JOYMALYA BAGCHI,J. - (1.) THE writ petitioner has approached this court challenging, inter alia, the impugned decision dated 22.07.2009 taken by Respondent no 2 herein and communicated to him by memo 28.07.2009 rejecting his prayer for regularization of his temporary service from the date of his initial appointment i.e. 01.02.2003 and for other consequential reliefs.
(2.) IN terms of the Government order 31.10.2002 for appointment of Group "D " staff on contractual basis, the District Judge Purulia, respondent no. 2 herein, issued a memo to the employment officer, District Employment Exchange, Purulia for sponsoring names for appointment of Group "D " staff on temporary bases; the name of the petitioner, amongst others, was forwarded for consideration to the post of Group "D ", as a night guard; following an interview, the petitioner was selected and by office order dated 01.08.2003 was appointed as a peon in Group "D " category on purely temporary and contractual basis till 31st January, 2004; the petitioner claimed that till date he is continuing on contractual basis in such post; by Government order dated 26.09 2005 it was declared that employees who were initially appointed on contract basis with the approval of the Appointments Committee of the Cabinet (hereinafter referred to as "ACC ") shall be absorbed against regular vacancies in light of the aforesaid Government Order a number of temporary employees in Group 'D ' category were absorbed against regular vacancies; the petitioner made a representation for his regularization but the same went unheeded; the petitioner moved this court by way of writ petition being W. P. No. 22469 (W) of 2008, this Court directed to the Principal Secretary of the Judicial Department, Government of West Bengal to take a decision on the representation of the petitioner for regularization; pursuant thereto, respondent no. 2 after hearing the petitioner passed the impugned order dated 22.07.2009 rejecting the representation of the petitioner; hence, this writ petition. Respondent Nos. 6 and 7, namely, the High Court Calcutta and the said Register General of the High Court have opposed this writ petition by filling an opposition thereto. The crux of their contention is that the petitioner was appointed on contractual basis to the said post and had no vested right for permanent absorption; the petitioner could not claim benefit under Government Order dated 26th September, 2005 as he did not qualify in terms thereof since his appointment had not been approved by the ACC; the impugned decision dated 22.07.2009 of respondent no 2 is a well reasoned one and the respondent no. 2 rightly declined to regularize him as his initial appointment was not pursuant to open advertisement and the same had not been approved by ACC and the concerned District Judge had failed to submit relevant documents including one relating to valid extension of his temporary service.
(3.) MR . Chatterjee, learned advocate appearing for the petitioner submitted that the petitioner was appointed in accordance with the then prevalent rules and norms and the requirement of open advertisement for filling up such post was not mandatory at the time of his initial appointment. He submitted that by Government Order dated 25.07. 2008 public advertisement was made mandatory for appointment to public posts. Hence, it was submitted that the appointment of the petitioner was in accordance with the relevant Recruitment Rules as prevalent at the material time which did not require advertisement in newspaper as mandatory prerequisite for filling up posts and therefore, his initial cannot set to be illegal. In support thereof, he referred to the West Bengal Act no XIV of 1999 which, inter alia, provided that the State Government shall fill up vacancy from candidates sponsored by employment exchange. He also relied on 2007 (11) SCC 605 and 1998 (2) SCC 332, (Para 20). He further submitted that the absent of approval of ACC is a mere irregularity and did not render his initial appointment illegal. In support of such submission, he relied an unreported decision dated 14.07.2004 in WP no. 15547 (W) of 2003 and 2005 (1) CHN 351 (para 13). Therefore he concluded that the impugned decision of respondent no. 2 that his initial appointment was patently illegal is incorrect and he ought to have been regularized. He also relied on (1978) 1 SCC 405 in support of his contention that new grounds cannot be utilized to supplement the conclusion in the impugned order. He also relied on (2006) 5 SCC 1, (paras 43 and 53), and (2007) 11 SCC 92 (paras 12 -15) in support of his prayer for regularization.;