Calcutta High Court (Appellete Side)
Rajendra Rajak vs The State Of West Bengal & Ors on 14 September, 2022
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Before:
The Hon'ble Justice Hiranmay Bhattacharyya
WPA 12448 OF 2013
Rajendra Rajak
vs.
The State of West Bengal & Ors.
For the Petitioner : Mr. Saktipada Jana .......advocate
For the State : Sk. Md. Galib ........advocate
Heard on : 12.09.2022 and 14.09.2022
Judgment on : 14.09.2022
Hiranmay Bhattacharyya, J.:-
1. In this writ petition the petitioner has challenged the decision
of the District Inspector of Schools (SE), Kolkata (for short
"DI") which was communicated vide memo no. 90/06/Law
dated 8th April, 2013 by virtue of which the concerned school
was directed to submit the relevant papers for filling up the
vacancy of the post of clerk to the office of DI for the DI to
report the vacancy to the Regional School Service Commission
and has prayed for setting aside the said decision.
2. The facts relevant for the purpose of deciding this writ petition
are summarised hereunder-
Page 1 of 15
3. Petitioner claims that the post of clerk in Jawaharlal Nehru
Vidyapith Boys' High School, Kolkata (for short "the school")
fell vacant in the year 2006. Petitioner claims to have
participated in the interview for the post of clerk which was
held on May 10, 2009. Since the panel prepared by the
Selection Committee was not approved by the Director of
School Education, West Bengal, the petitioner filed a writ
petition being WP No. 1249 (W) of 2011. A co-ordinate bench
passed an order on November 16, 2011 in the said writ
petition directing the school authority to reconstitute the
Selection Committee as per the relevant Government Order
read with the Recruitment Rules of 2005 and complete the
selection process after giving further opportunity to the
candidates who participated earlier in the selection process.
Petitioner claims to have appeared before the reconstituted
Selection Committee for fresh interview which was scheduled
on February 19, 2012. The petitioner claims that his name
appeared in the first position in the panel prepared by the
Selection Committee and the same was pending for approval
before the concerned authority. The petitioner filed a writ
petition being WP No. 564 (W) of 2012 praying for approval of
the said panel and a co-ordinate bench by an order dated July
20, 2012 in WP No. 564 (W) of 2012 directed the concerned DI
to consider the panel and take the ultimate decision on the
subject of approval by passing a reasoned order. Thereafter
Page 2 of 15
the concerned DI passed the impugned order which was
communicated vide memo dated April 8, 2013.
4. Mr. Jana learned advocate appearing for the petitioner
contends that the concerned DI exceeded its jurisdiction by
directing the school to send the papers for the purpose of
reporting the vacancy to the Regional School Service
Commission for filling up the vacancy. He contends that since
the post of clerk fell vacant prior to the coming into force of the
West Bengal School Service Commission (Selection of Persons
for Appointment to the Post of Non-Teaching Staff) Rules, 2009
(for short "the 2009 Rules"), the process of selection in the
instant case is to be governed by the West Bengal Schools
(Recruitment of Non-Teaching Staff) Rules 2005 (for short "the
2005 Rules"). Mr. Jana submits that a panel may be prepared
by excluding the marks awarded by the President of the
Managing Committee of the School in terms of a judgment
dated June 21, 2011 passed by a co-ordinate bench in WP No.
19279 (W) of 2009 (Paban Kumar Dutta vs. The State of West
Bengal and ors.). By placing reliance upon a decision of the
Full Bench of this court in the case of Tulsi Roy vs. Krishanu
Roy reported at 2011(2) CHN (Cal) 1021, Mr. Jana submits that
since the process of selection has already been initiated prior
to the coming into force of the 2009 Rules, the process of
selection which has already been initiated should be finished
in accordance with the 2005 Rules.
Page 3 of 15
5. Per contra, Md. Galib learned advocate for the State contended
that the Selection Committee was reconstituted by the school
but the same was not in accordance with the provisions of the
2005 Rules. He, thus, submits that since the Selection
Committee was not constituted in accordance with the
provisions of the 2005 Rules for selection of a clerk in a
school, the entire selection process is thus, vitiated and the
vacancy is to be filled up in terms of the 2009 Rules which has
come into force with effect from July 9, 2009. He places
reliance upon a decision of a Division Bench of this Court in
the case of Motin Saikh vs. State of West Bengal & ors. reported
at (2010) 3 CHN 849 (Cal) (DB) in support of his contention
that if the original process of selection is found to be defective
after the coming into operation of the 2009 Rules, a fresh
process of selection is to be initiated in terms of the 2009
Rules. He further submitted that a candidate does not acquire
any right to the post on their selection and the State is under
no legal duty to fill up all or any of the vacancies. In support of
such contention he relied upon the decisions of the Hon'ble
Supreme Court in the case of Shankarsan Dash vs. Union of
India reported at (1991) 3 SCC 47 and Jai Singh Dalal and ors.
vs. State of Haryana & ors. reported at 1993 Supp (2) SCC
600. Mr. Galib referred to a decision of the Hon'ble Supreme
Court in the case of State of M.P. and ors. vs. Raghuveer Singh
Yadav and ors. reported at (1994) 6 SCC 151 in support of his
contention that the State has the power to prescribe
Page 4 of 15
qualification for recruitment and the government is entitled to
conduct selection in accordance with the changed rules and
make final recruitment. He also relied upon a decision of a co-
ordianate bench of this court in the case of Dr. Asit Kumar Maji
vs. The West Bengal University of Animal & Fishery Sciences &
Ors. reported at 2001(1) CLJ 546.
6. Heard the learned advocates for the parties and perused the
materials placed.
7. Record reveals that the prior permission for the post of clerk of
the concerned school was accorded on May 20, 2008. The
Managing Committee took a resolution dated April 26, 2009
for the formation of Selection Committee and in the said
resolution the constitution of the Selection Committee
comprised of the Secretary of the Managing Committee of the
school as the President of the Selection Committee, the
Headmaster of the school, the Headmaster of Lachpath Hindi
High School as an expert and a guardian member of the
Managing Committee as the other members of the said
committee. The panel forwarded by the said committee for
approval was not approved as it was not formed as per GO No.
904-AC(s) dated July 18, 2007. By issuing a memo no. 1064-
GA dated June 15, 2010 the Director of School Education took
a decision that no further permission be given to form the
Selection Committee since the School Service Commission is
already empowered for such purpose. Challenging the said
Page 5 of 15
decision the petitioner filed WP No. 1249(W) of 2011 and a co-
ordinate bench of this court by an order dated November 16,
2011 directed the school authority to reconstitute the
Selection Committee as per the Government Order being GO
No. 904-AC(s) dated July 18, 2007 read with the Recruitment
Rules of 2005 and complete the selection process after giving
further opportunity to the candidates who participated earlier
in the selection process to appear in the selection test before
the Selection Committee on the date to be fixed by such
committee. Thereafter, the committee was reconstituted by the
Managing Committee by a resolution dated December 18,
2011 thereby including the Secretary of the Managing
Committee as the President of the Selection Committee, the
Headmaster of the school, the President of the Managing
Committee of the School, the Headmaster of Lachpath Hindi
High School as an expert and the Councilor of the Municipal
Corporation as the other members of the Committee.
8. The order of the DI contained in the memo dated April 8, 2013
consisted of two parts. The first part of the order deals with
the constitution of the Selection Committee and the effect of
the panel submitted by such committee. DI after holding that
the selection committee was constituted in violation of the
provisions of the 2005 Rules did not approve the panel. The DI
in the concluding portion of the said order directed steps to be
taken in terms of the 2009 Rules.
Page 6 of 15
9. This Court shall first consider as to whether the decision of
the DI with regard to non-approval of the panel calls for any
interference by this Court.
10. Mr. Jana, learned advocate for the petitioner did not dispute
that the President of the Managing Committee of the School
could not have been included as the member of the Selection
Committee in the case on hand in terms of the 2005 Rules as
the Headmaster and the Secretary of the School are not one
and the same person.
11. This Court is, therefore, of the considered view that the
Selection Committee which was reconstituted by the
resolution of the Managing Committee dated December 18,
2011 was not constituted according to the 2005 Rules and
therefore the panel prepared by such reconstituted Selection
Committee cannot be said to have been prepared in
accordance with the provisions of the 2005 Rules and all steps
and action taken by such Committee is invalid in the eye of
law.
12. Now, this Court has to consider the argument of Mr. Jana that
the panel submitted by the said selection committee is to be
approved after recasting the marks of the candidates who
participated in the selection test by excluding the marks
awarded by the President of the Managing Committee.
Page 7 of 15
13. In the case of Paban Kumar Dutta (supra) the Selection
Committee was constituted in accordance with the provisions
of the relevant rules but the panel was prepared without
taking into consideration the marks awarded by the Panchayat
Nominee as the same was not submitted by such member. The
co-ordinate bench after arriving at a factual finding that the
Panchayat Nominee and the unsuccessful candidate acted
hands in glove with each other and also taking note of the fact
that the intention of the Panchayat Nominee was to promote
the unsuccessful candidate, the co-ordinate bench did not
interfere with the panel prepared by the selection committee
which did not contain the signature of such Panchayat
Nominee and also did not take into consideration the marks
awarded by such member.
14. The facts in the case of Paban Kumar Dutta (supra) is
distinguishable with the facts of the case on hand as the
selection committee which conducted the selection test and
awarded marks to the candidates and also prepared the panel
in the case on hand was not constituted in accordance with
the provisions of the relevant recruitment rules.
15. Therefore, this Court holds that all action taken by the
Selection Committee, which was not constituted as per 2005
Rules, are invalid in the eye of law. Therefore, the finding of
the DI which was communicated vide memo dated April 8,
2013 by holding that the panel prepared by the Selection
Page 8 of 15
Committee constituted in violation of the specific provisions of
the 2005 Recruitment Rules cannot be approved, do not suffer
from any infirmity and the same cannot be interfered with by
this court.
16. The 2009 Rules having come into force with effect from July 9,
2009 and a fresh process of selection is to be initiated, in the
instant case as the panel prepared by the Selection Committee
has not been approved, the question that arises in this case is
whether such selection should be held in accordance with the
provisions of the 2009 Rules as held by the DI in the
concluding portion of the order of the DI contained in the
memo dated April 8, 2013.
17. Vacancy arises if a person holding a post ceases to hold such
post either due to retirement, death or for any other reason. If
the authorities decide to fill up the vacancy, a process of
selection as per the relevant rules is initiated and the selection
process comes to an end upon an appointment being made to
such post. The vacancy is filled up by making an appointment
to such post. In the event such appointment is set aside for
any reason whatsoever, a fresh vacancy is to be declared and
thereafter steps to be taken for filling up such vacancy.
18. In the case on hand, the post of clerk of the school fell vacant
upon retirement of the person holding such post. Selection
process in terms of the then prevailing rules i.e., the 2005
Page 9 of 15
Rules was initiated and upon obtaining prior permission from
the concerned authority, a selection of candidates was made
by the Selection Committee and a panel was prepared and
thereafter forwarded to the authority for approval of the panel.
However, as recorded hereinbefore the panel was not
approved.
19. It is not the case of the respondents that an appointment to
such post was made in terms of the selection process initiated
as per the 2005 Rules. Non-approval of the panel, therefore,
does not give rise to a fresh vacancy as the said post was not
filled up in terms of the said selection process by making an
appointment.
20. It is also not in dispute that the post fell vacant prior to the
coming into force of the 2009 Rules and the process of
selection had already been initiated at a point of time when
the 2005 Rules was in force. However, since the committee
was not formed in accordance with the 2005 Recruitment
Rules, the panel forwarded by the Selection Committee could
not be approved.
21. The Full Bench of this Court in the case of Tulsi Roy (supra)
held that there is no dispute with the broad proposition of law
that if the process of selection has already been initiated it
should be finished in accordance with the law that it stood at
the time of initiation of process even if a new law has come
into force in the meantime. The Full Bench of this Hon'ble
Court held as follows-
"21. We do not for a moment dispute with the Broad proposition of
law that if the process of selection has already been initiated, it
should be finished in accordance with law that it stood at the time
of initiation of process even if a new law has come into force in the
meantime. However, such principle cannot have nay application to
a case where the process of selection was complete, an
appointment was given, the appointed candidate joined service
but subsequently, such appointment was found to be vitiated and
the appointment given based on such selection has been set aside
by an order of the Court. In such a case, on setting aside the
appointment given to the appointed candidate, a new vacancy will
arise in view of the order setting aside the appointment with effect
from the date of such order. In such a situation, in our opinion, a
fresh vacancy should be declared in accordance with the Rules of
2009 as if such vacancy has occurred on the date, the earlier
appointment has been set aside and the post concerned should
not be treated to have been lying vacant during the period when
the person found to be illegally appointed by the Court worked."
22. After taking note of the provisions contained in Rules 7 and 8
of the 2009 Rules it was further held that if the selected
candidates have not yet joined, the process of selection should
be completed in accordance with the rules which stood
effective at the time of initiating the process of selection.
23. In the case on hand the process of selection was initiated
when the 2005 Rules was in force and none of the candidates
whose names find place in the panel prepared by the Selection
Committee have joined. Therefore, by applying the ratio of the
decision of the Full Bench in Tulsi Roy (supra) this court holds
that the process of selection should be completed in
accordance with the 2005 Rules and the concerned authorities
are to be directed to proceed with the selection process from
the stage it got vitiated. 2009 Rules can have no manner of
application to the facts of the instant case.
24. There is however, no quarrel to the proposition of law laid
down in Jai Singh Dalal and Ors. (supra) and Shankarsan
Dash (supra) that candidates selected for appointment have no
right to appointment and it is open to the state government at
a subsequent date not to fill up the posts or to resort to fresh
selection and appointment on revised criteria. However, the
said decisions have no manner of application to the facts of
this case.
25. In Raghuveer Singh Yadav (supra) the Hon'ble Supreme Court
reiterated the settled principle of law that the State has got
power to prescribe qualifications for recruitment and the
candidates who had appeared for the examination and pass
the written examination had only legitimate expectation to be
consider that their claims according to the rules then in vogue.
The said decision also does not have any manner of
application to the facts of this case.
26. In Dr. Asit Kumar Maji (supra) the appointment of lecturers by
the University authorities was set aside and quashed as the
selection committee had been constituted without complying
with the provisions of the relevant statute and the process of
appointment was vitiated for non-compliance with the relevant
rules and regulations of the university. The said decision
however, supports the contention of the learned advocate for
the State that all steps taken by the selection committee which
was not constituted in terms of the relevant rules is to be
considered to be invalid. However, since no appointment was
made in terms of the panel prepared by the selection
committee in the case on hand, the decision in the case of Dr.
Asit Kumar Maji ( supra) is of no assistance to the State in so
far as the decision of the DI to proceed with the selection
process as per the 2009 Rules is concerned.
27. In Motin Saikh (supra) the panel forwarded by the school was
approved by the concerned DI and the school issued the offer
of appointment to the writ petitioner and he also joined the
service which was also approved by the DI. On a challenge to
the process of selection at the instance of the candidate
securing the third position in the panel the court held that
there was tampering of marks in respect of the candidates
particularly the candidate who got appointment and the court
also found illegality in including the expert in the panel. On
such facts the appointment made to the post in question was
set aside. The Hon'ble Division Bench held that a fresh
process of selection after the appointment of the selected
candidate had been set aside is to be initiated in terms of the
2009 Rules. However, the Hon'ble Division Bench clarified that
if the process of selection had already been initiated, it should
be finished in accordance with law that it stood at the time of
initiation of process even if a new law has come into force in
the meantime. The said decision is distinguishable on facts
and as such the same cannot be of any assistance to the State
as in the case on hand as appointment was not made.
28. This Court therefore, holds that the portion of the impugned
order passed by the DI as contained in the memo dated April
8, 2013 in so far as a direction was passed by the DI to the
school authority to submit all relevant papers in regard to
filling up the vacancy of clerk in question to the DI for the DI
to report the vacancy to the Regional School Service
Commission concerned for filling up the vacancy in
accordance with law suffers from infirmity and the same is
liable to be set aside and quashed. Accordingly, the aforesaid
concluding portion of the impugned order is set aside and
quashed.
29. It is further evident from the records that a co-ordinate bench
by an order dated 09.07.2013 passed an interim order
restraining the respondent authority from referring the
vacancy under reference to the Regional School Service
Commission for its recommendation. Though the respondent
authorities decided to proceed in accordance with the 2009
Rules by passing direction to the school for submitting the
papers were restrained by the said interim order from taking
steps in terms of the impugned order.
30. For the reasons as aforesaid the writ petition being WPA
12448 of 2013 is disposed of by directing the school authority
to reconstitute the Selection Committee as per the relevant
Government Order read with the 2005 Rules and complete the
selection process after giving further opportunity to the
candidates who participated earlier in the selection process, to
appear in the selection test before the Selection Committee on
the date fixed by the Selection Committee. Since the process of
selection for filling up the post in question was initiated
sometimes in the month of May, 2008, the entire process
should be completed within a period of eight weeks from the
date of communication of this order.
31. There shall, however, be no order as to costs.
32. Urgent photostat certified copy of this judgment be given to
the parties upon compliance of all formalities.
(Hiranmay Bhattacharyya, J.)
(P.A.-Sanchita)
