Mudassar Rahaman vs The State Of West Bengal & Ors
2023 Latest Caselaw 5152 Cal

Court No.             IN THE HIGH COURT AT CALCUTTA
18.8.2023              Constitutional Writ Jurisdiction
                              Appellate Side
(Item No. 4)

(AB)                      W.P.A. 21069 of 2017

                           Mudassar Rahaman
                                    VS
                      The State of West Bengal & Ors.

                     Mr. Golam Mostafa
                     Mr. T. S. Samanta
                                       ...... for the petitioner
                     Mr. Bhaskar Prasad Vaisya
                     Mr. Suman Dey
                                       ..... for the State


                      The petitioner claimed to have been working as

               a Group - D staff at one Salaidanga High School,

               District - Malda (for short, the school). The school

               at present is a Higher Secondary School.               Two

               vacancies were cropped up for the post as would be

               evident from the facts discussed in the impugned

               order dated July 5, 2017, Annexure P-6 at page 36

               to the writ petition passed by the respondent No. 3.

Such fact is not disputed by the parties. The

petitioner was appointed as a Group - D staff

pursuant to a letter of appointment issued by the

school dated June 30, 2003, Annexure P-2 at page

19 to the writ petition with effect from May 1, 2000

on a temporary basis in the General category. The

terms of appointment, inter alia, specified that, the

service of the petitioner would be temporary till formal

regularization and approval is granted by the

respondent No. 3 and upon such approval and

regularization being granted, the pay scale and salary

of the petitioner would be fixed as per the Grant-in-

Aid Rules (for short G.A. Rules). The petitioner

joined as would be evident from page 20 to the writ

petition. The petitioner then on January 28, 2016

made a representation and applied before the

respondent No. 3 seeking approval of his employment,

Annexure P-3 at page 21 to the writ petition. Such

representation was pending.

The petitioner applied before this Court

through W.P. No. 3379 (W) of 2016. The writ

petition was disposed of by a co-ordinate bench by its

order dated December 7, 2016, Annexure P-4 at

page 25 to the writ petition, inter alia, directing the

respondent No. 3 to consider and decide the said

representation of the petitioner in the manner and

mode as stated therein.

Pursuant to the said direction of the co-

ordinate bench the respondent No. 3 decided the issue

by passing its impugned order dated July 5, 2017,

Annexure P-6 at page 36 to the writ petition. The

same has been assailed through the instant second

round of writ litigation initiated by the petitioner.

Mr. Golam Mostafa, learned counsel for the

petitioner submitted that, on a perusal of the said

impugned order dated July 5, 2017, it would be

evident that, the respondent No. 3 had failed to

appreciate the petitioner has been working in his

employment since 2003, about fourteen years as on

the date of the said impugned order against a meager

contractual wage. He submitted that, at the relevant

point of time when the petitioner was appointed, the

vacancy was cropped up due to the up gradation of

the school to class-X and the school was in dire crises

of Group-D staff. The Managing Committee of the

school by way of adopting a resolution dated June 21,

2003 engaged the petitioner and appointed him as a

contractual Group-D staff on the terms and

conditions mentioned in the appointment letter

already referred to above. He submitted that, the

petitioner has been carrying out his employment with

an unblemished career and has been rendering

service to the school. The Managing Committee at the

relevant point of time thought it fit to appoint the

petitioner to meet the immediate dire necessity of a

Group -D staff at the school. He submitted that, the

Managing Committee sought for permission from the

jurisdictional District Inspector of Schools but the D.I.

since has not accorded his permission and kept the

request of the school pending. The Managing

Committee was compelled to appoint the petitioner to

meet the dire crisis in the school. The petitioner had

no role to play in it. The petitioner had received

employment, which is otherwise valid in law, and has

been working. With the passage of time a legitimate

expectation had accrued in favour of the petitioner to

receive approval of his employment. He submitted

that, the appointment of the petitioner was valid and

legal as the Managing Committee being the

appropriate authority had appointed the petitioner

and in the similar circumstance for the similarly

placed employees, their employment were approved

and regularized by the appropriate State authority. In

support, he has placed reliance upon the following

judgments of the Hon'ble Supreme Court:

(a) In the matter of: Sheo Narain Nagar and others V. State of Uttar Pradesh and others reported at AIR 2018 Supreme Court 233;

(b) In the matter of: Food Corporation of India V. Gen. Secy, FCI India Employees Union and others reported at AIR 2018 Supreme Court 3902;

(c) In the matter of: Narendra Kumar Tiwari and others. Etc. V. State of Jharkhand and others Etc. reported at AIR 2018 Supreme Court 3589;

Mr. Golam Mostafa, learned counsel for the

petitioner submitted that, the impugned order cannot

sustain both on fact and law and should be set aside

and necessary direction should be passed for approval

and regularization of the employment of the petitioner.

Mr. Suman Dey, learned State counsel led by

Mr. Bhaskar Prasad Vaisya, learned Additional

Government Pleader referring to the impugned order

submitted that, the relevant Rule governing the

employment of the petitioner being Rule 28 of the

Management of Recognized Non-Government

Institutions (Aided and Un-Aided) Rules, 1969 (for

short, the 1969 Rules) has duly been discussed by

the respondent No. 3 and considered while passing

the impugned order. He further submitted that, the

relevant Government Memo being 1738 (21)-G.A.

dated 01.11.1999 (for short, the State Government

Memo) governing the guidelines for appointment of a

Group -D staff has also been discussed and

considered by the respondent No. 3. Upon

consideration of all these relevant provisions, the

respondent No. 3 with due application of his mind,

passed the reasoned order holding that, the

appointment of the petitioner was illegal and without

any sanction of law. The question of approval or

regularization of his employment cannot arise.

Referring to the same he submitted that, the

impugned order is well versed and reasoned and there

is no scope for any interference with the same. Mr.

Dey, learned State counsel further submitted all the

judgments referred to by the learned counsel for the

petitioner and the ratio decided therein would have no

application in the facts of this case. He submitted

that, since the appointment in the facts of this case

was grossly illegal and in violation of the relevant

Rules and process prevailing at the relevant point of

time, the ratio in all the judgments would not apply.

In all the cases in the said three judgments as

referred to by the learned counsel for the petitioner

the appointments were considered to be irregular but

not illegal and in this case the appointment is illegal.

Considering the rival contentions of the parties

and considering the materials on record, this Court

first reiterates the scope of judicial review by this

Court in exercise of its power under Article 226 of the

Constitution of India. This being a constitutional

Court while exercising its power under judicial review

has a very limited authority and jurisdiction to assess

the impugned order. This Court will only interfere

with the impugned order if there is infirmity found in

the decision making process and if there exists any

glaring perversity on the face of the impugned order.

Keeping in mind the said settled principles of

law, this Court proceeds to assess the said impugned

order dated July 5, 2017 passed by the respondent

No. 3. On a scrutiny of the said impugned order it

appears that, the relevant Rules and the guidelines

have duly been considered by the respondent No. 3.

Rule 28 of the said 1969 Rules starts with the

expression that, in an aided institution the

committee shall, subject to the provisions of any

grant-in-aid scheme or pay revision scheme or any

order or direction or guidelines issued by the

State Government or director in connection

therewith and in force for the time being have the

power to appoint a non-teaching employee on

permanent or temporary basis against the

permanent or temporary vacancy if and when

available. Admittedly there was a vacancy for the

general category at the relevant point of time when the

petitioner was appointed against a sanctioned post.

The respondent No. 3 bestowed with the jurisdiction

of fact finding enquiry, has specifically come to its

conclusion upon perusal of all the relevant records

before it that following the said provisions under the

1969 Rules or the said memo containing the

guidelines for appointment, the provisions were not at

all followed and the appointment of the petitioner was

totally at the whims and will of the Managing

Committee of the school. The relevant observations

from the impugned order dated July 5, 2017 passed

by the respondent No. 3 is quoted below:

"Now it appears from the school record supplied by the Headmaster of the concerned school that there were 02 (two) sanctioned posts of Gr. D staff at the material point of time as follows:

i) Vacancy occurred on 17.12.1999 vice Md. Basir, died in harness on 16.12.199. According to Roster of appointment this post is 1st post, reserved for Scheduled Caste.

ii) Vacancy occurred on 01.05.2000 due to up-gradation of the School from 4- class Jr. High School to X-class High School. According to Roster of appointment this post is 2nd post, unreserved.

It also appears that the Rules regarding recruitment of Non-teaching staff prevalent at the material point of time in terms of Rule 28 of Rules for Management of recognized Non-Govt. Institution (Aided & Unaided), 1969 was issued by the Director of School Education, West Bengal vide Memo No. 1738(21)-G.A. dated 01.11.1999. According to this Rule -

(1) All appointment of non-teaching staff (Librarian, Clerk, Group D Staff) shall be made with the prior permission of the District Inspector of Schools (S.E.) of the respective District against sanctioned post.

(2) On receipt of permission from the District Inspector of Schools (S.E.) the School authority shall approach the Local Employment Exchange for sponsoring names of the Employment Exchange candidates.

(3) In case of non-receipt of names from the Employment Exchange the School may advertise in any State Level Daily Newspaper under intimation to the District Inspector of Schools (S.E.) (4) There will be a Selection Committee to be formed with the Headmaster, Secretary, one Headmaster of other school and one nominee of the local Panchayat Samity.

(5) An interview of the candidates to be done as per guideline mentioned therein, etc. Regarding procedure of selection of the petitioner, the Headmaster informed that a 'Notice' dated 07.06.2003 was published by

the Secretary of the then Managing Committee seeking application for appointment of a Gr. D Peon post and the said Notice was circulated in the locality. The petitioner is a local boy and he was the only applicant and accordingly the Managing Committee of the School by a resolution dated 21.06.2003 decided to appoint the petitioner on temporary basis. It is also informed that -

1) Prior permission from the District Inspector of Schools (S.E.), Malda was not obtained.

2) Local Employment Exchange was not requested to send names or advertisement in the Newspaper was not done.

3) No Selection Committee was formed.

4) No interview was held.

So, it is evident that though there was sanctioned vacant post but the petitioner was not appointed after following due selection process in terms of Rules prevalent at the material point of time. In view of the above, in strict compliance with the order of the Hon'ble High Court, the representation dated January 28, 2016 of the petitioner regarding regularization of service is hereby rejected in accordance with law."

The fact finding enquiry by and the

observation of the respondent No. 3 as quoted above

from the impugned order would clearly demonstrate

that the appointment of the petitioner was illegal and

wrongful and totally in contravention with the

established procedure of law.

In the matter of: Sheo Narain Nagar and

other (supra) there was no rule of law existing

governing the appointment of the employees. In such

situation since the employees have been working

since long were directed for being regularized, such is

not the case here. In the instant case, admittedly, the

relevant recruitment rules and procedure/guidelines

were there and the same were not followed in any

manner while giving appointment to the petitioner.

In the matter of: Food Corporation of India

(Supra) the employer failed to establish its claim

against the employees as to why the employees shall

not be regularized before the jurisdictional Tribunal.

Such is not the case here. In the instant case,

admittedly, the appointment of the petitioner at the

threshold was illegal. Hence the question of granting

any approval for his employment did not arise.

In the matter of: Narendra Kumar Tiwari

(Supra) it was held that, a liberal interpretation

should be given to prevailing regularization Rules to

regularize the employment of the employees. Such is

not the case here. In the instant case the recruitment

Rules were not at all followed and the appointment of

the petitioner was in contravention thereto and

without following the due process of law.

When a Rule having a statutory flavor and

force prescribes an act to be done in a specific manner

specified therein, such an act has to be done in strict

compliance thereof or not at all and any act done in

any other mode without following the established

procedure of law shall be considered to be forbidden.

In view of the foregoing reasons and

discussions, this Court is of the firm view that, the

impugned order dated July 5, 2017, Annexure P-6 at

page 36 to the writ petition does not warrant any

interference by this Court.

The order dated July 5, 2017, Annexure P-6

at page 36 to the writ petition stands affirmed.

On the above terms, this writ petition being

W.P.A. 21069 of 2017 being devoid of any merit

stands dismissed, without any order as to costs.

The office report dated October 23, 2017 shows

that, despite direction made by a co-ordinate bench

dated August 18, 2017 no affidavit-in-opposition was

filed. Considering the age of pendency of this writ

petition and considering the issue involved therein,

this Court proceeded to dispose of the writ petition

and accordingly the same is decided.

Urgent certified photo copy of this order, if

applied for, be supplied to the parties expeditiously on

compliance of usual legal formalities.

(Aniruddha Roy, J.)