STATE OF WEST BENGAL Vs. PROBHAT MONDAL

JUDGEMENT

(1.) This appeal is by the State questioning the judgment of the learned Single Judge whereby the learned Single Judge has directed regularization of the original writ petitioner. The learned Single Judge has taken into consideration that firstly the petitioner was serving the school right from 1995, secondly, he was fully qualified and thirdly there was a genuine necessity on the part of the school to appoint him. It was pointed out before the learned Single Judge that firstly, the post in which the petitioner was appointed was not available to school at all. It was not an approved post. Secondly, it was pointed out that no proper procedure was exercised while filling up that, post in the sense that no permission was sought for the filling up of the post nor was the petitioner made to face the competition with some others in the sense that no advertisement was floated for the filling up of this post and appointment of the petitioner. It was then pointed out that the appointment itself was not a legal appointment having been made in total contravention of the existing rules and, therefore, no sympathetic consideration should be shown to the petitioner because what is illegal cannot be cured subsequently by regularization. In support of his contention the learned Counsel relied upon a Constitution Bench decision reported in 2004(7) SCC 112 (A Uma Rani v. Registrar, Co-operative Societies & Ors.). There relying on the observation in Paragraph-35 and some further paragraphs, the learned Counsel pointed out that the view that has been taken by the Apex Court that if the appointment is initially illegal it cannot be regularized and the subsequent regularization cannot give a colour of legality to the initial appointment. There can be no dispute about this proposition of law. The learned Judge has taken into consideration some other decisions to suggest that the petitioner would be thrown out of the service as he is now become over aged.

(2.) In view of the last Supreme Court judgment quoted by us which was not pointed out to the learned Judge, the judgment cannot be sustained. There can be no dispute that the petitioner though a qualified candidate when appointed, there was no post available in the school at all. This is apart from the fact that the manner of appointment of the petitioner was also not in keeping with the existing rules of firstly obtaining permission from the authorities and, secondly, formulating a Selection Committee, floating advertisement and then going through the process of selection. In that view, we cannot agree with the learned Single Judge. However, in our opinion the petitioner who is fully qualified for holding the post cannot be thrown to the winds after having served for more than ten years on the meagre salaries.

(3.) The learned Counsel for the State says that subsequently one more post was approved for the school which is yet to be filled up by the School Service Commission. We, therefore, would strongly recommend that the post should be filled up duly and the petitioner should be allowed to take part in the process of selection, though he has now crossed the age. This, we are observing only under the extra-ordinary circumstances of this case and this should not be cited as precedence. The petitioner is agreeable to this.