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IN THE HIGH COURT OF CALCUTTA
Arijit Banerjee, J.
Md. Ghiasuddin Mullick – Appellant
Vs.
State of West Bengal and Ors. – Respondents
WP No. 4131 (W) of 2015
Decided On : 17-05-2018
Regularization - Appointment of Assistant Teacher - West Bengal Board of Secondary Education Act, 1963 - Rules framed thereunder - Memo No. LS-542 dated 8 December, 2006 - Memo No. 815-SE(S) dated 23 November, 1994 - Delay and Laches - Absorption of petitioner as regular teacher
Fact of the Case:
The petitioner challenged a memo dated 8 February, 2014, issued by the District Inspector of Schools, South 24 Parganas, rejecting the plea of the petitioner for regularization as an assistant teacher in a Madrasah. The petitioner was appointed in 1984, and subsequent legal proceedings and orders were issued regarding the approval of teaching and non-teaching staff of the Madrasah.
Finding of the Court:
The court found that the petitioner's appointment was not in accordance with the applicable Rules and was not in a sanctioned post. The court also noted the delay in the petitioner's approach to the court, and the lack of explanation for the delay. The court dismissed the writ application, stating that the petitioner would be entitled to participate in the recruitment process for any future sanctioned teaching post at the Madrasah.
Issues: The issues involved the legality of the petitioner's appointment, the applicability of relevant memos, and the delay in approaching the court.
Ratio Decidendi: The court held that the petitioner's appointment was not in accordance with the applicable Rules and was not in a sanctioned post. The court also noted the delay in the petitioner's approach to the court, and the lack of explanation for the delay.
Final Decision: The court dismissed the writ application, stating that the petitioner would be entitled to participate in the recruitment process for any future sanctioned teaching post at the Madrasah.
Arijit Banerjee, J.
1. In this writ application the petitioner challenges a memo dated 8 February, 2014 issued by the District Inspector of Schools (SE), South 24 Parganas (respondent No. 5), the operative portion whereof reads as follows:-
"After perused through the relevant papers and documents of the said Madrasah, the undersigned is also of the opinion of not regularizing the petitioner as because the quota of organizing staff were duly fulfilled at that point of time when the Madrasah was upgraded. The liability of excess appointment of organizing staff should not be borne by the Government by paying public exchequer.
In the light of the above observations, facts and circumstances the undersigned rejects the plea of the petitioner as it is against the prevailing rules and regulations at the material point of time as well as ultra vires with regards to the orders passed by Hon'ble Supreme Court of India and Hon'ble High Court of Calcutta. All concerns are being informed accordingly."
The petitioner prays for quashing of the said memo and for a direction on the respondents to absorb him in the post of assistant teacher in language group in Bishalaxmipur Puna Saha Mostania High Madrasah (in short 'the said Madrasah').
2. The said Madrasah was recognized by the Madrasah Education Board (in short 'the Board') with effect from 1 January, 1971 with permission to teach up to Class-VIII. Subsequently, in 1975 the Management of the said Madrasah applied to the Board for its upgradation as High Madrasah. In view of the Board's refusal to grant such recognition as High Madrasah, the Management initiated legal proceedings. Ultimately, in terms of orders passed by the Court, the Secretary of the Board by his memo dated 10 December, 1991 granted provisional recognition to the said Madrasah as Class-X Madrasah, but no approval was given by the Board or the District Inspector (in short DI) of Schools with regard to the teaching and non-teaching staff of the said Madrasah. In the meantime, on 16 April, 1984 the petitioner was appointed as an assistant (organizer) teacher of the said Madrasah with effect from 1 May, 1984.
3. In view of the authorities not granting approval in respect of the teaching and non-teaching staff of the said Madrasah in spite of granting it provisional recognition as High Madrasah, the Management of the said Madrasah filed a writ petition being CO No. 12099(W) of 1992. The writ petition was disposed of with a direction upon the Secretary of the Board to approve the newly elected Managing Committee and also with a direction on the DI of Schools to forward a copy of his report dated 25 November, 1994 as regards the functioning of the said Madrasah to the Board with comments for according approval in favour of 24 teaching and non-teaching staff of the said Madrasah (including the writ petitioner).
4. The authorities preferred an appeal against the said order being FMAT 337 of 1994. The Hon'ble Division Bench by an order dated 9 February, 1994 directed the Board to give approval to the services of the 24 teaching and non-teaching staff of the said Madrasah including the writ petitioner.
5. A contempt application was filed for alleged willful violation of the Hon'ble Division Bench order dated 9 February, 1994, being CR No. 398 of 1994. At the hearing of the contempt application before the Hon'ble Division Bench, assurance was given on behalf of the authorities that provisional approval of the teaching and-non-teaching staff of the said Madrasah from their respective dates of joining would be issued. It appears that an order to that effect was also passed by the Court on 1 July, 1994.
6. By a memo dated 5 July, 1994 the Secretary of the Board approved the appointment of 16 teaching and 3 non-teaching staff including the petitioner on a 'purely provisional basis, subject to the condition that this approval will abide by the results of the proper application to be filed and subject to further orders of the Hon'ble High C
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