Pritam Kanjilal vs The State Of West Bengal & Ors
2022 Latest Caselaw 5589 Cal

          IN THE HIGH COURT AT CALCUTTA
         CONSTITUTIONAL WRIT JURISDICTION
                  APPELLATE SIDE

Before:
The Hon'ble Justice Hiranmay Bhattacharyya

                     WPA 10784 (W) OF 2017

                        Pritam Kanjilal
                              Vs.
                The State of West Bengal & Ors.

For the petitioner        : Ms. Debjani Sengupta
                            Ms. Shanina Haque
                            Ms. Koyel Bag
                            Mr. Abhijit Chatterjee   ..... advocates



For the State             : Mr. Supriyo Chattopadhyay,
                            Mr. Suman De
                            Ms. Tapati Samanta............ advocates

For the Respondent        : Mr. Sandip Kr. Bhattacharya... advocate

Heard on                  : 03.08.2022

Judgment on               : 18.08.2022

Hiranmay Bhattacharyya, J.:

1. The writ petitioner has prayed for issuance of a writ of mandamus to command the respondents to regularise his service as a drawing teacher and to pass consequential orders after fixing his revised pay and allowances.

2. The petitioner claims to have participated in the selection process for appointment to the post of drawing teacher in

Manbhum Mukta Badhir Vidyapith, Purulia (for short "the institution) and was ultimately appointed as a drawing teacher on contract basis on a fixed pay of Rs. 12,270. The appointment of the petitioner was approved with effect from November 22, 2010 for a period of one year. The contractual period was renewed from time to time and the petitioner claims that he is rendering service as a drawing teacher in the said institution till date. The petitioner further claims that the Secretary of the managing committee of the said institution as well as the District Mass Education Extension, Purulia requested the Director of Mass Education from time to time to regularise the service of the petitioner as he has been working on contractual basis from November 22, 2010 without any interruption. The petitioner further claims that the services of some teaching and non- teaching staff of another institution who were initially appointed on contract basis were subsequently regularised and they are now getting their regular pay and allowances. The petitioner therefore claims that being similarly situated, the petitioner is entitled to regularisation of his service with regular pay and allowances.

3. Ms. Sengupta, learned advocate appearing for the petitioner submitted that the petitioner possesses the requisite qualification for appointment as a drawing teacher of the said institution. She further contended that the petitioner participated in the selection process and being successful in the said selection process was ultimately appointed to the

said post. She placed reliance upon a Memo No. 8305-F dated September 26, 2005 and the subsequent Memo Nos. 642-F dated January 24, 2006 and contended that since the job attached to the post in question is perennial in nature and also that the contractual appointment of the petitioner has been renewed from time to time, he has to be brought under the regular establishment against regular vacancies. She placed reliance upon an order passed by a co-ordinate bench on August 18, 2015 in WP 12096 (W) of 2013 with CAN 3579 of 2014 in the case of Binod Jha vs. State of West Bengal and Ors. wherein direction was passed to grant approval of appointment to the petitioner in Binod Jha (supra) and thereafter to fix the pay scale of the petitioner concerned. Ms. Sengupta submitted that the petitioner being similarly situated person is also entitled to get his service regularised against the regular vacancies in the scale of pay applicable to the post in question.

4. Mr. Chattopadhyay learned Senior Government Advocate disputed the submission made by Ms. Sengupta. He submitted that the Government in Mass Education Extension and Library Services department with the concurrence of the Appointments Committee of the Cabinet took a policy decision to fill up the vacant post of drawing teacher of the concerned institution on contractual basis. Pursuant to the said decision an advertisement was made for filling up the post in question on contractual basis at the minimum of the respective scale of pay without any

allowances. He submitted that the petitioner was appointed to this post of drawing teacher on contractual basis and after accepting the said contractual appointment he is estopped from claiming that his service is to be regularised. By referring to the Rules of Business of the Government of West Bengal Mr. Chattopadhyay submitted that since the Appointment Committee of the Cabinet being the highest authority of the government took a decision to fill up the post on contract service, the order of the Finance Department is not binding upon the State and, therefore, the Memo dated September 26, 2005 and January 24, 2006 do not have any manner of application to the facts of the instant case.

5. Heard the learned advocates for the parties and perused the materials placed.

6. The institution was declared sponsored with effect from 01.07.1976 vide GO No. 188-EDN(SE) date 08.03.1976. Record reveals that post facto approval of appointments of some teaching and non-teaching staffs of the said institution was accorded vide order dated March 28, 2001. By the said order post facto approval of one Shri Sushil Saha, a drawing teacher of the said institution, was accorded with effect from December 14, 1992 in the scale of pay Rs. 1390-2970 as per ROPA 90. It is evident from the Memo dated October 15, 2007 that the post of drawing teacher in the said institution is lying vacant since December 20, 1999 due to the death of said Sushil Saha. It

further appears from the said memo that the Governor was pleased to accord approval towards filling up the post of drawing teacher on contract basis at the minimum of the scale of pay without any allowances.

7. It is not in dispute that the petitioner participated in the selection process and the interview and the petitioner was placed in the first position in the panel prepared by the selection committee for appointment to the post of drawing teacher in the said institution. The petitioner was thereafter appointed to the post of drawing teacher and the Director of Mass Education Extension by a Memo dated March 1, 2011 accorded approval of appointment of the petitioner to the post of drawing teacher (full time) on contract basis for a period of 1 year with the fixed pay of Rs. 12, 270. It is also not in dispute that the petitioner has been regularly discharging his duties as a drawing teacher since the date of his joining to the said post and is still discharging his duties as a drawing teacher as the period of contractual appointment has been extended from time to time.

8. The issue that falls for consideration in this writ petition is whether the service of the petitioner can be regularised in the post of drawing teacher of the said institution with the scale of pay attached to such post.

9. The Hon'ble Supreme Court in the case of Secretary, State of Karnataka vs. Umadevi (3) reported at (2006)4 SCC 1 held that a mandamus cannot be issued in favour of casual, temporary or ad hoc employees directing the employer, the

State or its instrumentalities to absorb them in permanent service or to allow them to continue since such employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent. It was further held that such employees also cannot claim to be treated equally with those who were regularly employed.

10. However, an exception to the aforesaid proposition has been carved out in paragraph 53 of Umadevi (3) (supra) wherein a distinction has been made between irregular appointments and illegal appointments. It was held therein that the services of irregularly appointed employees can be regularised provided they have worked for 10 years or more in duly sanctioned posts but not under cover of the orders of the courts or of Tribunals and also that they should possess requisite qualifications for appointment to the post in question.

11. The Hon'ble Supreme Court in Umadevi (3) (supra) held that an illegal appointment cannot be regularised but an irregular appointment can be regularised. If an appointment is made after following due procedure even though a non fundamental element of that process or procedure which does not go to the root of the process has not been followed, the same can be said to be an irregular appointment. The Hon'ble Supreme Court in the said decision held that such irregular appointment can be regularised subject however, to the conditions laid down in paragraph 53 of the said reports.

12. In the case on hand the post of a drawing teacher of the said institution was sanctioned with a scale of pay attached to such post. Initially drawing teachers were appointed to the said post who enjoyed a regular scale of pay. The said sanctioned post fell vacant as one Sushil Saha who was appointed to the said sanctioned post with regular scale of pay died on December 26, 1999. The fact that the petitioner was initially appointed to the said post on November 22, 2010 and is still continuing to render his service in the said post makes it clear that the job attached to the said post is perennial in nature. It is also evident from the Memo dated March 1, 2011 issued by the Director of Mass Education Extension, West Bengal that the post of drawing teacher is a full time post. Therefore, the authorities are enjoying service of the petitioner as a full time teacher but the petitioner is being deprived from the salary at the regular scale of pay attached to such post. Furthermore, it is not in dispute that the petitioner is a duly qualified candidate for appointment to the post of drawing teacher of the said institution and also that the petitioner participated in the selection process pursuant to an advertisement published by the concerned authority for the purpose of filling up the post of the drawing teacher of the said institution and was placed in the 1st position in the panel.

13. From the aforesaid undisputed facts, it is evident that the appointment of the writ petitioner cannot be said to be an illegal one. The petitioner having been appointed pursuant to an approval granted by an appropriate authority to a

sanctioned post after following the norms & rules for such selection and possesses the requisite qualification for such post, the writ petitioner stands on a better footing than a person whose appointment is an irregular one.

14. It is evident from the Memo dated September 26, 2005 that the policy of filling up the non PSC/ non promotional posts on contract basis for one year initially with the approval of the Appointments Committee of the Cabinet in each individual case was reviewed and on the basis of the review the Governor has been pleased to decide that the non PSC/ non promotional posts in general may be filled up on regular basis following the rules and methods of recruitment for the posts and also that there shall be no further appointment on contract basis against regular vacancies or engagements of private agencies for getting the jobs associated with regular posts done except in cases where the posts are required to be filled up exclusively for time bound projects or that the posts required specialised scientific or technical qualification or that the situations are specific exigencies as may be decided by the Cabinet. It further, appears from the said memo that the Governor has been pleased to decide that the employees who were initially recruited on contract basis following the norms, rules and methods as applicable to the relevant posts, may, if still continuing in contract service be brought under the regular establishment.

15. It has been held by this court hereinbefore that the job attached to the post in question is perennial in nature. The

respondent authorities have not made out a case that the case of the petitioner falls within the exceptions carved out in the memorandum dated September 26, 2005 for making appointment on contract basis against regular vacancies in terms of the revised policy. It has also not been disputed that the petitioner was recruited initially on contract basis following the norms, rules and methods as applicable to the relevant posts and is still continuing in contract service. The said memo dated September 26, 2005 has been made applicable mutatis mutandis in case of contractual appointments against regular posts under the statutory bodies including local bodies, autonomous bodies, non government aided educations institutions and undertaking, owned or substantially controlled by the State Government by the Memo dated January 24, 2006.

16. The Memo dated October 15, 2007 was issued with the approval of the Appointment's Committee for filling up the post of drawing teacher on contract basis at the minimum of the respective scale of pay without any allowances. The said Memo is only an approval for appointment on contract basis and the same might have been issued pursuant to the policy of the State Government for filling up certain posts on contract basis generally for one year initially with the approval of the Appointment's Committee which stood revised with the issuance of the Memorandum dated September 26, 2005 read with January 24, 2006. Since the earlier policy for appointment on contract basis in respect of jobs attached to

the posts which are perennial in nature stood revised by the subsequent policy as contained in the aforesaid Memorandum dated September 26, 2005 read with January 24, 2006, the Government could not have appointed the petitioner to the post in question on contract basis in as much as the case on hand does not fall within the exceptions carved out in the Memorandum dated September 26, 2005 for appointment on contract basis.

17. The State Government is bound by its own revised policy contained in the memorandum dated September 26, 2005 read with January 24, 2006 wherein provision has been made for regularisation of employees who were initially recruited on contract basis against regular vacancies.

18. For the aforesaid reasons this Court is unable to accept the submission of Mr. Chattopadhyay that the aforesaid Memoranda do not have any manner of application to the case on hand.

19. The writ petitioner was appointed initially on contract basis following the norms, rules & methods applicable to the relevant post and is still containing in contract service. The right of the writ petitioner to be regularised in the post of drawing teacher with the scale of pay attached to the said post flows from the aforesaid Memoranda dated September 26, 2005 and January 24, 2006 and the respondent authorities have a legal duty to act in terms of the said Memoranda and regularise him in the post in question. Therefore, the writ petitioner has an enforceable legal right to be regularised in

service and this Court is of the considered view that a writ of mandamus should follow.

20. The question, however, arises as to the date from which the petitioner should be regularised in service.

21. It is no doubt true that the writ petitioner accepted the appointment on contract service. A candidate like the writ petitioner, who is in need of a job, may not be aware of the policies of the Government and therefore may be left with no other option but to accept the offer of contractual appointment. But the State and its instrumentalities should act as a model employer and has a legal duty to give appointment as per the existing policy. In the instant case, the respondent authorities ought to have made a regular appointment to the post of drawing teacher of the said institution instead of contractual appointment.

22. However, since the petitioner accepted the contractual appointment offered by the respondents and approached this Hon'ble Court only in the month of April 2017, this Court holds that the appointment of the petitioner shall be regularised with effect from the date of filing the writ petition, i.e., April 7, 2017.

23. This court is therefore, of the considered view that a direction is to be passed upon the respondent authorities to regularise the service of the petitioner in the regular sanctioned post of drawing teacher of the said institution with the regular scale of pay attached to the said post.

24. It would also be relevant to take note of the decision of the co- ordinate bench in the case of Binod Jha (supra) wherein the respondent authorities were directed to regularise the service of the petitioner in Binod Jha (supra) who were initially appointed on contract basis and the respondent authorities were further directed to fix the pay scale of the petitioner and to release the arrear salaries and current salaries accordingly. The petitioner herein being similarly situated is also entitled to be treated identically with that of Binod Jha (supra).

25. For all the above reasons, this court holds that the petitioner should be regularised in service as a drawing teacher of the said institution with the regular scale of pay attached to such post. This court, therefore, directs the Principal Secretary, Department of Mass Education and the Director of Mass Education being the respondent no. 2 herein to grant approval of appointment to the petitioner in the regular post of drawing teacher of the said institution and to fix his salary at the regular scale of pay attached to the said post with effect from April 7, 2017 along with all consequential benefit and pay the current and arrear salary to the petitioner in terms of this order. The entire exercise including fixation of salary and payment in terms thereof shall be completed as expeditiously as possible but positively within a period of eight weeks from the date of communication of this order to the concerned respondent. This writ petition accordingly stands allowed. There shall be, however, no order as to costs.

26. Urgent photostat certified copy of this judgment be given to the parties if applied for.

(Hiranmay Bhattacharyya, J.)

Later: Date: 18.08.2022

As prayed for by Ms. Sengupta, learned Advocate for the petitioner, leave is granted to amend the cause title of the writ petition by adding the Principal Secretary, Department of Mass Education as a party respondent in this writ petition.

(Hiranmay Bhattacharyya, J.)