Susanta Kumar Saha vs The State Of West Bengal & Ors
2023 Latest Caselaw 2699 Cal

                                    W.P.A. 19324 of 2018
04    19.04.2023
rkd   Ct.15
                                   Susanta Kumar Saha
                                           -vs-
                              The State of West Bengal & Ors.

                   Mr. Siddhartha Banerjee,
                   Mr. Sudipto Das Gupta,
                   Ms. Jyoti Rauth
                                                         ....for the petitioner.
                   Mr. Pinaki Dhole,
                   Mr. Pinaki Bhattacharya
                                                             ....for the State.

                            The petitioner is seeking regularisation of

                   service on the strength of appointment which was

                   made in favour of the petitioner by Balupur B.M.

                   Jr. High School, District- Malda vide letter dated 7th

                   August, 1999. Reliance has been placed heavily on

                   such appointment dated 7th August, 1999 which

                   goes to show that the petitioner was appointed in

                   the post of Clerk by the said school authority as per

                   unilateral decision of the school authority without

                   any prior permission from the concerned District

                   Inspector of Schools (S.E.), Malda.

                            Another limb of submission made on behalf

                   of the petitioner is applicability of principle of

                   comity of decisions in view of the order passed by a

                   coordinate Bench on a writ petition being WPA

                   16493 of 2004 which is at pages 86 to 88 of the

                   writ petition.

                            According to the petitioner the order dated
                               2




24th December, 2010 attained finality; therefore

without considering the contents of the order

whether the same can be implemented or not the

directions as contained in the said order need to be

given effect by regularisation of service of the

petitioner.    It     has   also   been     submitted     that

petitioner has been serving in the post of Clerk for

a considerable period of time that should be given

credence      while    considering    the    claim   of   the

petitioner for regularisation.

        The State respondents are represented by

learned advocates who have opposed the prayer of

the petitioner on the ground that appointment of

the petitioner in the post of Clerk in the aforesaid

school was made de hors the recruitment rules

therefore no right accrues in favour of the

petitioner.

Having considered the submissions made

on behalf of the respective parties, this Court finds

that the petitioner was appointed unilaterally by

the school authority without any prior permission

being issued by the concerned District Inspector of

Schools and the recruitment rules which was

prevalent at the material point of time was not

followed while inducting the petitioner as Clerk.

There is nothing on record which indicates that the

appointment of the petitioner was against the

sanctioned post.

It is true that an order was passed by a

coordinate Bench on 24th December, 2010 but on

perusal of such order it appears that the same was

passed without considering the recruitment rules

prevalent at the material point of time for

appointment of non-teaching staff in a Government

aided secondary school. It would have been the

duty of the petitioner to bring into the notice of the

coordinate Bench deciding the writ petition being

WPA 16493 of 2004 the recruitment rules which

was prevalent at the material point of time and

whether at all the appointment was made in favour

of the petitioner against the sanctioned vacancy or

not.

In absence of consideration of these

relevant aspects while deciding the right of the

petitioner to be regularised in respect of a post of

non-teaching staff in a Government aided

secondary school it appears that the order passed

by the coordinate Bench may not support the case

of the petitioner which has been made out in the

present writ petition.

In this regard, reliance has been placed on

the judgment of the Hon'ble Apex Court delivered in

the case of Secretary, State of Karnataka & Ors. -

vs- Uma Devi (3) & Ors., reported in 2006 Vol. 4

SCC 1.

In view of aforesaid discussion, it transpires

that no enforceable right has been accrued in

favour of the petitioner upon issuance of

appointment letter dated 7th August, 1999

warranting issuance of mandamus in order to

protect such right. Accordingly writ petition stands

dismissed.

However, there shall be no order as to

costs.

Urgent photostat certified copy of this

order, if applied for, be given to the learned

Advocates for the parties on the usual

undertakings.

(Saugata Bhattacharyya, J.)