Calcutta High Court (Appellete Side)

Abdar Rahaman Mondal & Anr vs State Of West Bengal & Ors on 17 February, 2022

17.02.2022
 Item No. 02
Court No.6.
    S. De
                            Through Video Conference

                                F.M.A. 22 of 2013
                              I.A. No. CAN 1 of 2012
                           (Old No. CAN 10092 of 2012)

                         Abdar Rahaman Mondal & Anr.
                                      Vs
                          State of West Bengal & Ors.

                     Mr. Ekramul Bari,
                     Mr. Subhro Prakash Lahiri,
                     Ms. Tanuja Basak,
                                       ...for the appellants.
                     Mr. Gourav Das,
                                       ...for the respondent no.7.

Sk. Md. Galib, Ms. Sujata Ghosh, ...for the State respondents.

Mr. Nibaran Kr. Das ...for the respondent nos.6 &8 Mr. Manish Das ...for the Zilla Parishad.

The appellant nos.1 and 2 were engaged as

Sishu Siksha Sahayak and Sahayika in a Sishu

Siksha Kendra, namely Asurhat Sishu Siksha Kendra

in the district of 24-Parganas, North, in the year 2001

and 2007 respectively.

By an order dated March 1, 2012, passed by the

Additional Executive Officer, 24-Parganas, North, the

services of the appellants were terminated on the

ground that they were underqualified at the time of

their appointments. It was observed that the appellant

nos.1 and 2 subsequently passed Madhyamik

examination in the year 2009.

The appellant nos.1 and 2 challenged the said

decision dated March 1, 2012, issued by the

Additional Executive Officer, 24-Parganas, North, by

filing the present writ petition. On July 31, 2012, the

learned Single Judge dismissed the petition on the

ground that the resolution dated July 1, 2001,

whereby the appellant no.1 was appointed, appeared

to be a fabricated resolution since the handwriting on

the first page of the resolution differed from that on

the second page. Learned Single Judge also observed

that there was a noticeable gap between the last line of

the resolution and the signatures inscribed thereon.

Learned Judge declined to decide the disputed facts

and dismissed the writ petition.

In this appeal, preferred at the instance of the

writ petitioners, an interim order was passed on

December 17, 2012, to the following effect:

"Let there be an interim order directing the respondents herein to maintain status quo as on date with regard to the functioning of the appellants/petitioners in the service of the Sishu Siksha Kendra until further orders."

Mr. Lahiri, learned advocate appearing for the

appellants, submits that though the appellants were

underqualified at the time of their appointments, but

subsequently, they enhanced their qualification.

Following the interim order passed by this Court on

December 17, 2012, they are continuing in service till

date. The relevant notification issued by the State

provides for relaxation of the eligibility criteria of the

candidate in case no suitable candidate was found. It

cannot be said that the appointments of the appellants

are illegal. They have been continuing in service till

date following the interim order passed in the appeal,

however, without any honorarium. They should be

paid their arrear honorarium and the order of

termination should be set aside.

Mr. Das, learned advocate appearing for the

Sishu Siksha Kendra, also submits that the appellants

have been continuing in service till date.

Mr. Manish Das, learned advocate representing

the Zilla Parishad, and Mr. Galib, learned advocate

appearing for the State, jointly submit that the

appellants did not have the requisite qualification to

be appointed. Therefore, their service was rightly

terminated by the respondent authorities. No right

accrues due to continuation of service since they

worked illegally even after termination of their service

by the competent authority.

We are of the view that even if it is accepted that

the resolution dated July 1, 2001, is a genuine one, it

cannot be held that the appellants are entitled to any

relief. The relevant recruitment rule provides that only

a Madhyamik pass female candidate should be

appointed as Sahayika. If such a female candidate is

not found, a physically handicapped male may be

appointed subject to fulfillment of the eligibility

criteria. In the case of tribal/backward areas, if a

Madhyamik pass candidate is not available then a

Madhyamik failed female (or handicapped male) may

be appointed. When a candidate as qualified above is

not available, a class ten pass female candidate (or

handicapped male) may be appointed. If no female

candidate (or handicapped male) is found with the

above qualification then a class eight pass candidate

may be appointed from a scheduled caste community.

The resolution whereby the appellant no.2 had

been appointed has not been placed before us.

The resolution whereby the appellant no.1 was

appointed does not reflect that there was any attempt

made by the concerned Sishu Siksha Kendra to find

out a Madhyamik pass candidate at the first instance.

The locale, where the Sishu Siksha Kendra is situated,

is not a backward/tribal area.

Therefore, it is evident that the appointments of

the appellant nos.1 and 2 were not made following the

relevant recruitment rules. No fault can be found with

the impugned order of termination as the appellants

were not duly qualified at the time of appointment.

Mr. Lahiri relied on a judgment of the Hon'ble

Supreme Court reported at (1993) 3 Supreme Court

Cases 591 (Dr. M.S. Mudhol v. S.D. Halegkar) to

argue that the appellants should be paid their

remuneration for the service rendered by them as

Sahayaks.

The relevant part of the said judgment is quoted

below:

"Whatever may be the reasons which were responsible for the non-discovery of the want of qualifications of the 1st respondent for a long time, the fact remains that the court was moved in the matter after a long lapse of about 9 years. The post of the Principal in a private school though aided, is not of such sensitive public importance that the court should find itself impelled to interfere with the appointment by a writ of quo warranto even assuming that such a writ is maintainable. This is particularly so when the incumbent has been discharging his functions continuously for over a long period of 9 years when the court was moved and today about 13 years have elapsed. The infraction of the

statutory rule regarding the qualifications of the incumbent pointed out in the present case is also not that grave taking into consideration all other relevant facts. In the circumstances, we deem it unnecessary to go into the question as to whether a writ of quo warranto would lie in the present case or not, and further whether mere laches would disentitle the petitioners to such a writ."

He further relied on another judgment reported

at 2019 (5) CHN (CAL) 54 (Anil Kumar Xalxo v. The

Lieutenant Governor, Andaman & Nicobar Islands)

A Coordinate Bench of this Court in the said

case observed as follows :-

"Following the ratio of the said decision we make it clear that, although, we do not agree with the learned Counsels for the administration and for the private respondents for a moment that an illegal act can be made legalised due to passage of time, but after a passage of long period we do not take away the bread wining source of the respondents and of their dependent family members. It

may be clarified that, although, bridge course was not done by the respondents but we give some value to their past service of 25 years and the experience of teaching which may be considered to a little extent as substitute of their bridge course. For all practical purposes in the academic field if the respondents are allowed to use their expertise in their said academic field that may prove even better than having the bridge course to bridge the gap."

The facts involved in the aforesaid two cases

were entirely different from the case in hand. In the

present case, the services of the appellants were

terminated on March 1, 2012, as they were not

qualified. Even after such termination, they continued

in service without any authority of law.

The interim order in this appeal was passed on

December 17, 2012, directing to maintain the status

quo with regard to the service of the appellants as on

that date. The service of the appellants had been

terminated on March 1, 2012. Therefore, the said

interim order cannot be interpreted to mean that the