Dipak Kumar Mandal vs The State Of West Bengal & Ors
2021 Latest Caselaw 6588 Cal

                                                          1


               IN THE HIGH COURT AT CALCUTTA
                CIVIL APPELLATE JURISDICTION
                       APPELLATE SIDE
PRESENT:

THE HON'BLE JUSTICE HARISH TANDON
            &
THE HON'BLE JUSTICE RABINDRANATH SAMANTA

                           F.M.A 1091 of 2012
                                  With
                              CAN 2 of 2020
                           Dipak Kumar Mandal
                                   Vs.
                     The State of West Bengal & Ors.
                                  With
                           F.M.A 1093 of 2012
                                  With
                              CAN 2 of 2020
                           Dipak Kumar Mandal
                                   Vs.
                     The State of West Bengal & Ors.

                              _______

Mr.Rabindranath Mahato,Adv.
Mr.Prasanta Behari Mahato,Adv.
                            ..... for the Appellant


Mr.Bhaskar Prasad Vaisya,Adv.
Mr.Suman Dey,Adv.
                            .....for the State

Mr. Ekramul Bari, Adv.
Mr. Syed Mausm Ali, Adv.
                             .....for the Respondent No.6

(in F.M.A No. 1091 of 2012)

Mr.Rabindranath Mahato,Adv.

Mr.Prasanta Behari Mahato,Adv.

..... for the Appellant

Mr. Jahar Lal Dey, Adv.

Ms. Debarati Sen(Bose), Adv.

.....for the State

Mr. Ekramul Bari, Adv.

Mr. Syed Mausm Ali, Adv.

.....for the Respondent No.6

(in F.M.A No. 1093 of 2012)

Heard On : 14.12.2021

Judgment on : 23.12.2021

Rabindranath Samanta, J:-

1. F.M.A no. 1091 of 2012 arises out of the order dated

15.03.2012 passed by a Learned Single Bench in W.P 16050 (W) of 2011 and F.M.A no. 1093 of 2012 arises out of the order dated 10.05.2011 passed by an another Learned Single Bench in W.P 21560 (W) of 2010 with W.P 23532 (W) of 2010. Since the two appeals are inter related to each other and a common judgment will govern both the two appeals, we heard the appeals analogously.

2. The appeals on hand have a checkered background

which may be delineated as under:-

The Additional District Inspector of Schools, Secondary Education by a letter dated 01.07.2008 granted

permission to the Secretary of Srikrishnapur High School at Kharagpur, District - Paschim Medinipur to fill up the vacancy in the post of Group- D(permanent) in the school as per the latest recruitment rules. The managing committee of the school in its meeting held on 29.08.2008 took a decision to request the concerned employment exchange officer to sponsor the names of candidates for recruitment in the post and accordingly the school authority requested the concerned employment exchange officer to sponsor the names of the candidates for recruitment in the aforesaid post of Group-D. In reply thereto, the employment exchange officer vide Memo No. KGP/PVT- 54/08 dated 08.09.2008 sponsored the names of twenty one candidates for the recruitment as above. On the other hand, the school authority also published a notice in a Bengali Daily newspaper 'Sambad Pratidin' on 15.09.2008, inter alia, inviting applications from the intending candidates for participation in the interview for the post.

3. The appellant made an application before the school

authority on the basis of the advertisement published in the said newspaper. In his application the appellant stated that he belonged to Schedule Caste and he possessed all the requisite qualifications for the post. In response to the advertisement in the newspaper fourty four candidates including the appellant applied for the

post. Ultimately, sixty five candidates appeared in the interview conducted by the school authority on 09.11.2008.

4. Finally, the school authority prepared a panel where the

respondent no. 6 Moutushi Roy was placed as the first candidate and the appellant was placed as a second candidate in the panel.

5. The appellant contends that as per the existing recruitment rules, the respondent no. 6 did not attain the age of 18 years on 01.01.2008 and as such she was not eligible for the post. But, he fulfilled all the eligibility criteria to be appointed in the post. He made representation to the school authority with a plea that he be appointed in the post instead of the respondent no. 6. But, the authority turned deaf ear on the plea made by him.

6. Being dissatisfied with the inaction on the part of the

school authority the appellant initially filed a writ petition being W.P 30072(W) of 2008 in this Court challenging the decision of the school authority selecting the respondent no. 6 for the aforesaid post. During the pendency of the writ petition, the Additional District Inspector of Schools, on 30.07.2010, approved the panel prepared by the school authority. Under such circumstances, the appellant withdrew the writ petition and filed an another writ petition being W.P 21560 (W) of 2010 challenging the

decision of the authorities concerned in approving the selection of the respondent no. 6 for appointment in Group-D post in Srikrishnapur High School. After filing of this writ petition the respondent no. 6 Shrimati Moutushi Roy filed a writ petition being W.P 23532 (W) of 2010 seeking, inter alia, direction upon the school authorities to appoint her in the aforesaid post.

7. Both the aforesaid two writ petitions were heard together

by a Learned Single Bench and by the order dated 10.05.2011 the Learned Single Bench disposed of the two writ petitions directing the respondent no. 2 i.e. the District Inspector of Schools (Secondary Education), Paschim Medinipur to consider the panel in question and to decide the fate of it finally on the issue regarding grant of approval thereto in the light of the recruitment rules of 2005 within a period of eight weeks from the date of communication of the order.

8. As it appears, the District Inspector of Schools (Secondary Education),Paschim Medinipur, in compliance with the aforesaid order of this Court, vide office Memorandum dated 25.05.2011 opined that the school authority be instructed to follow the Memo No. 758/KGP dated 30.07.2010 issued by the Additional District Inspector of Schools (SE), as per the rules subject to the condition that it would abide by the final result of A.S.T 669 of 2010 i.e. W.P 16050 (W) of 2011. Be it noted that by the letter dated 30.07.2010 the Additional District

Inspector of Schools approved the panel prepared by the school authority.

9. Being aggrieved by the order of approval dated 30.07.2010 the appellant brought the writ petition being W.P 16050 (W) of 2011 seeking a writ in the nature of mandamus commanding the respondents authorities concerned to set aside and cancel the order of approval of the panel vide letter dated 30.07.2010 issued by the Additional District Inspector of Schools, Paschim Medinipur. By the impugned order dated 15.03.2012 the Learned Single Bench dismissed the writ petition out of which F.M.A no. 1091 of 2012 springs out. In the order impugned the Learned Single Judge has observed that there is no infirmity in the order under challenge. The Learned Single Judge has further observed that the validity of the order under challenge may be affected by the final decision of the Appellate Court in M.A.T 1201 of 2011.

10. It is not in dispute that M.A.T 1201 of 2011 has been

converted to F.M.A 1093 of 2012. Mr. Ekramul Bari, Learned Advocate appearing for the respondent no. 6 argues that since the appellant withdrew the writ petition being W.P 30072(W) of 2008, the second writ petition being W.P 21560(W) of 2010 filed by him on the self-same subject matter is not entertainable by this Court. Mr. Bari, by drawing our attention to the order dated 10.05.2011 submits that the Learned Single Judge in the

order has also observed that as the appellant unsuccessfully participated in the selection process, he has no locus standi to bring the aforesaid writ petition. To countenance his argument Learned Lawyer has cited a decision in the case of Sarguja Transport Service -Vs- State Transport Appellate Tribunal, M.P, Gwalior and Others reported in (1987) 1 SCC 5. In this decision it has been held by the Hon'ble Apex Court that withdrawal or abandonment of a petition under Article 226/227 without permission to file fresh petition thereunder would bar such a fresh petition in the High Court involving the same subject matter though other remedies such as suit or writ petition under Article 32 would be open. In case of writ petition under Article 226 seeking writ of habeas corpus or enforcement of Article 21, there would be no such bar to fresh petition.

11. What we find, the Learned Single Judge, though observed

as an obiter, has impliedly accepted the plea of the appellant in the aforesaid writ petition and directed the concerned District Inspector of School to consider the panel and decide the fate of it finally on the issue regarding grant of approval thereto in the light of the recruitment rules of 2005.

12. Mr. Rabindranath Mahato, Learned Lawyer appearing for

the appellant submits that the appellant brought the writ petition being W.P 30072(W) of 2008 challenging the

decision selecting the respondent no. 6 for the post by the authority concerned. But as the District Inspector of Schools approved the panel, a separate cause of action arose and because of this the appellant had to withdraw the earlier writ petition and filed a writ petition being WP 21560(W) of 2010.

13. After examining the pleadings of both the two writ

petitions we feel that the writ petition being 21560 (W) of 2010 is based on separate cause of action emanating out of the approval of the panel by the authority concerned. Besides, by necessary implication, the Learned Single Judge in the impugned order dated 10.05.2011 delved into the plea of the appellant in the writ petition and in fact acted upon it. In such backdrop, the decision cited by Mr. Bari is not applicable.

14. We hold that the appellant had locus standi to bring the

writ petition being W.P 21560(W) of 2010 as well as the writ petition being W.P 16050(W) of 2011. That being so, the portion of the impugned order dated 10.05.2011 by which the Learned Single Judge observed that the appellant had no locus standi to file the writ petition is set aside and F.M.A no. 1093 of 2012 is disposed of accordingly.

15. Admittedly, in response to a request made by the Secretary, Srikrishnapur High School, the concerned

employment exchange officer by a memo dated 08.09.2008 sponsored twenty one names of candidates for filling up the post of a Group - D staff reserved for scheduled caste. On the other hand, fourty four candidates applied for the post in response to an advertisement published in a Bengali daily newspaper dated 15.09.2008. After all the candidates participated in the interview conducted by the school authority on 09.11.2008, the school authority prepared a panel on 25.11.2008 wherein the respondent no. 6 Moutushi Roy, the appellant Dipak Kumar Mandal and one Pritam Sarkar were placed as first, second and third according to merit.

16. As it appears, writ petition being W.P 30072 (W) of 2008

preferred by the appellant challenging the aforesaid panel was withdrawn by him and after the panel was approved by the authority concerned he filed another writ petition being W.P 21560 (W) of 2010 challenging the approval of the panel. As noted above, the respondent no. 6, on the other hand, filed a writ petition being 23532(W) of 2010 seeking direction upon the school authority to appoint her in the aforesaid post.

17. Admittedly, by an order dated 10.05.2011 the Learned

Single Bench disposed of both the two writ petitions directing the District Inspector of Schools to consider the panel and decide its fate finally regarding grant of

approval thereto in the light of the Recruitment Rules, 2005.

18. Ultimately, the District Inspector of Schools, Paschim

Medinipur in compliance with the order dated 10.05.2011 of this Court directed the school authorities vide Memo dated 25.08.2011, to follow the panel as approved by Additional Inspector of Schools vide Memo dated 30.07.2010. Undisputedly, challenging this decision the petitioner brought the writ petition being W.P 16050(W) of 2011 which was dismissed by the impugned order dated 15.03.2012. The Learned Single Bench upheld the approval of the panel by observing that the minimum age of the candidate shall be reckoned from the date of advertisement and Rule 4 of the West Bengal Schools (Recruitment of Non-Teaching Staff) Rules, 2005 refers only to the candidates who are covered by the second clause, namely those persons who have completed the age of thirty seven years.

19. In F.M.A no. 1091 of 2012 the appellant assails the

impugned order dated 15.03.2012 on the ground that the Learned Single Judge has erred in law by holding that Sub-Rule(b) of Rule 4 of the Recruitment Rules only refers to those persons who have completed the age of thirty seven years. The appellant submits that as the respondent no. 6 did not complete the age of eighteen

years on 01.01.2008, she was not eligible for appointment to the post.

20. In the aforesaid context, it will be apposite to refer to Rule

4 of the West Bengal Schools ( Recruitment of Non- Teaching Staff) Rules, 2005 which reads as under :-

"4.Qualification. - (1) No person shall be appointed by a School authority as a Librarian or Clerk or a Group - D staff in the school, unless the person-

(a) is a citizen of India;

(b) has completed the age of eighteen years and has not completed the age of thirty seven years on the first January of the year in which the requisition is made to the employment exchange for sponsoring by the employment exchange names of the candidates:

Provided that for a candidate belonging to a reserved category or a candidate who is a member of the family of a deceased teacher or non-teaching staff, the upper age-limit shall be such as is specified for such a candidate in the relevant Government Order."

21. A reading of Rule 4 shows that this Rule enjoins in clear

and unambiguous languages that a person shall not be qualified to be appointed as a Group- D staff in the school unless he has completed the age of eighteen years

and has not completed the age of thirty seven years on the first day of the year in which the requisition is made to the employment exchange for sponsoring the names of candidates.

22. It is now trite to say that in view of the decision in the

case of Excise Superintendent, Malkapatnam, Krishna District, A.P -Vs- K.B.N Visweshwara Rao & Ors reported in (1996) 6 SCC 216, the school authority in addition to seeking names of candidates from employment exchange should call for the names by publication in the newspaper having wider circulation. If proper construction is made bearing in mind the legal principles enunciated by the Hon'ble Apex Court in the decision supra, Sub-Rule (b) of Rule 4 will be read to this extent that apart from requisitioning the employment exchange to sponsor the names of the candidates, the school authority shall call for candidates by publication in newspaper.

23. The advertisement in the newspaper dated 15.09.2008 is

silent about the cut off date when a candidate will complete eighteen years of age or will not complete thirty seven years of age. In this context, Mr. Mahato, Learned Lawyer placing reliance on two decisions reported in (2021) 6 SCC 163 and (2008) 4 SCC 171 submits that where the existing rules prescribe the minimum and maximum age of the candidates for a post, the authority

concerned is obliged to adhere to the rules only and accordingly the school authority was under legal obligation to accept the minimum age of a candidate as eighteen years on 01.01.2008 and the maximum age of thirty seven years on the date. In the decision in the case of Suman Devi & Ors -Vs- State of Uttarakhand & Ors reported in (2021) 6 SCC 163, the Hon'ble Supreme Court has held that if an advertisement omitted to mention some eligibility criteria, the State authority is under obligation to follow the existing rules which regulate the eligibility criteria. It has been held by the Hon'ble Apex Court that no estoppel can operate against State to compel it to give effect to its promise contrary to the law or the prevailing rules having statutory force. In the decision in the case of Dhananjay Malik & Ors -Vs- State of Uttaranchal & Ors reported in (2008) 4 SCC 171, the Hon'ble Apex Court has held that the Government cannot amend or supercede statutory rules by administrative instructions, but if the rules are silent on any particular point the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. The legal principles enunciated by the Hon'ble Apex Court in the decisions supra, clearly indicate that the existing rules as quoted above regulating the age limit, qualification etc of a candidate shall prevail over all other acts of the Government authority not warranted by law.

24. In the aforesaid conspectus, the submission advanced by

Mr. Mahato is acceptable and we hold that as per Rule 4 of the West Bengal Schools (Recruitment of Non-Teaching Staff) Rules, 2005 a candidate shall not be qualified to be appointed as a Group-D staff unless he has completed the age of eighteen years or has not completed the age of thirty seven years on the first date of January of the year in which the request is made to the employment exchange for sponsoring the names of candidates. However, the petitioner who was empanelled as the second candidate in the panel impugned was entitled to get the benefit of the age relaxation up to fourty two years on 01.01.2008 as a candidate belonging to Scheduled Caste.

25. Undisputedly and as it is evident from the documents on

record, the appellant Dipak Kumar Mandal belonging to Scheduled Caste was born on 27.10.1977 and as such he was within the age limit of eighteen years to thirty seven years or eighteen years to fourty two years as on 01.01.2008. The respondent no. 6 Moutushi Roy was born on 13.08.1990 and as such she was below the age of eighteen years as on 01.01.2008.

26. In view of the existing Recruitment Rules, respondent no.

6 was not eligible to be appointed in the post of Group-D of the school and accordingly, the panel prepared by the school authority showing her as the first candidate and

approved by the Additional District Inspector of schools is vitiated with gross illegality. Consequently, the name of the respondent no. 6 Moutushi Roy is liable to be struck out from the panel.

27. In view of the above, the impugned order dated 15.03.2012 passed by the Learned Single Bench in W.P 16050(W) of 2011 suffers infirmities and the order is liable to be set aside.

28. In the result, F.M.A no. 1091 of 2012 also succeeds and

accordingly, the appeal is allowed.

29. The impugned order dated 15.03.2012 passed by the Learned Single Bench in W.P 16050(W) of 2011 is set aside. The panel prepared by the school authority and approved by the Additional District Inspector of Schools, Paschim Medinipur is modified to this extent that the name of the respondent no. 6 Moutushi Roy be struck out from the panel and instead the appellant Dipak Kumar Mandal be empanelled as the first candidate. The respondent nos. 4 and 5 are directed to appoint the appellant Dipak Kumar Mandal in the post of Group-D of Srikrishnapur High School within thirty days from the date.

30. If, meanwhile, the respondent no. 6 Moutushi Roy has

been appointed pursuant to the panel as above, her appointment shall stand terminated forthwith.

31. In view of the above, the appeals and all the connected

applications stand disposed of.

32. No order as to costs.

33. Urgent certified website copies of this judgment, if applied

for, be given to the parties upon compliance with all the requisite formalities.

(Rabindranath Samanta,J.)

I agree,

(Harish Tandon,J.)