Calcutta High Court (Appellete Side)
Prasanta Kumar Ghosh vs The State Of West Bengal & Ors on 22 February, 2022
W.P.A. 22503 of 2014
16 22.02.2022
Ct.15
(Through Video Conference)
rkd
Prasanta Kumar Ghosh
-vs-
The State of West Bengal & Ors.
Mr. Subrata Mukhopadhyay,
Mr. Bandhu Brata Bhula
....for the petitioner.
Mr. Bhaskar Ghosh,
Ms. Mandira Bhowmick
....for the respondent no.7.
Mr. Tapan Kumar Mukherjee,
Ms. Debdooti Dutta
....for the State.
The writ petitioner was initially appointed
on contract basis after grant of recognition in
favour of Hingalganj Mahavidyalaya, District- North
24 Parganas (hereinafter referred to as "said
college") in the post of Peon which is a non-
teaching post along with six other candidates who
were also appointed against six other non-teaching
posts. The said college was approved vide Memo
dated 7th April, 2005 issued by the Special
Secretary, Higher Education Department with effect
from the academic year 2005-2006 and seven non-
teaching posts were created from the date of
approval of the said college.
Mr. Mukhopadhyay, learned advocate
representing the petitioner submits that petitioner
was appointed against a post of Peon, two posts of
Peon were sanctioned wherein another candidate,
namely, Tapan Kumar Baidya was appointed
against another post of Peon. Petitioner along with
six other candidates approached the concerned
respondent authority for their engagements in their
respective posts on substantive basis which could
not yield any result which triggered the first writ
petition preferred by the writ petitioner being W.P.
26480(W) of 2012 which was disposed of by a
coordinate Bench by passing order dated 12th
February, 2013 thereby directing the concerned
respondent to consider the case of the petitioner
sympathetically and to pass a reasoned order on
the representations made by the petitioner. There
were five other writ petitions which were preferred
by five candidates who were also working in non-
teaching posts in the said college. All the six writ
petitions were disposed of by passing a common
order dated 12th February, 2013 which is at page
29 of this writ petition.
Pursuant to such order of the coordinate
Bench dated 12th February, 2013 Director of Public
Instruction and Ex Officio Secretary, Government
of West Bengal took up the issue for engagement of
seven candidates working against seven newly
created posts in the said college and ultimately
recommended the case of the petitioner along with
six other candidates for their engagements
permanently. Relevant part of the said Memo dated
10th April, 2013 issued by the Director of Public
Instruction is quoted below:
"in view of the above facts, the
undersigned hereby recommends
that the service of all these
7(seven) petitioners be regularized
in their respective posts with
effect from the date their initial
appointment in the college."
Pursuant thereto the said college also
approached the Director of Public Instruction for
approval of appointment of the petitioners and their
pay fixation accordingly, which were kept pending
due to failure on the part of the Joint Secretary,
Education Department to take final decision on
engagement of the petitioners on substantive basis.
Petitioner again had to approach this Court by
filing second writ petitioner being W.P. 5987(W) of
2014 which was disposed of by another coordinate
Bench by passing order dated 7th March, 2014
thereby directing the Joint Secretary, Higher
Education Department to take decision on the
claim of the writ petitioner. Pursuant thereto Joint
Secretary, Education Department passed order
whereby the claim of the writ petitioner for his
engagement on substantive basis was spurned and
the said order of the Joint Secretary is under
challenge in the present writ petition.
Mr. Mukhopadhyay has submitted that the
Joint Secretary has proceeded on the basis of
availability of six non-teaching posts in the said
college though fact remains there are seven
available non-teaching posts out of which six posts
had already been filled up pursuant to the order
passed by a coordinate Bench on writ petitions
being W.P. 22350(W) of 2014 and five other writ
petitions preferred by six other similarly
circumstanced candidates. Therefore, in the
available non-teaching post in the said college
petitioner ought to have been absorbed by this
time. It has further been submitted that the Joint
Secretary while taking decision on the fate of
appointment of the writ petitioner cannot seat in
appeal over the decision of the Director of Public
Instruction, Government of West Bengal. It has also
been submitted that when in terms of the order of
the coordinate Bench dated 5th April, 2016 six
other similarly circumstanced candidates have
been substantively accommodated/approved in the
said college therefore petitioner should not be left
out.
Mr. Ghosh, learned advocate appears on
behalf of the said college and submits that the
college in question was approved vide Memo dated
7th April, 2005 and on approval of such college
from the academic year 2005-2006 seven non-
teaching posts were sanctioned and it is fact that
petitioner was appointed against one of the
sanctioned posts of Peon in 2007. It is also brought
to the notice of this Court that six other similarly
circumstanced candidates who are working in the
non-teaching posts have already been permanently
appointed in terms of the order of the coordinate
Bench dated 5th April, 2016.
Mr. Mukherjee, learned Additional
Government Pleader appears on behalf of the State
respondents and has submitted since the Joint
Secretary has proceeded on the basis that there
were six sanctioned posts and these six posts have
already been filled up, due to non-availability of
vacant post case of the petitioner cannot be
considered but the fact remains that seven non-
teaching posts being sanctioned on approval of the
said college the matter should be remanded to the
Joint Secretary for reconsideration. It has also been
submitted by Mr. Mukherjee upon placing reliance
on the decisions of the Apex Court, (2011) 3 SCC
436 and (2019) 19 SCC 626 on the proposition of
law that based on wrong order there is no scope of
applying Article 14 in the matter of giving
appointment and also there is no concept of
negative equality in the domain of public
employment. It has further been submitted that
since the contempt application was pending for
alleged violation of the order of the coordinate
Bench dated 5th April, 2016 the authorities
regularized the appointment of six other similarly
circumstanced candidates.
This Court has considered the rival
submissions of the parties to this writ petition and
it appears while disposing of the first writ petition
of the petitioner vide order dated 12th February,
2013 the stand of the State respondent was
recorded by the coordinate Bench which is quoted
below:
"Under the circumstances, the
learned Advocates appearing for
the State and the respondent
nos.8, 9 & 10 have submitted that
they have no objection if the
service of the petitioners is
regularized and they are paid as
per rules applicable to them. The
petitioners were appointed
through selection process and
they were appointed to the posts
of Peon accordingly. They joined
the said posts on November 30,
2007. Thereafter, the college
authority took steps for approval
of the appointment of the writ
petitioners and the approval was
given by the State accordingly
fixing the pay at Rs.2,600/- per
month (consolidated) only for one
year vide Annexure P-7 at page
no.35. Thereafter, the college
authority took steps for
regularization of the service of the
petitioners and the petitioners also
submitted their representations for
regularization, but, they have not
been regularized as yet."
Based on such submission made on behalf
of the State respondents the coordinate Bench
directed the concerned authority to take decision
on the claim of the writ petitioner for engagement
on substantive basis. Accordingly, the Director of
Public Instruction while issuing Memo dated 10th
April, 2013 recommended for regularization of
service of seven candidates including the petitioner
herein in their respective posts with effect from the
date of initial appointment in the said college. Such
Memo of the Director of Public Instruction dated
10th April, 2013 is at pages 35 to 37 of this writ
petition.
In spite of such recommendation being
made by the Director of Public Instruction when no
steps were taken for engagement of the candidates
on substantive basis six other candidates filed six
separate writ petitions which were allowed by the
Hon'ble Justice Debangsu Basak by delivering
judgment dated 5th April, 2016 thereby directing
concerned authorities to issue approval of
regularization of the petitioners within a period of
six weeks from the date of communication of such
order. It is also relevant fact that in those six writ
petitions petitioners questioned the order of Joint
Secretary dated 28th November, 2013 by which
claim of the writ petitioners was negated by the
Joint Secretary and vide order dated 5th April, 2016
such decision of the Joint Secretary dated 28th
November, 2013 was set aside.
In the present case this Court is
considering issues identical to the facts of the six
writ petitions which were disposed of by the
Hon'ble Justice Debangsu Baske upon delivering
judgment dated 5th April, 2016. Before Justice
Debangsu Basak on behalf of the State respondents
points were taken that the petitioners since were
not appointed substantively but on contractual
basis therefore they do not have the right of
regularization. However, such contentions raised
on behalf of the State respondents were negated by
Justice Basak and directions were given for
regularization of the petitioners.
It appears from the report of Joint Director
of Public Instruction that the State respondents
preferred appeals being FMA 1191 of 2017, FMA
1192 of 2017, FMA 1193 of 2017, FMA 1194 of
2017 and MAT 1606 of 2016 questioning the
judgement of Justice Basak dated 5th April, 2016
but such appeals were dismissed whereby the
judgment dated 5th April, 2016 attained finality. It
appears to this Court that said judgement dated 5th
April, 2016 is squarely applicable in the present
case of the petitioner since petitioner is similarly
circumstanced like six other candidates who got
the benefit of such judgment dated 5th April, 2016
on regularization of their service against vacant
posts of non-teaching staff in the said college. It is
also indisputable that the petitioner was appointed
against a sanctioned post of Peon in the college in
question along with those six candidates therefore
the petitioner herein deserves similar treatment like
six other candidates.
Though reliance has been placed by Mr.
Mukherjee, learned Additional Government Pleader
on the decisions rendered by the Apex Court
reported in (2011) 3 SCC 436 and (2019) 19 SCC
626 but the ratio of these judgments are of no help
since the judgment of Justice Basak dated 5th April,
2016 attained finality.
In above conspectus, Memo dated 16th
April, 2014 of the Joint Secretary, Education
Department is set aside and the concerned
respondent authority is directed to finalize
engagement of the petitioner in the post of Peon in
the said college on substantive basis within a
period of eight weeks from the date of
communication of this order.
With the above directions, the writ petition
stands disposed of.
There shall be no order as to costs.
Urgent photostat certified copy of the order,
if applied for, be given to the parties, upon usual
undertakings.
(Saugata Bhattacharyya, J.)
