Calcutta High Court (Appellete Side)
Bishnupada Das vs State Of West Bengal & Ors on 15 September, 2022
Item No. 8
15-09-2022
Sanchita
(Ct. no.25)
WPA 14663 of 2011
Bishnupada Das
Vs.
State of West Bengal & Ors.
With
W.P.A. 2355 of 2012
Pulin Bera
Vs.
The State of West Bengal & ors.
with
W.P.A. 3811 of 2011
Akhilesh Panda
Vs.
State of West Bengal & Ors.
Mr. Sakti Pada Jana,
Mr. Subhajyoti Das
...For the Petitioner.
Mr. S.P. Pahari
... For the petitioner
in WPA 2355 of
2012 & WPA 3811 of
2011.
Mr. Supriyo Chattopadhyay,
Mr. Sabyasachi Mondal
... For the State
Three writ petitions being WPA 14663 of
2011, WPA 2355 of 2012 and WPA 3811 of 2011
were taken up for analogous hearing as all
pertains to the issue as to the approval or for
setting aside the panel for appointment to the
post of Group-D Staff (UR) of Bahitrakunda High
School being the respondent no. 4 herein.
The petitioner in WPA 14663 of 2011
claims to be the first empanelled candidate for
the said post and has prayed for a direction to
appoint him in the said post and the other writ
petitioners have challenged the selection process
for appointment to the post in question.
The petitioner in WPA 14663 of 2011
claims that pursuant to the sanction accorded
for filling up Group-D (UR) post in Bahitrakunda
High School (for short "the school"), prior
permission was granted by the District Inspector
of School (SE), Purba Medinipur (for short "DI")
and the selection process was initiated
thereafter. Petitioner claims to have secured first
position in the panel and the panel which was
forwarded by the school authority was approved
by the concerned DI on February 15, 2011. The
grievance of the petitioner is that though the
panel was duly approved, yet the school
authorities have not issued appointment letter to
the petitioner.
The case of the petitioners in WPA 2355 of
2012 and WPA 3811 of 2011 is that the selection
process for appointment to the post in question
lacks transparency and the petitioner was not
qualified for being appointed to the post in
question. It is the further case of the said writ
petitioners that they came to know that
Bishnupada Das was already selected by the
Managing Committee of the School for being
appointed to the post in question prior to the
holding of the test for selecting the best
candidates.
The undisputed fact is that the writ
petitioners in WPA 2355 of 2012 and WPA 3811
of 2011 did not participate in the selection
process.
Mr. Jana, learned advocate appearing for
the writ petitioner in WPA 14663 of 2011
contends that since the selection process was
initiated prior to the coming into force of the
West Bengal School Service Commission
(Selection for Appointment to the Posts of Non-
teaching Staff) Rules 2009 (for short "the 2009
Rules") and also in view of the order passed by a
co-ordinate bench of this Court in WP 23264 (W)
of 2010 the DI was justified in approving the
panel which was submitted before such
authority in terms of the selection process held
pursuant to the 2005 Rules.
Mr. Pahari, learned advocate appearing for
the other petitioners contends that since during
the pendency of the selection process the 2009
Rules have come into force, the panel submitted
for approval in terms of the selection process
conducted by the 2005 Rules could not have
been approved as the 2009 Rules came into force
with effect from 9th July 2009. According to Mr.
Pahari no approval to panels in respect of the
selection process undertaken as per the 2005
Rules can be approved after the 2009 Rules
came into force. In support of such submission
Mr. Pahari relies upon a decision of Hon'ble
Division Bench of this Court in the case of The
State of West Bengal and ors. vs. Kailashpati Jha
& ors. reported at (2020) 1 CLJ (Cal) 328. He also
places reliance upon an order dated December 5,
2017 passed by the Hon'ble Supreme Court of
India in Civil Appeal no. 20883 of 2017 in the
case of State of West Bengal and ors. vs. The
Managing Committee, Nirjharini S.B. Vidyalaya
(H.S.) etc.
Mr. Pahari further submits that the panel
was prepared by the school authority without
taking into consideration the marks awarded by
the Panchayat Nominee and the said panel which
was submitted for approval also do not bear the
signature of such Panchayat Nominee. By
placing reliance upon the 2005 Rules, Mr. Pahari
submits that a Panchayat Nominee has to be
included as a member of the Selection
Committee of a clerk or a Grout-D staff in a
school and therefore, the panel prepared without
participation of the Panchayat Nominee is invalid
in the eye of law and the same could not have
been approved by the DI.
Mr. Mondal, learned advocate led by Mr.
Chattopadhyay, learned Senior Counsel for the
State submits that the DI after taking into
consideration the materials on record and after
taking into consideration the order of the co-
ordinate bench dated December 1, 2010 in WP
23264(W) of 2010 approved the panel. He
therefore, submits that there is no inaction on
the part of the concerned DI in approving the
panel.
In reply Mr. Jana, learned advocate
appearing for the petitioner places reliance upon
an unreported decision of a co-ordinate bench of
this Court in the case of Paban Kumar Dutta vs.
The State of West Bengal & Ors. delivered on
June 21, 2021 in WP No. 19279 (W) of 2009 in
support of his contention that the panel prepared
by the Selection Committee in a case where the
Panchayat Nominee did not participate in the
selection process cannot be held to be invalid in
the eye of law.
Heard the learned advocates for the parties
and perused the materials on record.
The legal issue that has been raised by the
learned advocate for the petitioners in WPA 2355
of 2012 and WPA 3811 of 2011 that after coming
into force of the 2009 Rules, the pending
selection process automatically comes to an end
and a fresh selection process is to be initiated
has already been settled by a co-ordinate bench
in WP 23264 (W) of 2010 and the same cannot
be reopened in this writ petition. His Lordship
was pleased to make the following observation
while passing the order dated 01.12.2010 in the
said writ petition which is extracted herein
below.
"It is made clear that since interview of the
candidates was taken on 22.2.2009 i.e. well
before the introduction of the West Bengal School
Service Commission (Selection for Appointment to
the Posts of Non-teaching Staff) Rules, 2009, G.O.
dated 22.7.2008 and G.O. dated 13.5.2010,
issued by the Assistant Secretary to the
Government of West Bengal, School Education
Department and Officer on Special Duty and
Deputy Secretary to the Government of West
Bengal, School Education Department respectively
shall not in any manner influence the decision of
the District Inspector to be taken in terms of this
order."
The said decision already attained finality
and the DI was directed to take steps in
accordance with such order. It is evident from
the memo no. 78-L dated 17.02.2011 that the
panel forwarded by the school authority was
approved by the DI. In terms of the order dated
February 01.12.10 in WP No. 24263(W) of 2010
passed in WP 23264 (W) of 2010.
This Court therefore, refrains from dealing
with the decisions cited by Mr. Pahari on such
issue.
The next issue that arises for consideration
is whether for non participation of the Panchayat
Nominee by not awarding marks to the
candidates who appeared at the interview and
also by not putting the signature in the panel the
entire panel is invalid in the eye of law. Such
issue is no longer res integra.
A co-ordinate bench in Paban Kumar Dutta
(supra) by relying upon a Division Bench
decision in the case of District Inspector of School,
Murshidabad and ors. vs. Samsul Huda reported
at 1987 (2) CLJ 144 held that if the selection was
made on the basis of the marks given by 50% of
the members of the Selection Committee the
object of the Rule cannot be held to be frustrated
simply because of the fact that the remaining
50% of the members of the Selection Committee
did not participate in the process of selection of
the candidates. The co-ordinate bench held that
the non-participation of the Panchayat Nominee
in the preparation of the panel do not vitiate the
selection process.
The decision in the case of Paban Kumar
Dutta (supra) is squarely applicable to the facts
of this case as more than 50% members of the
Selection Committee participated in the process
of selecting the candidate for the post in question
and the panel was prepared on the basis of the
marks given by the other members of the
Selection Committee excepting the panchayat
nominees.
This Court accordingly holds that the
panel forwarded by the school authority without
the participation of the Panchayat Nominee
cannot be said to be illegal or invalid in the eye of
law as sought to be argued by Mr. Pahari,
learned advocate appearing for the petitioners
praying for setting aside the panel.
The petitioners in WPA 2355 of 2012 and
WPA 3811 of 2011 have made only bald
allegations as to the fact that the petitioners in
WPA 14663 of 2011 lacks the requisite
qualification for being appointed to the post in
question. No document has been produced by
the said writ petitioners either in the affidavit-in-
opposition filed to WPA 14663 of 2011 or in the
independent writ petitions filed by them in
support of such statements. On the basis of
vague allegations made by candidates, who did
not participate in the selection process, this
Court cannot hold that the selection process for
the post in question lacks transparency.
For all the reasons as aforesaid, this Court
is of the considered view that a direction is to be
passed upon the school to issue the letter of
appointment in terms of the approval of the
panel accorded by the DI vide memo dated
17.02.2011. The school authority and the person
authorized to issue appointment letter are
directed to issue appointment letter to the
petitioner as expeditiously as possible but
positively within seven working days from the
date of communication of this order to the school
authority. With the aforesaid directions, WPA
14663 of 2011, WPA 2355 of 2012 and WPA
3811 of 2011 are disposed of.
There shall be however no order as to
costs.
Urgent photostat certified copy of this
judgment be given to the parties upon
compliance of all formalities.
(Hiranmay Bhattacharyya, J.)
