Punit Das vs State of W.B. and Others

Subrata Talukdar, J—This old writ petition of the year 2005 is directed against the inaction of the District Inspector of Schools (Secondary Education), Kolkata to recommend the name of the petitioner for permanent appointment at Calcutta Training Academy (Secondary School), 13, Simla Street, Kolkata - 700006 by permitting the authority to fill up a vacant Group ''D'' post by granting prior permission. Sri Ekramul Bari, Ld. Counsel appears for the petitioner. Inspite of filing affidavit-of-service none appears to oppose the writ petition on behalf of the State-respondents.

The short facts of the case are as follows:

(i) That the said school namely, Calcutta Training Academy (Secondary) is a recognized institution under West Bengal Board of Secondary Education. The father of the present petitioner was a permanent Group ''D'' staff in the school and suddenly died on 26th April, 2001 while in service at the age of 54 years.

(ii) Immediately thereafter the petitioner applied for appointment on compassionate ground, i.e. died-in harness category and the Managing Committee approved such application forwarding the same to the District Inspector of Schools (for short DI) (Secondary Education) (SE), Kolkata for necessary steps. The resolution of the Managing Committee dated 22nd September, 2001 is annexed to the writ petition. Alongwith the resolution the Headmaster of the said school also forwarded other necessary papers for recording the name of the petitioner under died-in-harness category to the DI (SE), Kolkata on the 11th of October, 2001.

(iii) Accordingly, the name of the petitioner was recorded in the roster by the DI (SE), Kolkata and from the roster his name was forwarded for appointment as a Group ''D'' staff at Jadavpur Sammilitya Balika Vidyalaya. The communication of the DI (SE), Kolkata forwarding the name to Jadavpur Sammilitya Balika Vidyalaya for appointment of the petitioner as Group ''D'' staff in the vacancy having arisen upon the retirement of one Smt. Sandhya Mondal is dated 12th December, 2001 and marked annexure P-3 to the writ petition.

(iv) However, the Jadavpur Sammilitya Balika Vidyalaya could not accept the appointment of the petitioner as Group ''D'' staff on the ground that no male candidate can be appointed in the girls school. Therefore the matter went back to the DI (SE), Kolkata and, in the meantime, a vacancy occurred in the original said school, i.e. the Calcutta Training Academy. The petitioner, in view of the Group ''D'' vacancy having arisen in the said school, promptly applied to the DI (SE), Kolkata for appointment on the 9th of January, 2002. The Headmaster of the said school also strongly recommended the appointment of the petitioner.

(v) Unfortunately, in spite of the vacancy having arisen in the said school the DI (SE), Kolkata did not grant the necessary permission for filling up the post citing financial embargo. Therefore, the prayer of the authority of the said school to grant prior permission to fill up the Group ''D'' post was kept pending although the same was submitted on the 11th of October, 2001.

Ld. Counsel appearing for the petitioner submits that under the Non-Teaching Staff Recruitment Rules the name of the eligible candidate in the died-in-harness category shall be automatically sponsored by the DI (SE), Kolkata irrespective of seniority soon after an application is made in the event of a death in harness. Sri Bari, Ld. Counsel points out that even at this stage the Group ''D'' post in the said school against which the petitioner could be appointed under died-in-harness category is being kept vacant. Therefore, necessary directions ought to be passed by this Court upon the DI (SE), Kolkata to grant permission to the said school to fill up the Group ''D'' post and to sponsor the name of the petitioner to the said post. The long delay in finalising the matter has frustrated the very object of mitigating the financial hardship of the petitioner and other family members on the death of their bread winner. Sri Bari also relies upon a judgment of this Court in the matter of Asoke Sawoo Vs. The State of West Bengal and Others, (2012) 4 CALLT 393 : (2013) 2 WBLR 229 .

Having heard the petitioner and applying the doctrine of non-traverse this Court notices that by order dated 19th May, 2005 an appearance was made on behalf of the State respondents. Time was prayed before the Hon''ble Single Bench to take instructions and therefore the matter stood adjourned. Thereafter the matter appeared on several dates before this Court and, since none appeared on behalf of the State respondents, the petitioner was directed to file an affidavit-of-service showing intimation upon the Ld. Government Pleader of the pendency of this matter before this Court.

The direction regarding a fresh service passed by this Court on the 5th of February, 2015 was duly complied with by the petitioner and a fresh affidavit-of-service was filed on the 10th of March, 2015. However, inspite of such service none appeared to represent the State respondents.

Since the facts pleaded in the writ petition concern the issue of compassionate appointment of the petitioner any further delay will defeat the ends of justice. Therefore Sri Bari, Ld. Counsel was permitted to complete his submissions.

Having noticed the submissions and the documents on record this Court finds that the DI (SE), Kolkata acted on the resolution of the Managing Committee of the said school by forwarding the name of the petitioner for compassionate appointment since, from the Memo No. 2060/M dated 12th December, 2001 it does transpire that the DI (SE), Kolkata requested the Jadavpur Sammilitya Balika Vidyalaya to appoint the petitioner in the died-in-harness category against a vacant Group TV post. Since such appointment could not take place due to the petitioner being a male candidate and the school being only for girls, the matter reverted to the DI (SE), Kolkata.

This Court further finds that the petitioner submitted an application before the DI (SE), Kolkata on the 9th of January, 2002 for appointment in the died-in-harness category which was recommended by the Headmaster of the said school on the said date. This Court also finds that the Hon''ble Division Bench in the judgment of Asoke Sawoo and others v. State of West Bengal and others, has clearly held that vacant posts should be filled up in terms of the rules prevailing at the time when such vacancies arose.

In the facts of Asoke Sawoo Case (supra), the Hon''ble Division Bench, inter alia, held that the vacant posts which arose during the subsistence of the West Bengal School (Recruitment of Non-Teaching Staff) Rules, 2005 (for short the 2005 Rules) should be allowed to be filled up under the 2005 Rules which were in force when the respective vacancies arose. The Hon''ble Division Bench was of the further view that since a considerable time has already lapsed due to the illegal stand taken by the respondent authority, the respondent authority was directed to complete the selection process for filling up the vacant posts of non-teaching staff which were the subject-matter of the appeal before the Hon''ble Division Bench within a prescribed period so that formal appointment letters could be granted to the selected candidates by the concerned school authority also within a prescribed period.

This Court is of the considered view that the petitioner deserves similar benefits as laid down in Asoke Sawoo and others (supra). This Court finds that the Memo dated 12th December, 2001 shows the satisfaction of the DI (SE), Kolkata with regard to the eligibility of the petitioner for compassionate appointment under the died-in-harness category to a Group ''D'' post. In fact the DI (SE), Kolkata acted on such satisfaction by formally recommending the name of the petitioner for initial appointment at the Jadavpur Sammilitya Balika Vidyalaya.

However, in view of the technicality involved the appointment, although recommended by the DI (SE), Kolkata, could not mature in a girls school and there is no justification to sit over such appointment by the DI (SE), Kolkata thereafter for several years at a stretch inspite of noticing the fact that the vacancy for a Group ''D'' post in the said school, being the Calcutta Training Academy does exist and awaits prior permission from him.

Following the ratio in Asoke Sawoo (supra) the vacancy must be filled up in terms of the rules then prevailing. Accordingly, the Respondent No. 3, being the DI (SE), Kolkata is directed to take steps for granting prior permission to fill up the vacant Group ''D'' post at the said school, being the Calcutta Training Academy in favour of the petitioner without any further delay and positively within a period of nine weeks from the date of communication of this order by observing the required formalities. The authority of the said school shall issue a formal appointment letter in favour of the petitioner within a period of two weeks thereafter.

W.P. 6421(W) of 2005 stands accordingly allowed. Urgent certified photocopies of this judgment, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.