Calcutta High Court (Appellete Side)
Saroj Kumar Panigrahi & Anr vs The State Of West Bengal & Ors on 30 June, 2022
30.06.22
11 Ct. No.15
Sws.M
WPA 25180 of 2015
Saroj Kumar Panigrahi & Anr.
vs.
The State of West Bengal & Ors.
Mr. Uttam Kumar Bhattacharyya
Mr. Kaustav Mishra
......for the petitioners
Ms. Chaitali Bhattacharya
Mr. Kartik Chandra Kapas
....for the State-respondents
The present writ petition is preferred by the
two organizing staff of upgraded section of a
Secondary School claiming regularization in view
of their initial appointment in the upgraded
section which was recognized subsequent to
their appointment. The school in question was a
IV Class Junior High School and subsequently
upgraded as High School having Classes IX and
X with effect from 1st May, 1999 and
subsequently with effect from 1st May, 2000.
Petitioner No. 1, namely, Saroj Kumar
Panigrahi having academic qualification of B.Sc
(Pure Science) and B Ed. was appointed as an
Assistant Teacher on 11th March, 1996 and
petitioner No. 2, Sandhya Roy was appointed as
Metron with effect from 2nd January, 1979.
While preferring this writ petition both of them
claimed regularization as organizing teaching
and non-teaching staff of the school upon
setting aside the decision of the Secretary,
School Education Department, Government of
West Bengal, being the respondent No. 2 under
Memo dated 16th July, 2015.
Mr. Uttam Kumar Bhattacharyya, learned
advocate representing the petitioner has
submitted that during pendency of this writ
petition, the petitioner No. 2 crossed the age of
superannuation on 3rd January, 2019.
Therefore, her case can not be considered for
regularization. However, the petitioner No. 1 is
still within the prescribed age limit considering
the date of superannuation of a teaching staff.
Therefore, case of petitioner No. 1 needs to be
considered for regularization.
In support of the case of regularization as
made out in the writ petition, it has been
submitted that the issue was considered
previously by learned Single Judge of this Court
as well as Hon'ble Division Bench and ultimately
traveled to the Hon'ble Supreme Court in
connection with Civil Appeal No. 7901 of 2010,
which was disposed of on 19th February, 2015.
Reliance has been placed on the relevant part of
the said order of the Hon'ble Supreme Court,
which is quoted below:
"The appellants, in fact, were
appointed, as it appears from the facts
of the case, in such School by the
Managing Committee of the Junior High
School as at that point of time was
Class IX and X previously recognized by
the Authorities Meaning thereby, the
West Bengal Board of Secondary
Education subsequent thereto, it
appears to us that the said School was
upgraded and was duly recognized by
the State Secondary Education Board.
In view of that, it appears to us that the
appellants since working for such a long
time in the said School, their cases
should be considered by the Authorities
in the light of the provisions of law
taking into consideration the West
Bengal School Service Commission Act,
1997 and in our opinion at the time of
such consideration, it would be the
pleasure of the State Authorities to find
out whether the appellants who have
filed this appeal before us are still with
the School or not. We, however, make it
clear that the State Authorities without
being influenced with the Orders so
passed by the High Court on the basis
of Judgment reported in 2006(4) SCC 1
shall deal with the matter and pass a
reasoned order in the matter in
accordance with law after giving
personal hearing to the appellants
herein. If they find that the appellants
were working in the School, in that case,
they shall consider the case of the
appellants sympathetically.
The Appeal is disposed of in the
afore-stated terms."
It has been submitted that pursuant to
such order of the Apex Court, the respondent
No. 2 decided the matter against the petitioners
and refused to grant approval in favour of the
petitioners by issuing Memo dated 16th July,
2015, which is the subject matter of challenge in
the present writ petition in addition to claim for
regularization.
Previously, while considering the issue this
Court directed Ms. Chaitali Bhattacharya,
learned Senior Government Advocate to submit
a report in the form of affidavit in order to
indicate the availability of approved posts in the
school in question against which claim of the
petitioner No.1 for regularization can be
considered. Pursuant to such direction on behalf
of the State-respondents, an Affidavit has been
affirmed wherefrom it appears that there are
three teaching posts lying vacant in the school
at present - one is due the retirement of the
Head Master on 31st May, 2014 and another two
posts of Assistant Teachers are lying vacant due
to retirement of one Sri Samir Kumar Kar
Mahapatra and another Sri Debabrata Giri; one
teaching post is meant for Assistant Teacher in
Bio Science another post of Assistant Teacher is
for Physical Education.
In this backdrop the matter is heard today
at length in presence of the learned advocates
representing the petitioners and the State-
respondents.
Though reliance has been placed on the
order of the Apex Court dated 19 th February,
2015, but in the said order in no uncertain term
it was observed that the appellants since
working for long time in the school in question,
their cases should be considered by the
authorities in the light of the provisions of law
taking into consideration the West Bengal
School Service Commission Act 1997.
In view of such observation made by the
Apex Court, this Court has posed query of Mr.
Bhattacharyya, representing the petitioners that
how the said enactment of 1997 helps the
petitioners in the matter of regularization when
reliance has been placed on Section 10 of the
School Service Commission Act, 1997. For
better understanding, Section 10 of the School
Service Commission Act, 1997 is reproduced
below:
"10. Protection of Teachers -
Notwithstanding anything contained
elsewhere in this Act the terms and
conditions of service of Teachers in the
employment of a school immediately
before commencement to this Act shall
not be varied to the disadvantage of
such Teachers in so far as such terms
and conditions relate to the appointment
of such Teachers to the posts held by
them immediately before the
commencement of this Act."
On consideration of the provisions of
Section 10, it does not appear that it helps the
petitioner No. 1 in any manner in the matter of
obtaining a writ of mandamus relating to
regularization of his service upon treating him as
a bonafide organizing teacher. The purport of
Section 10 confers the right upon the teachers in
employment of a school immediately prior to
commencement of the Act to continue under the
same capacity without varying the terms and
conditions of the service of such teaching staff.
In the present case, indisputably the petitioner
No. 1 was working as unapproved organizing
teacher at the time of promulgation of West
Bengal School Service Commission Act 1997.
Therefore, Section 10 does not come in aid of the
petitioner No. 1 for regularization of service.
In addition thereto, reliance has also been
placed on behalf of the State-respondents upon
an unreported judgement of the Hon'ble Division
Bench dated 6th July, 2018 on an intra-court
appeal being MAT 1626 of 2017 [District
Inspector of Schools (Secondary Education),
Burdwan & Ors. vs. Abdul Barik Shaikh &
Ors.]. The purport of the said judgment of the
Hon'ble Division Bench goes to show that the
judgment delivered by the Hon'ble Division
Bench in the case of Manindra Nath Sinha &
Ors. Vs. State of West Bengal & Ors. reported in
(2006)4CHN 513 having been affirmed by the
Hon'ble Apex Court needs to be followed by all
Benches of this Court in the cases involving
similar fact situation. This Court finds it apt to
quote paragraph 19 of Abdul Barik Shaikh
(supra) below:
"19. Applying the law laid down
here, we hold that Manindra Nath
Sinha (supra) having been affirmed by
the Supreme Court, all Benches of this
Court in cases involving similar fact
situation are bound to follow the same
as a binding precedent and any
decision of a learned Judge or Judges,
which runs counter to the dicta in
Manindra Nath Sinha (supra),
Smritikana Maity (supra), Gita Banik
and Gopal Singh (supra), is not good
law."
In Abdul Barik Shaikh (supra), the Hon'ble
Division Bench took into consideration the
relevant judgments delivered by this Court in
the matter of regularization of service of
organizing teaching and non-teaching staff
appointed in upgraded section of a Government
recognized Secondary School on it upgradation.
Therefore, this Court is not separately dealing
with those judgments and relying upon other
judgments as referred to in paragraph 4 of Abdul
Barik Shaikh (supra).
This Court has also tried to ascertain upon
giving direction to the State-respondents to file a
report in the form of affidavit, whether the posts
are lying vacant in the School in question
against which the claim of petitioner no. 1 can
be considered. It appears from paragraph 7 of
the said affidavit affirmed on 21 st June, 2022
that apart from the post of Head Master which is
lying vacant, there are two posts of Assistant
Teachers lying vacant presently in the school in
question. One is earmarked for Assistant
Teacher of Bio Science and another is in Work
Education and Physical Education group. The
qualification of petitioner no. 1 is B.Sc. (Pure
Science) B. Ed. Therefore, considering the
nature of vacancies of teaching posts available in
the school in question it appears that the
petitioner No. 1 cannot be accommodated in any
one of the said two posts lying vacant.
This Court has also perused the decision of
the respondent No. 2 as contained in Memo
dated 16th July, 2015. Upon considering the
entire gamut of the issue and also taking into
consideration the observation made by the
Hon'ble Supreme Court in the order dated 19th
February, 2015, the respondent no. 2 found that
since the petitioners were not appointed in
conformity with the relevant rules applicable at
the material point of time, even the claim of the
petitioners is considered sympathetically, no
relief can be granted to them.
In view of aforesaid discussion, this Court
does not find any flaw in the decision of the
respondent No. 2 while considering the claim of
the petitioners being organizing teachers,
specially taking into consideration of the
decision rendered in Abdul Barik Shaikh
(supra).
Accordingly, this Court does not find any
merit in the writ petitioner and the same stands
dismissed.
However, there will be no order as to costs.
Urgent Xerox certified copy of this order, if
applied for, be supplied to the parties, subject to
compliance with all requisite formalities.
(Saugata Bhattacharyya, J.)
