Dr. Subhajit Nandy vs The State Of West Bengal & Ors
2021 Latest Caselaw 5639 Cal

     Form No. J(2)

                   IN THE HIGH COURT AT CALCUTTA
                  CONSTITUTIONAL WRIT JURISDICTION
                           APPELLATE SIDE


     Present:
     The Hon'ble Justice Abhijit Gangopadhyay

                           W.P.A. 17656 of 2021


                             Dr. Subhajit Nandy
                                      -vs-
                     The State of West Bengal & Ors.


     For the Petitioner                      : Mr. Samim Ahmed,

     For the Respondent Nos.9 to 12 : Mr. Subhabrata Datta,

Mr. Manoj Kumar Ghosh, Mr. Ananya Saha

For the Respondent No.13 : Mr. Anjan Bhattacharya, Mr. Bratin Kumar Dey

For the State : Mr. T. M. Siddiqui, Mr. Nilotpal Chatterjee

Heard on: 10.11.2021

Judgment on: 10.11.2021

Abhijit Gangopadhyay, J.:

1. This matter has been taken up on the ground of urgency bringing

it in the supplementary list today.

2. The petitioner has challenged an order passed by West Bengal

Central School Service Commission (Commission, in short) dated

01.10.2021 (Annexure P-23) of the writ application (at page-145).

3. The petitioner has submitted that he took part in the counseling

for the 1st SLST, 2017 for the post of Headmasters and he refused

to select any school by giving a declaration on 2nd July, 2019 (at

page 41).

4. Subsequently, he wrote a letter to the Commission dated

19.12.2019 (at page 42) stating inter alia that "I have come to

know of a number of Schools in and around my residential area

where the post of Headmaster is still vacant".

5. On the basis of this letter, according to the petitioner, he was

issued a recommendation letter dated 18.02.2021 by the

Commission (at page- 43). The recommendation was for the post

of Headmaster in Andrew's High School in Kolkata which is a

higher secondary school. Consequently a letter of appointment

was issued by the West Bengal Board of Secondary Education

(Board in short) on 19th July, 2021 and the petitioner went to join

the school on 22nd July, 2021 but he was not allowed to join.

6. In the meantime much water has flown through different rivers

of this country and now a writ application has been filed against

the impugned order dated 01.10.2021 cancelling the

recommendation made in favour of the petitioner by the

Commission.

7. The present controversy also is, after canceling the said

recommendation used in favour of the petitioner another

recommendation has been made to the said post of Headmaster

in the said school by the Commission in favour of some other

candidate who will join the school within a day or two which

makes this matter an urgent one.

8. The petitioner submits that the Commission has cancelled the

recommendation in his favour on twofold grounds. One is on the

basis of Rule 16(5) of the West Bengal School Service Commission

(Selection for Appointment to the Posts of Headmaster/

Headmistress in Secondary or Higher Secondary and Junior High

Schools) Rules, 2016 which says that the Central Commission

may do away with his/her name (i.e. the name of the person who

has refused to select any vacancy) from the panel and he will be

deemed to have been depanelled and recommend the name of the

candidate from the waiting list to the Regional Commission for

counseling and final recommendation, strictly within the validity

period of the panel and waiting list. The Commission has now

exercised its discretion and cancelled the recommendation on

01.10.2021 as the petitioner, as a candidate, refused to accept

the appointment though it recommended his name for the post of

Headmaster of Andrew's school, on 18.02.2021.

9. The petitioner's case is that the above rule being Rule 16(5) is not

applicable to him as this particular vacancy in Andrew's School

was not shown to him at the time of counseling. Had it been

shown to him he would have selected that vacancy.

10. But I find no such specific allegation in the letter of the petitioner

dated 19.12.2019 (at page 42 of the application).

From the petitioner's letter at page 42 of the writ

application, I find that the petitioner has said that he came to

know a number of schools in and around his residential area

where the posts of Headmaster were still vacant. It was never his

allegation that despite having the vacancy in the Andrew's School

it was not shown to him which was illegal. It is to be kept in mind

that the petitioner himself is a teacher of this Andrew's School. In

this respect the petitioner has submitted that though he has not

specifically made such allegation, but it is to be read in his letter

as he is not a legally trained person.

(Emphasis mined)

11. I am not ready to accept such submission. If a person has an

allegation against any other person or authority and if he wants

to state it in writing the allegation must have been recorded in

his/her letter or application etc. If it is not recorded specifically,

it shall be presumed that he/she did not have any such

allegation and any subsequent allegation would be held as

afterthought or a result of ill design. Therefore, I find that School

Service Commission is not incorrect in holding in the impugned

order that the name of the petitioner was recommended

inadvertently. The Commission under the law could not have

recommended his name again after his refusal in writing.

12. The Commission has shown another reason which is concerned

with Rule 5 of the above mentioned Rules known as "Additional

Essential Qualification of Candidate" which relates to the medium

of instruction of the school. When the vacancy list was published,

the petitioner has demonstrated (at page 45) that the school was

shown as a Bengali Medium school. Subsequently, when the

Managing Committee took a resolution dated 4th August, 2021

(which is at page 143 of the writ application) it stated that - it is

an English medium school and not a Bengali medium school. I

wonder why the school was sleeping over the matter as to the

medium of instruction for nearly two years. However, this

question as to medium of instruction could not stand in the way

of recommendation of the petitioner as Rule 5 of the said Rules

i.e. "Additional Essential Qualification of the Candidate" shows

that if a person has English (or other language mentioned in the

said Rule) as his first, second or third language, he can be eligible

for the post of Head Master in an English Medium (or other

schools having such language as medium of instruction of a

school). Here the petitioner, who is a doctorate, has submitted

that he had English althroughout as second language and

therefore, the second reason by the Commission as to language

as a bar for the petitioner from recommending his name in an

English medium school, is not correct.

13. The new candidate, I am told, who has been recommended after

the withdrawal of the petitioner's recommendation by the

impugned order dated 01.10.2021 has not joined the school.

Here, I find a surprising fact; the panel was published in the

year 2019. Under Rule 16(5)(d) of the abovementioned Rules,

2016, the Commission can recommend the name of a candidate

from the panel/waiting list strictly within the validity period of

the panel/waiting list.

Is the waiting list published along with the panel valid in

the last part of 2021?

The Commission should revisit the recommendation of the

new candidate in the said vacancy in Andrew's School to see as to

whether the new recommendation (in the refused vacancy by the

petitioner) has been recommended from a live panel/waiting list

and not from an expired panel/waiting list.

14. The petitioner is directed to intimate this order, to the

commission and the Board to see as to the recommendation from

a live panel/waitlist.

(Emphasis mine)

15. In the circumstances the writ application is dismissed without

any cost.

(Abhijit Gangopadhyay, J.) 01(SL)/Ct.17 rkd