Amrita Sinha, J.
An order dated 20th June, 2014 issued by the Director of Public Instruction, Government of West Bengal, Education Directorate is under challenge in
the instant writ petition. The said order was allegedly passed in compliance of an order dated 21st January, 2014 passed by this Court in an earlier writ
petition filed by the petitioner.
The fact of the case is that the petitioner was appointed as a Peon in the morning section of Ghuskhora Mahavidyalaya on 31st May, 1997. Ghuskhora
Mahavidyalaya is a college affiliated to the Burdwan University. The petitioner belongs to the OBC category and at the time of appointment he
possessed the qualification of passing the Madhyamik examination. He was appointed as per the resolution adopted by the governing body of the
college. At the time of appointment the college paid him a remuneration of Rs.125/- per month which was gradually increased and stood at a
consolidated sum of Rs.3,500/- per month on the date of filing the instant writ petition.
The petitioner alleges that a large number of non-teaching staff who were appointed on temporary basis on the same date as that of the petitioner
were regularized in their respective posts but the case of the petitioner was overlooked and ignored by the college authorities. The petitioner made
several representations requesting the authorities to take necessary steps for regularization of his service in the sanctioned vacant post of Peon/Group-
D staff in the said college but his prayers fell on deaf ears. The petitioner alleges discrimination meted out to him by the respondent authorities.
The petitioner was compelled to approach before this Court by filing writ petition being WP 1184 (W) of 2014 which was disposed of on 21st January,
2014 granting liberty to the petitioner to make a representation before the respondent authority and the said respondent was directed to consider the
said representation within a stipulated time frame upon granting an opportunity of hearing to the petitioner and in the event the State respondent found
that the petitioner’s claim for regularization needs to be accepted he will take a decision to do so and take necessary steps immediately.
Pursuant to the liberty granted by this Court the petitioner made a representation on 31st January, 2014. The respondent authority conducted a hearing
of the petitioner on 21st May, 2014 and by the impugned memo dated 20th June, 2014 rejected the claim of the petitioner observing the following:-
“1. On 31st May, 1997 the petitioner was appointed as a Part-time Peon in the morning section of Gushkara Mahavidyalaya on the basis of
resolution of the Governing Body of the College.
2. The appointment of the petitioner is purely temporary in nature. The petitioner failed to submit before the undersigned any paper that his
appointment was made by the College against any sanctioned post.
3. The landmark judgment of Hon’ble Supreme Court of India in the matter of State of Karnataka & Ors â€"vs- Uma Devi & Ors. make it very
clear that where an illegal appointment of duly qualified person is made against duly sanction vacant post and the employee have continued to work for
10 years or more then the question of regularization of service of such employee may be considered.
But the case of the petitioner is not squarely covered by the said judgment. The appointment of the petitioner was never made against any sanctioned
vacant post. Hence the prayer of the petitioner is considered and rejected.â€
The petitioner sought information under the Right to Information Act, 2005 wherefrom the following was revealed:-
“In accordance with your query dated 5th November, 2014 received on 7th November, 2014 at our end the information available in our custody is
given below:-
1. The number of vacant post of non-teaching staff existed at Gushkara Mahavidyalaya, P.O.-Gushkara, District, Burdwan on 1st March, 1997 were
â€" NIL.
2. The number of sanctioned vacant post of non-teaching staff which were approved by the appropriate authority arose at Gushkara Mahavidyalaya,
P.O.-Gushkara, District-Burdwan between 1st March, 2007 to 1st July, 2007 were â€" 24 (Twenty four).
3. The number of appointment letter issued to non-teaching staff purely on casual and temporary basis in between 1st March, 1997 to 1st July, 2007
were â€" 07 (seven) On 31st May, 1997 appointment letters were issued to the following persons:-
1. Basudeb Mukherjee.
2. Rajib Chakraborty.
3. Uday Chowdhury.
4. Utpal Dutta.
5. Kanak Chongder.
6. Babli Das.
7. Hemanta Kukherjee.
4. The number of appointments have been made in permanent non-teaching post which were approved for filling up by the appropriate authority at
Gushkara Mahavidyalaya, P.O.-Gushkara, District-Burdwan from 1st March, 1997 to 1st October, 2014 were â€" 24 (twenty four). â€
The petitioner further alleges that the service of one Sultana Rezia who was initially appointed on temporary basis as a non-teaching staff after two
years of his appointment had also been regularized on 3rd August, 2007. The petitioner further alleges that certain other persons who were appointed
on temporary basis as non-teaching staff much later than him were also regularized but his case was not considered at all by the respondents. The
petitioner states that at present there are several non-teaching posts which are lying vacant and the college authorities are liable to be directed to
regularize his service in one of the said vacant post.
The petitioner relies upon the decision delivered in the case of the State of Karnataka vs. Uma Devi (AIR 2006 SC 1806) for the proposition that as
the petitioner had served the college uninterruptedly for more than 20 years accordingly the service of the petitioner is liable to be regularized. He
further submits that the appointment of the petitioner was not at all illegal, at the most, it may be termed as irregular as the post in question was not
vacant at the point of time when the petitioner was appointed. He submits that since several vacancies arose thereafter and posts were also
sanctioned for appointment of non-teaching staff accordingly the case of the petitioner is liable to be regularized in accordance with the judgment of
the Hon’ble Supreme Court delivered in the case of Uma Devi (supra).
He further refers to the decision delivered in State of Karnataka & Ors. vs. ML Kesri & Ors. (AIR 2010 SC 2587) wherein the Hon’ble
Supreme Court held that “the decision of Uma Devi casts a mandate upon the concerned Government or instrumentally to take steps to regularize
the service of those irregularly appointed employees who had served for more than 10 years without the benefit or protection of any interim orders of
Courts or tribunals as a one-time measure.†It further held that “the term ‘one-time measure’ has to be understood in its proper
perspectiveâ€.
He also refers to the decision delivered in Amarkant Rai vs. State of Bihar & Ors. (2015) 8 SCC 264 on the proposition that as the petitioner was not
lacking in any qualification or bore any blemish in his service record during his period of employment for over two decades and was serving against an
unsanctioned post accordingly the petitioner was liable to be regularized.
He also relies upon the decision of Prem Ram vs. Managing Director Uttarakhand Pey Jal and Nirman Nigam Dehradun & Ors. (2015) 11 SCC 255
wherein the Supreme Court directed the regularization of the service of the appellant and to release retirement benefit in his favour by treating him in
continuous service from the date of his initial appointment till the date of superannuation. He further refers to the decision of State of Jharkhand &
Ors. vs. Kamala Prasad & Ors. (2014) 7 SCC 223 wherein the Supreme Court upheld the direction of the Jharkhand High Court to consider the claim
of the employee as one-time regularization of adhoc/temporary employees in the post.
He also refers to a judgment delivered in the case of Sheo Narain Nagar & Ors. vs. State of Uttar Pradesh & Ors. AIR 2018 SC 233 wherein the
Supreme Court directed regularization of the service of the appellants. He also relies upon the decision of Prasanta Kumar Das vs. State of West
Bengal (2018) 2 CHN (CAL) 534 wherein the Division Bench of this Court directed appointment of the appellants be given approval and regularized.
The Principle of Ghuskhora Mahavidyalaya has affirmed affidavit wherein it had been indicated that in the year 1997 the Director of Public
Instruction, West Bengal sanctioned 24 non-teaching posts and permitted the college to fill up the same following the recruitment rules. The Selection
Committee was duly constituted for the purpose of selection of the candidates in the respective posts. The petitioner though was serving the college at
the relevant point of time but he did not apply for the said post pursuant to the advertisement that was published. It has been stated that the persons
whom the petitioner alleges to have been regularized overlooking his case were all appointed on regular basis in accordance with the selection
procedure and all the said persons dully applied for the said posts in response to the advertisement published for the same. It has been stated that the
petitioner never participated in the selection process and accordingly his case was not taken up for consideration for giving appointment in the post in
question. It has been categorically mentioned that none of the part-time employees working on temporary basis were regularized and all the employees
were appointed to the sanctioned posts on strict observance of the prescribed recruitment rules.
The learned Advocate appearing for the college submits that the prayer for regularization of the petitioner had been rightly rejected by the Director of
Public Instruction as he was initially appointed in an unsanctioned post and accordingly he did not deserve to be considered for regularization of his
service. Moreover, it has been submitted that there was no provision for regularization of service of an employee and the only procedure for
appointment in a sanctioned post was through a regular recruitment process. He submits that the college authorities have already approached the
Director of Public Instructions praying for sanctioning additional posts of non-teaching staff and as and when the same is sanctioned by the Director
of Public Instructions the case of the petitioner will be duly considered only if the petitioner applies for the same and he is selected in accordance with
the selection procedure.
The learned advocate for the college refers to the Statutes relating to the appointment and the terms and conditions of service of librarians and non-
teaching staff and colleges other than Government colleges wherein the Burdwan University made the following Statutes:-
As per Statute 4 the “appointing authority†meant the Governing body of the affiliated colleges empowered to make appointment to posts referred
to in Statute 2 as may be created from time to time in accordance with the rules and orders as may be made or issued by the State Government. As
per Statutes 5, 6 and 7 the vacancy of the posts are to be notified through the newspaper advertisements and notification in the college notice board
with intimation to the local Employment Exchange inviting applications. All matters pertaining to the processing of application, procedure and mode of
selection shall be determined by the concerned standing committee at its meeting conveyed for the purpose. All appointments to the permanent and
regular vacancy shall be made on the basis of the recommendation of the concerned standing committee.
The learned advocate appearing on behalf of the Director of Public Instructions submits that the State Government was not liable to bear the financial
burden of any employee who has been appointed in violation of the relevant recruitment rules. He submits that the petitioner had been appointed by
the college in the post which was not sanctioned and accordingly there was no scope on their part to regularize his service. He submits that as per the
provisions of the West Bengal Universities (control of expenditure) Act, 1976 no post can be created or appointment made without the State
Government’s approval. It has been submitted that no college affiliated to the Burdwan University was entitled to create any teaching or non-
teaching post involving any financial liability. He submits that the petitioner was given back door appointment and the same ought not to be regularized.
He submits that the appointment of the petitioner is illegal and in violation of the provisions of Articles 14 and 16 of the Constitution of India and also in
violation of the provisions of Section 3 of the West Bengal Universities (control of expenditure) Act, 1976. He submits that the provision for
publication of the advertisement is mandatorily required to be followed in all cases for providing public employment and until and unless the petitioner is
selected in accordance with the regular recruitment rules his appointment cannot be approved by the Government under any circumstances.
The learned advocate for the respondents distinguishes the aforesaid judgments relied upon by the petitioner mainly on the point that Uma Devi
(supra) specifically directed that in cases where there are no regular rules for appointment then the case of the employee could be considered for
regularization if he had served in the said institution continuously for more than 10 years but as there were regular recruitment rules for appointment in
the post in question accordingly the principle of Uma Devi and the other cases relied upon by the petitioner will not be applicable in the instant case. It
has been stressed that the appointment of the petitioner was a case of back door entry which ought not to be regularized in the usual course.
Upon hearing the submissions made on behalf of all the parties and upon perusal of the materials placed before this Court it is not in dispute that the
petitioner had been working in the post of Peon for more than two decades. It has been submitted that by the passage of time the petitioner had
improved his qualification from Madhyamik and presently he has attained his Master Degree. In spite of acquiring such high qualification the petitioner
is still striving for regularization of his appointment in the post of Peon.
It is indeed shameful that even after more than seventy years of Independence the citizens of India have to painfully strive for earning their daily
bread and butter. Government jobs are few whereas contenders are aplenty. Against a single post there are hundreds of applicants. There is cut
throat competition at every stage and in every field. Deserving candidates may not land up in the right post and position. The employers often take
advantage of the competition and appoint persons and exploit their services by paying paltry and meagre sum which the employees are compelled to
accept fearing unemployment and lack of livelihood. Right to life includes right to livelihood.
The Constitution of India guarantees 'equality', abhors discrimination, prohibits and penalises forced labour in any form whatsoever and extends
protection against exploitation of labour. The college had utilised the services of the petitioner for more than two decades. They had never taken any
steps to remove the petitioner from service on the ground that his service was not required by the college. This goes to show that the job of the
petitioner was perennial in nature. It is in this backdrop that the request for regularisation in service be considered. Since the appointment of the
petitioner continued for so long without any break or blemish it is for the ends of justice that the service of the petitioner be regularised. At the same
time I am conscious of the facts that the petitioner was appointed without following the regular recruitment process. He did not face the selection
board. There may be several equally qualified persons waiting to be appointed in the said post. It goes against the principles of Article 14 and 16 of the
Constitution of India. Throwing away the petitioner at this stage will be a great hardship for him. His family may be ruined. He may not be able to get
a new job at his age. This will amount to sheer injustice.
In view of the above general scenario in the matter of employment the Supreme Court on repeated occasions have deprecated the practice of
exploitation of employees and have ruled in favour of regularization and approval of services of the employees who had been in employment for a
continuous period of 10 years or more. In the case at hand the petitioner served the institution for more than two decades. In line with the judgments
of the Supreme Court the service of the petitioner is liable to be regularized. As there is a regular recruitment process for appointment in the post of
non-teaching staff of the college accordingly the petitioner is supposed to undergo the said recruitment process. It has already been mentioned herein
before that the college authorities had taken steps for obtaining sanction of additional posts in non-teaching category.
The case of the petitioner shall be considered as soon as the post in question is sanctioned by the Government. The college authority is directed to take
regular follow up steps with the Director of Public Instructions for obtaining sanction of the non-teaching post so that the case of the petitioner may be
taken up for appointment and approval of his service in accordance with the recruitment rules. The Director of Public Instructions is also directed to
ensure that the process of sanctioning the post in question is not delayed unnecessarily. WP No. 2309 (W) of 2015 is disposed of accordingly. No
order as to costs. Urgent certified photo copy of this judgment, if applied for, be supplied to the parties expeditiously on compliance of usual legal
formalities.
