- (1.) ASHIM KUMAR BANERJEE.J: FACTS One Mihir Kumar Hazra, the respondent above named approached the learned single Judge in 1993 by filing C.O. 972 (W) of 1993 for a direction upon the District Inspector of School to approve and regularize his service with effect from November 16, 1987 as a BioScience teacher in Raghunathpur High School in the District of 24- Parganas (South). After exchange of affidavits the matter appeared before the learned single Judge when His Lordship vide judgment and order dated July 9, 1995 allowed the writ petition. In the writ petition Mihir claimed that the Managing Committee appointed him in 1987 by issuing a Letter of Appointment dated November 16, 1987 as Assistant Teacher in a vacant post. He joined the school on November 16, 1987 and he was working since then against a paltry salary from the school authority. Subsequently, the school got a sanctioned post in which he wanted to be regularized. The District Inspector filed an Affidavit-in-Opposition wherein we find, learned Single Judge passed an order dated January 13, 1993 against the school and the State respondent not to interfere with his service and 3 release him the salary. The school also filed affidavit. School came to know of the pendency of the writ petition from the office of the District Inspector when the Head Master visited the said office on October 18, 1993. School obtained a copy of the writ petition from the Law Cell of the District Inspector?s office on November 4, 1993. The school totally denied the claim of the teacher. Petitioner was never appointed in the school, in fact he was not having appropriate qualification. The then Secretary of the school possibly manipulated the records to accommodate him. In effect, the school totally denied any relationship with Mihir.
(2.) THE learned Judge heard the matter and disposed of the same by judgment and order dated July 6, 1995. THE learned Judge was of the view that since there were two permanent vacancies duly sanctioned by the authority he should be regularized in such post. His Lordship was of the view that petitioner succeeded in establishing his case for getting approval of his appointment as a Bio-Science teacher. His Lordship directed regularization. Being aggrieved, the school preferred an appeal. THE Division Bench passed an interim order to the extent that in case Mihir would lose in the appeal, he 4 would refund the salary, if any received by him in the mean time. THE appeal was pending and was awaiting its disposal. In the mean time, the Managing Committee was time to time reconstituted. It was alleged that the new Managing Committee took charge on November 1, 2009. THE new Headmaster took charge on September 16, 2009. Neither of them was aware of pendency of the appeal. In 2010 Mihir moved another writ petition being W.P. No.19110(w) of 2010. Upon receipt of the copy of the writ petition, for the first time, the school came to know of the existence of the earlier order. The school was also surprised to know that the appeal had been dismissed on June 27, 2006 as nobody had appeared on behalf of the parties. The second writ petition was, in effect, an attempt to implement the earlier order dated July 6, 1995. The learned Judge passed an interim order and observed that so long the appeal was not restored the authority was bound to comply with the earlier order. In this backdrop, we heard the application for restoration and the application for condonation of delay of one thousand five hundred and ninety six days. 5 CONTENTIONS Mr. Koushik Chatterjee, learned counsel appearing for the appellant contended that the managing committee did not have any knowledge of pendency of the appeal. The earlier managing committee, while handing over of charge, did not hand over any document pertaining to the pendency of the appeal. The managing committee that took charge in 2009 did not have any idea about the appeal, far to speak of order of dismissal. They only came to know about such fact from the copy of the writ petition filed in 2010. He drew our attention to the relevant paragraphs in the application wherefrom we come to know that the present Managing Committee was elected on November 1, 2009. They came to know of the fact upon getting copy of the writ petition that was filed in 2010. They immediately took resolution for restoration. Such resolution was taken on October 5, 2010 and the application was made on November 30, 2010. Hence, there was no delay and/or latches on the part of the new Managing Committee in approaching this Court for restoration of the appeal. Mr. Chatterjee also furnished xerox copies of the documents upon copies being furnished to the respondent to show that there had been interpolation in the minutes of the meeting. Resolution was sought to 6 have taken to justify the claim of the respondent no.1. He also drew our attention to the fact that the corresponding records of the school would otherwise not show his presence. According to him, the respondent no.1 was never engaged by the school. He never worked in the post.
(3.) PER contra, Mr. Ghosal contended that even if this Court would give full credence to what had been stated in the applications, the factum that the Headmaster was an ex-officio member of the Committee and was supposed to know of the pendency of the appeal could not be ignored. Mr. Ghosal referred to the verification clause to show that the deponent did not take the responsibility of the statements made in paragraphs 5, 6 and 7 of the petition. Mr. Ghosal further contended that the learned single Judge categorically passed an order directing the school to implement the earlier order passed on July 6, 1995. The authority was thus bound to comply with the said order. In fact, contempt proceeding was pending before His Lordship. Mr. Ghosal further contended that the learned single Judge in the judgment and order impugned, considered each and every contention of the school as well as the State made in their respective affidavits. 7 Once there was categoric adjudication in favour of the respondent no.1 and the State having accepted such position having not appealed therefrom, the school was not entitled to raise any question. According to Mr. Ghosal, the appeal had no merit at all. Hence, no useful purpose would be served by restoring the same after condonation the delay. On the issue of condonation of delay, Mr. Ghosal contended that the delay was unusual. No sufficient cause was shown. Hence, the appellants were not entitled to condonation of delay and the said application would deserve dismissal. Once the application for condonation would be dismissed the restoration application and the appeal would automatically fall having no legs to stand upon. He relied on three decision of the Apex Court reported in All India Reported 1970 Supreme Court Page-652 (A.K.K. Nambiar ?VS- Union of India), All India Reporter 1981 Supreme Court Page- 733 (Ajit Singh Thakur Singh & Another ?VS- State of Gujarat) and 2011 Volume-VII Supreme Court Cases Page-69 (Amar Singh ?VS- Union of India & Others).;