- (1.) The petitioner under this writ petition wanted to be regularised as a clerk i.e. non-teaching staff of the Institution. The petitioner's claim for regularisation of service had been refused by the concerned Director of School Education. The petitioner contended that he was appointed on 1st July, 1976 by a resolution of the Managing Committee dated 29th January, 1977 and the service was confirmed. On 29th April, 1982, the Administrator of the School wrote a letter to the District Inspector of the Schools (S.E.). Calcutta with a request to sanction to the Post of 3rd Clerk with effect from 26th August, 1981 by mentioning that the petitioner is working in such post from 1st of July, 1976. On 19th June, 1982 the concerned District Inspector of Schools (S.E.), Calcutta made an enquiry and forwarded the matter to the Director of School Education on 8th March, 1991. The Managing Committee absorbed the petitioner against an approved post of Clerk who was going to retire on 31st March, 1991. The President of Managing Committee duly informed this matter to the concerned Authority on 23rd March, 1991. A further intimation was also given by the President for approval of appointment of the petitioner on 25th April, 1994. The President forwarded all the papers and documents on 12th September, 1994. Upon being frustrated a writ petition was moved by the petitioner on 28th March, 1996. But the concerned District Inspector of Schools rejected the claim of the petitioner on 18th November, 1996 by holding that the petitioner was not appointed against any sanctioned post and the School Authority did not inform about the appointment of the petitioner to the Authority concerned. The petitioner again gave a representation to such Authority to reconsider this matter on 3rd December, 1996 but again the rejection was made on 2nd June, 1997. Challenging the same, the petitioner moved another writ petition on 2nd September, 1998. Pursuant to the verdict of the Court for consideration by the Director of School Education when such Authority rejected the claim being Memorandum No. 4 LC on 7th January, 2001 which is under challenge in the present writ petition.
(2.) I find that the case of the petitioner is supported by the Institution itself unlike the other case in which it has been opposed and appeal was preferred from the order passed by this Court. Even in that case arising out of W.P. No. 734 of 1997 from which a appeal was preferred being APOT No. 476 of 2000 (Secretary, Managing Committee, Sri Dideo Maheswari Panchayat Vidyalaya v. Shri Dipak Kumar Mishra & Ors.) where the Division Bench of this Court under an order dated 13th June, 2001 refused to dismiss the appeal and order of this Court in case of regularisation of the service made confirmed. The indication of the Division Bench order says which is as follows : "We find nothing wrong in the initial forwarding of the writ petitioner's name on the basis as if he were being appointed to a minority institution because in 1994 nobody could or was permitted to, guess that the appeal from order dated 3.4.87 without succeed and the School would lose its minority status".
(3.) In view of such Division Bench order when the service of the petitioner is in the similarly placed period when he was given beyond doubt that the petitioner is a victim of the discrimination. Therefore, having the school of minority status but not a party to the fraud or a sharp practice for which if an order is passed by this Court which will be an impetus to illegality. Therefore, being such position there is hardly any cause of non-regularisation of the service of the petitioner. It is to be remembered that the minority Institution is holding certain independence status under the statute itself in respect of the appointing the teaching and non-teaching staff as per their requirements. If it is so, then the appointment cannot be held to be the backdoor appointment. If an appointment is not a backdoor appointment, such appointment after a considerable period of work cannot be disallowed from getting an approval of the same. There is only difference that the petitioner was not appointed against a sanctioned post on his initial appointment i.e. on 1st July, 1996 shifted as against the vacancy of the sanctioned post with intimation to the District Inspector of Schools by 23rd March, 1991. It appears from the said intimation that the petitioner was given an accommodation to work as against the sanctioned vacancy at least from 23rd March, 1991. At that point of time the petitioner's Institution was no doubt a minority Institution. Therefore, the ratio of the case as made applicable in the petition will be definitely applicable hearing such portion is equated hereinbelow : "One is reported in (Arun Kumar Raut & Ors. v. The State of West Bengal & Ors., 1998 AIR(SC) 1477) and another in (Kesab Narayan Gupta & Ors. v. Zilla Parishad, Sibpuri & Ors., 1998 9 SCC 78) where it has been held that the persons who are working as casually or temporarily they deserve sympathy for consideration even if this could not claim regularisation as a matter of course. This was considered as an equitable justice since such incumbent is not guilty of fraud by sharp practice and did not lack any requisite qualification. The observation of the Supreme Court is also to be considered in such a situation by waiving the age bar". Even for the sake of comparable scenario I find that the West Bengal School Service Commission Act has also made an exception in respect of the applicability of the same for the School established and administered by a minority statute whether based on religion or language. Previously from 1974 the School Committee was empowered to appoint the employees and prescribe the scale or allowances. Therefore, under no stretch of imagination the requirement of conditions are not said to be not fulfilled by such incumbent in getting regularisation. Therefore, Court cannot come to a conclusion that the appointment was given by not following any prescribed rules so that the initial can be declared as bad for the purpose of holding the view of subsequent regularisation.;