CHITTARANJAN CHAKRABORTY Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This is third occasion when the writ petitioner has come up before this Court and questioned the impugned order passed by the Director of Public Instruction, West Bengal, dated 25th September, 2013. The fact of this case is that the petitioner was initially appointed as library assistant in 1984. Thereafter as desired by the college authority he was appointed as Chemistry laboratory attendant-since 1st February, 1986. At that point of time there were four vacancies of laboratory attendants since one post was withdrawn pursuant to Government memo No. 1468-Edn.(CS) dated 19th September, 1984 as per norms. However, out of four posts two were permanently filled up by Kalobaran Mondal and Raghunath Mukherjee and the petitioner was appointed in the third post which is sanctioned one and fallen vacant after, retirement of Prafulla Kundu. The college authority took, resolution and asked for regularisation of three other posts and thereafter they also took a resolution to absorb the petitioner in place of Prafulla Kundu, Chemistry laboratory bearer before the Director of Public Instruction. However, that was not considered and disposed of. Subsequently, college authority took a resolution to appoint the petitioner with effect from 1st September, 1999. College authority also issued appointment letter and forwarded the case of the petitioner for approval. In spite of representations and reminders the concerned authorities did not grant approval in favour of such appointment. The writ petitioner came up before this Court and the learned Single Judge of this Court dismissed the writ application. Being aggrieved by and dissatisfied with the order of the learned trial Court the petitioner preferred an appeal before the Hon'ble Appeal Court contending that the case of Uma Devi is not applicable since the writ petitioner is working more than 10 years and the case of the petitioner is covered by exception engrafted in paragraph 53 of the judgment which was also the view expressed by the Hon'ble Apex Court in case of State of Karnataka & Ors. v. M.L. Kesari, 2010 AIR(SC) 2587. However, the Hon'ble Appeal Court without expressing their views relegated the matter to the respondent No. 2 for taking a decision whether appointment of the writ petitioner can be approved in the facts and circumstances of this case. The concerned respondent No. 2 was directed to give an opportunity of hearing to the parties for adducing evidence as they may like to rely upon and the concerned respondent was directed passed a reasoned order in accordance with law and to communicate the same to the petitioner. Pursuant to order passed by this Court the concerned Director of Public Instruction gave an opportunity of hearing to the petitioner and passed the impugned order dated 25th September, 2013. The concerned respondent rejected the prayer of the writ petitioner taking the points that at the time of his appointment there is no permanent vacancy and the candidates who were working like the petitioner in three other posts were approved in different posts other than the post of laboratory attendant which was sent to the concerned respondent along with resolution dated 6th February, 2000. However, so far the post of the petitioner is concerned, the Principal was to move before Director of Public Instruction for sanction of staff pattern. Moreover proposal for absorption of the petitioner was made against the post which was vacant at the time of retirement of Kanti Kumar Ganguly since 1st July, 1985. Thereafter by a letter dated 19th May, 2000 he request for absorption of the petitioner was made against the post became vacant at the retirement of Prafulla Kundu, laboratory bearer. The concerned respondent was confused as expressed in his order. He had referred to Government circulars, one is of 31st October, 1995 and the other one is of 9th September, 2008. According to those circulars the appointment of Group 'C and Group 'D' are to be made through proper recruitment process and the selection to be made from the sponsored candidates of the employment exchange as well as the candidates who would respond on publication. It was mentioned in the order that the concerned respondent asked for some details for approval of appointment of the petitioner in the post of laboratory attendant but the proposal was forwarded bereft of materials as sought for by the office of Director of Public Instruction dated 24th April, 2012. The concerned respondent relied on some judgments. According to him, there was no sanctioned vacancy and the petitioner cannot be considered as it violates Articles 14 and 16 of the Constitution of India. He is of the view that the appointment against unsanctioned post as stated by him is void ab initio and illegal.

(2.) At the time of moving this writ petition learned Counsel for the State appeared and time was given for filing affidavit. Today at the time of call nobody appeared for the State authority nor any accommodation is sought for. No affidavit is also filed for and on behalf of the State as recorded in the departmental note dated 28th January, 2014.

(3.) Learned Counsel appearing for the writ petitioner submits that the concerned respondent proceeded totally on a wrong footing. He submits that the writ petitioner was appointed initially in 1984 in library of the college. Later on his service was required in Chemistry Department and college authority gave him appointment as Chemistry Laboratory attendant on and from 1st February, 1986. At that point of time there were five vacancies available in the college. Out of which two permanent employees were there and two were working as temporary basis amongst two temporary employees, the writ petitioner is one. He submits that in 1985 the Government withdrew one sanctioned vacancy from total strength of five and the vacancy position remained four for the laboratory attendant. He also submits that in view of retirement of Prafulla Kundu in 1983 the vacancy occurred there and the college authority recommended petitioner's case for permanent absorption and/or regularization in place of Prafulla Kundu. He submits that the previous recommendation was not for Library Attendant. Therefore, the concerned respondent had no scope to be confused. He further submits on and from 1st September, 1999 college authority issued appointment letter and the college authority repeatedly representing for regularization of the petitioner who is in service in the institution/college since 1984 for about last 28 years or more.