State Of W. B. vs Alpana Roy - 2005 Supreme(SC) 1245

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2005 Supreme(SC) 1245

2005(6) Supreme 485
Supreme Court of India
(From Calcutta High Court)
Arijit Pasayat & G.P. Mathur, JJ.
State of West Bengal & Anr. —Appellants
versus
Alpana Roy & Ors. —Respondents
Civil Appeal No. 5895 of 2005
(Arising out of SLP (C) No. 19904/2004)
Decided on 26-9-2005
Counsel for the Parties :
For the Appellants : Tapash Ray, Sr. Advocate, Satish Vig, Advocate.
For the Respondents : Bijan Kumar Ghosh, Kanak Chatterjee, Advocates and Rajesh Srivastava, Advocate (NP).

Headnote:Service Law—Direction to Chairman, District Primary School Council to reconsider the case of writ-petitioner—Respondent to regularise her appointment in post of primary teacher—Board’s findings that original appointment letter contained several over writing and appeared to be a manipulated and fabricated document, Court found that said order of Board was subject matter of challenge and order was set aside subject to decision in writ petition—Judgment in writ petition was upheld by Division Bench—Appeal—High Court set aside report of Board without indicating any reasons—Without pointing out as to how decision of Board was wrong, High Court should not have set aside the order—High Court erred in holding that even if initial appointment was illegal, as school required some more teachers there was deemed acceptance of appointment—Impugned judgment was liable to be set aside.
       Held : We find that both learned Single Judge and the Division Bench have overlooked the basic features of the case and have proceeded to grant relief to the writ petitioner. The Board, on examination of all relevant documents, came to hold that the document which was claimed to be the order of appointment was a fabricated one. Further, no resolution of the Managing Committee was produced. Learned Single Judge set aside the report even without indicating any reasons and directed that approval to writ petitioner’s appointment should be accorded. It is the function of the body granting approval to examine whether in a particular case, approval is to be accorded. The approving authority’s function is not formal one. It has a duty to decide whether approval is to be accorded, taking into account governing statutes. The High Court has proceeded as if approval is an empty formality. On according of the approval certain financial implications of the State come into operation. Without pointing out as to how the decision of the Board was wrong, the High Court should not have set aside the order. The Division Bench even did not consider these aspects and held that even if there was no document, the appellants cannot take advantage of the legal principles after such a long lapse of time. The conclusion is clearly confusing. (Para 6)
       In the present case it is not necessary to go into the question as to who is the appointing authority. Dispute was raised in that regard. The undisputed position being that it was designated functionary of the State to accord approval, in the absence of any approval the direction as given by the High Court for regularizing the services of respondent No. 1 -writ petitioner, cannot be maintained. The reasoning of the High Court that there was no overt action on the part of the District Inspector of Schools to regulate initial recruitment process or in the absence of any direction or intimation about initiation of regular recruitment has no relevance to the dispute at hand. There appears to be non-application of mind by the learned Single Judge and the Division Bench to the basic issues. The High Court was clearly in error in holding that even if the initial appointment was illegal, in view of the purported fact that the school required some more teachers, there was deemed acceptance of the appointment. This view is also indefensible. Order of the learned Single Judge and judgment of affirmation by the Division Bench are set aside. (Para 9)

Judgment

Arijit Pasayat, J.—Leave granted.

2. The State of West Bengal and its functionaries, have challenged the correctness of the order passed by a Division Bench of the Calcutta High Court affirming the judgment passed by learned Single Judge.3. The factual background in a nutshell is as under:

Respondent No. 1 (hereafter referred to as the ‘writ petitioner’) filed a Writ Petition bearing No. C.O. 11932 (W) of 1989 before the Calcutta High Court. While the writ petition was pending, interim orders were passed directing the West Bengal Board of Primary Education (in short the ‘Board’) to consider whether the claim of the writ petitioner that she was appointed by the Managing Committee of the School i.e. Tangra Prathamik Vidyatan, Calcutta with effect from 2.1.1976, was correct. After examining various documents and taking into account the statements of the writ petitioner and the Secretary of the Managing Committee of the School it was noted that the document claimed to be the original appointment letter contained several over-writings and appeared to be a manipulated and fabricated document. Further, the resolution of the Managing Committee in respect of the proposed appointment was not produced. In the so-called letter of appointment also, there was no reference to an resolution of the Managing Committee for making the appointment. It was also noted that the school was recognized with effect from 1.1.1974 and several conditions were stipulated. One of these conditions stipulated was that no additional teacher was to be appointed or suspended from service without the prior approval of the Directorate of Education. In the list of approved teachers, name of the writ petitioner did not find place. All appointments to the post of primary teachers were to be made from the panel prepared by the District Primary School Council duly approved by the Director of School Education, West Bengal. In view of the factual position, as noted, it was held that the appointment, if any, as claimed by the writ petitioner is in gross violation of the statutory rules, orders and procedures and there was no genuine grievance which could be considered. The writ petition was disposed of by order dated 22nd November, 1999. The report of the Board was totally brushed aside and a direction was given to the Chairman, District Primary School Council to re-consider the case in the light of the fact that she was working for a long time and to regularize her appointment in the said post within a stipulated time, after giving the writ petitioner an opportunity of hearing and after passing a reasoned order. Though it was pointed out by the present appellants that in view of the findings recorded by the Board, the question of regularization does not arise, the High Court was of the view that the said order of the Board was the subject matter of challenge and the order was set aside subject to decision in the writ petition. No reason was indicated as to why the order of the Board was being set aside. That order of learned Single Judge was challenged by the present appellants before the Division Bench. By the impugned order, the Division Bench held that the object of rendering primary education cannot be lost sight of and merely because the writ petitioner’s name was not included in the panel of selected teachers, she cannot be deprived of the benefits of her claim. It was noted that there is a dispute as to whether the Managing Committee was appointing authority or the District School Board was the appointing authority. The High Court held that since the name of the writ petitioner was included in the list of unapproved teachers for a long time, this gives her right for approval even if her appointment was made de hors the Rules. There may not be any right on the appointee to claim regularization, but the State cannot take advantage of any legal principle and deny approval. Accordingly, the view of learned Single Judge was affirmed.

4. In support of the appeal, lea

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