Mir Dara Sheko, J. - (1.) Mr. Chatterjee representing the writ petitioner in presenting the case of the writ petitioner argued that the writ petitioner was appointed as the Non-Teaching staff (Group-D) on 25.04.1993. The appointment letter was issued on 26.04.1994 by giving effect for upgradation of the school since the petitioner joined in that school on 2nd May, 1993. Since service by aforesaid appointment of the writ petitioner as group-'D' staff was not regularised, he submitted representation on 22.07.2003 and thereafter on 22.07.2009 and lastly on 20.09.2011 for regularisation, but it went in vain. Submitted that the school authority on 22nd February, 1994 approved said appointment and the inspection team shortly known as D.L.I.T held also inspection on 23rd March, 1994. The said school since was upgraded w.e.f. 1st February, 2010 the writ petitioner submitted representation again on 15th July, 2003 for regularising. Since no result yielded the petitioner on 30.11.2009 made representing again to the Secretary of the school for regularising his service but of no good. Since no result yielded the writ petitioner filed the instant writ application seeking rule of mandamus so that the writ petitioner be allowed to continue his service as the non-teaching staff in the subject school and to regularise his service by releasing the salary as would be due him.
(2.) During course of argument to justify the merit of the case of the writ petitioner Mr. Chatterjee relied upon the case of Mrinal Kanti Karmar Vs. State of West Bengal, 2017 3 CalHN 652 decided by this Court on May 19, 2017. During course of hearing, of course Mr. Chatterjee was enquired of as to whether over the status of non-teaching staff he had come across with any judgment delivered by the Division Bench of this Court or not, to which Mr. Chatterjee instead of citing any Division Bench judgment or of the Apex Court relied upon the aforesaid citation. In this case the private respondent, he being the guardian of student of the school questioning also locus standi of the writ petitioner per contra submitted that the writ petition is liable to be dismissed, as the appointment of writ petitioner was not made through any selection process against any declared vacancy.
(3.) However though by Mr. Chatterjee relied upon the case of Mrinal Kanti Kamar vs. State of West Bengal Mr. Chatterjee he could not however specify the case of the petitioner supported by document as to under what category, as analysed by His Lordship, the writ petitioner would be falling. Paragraphs 24, 25, 26, 27 and 28 from the case of Mrinal Kanti Kamar Vs. State of West Bengal are set out respectively:- Paragraph 24:- The first is a school which is recognised and aided upto a certain level, say class VIII. It has a Managing Committee, which is recognised by the authorities. The Managing Committee is desirous of expanding the school by starting classes IX & X. It sets up the infrastructure, but does not appoint any teacher or non-teaching staff. It applies to the government for upgradation. It gets it. Then it applies for sanction of posts of teaching and non-teaching staff, to the government. Then it applies for recommendation of the School Service Commission to fill up the posts. This kind of a process, is conceived by the two division bench judgments of our Court in Manindra Nath Sinha & Ors. Vs. The State of West Bengal & Ors., 2006 2 CalLJ 489 and State of West Bengal &Ors. Vs. Smritikana Maity & Ors., 2008 1 CalLJ 316. Any other mode of recruitment would be illegal. Paragraph 25:- The second situation will arise when in such a school a group of persons usurp the power of the Managing Committee, constitute themselves as organising staff and start running classes IX & X, without any recognition or aid and without any sanction from the authority or the Managing Committee. This type of organising staff is condemned and has no place in the eye of law, according to the above two authorities. Paragraph 26:- The third situation is when the government itself is setting up a school in terms of the above circular. The State officials will identify an area for setting up the school, plan its layout and structure, obtain its recognition from the Board. They will set up an ad hoc committee and ask for sanction of the posts of teaching and non teaching staff from the government. Thereafter they will undertake the task of recruitment to these posts on the recommendations of the School Service Commission and the 2005 Act. This case is also covered by the above two judgments. Paragraph 27:- The fourth situation arises where a school is recognised upto a certain level, say class VIII. The Managing Committee takes no steps for upgradation of the school to classes IX & X. This initiative is taken with the approval of the Managing Committee by another group of persons who set up the necessary infrastructure, organise the teaching and non-teaching staff and start operating the school as a private school. Then they apply for upgradation. Paragraph 28:- In the last case, which is like this case the government must be very careful at the time of upgrading the school. When the higher sections of the school were set up and made functional, they were run as a private institution, seeking upgradation. The school before upgradation had a body of teaching and nonteaching staff. When the government upgraded the school, it did so with its eyes wide open. It knew that the school was staffed. It had the option of saying that since the staff had already been appointed it would not upgrade the school or it would only upgrade the school after the organising staff was discharged. In this case, after upgradation of the school the government cannot say that the teachers and non-teaching staff which have been appointed in the school are all illegal appointees or that the organising staff of the school were illegally constituted. They cannot say that the school should throw out of employment this body of teachers and non-teaching staff who founded the school and start recruitment new persons. That would be very unjust to the persons lawfully organising a school and then seeking upgradation. Upon upgradation of the school the organisers cannot be thrown out of employment and replaced by a new recognised the number of posts in the school, approved it expressly or impliedly and then upgraded it. It cannot be said in that case on the upgradation of the school there was a vacancy or vacancies in the school to the filled up on the recommendation of the School Service Commission. By giving the above analysed views the Co-ordinate Bench however accepted the proposition already held by this Court in the case of State of West Bengal & Ors. Vs. Husna Banu & Ors, Rakhal Chandra Das and Ors Vs. State of West Bengal and also the case of Manindra Nath Sinha & Ors. Vs. The State of West Bengal.;