IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION ORIGINAL SIDE PRESENT: The Hon’ble Mr.Justice Subrata Talukdar W.P.766 of 2015 Abhijit Sharma -vs.State of West Bengal & ORS.For the Petitioner : Mr.Sakti Pada Jana For the State : Mr.Amitesh Banerjee Mr.Tarak Karan Heard on : 18/03/2016 & 27/04/2016 Judgement on : 21/09/2016 Subrata Talukdar, J.: In this writ petition the petitioner claims approved appointment to the sanctioned post of clerk in the Secondary Section of Tantia High School, Kolkata (hereinafter referred to for short as the said school).The facts of the case are briefly as follows:That the petitioner was granted an appointment to the said post of clerk by the School Authority vide letter of appointment dated 10th of September, 2010 to be effective from 22nd April, 2010.
Such appointment was purely on a consolidated remuneration without any obligation of the School Authority to grant any benefits of regular appointment in favour of the petitioner.
However, by a prayer dated 22nd December, 2011 addressed to the District Inspector of Schools (Secondary Education) (for short DI (SE).Kolkata by the Headmaster of the School in issue, the former was requested to approve the service of the petitioner as a clerk against the vacancy which arose after the retirement of one Amit Kumar Samanta, an approved clerk, with effect from 25th of February, 2009.
Such resolution was adopted by the Managing Committee of the School in issue on the 16th of December, 2011.
The DI (SE).Kolkata was therefore requested to take steps to fill up such post in terms of GO No.2116/GA dated 3rd November, 2011.
The GO dated 3rd November, 2011, inter alia, permits schools Receiving Dearness Allowance (for short DA) assistance from the Government to fill up vacant posts within the sanctioned strength of non-teaching staff/librarian from the qualified persons working in the school.
The modalities of such appointment are set forth in the said Memo dated 3rd November, 2011.
By further Memos dated 9th December, 2011 and 13th December, 2011 issued by the Director of School Education, West Bengal the operation of his Memo dated 3rd November, 2011 was fiRs.stopped and, thereafter cancelled.
Sr.Sakti Pada Jana, Ld.
Counsel appearing for the petitioner submits that the orders stopping and thereafter cancelling the operation of the Memos dated 3rd November, 2011 was challenged by the writ petitioner in WP9640W) of 2012.
By final order dated 31st March, 2014 an Hon’ble Single Bench of this Court was pleased to, after elaborate discussion, set aside and/or quash the impugned orders of stoppage and cancellation respectively dated 9th December, 2011 and 13th December, 2011 (supra).The relevant portion of the solemn order of the Hon’ble Single Bench dated 31st March, 2014 reads as follows:“It has been mentioned in the writ petition and not controverted by any affidavit by the respondents that the petitioner had applied against the vacancy created by the retirement of a clerk, who was getting D.A.in the said post.
In that case there could not be any valid reason to deprivation.
It has also been the submission of the petitioner since there was an approved and sanctioned teaching and non teaching post for the grant of D.A.and the sanctioned teaching and non teaching staff were all getting D.A.After hearing the learned advocate for the petitioner as well as after going through the order impugned, I do not find any reason and/or justification for the respondents to issue this order.
On the other hand I find sufficient justification in the submission of the petitioner.
If by order dated November 3, 2011 the Government had allowed the authority of the D.A.getting schools to fill up the vacancy within the sanctioned strength from the qualified teaching/non teaching staff already working in the school for the Secondary and Higher 5 Secondary sections, the only norms that were to be complied with were laid down therein.
The orders that were passed within a very short span of time thereafter have not given any reason to cancel the order dated November 3, 2011 and does not also appear to have taken note of the probable consequences of such order.
In such view of it, I find sufficient merit in the writ petition.
The impugned communications being annexure P7 are hereby cancelled and set aside.
I direct the respondent authorities also to pass orders consequential upon the order passed today within a period of 8 weeks from the date of communication of this order.
The writ petition succeeds.
There shall, however be no order as to costs.” However, Sr.Jana points out that inspite of the order of the Hon’ble Single Bench dated 31st March, 2014, the DI (SE) Kolkata by the order impugned dated 12th of August, 2014 reiterated that prior to issuance of the GO dated 3rd November, 2011 and, after its cancellation by GO dated 13th December, 2011, the recruitment of non-teaching staff of a DA getting school stood solely guided by the Memo No.1736/G.A.dated 1st November, 1999.
The DI (SE).Kolkata further observed that the Director of School Education, West Bengal was not empowered with the authority to issue the Memo dated 3rd November, 2011.
Therefore, the prayer of the petitioner relying upon the observations made by the Hon’ble Single Bench vide its order dated 31st March, 2014 have no basis either in law or in fact.
Accordingly, such prayers stood rejected.
Sr.Amitesh Banerjee, Ld.
Senior Government Counsel appearing for the State-respondents submits that the appointment of non-teaching staff in a DA getting school must follow the general scheme of appointment relevant to all such schools.
Admittedly, at the relevant point of time when the School Authority sought confirmation of the service of the petitioner as approved clerk the governing Memo was dated 1st November, 1999 (supra) read with the further Memo No.785/SF(S) dated 4th July, 2008.
Sr.Banerjee argues that the above noted position of recruitment and approval applies since the Memo dated 3rd November, 2011 (supra) was issued without any authority of law, hence cancelled by the subsequent Memo dated 3rd December, 2011.
Accordingly, Sr.Banerjee submits that no relief can be extended to the writ petitioner.
Having heard the parties and considering the materials on record, this Court finds that in the facts of this case and qua the relief of approval sought for by the writ petitioner the legal position has attained finality by the order dated 31st March, 2014.
By such order, the Hon’ble Single Bench was pleased to not only set aside the order of cancellation of the Memo dated 3rd November, 2011 but, also directed the respondent authority to pass consequential orders within a specified time period.
The writ petition stood recorded as having succeeded.
To the mind of this Court such direction of the Hon’ble Single Bench to pass consequential orders cannot be considered in a manner by the DI (SE).Kolkata so as to frustrate such direction.
This Court notices that the DI (SE).Kolkata undertook a de novo appraisal of the effect of the Memo dated 3rd November, 2011 when, the only brief for the DI (SE).Kolkata was to pass consequential orders in the light of the observations of the Hon’ble Single Bench dated 31st March, 2014 (supra).This Court further holds that irrespective of the arguments for and against the Memo dated 3rd November, 2011, strictly in the facts of the claim raised by the writ petitioner before the Hon’ble Single Bench in WP9640W) of 2012 (supra).the DI (SE).Kolkata was under a legal duty to issue consequential orders in the light of the solemn final order dated 31st March, 2014.
Accordingly, the DI (SE).Kolkata is directed to pass consequential orders on the prayer of the School Authority claiming approval of the post of the writ petitioner as clerk strictly in the light of the decision of the Hon’ble Single Bench dated 31st March, 2014 (supra) and the observations made by this Court in this judgment.
The Memo impugned No.275/1(3)/Law dated 12th August, 2014 issued by the DI (SE).Kolkata stands set aside.
WP766of 2015 stands allowed.
There will be, however, no order as to costs.
Urgent certified photocopies of this judgement, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.
(Subrata Talukdar, J.)