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2002 Supreme(Cal) 556
High Court Of Calcutta
A. K. MATHUR, J. K. BISWAS
BAUL SARKAR - Appellant
Versus
MINA CHAKRABORTY - Respondent
F. M. A. 1167 Of 2000
Decided On : 08/20/2002
Indrani Pal, RASAMOJ MANDAL, S.Acharya
Illegal appointments cannot be regularised merely because of long service, as it violates the principles of equality and non-discrimination enshrined in Articles 14 and 16 of the Constitution of India.
Headnote:
REGULARISATION OF ILLEGAL APPOINTMENT - APPOINTMENT OF MATRON IN SCHOOL - RESERVED CATEGORY CANDIDATE - ISSUE: Whether the respondent's long service in the school entitles her to regularisation of her illegal appointment as Matron, despite the vacancy being reserved for a scheduled caste candidate?
Fact of the Case:
Respondent, appointed as Matron in a school in 1974 without following proper procedure, served for 21 years. The post fell vacant in 1992, and a selection panel approved a candidate from the scheduled caste category. The District Inspector of Schools rejected the respondent's request for regularisation, citing the vacancy's reservation. The respondent filed a writ petition challenging this decision.
Finding of the Court:
The High Court held that the respondent's appointment was illegal as it was not made against a sanctioned post and did not follow the prescribed procedure. The Court also noted that the post was reserved for a scheduled caste candidate, and the respondent did not belong to that category. Therefore, the respondent was not entitled to regularisation of her appointment.
Issues: 1. Whether the respondent's long service in the school entitled her to regularisation of her illegal appointment. 2. Whether the reservation of the post for a scheduled caste candidate barred the respondent's regularisation.
Ratio Decidendi: 1. The Court held that long service alone cannot regularise an illegal appointment. It cited Supreme Court precedents stating that appointments made in violation of rules cannot be regularised, as it would violate Articles 14 and 16 of the Constitution, which guarantee equality and prohibit discrimination. 2. The Court also held that the reservation of the post for a scheduled caste candidate was valid and in accordance with government circulars. The respondent, not belonging to that category, was not entitled to the post.
Final Decision: The High Court allowed the appeal, set aside the lower court's judgment, and dismissed the respondent's writ petition. The Court held that the respondent's appointment was illegal and could not be regularised, and that the appellant, who was duly selected, was entitled to be appointed to the post.
( 1 ) - This is an appeal filed against the judgment and order dated 26th March, 1999 passed by Shyamal Kumar Sen, J. (as His Lordship then was ). It was passed on a writ petition which had been registered in this Court under Civil Order No. 17829 (W) of 1996. The said writ petition had been filed by the respondent No. 1 herein.
( 2 ) BY the said judgment and order the learned Judge directed the State-respondents to regularise, with effect from 17th November 1992, the appointment of respondent No. 1 in the post of Matron at 'alipore Vidyamandir', Post Office: Nimta, Calcutta-700 049 (hereinafter referred to as 'the said school); and to give her all the consequential benefits.
( 3 ) THE appellant, who felt aggrieved by the said judgments and order was, however, not a party to the said writ petition. On application, leave was granted to the appellant to prefer the present appeal against the said judgment and order.
( 4 ) THE said writ petition was filed challenging a decision dated 18th September 1996 given by the District Inspector of Schools (SE), Barrackpore, District: North 24-Parganas of the State of West Bengal. The said decision was communicated to the Secretary of the said school by Memo No. nil dated 11th October, 1996. The relevant portions of the said decision are quoted below:"the only sanctioned post fell vacant on 17th November 1992 due to the death of Smt. Anima Chakraborty. The S/a had submitted application praying for P. P. to fill up the vacancy as per recruitment procedure. The P. P. was also accorded vide No. 328/bkp dated 28. 3. 95 from SC category following which a panel on the bonus (sic. basis) of a list submitted by the Employment Exchange Dum Dum was prepared by the Selection Committee. The said (sic. panel) was submitted to the D. I. /s for accordance of approval. The D. I. /s in turn accorded his approval to the panel communicated to school vide No. 763/bkp dated 7. 9. 95. Appointment could not have been made due to the maintenance of status quo of the petitioner granted by the Hon'ble High Court. No Attendance Register could be submitted in support of her serving the Institution while the S/s agreed that she has been actually serving the school as described hereinbefore. The age of the petitioner is 45 years at present. Considering the facts and circumstances described hereinbefore, it appears that only one sanctioned post of Class IV staff file vacant on 17. 11. 92 and the said vacancy being the first one according to the 50 point roster (now 100 points) had already been permitted by this office to fill up from scheduled caste category from the second stage of Recruitment Procedure. It further appears that the school authority in turn prepared a panel of three scheduled caste candidates which was also approved by this office vide No. 763/bkp dated 7. 9. 95 and appointment will be made out of the said approval panel. Since the post is reserved for scheduled caste the petitioner's claim to absorb her in the said post does not therefore (sic.) justified. In view of her long service in the Institution on a meagre remuneration of Rs. 100/- per month from the "development Fund" of the school she may be considered for absorption subject to the prior approval of the Director of School Education, West Bengal in any future vacancy of Class IV staff as and when it may (sic ). The said representative (sic.) of the petitioner (annexure 'b') is thus disposed of. "
( 5 ) THE case of the respondent No. 1 in her writ petition was as follows:-on 1st August 1974, the then Managing Committee of the said school appointed her as Matron (Group-D staff ). She had been serving the said school without any break; on a fixed monthly remuneration of Rs. 100. The post of Matron of the said school was not an approved one. She was appointed; and continued to work in place of Smt. Anima Chakraborty who died in November 1992. She rendered long 21 (twenty-one) years' continues service to the said school; and in t
