Tapas Ghosh vs The State Of West Bengal And Others
2022 Latest Caselaw 4136 Cal

July 12, 2022
Sl. No. 8
Court No.1
PA - RB


                                          WPA (P) 203 of 2022
                                                with
                                           CAN 1 of 2022

                                             Tapas Ghosh
                                                 vs.
                                 The State of West Bengal and others

                     Mr. Kumar Jyoti Tewari,
                     Mr. Tarunjyoti Tewari,
                     Mr. Aniruddha Tewari, Advocates
                                                            ... for the petitioner

                     Mr. Phiroze Edulji, Advocate
                                                                       ... for the ED

                     Mr.   S. N. Mookherjee, ld. AG
                     Mr.   Anirban Ray, ld. GP
                     Mr.   Md. Ghalib,
                     Mr.   Sandip Dasgupta,
                     Mr.   Abhishek Prasad
                     Mr.   Saaqib Siddiqui,
                     Mr.   Aviroop Mitra, Advocates
                                                                     ... for the State

                     Mr. Billwadal Bhattacharyya, ld. Asst. Solicitor General
                                                                ... for the CBI

                     Mr. Jayanta Narayan Chatterjee,
                     Mr. Sirshendu Sinha Roy,
                     Ms. Jayashree Patra, Advocates
                                       ... for the applicant in CAN 1 of 2022


                1.         By way of this public interest petition, petitioner, a

                social worker and stated to be a public spirited person

                attached to several social organizations and a resident of

                West       Bengal   has   made    allegation    of    irregularities,

                illegalities and corruption in the recruitment of Assistant

                Teacher in Primary Schools of the State on the basis of

                Teacher Eligibility Test (TET), 2014
                          2
                                           WPA (P) 203 of 2022




2.    A preliminary objection has been raised by the

learned Advocate General by filing affidavit on behalf of

the respondent no. 1 questioning the maintainability of

the writ petition.

3. Learned Advocate General, pressing the

preliminary objection, has submitted that the matter

relates to the recruitment process of 2016-17 and there is

a delay of five years in filing the present PIL and that

question of delay is relevant even in PIL, therefore,

petition needs to be dismissed on this ground. In support

of his submission, he has placed reliance upon judgment

of the Hon'ble Supreme Court in the matter of Bombay

Dyeing & Mfg. Co. Ltd. vs Bombay Environmental

Action Group and Others reported in (2006) 3 SCC 434

and judgment of the Bombay High Court in Public

Interest Litigation No. 68 of 2006 in the matter of

Breach Candy Residents Association and Others vs.

Municipal Corporation of Greater Mumbai and Others.

He has further submitted that in WPA 265 of 2019, same

issue was raised and the petition was dismissed,

therefore, it cannot be reagitated again. He has also

submitted that the petitioner has no interest in primary

education, therefore, he has no locus. He has also

submitted that the order passed by another Division

Bench of this Court on 17th of January, 2022 in MAT 899

of 2021 does not suffer from any jurisdictional error

because the matter was assigned to the concerned Bench.

WPA (P) 203 of 2022

He has also objected to filing the supplementary affidavit

and has submitted that petitioner cannot be permitted to

raise new plea in supplementary affidavit.

4. Learned counsel for the respondent no. 7 has also

opposed the petition by submitting that the prayers made

in the petitions do not survive.

5. Opposing the preliminary objection, learned

Counsel for the petitioner has submitted that the

appointment on the basis of TET, 2014 are still going on,

therefore, there is no delay and that the learned Single

Judge, finding the gross irregularities, had already

entertained the writ petition and referred the matter to

the Hon'ble Chief Justice treating it to be PIL, therefore,

another Bench of this Court which had no roster to hear

PIL could not have dismissed the petition which was

treated as PIL. He has also submitted that the

appointments made are non est and void ab initio,

therefore, they have no right to continue and that it is a

very big scam which needs to be enquired into by this

Court. He has also referred to various documents

enclosed with the petition and supplementary affidavit in

support of his submission that the issue raised is a live

issue and it is not a belated petition.

6. We have heard the learned counsel for the parties

on the preliminary objection.

7. In the writ petition, a serious allegation has been

made that in the Teacher Eligibility Test (TET), 2014

WPA (P) 203 of 2022

Examination, no merit list and list of empanelled

candidates was published and those candidates who did

not even participate or had not qualified TET, 2014 have

been appointed as primary teacher and the qualified

candidates have been left out. An incident has been

mentioned wherein on 30th of April, 2022, one of the

Member of Parliament had made statement before the

media pointing out the irregularities in TET panel and

also about the complaint alleged against one of the MLA

of the ruling party for taking crores of rupees from job

aspirants with the promise to give government jobs in

schools and arrest of one of the person in that incident. It

is further alleged that one of the leaders of the ruling

party had stated in public meeting that only the members

of the ruling party will get jobs. Further allegation on

record is that in TET, 2014, 42,897 candidates were

stated to have been selected till date but no merit list of

42,897 candidates was ever published by the Board by

disclosing the numbers obtained in written, in interview

nor any reserved category-wise list was published. It is

alleged that candidates were informed through SMS

without publishing the merit list. It is also alleged that,

many of the candidates have not been issued TET, 2014

qualified certificates.

8. West Bengal Primary School Teachers Recruitment

Rules, 2001 were framed exercising the powers under the

West Bengal Primary Education Act, 1973 for

WPA (P) 203 of 2022

appointment as primary teacher. These Rules were

amended vide notification published on 13th of August,

2012 and amended Rule provides that persons who will

score 60 % or above in the TET Examination shall be

considered as TET passed provided relaxation up to 5 %

marks shall be allowed to the candidates belonging to the

reserved categories such as SC/ST/PH/EC. The amended

Rules further provides for the manner of awarding marks

under different heads in TET. The amended Rules

provided for TET qualified candidates to appear in viva-

voce/interview and their overall assessment based upon

the marks prescribed under different heads such as

academic performance, training, TET, extra-curricular

activities, viva-voce, interview, etc. and thereafter,

Selection Committee is required to prepare a district-wise

merit list of unreserved and reserved category candidates

in the manner prescribed therein for appointment to the

post of Primary School Teacher.

9. New Rules, namely, the West Bengal Primary

School Teachers Recruitment Rules, 2016 were notified

on 2nd of March, 2016. Under this new Rules also,

passing of TET is one of the essential qualification and

the procedure of selection also provides for taking into

account the percentage of marks obtained by a candidate

in the TET Examination. On the basis of TET, 2014

Examination, appointment notification for Primary

Teachers inviting applications from TET, 2014 qualified

WPA (P) 203 of 2022

candidates was published on 26th of September, 2016. It

is alleged that 42,897 candidates have been appointed as

Assistant Teachers without publishing any transparent

merit list.

10. Record reflects that WPA 265 of 2019 in the

matter of Swadesh Das vs. State of West Bengal and

Others was filed earlier, wherein an issue was raised that

12 candidates were given appointment who were not

having requisite documents relating to TET, 2014

qualification and participation in the recruitment process

of TET. Learned Single Judge, taking note of this fact, by

order dated 27th of August, 2021 had converted the Writ

Petition No. 265 of 2019 into PIL and directed for placing

the matter before the then Hon'ble Chief Justice (Acting).

The Division Bench of then Hon'ble Chief Justice (Acting)

had taken up the petition on 9th of September, 2021 in

WPA 265 of 2019, had directed the learned counsel for

the Board to produce the entire list of selected candidates

as Assistant Teachers in the Primary School in the State

of West Bengal.

11. On 22nd of September, 2021, the Board had

produced 20 envelopes containing the record pertaining

to selection of 42,000 candidates for the post of Assistant

Teachers in Primary School in WPA 265of 2019 and those

envelopes were taken on record by the Division Bench

headed by the then Hon'ble Chief Justice (Acting) and by

order dated 15th of November, 2021, counsel for the

WPA (P) 203 of 2022

petitioner was permitted to inspect the record in terms of

the earlier order by this Division Bench.

12. Meanwhile, the order of the learned Single Judge

dated 27th of August, 2021 passed in WPA 265 of 2019

was challenged in appeal in MAT 899 of 2021. The

Division Bench No. 4, by order dated 17th of January,

2022, not only disposed of the appeal setting aside the

order dated 27th of August, 2021 but also dismissed WPA

265 of 2019 which was being regularly taken up by the

DB No. 1, i.e., the Bench of the Hon'ble Chief Justice. The

DB No. 4, while disposing of WPA 265 of 2019, held as

under:

"Both the parties uniformly submitted before us that there is no purpose of keeping the Public Interest Litigation pending as the grievance of the petitioner is sufficiently been taken care of in terms of the order passed in the instant appeal and, therefore, this Court can dispose of the said writ- petition as well.

The office is directed to tag WPA 265 of 2019 with the instant appeal. We further finds that any allegd infraction does not invite the Public Interest Litigation to be instituted. There must be a fundamental element for maintaining the Public Interest Litigation.

Since we do not find any element of public interest, the order impugned dated August 27, 2021 cannot be withstand. The same is hereby set aside. The instant appeal is accordingly disposed of.

In view of the findings recorded hereinabove, the writ-petition being WPA 265 of 2021 is also disposed of.

WPA (P) 203 of 2022

Office is directed to record disposal of the writ-petition being WPA 265 of 2021 as well in terms of this order.

(Harish Tandon, J.)

(Rabindranath Samanta, J)"

13. In view of the above development, when the WPA

265 of 2019 came up before the DB No. 1 on 15th of

March, 2022, no one appeared for the petitioner and the

petition was dismissed in default.

14. The learned counsel for the petitioner, placing

reliance upon the judgments of the Hon'ble Supreme

Court in the matter of State of Rajasthan vs. Prakash

Chand and Others reported in (1998) 1 SCC 1, in the

matter of Union of India vs. Alapan Bandyopadhyay

reported in (2022) 3 SCC 133, in the matter of Jagmittar

Sain Bhagat and Others vs. Director, Health Services,

Haryana and Others reported in (2013) 10 SCC 136 and

in the matter of Campaign For Judicial Accountability

and Reforms vs. Union of India and Another reported

in (2018) 1 SCC 196, has submitted that the order

passed by the Division Bench No. 4 of this Court dated

17th of January, 2022 in MAT 899 of 2021 is non est and

void as the said Bench was not having the jurisdiction to

hear the PIL and that WPA 265 of 2019 was not listed

before that Bench but it was listed and being heard by

the Division Bench No. 1 of the Hon'ble Chief Justice

WPA (P) 203 of 2022

(Acting) which had the roster to hear the public interest

petition, therefore, another Division Bench could not have

dismissed WPA 265 of 2019 even without having the

record of the WPA and even without listing the WPA.

15. The record reflects that MAT 899 of 2021 was

assigned as per roster to the Division Bench No. 4 but

WPA 265 of 2019 was not assigned to that Bench. WPA

265 of 2019 was being listed and taken up regularly by

the Bench of the Hon'ble Chief Justice (Acting) which had

the roster to hear the public interest petition. Hence,

submission of learned counsel for the petitioner is not

sans substance. Hence, on the basis of dismissal of WPA

265 of 2019, present public interest petition cannot be

held to be not maintainable.

16. It is also worth noting that the entire list of

candidates pertaining to selection of about 42,000

candidates for the Assistant Teachers in Primary Schools

produced as per the direction of the DB No.1 is already

available in WPA 265 of 2019, the record of which has

been attached to this petition.

17. It is also worth mentioning that meanwhile,

another writ petition being WPA 7907 of 2019 in the

matter of Ramesh Malik and Others vs. The State of West

Bengal and Others was filed before the learned Single

Bench raising the issue that some persons (whose names

were disclosed before the learned Single Bench) were

given appointment though they had not qualified TET,

WPA (P) 203 of 2022

2014. Learned Single Judge by the order dated 13th of

June, 2022 in WPA 7907 of 2019 has found that 269

such candidates were given illegal appointment by a

queer method unknown to law and has directed the CBI

to start investigation by holding as under:

"8. In view of the illegality committed in respect of the second panel (termed as Additional Panel, by the Secretary of the Board), which is wholly illegal and giving illegal appointment to 269 candidates by a queer method unknown to law, I direct the Central Bureau of Investigation ('CBI', for short) to start investigation by registering a case immediately against the Board and start interrogating the President of the West Bengal Board of Primary Education, Dr. Manik Bhattacharya and the Secretary of the said Board Dr. Ratna Chakraborty Bagchi, which shall start from today itself. I direct the petitioners to add Dr. Manik Bhattacharya, the President of the West Bengal Board of Primary Education and Dr. Ratna Chakraborty Bagchi, the Secretary of the Board as party respondents and they are to go to the CBI office at Nizam Palace by 5:30 p.m. today to face interrogation.

9. It is made clear that if they do not co- operate with CBI, CBI shall have every liberty to interrogate them after taking them into custody.

10. CBI shall contact NIC immediately to seize the database of the TET, 2014 candidates published by the West Bengal Board of Primary Education by tomorrow (14.06.2022) and to submit a short report in this court about the registration of the case, initiation of the interrogation of the two persons added today in this proceeding (named above) and taking into custody of the database of the TET, 2014 candidates day after tomorrow at 2 p.m.

11. If CBI feels that in respect of this mater an independent case is not required to be registered apart from the other case involving the Board which

WPA (P) 203 of 2022

has already been registered, as has been told by the petitioners, CBI need not register a new case."

18. The above order of the learned Single Judge is the

subject matter of challenge in appeal before the Division

Bench.

19. The writ petitions have been filed by individual

candidates highlighting the malpractices in appointment

whereas in the present PIL, entire process has been

questioned.

20. It is also worth noting that the supplementary

affidavit filed by the petitioner indicates that the

appointments are being made on the basis of the TET,

2014 results even in the year 2021 and 2022.

21. In the above background, if the petitioner's

allegation is found to be correct and if it is established

that the Primary School Teachers have been appointed

without having the requisite eligibility qualification, then

there will be a serious question-mark on their

appointment and on the issue of continuance in service.

Hon'ble Supreme Court in the matter of Pramod Kumar

vs. U.P. Secondary Education Services Commission

and Others reported in (2008) 7 SCC 153 has held that

illegality of lack of essential qualification is incurable and

for want of it, initial appointment itself would be a nullity.

Any appointment in violation of the qualification

prescribed in the statute would be a nullity. Hon'ble

WPA (P) 203 of 2022

Supreme Court in the matter of National Fertilizers Ltd.

and Others vs. Somvir Singh reported in (2006) 5 SCC

493 by taking note of the earlier judgment on the point

has held that if the appointment is made without

following the rules, the same being a nullity, the question

of confirming the employees would not arise. In the

matter of State of Bihar and Others vs. Kirti Narayan

Prasad reported in 2018 SCC OnLine SC 2615, in a case

where the petitioners were appointed by illegal order

made by the Civil Surgeon-cum-Chief Medical Officer, the

Hon'ble Court had agreed with the finding of the State

Committee holding the appointment to be illegal and void

ab initio and had further opined that since the

appointments were ab initio void, they cannot be said to

be civil servants of the State. Thus, if it is found that on

the basis of TET, 2014, the appointments have been

made contrary to rules and without fulfilling the

minimum eligibility condition, then those candidates may

not have any right to continue their appointments being

void ab initio.

22. That apart, it is also worth noting that the matter

relates to the appointment of Primary Teachers and if

persons without minimum prescribed eligibility

conditions and lacking merit are appointed, then the

interest of the primary school students, who are future of

the nation, will suffer. Hence, the allegation made by the

WPA (P) 203 of 2022

petitioner in the writ petition cannot be taken lightly and

ignored on the technical plea.

23. So far as the objection of the petitioner about the

impermissibility to raise new plea by way of

supplementary affidavit is concerned, we find that it is a

public interest petition and the materials placed on

record by way of supplementary affidavit is relevant to the

issue raised in the petition, therefore, the said

supplementary affidavit filed by the petitioner cannot be

rejected.

24. Having regard to the above circumstances, the plea

raised by the State for rejection of petition on the ground

of delay on the basis of the judgments in the case of

Bombay Dyeing & Mfg. Co. Ltd. (supra) and Breach

Candy Residents Association and Others (supra)

cannot be accepted, hence, hereby rejected.

25. We also find that the petitioner, being a public

spirited person and resident of the State, has locus to

raise the issue involved in the petition.

26. Thus, in the aforesaid circumstances, the

preliminary objection raised by the State is rejected and

the writ petition filed in public interest is held to be

maintainable.

27. Learned counsel for the State is granted four weeks

time to file affidavit-in-opposition on merit.

WPA (P) 203 of 2022

28. List on 16th of August, 2022.

[Prakash Shrivastava, C.J.]

[Rajarshi Bharadwaj, J.]