Calcutta High Court (Appellete Side)
Sujit Biswas vs The State Of West Bengal & Ors on 8 February, 2023
18
08.02.2023
adeb
WPA 21651 of 2007
Sujit Biswas
Vs.
The State of West Bengal & Ors.
Mr. Shyamal Kumar Das
Mr. Pronojit Roy
Ms. Krishna Yadav
..for the Petitioner
Mr. Tapan Kumar Mukherjee
Ms. Saheli Mukherjee
...for the State
Petitioner having requisite educational qualification
being not sponsored by the Employment Exchange for
being appointed as Group-D staff (peon) in Auldanga
Amulyadhan Roy Vidyapith (High School), District-North
24 Parganas (hereinafter referred to as "said school")
approached the Court by presenting this writ petition,
inter alia, praying for direction upon the said school
authority to permit the petitioner to appear in the
interview to be conducted for selection in the post of
Group-D. In addition thereto challenge was thrown to
vires of Rule 8 (5) (a) of the West Bengal Schools
(Recruitment of Non-Teaching Staff) Rules, 2005. The
coordinate Bench by passing an order dated 4th October,
2007 directed the said school authority to permit the
petitioner to appear in the interview in respect of post of
Group-D and at the same time the writ petition was kept
2
pending by giving direction upon the parties to exchange
affidavits. It was also recorded in the said order dated 4th
October, 2007 that such permission granted in favour of
the petitioner to appear before the interview Board shall
not create any equity in his favour in getting employment
and same shall abide by the result of this writ petition.
Pursuant to such order dated 4th October, 2007
petitioner participated in the interview held on 29th
October, 2007 along with other sponsored candidates
and being selected he was offered appointment for the
post of Group-D vide appointment letter dated 17th
March, 2008. Pursuant to such appointment letter the
petitioner joined the post on 20th March, 2008 and the
concerned District Inspector of Schools (SE), 24 Parganas
(North), Barasat granted approval of appointment in
favour of the petitioner vide memo dated 22nd April, 2008
with effect from 20th March, 2008. However, the approval
of appointment granted in favour of the petitioner by the
concerned District Inspector of Schools is conditional
since it has been stipulated in the said approval memo
that grant of approval of appointment in favour of the
petitioner shall abide by the result of the present writ
petition.
Today, Mr. Syamal Kumar Das, learned advocate
representing the petitioner submits for disposal of the
writ petition on declaring the grant of approval as
accorded vide memo dated 22nd April, 2008 as final.
3
It has also been contended on behalf of the
petitioner that selection of the petitioner for the post of
Group-D in terms of the order dated 4th October, 2007
passed by a coordinate Bench on this writ petition has
not been questioned in any other legal proceeding by
other candidates. According to the petitioner since no
challenge being thrown to the order of the coordinate
Bench dated 4th October, 2007 permitting the petitioner
to participate in the interview there is no impediment in
confirming the approval of appointment granted in favour
of the petitioner.
In support of such submission reliance has been
placed on the judgment of the Hon'ble Division Bench
reported in (2011) 2 WBLR (Cal) 562, Shri Sushil
Kumar Biswas Vs. The State of West Bengal & Ors. It
is contended that in Sushil Kumar Biswas (supra) the
Hon'ble Division in similar set of facts upheld the
appointment of the appellant upon setting aside the
order of the learned single Judge by which the
appointment of the appellant was quashed.
The said school authority is not represented.
However, State-respondents are represented by Mr.
Tapan Kumar Mukherjee, learned Additional Government
Pleader.
In spite of giving opportunity to the State-
respondents to file affidavit in opposition till date no
affidavit has been filed by the State-respondents.
However, Mr. Mukherjee has opposed the prayer of
the petitioner and has submitted that in absence of
newspaper advertisement for filling up the post of Group-
D in the said school the decision of the Apex Court
rendered in Excise Superintendent, Malkapatnam,
Krishna District, A.P. Vs. K.B.N. Visweshwara Rao
reported in (1996) 6 SCC 216 is not attracted. In this
regard reliance has also been placed by Mr. Mukherjee
on the decisions of the Hon'ble Division Bench of this
Court reported in (2007) 2 CLJ (Cal) 105, Gaya Nath
Rajbanshi Vs. State of West Bengal & Ors. and (2008)
1 CLJ (Cal) 912, Debendra Nath Mondal Vs. Ratan
Kumar Das & Ors. On placing reliance on the aforesaid
judgments it is contended on behalf of the State-
respondents that in absence of newspaper advertisement
no right accrues in favour of the petitioner to appear
before the interview Board.
Mr. Mukherjee has also relied upon the judgment
of a coordinate Bench reported in (2008) 1 CLJ (Cal)
823, Prabir Kumar Maji Vs. The State of West Bengal
& Ors. wherein Rule 8 (5) (a) and Rule 8 (5) (b) of the
West Bengal Schools (Recruitment of Non-Teaching Staff)
Rules, 2005 were found to be ultra vires and as a sequel
thereto the school authority is required to advertise the
post in newspaper for wider publication.
In the present case, at my hand interview took
place on 29th October, 2007 which was before the
judgment was delivered by the coordinate Bench in
Prabir Kumar Maji (supra) since the date of judgment of
Prabir Kumar Maji (supra) is 11th April, 2008. Therefore,
issue needs to be considered keeping in view of the fact
that at the stage when the interview was held for filling
up the post of Group-D in the said school judgment of
Prabir Kumar Maji (supra) was not rendered requiring
publication of newspaper advertisement for wider
circulation amongst the eligible candidates.
In Gaya Nath Rajbanshi (supra) the Hon'ble
Division Bench was considering the issue that on
applying rotational formula as followed by the
Employment Exchange authorities if a candidate though
is senior to the sponsored candidate was not considered
while sponsoring names to the school authority for
holding interview on the ground that the said candidate
was earlier sponsored by the Employment Exchange
whether the right of the said candidate in connection
with interview held in another school subsequently, gets
impacted or not. The Hon'ble Division Bench was also
considering the right of the candidate to offer his
candidature in the context of guidelines relating to the
recruitment for filling up the post of non-teaching staff in
Government aided recognized school which was issued in
terms of Memo No. 1736 (21) GA dated Calcutta, 1st
November, 1999. In the present case, selection process
has been initiated in terms of relevant provisions of West
Bengal Schools (Recruitment of Non-Teaching Staff)
Rules, 2005 that too at a stage when judgment delivered
in Prabir Kumar Maji (supra) did not see the light of the
day. In the judgment of Debendra Nath Mondal (supra)
the Hon'ble Division Bench considered the issue which
cropped up due to fight between the two eligible
candidates one was sponsored by the Employment
Exchange and another was though not sponsored by the
Employment Exchange participated in the interview
pursuant to the order passed by this Court. The
candidate who was sponsored by the Employment
Exchange challenged the participation of another
candidate not being sponsored by the Employment
Exchange contemporaneously and while deciding the
issue it was held by the Hon'ble Division Bench that in
absence of newspaper advertisement no right accrues in
favour of the candidate who participated in the interview
in terms of the order passed by this Court.
In the present case, situation is completely
different. In order to find out whether any other legal
proceeding is pending at the instance of deserving
candidates confined to the selection process for filling up
the post of Group-D in the said school this Court
directed the learned advocate representing the State-
respondents to obtain instruction. It has been submitted
by Mr. Mukherjee representing the State-respondents
that apart from the present writ petition no other legal
proceeding is pending questioning the selection of the
petitioner or the selection process.
While considering validity of decision of the said
school authority to permit the petitioner to participate in
the interview qua selecting the petitioner for the post of
Group-D staff there is no denying fact that the petitioner
participated in the interview in terms of the order dated
4th October, 2007 passed by a coordinate Bench on this
writ petition. In absence of challenge thrown to such
order dated 4th October, 2007 this Court does not find
any impediment in putting quietus on the issue which is
pending from the year 2007 thereby confirming the order
of approval of appointment granted in favour of the
petitioner by the concerned District Inspector of Schools
vide memo dated 22nd April, 2008.
In this regard reliance is also placed on the
judgment delivered by the Hon'ble Division Bench in
Sushil Kumar Biswas (supra). Almost in similar set of
facts the Hon'ble Division Bench decided the issue in
favour of the candidate who was appointed in the post of
Group-C (clerk) after his participation in the interview
pursuant to the order passed by a learned single Judge.
It was observed by the Hon'ble Division Bench in
paragraph 28 of Sushil Kumar Biswas (supra) that
there was rider in the approval memo issued by the
respondent no. 3 that the same would be subject to the
result of the writ application but it was found to be
correct by the Hon'ble Division Bench accepting the
submission made on behalf of the appellant since relief
as sought for by the appellant was granted by the
learned single Judge further direction by the learned
single Judge for wider circulation of the post in question
was redundant and not appropriate in the factual matrix
of the case.
In view of aforesaid discussion, the writ petition
stands disposed of confirming the decision of the
concerned District Inspector of Schools (SE) 24 Parganas
(North), Barasat/ Additional District Inspector of
Schools, Bongaon Sub-Division, North 24 Parganas
relating to grant of approval of appointment in favour of
the petitioner which was accorded vide memo dated 22nd
April, 2008.
However, there shall be no order as to costs.
Urgent photostat certified copy of the order, if
applied for, be given to the parties, upon usual
undertakings.
(Saugata Bhattacharyya, J.)
