Decided on July 09,2003

Maya Sarai (Saha) Appellant
State of West Bengal and Others Respondents

Referred Judgements :-



Amitava Lala, J. - (1.):- In this writ petition, the petitioner has asked for a limited relief which is only restricted to the approval of the petitioner's service as a Clerk in the post of the concerned school with effect from 26.9.1981 and for grant of revised scale of pay as admissible in law etc.
(2.)The case of the writ petitioner is that she was given regular appointment as non-teaching staff of an Institution from the aforesaid date. Such post is to be filled up from the female candidate or elderly male candidate as per the prior permission on 21.11.1978. A Bench of this court in an application made by the writ petitioner determined that the petitioner was appointed after following all the procedures laid down in the recruitment rules as it was existing at that time. No appeal was preferred from such order. Following the order a contempt application was moved and the State-authority made all the payment of salaries etc. lawfully due to the petitioner from the date of appointment. From the quoted portion of the earlier writ petition, I find that a challenge was thrown out in respect of the earlier memo and the order of the authority as well as the Appellate Committee dated 9.12.1983. A further prayer was made for giving effect to the petitioner from 26.9.1981 and also for payment of salaries. The earlier Bench of this court while disposing of the matter had taken a very positive view in favour of the petitioner's service as well as the benefit in connection with the service but a question was raised that although the petitioner was appointed as first Clerk and when there was an apparent irregularity in respect of regularisation of service of one Sri Samsul Alan, why such challenge was not thrown out by the petitioner. However, according to me, the legitimate expectation rise before the court of law on the basis of fact of each case. It is such a case, where it cannot be seen that specifically such challenge was thrown out but, in effect, the challenge was thrown out that will be available from the quoted portion of the prayer as well as in the order dated 18.8.1994 passed in C.O. 14921(W)/1992. Therefore, when the petitioner has obtained a right of appointment and continuance of service, she cannot be deprived of the benefits which is entitled being attached to the service on the plea that why the challenge has not been thrown out in respect of the regularisation of service of a third party. The annexures of the erstwhile writ petition being an order of the Director of School Education dated 19.8.1992 placed before this court. Although the direction was given to file affidavit long back on 27.8.2001 but neither any affidavit was filed nor any such document was produced by the learned counsel appearing for the State-respondent. On the other hand, he contended that it is onus upon the petitioner to prove the case. Therefore, it has to be placed by the petitioner. In any event, without going into such controversy, it can be said that the petitioners has placed a photo copy of the same to which the respondent has not raised any dispute. From such order of the Director of School Education, it appears that an Appeal Committee held that the appointment of a lady clerk in the post of Samsul Alam during the pendency of the appeal which was irregular on the part of the management of the school. Such part is wholly unsustainable because of the reason that the petitioner being such a lady clerk was given appointment following the recruitment rules. On the other hand, an irregular appointee was directed to be regularised by the order of the/ appeal court. Such appointee was also placed fortunately or unfortunately as a first candidate when the service of the petitioner was treated to be with effect from 1.8.1992 much after the date of original appointment in the year 1981. The petitioner contended that by virtue of the earlier order, all the service benefits were given to her excepting the approval and the incremental benefits etc. Goods, bad or indifferent whenever service benefits are given, it can be presumed that the approval was made but when the same was not formally made including the preparation of Service Book, obviously a fresh cause of action for the purpose of consideration of the same would arise. Hence, a ground of constructive res judicata cannot be attracted for raising of such dispute for the whole purpose of the order passed by a Bench of this court in the earlier writ petition to give the benefits to the petitioner. There are so many words which the authority concerned has failed to follow. Therefore even for
the purpose of execution of such order, a second writ lies which cannot also be attracted by way of principle of constructive res-judicata.

(3.)The learned counsel appearing for the petitioner cited a judgment before this court reported in 2003(4) Supreme 332 : [2003(4) SLR 503 (SC)] (Santosh Kumar Vs. State of Andhra Pradesh & Ors.). There, the important point was taken by the Supreme Court that the power of relaxation of recruitment rules can be exercised retrospectively and it can be exercised for the specific purpose of regularisation of services of a temporarry appointee with retrospective effect from the date of his appointment. This principle obviously applies herein. Moreover, the question which has been raised by the petitioner that the petitioner was not appointed regularly cannot be considered at this belated stage when such consideration is so many words have been dealt with by the Bench of this court in the earlier writ petition. It is an exceptional circumstances and the exception cannot be the rule. Whether such exceptional circumstance will be accepted or not by following the process of judicial review, this is for the writ court to determine and for this reason high prerogative writ court is made. I do not think that a writ petition is a futile attempt for the purpose of obtaining the order of the court unnecessarily. This is an appropriate matter which has been dealt with an accordingly dealt with by this Court by passing an affirmative order in favour of the petitioner. Therefore, in totally, the petitioner will be entitled to get relief of approval of the service from the date of appointment and preparation of Service Book will be made by the appropriate authority following the order of this court. A time period for the same is fixed two months from the date of communication of this order. Consequent to the same, the petitioner will be entitled to get incremental benefit and other benefits and if the arrears are accumulated, the same will be released in favour of the petitioner within a period of three months thereafter. The current balance on the basis of such calculation will, however, be given immediately after preparation of Service Book and formal approval by the authority concerned following the order of the court.

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