HARISH TANDON, J. - (1.) THE petitioner has impugned an order vide memo no. 1354(3) dated 6.11.2003/7.11.2003 passed by the Chairman, Howrah District Primary School Council whereby and whereunder the representation of the petitioner was rejected.
(2.) BEFORE proceeding to decide the matter it would be pertinent to record that in spite of service no affidavit in opposition is filed by the state respondent. However, an affidavit in opposition is filed by the respondent no. 5, the head teacher of the B.F. Siding Adarsha Primary School, Howrah and the respondent no. 4, Howrah District Primary School Council. The respondent no. 5 has supported the cause of the petitioner in his affidavit in opposition. The backdrop of the case is that the petitioner was appointed as the assistant teacher in B.F. Siding Adarsha Primary School by the Selection Committee constituted by the Managing Committee of the said school. It is her further case that the school authorities informed the District Inspector of School on 4.5.1979 about her appointment and submitted all the relevant documents relating to the petitioner for approval of the said appointment. Subsequent application was also made by the then teacher in-charge of the said school to the DI of school (PE) Howrah for approval of the said appointment of the petitioner. It is her case that the authorities were not considering the aforesaid recommendation which compelled the petitioner to file writ application being CO no. 12391 (w) of 1993 before this court. It is her further case that when the District Primary School Council was going to recruit the further primary teachers in the Howrah district she met with the concerned employment exchange for the sponsorship of her name to the said post but her request was turned down. However, the said writ petition was disposed of on 5.8.2003 directing the respondent no. 5 to consider the case of the petitioner in accordance with law within the stipulated period. Pursuant to the said direction the impugned order was passed by the respondent no.
(3.) MR. A. K. Gayen, learned Advocate appearing for the petitioner submits that the authorities cannot reject the said application/representation of the petitioner by applying a subsequent Rule/Act which has not been expressly made applicable retrospectively. He further argues that the prayer of the petitioner is for regularization of his service against the approved post and the authorities cannot deny the consideration of regularization of the appointment of the petitioner which at best can be said to be irregular but not illegal and relies upon a judgment of the supreme Court in case of State of Haryana and Ors. Vs. M.L. Kesari reported in (2010) 9 SCC 247. 5. MR. Tulsidas Maity, learned Advocate appearing for the respondent no. 5 submits that the appointment of the petitioner cannot be said to be irregular but is illegal having not been done against the approved post and as such the petitioner cannot take shelter under the said judgement of the apex court delivered in case of M.L. Kesari (supra). According to him the school authorities/Managing Committee without seeking for an approval of an additional post appointed the petitioner and the authorities have rightly turned down the said representation. Thus he concludes that the petitioners have no right to pray for approval of the illegal appointment. Having considered the submission of the parties, it appears that the petitioner has claimed her appointment against the said sanctioned post and have relied upon the letters issued by the school authorities to the DI of School to approve the appointment of the petitioner. It is a positive case of the petitioner that her appointment is against the sanctioned post whereas it has been categorically asserted by the respondent no. 5, the District Primary School Council, that there was no sanction of such post by the authorities concerned. There is no dispute with regard to the fact that the appointment of the petitioner was made in the year 1975 when the West Bengal Recruitment Rules of 2001 was not formed.;