- (1.) THE petitioner was appointed as an Assistant Teacher in a non-sanctioned post in Shree Maheshwari Vidyalaya, which is a D.A. getting school. THE petitioner joined his service in the said school in the Department of Physical Science on 23rd March, 2004 and since then he has been rendering his service in the said school without any break. A vacancy in a sanctioned post in the Arts Stream was created on 14th January, 2007 on the retirement of an approved Assistant Teacher, namely, Sri Ram Singh, whose educational education was M.A., B.Ed. THE school authority adopted a resolution recommending his absorption in the vacancy which was created on the retirement of the said approved Assistant Teacher so that the petitioner may get the admissible dearness allowance from the State respondents.
(2.) SINCE such proposal of the school authority remained unattended for a long time, the petitioner also requested the concerned District Inspector of Schools for early consideration of the schools proposal for absorbing him permanently in the said sanctioned vacancy. Ultimately, however, in terms of the order passed by this Court on 19th November, 2008 in the earlier writ petition being W.P. No. 819 of 2008 filed by a number of unapproved Assistant Teachers of the said school, the concerned District Inspector of Schools (S.E.), Kolkata, considered the schools proposal for approving the service of some of the unapproved Assistant Teachers including the petitioner and ultimately disposed of the schools such proposal by an order passed by him on 20th August, 2009. As a matter of fact, the schools proposal for approving the service of the petitioner in the aforesaid sanctioned vacancy was rejected by the said District Inspector of Schools as the appointment of the petitioner, according to the said District Inspector of Schools, was not made in conformity with the Government Order, namely, Memo No. 670- SE(S)/IM/14-98 Dated 4th September, 2001. The legality and/or propriety of the said order as contained in Annexure P/9 to this writ petition at page 52, is under challenge in this writ petition at the instance of the said Assistant Teacher. Let me now consider as to how far the concerned authority was justified in passing the impugned order in the facts of the instant case. Since the concerned authority refused to approve the service of the petitioner in the said sanctioned vacancy on the basis of the aforesaid Government Order, this Court has carefully considered the Government Order which is annexed to this writ petition at page 52 therein.
(3.) SO far as the Government Order dated 4th September, 1998 is concerned, this Court finds that the said Government Order was not issued by the Government for distribution of the teaching staff in a DA getting school. The said Government Order was issued on the subject of distribution of teaching staff in the recognized Non-Government Junior High School, Junior High Madrasah, High School, High Madrasah and Higher secondary School (Normal Section). Thus, this Court can safely conclude that the said Government Order is not applicable to a DA getting school. As such the rejection of the schools proposal for approving the service of the petitioner in the said sanctioned vacancy on the basis of said Government Order, cannot be supported. The State respondent in its affidavit contended that since no prior permission was taken for filing up the said vacancy by an existing non-approved teacher by the school authority from the concerned District Inspector of Schools, his appointment in the sanctioned vacancy, cannot be regularized. Such stand of the State authority cannot be supported in view of the unreported decision of this Honble Court passed by a Learned Single Judge of this court on 10th September, 2002 in W.P. No. 1169 of 2002 wherein it was held that there was no requirement of obtaining prior permission for recruitment of an Assistant Teacher in a DA getting school. If the said principle is applied in the instant case, then the irresistible conclusion which can be arrived at, is that approval of service of the petitioner in a sanctioned vacancy cannot be refused on the ground that his appointment was given in the said post without taking prior permission from the concerned District Inspector of School.;