GOURI SANTRA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THE petitioner has prayed for a direction upon the respondent authorities to absorb and/or regularise his appointment to the vacant post with full backwages.

(2.) THE case narrated in the writ petition is that the petitioner was appointed to the post of a teacher-cum-clerk in the year 1979 in Nipendra Nath Girls Primary School temporarily and an appointment letter was issued by the secretary of the said school. Since then the petitioner is discharging his duties uninterruptedly and without any break. According to the petitioner, in spite of the request made by the petitioner as well as the Secretary of the Said School, the respondent authorities have not considered the case of the petitioner for regularisation of her appointment as teacher-cum-clerk in the said school. THE District Primary School Council, the respondent No.6, filed affidavit-inopposition in which it is specifically contended that the petitioners appointment can not be regularised in as much as there is no sanctioned post like teachercum- clerk. It is further contended that the appointment of the petitioner is illegal having been made to non-existent post and can not be termed to be irregular. A specific defence is taken that mere increase in the roll strength does not automatically increase the number of post but the same is required to be sanctioned by the competent authority. In other word, the additional post is to be approved by the Competent Authority on increase of roll strength of the pupils. In affidavit in reply the petitioner has contended that there exist a permanent vacancy in the said school and the petitioner can be regularised to such permanent post.

(3.) THE five judges bench of the Supreme Court in case of Uma Devi (3) (supra) made a distinction between the regularisation and conferment of permanence in service jurisdiction in this words: Even at the threshold, it is necessary to keep in mind the distinction between regularisation and conferment of permanence in service jurisprudence. In State of Mysore v. S.V. Narayanappa this Court stated that it was a misconception to consider that regularisation meant permanence. In R.N. Nanjundappa v. T. Thimmiah this court dealt with an argument that regularisation would mean conferring the quality of permanence on the appointment. This court stated: (SCC pp.416-17, para 26) Counsel on behalf of the respondent contended that regularisation would mean conferring the quality of permanence on the appointment whereas counsel on behalf of the State contended that regularisation did not mean permanence but that it was a case of regularisation of the rules under Article 309. Both the contentions are fallacious. If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularisation cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules. In B.N. Nagarajan v. State of Karnataka this Court clearly held that the words regular or regularisation do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. THEy are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments. This Court emphasised that when rules framed under Article 309 of the Constitution are in force, no regularisation is permissible in exercise of the executive powers of the Government under Article 162 of the Constitution in contravention of the rules. THEse decisions and the principles recognised therein have not been dissented to by this Court and on principle, we see no reason not to accept the proposition as enunciated in the above decisions. We have, therefore, to keep this distinction in mind and proceed on the basis that only something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised and that it alone can be regularised and granting permanence of employment is a totally different concept and cannot be equated with regularisation.