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2024 Supreme(Cal) 361
IN THE HIGH COURT AT CALCUTTA
ANIRUDDHA ROY, J.
Smt. Nayan Biswas – Petitioner
Versus
The State of West Bengal & Ors. – Respondents
W.P.A. 31492 of 2017
Decided On : 15-04-2024
For the Petitioner: Mr. Prahlad Chandra Ghosh Mr. Subir Hazra.
For the State : Mr. Sadhan Kr. Haldar
Unequals cannot be treated equals in the context of regularizing illegal appointments and backdoor entries.
Headnote:
Regular Appointment - Service Approval - [Piyu Datta -vs.- State of West Bengal & Ors., 2012, 3 WBLR (SC) 715], [Manidra Nath Sinha and Others –Vs.- State of West Bengal and Others, Civil appeal No.7897 of 2010], [State of Karnataka and Ors. –vs.- Uma Devi & Ors., 2006, 4 SCC 1] - The court discussed the regular appointment and service approval in light of the legal provisions and interpretations from the mentioned cases. It emphasized that an illegal appointment and backdoor entry cannot be regularized or approved.
Fact of the Case:
The petitioner claimed approval of her appointment as a Group -D staff at a school where she had worked for 21 years. The respondent rejected her claim, leading to the instant writ petition.
Finding of the Court:
The court found that the petitioner did not make out a case for approval of her service and that the appointment was illegal and a backdoor entry.
Issues: The main issue was whether the petitioner's appointment could be approved and regularized.
Ratio Decidendi: The court held that unequals cannot be treated equals and emphasized that an illegal appointment and backdoor entry cannot be regularized or approved.
Final Decision: The writ petition was dismissed as it was devoid of merit.
JUDGMENT :
Aniruddha Roy, J.
1. Affidavit-of-service, filed in Court today, is taken on record.
Facts:
2. The writ petitioner claims to have worked as a Group -D staff at one Tungi S. S. High School, District – Murshidabad for about 21 years. She claimed approval of her appointment. She submitted a representation dated September 28, 2016, Annexure-P5 at page 29 to the writ petition.
3. In the first round of writ litigation, W.P. No.24992 (W) of 2016, a coordinate Bench by its order dated October 28, 2016, Annexure-P7 at page 35 to the writ petition directed the respondent no.3 to consider the said representation of the petitioner in the light of the direction of the Hon’ble Supreme Court In the matter of : Piyu Datta –vs.- State of West Bengal & Ors., reported at (2012) 3 WBLR (SC) 715.
4. Pursuant to and in terms of the said direction of the coordinate Bench the respondent no.3 decided the representation of the petitioner after affording an opportunity of hearing to both the petitioner and the relevant school authority and passed its reasoned order dated May 16, 2017, Annexure-P8 at page 37 to the writ petition rejecting the claim. The relevant observations of the respondent no.3 are quoted below :
“Accordingly, a hearing has been taken on 16.01.2017 with prior intimation to all respondent authorities. On the date of hearing petitioner along with Secretary & Teacher-in-Charge of the school were remain present.
Petitioner stated that she has been working as Gr. ‘D’ staff since 2003. She has been paid of Rs.3000/-per month by the school authority, she added. Now, she is claiming her service approval.
Teacher-in-Charge stated that he joined as A.T. in the year 1997. Subsequently, he became Teacher-in-Charge on 01.01.2016. He also stated that Mahamaya Mandal (Metron) was a permanent staff of the school. She died in the year 2000 while in service. School authority took a resolution on 16.08.2003 to the effect that appointment may be given to the petitioner on condition that she would be terminated after joining a sponsored candidate in place of Mahamaya Mandal. Later on, Babulal Sardar has been recommended by the School Service Commission (NR) to join as Gr. ‘D’ staff in place of Mahamaya Mandal (died). But unfortunately school authority did not terminate the petitioner, Teacher-in-Charge added. However, Teacher-in-Charge is of the opinion that prayer of the petitioner should be considered on humanitarian ground.
Secretary of the school stated that he took charges on 20.09.2011. He also stated that there is one Gr. ‘D’ post lying vacant which has already been reported to School Service Commission (NR) and very soon the post shall be filled up by sponsored candidate from School Service Commission (NR).
Heard the matter at length and I am of the opinion that school authority has no locus standi (sic) to appoint any candidate ignoring the office of the School Service Commission (NR) and District Inspector of Schools (SE), Murshidabad. This type of appointment should be considered as void appointment. Moreover, as per order of Apex Court of India, in the matter of Manidra Nath Sinha and Others –Vs.- State of West Bengal and Others, Civil appeal No.7897 of 2010, no organizing staff of the school could be regularised.
On the above observations, the prayer of the petitioner is rejected.
Thus the matter is disposed of.”
5. Assailing the said impugned reasoned order dated May 16, 2017 the petitioner filed the instant writ petition.
Submissions:
6. Mr. Prahlad Chandra Ghosh, learned counsel for the petitioner referring to the said impugned order submits that, the judgment of the Hon’ble Supreme Court In the matter of : Piyu Datta (Supra), Annexure-P6 at page 31 to the writ petition was not considered by the respondent no.3 while passing the said impugned reasoned order rejecting the claim of the petitioner. He submits that, the law laid down by the Hon’ble Supreme Court In the matter of : Piyu Datta (supra) has created a right in favour of
