Back
2009(2) Supreme 127
SUPREME COURT OF INDIA
Markandey Katju and V.S. Sirpurkar, JJ.
State of West Bengal & Ors. — Appellants
versus
Banibrata Ghosh & Ors. — Respondents
Civil Appeal No. 559 of 2009
(Arising out of SLP(C) No. 25130 of 2007)
Decided on : 02-02-2009
(2006)4 SCC 1 – Relied upon.
(b)Constitution of India,1950 – Article 226 – An interim order does not decide the fate of the parties to the litigation finally – It is always subject to and merges with the final order passed in the proceedings – Non-filing of appeal thereagainst is of no consequence. (Para 15)
(c)Constitution of India,1950 – Article 226 – When the writ petition came up for hearing after 10 long years, this long pendency of the petition cannot be viewed against the State Government, which could not be said to be responsible for such long pendency – At the same time that could not be viewed in favour of the original Writ Petitioner – Approach of the Division Bench is completely faulty. (Para 16)
(d)Service Law – Back Wages – Division Bench allowing 50% of the back wages for the period for which the respondent was out of service pursuant to rejection of his writ petition – Wholly unjustified as ‘no work no pay’ would apply. (Para 16)
Facts of the case :
1. A leave vacancy occurred in the post of Assistant Teacher (Bio Science) to which Respondent no.1 was appointed on temporary basis for a period of six months from 24.1.1991 to 2.7.1991. His appointment was later on approved by the concerned District Inspector.
2.Eventually, the said leave vacancy continued for more than six months and his services were extended from 3.7.1991 to 31.12.1991 and this extension was also approved by the District Inspector of Schools. After the tenure of service ended on 31.12.1991 for some explicable reasons, the respondent no.1’s appointment was extended from 2.1.1992 to 31.3.1992. However, this extension was not approved by the District Inspector of Schools, instead District Inspector of Schools requested the school to take fresh steps to fill in the said vacancy.
3.A fresh advertisement was, therefore, published on 23.2.1992. The respondent no.1 applied and was again selected and he was thus given appointment on the previous terms for a period from 3.4.1992 to 30.6.1992.
4.On 3.7.1992, the original incumbent on the post who had gone on leave and in whose place the respondent was appointed resigned and as a result, a substantive vacancy arose in the permanent sanctioned post of Assistant Teacher in Bio Science group.
5.Respondent no.1 made a representation on 14.8.1992 and also filed a writ petition for his absorption and regularization in the permanent vacancy with effect from his appointment and also an injunction against the appellants herein restraining them from proceeding in any way, in filling up the said vacancy.
6. The High Court passed an interim order directing the District Inspector of Schools to regularize the appointment of respondent no.1 by 15.1.1993 and also to submit a report about the regularization by 22.1.1993. Accordingly, approval was accorded on 15.10.1993 w.e.f. from 4.1.1993 and then the respondent continued to serve on the basis of the orders passed.
7. Ultimately after 10 years, the Writ Petition came up for hearing and the Learned Single Judge dismissed the Writ Petition holding that the petitioner in the writ petition had no right whatsoever for permanency.
8. A Writ Appeal against this judgment was allowed by the Division Bench.
Finding of the Court :
Division Bench adopted a wholly faulty approach.
Result : Appeal allowed.
JUDGMENT
V.S. Sirpurkar, J. —
1. Leave granted.
2. State of West Bengal has come up against the judgment of the Division Bench of the High Court allowing the appeal filed by the respondent no.1 herein and directing the State to treat the respondent no.1 as an approved Assistant Teacher of the concerned school and further to allow the respondent no.1 to resume his duties as an approved Assistant Teacher of the concerned school immediately. The High Court has further directed the authorities to pay 50% of the back-wages for the period the said respondent was out of service. It is further ordered that the respondent would also be entitled to receive all other admissible service benefits as a duly approved Assistant Teacher of the concerned school pursuant to the order of approval. Thereby, the High Court allowed the appeal filed against the judgment of the learned Single Judge of that court who had dismissed the Writ Petition filed by the respondent no.1. In his Writ Petition the respondent no.1 had sought for a writ of mandamus for regularization of his appointment as a Teacher in Shimulia High School in the State of West Bengal.
3. The following facts would clarify the controversy.
4. There is a school called Shimulia High School at Krishnanagar, District Nadia, West Bengal. A leave vacancy occurred in the post of Assistant Teacher (Bio Science), as the permanent teacher went on leave for six months initially. As per the Rules of the Government, the Managing Committee decided to fill up the said leave vacancy and for that purpose, obtained permission from the District Inspector of Schools, Secondary Education, Nadia. An advertisement came to be published on 11.12.1990 inviting applications from the eligible candidates. In pursuance thereto, the respondent no.1 applied with other candidates and the panel was ultimately prepared empanelling three candidates wherein the respondent no.1 was at the first position. The same panel was forwarded to District Inspector of Schools, Nadia who approved the said panel on 18.1.1991. On 23.1.1991, the respondent no.1 came to be appointed on temporary basis in the said leave vacancy for a period of six months from 24.1.1991 to 2.7.1991. His appointment was later on approved by the concerned District Inspector by his order dated 14.2.1991. Eventually, the said leave vacancy continued for more than six months and as a result, the respondent continued to work. His services were extended from 3.7.1991 to 31.12.1991 and this extension was also approved by the District Inspector of Schools. After the tenure of service ended on 31.12.1991 for some explicable reasons, the respondent no.1’s appointment was extended from 2.1.1992 to 31.3.1992. However, this extension was not approved by the District Inspector of Schools, instead District Inspector of Schools requested the school to take fresh steps to fill in the said vacancy. A fresh advertisement was, therefore, published on 23.2.1992. The respondent no.1 applied and was again selected and he was thus given appointment on the previous terms for a period from 3.4.1992 to 30.6.1992. On 3.7.1992, the original incumbent on the post who had gone on leave and in whose place the respondent was appointed resigned and as a result, a substantive vacancy arose in the permanent sanctioned post of Assistant Teacher in Bio Science group. A representation came to be made by the respondent no.1 on 14.8.1992 that since he had worked in the school as Assistant Teacher on and from 24.1.1991 to 30.7.1992 on adhoc basis and since the original incumbent of the post one Shri Shanker Biswas had submitted his resignation, the services of the respondent no.1 should be regularized. A Writ Petition came to be filed by him on 25.8.1992 registered as CO No.18711 (W) of 1992. Amongst other prayers, the respondent no.1 herein sought his absorption and regularization in the permanent vacancy with effect from his appointment and also sought an injunction against the appellants herein r
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
