State Of West Bengal & Ors vs Banibrata Ghosh & Ors

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 3 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 4 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.

10. We have carefully seen the Division Bench Judgment and are unable to agree with the same. Very strangely, the Division Bench has expressed:-

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 14 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.

February 2, 2009.