JYOTIRMAY BHATTACHARYA, J. - (1.) THIS mandamus appeal is directed against the judgment and order dated 3rd October, 2012 passed by the Learned Single Judge of this Hon'ble Court in W.P No.5519 (W) of 2008 whereby the writ petition filed by the appellant/petitioner was dismissed by holding same as thoroughly misconceived.
(2.) BEING aggrieved by the said order of the Learned Single Judge of this Court, the writ petitioner has filed the instant mandamus appeal. Let us now consider the merit of this mandamus appeal in the facts of the instant case which is summarized hereunder as follows: - On 24th July, 2004, the petitioner applied for the post of Samprasarak in the Magurkhali Madhyamik Siksha Kendra situated with the jurisdiction of Berabari Gram Panchayat in the district of North 24 Parganas in pursuance of an advertisement issued on 17th July, 2004 by the Secretary of the Managing Committee of the concerned Siksha Kendra the respondent 8 herein. Admittedly, at the time when he applied for the said post he had requisite educational qualification for the said post but he was under aged. He was below 40 years at the time when he applied for the said post. Since no other suitable candidate could be found for the post of Samprasarak in Bengali, he was selected for such appointment in the said post by giving him relaxation to the age bar as per the guidelines prescribed therefor. Pursuant to the appointment offer given to him he accepted the said offer of appointment and ultimately he joined the said school as Samprasarak in Bengali. An agreement was entered into between the Secretary of the concerned School and the petitioner on 16th August, 2004 relating to the petitioner's engagement which remained valid for the period between 1st September, 2004 and 13th April, 2005. Subsequently, by another agreement dated 2nd May, 2005 the writ petitioner was re -appointed as Samprasarak in Bengali for the period between May, 2005 and 13th April, 2006. His honorarium was paid to him upto March, 2005. From 1st April, 2005 he was not paid any honorarium though he continued to render his service in the said Madhyamik Siksha Kendra continuously till 25th September, 2006. The concerned authority also utilized his service in the said school as Samprasarak in Bengali upto 25th September, 2006 without even renewing the agreement for re -appointment after 30th April, 2006. Ultimately, he was not allowed to render his service in the said Madhyamik Siksha Kendra w.e.f. 26th September, 2006. Since he was prevented from rendering his service in the Madhyamik Siksha Kendra as Samprasarak in Bengali w.e.f. 26th September, 2006, he made a complaint to the Executive Officer and Ex -Officio Block Development Officer Habra which also remained unattended for an unreasonable period. Under such circumstances he filed a writ petition being W.P No.23906 (W) of 2006 complaining inaction of the concerned authority for not considering his representation. He also prayed for some other incidental reliefs in the said representation. While considering the said writ petition, the Learned Single Judge of this Hon'ble Court was of the view that Smt. Dipa Ghosh who was also an aspirant for the said post was required to be added in the said writ petition and accordingly direction was given for impleading her as added respondent in the said petition. Accordingly, she was added as respondent in the said writ petition. The said writ petition was ultimately disposed of on 11th October, 2007 with a direction upon the respondent No.2 namely the the Executive Officer and Ex -Officio Block Development Officer Habra to consider the petitioner's said representation after giving an opportunity of hearing to the petitioner and added respondent Smt. Dipa Ghosh within a period of three weeks from the date of communication of the said order. Direction was also given upon the said respondent to communicate his decision to both the petitioners and Smt. Dipa Ghosh within a period of seven days form the date of passing of the speaking order. Pursuant to such direction passed by Learned Single Judge of this Hon'ble Court, the petitioner's said representation was considered by the concerned authority in presence of the petitioner, added respondent and the other Members of the Managing Committee of the said Madhyamik Siksha Kendra. It was decided by the said respondent that since the agreement for engagement which was entered into between the petitioners and the Secretary of the Managing Committee of the said Madhyamik Siksha Kendra for the second time, expired on 30th April, 2006 and further since the same was not renewed, there was no justifiable reason for allowing the petitioner to continue his service between 1st May, 2006 and 15th October, 2006 in the said Madhyamik Siksha Kendra. However, since the petitioner rendered his service between 1st May, 2006 and 15th October, 2006 without any valid agreement it would be presumed that he did so voluntarily. However, direction was given upon the authority concerned to pay him his unpaid honorarium immediately.
(3.) THUS , the concerned authority held that the school authority did not commit any illegality by not allowing him to sign in the Attendance Register from 16th October, 2006. While coming to such conclusion the concerned authority, after taking note of the fact that an advertisement has also been published on 2nd April, 2007 inviting applications from the suitable candidates for the post of Samprasarak in Bengali for the said Madhyamik Siksha Kendra, permitted the petitioner to apply for the said post in pursuance of the said advertisement with a rider that in the event he applies for the said post then his candidature will also be considered by the concerned authority along with two other candidates who applied for the said post. This is how the petitioner's said representation was disposed of by the concerned respondent No.2 therein.;