Pratap Kumar Ray, J. (oral):— Heard learned Advocates appearing for the parties.
Challenging the judgment and order dated 7th May, 2008 passed by the Learned Trial Judge in WP No. 783 of 2008 this appeal has been preferred by the Managing Committee of the concerned School wherein the writ petitioner intended to be absorbed. The impugned decision in the writ application is the decision dated 22nd April, 2008 passed by District Inspector of Schools (S.E), Murshidabad which reads thus :
“In compliance with the order of the Hon'ble Justice Anirudha Bose dated 13.02.2008 a hearing was taken in the chamber of the District Inspector of Schools (S.E), Murshidabad on 27.03.2008 regarding the regularization of service of the petitioner.
Secretary, Teacher-in-Charge and the petitioner were present at the time of hearing.
The petitioner stated that he joined the school on 09.06.2000 and the Managing Committee of the school accepted his joining.
Secretary & Teacher-in-Charge of the school stated that the School Authority did not issue any appointment letter to the petitioner and the petitioner is now working as a para-teacher in Pomaipur Islamia Senior Madrasah. The matter was taken up by the District Inspector of School (S.E), Murshidabad on 27.03.2008 It is observed that the petitioner was engaged by the then Managing Committee but now the petitioner working as a Para-teacher in Pomaipur Islami Senior Madrasah. When the petitioner was engaged by the then Managing Committee recruitment rules as prescribed were not followed and as per control of expenditure Act vide memo No. 1594-SE(s) dated - 26.12.05, the undersigned considered and rejected the representation of the petitioner and thus disposed of the matter.
All concerned be informed accordingly.”
From the pleading of the writ application it appears from paragraphs 3 to 6 that petitioner was appointed dehors the statutory rules by the Managing Committee. At the relevant time in the year 2000 when the petitioner was appointed by the Managing Committee the recruitment direction issued by Director of School Education, West Bengal in exercise of the power under Rule 28 of the Rules of Management of recognised non-Government institution (aided and unaided) Rules, 1969 was existing. It was issued under memo no. 1736(21) GA dated Calcutta, the 1st November, 1999. That guideline provides that vacancy of non-teaching staff of a school requires prior intimation from the District Inspector of School concerned to fill up. District Inspector of School concerned at the first stage may refer the names of candidates from live Register of “died in harness category” for such appointment. In absence of such, permission is accorded directing to fill up the vacancy by inviting names from Employment Exchange. A Selection Committee is required to be set up for preparation of a panel of three eligible candidates which on being recommended by Managing Committee is placed to the District Inspector of School concerned for his approval and after approval is accorded appointment letter is issued. This recruitment procedure was not followed. Hence, the appointment itself was dehors the recruitment procedure and accordingly it breached the equality clause of Articles 14 and 16 which are the basic structure of the constitution. A non-teaching post of a school requires to be filled up following the guidelines. The appointee thereafter is eligible to get the salary from the public exchequer, that is from the Government funds.
In that view of the matter, the appointee when admittedly was not appointed following the recruitment rules/guidelines, the appointment was contrary to the Rule and also on breach of constitutional provision. The Apex Court on reviewing the earlier judgments in that field decided the issue finally in a Constitution Bench Judgment in the case of Secretary, State of Karnataka v. Umadevi (3) reported in (2006) 4 SCC 1 by holding inter alia that illegal appointees could not be regularised in any circumstances. The Apex Court is following the said view consistently. It has been further observed in Uma Devi (3) (supra) that regularisation of such type of candidates not only violates law but it infringes the basic features of Constitution, namely, Articles 14 ad 16 of the Constitution of India. The Apex Court accordingly observed that High Court being the sentinel and guardian of Constitution should not allow any such regularisation of service. Relying upon Uma Devi (3) (supra) in the case of Mahadeo Bhau Khilare (Mane) v. State of Maharashtra reported in 2007 (5) SCC 524, the Apex Court reechoed the same principle by holding that such type of appointment is void ab initio and breach of Articles 14 and 16 and as such the same is wholly illegal and no regularisation should be done. Recently in the case of Official Liquidator v. Dayananda reported in 2008 (10) SCC 1 the Apex Court held that Uma Devi (3) (supra), a constitution judgment, has full binding effect and contra view as taken in the case of U.P State Electricity Board v. Pooran Chandra Pandey reported in 2007 (11) SCC 92 as obiter and had no binding effect on the High Court, Tribunal and other judicial forum.
Considering all those legal position, we are of the view that learned Trial Judge was not correct to pass the order of regularisation of service. The impugned judgment is accordingly set aside and quashed. The writ application stands dismissed. The appeal is allowed.
Let urgent certified copy of this order be supplied to the parties, if applied for, upon compliance with all requisite formalities.
(Manik Mohan Sarkar, J.)
I agree.