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TMI Blog2009 (2) TMI 882X X X X Extracts X X X X X X X X Extracts X X X X ..... t court who had dismissed the Writ Petition filed by the respondent no.1. In his Writ Petition the respondent no.1 had sought for a writ of mandamus for regularization of his appointment as a Teacher in Shimulia High School in the State of West Bengal. 3. The following facts would clarify the controversy. 4. There is a school called Shimulia High School at Krishnanagar, District Nadia, West Bengal. A leave vacancy occurred in the post of Assistant Teacher (Bio Science), as the permanent teacher went on leave for six months initially. As per the Rules of the Government, the Managing Committee decided to fill up the said leave vacancy and for that purpose, obtained permission from the District Inspector of Schools, Secondary Education, Nadia. An advertisement came to be published on 11.12.1990 inviting applications from the eligible candidates. In pursuance thereto, the respondent no.1 applied with other candidates and the panel was ultimately prepared empanelling three candidates wherein the respondent no.1 was at the first position. The same panel was forwarded to District Inspector of Schools, Nadia who approved the said panel on 18.1.1991. On 23.1.1991, the respondent no.1 came ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing contempt proceedings on 16.2.1993. Learned Single Judge directed the District Inspector of Schools, Nadia, namely, Ranjit Kumar Ghosh to appear in person on 2.7.1993 at 10.30 and to show cause why contempt proceedings should not be drawn against him for the alleged violation of the court's order dated 15.12.1992 and that he should not leave the court without permission. It is worthwhile to mention that when the interim order was passed by the court, the Learned Single Judge merely recorded that the petitioner had served the copy of the Writ application upon the present appellants and yet nobody had appeared on behalf of the Government. Thus, the interim order came to be passed in the absence of any representation to the appellants herein. In the teeth of the contempt proceedings, the approval was accorded on 15.10.1993 w.e.f. from 4.1.1993 and then the respondent continued to serve merrily on the basis of the orders passed. 6. Ultimately after 10 years, the Writ Petition came up for hearing before the learned Single Judge of that court who posed himself a right question as to whether the approval granted in terms of the interim order should or should not be retained. The L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f. Under such circumstances, the Division Bench could not have tested the propriety of the Learned Single Judge (Hon. Barin Ghosh, J.), who finally decided the petition. According to the Learned Counsel, there was nothing wrong in finally deciding upon the petition. Therefore, the Division Bench should have firstly tested as to whether the final judgment, disposing of the petition, was correctly decided or not, instead of addressing itself to a question whether the Learned Single Judge should have considered ultimate effect of the interim order. The Learned Counsel also invited our attention to the Recruitment Rules reflected in the Office Memorandum No. 2816(17) G.A. dated 4.12.1989 issued by the Director of School Education, Government of West Bengal, to suggest that there are different procedures for filling up of leave vacancy and permanent vacancy. 9. Shri Bijan Kumar Ghosh, Learned Counsel, appearing on behalf of the respondents, however, submitted that the original Writ Petitioner (respondent herein) was undoubtedly, appointed after a full-fledged advertisement, not once, but twice. He also had the necessary qualification and in fact, during long pendency of 10 years of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the Division Bench, firstly, it was by an interim order that the Learned Single Judge (Hon. D.K. Basu, J.) proceeded to award the approval and a direction to regularize the services of the respondent. The Learned Single Judge had not even bothered to quote any rule, under which the respondent was entitled for getting his services regularized. In fact, there is a detailed procedure for filling up the vacancies. This was a case, where that procedure was not followed. The appointment of the respondent was merely on the basis of an advertisement for filling up the leave vacancy. The respondent very well knew that it was for the leave vacancy that he was competing with others. Under such circumstances, we fail to know as to what right was there in the respondent to insist on regularization of his appointment. The Division Bench has further made a rather casual statement in the judgment to the effect that the prescribed procedure for recruitment of teacher, both for leave and permanent vacancies, is substantially the same. We were told at the time of hearing that the respondent was not even registered with the Employment Exchange, which fact could not be and was not disputed by Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , to their concerned school within a fortnight for the appointment in the vacant post(s), if otherwise found suitable. If there is any difficulty in such appointments, the Managing Committee has to intimate the District Inspector of School within 15 days of the receipt of such names, stating the specific difficulties in writing, along with the copy of Managing Committee Resolution to that effect. This can be done only after such candidates are interviewed by the Selection Committee to be constituted for the purpose. Direction 2(b) suggests that the District Inspector of Schools can issue the prior permission for appointment to the school and prior to that, the school authorities have to request the national/local Employment Exchanges to furnish the lists of eligible candidates with academic and professional qualifications and date of birth of the candidates in case of General category within 30 days and for reserved categories, within 45 days from the date of receipt. If the names are not sponsored by the Employment Exchanges within the specified period, then a request has to be made to the District Inspector of Schools. Even where the appointments are to be made by an advertisemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication of this "substantial similarity". 15. We also do not understand, as to how, the Division Bench could be impressed by the fact that the interim order was not appealed against by the State Government. It is to be understood that an interim order does not decide the fate of the parties to the litigation finally, it is always subject to and merges with the final order passed in the proceedings. The non-filing of the appeal, which seems to have impressed the Division Bench, according to us, is of no consequence. 16. The Division Bench also seems to have been impressed by the fact that the Learned Single Judge dismissed the petition in 2003, though the appointment was made way back in 1993. The mere pendency of the Writ Petition cannot be viewed against the State Government, which could not be said to be responsible for such long pendency and that could not be viewed in favour of the original Writ Petitioner (respondent herein). That logic of the Division Bench is completely faulty. We are also no less surprised by the direction of the Division Bench that since the respondent no.1 herein was not allowed to remain in service pursuant to the impugned order of the Learne ..... 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