HARISH TANDAN - (1.) THE petitioner has prayed for a writ of mandamus commanding the respondents to grant approval to the candidature of the petitioner as Primary Teacher after the condonation of age and to pay his salary month by month and also to release her arrear salaries since the date of appointment.
(2.) SHORN of fact, the petitioner claimed herself to be appointed by the Secretary of Panchajona High School (Primary School) Kolkata as primary teacher since 12th July, 1974. The said appointment is stated to have been made upon resignation of one of the teacher. She further stated that after her appointment several request were made for regularisation of her service, but the authority did not grant approval. By passage of time, she crossed the age bar but the authorities did not grant approval regarding the regularisation of the service of the petitioner. The petitioner moved before this court in W.P. No.13852 (w) of 1997 which was disposed of by the Single Bench of this Court on 16.03.1998, directing the District Primary School Council to consider the case of the petitioner by permitting her to appear in the written test along with other candidates. According to the petitioner, she appeared in the written test but the result has not been communicated to her. She further stated that some of the candidates who were similarly placed move before this court and this court has passed an order for regularising their services. Thus, on the strength of those orders, the petitioner is claiming the same treatment in this writ petition. In affidavit-an-opposition filed by the District Primary School Council, it is specifically contended that in an earlier writ petition filed by the petitioner this court observed that she was not appointed in terms of the rule and her appointment cannot be regularised but considering the ten year of her service, the petitioner was allowed to sit in the written test after condonation of age bar along with other candidates. It is specifically contended that the petitioner could not qualify herself in the said test. In affidavit in reply the petitioner reiterated her stand taken in the writ petition. Mr. Biswarup Biswas, learned Advocate appearing for the petitioner submits that the petitioner was appointed as the organiser teacher and is rendering her services since her appointment in the year 1974, uninterruptedly. He further submits that her appointment without following the administrative instruction can at best be said to be irregular but not illegal, as has been held by the Division Bench in case of the Chairman, Adhoc Committee, Calcutta District Primary School Council Vs. Sri. Nagendra Prasad Singh & Ors. (unreported judgement, being FMA 416.2002 decided on 14.2.2007). He further contends that on identical facts, some other candidates have been favoured with an order for regularisation of their services by this court. Lastly, he contends that the petitioner should be treated similarly and the concerned authority may be directed to regularise the appointment of the petitioner. Mr. Tulsi Das Maity, the learned Advocate appearing for the District Primary School Council vehemently opposes the submission of the petitioner in contending that in an earlier writ petition similar prayer was made and the court refused to pass an order for regularisation of the service of the petitioner. He vehemently contends that the petitioner participated in the written test along with other candidates in terms of the order of this court passed in an earlier writ petition but could not succeed. Lastly, he contends that the instant writ petition is not maintainable.
(3.) HAVING heard and considered the respective submissions, admittedly, the petitioner was appointed as organizer teacher in the year 1974. It is undisputed that the school was subsequently recognized but the appointment of the petitioner was not approved by the concerned authority. Seeking an order of regularization of her service, the petitioner filed a writ petition being W.P. 13852 (w) of 1997 before this court which was disposed of by the Single Bench of this Court on 16.3.1998 by directing the District Primary School Council, Calcutta to consider her candidate after relaxation of the age bar along with other candidates. It is specifically mentioned in the opposition that while disposing of the said writ petition there was specific observation that the appointment of the petitioner was not in terms of the rules and such appointment cannot be regularized. In reply to the said categorical statement made in the affidavit opposition by the District Primary School Council the petitioner did not make a single statement thereupon and contends that any statement contrary to the records are denied. If the court on an earlier occasion refused to grant any relief of regularization, the subsequent writ petition making similar prayer/relief is not entertainable. The point which was canvassed and was directly and substantially in issue in the earlier writ petition cannot be reagitated by the litigant in a subsequent proceeding. Furthermore, in terms of an order passed in an earlier writ petition the petitioner participated in the written test along with the other eligible candidates and was not found successful. The petitioner now can not fall back to her earlier right seeking regularization on the strength of her long service. Another aspect which cannot be avoided while deciding the instant writ petition is that the petitioner?s claim for regularisation was dismissed by the Court and the said order can not be rendered nugatory on the strength of the fact that some other similarly circumstances person were favoured with an order of regularisation.;