Sri Dilip Kumar Dolui vs State Of West Bengal & Ors
2023 Latest Caselaw 487 Cal

Item no. 03


                IN THE HIGH COURT AT CALCUTTA
                     CONSTITUTIONAL WRIT JURISDICTION
                               APPELLATE SIDE
Present:
The Hon'ble Justice Hiranmay Bhattacharyya
                             W.P.A. 13757 of 2017

                          Sri Dilip Kumar Dolui.
                                   vs.
                       State of West Bengal & Ors.

Appearance:
For the Petitioner       :    Mr. Saktipada Jana

For the respondent no. 5:     Mr. Biswaroop Bhattacharya

Mr. Haridas Das

For the State : Mr. Santanu Kr. Mitra

Heard on : 17.01.2023

Judgment on : 17.01.2023

Hiranmay Bhattacharyya, J.:

01. The petitioner has challenged the order of the District Inspector of

Schools (SE), Purba Medinipur (for short "DI") dated March 28, 2017

whereby the DI held that no decision with regard to approval of pending

panel in question can be taken.

02. The petitioner claims to have participated in the interview for the

post of Clerk in Group-C in Gopalnagar Girls High School (for short "the

School") pursuant to an interim order passed by a coordinate Bench of

this Court in WP 632 (W) of 2008 on 15.01.2008. Several writ petitions

were filed by intending candidates praying for an order to allow them to

participate in the interview for the said post and pursuant to interim

orders passed by this Court in those writ petitions such candidates were

also allowed to participate in the interview. In the meantime, writ

petitions filed by some intending candidates, stood disposed of and since

the concerned DI informed the school authority vide letter dated

December 31, 2008 that no decision in respect of pending panel can be

taken as several writ petitions are pending, the writ petitioner got the

writ petition being W.P. 632(W) of 2008 enlisted for final disposal of the

same. The said writ petition was disposed of by an order dated October

3, 2016 by directing the concerned DI to take steps in accordance with

law in respect of the pending panel within the time limit specified in the

said order. Pursuant to the said direction, the concerned DI passed the

order dated March 28, 2017 which is under challenge in this writ

petition.

03. Mr. Jana, learned advocate appearing for the petitioner draws the

attention of the Court to an order dated April 25, 2008 passed by a

coordinate Bench by this Court in WP 25467 (W) of 2007 and submits

that the concerned DI ought to have approved the panel in question

since there was a positive direction to that effect in the order dated April

25, 2008. He thereafter referred to the order dated May 14, 2008 passed

by a coordinate Bench in WP 919 (W) of 2008 in the case of Dilip Mondal

vs. State of West Bengal & Ors. wherein the coordinate Bench directed

the school authorities to fill up the posts in question by initiating the

process of selection afresh after inviting application by making

publication in the newspapers having wider circulation and then

consider the cases of those who have applied. He further submits that

since a coordinate Bench of this Court by an order dated 25.04.2008

passed in WP 25467 (W) of 2007 directed approval of the panel in

question, the subsequent order of a coordinate Bench in the case of Dilip

Mondal (supra) could not have been passed. He submits that the order

passed in the case of Dilip Mondal (supra) of 14.05.2008 should be

recalled by this Court and the DI be directed to approve the panel in

terms of the order passed on 25.04.2008 in WP 25467 (W) of 2007.

04. Mr. Mitra, learned advocate representing the State submits that

the DI was faced with two conflicting orders of coordinate Benches with

regard to the panel in question- one directing approval of the panel and

the other directing the school authority to fill up the posts by initiating

the process of selection afresh. He submits that an application, being

CAN 474 of 2009 filed in connection with WP 632 (W) of 2008 was also

pending for disposal. He concluded by submitting that under such

circumstances, the DI thought it fit not to take a decision with regard to

approval of the pending panel in question.

05. Mr. Bhattacharyya, learned advocate representing the school

authority submits that the school authority is very eager to fill up the

vacant posts. He further submits that the DI be directed to approve the

panel in terms of the order passed by a coordinate Bench in WP 25467

(W) of 2007 on April 25, 2008.

06. Heard the learned advocates for the parties and perused the

material placed. Record reveals that the date of interview/selection test

for appointment to the post of clerk, Group-C staff for the school was

fixed on January 20, 2008. A coordinate Bench of this Court passed an

interim order on January 17, 2008 in WP 919 (W) 2008 in the case of

Dilip Mondal (supra) by directing the school authority to allow Dilip

Mondal along with other eligible candidates to participate in the

interview/selection test to be held on January 20, 2008. It was further

directed that after holding the interview the mark sheet of the petitioner

shall be kept in a sealed cover and the result shall not be published

without the leave of the Court. It is not in dispute that the interview for

appointment to the said post was held on January 20, 2008 and WP

25467 (W) of 2007 was disposed of on April 25, 2008 directing the

respondents to approve the panel and thereafter appointments be made

by the school authority within the time limit mentioned in the said order.

When the matter was taken up for hearing by the Hon'ble Court on

25.04.2008, the school authority was represented by its counsel.

However, it is surprising to note that the attention of the coordinate

Bench was not drawn to the order dated 17.01.2008 passed in Dilip

Mondal (supra) wherein the marksheet of the petitioner therein was

directed to be kept in a sealed cover with a direction not to publish the

result without the leave of the Court.

07. By the order dated 17.01.2008, the coordinate bench restrained

the school authority from publishing the result without the leave of the

Court.

08. No document has been produced before this Court to show that

leave was granted by the Court to publish the result of the interview.

Therefore, the question of preparation of panel for appointment to the

post could not and did not arise before the order dated 14.05.2008 was

passed in W.P. 919(W) of 2008.

09. This Court, however, fails to understand as to why the school

authority who was represented on 25.04.2008 suppressed the fact of the

subsisting restraint order upon the school from publishing the result.

This Court accordingly, holds that the order dated 25.04.2008 was

obtained by practising fraud upon the Court. It is well-settled that the

fraud vitiates all acts. This Court accordingly holds that the order dated

25.04.2008 is nullity in the eye of law.

10. It further appears from the order dated 14.05.2008 that the

coordinate Bench after taking into consideration the judgment and order

passed in several writ petitions disposed of WP 919 (W) of 2008 by

directing the school authority to fill up the posts in question by initiating

the process of selection afresh after inviting applications by making

publications in the newspapers having wider circulation and then

consider the cases of all those, who have applied. By the said order it

was also made clear that the result of the interview in question shall not

be given effect to or shall not be taken into account in any manner

whatsoever. Therefore, the effect of the order dated May 14, 2008 is that

the selection process initiated by the school authority which, according

to the petitioner, culminated with the preparation of the impugned panel

stood automatically cancelled by the order dated May 14, 2008. The

school authority did not challenge the said order before any higher forum

and, therefore, the said order already attained finality.

11. This Court is further astonished to find that after the order dated

May 14, 2008 was passed in the presence of the school authority, a

panel was forwarded by the school to the DI three days thereafter i.e. on

May 17, 2008 for approval of the said panel. The school authority could

not explain how they could forward the impugned panel for approval

after the order dated 14.05. 2008 was passed directing the school to

initiate the selection afresh. Such conduct of the school authority is not

appreciated by this Court. This Court would have been well justified in

initiating a contempt proceeding against the school but refrains from

taking such action as the same would not enure to the benefit of the

petitioner.

12. The earlier writ petition filed by the writ petitioner, being WP 632

(W) of 2008, came up for final hearing on October 3, 2016 before another

coordinate Bench of this Court. From the said order it appears that

though the orders passed in WP 919 (W) of 2008 and WP 25467 (W) of

2007 were referred to but no submission was made by the school

authority or any of the parties to the writ petitions with regard to the

effect of the orders passed in those writ petitions. However, the said writ

petition was disposed of by an order dated 03.10.2016 by directing the

concerned DI to take steps in accordance with law in respect of the

pending panel after giving an opportunity of hearing to the parties

concerned.

13. The writ petitioner did not pray for recalling the order dated

14.05.2008 even at the time of final hearing of W.P. 632(w) of 2008. The

order dated 3.10.2016 passed in the said writ petition directed the DI to

take a decision in accordance with law. For the aforesaid reasons, the

prayer for recalling the order dated 14.05.2008 cannot be entertained at

this stage. In view of such findings, the decision of a coordinate bench of

this Court in the case of Prakash Chandra Purkait vs. State of West

Bengal & Ors. reported at (2002) 1 CLT 519 (HC) is of no assistance to

the petitioner.

14. After going through the order dated March 28, 2017 this Court

finds that the DI held that no decision can be taken in regard to approval

of the pending panel in question in view of the contradictory orders

passed by the coordinate Benches of this Court in WP 919 (W) of 2008

and WP 25467 (W) of 2007. Since the selection process which

culminated with the preparation of the panel in question stood cancelled

by the order dated May 14, 2008 passed in W.P. 919 (W) of 2008, the D.I.

cannot be said to be at fault for not approving the said panel.

15. For all the reasons, as aforesaid, this Court is of the considered view

that there is no infirmity in the decision making process warranting

interference by this Court in exercise of the power of judicial review. This

Court, therefore, holds that the question of approval of the panel as

directed by the order dated 25.04.2008 does not and cannot arise at all.

This Court has already held that the order dated 14.05.2008 has

attained finality and it would be open to the respondent authority to take

steps in accordance with law.

16. The writ petition is, thus, devoid of any merit and the same

accordingly stands dismissed without, however, any order as to costs.

17. Urgent Photostat certified copy of this order, if applied for, be

delivered to the learned advocates for the parties, upon compliance of all

formalities.

(Hiranmay Bhattacharyya, J.) Raja A.R. (Ct.)