Jayanta Kumar Biswas, J. - (1.) The petitioner is asking for a mandamus directing the respondents to regularise his service as an assistant teacher of English in Nimdighi High Madrasah, Howrah.
(2.) His case is this. After the institute was upgraded from junior high to high, on the basis of resolution of the managing committee of the institute dated October 12th, 1987 he was appointed in it as an assistant teacher. In 1991 he moved this court by filing a writ petition for an order directing the respondents to regularise his appointment. That was disposed of directing him to make a representation to the director of school education. Accordingly he made a representation, which was rejected. Feeling aggrieved, he filed the second writ petition in this court in 1992. By order dated March 1st, 1994 that was allowed; the authorities were directed to approve his appointment. Since that order was not carried out he filed a contempt application, which was dismissed by order dated May 13th, 2005. Since he has been working in the institute, and since vacancy against sanctioned post is available, the respondents are under the obligation to approve his appointment.
(3.) Counsel argues that in view of the order dated March 1st, 1994 the respondents were under the obligation to approve the appointment. On the strength of the decisions of this court in Sudarsan Das v. State of W.B. & Ors. (1991) CLT 456, and Headmistress, Dubrajpur Girls High School & Ors. v. Pradip Kumar Mitra, (1993) 2 CLJ 24 , he argues that when vacancies are available, the authorities are bound to regularise the service of the petitioner. In support of his contention that provisions of the West Bengal School Service Commission Act, 1997 cannot affect the vested right of the petitioner to get his appointment regularized, he relies on the decision of this court in Basudeb Bag & Anr. v. Bhaskar Chandra Kar & Ors., (1996) 1 CLJ 230 . In response, counsel for the state relies on the decision of this court in Aloke Jyoti Maitra v. The State of W.B. & Ors., (2003) 2 CLJ 553 , and submits that there is no scope to appoint one in the institute, unless one is selected and recommended by the school service commission.;