Sri Ashok Kumar Lal vs The State Of West Bengal & Ors
2022 Latest Caselaw 37 Cal

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                     IN THE HIGH COURT AT CALCUTTA

                      (Constitutional Writ Jurisdiction)

                              APPELLATE SIDE

Present:

The Hon'ble Justice Krishna Rao

                             WPA 6798 of 2015

                                    With

                           IA No: CAN 01 of 2020

                                    With

                           IA No: CAN 02 of 2020

                            Sri Ashok Kumar Lal

                                   Versus

                      The State of West Bengal & Ors.



For the Petitioner              : Mr. Subir Sanyal

                                 Ms. Sumita Sen

                                 Mr. Sagnik Roy Chowdhury

                                                  ..... Advocates

For the State                    : Mr. Shamim-ul-Bari

                                                  .....Advocate

Heard on                        : 13.12.2021

Judgment on                     : 06.01.2022
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Krishna Rao, J.:    Inspite of opportunity provided to the respondents, the

respondents have not filed their affidavit in opposition. On 9th December

2021 the counsel for the respondent had prayed for two days time to file

Affidavit in opposition and even thereafter the respondents have not filed

their affidavit. Today the Ld. Counsel for the respondents submitted that he

will argue the matter relying upon the materials available on record.

The instant writ petition is filed praying for regularization of service

with effect from 7th September, 1994 including all arrears of salaries in

terms of the order passed by this Court on 7th September 1994 and 2nd

September 1998.

The counsel for the petitioner contended that the petitioner is

Graduate in Science. The petitioner was appointed as Assistant Teacher in

Science Group in Jay Kay Nagar High School, Burdwan by the then

Managing committee of the School in the year 1988 and he is continuing

with the same. In the year 1994 the petitioner had filed a Writ Petitioner

before this Court praying for regularisation of his service as Assistant

Teacher. The writ petition was disposed of by this Court on 7th Septmber,

1994 by passing the following order:

"Keeping in view the fact that the petitioners have been serving the school in question for a long time, the writ application is disposed of with a direction to the concerned respondent to consider the case of the petitioners along with other eligible candidates as and when the posts in question are to be filled up. The age bar of the petitioners, if they are selected, may also be condoned.

I hope and trust that till the regular vacancy is filled up, the petitioners shall be allowed to continue as approved teachers."

Inspite of the order passed by this court the respondents have not

complied with the same and the petitioner has filed another writ petition

before this court being WP No. 13412 of 1998 and the said writ petition was

disposed of on 2nd September 1998 by passing the following order:

"On top of the same in view of the order as mentioned before, viz., the order dated 7th September, 1994, the petitioners have been allowed to continue as approved teachers, and as such, they are entitled to get their pay structure accordingly till vacancies are filled up on regular basis."

After the orders passed by this Court the District Inspector of School,

Secondary Education, Burdwan has issued a letter to the Secretary, Jay Kay

Nagar High School and requested to make payment to the petitioner from

7.9.1994 in admissible scale of pay and also to submit necessary papers for

regularisation of their service.

On 9th December 2003 the District Inspector of School informed the

counsel for the petitioner that the office has already taken steps for

implementation of the order passed by this Court dt.02.09.1998 and

instructed the Secretary of the School to make payments to the petitioners

from 07.09.1994 in the admissible scale of pay and to submit papers for

regularization.

Inspite of the communication made by the respondents, the order

passed by this Court was not implemented and the petitioner had filed a

contempt application for wilful and deliberate violation of the order passed

by this Court being WPCRC 12060 of 2004. The said contempt application

was disposed of on 04.08.2005 by passing the following order:

"This application can be treated as an application for meaningful implementation of the aforesaid order. The learned Counsel for the school authority submits that the school authority has done everything for giving effect to the aforesaid declaration. However, the District Inspector of Schools concerned has not done anything else.

In that view of the matter, I direct the District Inspector of Schools to implement the aforesaid declaration given by the Court as above within a period of 12 weeks from the date of communication of this order."

After the order passed by this court, the Assistant District Inspector of

Schools had again sent a letter to the Secretary of the School with the

request to comply with the order passed by this Court and to submit report

within seven days from the date of receipt of the letter.

On 27th March, 2014 the secretary of the School had issued a letter of

appointment to the petitioner as Assistant Teacher in pure science and

requested to join immediately and to submit Xerox copies of the educational

certificate. On 31.03.2014 the Additional District Inspector of School had

also issued an order wherein the salary of the petitioner was approved with

effect from 28th March 2014.

On receipt of the said order the petitioner had submitted a

representation to the respondents praying for approval of his service as well

as all consequential benefits with effect from 7th September 1994 instead of

28th March 2014.As the respondents authorities have not considered the

request of the petitioner and have not complied with the order passed by

this Court on 7th September 1994 and 2nd September 1998, the petitioner

has filed the instant writ application and prayed for regularisation of his

service from 7th September 1994 and for release of all consequential

benefits from the said date.

The counsel for the respondent submitted that neither in the order dt.

07.09.1994 nor in the order dt. 02.09.1998 or in the order dt.04.08.2005

this court had directed to regularise the service of the petitioner. The

counsel for the respondent further submitted that this Court only directed

to approve the appointment of the petitioner and accordingly the petitioner

was appointed as Assistant Teacher (Pure Science) with effect from

28.03.2014 and the salaries were approved from 28.03.2014 and the same

was also granted to the petitioner.

The counsel for the petitioner has further contented that this Court

cannot pass an order for regularisation of the service of the petitioner from

07.09.1994. The Respondent has relied upon the following judgments

passed by the Hon'ble Supreme Court:

1. (2014) 14 SCC 50 (Renu & Ors. Vs. District & Sessions Judge,

Tis Hazari Courts, Delhi & Anr)

2. (2016) 8 SCC 293 (State of Maharashtra & Ors. Vs. Anita &

Anr)

3. 2015 (1) CHN (CAL) 211 (Sara Bengla Prerak Prerika Kalyan

Samiti Vs. Union of India)

Relying upon the judgment passed by the Hon'ble Supreme Court the

counsel for the respondent prayed for dismissal of the writ application.

This court has considered the rival submissions of the respective

parties, materials available on records and the judgements relied by the

respondent. In the year 1994 the petitioner has filed writ petition stating the

fact that the petitioner is working as Assistant Teacher since the year 1988

and prayed for regularisation of his service. This Court vide order dt.

07.09.1994 held that court cannot issue direction for regularisation but

keeping in view of the service of the petitioner this Court had directed the

respondents to consider the case of the respondent along with other eligible

candidates as and when posts in question are to be filled up and age bar of

the petitioner, if he selected may also be condoned. This Court also directed

the authorities to allow the petitioner to continue as approved teacher. As

the respondents have not complied with the order passed by this Court dt.

07.09.1994, the petitioner has again filed a writ petition which was

disposed of on 02.09.1998 wherein this Court has held that the petitioner is

entitle to get their pay scale till vacancies are filled up on regular basis.

The petitioner had moved a contempt application before this Court for

non compliance of the order dt. 02.09.1998 and while disposing of the said

contempt application on 04.08.2005 this Court directed the District

Inspector of Schools to implement the order passed by this Court within 12

weeks from the date of communication of the order.

Inspite of several direction passed by this Court the respondents failed to

comply with the orders and on 27th March 2014 the respondents have

appointed the petitioner as an Assistant Teacher and vide order dt.

31.03.2014 the salary of the petitioner was approved with effect from

28.03.2014.

The order passed by this Court dt. 07.09.1994 allowed the petitioner

to continue as approved teacher and vide order dt. 02.09.1998 this Court

held that the petitioner is entitled to get pay structure till vacancies are filled

up and vide order dt. 04.08.2005 this court directed to comply with the

declaration given by this Court within 12 weeks but the said order has not

complied by the respondents and only the respondents have appointed the

petitioner on 27.03.2014 and salaries were approved from 28.03.2014.

Admittedly the petitioner is working in the said school as Assistant teacher

and this Court has passed several direction to grant approved pay to the

petitioner, the respondents have never challenged the said orders and have

made communications for implementation of the orders passed by this

Court but instead of giving benefit of the approved pay scale to the petitioner

in terms of the various orders passed by this Court, the respondents have

approved the pay only with effect from 28th March 2014 and thus this court

is of the opinion that the petitioner is entitled to get his approved salary as

Assistant Teacher from 07.09.1994 in terms of the various orders passed by

this Court as mentioned above.

As regard to the regularisation of the service of the petitioner, this

court vide order dt.07.09.1994 categorically held that this Court in exercise

of its writ jurisdiction under Article 226 of the Constitution of India and as

per the Judgements passed by the Hon'ble Supreme Court as relied by the

respondents, this court cannot pass any direction for regularisation of the

service of the petitioner as prayed for by the petitioner.

In view of the above the writ petition is thus disposed of with the

direction upon the respondent authorities particularly the respondent no. 4

and respondent no. 7 to release the approved salary of the petitioner as

Assistant Teacher from 07.09.1994 till 27.03.2014 within a period of eight

weeks from the date of communication of this order.

WP No. 6798 of 2015 and connected applications IA No: CAN 1 of

2020 and IA: CAN 2 of 2020 stand disposed of.

Parties shall be entitled to act on the basis of a server copy of the

Judgment and Order placed on the official website of the Court.

Urgent Xerox certified photocopies of this judgment, if applied for, be

given to the parties upon compliance of the requisite formalities.

(Krishna Rao, J.)