HARISH TANDON,J. - (1.) CHALLENGING the order dated 07.02.2001 issued vide Memo No. 150/1(4)/PE of the even date in this writ petition, the petitioner contends that the authorities ought to have regularized the appointment of the petitioner to the substantive permanent post by treating it as irregular appointment.
(2.) IN fact, the petitioner is trying to take shelter under the observation made by the Apex Court in case of State of Karnataka vs. Uma Devi (3) reported in (2006) 4 SCC 1 wherein the regularization is held permissible in case of an appointment of an employee against a sanctioned post without undergoing the process of open competitive selection as one time measure. The petitioner claimed to have appointed by the School Authority of Deshbandhu Vidyapith (Primary) as a clerk on the basis of the interview held on 29.07.1975. According to her, although she was appointed as clerk but was shouldering the burden of duties of an Assistant Teacher in the said school. Subsequently, she was appointed to the post of a teacher on purely temporary basis by the school. The appointment letter annexed to the writ petition reveals such appointment to be temporary against a substantive permanent post. The School Authority on 05.03.1980, sought for approval of the appointment of 3 teachers including the petitioner but the authorities approved the appointment of 2 other teachers but rejected the case of the petitioner. The School Authority, thereafter, from time to time sought for the approval of the appointment of the petitioner whereas the petitioner also made several representations to the concerned authority for taking a decision relating to the approval to such appointment. Ultimately, in the writ petition being C.O. No. 8612 (w) of 1992 filed by the petitioner, a direction was given upon the Chairman, Adhoc Committee, District Primary School Council to consider and dispose of the case of the petitioner by passing the reasoned order upon giving an opportunity of hearing to the petitioner. By the impugned order, the Chairman of the Calcutta District Primary School Council have refused to grant approval as the petitioner's appointment was not made to an approved sanction post. Mr. Asish Kumar Sanyal, the learned Advocate appearing for the petitioner, however, submits that if an appointment is made to a sanctioned post without undergoing the process of open competitive selection, the same could be termed as irregular but cannot be termed as illegal and such appointees are entitled to seek the regularization of their irregular appointments in terms of the direction made in Uma Devi (3) (supra). He strenuously submits that the School Authority while issuing the appointment letter expressly observed that such appointment is against a substantive permanent post which cannot be disputed by the authority.
(3.) THE aforesaid contention is refuted by the learned Advocate appearing for the said Council in contending that the appointment of the petitioner was made to an non-existence post and therefore, the appointment of the petitioner cannot be regularized. According to him, the appointment is made to the post of a Clerk-cum-Teacher which is non- existence in terms of the statutory rules and therefore, the authority have rightly rejected the claim of the petitioner. Having considered the respective submissions, it is undisputed that the petitioner was appointed in the year 1977 by the School Authority without undergoing the process of open competitive selection. The appointment letter issued by the authority in the year 1977 depicts the appointment to the post of Assistant Teacher when the petitioner was already serving as Clerk. The approval sought by the School Authority shows the appointment of the petitioner to the post of a Clerk-cum-Teacher which is admittedly a non-existence post in the Primary School. The Constitution Bench in case of Uma Devi (3) (supra) held that the appointment made without following the due process as provided in the rules relating to appointment does not confer any right on the appointees and no order for their absorbtion, regularization and/or re-engagement could be passed in exercise of jurisdiction under Article 226 of the Constitution by the High Court. However, an exception is carved out from the said general principle if the following conditions are fulfilled: " (i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. (ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular." ;