggests that
in case the leave vacancy is for more than 3 months, the names of candidates
should be received by an advertisement in State level daily newspaper and by
hanging notice in the notice board in the office of Zila Parishad and concerned
Panchayat Samity or in case of Municipality, in the notice board of concerned
Municipality. Direction 2(a) suggests that in case of a permanent vacancy, the
Managing Committee has to enquire of the District Inspector of Schools (SE) if
there is any approved surplus staff to be absorbed in recognized schools or any
dependent member of a distressed family of an approved staff of any non-
Government Recognized school who died in harness after 1.4.1981. The District
Inspector of Schools then has to send the names of such eligible candidates,
not exceeding 3 in number, to their concerned school within a 11 fortnight for
the appointment in the vacant post(s), if otherwise found suitable. If there is
any difficulty in such appointments, the Managing Committee has to intimate the
District Inspector of School within 15 days of the receipt of such names,
stating the specific difficulties in writing, along with the copy of Managing
Committee Resolution to that effect. This can be done only after such
candidates are interviewed by the Selection Committee to be constituted for the
purpose. Direction 2(b) suggests that the District Inspector of Schools can
issue the prior permission for appointment to the school and prior to that, the
school authorities have to request the national/local Employment Exchanges to
furnish the lists of eligible candidates with academic and professional
qualifications and date of birth of the candidates in case of General category
within 30 days and for reserved categories, within 45 days from the date of
receipt. If the names are not sponsored by the Employment Exchanges within the
specified period, then a request has to be made to the District Inspector of
Schools. Even where the appointments are to be made by an advertisement, first
a request therefor has to be made to the Employment Exchange. It is obvious
from Rules 1, 2, 3 & 4 that the procedure is different for filling up of
the permanent vacancy and the leave vacancy.
13.
This
aspect was in fact, correctly appreciated by the Learned Single Judge (Hon'ble
Barin Ghosh, J.) in his judgment, which was also adversely commented upon by
the Division Bench without any justification. The Learned Senior Counsel
appearing on behalf of the State, had also relied 12 2006 (4) SCC 1 and,
particularly, the observations in that judgment to the effect that a regular
process of recruitment had to be resorted to, when regular vacancies imposed at
a particular point of time are to be filled up and that cannot be done in a
haphazard manner or based on patronage or other considerations. The Division
Bench strangely was of the opinion that the selection for a post in leave
vacancy was the same, as the selection of the post of permanent vacancy. Even
the observations of this Court in the SCC 1 (cited supra) have not been
properly realized by the Division Bench. The approval of the first panel and
also the second panel was after all for a leave vacancy post and not for a
permanent post, therefore, such approval was of no consequence and it did not
in any manner entitle the respondent for the regularization of his post without
facing a fresh selection process.
14.
An
observation has been made by the Division Bench to the following effect:-
"As discussed hereinbefore, there has been proper compliance with the
prescribed recruitment rules and procedures in the matter of initial
appointment of the appellant to the post of Assistant Teacher of the concerned
school in the leave vacancy which subsequently became a permanent vacancy due
to the resignation of the concerned permanent teacher............"
(Emphasis supplied) 13 We have scanned the judgment carefully, and we find no
such discussion regarding "prescribed recruitment rules". Again, a
finding is given in the same paragraph of the Division Bench Judgment to the
effect that both the procedures in case of appointment against the leave
vacancy and the permanent vacancy, are substantially similar. It is very
difficult to understand the implication of this "substantial
similarity".
15.
We
also do not understand, as to how, the Division Bench could be impressed by the
fact that the interim order was not appealed against by the State Government.
It is to be understood that an interim order does not decide the fate of the
parties to the litigation finally, it is always subject to and merges with the
final order passed in the proceedings. The non-filing of the appeal, which
seems to have impressed the Division Bench, according to us, is of no
consequence.
16.
The
Division Bench also seems to have been impressed by the fact that the Learned
Single Judge dismissed the petition in 2003, though the appointment was made
way back in 1993. The mere pendency of the Writ Petition cannot be viewed
against the State Government, which could not be said to be responsible for
such long pendency and that could not be viewed in favour of the original Writ
Petitioner (respondent herein). That logic of the Division Bench is completely
faulty. We are also no less surprised by the direction of the Division Bench
that since the respondent no.1 herein was not allowed to remain in service
pursuant to the impugned order of the Learned Single Judge, he should be paid
50% of the back 14 wages for the period for which the respondent was out of
service. Such could never have been the course taken in view of the settled
principle of "no work no pay". Again, the order of the Learned Single
Judge was a perfectly justified order, who had viewed the whole controversy in
details.
We are convinced that
the impugned judgment of the Division Bench wholly lacks merit and would have
to be set aside and the judgment of the Learned Single Judge would have to be
restored. We order accordingly.
17.
Shri
Ghosh, Learned Senior Counsel, appearing for the respondents, at this stage,
says that we should take a compassionate view of the matter, since as a result
of this judgment, the respondent would be thrown in the state of unemployment.
We are afraid, we cannot show any such misplaced sympathy, which was shown by
the Division Bench. We are told at the Bar that this Court had issued
directions to make the payment of salaries and some payments have been made to
the respondent. We direct that such payments shall not be recovered from the
respondent.
Considering that the
Writ Petition remained pending for 10 years and thereby, the respondent might now
have become barred by age for fresh employment, we recommend that the
Government may consider the condonation of the age bar, if any, on the part of
the respondent. We accordingly set aside the judgment of the Division Bench and
restore that of the Learned Single Judge and allow the appeal but without any
orders as to the costs.
......................................J.
(Markandey Katju)
......................................J.
(V.S. Sirpurkar)
New
Delhi;
February
2, 2009.
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