Md. Alauddin vs The State Of West Bengal & Ors
2021 Latest Caselaw 1463 Cal

18.02.2021
Item No. 14
(P.Jana)                  (Via Video Conference)


                                 WPA 4270 of 2021


                              Md. Alauddin
                                  -Vs-
                      The State of West Bengal & Ors.

                     Mr. Golam Mastafa,
                     Mr. Samirul Sardar,
                                      ... for the petitioner.

                     Mr. Joytosh Majumdar, learned Govt Pleader.
                     Mr. Pinaki Dhole,
                     Ms. Sucharita Paul,
                                 ... for the State respondents.

Affidavit of service filed in Court today be kept

with the record.

The Secretary of the Managing Committee of the

Kamurdiar Nazbul Haque High Madrasah (H.S.) District.

Murshidabad on July 26, 2010 temporarily appointed

the petitioner as the Peon of the said Madrasah.

The petitioner by the instant writ petition is

praying regularization of his said appointment.

The earlier writ petition filed by the petitioner

being WP No. 27438 (W) of 2015 was disposed of by the

order dated November 05, 2015 with the following

observations:

"Considering the ratio in the case of Uma Devi reported in (2006)4 SCC, page 1, I do not think this kind of appointment is illegal but can be "irregular" on the principles of that judgment.

The appointment did not say that the writ petitioner was temporary or ad hoc Peon but stated that he was an irregular staff of the school on "substantive basis" subject to approval

of the District Inspector of Schools (SE). That is why I say that the appointment was irregular.

Now the grievance of the writ petitioner is that he has been working from 2010 and should be regularized accordingly. The writ petitioner is working as permanent staff of the School and there is vacancy.

Considering the fact that the appointment of the writ petitioner was irregular in terms of Uma Devi's case, I am of the view that according to the principles enshrined in that judgment an irregularly appointed employee can be regularized subject to vacancy and in appropriate circumstances."

The said order was appealed against by the State

of West Bengal in MAT 117 of 2016 which was allowed

by the judgment and order dated July 09, 2018 holding

as follows:

"We are of the considered view that the learned Judge committed gross error in viewing the appointment of the writ petitioner as irregular, and not illegal. Considered in the light of the appointment letter issued to the writ petitioner, the findings in the aforesaid excerpt appear to be inappropriate. The writ petitioner came to be appointed not on the basis of any selection process but through the side door. Having regard to the decision in Uma Devi (Supra) as well as subsequent decisions of the Supreme Court on the point including the decision in Official Liquidator vs. Dayanand & ors. : (2008) 10 SCC 1, we are of the considered opinion that the judgment and order under challenge is indefensible."

Mr. Golam Mastafa, learned counsel appearing on

behalf of the petitioner, submits that the judgment and

order of the appeal Court was carried forward to the Hon'ble

Supreme Court but the same was not pressed and was

accordingly dismissed as withdrawn.

He submits that the Hon'ble Supreme Court in

the case of SHEO NARAIN NAGAR AND OTHERS -VS-

STATE OF UTTAR PRADESH AND OTHERS reported in

AIR 2018 (SC) 233 has held that the decision in the case of

STATE OF KARNATAKA & ORS. VS. UMA DEVI & ORS

reported in AIR 2006 (SC) 1806 has not been properly

understood and rather wrongly applied by various State

Governments, therefore, according to him, refusal of the

prayer of the petitioner on the basis of the decision of Uma

Devi (supra) is not justified and the petitioner is entitled to

regularization of his temporary appointment.

Mr. Joytosh Majumdar, learned Government

Pleader, responding to the said submission of Mr. Mastafa

submits that the petitioner cannot re-agitate the issue as the

Division Bench in the aforementioned appeal has declared

the appointment of the petitioner as illegal, as such the

prayer of the petitioner for regularization is speculative and

mala fide.

Having heard the learned counsel for the parties

and on perusal of the materials on record, I am at one with

Mr. Majumdar, the appointment of the petitioner has been

declared illegal by the Division Bench in the aforesaid appeal

and the said order since has attained finality there is no

scope for the petitioner to re-agitate the said issue.

The decision reported in AIR 2018 (SC) 233

(Supra) relied on by Mr. Mastafa is distinguishable in the

facts and circumstances of the present case inasmuch as in

the said case the question arose for consideration was

regularization of the service of the employees appointed

irregularly but in the present case the finding of the Division

Bench in the aforementioned appeal that the appointment of

the petitioner was illegal is fait accompli, as such, the

petitioner is also not entitled to the relief as prayed for on

the basis of the proposition of law laid down in the

aforementioned judgment of the Hon'ble Supreme Court

relied on by Mr. Mastafa.

WPA 4270 of 2021 is, therefore, devoid of any

merit and is accordingly dismissed. No order as to costs.

Urgent photostat certified copy of this order, if

applied for, be supplied to the parties subject to compliance

of all requisite formalities.

(Biswajit Basu, J.)