State Of West Bengal & Ors. vs Md. Alauddin & Ors.

This intra-Court writ appeal registers a challenge to the judgment and order dated November 05, 2015 passed by a learned Judge of this Court

whereby W.P. 27438(W) of 2015 filed by the respondent no. 1/writ petitioner (hereafter the ‘writ petitioner’) was allowed. Holding that the

appointment of the writ petitioner as a non-teaching staff in Kamurdiar Nazbul Haque High Madrasah (H.S.) was irregular, and not illegal, in the light

of the decision of the Supreme Court reported in (2006) 4 SCC 1: Secretary, State of Karnataka vs. Uma Devi (III), His Lordship issued directions

which we shall refer to a little later.

C.A.N. 8954 of 2016 is an application under section 5 of the Limitation Act seeking condonation of 48 days’ delay in presentation of M.A.T. 117

of 2016. We have heard learned advocates appearing for the applicants/appellants and the writ petitioner and perused the averments made in the

application for condonation of delay. Cause shown is sufficient. Delay in presentation of the appeal (M.A.T. 117 of 2016) is condoned.

C.A.N. 8954 of 2016 is allowed. Register the appeal, if it is otherwise in form. While hearing the application for stay (C.A.N. 857 of 2016), we have

heard the parties on the merits of the appeal too. Treating it as on day’s list, we propose to dispose it of here and now together with the said

application. The writ petitioner was appointed on July 26, 2010 by the secretary of the relevant madrasah. Permission of the concerned District

Inspector of Schools had not been obtained by the Managing Committee of the relevant madrasah prior to appointing the writ petitioner.

The learned Judge was of the view, as noticed above, that the appointment of the writ petitioner is not illegal but irregular on the basis of the principles

laid down in paragraph 53 of the decision in Uma Devi (supra). Accordingly, a direction was made on the district inspector to approve the writ

petitioner’s appointment as a Group-D staff within three months of communication of such order.

The appointment letter issued in favour of the writ petitioner dated July 26, 2010 reads as follows:

“Subj: Appointment Letter for Peon (Temporary)

Dear Sir,

As per resolution of the M/C, I have the pleasure to appoint you to the post of peon of this madrasah and you are requested to join the post within

seven Days from the date of receipt of this letter.â€​

It is in the light of such appointment letter that the reason assigned by the learned Judge has to be examined, which reads as follows:

“Considering the ratio in the case of Uma Devi reported in (2006) 4 SCC, Page-1, I do not think this kind of appointment is illegal but can be

‘irregular’ on the principles of that judgment. The appointment did not say that the writ petitioner was temporary or ad-hoc Peon but stated that

he was an irregular staff of the school on ‘substantive basis’ subject to approval of the District Inspector of Schools (SE). That is why I say

that the appointment was irregularâ€​.

We are of the considered view that the learned Judge committed gross error in viewing the appointment of the writ petitioner as irregular, and not

illegal. Considered in the light of the appointment letter issued to the writ petitioner, the findings in the aforesaid excerpt appear to be inappropriate.

The writ petitioner came to be appointed not on the basis of any selection process but through the side door. Having regard to the decision in Uma

Devi (supra) as well as subsequent decisions of the Supreme Court on the point including the decision in Official Liquidator vs Dayanand & Ors. :

(2008) 10 SCC 1, we are of the considered opinion that the judgment and order under challenge is indefensible.

Accordingly, we set aside the impugned judgment and order and dismiss W.P. 27438(W) of 2015. The appeal stands allowed. The application for stay

(C.A.N. 857 of 2016) stands disposed of. There shall be no order as to costs. Urgent photostat certified copy of this order, if applied for, be furnished

to the parties expeditiously.