Gobinda Halder vs State Of West Bengal & Ors.

Tapabrata Chakraborty, J

A) The present writ petition has been preferred inter alia praying for issuance of necessary direction upon the respondents to accord approval to the

appointment of the petitioner to the post of a cycle peon with effect from 1st April, 1995 in Ramkrishna Ashram Library-cum-Museum (in short, the

said library).

B) Mr. Dalapati, learned advocate appearing for the petitioner submits that the authorities of the said library published an advertisement on 1st

February, 1995 inviting applications from eligible candidates for appointment to the post of a cycle peon. The petitioner applied and participated in the

aptitude test and in the interview conducted by a selection committee and emerged to be successful. Such resolution of the selection committee was

approved by the managing committee of the said library and an appointment letter was issued to the petitioner on 25th March, 1995. The petitioner

duly joined the said post and thereafter the Secretary of the said library forwarded the necessary documents to the respondent no.3 seeking approval

but such prayer was illegally rejected.

C) Drawing the attention of this Court to the documents annexed at pages 21 to 26 of the writ petition, Mr. Dalapati submits that the said library was

recognized as government aided public library on and from the year 1961. For running the said library, one Sri Amulyadhan Mondal was initially

appointed to the post of a librarian. He, however, resigned on 15th September, 1970 and in his place and stead one Rabindranath Das was appointed.

One Sri Ranjit Kayal was also appointed to the post of a cycle peon. After the post of cycle peon fell vacant, the petitioner was appointed by a letter

of appointment dated 25th March, 1995. After the said librarian retired on 31st October, 2003, he was issued a pension payment order on 12th May,

2004. Sri Ranjit Kayal also obtained pension, as would be explicit from the document as annexed at page 34 of the writ petition. From such facts it

would be evident that the said library had functioned as a government aided library.

Mr. Dalapati submits that the petitioner was appointed after he emerged to be successful in the selection process conducted by the competent

authority in terms of the subsisting recruitment rules and as such the respondent no.3 was under an obligation to approve such appointment of the

petitioner with effect from 1st April, 1995.

Per contra Mr. Ali, learned advocate appearing for the respondent nos.2 and 3 submits that the said library was recognized as a rural library by a

memo dated 10th May, 1963 subject to fulfilment of the conditions as specified in the said memo. Subsequent thereto, a deed of acceptance was also

executed for receipt of maintenance grant. The said library is not a government aided library.

Drawing the attention of this Court to a document annexed at page 59 of the affidavit-in-opposition, Mr. Ali submits that in the State of West

Bengal there are seven aided libraries and the name of the said library does not feature in the same. The said library is in fact a sponsored library, as

would be explicit from the list of government sponsored libraries annexed at pages 86 to 90 of the said opposition.

Mr. Ali submits that in case of direct recruitment the Local Library Authority (in short, LLA) in each district would be the selecting and appointing

authority and that the selection committee is also required to be constituted by LLA. Rule 3 of the Service Rules for the Employees in the Government

Sponsored/Public (other than Government) Libraries/Aided Libraries in West Bengal, 1985 (in short, 1985 Rules) under the West Bengal Public

Libraries Act, 1979 (in short, 1979 Act), categorically states that the LLA shall be the appointing authority in respect of appointment of employees of a

library. The term ‘library’ has also been defined under rule 2(e). The said 1985 Rules are thus universally applicable to all the employees of all

libraries.

He further submits that in the year 2004 the said library filed a writ petition being WP 9948 (W) of 2004 challenging inter alia an order dated 7th

April, 1998 passed by the respondent no.3 herein and seeking a declaration as regards its status and praying for issuance of necessary direction upon

the respondent no.3 therein to approve the appointment of the petitioner and of one Shyamal Middya. Upon contested hearing, the said writ petition

was dismissed by an order dated 24th October, 2017. Thereafter the present writ petition has been filed praying for identical reliefs and as such it is

not maintainable.

He further submits that in the writ petition it has been stated that the petitioner herein was appointed as a cycle peon in the year 1995. After such

appointment he did not approach the competent authority claiming approval. In the earlier writ petition though the petitioner herein was impleaded as

the proforma respondent no.6, he chose not to appear in the same. It is only after dismissal of the said writ petition, the petitioner submitted a

representation to the respondent no.3 on 14th March, 2018. There is no explanation as to why he waited since the year 1995 till the year 2018 to

approach the authorities.

Mr. Bandhopadhyay, learned advocate appearing for the State respondents adopts the submissions of Mr. Ali and submits that the petitioner was

not appointed following the recruitment rules and such illegal appointment cannot be regularised and approved.

Mr. Barua, learned advocate appearing for the respondent no.4 submits that the said library is a government aided library and upon being

appointed by the competent authority the petitioner had served in the said library for a substantial period of time. Such appointment of the petitioner

cannot be construed to be an illegal appointment. Challenging the order dated 24th October, 2017 passed in WP 9948 (W) of 2004 an appeal had been

preferred on behalf of the said library and the same is still pending.

The writ petition being WP 9948 (W) of 2004 was preferred by the Secretary of the said library primarily praying for the following relief:

“(a) A writ of or in the nature of Mandamus directing the Respondent and particularly the Respondent no.3 to approve the appointment of the

Proforma respondent no.4 and 5 as Librarian and Class IV staff (Cycle Peon) of Ramkrishna Ashram Library-cum-Museum and to pay and release

all salaries and allowances-both arrear and current of Proforma respondent No.4 and 5 at approved scale.â€​

Admittedly, the petitioner’s claim was rejected by an order dated 7th April, 1998 passed by the respondent no.3 herein. The said order was not

challenged by the petitioner. However, challenging the same the said library preferred a writ petition. The petitioner did not appear in the same, as

would be explicit from the final order passed in the said writ petition on 24th October, 2017. In the said order it was inter alia observed that “this

Court cannot be also oblivious of the fact that the writ petition, being of 2004 stood still till 2017 and, has been now taken up for consideration when,

the proforma respondent nos.4 and 5 are no more in service and have not come forward themselves to press their claims but, are doing so through the

agency of their employer, viz. The Sponsored Libraryâ€​.

The petitioner was appointed in the year 1995. Though his approval was denied by an order dated 7th April, 1998 passed by the respondent no.3,

he has preferred the present writ petition, in the year 2018. Such delay has not been explained in the present writ petition. It is a well settled position of

law that the relief under Article 226 of the Constitution of India is discretionary. It would be a sound and wise exercise of discretion for the courts to

refuse their extraordinary powers under Article 226 in the case of a person who does not approach the court expeditiously for relief and who stands

by and allows things to happen and then approach the court to put forward stale claims.

There is no document on record that the said library is an aided library. Its name does not feature in the aided library list of the State. It is in fact a

sponsored library and is bound by the provisions of the 1985 Rules. From a composite reading of the 1985 Rules and the 1979 Act, it appears that the

LLA is the competent authority to grant appointment in all libraries including aided libraries and sponsored libraries. Even if it is assumed that the said

library is an aided one it could not have constituted its own selection committee for direct recruitment. The LLA is the appointing authority and the

selection committee is required to be constituted by the LLA. In view thereof, the appointment of the petitioner cannot be construed to be a legal

appointment. The respondent no.3 considered the issue as regards approval of the petitioner herein and passed an order on 7th April, 2018 stating that

the his appointment to the post of cycle peon was illegal. The said order was under challenge in the previous writ petition which was dismissed upon

contested hearing.

It is well settled that the direction for regularization or approval or absorption or permanent continuance should not be granted by this Court in

exercise of the power under Article 226 of the Constitution of India unless the employee claiming regularization has been appointed in accordance

with the prevalent recruitment rules against a sanctioned post. Mere continuance of service does not entitle the petitioner to seek regularization. In the

event such direction is passed it would simply reinvigorate a class of claims which has been shut out permanently by the judgment delivered in the

case of State of Karnataka vs. Uma Devi (3), reported in (1996) 4 SCC 1.

For the reasons, as discussed above, this Court is unable to grant the relief as prayed for by the petitioner and the writ petition is, accordingly,

dismissed.

There shall however no order as to costs.

Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the

necessary formalities in this regard.