Calcutta High Court (Appellete Side)
Nihar Biswas & Others vs The State Of West Bengal & Others on 8 January, 2021
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
APPELLATE SIDE
Present:
The Hon'ble Justice Tapabrata Chakraborty
W.P.A. No. 15128 of 2017
with
IA No.: CAN 1 of 2019 [Old no.: CAN 5135 of 2019],
CAN 2 of 2019 [Old no.: CAN 6812 of 2019], CAN 3 of 2019 [Old no.: CAN 7981 of 2019],
CAN 4 of 2019 [Old no.: CAN 12566 of 2019], CAN 5 of 2019 [Old no.: CAN 12567 of
2019] & CAN 6 of 2020 [Old no.: CAN 4365 of 2020]
Nihar Biswas & Others
- Versus -
The State of West Bengal & Others
and
W.P.A. No. 1686 of 2017
with
IA No.: CAN 1 of 2019 [Old no.: CAN 1256 of 2019], CAN 2 of 2019 [Old no.: CAN 10542 of
2019], CAN 3 of 2019 [Old no.: CAN 12237 of 2019], CAN 4 of 2020 [Old no.: CAN 4411 of
2020], CAN 5 of 2020 [Old no.: CAN 4412 of 2020],
CAN 6 of 2020 & CAN 7 of 2020.
Chiranjit Mondal & Others
- Versus -
The State of West Bengal & Others
and
W.P.A. No. 21533 of 2017
With
IA Nos.: CAN 1of 2020 [Old no.: CAN 615 of 2020],
CAN 2 of 2020 [Old no.: CAN 2941 of 2020],
CAN 3 of 2020 [Old no.: CAN 4560 of 2020],
CAN 4 of 2020 & CAN 5 of 2020
Ranjit Jha & Another
- Versus -
The State of West Bengal & Others
and
W.P.A. No. 21997 of 2017
Murtuja Ali & Others
- Versus -
The State of West Bengal & Others
2
Mr. Laxmi Kumar Gupta,
Mr. Biswarup Bhattacharya,
Ms. Sudeshna Mazumdar,
Mr. Somesh Kumar Ghosh
... for the petitioners.
[in WPA 15128 of 2017 & CAN 4365 of 2020].
Mr. Arun Shaw,
Mr. Tanmoy Basu
... for the applicants in the addition
of party applications.
[CAN Nos. 5135, 6812 & 7981 of 2019].
Mr. Sambhunath De,
Mr. Soumen Karati
... for the petitioners.
[in WPA 1686 of 2017].
Mr. Arun Shaw,
Mr. Tanmoy Basu
... for the applicants in addition of party applications.
[CAN Nos. 1256, 10542, 12237 of 2019;
CAN nos. 4411 & 4412of 2020 and
CAN 6 of 2020 & CAN 7 of 2020].
Mr. Pratik Dhar, Ld. Sr. Adv.,
Mr. Arnab Saha,
Mr. Abhimanyu Banerjee
... for the petitioners
[in WPA 21533 of 2017]
&
CAN 2941 of 2018 and CAN 615 of 2020
(Addition of Party)].
&
CAN 04 of 2020 & CAN 05 of 2020.
Mrs. Nandini Mitra,
Mr. Debashis Saha,
Mr. Shamim Ahmed,
Ms. Dipika Banu,
Mr. Sabyasachi Roy
... for the added applicants & CAN 4560 of 2020.
3
Mr. Biswarup Bhattacharya,
Mr. Ali Ahsan Alamgir,
Ms. Riya Das,
Ms. Rabia Khatoon
... for the petitioners
[in WPA 21997 of 2017].
Mr. Kishore Dutta, Ld. A.G.,
Mr. Supriyo Chattopadhyay,
Mr. Suman Dey
... for the State
[in WPA No. 15128 of 2017].
Mr. Kishore Dutta, Ld. A.G.,
Mr. Supriyo Chattopadhyay,
Ms. Iti Dutta,
... for the State
[in WPA No. 1686 of 2017].
Mr. Kishore Dutta, Ld. A.G.,
Mr. Bhaskar Prasad Vaisya
Mr. Gourav Das
... for the State
[in WPA 21533 of 2017].
Mr. Kishore Dutta, Ld. A.G.,
Mr. Gourav Das
... for the State
[in WPA 21997 of 2017].
Mr. Arabinda Chatterjee, Ld. Sr. Adv.,
Mr. Bhaskar Prasad Vaisya,
Mr. Pinaki Bhattacharya,
Mr. Biswarup Biswas
... for the DPSC, North 24-Pgs.
[in WPA Nos. 15128 & 1686 of 2017].
Mr. Shamim ul Bari
... for the DPSC, Malda
[in WPA Nos.21533 & 21997 of 2017].
Hearing is concluded on : 22.12.2020.
4
Judgment On : 8th January, 2021.
Tapabrata Chakraborty, J.
1. The dispute involved in the present writ petitions, pertains
to appointment to the post of primary school teachers in the
districts of North 24 Parganas and Malda. The petitioners in W.P.
No. 15128 of 2017 (in short, WP-I) and W.P No. 1686 of 2017 (in
short, WP-II), participated in the recruitment process of 2009
conducted by the North 24 Parganas, District Primary School
Council (in short, DPSC) in terms of the West Bengal Primary
School Teachers Recruitment Rules, 2001 (in short, the 2001
Rules). The petitioners in W.P. No. 21997 of 2017 (in short, WP-
III) and W.P No. 21533 of 2017 (in short, WP-IV), participated in
the same recruitment process conducted by the Malda, DPSC. As
identical legal and factual issues are involved in all the writ
petitions, the same are taken up for hearing together.
2. Shorn of unnecessary details the facts are that in the
year 2009, a recruitment process was initiated for filling up the
posts of teacher in primary schools under several DPSCs across
the State guided by the 2001 Rules. The petitioners applied for
participation and as they fulfilled the eligibility criteria under the
2001 Rules, they were allowed to appear in the written
examinations. By a Government Order dated 21st June, 2012 (in
short, the said GO), the said written examinations were cancelled
and the respective Councils were directed to conduct the written
examinations de novo indicating that "no other candidates except
those who were allowed to appear in the earlier recruitment
examination conducted for the same purpose will be allowed to
appear in the de novo examination". The said GO was, however,
challenged in several writ petitions. Against the interim orders
passed in the same, appeals were preferred in which an order
was passed on 18th September, 2013 granting liberty to the
Councils to conduct the de novo examinations. It was also
observed that the Councils shall also be entitled to prepare the
panel but the panel shall not be given effect to during the
pendency of the writ petitions without leave of Court. Pursuant to
the said order, the de novo examinations were held and the
petitioners duly participated in the same. They emerged to be
successful and were also called for interview, in which they
appeared. Subsequently, they came to learn that the panels
prepared have been sent to the Directorate by the respective
Councils for approval. Vide memoranda dated 11th June, 2015
and 17th June, 2015, the Deputy Director of School Education
provisionally approved the panels prepared by Malda DPSC and
North 24 Parganas, DPSC respectively for one year with an
observation that such approval shall abide by the result of the
matters referred to in the said memoranda. Even thereafter the
authorities did not take any step towards appointment of the
empanelled candidates. The representations submitted were also
not attended to. Aggrieved thereby, the petitioners preferred the
present writ petitions. The WP-I and WP-II were disposed of by a
common order dated 19th July, 2017 observing that "the life of a
panel does not commence until its publication" and that
"provisional approval of the panel by the memo dated 17th June,
2015 would not mean that the life of the panel started on 17th
June, 2015". Since it was reported to His Lordship that the writ
petitions referred to in the panel approving order of the Deputy
Director were dismissed and there was no order restraining effect
being given to the panel, the North 24 Parganas DPSC and its
Chairman were directed to take necessary steps for issuing
appointment letters to the empanelled candidates, in accordance
with law. The WP-III and WP-IV were also disposed of by a
common order dated 7th September, 2017, the contents whereof
bear close resemblance to the order dated 19th July, 2017.
Aggrieved by the said orders, appeals were preferred by the State,
its functionaries and the Malda, DPSC. The Appeal Court by a
judgment dated 12th October, 2018 decided to remand the said
writ petitions upon setting aside the orders impugned.
Challenging the judgment dated 12th October, 2018, the writ
petitioners in WP-I preferred a Special Leave Petition. The same
was disposed of by a judgment dated 22nd July, 2019 remitting
the matter to this Court with a direction to decide the same
within the contour of the limited defence raised by the State in its
counter affidavit. The State thereafter preferred an application for
modification/clarification of the order dated 22nd July, 2019 but
the same was also dismissed. Though no appeal has been
preferred by the petitioners in the district of Malda against the
judgment dated 12th October, 2018, their claim would also be
governed by the order passed in the Special Leave Petition.
3. Mr. Gupta, learned senior advocate appearing for the
petitioners in W.P. No. 15128 (W) of 2017 submits that in view of
serious irregularities in the recruitment examinations, the same
were cancelled vide Government Order dated 21st June, 2012,
with a direction upon the Chairmen of the DPSCs to conduct the
recruitment examinations de novo. The petitioners participated in
the de novo examinations and interview. Panels for different
categories were prepared and sent by the respective Councils to
the Directorate of School Education but the said panels were
never published. Claiming publication of panel and appointment,
the petitioners approached the authorities repeatedly but in vain.
Ultimately the petitioners obtained copies of memoranda dated
11th June, 2015/17th June, 2015 issued by Deputy Director of
Education. By the said memoranda the panels prepared
pursuant to the recruitment process of 2009 were provisionally
approved for a period of one year and it was also indicated that
such approval shall abide by the pending writ proceedings
referred to in the same. The word „provisional‟ has been defined
in Black's Law dictionary (8th edition) as "temporary, conditional".
It is only after the pending Court cases, as referred to in the said
memoranda, were finally decided by orders dated 17th May, 2017
and 23rd June, 2017, life stood infused in the panels and the
present writ petitions have been preferred within a period of one
year from the dates of disposal of the pending proceedings.
4. He submits that keeping the recruitment process of 2009
in abeyance, the respondents illegally initiated a fresh
recruitment process and filled up the existing vacancies in terms
of the amended rules. The amended rules being prospective in
nature had no manner of application in respect of the
recruitment process which had been initiated prior to such
amendment. In support of such contention, reliance has been
placed upon the judgments delivered in the case of Tulsi Roy
versus Sri Krishanu Roy & Others, reported in 2011(2) CHN 1021
and Asoke Sawoo versus State of West Bengal & Others, reported
in 2011(2) CHN 82.
5. He argues that once the recruitment process is set into
motion, the same is required to be brought to its logical
conclusion in terms of the rules existing at the time of its
initiation. In the instant case, without concluding the said
recruitment process of 2009, the respondents have illegally
replaced the same by a new recruitment process in terms of
amended rules upon clubbing the vacancies. Such action is ex
facie illegal and arbitrary, more so when, the authorities have
concluded the recruitment process of 2009 and have given
appointment to similarly situated candidates in the district of
Howrah.
6. According to him, the right of the petitioners to be
considered for appointment is not solely based on empanelment.
Having participated in the recruitment process of 2009 and
having emerged to be successful in the de novo examination and
the interview, the petitioners have earned a right to be considered
for appointment. Such right, as crystallized in favour of the
petitioners, cannot be defeated on a purported plea that the life of
the panel had expired. Having taken a conscious decision to keep
the recruitment process of 2009 alive, as would be explicit from
the GO dated 12th June, 2012, the respondents could not have
filled up the notified vacancies through the subsequent
recruitment process conducted in terms of the amended rules. In
support of such argument, reliance has been placed upon the
judgments delivered in the cases of Richa Mishra versus State of
Chhattisgarh & Others, reported in (2016) 4 SCC 179,
Puroshottam versus Chairman, M.S.E.B. and Another, reported in
(1996) 6 SCC 49 and State of U.P. versus Ram Swarup Saroj,
reported in (2000) 3 SCC 699.
7. He argues that even in case there is no provision towards
publication of panel in the recruitment rules, it is imperative for
the employer to publish the same and to bring it to the
knowledge of the persons who participated in the recruitment
process. The panels prepared and as submitted vide memoranda
dated 11th June, 2015/17th June, 2015 do not disclose the
names of the empanelled candidates. Such denial of publication
of panel and non-disclosure of the names of the empanelled
candidates have left the petitioners unaware about their position
in the respective panels. Natural justice requires publication of
the panels. Reliance has been placed upon the judgment
delivered in the case of T. Narasimhulu & Others versus State of
Andhra Pradesh & Others, reported in (2010) SCC 545.
8. Mr. Gupta submits that the final publication of the panel
was withheld due to the interdict of the Court. For such act of the
Court, the petitioners cannot suffer and their right cannot be
defeated simply on a purported plea that the panel has lost its
life. In support of such contention reliance has been placed upon
the principle of „actus curiae neminem gravabit‟. There are
existing vacancies and the petitioners, who had been empanelled,
should be considered for appointment in the same.
9. Mr. Dhar, learned senior advocate appearing for the
petitioners in WP-IV adopts the submissions of Mr. Gupta and
submits that the publication of the panels was interdicted by
orders of this Court, as would be explicit from the order of the
Appeal Court dated 18th September, 2013. Upon empanelment,
right stood vested upon the petitioners to be considered for
appointment. Life was not infused in the panels so long the writ
petitions, referred to in the memoranda dated 11th June,
2015/17th June, 2015, were pending and as such the employer
cannot reject the petitioners' claim on a purported plea of expiry
of the life of the panels. Having illegally clubbed the vacancies
pertaining to the recruitment process of the year 2009 with the
recruitment process initiated under the amended rules, the
respondents cannot now deny the petitioners' claim on a
purported plea of lack of vacancies. In support of such
contention, reliance has been placed upon the judgments
delivered in the cases of Dinesh Kumar Kashyap & Others versus
South East Central Railway & Others, reported in (2019) 12 SCC
798, Satish Kumar Pal Kumar Pal versus State of U.P. & Others,
reported in 2008 SCC OnLine All 1459, Rajender Bansal & Others
versus Bhuru (Dead) Through Legal Representatives & Others,
reported in (2017) 4 SCC 202, East Coast Railway & Another
versus Mahadev Appa Rao & Others, reported in (2010) SCC 678
and Prabir Kumar Sinha Roy & Others versus The Hon‟ble The
Chief Justice, High Court, Calcutta & Others, reported in 1996 (2)
CHN 497.
10. Mr. Soumen Karati, learned advocate appearing for the
petitioners in WP-II and Mr. Biswarup Bhattacharya, learned
advocate appearing for the petitioners in WP-III adopt the
submissions of Mr. Gupta and Mr. Dhar.
11. Mr. Kishore Dutta, learned Advocate General appearing
for the State respondents submits that the matter has been sent
on remand for a decision within the contour of the limited
defence raised by the State. It is, thus, a case of limited remand.
Such remand is contemplated under Order 41 Rule 25 of the
Civil Procedure Code (in short, CPC). The trial court cannot
travel beyond the domain of the order of remand. In view of the
order passed by the Hon'ble Supreme Court, this Court cannot
decide the issues of publication of panel and appointment, as
prayed for in the writ petitions. In support of such contention
reliance has been placed upon the judgments delivered in the
case of P. Purushottam Reddy & Anr. -Vs- M/s. Pratap Steels
LTD., reported in 2002 (2) SCC 686 and Mal Singh -Vs- Mohinder
Singh, reported in 2009 SCC OnLine P&H 951.
12. He contends that even if such argument is not
acceptable to this Court, no direction can be issued towards
publication of the panels inasmuch as there is no provision to
that effect in the 2001 Rules. In the absence of any provision
under the relevant rules towards publication of the panel, no
mandamus can be issued.
13. Drawing the attention of this Court to Rules 10 and 13
of the 2001 Rules, he submits that an approved panel can
remain valid for one year from the date of approval and the
validity of such panel may be extended by six months at a time
but the total period of such extension shall not exceed one year.
No decision was taken by the competent authority towards
extension of life of the panels and as such it expired on and from
the date of completion of a year after provisional approval on 11th
June, 2015/17th June, 2015. Subsequent thereto, the writ
petitions have been filed. The petitioners have admittedly
approached this Court belatedly and the Court cannot come to
the rescue of the persons who are not vigilant of their rights. In
support of such contention reliance has been placed upon the
judgment delivered in the case of Nadia Dist. Primary School -Vs-
Sristidhar Biswas and Others, reported in (2007) 12 SCC 779.
14. Placing reliance upon a judgment delivered in the case
of State of Bihar and Others -Vs- Md. Kalimuddin and Others
reported in (1996) 2 SCC 7, Mr. Dutta submits that State has
every right to discontinue a recruitment process considering a
change in the rules and the State is under no legal duty to fill up
all or any of the vacancies. Any direction towards continuance of
the panel beyond the period of one year would be in violation of
the statutory rule and even the Court, in exercise of judicial
discretion, cannot stop the panel from lapsing. Such panel
cannot be a perennial source of appointment.
15. Answering a query of this Court as to whether the State
could have discontinued the recruitment process initiated under
the said Rules of 2009 and could have filled up the vacancies
earmarked for the said recruitment process upon initiating a
fresh recruitment process under the amended rules, Mr. Dutta
contends that with the enactment of the Right of Children to Free
and Compulsory Education Act, 2009 and the National Council
for Teacher Education (Determination of Minimum Qualifications
for Recruitment of Teachers in Schools) Regulations, 2001
leading to amendment of qualifications in the 2001 Rules, there
has been a sea change in the qualifications which candidates
aspiring to be primary teachers are required to possess and to
give effect to the right of education to the younger generation who
should have the right to receive education from duly qualified
teachers, fresh recruitment process under the amended rules
was initiated. The rules were amended in view of the enactment
of new laws and for the benefits of the class of students. The
said class is not a party to the proceedings and any direction to
fill up the post of primary teachers through the petitioners, who
have much less qualification compared to the qualifications
required under the amended rules, would be affecting the interest
of the students at large. Such reasoning cannot be stated to be
unacceptable in view of the stand taken by the State respondents
while defending the decision contained in the GO dated 21st
June, 2012 in the earlier proceedings.
16. In answer to a further query of this Court as to how the
authorities have filled up the vacancies in Howrah through the
candidates empanelled on the basis of the recruitment process of
2009, Mr. Dutta submits that the authorities were compelled to
proceed with the recruitment process in the district of Howrah in
view of the orders passed by this Court and thus, it cannot
argued on behalf of the petitioners that the State has practised
discrimination.
17. According to him, there is no quarrel with the
proposition of law as discussed in the judgments upon which
reliance has been placed by Mr. Gupta and Mr. Dhar. However,
it is well-known that a decision is an authority for what it decides
and not what can logically be deduced therefrom. Even a slight
difference in fact or an additional fact may make a lot of
differences in the decision making process. In the case of Ram
Swarup Saroj (supra) the writ petition was filed prior to expiry of
the panel. The judgments delivered in the cases of Tulsi Roy
(supra), Ashok Sahu (supra) and Richa Mishra (supra) are
distinguishable on facts. In the case of T. Narasimhulu (supra),
the Court was considering an issue as regards publication of Acts
and Rules. The ratio has no manner of application in case of
publication of panel. The change in the rules was not a change
simpliciter. In view of the enactment of new laws, the rules were
amended and a new recruitment process was initiated and the
posts were filled up through qualified candidates. Such action
cannot be termed as arbitrary. It is not a case that certain
candidates from the recruitment process of 2009 have been
appointed and others have been left out and as such the
judgments delivered in the cases of P. Purushottam Reddy
(supra), Dinesh Kumar Kashyap (supra), Satish Kumar Pal
(supra), Prabir Sinha (supra), East Coast Railway (supra) and
Rajender Bansal (supra) are distinguishable on facts.
18. Mr. Chatterjee, learned advocate appearing for North
DPSC in WP-1 and WP-II submits that the period of validity of
panel has been specified in the Rules itself. When the statute lays
down such period of validity, the same cannot stand extended on
a purported plea of pendency of proceedings. The approval of the
panel vide memo dated 17th June, 2015 was consciously
restricted to one year and the same having expired on 16th June,
2016, the petitioners cannot claim appointment by filing writ
petitions thereafter. The vacancies have already been filled up
and there is no scope to accommodate the petitioners. Reliance
has been placed upon a judgment delivered in the case of Vijoy
Kumar Pandey versus Arvind Kumar Rai & Others, reported in
(2013) 11 SCC 611.
19. He argues that the subject-matter of challenge in the
writ petitions W.P. No.30510 (W) of 2014 (Rafikul Mondal vs.
State of West Bengal and others) and W.P. No.30744 (W) of 2014
(Mithun Aich & Others vs. State of West Bengal and Others) was
restricted to the validity of the GO dated 21st June, 2012. There
had been no adjudication of the issues as regards provisional
approval and extension of life of panel. A decision cannot be
relied upon in support of a proposition that it did not decide.
20. He submits that upon amendment of the rules, the
procedure of Teacher Eligibility Test (in short, TET) was
introduced and the West Bengal Board of Primary Education (in
short, the said Board) was empowered to recruit the primary
teachers and as such the said Board is a necessary party and the
writ petitions cannot be decided in its absence.
21. Mr. Bari, learned advocate appearing for Malda, DPSC
in WP-III and WP-IV adopts the submissions of the learned
Advocate General.
22. In reply, Mr. Gupta denies and disputes the contention
of Mr. Dutta and Mr. Chatterjee and submits that the order
passed by the Hon'ble Supreme Court cannot be strictly
described to be an order under Order 41 Rule 25 of CPC and that
in exceptional cases the Court may exercise the power of remand
dehors Rule 23 -23A of order 41. In the event this Court holds
that the life of the panel had continued till the disposal of the
pending proceedings, it cannot be said that the order dated 22nd
July, 2019 restricts this Court from issuing consequential
directions. An issue is framed and decided by the Court to come
to a conclusion as to whether the relief can be granted. The
judgment dated 22nd July, 2019 cannot be interpreted as to have
relegated an issue only for academic purpose. In view thereof, the
judgments delivered in the cases of P. Purushottam Reddy (Supra)
and Mal Singh (Supra) have no manner of application in the
present cases.
23. He argues that the judgment in the case of Kalimuddin
(supra) has dealt with a situation where a panel had admittedly
lost its life. The same has no application when the Court is yet to
decide the issue as to whether the life of a panel continues during
pendency of Court proceedings. It is also not a case that the
petitioners are praying for any direction from the Court towards
extension of the life of a panel which has expired.
24. Mr. Dhar, in reply agrees that the judgment of the
Hon'ble Supreme Court is an order of limited remand. However,
the direction had been to consider the petitioners' claim within
the contour of the limited defence taken by the State. In view
thereof, the State cannot agitate any further issue save and
except its limited defence. Thus, the petitioners' claim cannot be
frustrated on a purported plea of lack of vacancies.
25. By the judgment dated 12th October, 2018, the Appeal
Court allowed all applications connected with the appeals
including the application for addition of parties being CAN 3206
of 2018 filed in connection with the appeal arising out of the
order passed in WP-I and the applications for addition of parties
being CAN 4579 of 2018 and CAN 6073 of 2018 filed in
connection with the appeal arising out of the order passed in WP-
IV. Office is directed to incorporate the names of the said
applicants in the respective writ petitions being WP-I and WP-IV.
The applications for addition of parties, filed after the order
passed by the Appeal Court, being CAN 5135 of 2019, CAN 6812
of 2019, CAN 7981 of 2019, CAN 12566 of 2019, CAN 12567 of
2019 in connection with WP-I and applications being CAN 1256
of 2019, CAN 10542 of 2019, CAN 12237 of 2019, CAN 4411 of
2020, CAN 4412 of 2020, CAN 06 of 2020 and CAN 07 of 2020 in
connection with WP-II and applications being CAN 615 of 2020,
CAN 2941 of 2020 in connection with WP-IV, cannot be
entertained at this stage after the matter has been remitted to
this Court by the Hon'ble Supreme Court. The mere fact that a
fresh litigation can be avoided is no ground to invoke the power
under the rule. They are neither necessary nor proper parties and
their presence is not required for adjudication of the present
matter and accordingly the said applications are dismissed. The
other applications filed in connection with the writ petitions inter
alia praying for early hearing, are also disposed of.
26. A supplementary affidavit has been filed by the
petitioners in WP-IV annexing a letter dated 27th August, 2018
issued on behalf of the Malda, DPSC in reply to an application
filed under the Right to Information Act, 2005 wherefrom it
appears that 530 posts of primary teachers, as on 24th July, 2018
are vacant. Reliance has also been placed upon a memo dated 1st
December, 2020 issued on behalf of the Malda, DPSC reporting
to the Deputy Director (Rural Primary) that existing vacancies in
the said district, as on 1st November, 2020, is 1492. The number
of existing vacancies in the year 2019 in the district of North 24
Parganas has been reported to be approximately 1100 vide memo
dated 21st May, 2019.
27. Affidavits-in-opposition have been filed on behalf of the
State in WP-II and WP-IV. North 24 Parganas, DPSC has filed
affidavits- in -opposition in WP-I and WP-II and Malda, DPSC has
filed affidavit-in-opposition in WP-III. The petitioners have replied
to all the affidavits-in-opposition. At page 64 of the Council's
affidavit-in-opposition in WP-I, a letter dated 7th August, 2017
issued by the respondent no. 6 therein to the respondent no.3
has been annexed wherefrom it appears that the Council itself
was surprised as to how the West Bengal Board Primary
Education had published the advertisement notification dated
26th September, 2016 clubbing the vacancies earmarked for the
primary teacher recruitment of 2009. The memo dated 27 th
September, 2016 issued by the respondent no.7 to the
respondent no.2 in WP-IV, as annexed at page 19 of the reply
clearly reveals that the vacancies in the district of Malda
pertaining to the primary teacher recruitment of 2009 were also
clubbed and advertised in the subsequent recruitment process.
No reason is forthcoming as to why the new recruitment process,
clubbing the vacancies pertaining to the recruitment process of
2009, was initiated without completing the recruitment process
of 2009, in accordance with the recruitment rules operating at
the time of initiation of said process.
28. The operative part of the judgment dated 22nd July,
2019 delivered by the Hon'ble Supreme Court runs as follows:
"On a perusal of the impugned order, we find that the
Division Bench in an elaborate judgment while remitting the matter
to the learned Single Judge has sought to raise 12 questions of law
in para 30, which in our view, were not called for. We are thus
enable to even sustain the impugned order.
We are of the view that the matter ought to be remitted to the
learned Single Judge within the contour of the limited defence
raised by the respondents before us i.e. whether the life of the
panel continues, specially as there were earlier interdict of the
court which was subsequently dissolved. We may also note that
the respondents in their wisdom decided to hold the examination
pending those proceedings and are now seeking to contend as if
the life of the panel elapsed by reason of the time span in view of
the matters pending in the court. We however, say no more.
We thus remit the matter to the learned Single Judge to
decide it on merits within the aforesaid contour.
The matter has been pending for many years and while we
would loathe to either direct or request the High Court for early
disposal of the matter, we do believe that this is an exceptional
case where we can request the learned single judge of the High
Court to consider the matter as expeditiously as possible to put an
end to this long drawn litigation where the appellants are waiting
for their jobs.
The appeal is allowed in the aforesaid terms. Parties to bear
their own costs."
29. The contents of the judgment dated 22nd July, 2019
need to be considered together and not in isolation. A particular
clause cannot be taken up and highlighted. This Court has been
directed to decide the matter on merits within the contour of the
limited defence raised by the State. A decision on merits is a
decision which conclusively settles the dispute among the
parties. Such a decision does not merely mean the conclusion - it
embraces within its fold the reasons which form the basis for
arriving at the conclusions. Thus, the contention of Mr. Dutta
that in view of the judgment dated 22nd July, 2019, this Court
cannot decide the issues of publication of panel and
appointment, as prayed for in the writ petitions, is not acceptable
and the judgments delivered in the cases of P. Purushottam
Reddy (supra) and Mal Singh (supra) have no manner of
application.
30. Indisputably, the recruitment process of 2009 was not
cancelled. Only the written examination, initially held under the
said recruitment process, was cancelled and a de novo
examination was directed to be held and the final panel was also
directed to be published vide GO dated 21st June, 2012. The
petitioners succeeded in such de novo examination and were
called for interview. Panels were prepared and submitted by the
Councils in terms of the GO dated 21st June, 2012. By the memo
dated 11th June, 2015 the panel in the district of Malda was
approved provisionally for one year and it was also indicated that
such approval shall abide by the result of the final judgment of
the Hon'ble Division Bench, High Court, Calcutta in W.P. No.
31563 (W) of 2014 (Himangshu Mondal & Others versus State of
West Bengal & Others). The said writ petition was pertaining to
the district of Howrah and the interim order passed in the same
restraining the Howrah DPSC from making any appointment was
set aside in appeal and the writ petition was dismissed on 23rd
June, 2017. The panel prepared in the district of North 24
Parganas was approved provisionally for one year vide memo
dated 17th June, 2015 and it was also indicated that such
approval shall abide by the leave and result of the final order and
judgment of the Hon'ble Division Bench, High Court, Calcutta in
the Court cases W.P. No.30510(W) of 2014 (Rafikul Mondal -Vs-
State of West Bengal and Others) and W.P. No.30744 (W) of 2014
(Mithun Aich & Others -Vs- State of West Bengal and Others). The
said writ petitions were dismissed on 17th May, 2017 and 23rd
June, 2017 respectively. It is only thereafter life stood infused
into the panels. The present writ petitions have been preferred
within a period of one year from the date of disposal of earlier
pending proceedings and that as such it cannot be said that the
writ petitions have been preferred after expiry of the life of the
panel.
31. No doubt, it is true, that mere selection does not give
any vested right to the selected candidates to be appointed.
However, the employer must satisfy the Court as to why it did not
resort to appoint the empanelled candidates. Just because
discretion is vested in the authority, it does not mean that such
discretion can be exercised arbitrarily. The Appeal Court passed
the interim direction on 18th September, 2013 intercepting the
recruitment process of 2009. The connected writ petitions were
dismissed on 17th May, 2017 and 23rd June, 2017. In the midst
thereof, the recruitment rules were amended in the year 2012
and an advertisement under the amended rules was published on
26th September, 2016 for the vacancies including the vacancies
earmarked for the recruitment process of 2009 though at that
juncture as per the memoranda dated 11th June, 2015 and 17th
June, 2015 the panels prepared as per recruitment process of
2009 stood provisionally approved. From the averments made in
WP-IV it would appear that a writ petition was even preferred by
some candidates who participated in the recruitment process of
2009 being W.P. No.2620 (W) of 2017 (Tapan Singha & Others
versus State of West Bengal & Others) seeking a declaration that
upon issuing the notification dated 26th September, 2016, the
said Board has not merged/eclipsed the quantum of existing
vacancies in the district of Malda with the quantum of vacancies
as notified on 5th August, 2009. The said writ petition was
admitted with a direction towards exchange of affidavits. In WP-
IV, three letters dated 22nd June, 2017, 28th June, 2017 and 29th
June, 2017 issued by the Chairman, Malda DPSC to the
Directorate of School Education have been annexed at pages 58,
59 and 60 wherefrom it appears that the Chairman of the
Council was repeatedly seeking permission for publishing the
panel of 2009-10.
32. The amendment of the rules was brought into effect on
13th August, 2012, i.e., even prior to conclusion of the de novo
written examinations conducted in terms of the said GO. It is
only after the de novo examinations were held, the authorities
decided to initiate a new recruitment process upon clubbing the
vacancies with the sole intent to frustrate the right of the
candidates to be considered for appointment. The petitioners
cannot be deprived of that limited right due to prospective
amendment of rules. They would be permanently debarred from
participating in any selection process for appointment to the post
of primary teacher in view of their age.
33. It was never disclosed by the authorities that they have
clubbed such vacancies and it was a blow below the belt to the
petitioners herein and similarly placed candidates. Thus, in a
clandestine manner, the authorities have ousted the said
candidates from the zone of consideration for appointment.
Fairness and reasonableness are paramount issues for
administrative action. As a model employer the State Government
must conduct itself with high probity and candour and ensure
that its employees do not succumb to any discriminatory practice
in the procedural rigmarole. The infirmities and illegalities
perpetrated by the respondents cannot be allowed to earn
immunity and the wrong committed has to be redressed by the
State and the statutory authorities.
34. Even after amendment of the rules, the Council
remained the authority to determine the vacancies. Its authority
to appoint primary teachers has also not been taken away upon
amendment of the rules. The West Bengal Board of Primary
Education had no role to play in respect of the recruitment
process of 2009 and as such for deciding the lis, the Board's
presence is not a necessary.
35. Rules 10 and 13 of the 2001 Rules do not speak of any
provisional approval and the said phrase has not been defined
under the said rules. The rigors of the said rules are applicable in
normal circumstances and not in the present cases, where due to
detection of serious irregularities, State took a conscious decision
vide GO dated 21st June, 2012 to cancel the first written
examinations and to conduct de novo written examinations. After
conclusion of such written examination followed by interview and
preparation of panel, the recruitment process was discontinued
in the districts of North 24 Parganas and Malda, without any
reason. However, in terms of the said GO, fresh written
examinations were conducted by the Howrah, DPSC and the
selected candidates have been offered appointment. Pertinently,
the candidates so appointed do not necessarily belong to the
category of trained candidates because training qualification was
not an essential qualification in terms of the 2001 Rules as it
existed in 2009 when the process for recruitment commenced
initially. Such shifting of stands by the State in elbowing out the
empanelled candidates of the recruitment process of 2009 in the
districts of North 24 Parganas and Malda lacks bona fide and
smacks of arbitrariness.
36. The decision in Md. Kalimuddin (supra) is
distinguishable because in the present case, the recruitment
process of 2009 as per the said Rules of 2001 was completed and
appointments were given by the Howrah, DPSC whereas a
different stand was taken by the respondents in the districts of
North 24 Parganas and Malda. Viewed in the light of the same
and on the touchstone of Article 14 such action is arbitrary and
unreasonable. In the case of Nadia District Primary School Council
(supra), the petitioners approached the Court nine years after
expiry of the panel and is thus clearly distinguishable on facts.
37. Exceptional circumstances persuaded the Government
to take a decision to conduct de novo examination. From the
memoranda dated 11th June, 2015/17th June, 2015, the
petitioners came to learn that panels were submitted by the
Councils. However, no panel, as defined under the amended
rules, was published. Litigation pertaining to the recruitment
process of 2009 has commenced in the year 2012 and is yet to
attain finality. In the midst thereof, a period of eight years has
elapsed. In such exceptional circumstances, Court is required to
step in and issue necessary direction towards disclosure of the
names of the candidates who have been empanelled otherwise
the said names would continue to remain in the secrete recesses
of a chamber to which the candidates have no access. The
principle of natural justice implies a duty to act fairly and such
rule cannot be sacrificed at the altar of administrative
convenience and celerity. Publication of the panels is, thus,
essential in the interest of transparency and probity.
38. The shackles towards final approval of the panels stood
obliterated only after the Court proceedings, as referred to in the
memoranda dated 11th June, 2015 and 17th June, 2015, were
brought to an end on 17th May, 2017 and 23rd June, 2017. The
life of the panels continued in view of the interdict of the Court
which stood subsequently dissolved. The said period during
which the panels could not be worked out owing to pendency of
the writ petitions should be excluded for computing the life of the
panels.
39. In the GO dated 21st June, 2012 there was a categoric
direction towards publication of the panel, after conducting the
de novo examination, within 90 days from the date of issuance of
the said GO. The validity of the said GO having been upheld by
this Court, the respondents cannot evade their obligation to
publish the panels.
40. Accordingly, this Court directs the North 24 Parganas,
DPSC and the Malda, DPSC to publish the panels, as
provisionally approved vide memoranda dated 11th June,
2015/17th June, 2015, in their respective websites within a
period of two weeks from the date of communication of this order.
41. Vacancies arise every year due to retirement/
resignation/ removal or dismissal/ death of appointees. The 2001
Rules also provide for sanction of additional posts of primary
teachers due to increase in roll strength in primary schools of the
district or the sub-division. Having regard to the peculiar facts
and circumstances that have emerged and as the respondents
are to be blamed for having denied appointment to the
candidates empanelled, they must take necessary steps and
ensure that the empanelled candidates are appointed in the
existing vacancies and in the vacancies arising in immediate
future. The respondents including the State respondents shall
also take steps towards creation of new posts to accommodate
and appoint the empanelled candidates.
42. The above exercise towards determination and
creation of vacancies shall be completed by the respondents
including the State respondents within a period of two weeks
from the date of publication of panels.
43. Within a period of two weeks thereafter the
authorities of the North 24 Parganas, DPSC and Malda, DPSC
shall take necessary steps for issuing appointment letters to the
empanelled candidates, in accordance with law.
44. With the above observations and directions, the writ
petitions are disposed of.
45. There shall, however, be no order as to costs.
46. Urgent Photostat certified copy of this judgment, if
applied for, be given to the parties, as expeditiously as possible,
upon compliance with the necessary formalities in this regard.
(Tapabrata Chakraborty, J.)
