Judgment:
1. The petitioner has impugned an order vide memo no. 1354(3) dated 6.11.2003/7.11.2003 passed by the Chairman, Howrah District Primary School Council whereby and whereunder the representation of the petitioner was rejected.
2. Before proceeding to decide the matter it would be pertinent to record that in spite of service no affidavit in opposition is filed by the state respondent. However, an affidavit in opposition is filed by the respondent no. 5, the head teacher of the B.F. Siding Adarsha Primary School, Howrah and the respondent no. 4, Howrah District Primary School Council. The respondent no. 5 has supported the cause of the petitioner in his affidavit in opposition.
3. The backdrop of the case is that the petitioner was appointed as the assistant teacher in B.F. Siding Adarsha Primary School by the Selection Committee constituted by the Managing Committee of the said school. It is her further case that the school authorities informed the District Inspector of School on 4.5.1979 about her appointment and submitted all the relevant documents relating to the petitioner for approval of the said appointment. Subsequent application was also made by the then teacher in-charge of the said school to the DI of school (PE) Howrah for approval of the said appointment of the petitioner. It is her case that the authorities were not considering the aforesaid recommendation which compelled the petitioner to file writ application being CO no. 12391 (w) of 1993 before this court. It is her further case that when the District Primary School Council was going to recruit the further primary teachers in the Howrah district she met with the concerned employment exchange for the sponsorship of her name to the said post but her request was turned down.
4. However, the said writ petition was disposed of on 5.8.2003 directing the respondent no. 5 to consider the case of the petitioner in accordance with law within the stipulated period. Pursuant to the said direction the impugned order was passed by the respondent no. 5.
5. Mr. A. K. Gayen, learned Advocate appearing for the petitioner submits that the authorities cannot reject the said application/representation of the petitioner by applying a subsequent Rule/Act which has not been expressly made applicable retrospectively. He further argues that the prayer of the petitioner is for regularization of his service against the approved post and the authorities cannot deny the consideration of regularization of the appointment of the petitioner which at best can be said to be irregular but not illegal and relies upon a judgment of the supreme Court in case of State of Haryana & Ors. v. M.L. Kesari reported in (2010) 9 SCC 247.
6. Mr. Tulsidas Maity, learned Advocate appearing for the respondent no. 5 submits that the appointment of the petitioner cannot be said to be irregular but is illegal having not been done against the approved post and as such the petitioner cannot take shelter under the said judgement of the apex court delivered in case of M.L. Kesari (supra). According to him the school authorities/Managing Committee without seeking for an approval of an additional post appointed the petitioner and the authorities have rightly turned down the said representation. Thus he concludes that the petitioners have no right to pray for approval of the illegal appointment.
7. Having considered the submission of the parties, it appears that the petitioner has claimed her appointment against the said sanctioned post and have relied upon the letters issued by the school authorities to the DI of School to approve the appointment of the petitioner. It is a positive case of the petitioner that her appointment is against the sanctioned post whereas it has been categorically asserted by the respondent no. 5, the District Primary School Council, that there was no sanction of such post by the authorities concerned. There is no dispute with regard to the fact that the appointment of the petitioner was made in the year 1975 when the West Bengal Recruitment Rules of 2001 was not formed.
8. Admittedly the case of the petitioner is governed under the West Bengal (Rural) Primary Education Act 1930. In exercise of powers conferred under section 66(1) and 66(2)(p) of the said Act Recruitment Rules of 1940 was framed.
9. Rule 1 of the said Recruitment Rule of 1940 provides that there would be ordinarily one teacher for every 40 pupil or part thereof not being less than 20 and a second teacher may be admissible on increase of the roll strength exceeding 45.
10. Sub-rule 2 of Rule 1 provides that no post of a teacher would be created in a primary school maintained by the Primary School Council or the district School Board without recommendation of the District Inspector of School (PE) and the approval of the state government. The number of teachers shall not exceed the number teachers already approved by the sate government in any financial year or any additional post of the teacher sanctioned by the state government to the said Board or Council.
11. From the perusal of the alone said Rules unless a post is sanctioned by the state government mere increase in the roll strength does not ipso facto or automatically increase the number of teachers in terms of sub-rule 1 of Rule 1 of the said Rules of 1940. It is an additional post which requires under Rule 1(1) of the said Recruitment Rule of 1940 to be sanctioned by the State Government.
12. The petitioner though claimed that her appointment was against the sanctioned/approved post but the same has been denied by the respondent no. 5. It is a positive case of the respondent no. 5 that the post for which such appointment is made was never sanctioned or approved by the Council or by the state government. There is no iota of piece of paper produced before the court from where it can be gathered that such post was approved by the concerned authority.
13. The petitioner has laid her claim on such factual matrix and relied upon a decision of the apex court in case of M.L. Kesari (supra). The Supreme Court in case of M.L. Kesari (supra) by considering the earlier judgment of the apex court in case of Secretary, State of Karnataka v. Umadevi reported in (2006) 4 SCC 1 held :
“6. This Court in Umadevi further held that a temporary, contractual, casual or a daily-wage employee does not have a legal right to be made permanent unless he had been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution. This Court however made one exception to the above position and the same is extracted below: (SCC p. 42, para 53)
“53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date.”
(emphasis in original)
7. It is evident from the above that there is an exception to the general principles against “regularisation” enunciated in Umadevi, if the following conditions are fulfilled:
(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.
(ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.”
14. The above report is of no help to the petitioner inasmuch as the petitioner could not satisfy that her appointment to the said post was against the approved post so as to render such appointment irregular but not illegal. Thus where an appointment without adhering to the statutory procedure is made to an unapproved post the person cannot claim the regularization on the basis of the judgment rendered by the apex court in case of Umadevi (supra) and M.L. Kesari (supra).
15. Thus the writ petition is devoid of any merit. The same is hereby dismissed.
16. There shall be no order as to costs.
17. Urgent photostat certified copy of the judgment, if applied for, be given to the parties on priority basis.