Samsul Haque vs The State Of West Bengal & Ors
2021 Latest Caselaw 4353 Cal

Form No. J(2)

                      IN THE HIGH COURT AT CALCUTTA

                           Constitutional Writ Jurisdiction

                                 Appellate Side
Present :

The Hon'ble Justice Abhijit Gangopadhyay

                                      WPA 23034 of 2018

                                     Samsul Haque
                                        -Versus-
                              The State of West Bengal & Ors.

     For the petitioner                       :   Mr. Prosenjit Mukherjee
                                              :   Mr. Saptarshi Chakraborty
                                              :   Mr. Arghya Kamal Das
                                              :   Ms. Poulami Dutta
     For the State                            :   Mr. Himadri Sikhar Chakraborty
                                              :   Ms. Debdooti Dutta

     For the Respondent No.7                  :   Md. Sarwar Jahan
                                              :   Mr. Debanshu Ghorai

    Heard On: 30.06.2021, 22.07.2021, 29.07.2021, 13.08.2021 &
    23.08.2021
    Judgment On: 23.08.2021

      Abhijit Gangopadhyay, J.

The matter relates to selection and appointment of Mukhya

Samprasarak In-charge in Madhyamik Siksha Kendra (In short MSK). The

allegation of the petitioner is this he being the seniormost Siksha Samprasarak,

should have been given the responsibility of Mukhya Samprasarak In-charge

after the retirement of the Mukhya Samprasarak of the MSK on 2nd June, 2018.

But from the report submitted today before this court by the Block

Development Officer of the Sagardighi Block, it appears that a person who is

junior to the petitioner, namely, Rafikul Islam (Respondent No. 6) was appointed

as Mukhya Saprasarak by the Administrative Committee of the said MSK. Such

decision was taken on 14.12.2018 but there was no guideline or circular or order

of the Government of West Bengal as to appointment of Mukhya Samprasarak

In-charge at the material point of time as has been disclosed in Annexure 'R-7' at

page 17 of the Report which is an order dated 27th May, 2019. In the said order

dated 27th May, 2019 it has been stated that the new Mukhya Shiksha

Samprasarak/Samprasarika In-charge or Samprasarak/Samprasarika In-charge

will be selected by the Administrative Committee out of the working

Samprasarak etc. on the basis of seniority in service and preference would be

given to the person who has a B.Ed. Degree.

2. Learned advocate for the petitioner submits that when Mukhya

Samprasarak In-charge was selected by the Administrative Committee of the

Maliadanga MSK, this order dated 27th May, 2019 of the Government of West

Bengal was not there and, therefore, in absence of any restropectivity of this

order dated 27.05.2019 this cannot be made applicable to the petitioner. In any

event, he has made a submission, that even in this order it is a question of

giving preference but on the basis of 'seniority in service' in MSK is also

mentioned in the order meaning thereby that if there are two similarly situated

Samprasaraks in one MSK, then the one of B. Ed. Degree would be considered.

The emphasis of this order dated 27.05.2019 also is on the seniority.

3. Learned advocate for the State has submitted that at that point of

time when the private respondent being the respondent no.6 was selected as the

Mukhya Samprasarak In-charge, there was no guideline as to who could be

appointed as Mukhya Samprasarak In charge and, therefore, as per direction of

the concerned Block Development Officer, the Administrative Committee

selected the private respondent being the respondent no.6 as the Mukhya

Samprasarak In-charge of the concerned MSK.

4. In this respect I hold that when there was no guideline as to who would

be appointed as the Mukhya Samprasarak In-charge in MSK, it is the seniority

which should be taken into account and not any other thing. From the

resolution taken by the Administrative Committee dated 14.12.2018 as found

from page 15 of the Report submitted before this court today, it appears that

why the respondent no.6 as Samprasarak junior to the petitioner in the said

MSK was appointed as the Mukhya Saprasarak In-charge of the said MSK is not

clarified. The resolution only says, the cooperating attitude and acceptability

had been carefully considered and the said person, namely, Rafikul Islam was

appointed as the Mukhya Saprasarak In-charge of the said MSK. This resolution

is actually non-speaking and does not disclose the shortcomings of the

petitioner or the specific cooperating attitude and acceptability of the private

respondent being the respondent no.6. Therefore, the appointment of the

private respondent, I find, is not in accordance with the policy of the State

relating to appointment in such posts when a question of selection comes to

similarly placed persons, the principle of the State is that the seniority is to be

followed and in every known field of service if there is no other conditions laid

down in selection of persons for a post wherein a selection is to be made from

equally placed candidates seniority is given preference.

5. For the reasons as aforesaid I set aside the appointment of respondent

no.6 as the Mukhya Samprasarak In-charge of the said MSK and I direct the

concerned authority i.e. B. D. O. of Sagardighi Block to cancel the appointment

of Rafikul Islam as Mukhya Samprasarak In-charge forthwith and to appoint

the petitioner, namely, Samsul Haque as the Mukhya Samprasarak In-charge of

the MSK forthwith.

6. This writ application is allowed and under no circumstances the BDO

shall delay the matter more than two days after receiving a copy of this order

passed today.

7. The Report filed by the concerned BDO be kept with the record.

8. All the parties are directed to act on the basis of a website copy/server

copy of the order passed today by this court.

9. No costs.

(Abhijit Gangopadhyay, J.)