STATE OF WEST BENGAL & ORS. v. BANIBRATA GHOSH & ORS

Citation: [2009] 1 S.C.R. 790

Court: Supreme Court of India

Bench: MARKANDEY KATJU, V.S. SIRPURKAR

Case summary

STATE OF WEST BENGAL & ORS. v. BANIBRATA GHOSH & ORS.pdf

Judgment text

[2009] 1 S. C. R. 790 STATE OF WEST BENGAL & ORS. + v. BANIBRATA GHOSH & ORS. (Civil Appeal No. 559 of 2009) FEBRUARY 2, 2009 [MARKANDEY KATJU AND V. S. SIRPURKAR, JJ.

] Service Law - Regularisation - Claim for - Leave vacancy - Appointment of respondent in leave vacancy and extension thereafter - Subsequently, creation of substantive vacancy on resignation of original incumbent - Writ petition by respondent seeking regularisation - Interim order directing regularisation of service - Grant of approval and respondent continuing in service - Writ petition heard after 10 years - Dismissal of, by Single Judge of High Court and denial of permanent status to respondent - However, in appeal, direction passed to regularise services of respondent - On appeal, held: Appointment was for leave vacancy thus, cannot claim regularisation - Procedures for filling up of leave vacancy and permanent vacancy are different - According of approval and direction to regularise the services was pursuant to interim order which could not be considered as final - Such order does not decide fate of parties to litigation finally - Direction to pay respondent 50% of back wages for the period he was out of service not justified in view of principle of 'no work no pay' - Thus, judgment of Division Bench of High Court set aside and that of Single Judge upheld.

Respondent was appointed as Assistant Teacher on temporary basis in the leave vacancy for six months. His services were further extended. Thereafter, the fresh advertisement was taken out for the said vacancy. Respondent no. 1 again applied and was appointed for three months. The original incumbent on the said post resigned and a substantive vacancy arose. Respondent GHOSH & ORS. no. 1 filed writ petition seeking regularization in the permanent vacancy with effect from his appointment. Thereafter, interim order was passed directing the District Inspector of Schools to regularize the appointment of respondent no. 1. Approval was accorded and respondent continued in service. After 10 years, writ petition came up for hearing. Single Judge of High Court dismissed the petition holding that the respondent no. 1 --+·· was appointed only against the leave vacancy and could not be given permanent status. Respondent no. 1 filed appeal.

Division Bench of High Court allowed the same and directed the State to treat the respondent no. 1 as approved Assistant Teacher of the school and directed the authorities to pay 50% of the back wages for the period the respondent was out of service. Hence the present appeal. Allowing the appeal, the Court HELD: 1. 1. The approach of the Division Bench was wholly incorrect. The circumstances, under which the earlier approval was granted, were writ large before the Division Bench, firstly, it was by an interim order that the Single Judge proceeded to award the approval and a direction to regularizE:! the services of the respondent. The Single Judge had not even bothered to quote any rule, under which the respondent was entitled for getting his services regularized. In fact, there is a detailed procedure for filling up the vacancies. This was a case, where that procedure was not followed.

The appointment of the respondent was merely on the basis of an advertisement for filling up the leave vacancy. The respondent very well knew that it was for the leave vacancy that he was competing with others. Under such circumstances, there is failure to k~ow as to what right was there in the respondent to insist on regularization of his appointment. The Division Bench has further made a rather casual ' statement in the judgment to the effect that the prescribed + procedure for recruitment of teacher, both for leave and permanent vacancies, is substantially the same. It has been told that at the time of hearing that the respondent was not even registered with the Employment Exchange. If the advertisement was for a leave vacancy, it would not have attracted substantial number of applications, which would not be the case, if the advertisement was for a permanent vacancy.

Therefore, there is failure to understand as to how, even without referring to the relevant rules or procedure for recruitment of teachers in permanent vacancies, the Division Bench could make such a casual statement in its judgment. [Para 11) [800- D-B] 1. 2. The Office Memorandum No. 2816(17) G. A. dated 04. 12. 1989 deals with the Recruitment Procedure. These are the directions issued by the Director of School Education, West Bengal, who is empowered by Clause (i) and (ii) of sub-Rule (I) and Clause (i) of sub-Rule 28 of the Rules for Management of Recognized Non- Government Institutions (Aided and Unaided), 1969 (Education Department Notification No. 1598-Edn. (5) dated the 15. 7. 1969). It is obvious from Rules 1, 2, 3 & 4 that the recruitment procedure is different for filling up of the permanent vacancy and the leave vacancy.

A finding is given in the Division Bench to the effect that both the procedures in case of appointment against the leave vacancy and the permanent vacancy are substantially similar. It is very difficult to understand the implication of this substantial similarity. [Paras 12, 13 and 14) [801-C- D; 802-F; 803-F-G] 1. 3. The approval of the first panel and also the second panel was after all for a leave vacancy post and not for a permanent post, therefore, such approval was of no consequence and it did not in any manner entitle the respondent for the regularization of his post without GHOSH & ORS. facing a fresh selection process. [Para 13] [803-C] --- Secretary, State of Kamataka Vs. Uma Devi 2006 (4) sec 1, referred to. 1. 4. It cannot be understood as to how, the Division Bench could be impressed by the fact that the interim order was not appealed against by the State Government.

It is to be understood that an interim order does not ---+decide the fate of the parties to the litigation finally, it is always subject to and merges with the final order passed in the proceedings. The non-filing of the appeal, which seems to have impressed the Division Bench, is of no consequence. The Division Bench also seems to have been impressed by the fact that the Single Judge dismissed the petition in 2003, though the appointment was made way back in 1993. The mere pendency of the ~ Writ Petition cannot be viewed against the State Government, which could not be said to be responsible for such long pendency and that could not be viewed in favour of the original Writ Petitioner-respondent. That logic of the Division Bench is completely faulty. The direction of the Division Bench is no less surprising that since the respondent no. 1 was not allowed to remain in service pursuant to the impugned order of the Single Judge, he should be paid 50% of the back wages for the . ,,;..

, period for which the respondent was out of service. Such could never have been the course taken in view of the settled principle of "no work no pay". The order of the Single Judge was a perfectly justified order, who had viewed the whole controversy in details. The impugned judgment of the Division Bench wholly lacks merit. [Paras 15 and 16] [803-H; 804-A; 804-B-E] ~ 1. 5. As regard the submission that a compassionate view of the matter, should be taken since as a result of this judgment, the respondent would be thrown in the state of unemployment, such misplaced sympathy cannot be shown by the Division Bench. This Court had issued directions to make the payment of salaries and some payments have been made to the respondent. It is directed that such payments shall not be recovered from the respondent.

Considering that the writ petition remained pending for 10 years and thereby, the respondent might now have become barred by age for fresh employment, The Government is recommended to consider the condonation of the age bar, if any, on the part of the respondent. Thus, the judgment of the Division Bench is set aside and that of the Single Judge is restored. [Para 17] [804-G-H; 805-A-B] Case Law Reference: ... 2oos (2) sec 1 Referred to Para 13 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 559 of 2009. From the final Judgment and Order dated 2. 4. 2007 of the High Court of Calcutta at Calcutta in F. M. A. No. 1779/2003. Bhaskar P. Gupta, Tara Chandra Sharma and Neelam Sharma for the Appellants. Bijan Kumar Ghosh, J. Mazumdar, Abhishek Sarkar (for Chiraranjan Addey) Piyush K. Roy and Sunil Kumar Verma for ~ · the Respondents. The Judgment of the Court was delivered by V. S. SIRPURKAR, J. 1. Leave granted. 2.

State of West Bengal has come up against the judgment of the Division Bench of the High Court allowing the appeal filed by the respondent no. 1 herein and directing the State to treat the respondent no. 1 as an approved Assistant Teacher of the concerned school and further to allow the respondent no. 1 to resume his duties as an approved Assistant Teacher of the concerned school immediately. The High Court has further directed the authorities to pay 50% of the back-wages for the period the said respondent was out of service. It is further ordered that the respondent would also be entitled to receive all other admissible service benefits as a duly approved Assistant Teacher of the concerned school pursuant to the order of approval. Thereby, the High Court allowed the appeal filed -+- against the judgment of the learned Single Judge of that court who had dismissed the Writ Petition filed by the respondent no. 1. In his Writ Petition the respondent no.

1 had sought for a writ of mandamus for regularization of his appointment as a Teacher in Shimulia High School in the State of West Bengal. 3. The following facts would clarify the controversy. 4. There is a school called Shimulia High School at ~ Krishnanagar, District Nadia, West Bengal. A leave vacancy occurred in the post of Assistant Teacher (Bio Science), as the permanent teacher went on leave for six months initially. As per the Rules of the Government, the Managing Committee decided to fill up the said leave vacancy and for that purpose, obtained permission from the District Inspector of Schools, Secondary Education, Nadia. An advertisement came to be published on 11. 12. 1990 inviting applications from the eligible candidates. In pursuance thereto, the respondent no. 1 applied with other candidates and the panel was ultimately prepared empanelling '-* three candidates wherein the respondent no. 1 was at the first position.

The same panel was forwarded to District Inspector of Schools, Nadia who approved the said panel on ·18. 1. 1991. On 23. 1. 1991, the respondent no. 1 came to be appointed on temporary basis in the said leave vacancy for a period of six months from 24. 1. 1991 to 2. 7. 1991. His appointment was later on approved by the concerned District Inspector by his order dated 14. 2. 1991. Eventually, the said leave vacancy continued for more than six months and as a result, the respondent continued to work. His services were extended from 3. 7. 1991 to 31. 12. 1991 and this extension was also approved by the District Inspector of Schools. After the tenure of service ended on 31. 12. 1991 for some explicable reasons, the respondent no. 1 's appointment was extended from 2. 1. 1992 to 31. 3. 1992. However, this extension was not approved by the District Inspector of Schools, instead District Inspector of Schools 8 requested the school to take fresh steps to fill in the said vacancy.

A fresh advertisement was, therefore, published on 23. 2. 1992. The respondent no. 1 applied and was again selected and he was thus given appointment on the previous terms for a period from 3. 4. 1992 to 30. 6. 1992. On 3. 7. 1992, the original incumbent on the post who had gone on leave and in whose place the respondent was appointed resigned and as a result, a substantive vacancy arose in the permanent sanctioned post of Assistant Teacher in Bio Science group. A representation came to be made by the respondent no. 1 on 14. 8. 1992 that since he had worked in the school as Assistant Teacher on and from 24. 1. 1991 to 30. 7. 1992 on adhoc basis and since the original incumbent of the post one Shri Shanker Biswas had submitted his resignation, the services of the respondent no. 1 should be regularized. A Writ Petition came to be filed by him on 25. 8. 1992 registered as CO No. 18711 (W) of 1992. Amongst other prayers, the respondent no.

1 herein sought his absorption and regularization in the permanent vacancy with effect from his appointment and also sought an injunction against the appellants herein restraining ' ~ them from proceeding in any way, in filling up the said vacancy. 5. On 15. 12. 1992, when the Writ Petition came up before the learned Single Judge of the Calcutta High Court, an interim order was passed directing the District Inspector of Schools to regOlarize the appointment of respondent no. 1 by 15. 1. 1993 and also to submit a report about the regularization by 22. 1. 1993. Since this interim order was not complied with, the respondent no. 1 filed an application for initiating contempt proceedings on 16. 2. 1993. Learned Single Judge directed the District Inspector of Schools, Nadia, namely, Ranjit Kumar Ghosh to appear in person on 2. 7. 1993 at 10. 30 and to show ; supplied) We have scanned the judgment carefully, and we find no such discussion regarding "prescribed recruitment rules". Again.

a finding is given in the same paragraph of the Division Bench Judgment to the effect that both the procedures in case of appointment against the leave vacancy and the permanent vacancy, are substantially similar. It is very difficult to understand the implication of this "substantial similarity". ..... ~ 15. We also do not understand, as to how, the Division Bench could be impressed by the fact that the interim order was not appealed against by the State Government. It is to be understood that an interim order does not decide the fate of the parties to the litigation finally, it is always subject to and merges with the final order passed in the proceedings. The nonfiling of the appeal, which seems to have impressed the Division Bench, according to us, is of no consequence. 16. The Division Bench also seems to have been impressed by the fact that the Learned Single Judge dismissed the petition in 2003, though the appointment was made way +-· back in 1993.

The mere pendency of the Writ Petition cannot be viewed against the State Government, which could not be said to be responsible for such long pendency and that could not be viewed in favour of the original Writ Petitioner (respondent herein). That logic of the Division Bench is completely faulty. We are also no less surprised by the direction of the Division Bench that since the respondent no. 1 herein was not allowed to remain in seNice pursuant to the impugned order of the Learned Single Judge, he should be paid 50% of the back wages for the period for which the respondent was out of seNice. Such could never have been the course taken in view of the settled principle of "no work no pay". Again, the order of the Learned Single Judge was a perfectly justified order, who had viewed the whole controversy in details.

We are convinced that the impugned judgment of the Division Bench wholly lacks merit and would have to be set aside and the judgment of the Learned Single Judge would have to be restored. We order accordingly. 17. Shri Ghosh, Learned Senior Counsel, appearing for the respondents, at this stage, says that we should take a compassionate view of the matter, since as a result of this judgment, the respondent would be thrown in the state of unemployment. We are afraid, we cannot show any such misplaced sympathy, which was shown by the Division Bench. We are told at the Bar that this Court had issued directions to make the payment of salaries and some payments have been made to the respondent. We direct that such payments shall not be recovered from the respondent.

Considering that the Writ A Petition remained pending for 10 years and thereby, the respondent might now have become barred by age for fresh employment, we recommend that the Government may consider the condonation of the age bar, if any, on the part of the respondent. We accordingly set aside the judgment of the 8 Division Bench and restore that of the Learned Single Judge and allow the appeal but without any orders as to the costs. N. J. Appeal allowed. c