FORM NO. J (2)

IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE Present:

THE HON’BLE JUSTICE HARISH TANDON And THE HON’BLE JUSTICE PRASENJIT BISWAS MAT 1810 OF 2024 CAN 1 OF 2024 MOHSIN GAIUR Vs.

THE STATE OF WEST BENGAL & ORS.

FOR THE APPELALNT : MR. EKRAMUL BARI, ADVOCATE MR. S.M. ALI, ADVOCATE MR. SK. IMTIAZUDDIN, ADVOCATE FOR THE STATE : MR. TAPAN KUMAR MUKHERJEE, LD. AGP MR. PINAKI DHOLE, ADVOCATE MR. SOMNATH NASKAR, ADVOCATE MR. JAYANTA SAMANTA, ADVOCATE HEARD ON : FEBRUARY 27, 2025. JUDGMENT ON : FEBRUARY 27, 2025 THE COURT:

1. It is a usual practice at the behest of the State Counsel to divert the issue to a destination which suits them, instead of addressing the core issue involved in the proceeding. Several legislations are placed without considering whether those have any manner of application in relation to the facts involved in the proceeding with intent to avoid the legitimate right or the legal right fructified in favour of the litigant.

2. Be that as it may, the appellant is subject to several round of litigation before this Court, even after being appointed as an Assistant Teacher upon undergoing the rigor of the recruitment process envisaged in the statutory Rules framed in this regard. To be more precise, the appellant was appointed as an Assistant Teacher in Surjapur High School, Police Station Surjapur, District Uttar Dinajpur in language and literature group on temporary basis for two years from the date of joining vide Memo No. 897 dated 15.04.1988 with clear stipulation that he would join the post on/or before 31.03.1990. Subsequent to the joining, Memo No. 1539 dated 16.07.1990 was issued by the District Inspector of Schools (Secondary Education) of the then West Dinajpur now Uttar Dinajpur, granting approval to such appointment for the purpose of salaries as admissible under the Rules which clearly indicates that the petitioner is appointed to an additional post sanctioned under Memo No. 897 dated 15.04.1988 and the approval was given temporarily for two years commencing from 22.03.1990 and ending with 21.03.1992. Interestingly, another Memo No. 630/1(2) dated 03.03.1992 was issued by the District Inspector of Schools (SE), Uttar Dinajpur signifying that the appointment of the appellant to the post of Assistant Teacher under the language and literature group is made in normal vacancy and, therefore, such appointment is approved on a salary as admissible under Rules from 22.03.1990 to 21.03.1992 on usual terms and conditions. The second Memo, on a bare look, initially conveys an intention of the authority to extend the period of such appointment but on a meticulous reading thereof, it appears that the authority was conscious that the said appointment is under the normal vacancy meaning thereby that there was a vacant sanctioned post over which such appointment is made.

3. There has been a paradigm shift from the stand taken by the authority in causing a Memo No. 2383-OA_4G-3/90 dated 08.07.1994 to the extent that the petitioner was for the first time made aware that his appointment to the post of Assistant Teacher is not against the sanctioned vacant post or normal vacancy but in leave vacancy for two years as the Assistant Teacher who went for a study leave after an approval is granted and, thereafter, appointed as a Headmaster in the School. The said Memo dated 08.07.1994 was challenged by the petitioner in WP 14388 (W) of 1994 and an interim order was passed on

01.09.1994 to the following effect:

“The petitioner may serve the School in question without prejudice to the rights and contentions of the parties despite the order dated 28.07.1994 as contained in annexure ‘F’ to the writ-application.

During the pendency of the writ-application, however, no steps should be taken for filling up the post”

4. Ultimately, the said writ-petition came to be disposed of on 19.03.2002 and the said Memo dated 08.07.1994 was quashed and set aside with a liberty to the Director of School Education, if s