“REPORTABLE”

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  559   OF 2009 (Arising out of SLP(C) No. 25130 of 2007)

State of West Bengal & Ors. …. Appellants

Versus

Banibrata Ghosh & Ors. …. Respondents

J U D G M E N T

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

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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

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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 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

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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 regularize 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 cause why contempt proceedings

should not be drawn against  him for  the alleged violation of the court’s

order  dated 15.12.1992 and that  he should not  leave the court  without

permission.  It  is worthwhile to mention that when the interim order was

passed by the court, the Learned Single Judge merely recorded that the

petitioner had served the copy of  the Writ  application upon the present

appellants and yet nobody had appeared on behalf  of the Government.

Thus,  the  interim  order  came  to  be  passed  in  the  absence  of  any

representation  to  the  appellants  herein.   In  the  teeth  of  the  contempt

proceedings,  the  approval  was  accorded  on  15.10.1993  w.e.f.  from

4.1.1993 and then the respondent continued to serve merrily on the basis

of the orders passed.

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6. Ultimately  after  10  years,  the  Writ  Petition  came  up  for  hearing

before the learned Single Judge of that court who posed himself a right

question as to whether the approval granted in terms of the interim order

should or should not be retained.  The Learned Judge also posed a further

question as to whether the respondent was entitled to any such interim

order at all to begin with.  The learned Single Judge then went on to hold

that the respondent no.1 was appointed only against  the leave vacancy

and was not  selected against  a permanent  vacancy complying with  the

Rules for the selection of such permanent post.  The Learned Single Judge

further took the view that there was no rule, atleast  brought to his notice

suggesting  that  a  person  selected  against  a  leave  vacancy  should  be

treated as an appointee against a regular vacancy and further should be

entitled for the approval as such.  The Learned Single Judge treated the

appointment of the respondent no.1 as adhoc appointment who was not

entitled for the grant of permanent status or as the case may be, approval

for  a  permanent  appointment.   In  that  view of  the  matter,  the Learned

Single Judge dismissed the Writ Petition holding that the petitioner in the

writ petition had no right whatsoever for permanency.  The learned Single

Judge also found that no such interim order could have been given by his

predecessor which was in the nature of a final order.  Even noting that the

petitioner in the writ petition and the respondent no.1 herein was in the post

and serving for 10 years, the learned Single Judge refused to entertain the

petition.

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7. A Writ Appeal came to be filed against this judgment which came to

be allowed by the Division Bench.  The said Division Bench judgment has

now fallen for our consideration.

8. Shri  Bhaskar  P.  Gupta,  Learned  Senior  Counsel,  appearing  on

behalf of the appellants, firstly urged that the Division Bench, which allowed

the Appeal, had posed itself an incorrect question and completely missed

the real controversy involved.  According to the Learned Senior Counsel,

there could  be no dispute that  the approval,  which was granted by the

Director of Education by his order dated 13.8.1993 was in pursuance of the

interim order passed by the Learned Single Judge on 16.7.1993.  If that

was so, it was clear that it was not the final approval, as the said approval

was for a vacancy, which was admittedly not a clear vacancy, as it was a

leave vacancy.  According to the Learned Senior Counsel, it is also to be

seen that the Learned Single Judge had not disposed of the Writ Petition,

therefore,  the  said  order  could  not  have  been treated  as  a  final  relief.

Under such circumstances, the Division Bench could not have tested the

propriety of the Learned Single Judge (Hon. Barin Ghosh, J.), who finally

decided the petition.  According to the Learned Counsel, there was nothing

wrong in finally deciding upon the petition. Therefore, the Division Bench

should have firstly tested as to whether the final judgment, disposing of the

petition,  was  correctly  decided or  not,  instead  of  addressing  itself  to  a

question  whether  the  Learned  Single  Judge  should  have  considered

ultimate effect of the interim order.  The Learned Counsel also invited our

attention to the Recruitment Rules reflected in the Office Memorandum No.

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2816(17) G.A. dated 4.12.1989 issued by the Director of School Education,

Government of West Bengal, to suggest that there are different procedures

for filling up of leave vacancy and permanent vacancy.

9. Shri Bijan Kumar Ghosh, Learned Counsel, appearing on behalf of

the  respondents,  however,  submitted  that  the  original  Writ  Petitioner

(respondent  herein)  was  undoubtedly,  appointed  after  a  full-fledged

advertisement, not once, but twice. He also had the necessary qualification

and in fact, during long pendency of 10 years of the Writ Petition, he was

also chosen and sent for doing his B.Ed. Course and thus, had bettered his

qualification,  which  was  a  proper  qualification  for  the  post  of  Assistant

Teacher.  Under such circumstances, since the petition pended, not for the

fault on the part of the respondents, the Learned Single Judge (Hon. Barin

Ghosh, J.) should have allowed the petition, instead of tinkering with the

interim order passed by the Learned Single Judge (Hon. D.K. Basu, J.)

earlier.  As an alternative argument, Learned Counsel argued that it will be

of no use now to send back the teacher, who is not only a qualified teacher,

but has an experience of  10 years, and that would ruin the respondent

financially and he would be thrown in the ditch of unemployment.

10. We  have  carefully  seen  the  Division  Bench  Judgment  and  are

unable to agree with the same.  Very strangely, the Division Bench has

expressed:-

“Even after the aforesaid regularization of the service of the appellant/Writ  petitioner, pursuant to the earlier interim order

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passed by this  Hon’ble  Court,  Learned Single  Judge,  while deciding the Writ  petition finally  again  considered the issue relating  to  regularization  of  the  service  of  the  said appellant/Writ  Petitioner  and  quashed  the  approval  already granted to the appellant/Writ Petitioner and further directed the school  authorities  to  fill  up  the  permanent  vacancy  in accordance with law.  It  is  true that the service of  the Writ Petitioner was approved pursuant to the earlier interim order passed by this Court but the competent authority of the State Government including the Director  of  School  Education and the District Inspector of Schools concerned did not challenge the said interim order……” (Emphasis supplied)

The Division Bench further posed itself a question:

“… it is now to be decided whether the Learned Single Judge was justified in considering the issue relating to approval of service of the Writ  Petitioner once again at the time of final hearing of the Writ Petition, when such approval was granted by the Competent Authority pursuant to the earlier order of this Court  without  raising  any  objection  and  imposing  any condition.”  (Emphasis Supplied)

11. We  are  afraid,  this  approach  (highlighted  by  emphasis)  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 Learned Single Judge (Hon. D.K.

Basu, J.) proceeded to award the approval and a direction to regularize the

services  of  the  respondent.   The  Learned  Single  Judge  had  not  even

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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, we fail to know 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.  We were told at

the time of hearing that the respondent was not even registered with the

Employment Exchange, which fact could not be and was not disputed by

Shri  Ghosh,  Learned  Senior  Counsel  for  the  respondents,  before  us.

Again,  it  must be pointed out  that  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.   We  fail  to  understand,  therefore,  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.   

12. The aforementioned Office Memorandum No. 2816(17) G.A. dated

4.12.1989 deals with the Recruitment Procedure.  These are the directions

issued  by  the  Director  of  School  Education,  West  Bengal,  who  is

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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.(S)  dated  the  15.7.1969).   Direction  1  requires  a  prior

permission  of  the  District  Inspector  of  Schools  (SE)  of  the  respective

District  against the sanctioned post, provided the school has no surplus

teacher  on  its  staff.   This  pre-supposes  that  the  District  Inspector  of

Schools has to take an exercise to decide as to whether the concerned

school had any surplus teacher at the relevant time when the permanent

post is to be filled up.  Direction 2 suggests that no such prior permission

would be required in case of an appointment against a deputation vacancy

or against a leave vacancy, provided that leave is not more than 3 months.

It also suggests that in case the leave vacancy is for more than 3 months,

the names of candidates should be received by an advertisement in State

level daily newspaper and by hanging notice in the notice board in the

office  of  Zila  Parishad  and  concerned  Panchayat  Samity  or  in  case  of

Municipality, in the notice board of concerned Municipality.  Direction 2(a)

suggests that in case of a permanent vacancy, the Managing Committee

has to  enquire  of  the  District  Inspector  of  Schools  (SE)  if  there  is  any

approved  surplus  staff  to  be  absorbed  in  recognized  schools  or  any

dependent member of a distressed family of an approved staff of any non-

Government Recognized school who died in harness after 1.4.1981.  The

District Inspector of Schools then has to send the names of such eligible

candidates, not exceeding 3 in number, to their concerned school within a

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fortnight  for  the  appointment  in  the  vacant  post(s),  if  otherwise  found

suitable.   If  there  is  any  difficulty  in  such  appointments,  the  Managing

Committee has to intimate the District Inspector of School within 15 days of

the receipt of such names, stating the specific difficulties in writing, along

with the copy of Managing Committee Resolution to that effect.  This can

be  done  only  after  such  candidates  are  interviewed  by  the  Selection

Committee to be constituted for the purpose.  Direction 2(b) suggests that

the  District  Inspector  of  Schools  can  issue  the  prior  permission  for

appointment to the school and prior to that, the school authorities have to

request  the national/local  Employment  Exchanges to  furnish the lists  of

eligible candidates with academic and professional qualifications and date

of birth of the candidates in case of General category within 30 days and

for  reserved categories,  within 45 days from the date of  receipt.   If  the

names  are  not  sponsored  by  the  Employment  Exchanges  within  the

specified period, then a request has to be made to the District Inspector of

Schools.   Even  where  the  appointments  are  to  be  made  by  an

advertisement, first a request therefor has to be made to the Employment

Exchange.   It  is  obvious from Rules 1,  2,  3 & 4 that  the procedure is

different for filling up of the permanent vacancy and the leave vacancy.

13. This aspect was in fact, correctly appreciated by the Learned Single

Judge (Hon’ble Barin Ghosh, J.) in his judgment, which was also adversely

commented  upon  by  the  Division  Bench  without  any  justification.   The

Learned Senior Counsel appearing on behalf of the State, had also relied

on the case of  Secretary, State of Karnataka Vs. Uma Devi  reported in

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2006 (4) SCC 1 and, particularly, the observations in that judgment to the

effect that a regular process of recruitment had to be resorted to, when

regular vacancies imposed at a particular point of time are to be filled up

and that cannot be done in a haphazard manner or based on patronage or

other considerations.  The Division Bench strangely was of the opinion that

the selection for a post in leave vacancy was the same, as the selection of

the post of permanent vacancy.  Even the observations of this Court in the

case of Secretary, State of Karnataka Vs. Uma Devi reported in 2006 (4)

SCC 1  (cited  supra)  have  not  been  properly  realized  by  the  Division

Bench.  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 facing a fresh selection

process.

14. An  observation  has  been  made  by  the  Division  Bench  to  the

following effect:-

“As  discussed  hereinbefore,  there  has  been  proper compliance  with  the  prescribed  recruitment  rules  and procedures in the matter of initial appointment of the appellant to the post of Assistant Teacher of the concerned school in the leave  vacancy  which  subsequently  became  a  permanent vacancy due to the resignation of the concerned permanent teacher………...” (Emphasis supplied)

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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 non-filing

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 service pursuant to the impugned

order of the Learned Single Judge, he should be paid 50% of the back

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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”.  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  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 Division Bench and restore that

of the Learned Single Judge and allow the appeal but without any orders

as to the costs.

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………………………………..J. (Markandey Katju)

………………………………..J. (V.S. Sirpurkar)

New Delhi; February 2, 2009.  

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