Back
1993 Supreme(Cal) 270
IN THE HIGH COURT AT CALCUTTA
BHAGABATI PRASAD BANERJEE & ASHOK KUMAR CHAKRABORTY, JJ.
Headmistress, Dubrajpur Girls' High School & other
Versus
Pradip Kumar Mitra
F.M.A.T. No. 419 of 1991
Decided on : 10.6.1993
A.P. Sarkar, Manik Chandra Das for the Appellants.
Bhudeb Bhattacharyya for the State.
Pratap Chatterjee, Pranab Kr. Chattapadhyay for the Respondent.
Employees who have served for several years in a temporary or ad-hoc capacity are entitled to regularisation of their service, subject to certain conditions.
Headnote:
REGULARISATION OF SERVICE - NIGHT GUARD - ABSORPTION AGAINST PERMANENT VACANCY - SCHOOL EDUCATION - RULES AND REGULATIONS - INTERPRETATION AND APPLICATION - COURT'S POWER TO DIRECT REGULARISATION.
Fact of the Case:
The writ petitioner, who had served as a Night Guard in a school for several years, sought regularisation of his service against a permanent vacancy. The school authorities contended that the petitioner was not appointed by the Managing Committee and therefore could not be regularised.
Finding of the Court:
The court held that the petitioner was entitled to regularisation of his service, as he had been serving the school for several years and there was a permanent vacancy against which he could be absorbed. The court also held that the Managing Committee's resolution terminating the petitioner's service was invalid, as it was not communicated to him and was passed without following due procedure.
Issues: 1. Whether the petitioner was entitled to regularisation of his service as a Night Guard in the school? 2. Whether the Managing Committee's resolution terminating the petitioner's service was valid?
Ratio Decidendi: 1. The court held that the petitioner was entitled to regularisation of his service, as he had been serving the school for several years and there was a permanent vacancy against which he could be absorbed. The court relied on the following principles laid down by the Supreme Court: a) Where appointment was made on stop gap basis and continued for several years, the employees were entitled to be regularised in service. b) The question of regularisation in service must be examined keeping in mind the historical as well as Constitutional perspective. c) Substituted or ad-hoc teachers working for several years with requisite qualifications on the date of initial appointment was directed to be regularised without any Departmental Promotion Committee. 2. The court held that the Managing Committee's resolution terminating the petitioner's service was invalid, as it was not communicated to him and was passed without following due procedure.
Final Decision: The court dismissed the appeal filed by the school authorities and directed them to regularise the petitioner's service within a month.
BHAGABATI PRASAD BANERJEE, J.
1. This appeal under Clause 15 of the Letters Patent is against the judgment and order dated 18th January, 1991 passed by K.M. Yusuf, J. in C.O. No. 9933 of 1990. The writ petition was filed by the respondent writ petitioner for non-regularisation and/or absorption against a permanent vacancy of Group 'D' post in Dubrajpur Girls' High School, Birbhum. The case of the writ petitioner-opposite party was that the writ petitioner served in a Para-military force of the country, namely, Infantry Battalion Territorial Army as Lance Nayak for a period of 15 years and for his excellent work he was awarded two medals by the authorities concerned. It is not in dispute that the appellant no.1 had engaged and or appointed the writ petitioner as Night Guard of the said school on temporary basis since 21st May, 1988 and served as a Night Guard of the said school at a monthly salary of Rs. 70/- per month only on the basis of the assurance given by the appellant no.1 and another member of the Managing Committee of the said school that in due course his service would be regularised against the permanent vacancy. No formal letter of appointment was issued by the authorities concerned for such appointment. But the fact that he was appointed on such temporary basis was clearly admitted by the appellants. It was not in dispute that the said salary was paid from the school fund and that the service of the respondent writ petitioner was terminated by the managing committee of the said school allegedly on the basis of the resolution dated 8th August, 1990 which was not communicated to the writ petitioner-opposite party but disclosed for the first time before the learned trial Judge on affidavit. It is also not in dispute that at the time when the writ petitioner-opposite party was appointed, there was no regular vacancy but subsequently a permanent Group-D post was created by the Government Order No. 618-GA dated 1st March, 1988 issued by the Director of School Education, West Bengal. It was the case of the writ petitioner-opposite party that he was allowed to serve the said school in a permanent vacancy of Class IV staff at least from March, 1989. The writ petitioner filed the writ application in August, 1992 alleging non-regularisation in the said Group-D post when he was serving the said school since 1st May, 1988 till the filing of the writ application. The claim for regularisation was made by the writ petitioner-opposite party on the basis of certain memorandum issued by the Labour Department of the Government of West Bengal for absorption of casual and other categories of workers who had been engaged in a perennial type of work and have rendered at least 240 days service in a year. It was alleged in the writ petition that the appellants were going to fill up the said permanent Group-D post on the basis of a fresh selection without regularising his case. It is also on record that the appellant no.1 has certified in writing on 7th May, 1990 that the writ petitioner is serving in this institution as a Night Guard from 21.5.88 on purely temporary basis, and that when the said permanent vacancy was sought to be filled up by the outsiders the writ petitioner-opposite party approached the commanding Officer 121, Infantry Battalion (TA) for taking necessary steps for permanent absorption of the writ petitioner opposite party as Night Guard in the said School whereupon the Capt.-Adjutant for Offg. Commanding Officer, 121 Infantry Battalion (TA) forwarded the application filed by the writ petitioner-opposite party before that authority for consideration and suitable action. The learned trial Judge on consideration of the matter by order and judgment dated 18.1.91 held that the writ petitioner opposite party should be absorbed in Group-D post to work in any capacity the School likes and the interview held on 26th August, 1990 should not be taken into consideration and the same should be cancelled. The District Inspector
