Holding

An appointment made for a leave vacancy cannot be regularised as a permanent appointment, and an interim order does not constitute a final approval; therefore the Division Bench’s direction to regularise and pay back wages is set aside.

Summary

The respondent, Banibrata Ghosh, was initially appointed as an Assistant Teacher on a temporary basis to fill a leave vacancy and later continued in the post after the vacancy became permanent following the resignation of the incumbent. He filed a writ petition seeking regularisation of his service in the permanent post. An interim order directed his regularisation, but the Single Judge of the Calcutta High Court later dismissed the petition, holding that a leave‑vacancy appointment could not be regularised without a fresh selection process. The Division Bench reversed this decision, ordering regularisation and payment of 50% back wages. On appeal, the Supreme Court held that the appointment was for a leave vacancy, that an interim order does not confer final approval, and that the procedures for filling leave and permanent vacancies are distinct; consequently, the Division Bench’s order was set aside and the Single Judge’s dismissal restored.

Issues considered

The appointment made against a leave vacancy can be regularised as a permanent appointment.
Whether an interim order directing regularisation confers a final right to regularisation.
Whether the recruitment procedures for leave vacancies differ from those for permanent vacancies.
Whether the respondent is entitled to back wages for the period he was out of service.

Subjects

service regularisationleave vacancypermanent vacancyinterim orderback wagesno work no payrecruitment rulesteacher appointmentcivil service law

Judgment

[2009] 1 S.C.R. 790

A STATE OF WEST BENGAL & ORS.
v. +
BANIBRATA GHOSH & ORS.
(Civil Appeal No. 559 of 2009)
FEBRUARY 2, 2009
B
[MARKANDEY KATJU 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
H 790
STATE OF WEST BENGAL & ORS. v. BANIBRATA 791
GHOSH & ORS.

no.1 filed writ petition seeking regularization in the A
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 B
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.
D
Allowing the appeal, the Court
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 E
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 F
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 G
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
' H
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 statement in its judgment. [Para 11) [800-
D-B]

1.2. The Office Memorandum No.2816(17) G.A. dated
D 04.12.1989 deals with the Recruitment Procedure. These
are the directions issued by the Director of School
Education, West Bengal, who is empowered by Clause
(i) and (ii) of sub-Rule (I) and Clause (i) of sub-Rule 28 of
the Rules for Management of Recognized Non-
E Government Institutions (Aided and Unaided), 1969
(Education Department Notification No. 1598-Edn.(5)
dated the 15.7.1969). It is obvious from Rules 1, 2, 3 & 4
that the recruitment procedure is different for filling up of
the permanent vacancy and the leave vacancy. A finding
F is given in the Division Bench to the effect that both the
procedures in case of appointment against the leave
vacancy and the permanent vacancy are substantially
similar. It is very difficult to understand the implication of
this substantial similarity. [Paras 12, 13 and 14) [801-C-
G D; 802-F; 803-F-G]

1.3. The approval of the first panel and also the
second panel was after all for a leave vacancy post and
not for a permanent post, therefore, such approval was
of no consequence and it did not in any manner entitle
H the respondent for the regularization of his post without
STATE OF WEST BENGAL & ORS. v. BANIBRATA 793
GHOSH & ORS.

facing a fresh selection process. [Para 13] [803-C] A
--- Secretary, State of Kamataka Vs. Uma Devi 2006 (4)
sec 1, referred to.
1.4. It cannot be understood as to how, the Division
Bench could be impressed by the fact that the interim B
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 c
seems to have impressed the Division Bench, is of no
consequence. The Division Bench also seems to have
been impressed by the fact that the Single Judge
dismissed the petition in 2003, though the appointment
was made way back in 1993. The mere pendency of the D
~
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. That
logic of the Division Bench is completely faulty. The E
direction of the Division Bench is no less surprising that
since the respondent no.1 was not allowed to remain in
service pursuant to the impugned order of the Single
Judge, he should be paid 50% of the back wages for the
. ,,;..,
period for which the respondent was out of service. Such F
could never have been the course taken in view of the
settled principle of "no work no pay". The order of the
Single Judge was a perfectly justified order, who had
viewed the whole controversy in details. The impugned
judgment of the Division Bench wholly lacks merit. [Paras G
15 and 16] [803-H; 804-A; 804-B-E]
~ 1.5. As regard the submission that a compassionate
view of the matter, should be taken since as a result of
this judgment, the respondent would be thrown in the
state of unemployment, such misplaced sympathy H
794 SUPREME COURT REPORTS [2009] 1 S.C.R.

A cannot be shown by the Division Bench. This Court had
issued directions to make the payment of salaries and
some payments have been made to the respondent. It is
directed that such payments shall not be recovered from
the respondent. Considering that the writ petition
B remained pending for 10 years and thereby, the
respondent might now have become barred by age for
fresh employment, The Government is recommended to
consider the condonation of the age bar, if any, on the
part of the respondent. Thus, the judgment of the Division
c Bench is set aside and that of the Single Judge is
restored. [Para 17] [804-G-H; 805-A-B]

Case Law Reference:

2oos (2) sec 1 Referred to Para 13 ...
D CIVIL APPELLATE JURISDICTION : Civil Appeal No. 559
of 2009.

From the final Judgment and Order dated 2.4.2007 of the
High Court of Calcutta at Calcutta in F .M.A. No. 1779/2003.
E
Bhaskar P. Gupta, Tara Chandra Sharma and Neelam
Sharma for the Appellants.

Bijan Kumar Ghosh, J. Mazumdar, Abhishek Sarkar (for
Chiraranjan Addey) Piyush K. Roy and Sunil Kumar Verma for ~ ·
F the Respondents.

The Judgment of the Court was delivered by

V.S. SIRPURKAR, J. 1. Leave granted.

G 2. State of West Bengal has come up against the judgment
of the Division Bench of the High Court allowing the appeal filed
by the respondent no.1 herein and directing the State to treat
the respondent no.1 as an approved Assistant Teacher of the
concerned school and further to allow the respondent no.1 to
H
STATE OF WEST BENGAL & ORS. v. BANIBRATA 795
GHOSH & ORS. [V.S. SIRPURKAR, J]

resume his duties as an approved Assistant Teacher of the A
concerned school immediately. The High Court has further
directed the authorities to pay 50% of the back-wages for the
period the said respondent was out of service. It is further
ordered that the respondent would also be entitled to receive
all other admissible service benefits as a duly approved B
Assistant Teacher of the concerned school pursuant to the order
of approval. Thereby, the High Court allowed the appeal filed
-+- against the judgment of the learned Single Judge of that 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
c
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 D
~
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 E
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
F
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 to be appointed on
temporary basis in the said leave vacancy for a period of six
months from 24.1.1991 to 2.7.1991. His appointment was later
G
on approved by the concerned District Inspector by his order
dated 14.2.1991. Eventually, the said leave vacancy continued
for more than six months and as a result, the respondent
continued to work. His services were extended from 3.7.1991
H
796 SUPREME COURT REPORTS [2009] 1 S.C.R.

A to 31.12.1991 and this extension was also approved by the
District Inspector of Schools. After the tenure of service ended
on 31.12.1991 for some explicable reasons, the respondent
no.1 's appointment was extended from 2.1.1992 to 31.3.1992.
However, this extension was not approved by the District
Inspector of Schools, instead District Inspector of Schools
8
requested the school to take fresh steps to fill in the said
vacancy. A fresh advertisement was, therefore, published on
23.2.1992. The respondent no.1 applied and was again
selected and he was thus given appointment on the previous
C terms for a period from 3.4.1992 to 30.6.1992. On 3. 7.1992,
the original incumbent on the post who had gone on leave and
in whose place the respondent was appointed resigned and
as a result, a substantive vacancy arose in the permanent
sanctioned post of Assistant Teacher in Bio Science group. A
representation came to be made by the respondent no.1 on
D 14.8.1992 that since he had worked in the school as Assistant
Teacher on and from 24.1.1991 to 30. 7.1992 on adhoc basis
and since the original incumbent of the post one Shri Shanker
Biswas had submitted his resignation, the services of the
respondent no.1 should be regularized. A Writ Petition came
E to be filed by him on 25.8.1992 registered as CO No.18711
(W) of 1992. Amongst other prayers, the respondent no.1
herein sought his absorption and regularization in the
permanent vacancy with effect from his appointment and also
sought an injunction against the appellants herein restraining ' ~
F them from proceeding in any way, in filling up the said vacancy.

5. On 15.12.1992, when the Writ Petition came up before
the learned Single Judge of the Calcutta High Court, an interim
order was passed directing the District Inspector of Schools
G to regOlarize the appointment of respondent no.1 by 15.1.1993
and also to submit a report about the regularization by
22.1.1993. Since this interim order was not complied with, the
respondent no.1 filed an application for initiating contempt
proceedings on 16.2.1993. Learned Single Judge directed the
H District Inspector of Schools, Nadia, namely, Ranjit Kumar
STATE OF WEST BENGAL & ORS. v. BANIBRATA 797
GHOSH & ORS. [V.S. SIRPURKAR, J.]

Ghosh to appear in person on 2. 7 .1993 at 10.30 and to show A
< ..........
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 B
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 c
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 D
~
posed himself a right question as to whether the approval
granted in terms of the interim order should or should not be
retained. The Learned Judge also posed a further question as
to whether the respondent was entitled to any such interim order
at all to begin with. The learned Single Judge then went on to E
hold that the respondent no.1 was appointed only against the
leave vacancy and was not selected against a permanent
vacancy complying with the Rules for the selection of such
permanent post. The Learned Single Judge further took the
' .;.- view that there was no rule, atleast brought to his notice F
suggesting that a person selected against a leave vacancy
should be treated as an appointee against a regular vacancy
and further should be entitled for the approval as such. The
Learned Single Judge treated the appointment of the
respondent no.1 as adhoc appointment who was not entitled G
for the grant of permanent status or as the case may be,
~- approval for a permanent appointment. In that view of the
matter, the Learned Single Judge dismissed the Writ Petition
holding that the petitioner in the writ petition had no right
whatsoever for permanency. The learned Single Judge also H
798 SUPREME COURT REPORTS [2009] 1 S.C.R.

A found that no such interim order could have been given by his ..... '
predecessor which was in the nature of a final order. Even
}-
noting that the petitioner in the writ petition and the respondent
no.1 herein was in the post and serving for 1Oyears, the learned
Single Judge refused to entertain the petition.
B
7. A Writ Appeal came to be filed against this judgment
which came to be allowed by the Division Bench. The said
Division Bench judgment has now fallen for our consideration. +-
8. Shri Bhaskar P. Gupta, Learned Senior Counsel. .
c appearing on behalf of the appellants. firstly urged that the
Division Bench, which allowed the Appeal. had posed itself an
incorrect question and completely missed the real controversy
involved. According to the Learned Senior Counsel. there could
be no dispute that the approval. which was granted by the
D Director of Education by his order dated 13.8.1993 was in
pursuance of the interim order passed by the Learned Single
Judge on 16. 7.1993. If that was so, it was clear that it was not
the final approval. as the said approval was for a vacancy, which
was admittedly not a clear vacancy, as it was a leave vacancy.
E According to the Learned Senior Counsel, it is also to be seen
that the Learned Single Judge had not disposed of the Writ
Petition, therefore, the said order could not have been treated
as a final relief. Under such circumstances, the Division Bench
could not have tested the propriety of the Learned Single Judge
~l
F (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
G
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,
H
STATE OF WEST BENGAL & ORS. v. BANIBRATA 799
GHOSH & ORS. [V.S. SIRPURKAR, J.]

to suggest that there are different procedures for filling up of A
leave vacancy and permanent vacancy.

9. Shri Bi1an Kumar Ghosh, Learned Counsel, appearing
on behalf of the respondents, however, submitted that the
original Writ Petitioner (respondent herein) was undoubtedly,
B
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 Writ Petition, he was
also chosen and sent for doing his B.Ed. Course and thus, had
bettered his qualification, which was a proper qualification for
the post of Assistant Teacher. Under such circumstances, since
c
the petition pended, not for the fau It on the part of the
respondents, the Learned Single Judge (Hon. Barin Ghosh, J.)
should have allowed the petition, instead of tinkering with the
interim order passed by the Learned Single Judge (Hon. D.K.
Basu, J.) earlier. As an alternative argument, Learned Counsel D
argued that it will be of no use now to send back the teacher,
who is not only a qualified teacher, but has an experience of
10 years, and that would ruin the respondent financially and he
would be thrown in the ditch of unemployment.
E
10. We have carefully seen the Division Bench Judgment
and are unable to agree with the same. Very strangely, the
Division Bench has expressed:-

.A "Even after the aforesaid regularization of the service of
F
the appellant/Writ petitioner, pursuant to the earlier interim
order passed by this Hon'ble Court, Learned Single Judge,
while deciding the Writ petition finally again considered the
issue relating to regularization of the service of the said
appellant/Writ Petitioner and quashed the approval
already granted to the appellanf!Writ Petitioner and further G
directed the school authorities to fill up the permanent
';.~ vacancy in accordance with law. It is true that the service
of the Writ Petitioner was approved pursuant to the earlier
interim order passed by this Court but the competent
authority of the State Government including the Director of H
800 SUPREME COURT REPORTS [2009) 1 S.C.R.

A School Education and the District Inspector of Schools
concerned did not challenge the said interim order ...... "
(Emphasis supplied)

The Division Bench further posed itself a question:

B " ... it is now to be decided whether the Learned Single
Judge was justified in considering the issue relating to
approval of service of the Writ Petitioner once again at
the time of final hearing of the Writ Petition, when such
.,
approval was granted by the Competent Authority pursuant
c to the earlier order of this Court without raising any
objection and imposing any condition." (Emphasis
Supplied)

11. We are afraid, this approach (highlighted by emphasis)
D of the Division Bench was wholly incorrect. The circumstances,
under which the earlier approval was granted. were writ large
before 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
E
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
F 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
G 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
H be and was not disputed by Shri Ghosh, Learned Senior
STATE OF WEST BENGAL & ORS. v. BANIBRATA 801
GHOSH & ORS. [V.S. SIRPURKAR, J ]

Counsel for the respondents, before us. Again, it must be A
·+-
pointed out that 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. We fail to understand, therefore, as to how,
even without referring to the relevant rules or procedure for B
recruitment of teachers in permanent vacancies, the Division
Bench could make such a casual statement in its judgment.
-+
12. The aforementioned Office Memorandum No.
2816(17) G.A. dated 4.12.1989 deals with the Recruitment
Procedure. These are the directions issued by the Director of
c
School Education, West Bengal, who is empowered by Clause
(i) and (ii) of sub-Rule (I) and Clause (i) of sub-Rule 28 of the
Rules for Management of Recognized Non-Government
Institutions (Aided and Unaided), 1969 (Education Department
Notification No. 1598-Edn.(S) dated the 15.7.1969). Direction D
1 requires a prior permission of the District Inspector of Schools
(SE) of the respective District against the sanctioned post,
provided the school has no surplus teacher on its staff. This pre-
supposes that the District Inspector of Schools has to take an
i::
exercise to decide as to whether the concerned school had any ~

surplus teacher at the relevant time when the permanent post
is to be filled up. Direction 2 suggests that no such prior
permission would be required in case of an appointment
, ~ against a deputation vacancy or against a leave vacancy,
provided that leave is not more than 3 months. It also suggests F
that in case the leave vacancy is for more than 3 months, the
names of candidates should be received by an advertisement
in State level daily newspaper and by hanging notice in the
notice board in the office of Zila Parishad and concerned
Panchayat Samity or in case of Municipality. in the notice board G
4_.,. of concerned Municipality. Direction 2(a) suggests that in case
of a permanent vacancy, the Managing Committee has to
enquire of the District Inspector of Schools (SE) if there is any
approved surplus staff to be absorbed in recognized schools
or any dependent member of a distressed family of ·an H
802 SUPREME COURT REPORTS [2009] 1 S.C.R.

A approved staff of any non- Government Recognized school who
died in harness after 1.4.1981. The District Inspector of
Schools then has to send the names of such eligible
candidates, not exceeding 3 in number, to their concerned
school within a fortnight for the appointment in the vacant
B 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
c can be done only after such candidates are 1nterv1ewed 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
D 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
E period, then a request has to be made to the District Inspector
of Schools. Even where the appointments are to be made by
an advertisement. first a request therefor has to be made to
the Employment Exchange. It is obvious from Rules 1. 2. 3 & 4
that the procedure is different for filling up of the permanent
F vacancy and the leave vacancy.

13. This aspect was in fact, correctly appreciated by the
Learned Single Judge (Hon'ble Sarin Ghosh, J.) in his
judgment, which was also adversely commented upon by the
G Division Bench without any justification. The Learned Senior
Counsel appearing on behalf of the State, had also relied on
the case of Secretary, State of Karnataka Vs. Uma Devi
reported in 2006 (4) sec 1 and, particularly, the observations
1n that judgment to the effect that a regular process of
H recruitment had to be resorted to, when regular vacancies
STATE OF WEST BENGAL & ORS. v. BANIBRATA 803
GHOSH & ORS. [V.S. SIRPURKAR. J.]

...... imposed at a particular point of time are to be filled up and that A
cannot be done in a haphazard manner or based on patronage
or other considerations. The Division Bench strangely was of
the opinion that the selection for a post in leave vacancy was
the same, as the selection of the post of permanent vacancy.
Even the observations of this Court in the case of Secretary, B
State of Karnataka Vs. Uma Devi reported in 2006 (4) SCC
1 (cited supra) have not been properly realized by the Division
-+
Bench. The approval of the first panel and also the second
panel was after all for a leave vacancy post and not for a
permanent post, therefore, such approval was of no c
consequence and it did not in any manner entitle the respondent
for the regularization of his post without facing a fresh selection
process.

14. An observation has been made by the Division Bench
~ to the following effect:- D

"As discussed hereinbefore, there has been proper
compliance with the prescribed recruitment rules and
procedures in the matter of initial appointment of the
appellant to the post of Assistant Teacher of the concerned E
school in the leave vacancy which subsequently became
a permanent vacancy due to the resignation of the
concerned permanent teacher ............ " (Emphasis
>; supplied)

We have scanned the judgment carefully, and we find no such
F
discussion regarding "prescribed recruitment rules". Again. a
finding is given in the same paragraph of the Division Bench
Judgment to the effect that both the procedures in case of
appointment against the leave vacancy and the permanent
vacancy, are substantially similar. It is very difficult to understand G

..... ~ the implication 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 H
804 SUPREME COURT REPORTS [2009] 1 S.C.R.

A 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.
B
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
C 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
D was not allowed to remain in seNice pursuant to the impugned
order of the Learned Single Judge, he should be paid 50% of
the back wages for the period for which the respondent was
out of seNice. Such could never have been the course taken
in view of the settled principle of "no work no pay". Again, the
E order of the Learned Single Judge was a perfectly justified
order, who had viewed the whole controversy in details. We are
convinced that the impugned judgment of the Division Bench
wholly lacks merit and would have to be set aside and the
judgment of the Learned Single Judge would have to be
F restored. We order accordingly.

17. Shri Ghosh, Learned Senior Counsel, appearing for
the respondents, at this stage, says that we should take a
compassionate view of the matter, since as a result of this
G judgment, the respondent would be thrown in the state of
unemployment. We are afraid, we cannot show any such
misplaced sympathy, which was shown by the Division Bench.
We are told at the Bar that this Court had issued directions to
make the payment of salaries and some payments have been
made to the respondent. We direct that such payments shall
H
STATE OF WEST BENGAL & ORS. v. BANIBRATA 805
GHOSH & ORS. [V.S. SIRPURKAR, J ]

not be recovered from the respondent. Considering that the Writ A
Petition remained pending for 10 years and thereby, the
respondent might now have become barred by age for fresh
employment, we recommend that the Government may consider
the condonation of the age bar, if any, on the part of the
respondent. We accordingly set aside the judgment of the 8
Division Bench and restore that of the Learned Single Judge
and allow the appeal but without any orders as to the costs.

N.J. Appeal allowed.

c