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2010 Supreme(Cal) 397
High Court Of Calcutta
K.J. Sengupta, Md. Abdul Ghani, JJ.
State Of West Bengal : Appellant
Versus
Husna Banu : Respondent
F.M.A. No. 771 of 2008
Decided On : Apr 13, 2010
Washef Ali Mondal, Malay Kumar Basu, Swapan Banerjee, Ashok Banerjee, Mintu Kumar Goswami
The regularization of the appointment of one similarly situated teacher, pursuant to a court order, creates a case of discrimination if the appointment of another similarly situated teacher is not regularized on the same grounds.
Headnote:
EDUCATION - APPOINTMENT - REGULARIZATION - DISCRIMINATION - VALIDITY OF APPOINTMENT - SCHOOL SERVICE COMMISSION ACT - ARTICLE 14 OF THE CONSTITUTION OF INDIA: The appointment of a teacher in a school, made by a legally valid Managing Committee, cannot be held to be void ab initio merely because the School Service Commission came into force subsequently. The subsequent regularization of the appointment of another teacher, similarly situated, by the State, pursuant to a court order, creates a case of discrimination if the appointment of the petitioner is not regularized on the same grounds.
Fact of the Case:
The petitioner was appointed as an Assistant Teacher in a school by the Managing Committee on March 29, 1994, before the School Service Commission came into force. Her appointment was not approved by the District Inspector of Schools. Another teacher, Mukti Sinha, who was similarly situated, filed a writ petition and obtained an order for regularization of her appointment. The petitioner then filed a writ petition seeking similar relief. The learned Trial Judge allowed the writ petition and directed the State to regularize the petitioner's appointment.
Finding of the Court:
The Court held that the appointment of the petitioner was not void ab initio as it was made by a legally valid Managing Committee. The subsequent regularization of Mukti Sinha's appointment created a case of discrimination if the petitioner's appointment was not regularized on the same grounds. The Court also held that the School Service Commission Act did not apply to the petitioner's appointment as it was made before the Act came into force.
Issues: 1. Whether the appointment of the petitioner was void ab initio? 2. Whether the regularization of Mukti Sinha's appointment created a case of discrimination? 3. Whether the School Service Commission Act applied to the petitioner's appointment?
Ratio Decidendi: 1. The appointment of the petitioner was not void ab initio as it was made by a legally valid Managing Committee. 2. The regularization of Mukti Sinha's appointment created a case of discrimination as the petitioner was similarly situated and her appointment was not regularized on the same grounds. 3. The School Service Commission Act did not apply to the petitioner's appointment as it was made before the Act came into force.
Final Decision: The Court dismissed the appeal and affirmed the judgment of the learned Single Judge.
K. J. Sengupta, J.
1. THIS appeal is at the instance of the State impugning the judgment and order of the learned Trial Judge dated 10th September 2004 passed in Writ petition No. 3163(W) of 2003. The short fact of the case for which this writ petition was filed by the respondent is stated hereunder:
2. THE writ petitioner was appointed as Assistant Teacher in Burnpur Sri Guru Nanak High School (hereinafter referred to as the said School) by the Managing Committee of the said School on 29th March 1994. It appears from the said letter of appointment she was appointed with effect from 1st April 1994 on consolidate basic pay of Rs. 300 per month as an unapproved teacher as at that pint of time there were vacancies in the School which were not filled up. THE said letter of appointment was issued by the then Secretary of the Managing Committee of the said School as she was found to have requisite qualification. Since then she has been rendering services in the said School. Despite repeated representations being made her appointment was not approved by the District Inspector of Schools.
One Mukti Sinha an Assistant Teacher in Geography who was also similarly placed with that of the petitioner was also appointed by the said School even without any appointment letter being issued. In view of non approval of the appointment by the State Mukti Sinha filed a writ petition praying for relief for approval to her appointment. The Hon'ble Mr. Justice Amitava Lala (as His Lordship then was) by an order dated 12th January 2000 was pleased to allow the prayer of the said Mukti Sinha by directing the District Inspector of Schools to regularize her service. Pursuant to the said order the District Inspector of Schools passed order dated 15th November, 2000 approving the appointment of said Mukti Sinha in the said School. At that time as there were as many as 21 sanctioned teaching posts and out of which 9 posts were lying vacant. Even additional posts of teachers were also sanctioned. In view of approval of appointment of Mukti Sinha the petitioner- respondent herein filed a Writ Petition being WP No. 82 (W) of 2001 asking for the similar relief as it was granted to Sm Mukti Sinha. The said Writ Petition was disposed by Hon'ble Justice D.P. Kundu (as His Lordship then was) directing the Director of School education to consider the petitioner's case. Thereafter the petitioner was heard by the Director of School Education however, her prayer for approval and/or regularization was turned down. While rejecting the case of the respondent the Director of School Education came to finding that the petitioner was not appointed in accordance with the recruitment rules. The existing vacancy could be filled up by School Service Commission under concerned Act which came into force in November 1997.
3. THE respondent/writ petitioner challenged above order of Director of School Education with the prayer for approval of the appointment of the respondent. THE learned Trial Judge after considering the fact and large number of decisions of Supreme Court and High Courts then holding the field on this issue was pleased to set aside the order of the Director of School Education, and to direct the State respondent to take necessary steps for regularization and/or approval of the appointment of the writ petitioner for the post of Assistant Teacher of the School in Social Science Group.
4. THE present appeal has been filed aggrieved by the judgment and order passed by the learned Single Judge. It appears from the records during pendency of this appeal this Court once directed the Director of School Education to reconsider this aspect and the matter was reconsidered by the Director of School Education but same stand was taken by the Director recording that it was not legally possible to approve of the appointment as at that point of time there has been no lawful Managing Committee to take any decision much less appointment. Moreover, such appointment was absolutely
