STATE OF WEST BENGAL & ORS. versus BANIBRATA GHOSH & ORS.

Citation: [2009] 1 S.C.R. 790 · Decided: 02-02-2009 · Supreme Court of India · Bench: MARKANDEY KATJU · Disposal: Appeal(s) allowed

Judgment (excerpt)

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[2009] 1 S.C.R. 790 
STATE OF WEST BENGAL & ORS. 
v. 
BANIBRATA GHOSH & ORS. 
(Civil Appeal No. 559 of 2009) 
FEBRUARY 2, 2009 
[MARKANDEY KAT JU AND V.S. SIRPURKAR, JJ.] 
Service Law - Regularisation - Claim for - Leave 
vacancy - Appointment of respondent in leave vacancy and 
C extension thereafter - Subsequently, creation of substantive 
vacancy on resignation of original incumbent - Writ petition 
by respondent seeking regularisation - Interim order directing 
regularisation of service - Grant of approval and respondent 
continuing in service - Writ petition heard after 10 years -
D Dismissal of, by Single Judge of High Court and denial of 
permanent status to respondent - However, in appeal, 
direction passed to regularise services of respondent - On 
appeal, held: Appointment was for leave vacancy thus, cannot 
claim regularisation - Procedures for filling up of leave 
E vacancy and permanent vacancy are different - According of 
approval and direction to regularise the services was pursuant 
to interim order which could not be considered as final - Such 
order does not decide fate of parties to litigation finally -
Direction to pay respondent 50% of back wages for the period 
F he was out of service not justified in view of principle of 'no 
work no pay' - Thus, judgment of Division Bench of High 
Court set aside and that of Single Judge upheld. 
Respondent was appointed as Assistant Teacher on 
temporary basis in the leave vacancy for six months. His 
G services were further extended. Thereafter, the fresh 
advertisement was taken out for the said vacancy. 
Respondent no.1 again applied and was appointed for 
three months. The original incumbent on the said post 
resigned and a substantive vacancy arose. Respondent 
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790 
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STATE OF WEST BENGAL & ORS. v. BANIBRATA 
791 
GHOSH & ORS. 
no.1 filed writ petition seeking regularization in the 
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permanent vacancy with effect from his appointment. 
Thereafter, interim order was passed directing the District 
Inspector of Schools to regularize the appointment of 
respondent no.1. Approval was accorded and 
respondent continued in service. After 10 years, writ 
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petition came up for hearing. Single Judge of High Court 
dismissed the petition holding that the respondent no.1 
was appointed only against the leave vacancy and could 
not be given permanent status. Respondent no. 1 filed 
appeal. Division Bench of High Court allowed the same c 
and directed the State to treat the respondent no.1 as 
approved Assistant Teacher of the school and directed 
the authorities to pay 50% of the back wages for the 
period the respondent was out of service. Hence the 
present appeal. 
Allowing the appeal, the Court 
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HELD: 1.1. The approach of the Division Bench was 
wholly incorrect. The circumstances, under which the 
earlier approval was granted, were writ large before the 
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Division Bench, firstly, it was by an interim order that the 
Single Judge proceeded to award the approval and a 
direction to regularizE:! the services of the respondent. The 
Single Judge had not even bothered to quote any rule, 
under which the respondent was entitled for getting his 
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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 
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knew that it was for the leave vacancy that he was 
competing with others. Under such circumstances, there 
is failure to k~ow 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 
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792 
SUPREME COURT REPORTS 
[2009) 1 S.C.R. 
A 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. It has 
been told that at the time of hearing that the respondent 
was not even registered with the Employment Exchange. 
B If the advertisement was for a leave vacancy, it would not 
have attracted substantial number of applications, which 
would not be the case, if the advertisement was for a 
permanent vacancy. Therefore, there is failure to 
understand as to how, even without referring to the 
C relevant rules or procedure for recruitment of teachers in 
permanent vacancies, the Division Bench could make 
such a casual sta

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