NIVA DAS & GUPTA Vs. STATE OF WEST BENGAL AND OTHERS

JUDGEMENT

(1.) The petitioner in this case was appointed by the Director of Public Instruction, West Bengal on a temporary basis to act as clerk-cum-typist in the office of the Chief Inspector, Physical Education and Youth Welfare Officer, West Bengal attached to the Education Directorate of the Government of West Bengal for a period upto 28th Feb., 1962 with effect from 1st Dec., 1961. By an order dated 16th Oct., 1968 permanent retention of the said post of clerk-cum-typist in the office of the Chief Inspector, Physical Education and Youth Welfare Officer, West Bengal was sanctioned by the Government. By another order dated 12th Feb., 1970, the petitioner, who had been in continuous service for more than five years was declared to be absorbed in service with permanent status in the post of clerk-cum-typist to the Chief Inspector, Physical Education ? Youth Welfare Officer, West Bengal with effect from 9th July, 1967. By an order dated 11th Oct., 1971 the designation of the post of the Chief Inspector, Physical Education was changed to the Director of Public Instruction (Physical Education), West Bengal. Between 15th Feb., 1975 and 31st Dec., 1975 the petitioner was appointed to officiate as second clerk-cum-accountant in the office of the Deputy Director of Public Instruction (Physical Education). Thereafter, there were several orders with which I am not concerned. It appears by an order dated 28th March, 1977 which is annexed at page 27 to the present petition, the Government directed as follows:-

(2.) Upon this, the petitioner challenged the said communication dated 14th July, 1979 under Art. 226 of the Constitution and asked for quashing of the said communication and for a rule nisi calling upon the respondents to show - cause why an order, direction and/or writ in the nature of mandamus should not be issued commanding them to declare and/or absorb the petitioner as a staff of the Education Directorate with due seniority since 1961.

(3.) A rule nisi was issued. Learned Standing Counsel [for the Government appearing for the State of West Bengal urged before me two points, viz. that the petitioner was actually not treated as a part of the Education Directorate. Though the Deputy Director of Physical Education became part of the Education Directorate, the staff attached to him, including the petitioner did not become part of the Education Directorate, it was submitted. As such, his submission was that though the petitioner joined the Education Directorate his length of service would be determined from the length of his service in the Directorate of Education though the petitioner claims to be in the Education Directorate from 1961 Secondly, the learned Standing Counsel for the Government submitted, that in view of the rules framed under" Art. 309 of the Constitution on 8th Oct., 1969 and two other rules dated 6th May, 1978 the petitioner's seniority should be determined in accordance with those rules framed under Art. 309 of the Constitution.