Masadul Hossain vs The State Of West Bengal & Ors
2023 Latest Caselaw 4141 Cal

Court No.22            IN THE HIGH COURT AT CALCUTTA
06.7.2023               Constitutional Writ Jurisdiction
                               Appellate Side
(Item No. 63)

(AB)                       W.P.A. 27054 of 2017
                                      +
                              C.A.N. 1 of 2020
                        (Old No. CAN 4823 of 2020
                              Masadul Hossain
                                     VS
                       The State of West Bengal & Ors.

                       Md. Sarwar Jahan
                       Mr. Maidul Islam Kayal
                       Mr. Asif Mehdi
                                        .... For the petitioner
                       Mr. Gourav Das
                                        .... For the State
                       Mr. Kanak Kiran Bandyopadhyay
                                  .... For respondent Nos. 3 to 6

This is a hearing matter upon affidavits.

Mr. Sarwar Jahan, learned counsel appeared

for the petitioner.

Mr. Kanak Kiran Bandyopadhyay, learned

counsel appeared for respondent Nos. 3 to 6.

The petitioner contended that, the petitioner

was engaged as a Contractual Vocational Teacher

Instructor at one Dharmadanga High School

(H.S.), District - Murshidabad. In support of his

contention he had referred to the documents at page

48 onwards from the writ petition. The petitioner was

an aspirant and participated in the 12th Regional

Level Selection Test - 2011 (for short, RLST

2011). Drawing attention to Annexure P-5 and P-6

at pages 35 and 26 to the writ petition, learned

counsel for the petitioner submitted that, he appeared

in the examination. Relying upon Annexure P-7 at

page 37 to the writ petition he submitted that, he

was called for the Personality Test. Relying upon

Annexure P-8 at page 38 to the writ petition he

submitted that, the petitioner secured a Combined

Merit Position - 416. The petitioner claimed that,

lower rank candidates had received appointments.

Being aggrieved thereby, the petitioner in the

first round of writ litigation came before this Court by

way of a writ petition W.P. 32241 (W) of 2013. By an

order dated October 9, 2013 the writ petition was

disposed of by directing the Chairman, West Bengal

Regional School Service Commission (Northern

Region) to consider the case of the petitioner made in

his representation dated September 27, 2013 and

then take a reasoned decision thereupon.

Since the respondent No. 6 did not pass the

reasoned order as per the direction of the said co-

ordinate bench dated October 9, 2013, the petitioner

moved a contempt application in which a rule was

issued in 2017.

However, the respondent No. 6 then by a

forwarding letter dated September 1, 2017,

Annexure P-11 at page 46 to the writ petition had

communicated the impugned reasoned order dated

October 29, 2013, Annexure P-12 at page 47 to the

writ petition.

The said reasoned order dated October 29,

2013 passed by the respondent No. 6 is impugned in

this writ petition. Under the said impugned order the

claim of the petitioner was rejected to give

appointment though he had secured a combined

rank of 416 in the said RLST 2011.

The plea for rejection of the petitioner's

appointment was that the petitioner was not found

eligible for consideration under the special category In

Service Para Teacher in terms of the condition

mentioned in the advertisement for recruitment for

the said RLST 2011 published in the news paper on

December 30, 2011 and as per the Government

Order No. 1584-SE(S)/1A-01/09 (Pt) dated

December 21, 2011. The further plea for rejection

was that, the petitioner did not produce any

document along with his prescribed application form

in support of his status as In Service Para Teacher.

Mr. Sarwar Jahan, learned counsel for the

petitioner submitted that, the petitioner was a

Contractual Vocational Teacher, his appointing

authority was the relevant school itself in terms of the

relevant guideline introduced by the West Bengal

State Council of Vocational Education and

Training (for short, the said Vocational Council).

The petitioner had produced all the material

documents in support of his appoint at the time when

he participated in the said RLST 2011. After being

satisfied with those materials produced by the

petitioner, the authorities allowed the petitioner to

participate in the said RLST 2011 and ultimately the

petitioner secured a higher rank the Combined Merit

List 416. Despite having secured the higher rank the

petitioner was not selected by the authorities in an

illegal, wrongful and arbitrary manner and the lower

rank holders were appointed.

Hence, this writ petition.

In course of the argument Mr. Jahan, learned

counsel for the petitioner had relied upon a judgment

of a co-ordinate bench dated April 9, 2021 In the

matter of: Sri Dibya Jyoti Paul Vs. the State of

West Bengal and Ors. in W.P.A. 3780 of 2015.

Relying upon the said judgment Mr. Jahan submitted

that, the persons who were similarly placed as

Vocational Contractual Teachers their appointment

was considered by the co-ordinate bench in detail

after considering all the relevant Rules, Regulations

and Government Orders and thereafter the authorities

were directed to consider the case of such

Contractual Vocational Teachers as to whether

they would fall within the meaning and expression "In

Service Contractual Teachers". Mr. Jahan prayed

for identical reliefs in this writ petition.

Mr. Kanak Kiron Bandyopadhyay, learned

counsel for the respondent Nos. 3 to 6 referring to

Annexure R-3 at page 31 from his client's affidavit-

in-opposition affirmed on August 12, 2020 submitted

that, by way of a clarificatory communication dated

December 1, 2014 the Joint Secretary, School

Education department had clarified that, for the

approval of the service of the contractual teacher

the competent authority should be District

Inspector of Schools/Additional District Inspector

of Schools, Assistant Inspector of Schools and

Sub-inspector of Schools. Mr. Bandyopadhyay

submitted that, the petitioner had failed to produce an

iota of evidence in support of his approval of

appointment from any such authorities. Accordingly,

the appointment of the petitioner was rejected by the

impugned order. He further submitted that, the

petitioner all along applied as a Contractual Teacher

simplicitor and not as a Contractual Vocational

Teacher.

Learned counsel for the petitioner disputed

the contention of the learned counsel for the

respondents and he further referred to the documents

at page 48 onwards to the writ petition in support of

his contention that, the petitioner was all along

pleaded to be a Contractual Vocational Teacher.

After considering the rival contentions of the

parties and after considering the materials on record,

it appeared to this Court that, the said judgment of

the co-ordinate bench In the matter of: Sri Dibya

Jyoti Paul (supra) holds the field.

Mr. Bandyopadhyay has confirmed that no

appeal had been carried out there from.

On a reading of the said judgment of the co-

ordinate bench, this Court is also in respectful

agreement with the same.

shall consider the case of the petitioner in the light of

the said judgment of the co-ordinate bench in the

matter of: Sri Dibya Jyoti Paul (supra) as to whether

the petitioner shall be considered as an In Service

Contractual Vocational Teacher and is eligible to

receive benefit of the ratio laid down by the co-

ordinate bench In the matter of: Sri Dibya Jyoti

Paul (supra).

The entire exercise as directed above, shall be

carried out and completed by the respondent No. 4

positively within a period of four weeks from the

dated of communication of this order. The case of the

petitioner shall be considered on the basis of the

materials available before the selection authority in

respect of the said RLST 2011 as on the date of

submission of documents by the petitioner while

seeking to participate in the said RLST 2011. The

respondent No. 4 after considering all materials as

directed above shall pass its reasoned order in detail.

The respondent No. 4 shall communicate its reasoned

order to the petitioner within a further period of two

weeks from the date of the said reasoned order to be

passed.

In the event, the petitioner succeeds and the

reasoned order goes in favour of the petitioner, then

all further and consequential steps shall be taken by

respondent No. 6 and/or any other authority

positively within a period of four weeks from the date

of communication of the said reasoned order.

In the event, the reasoned order to be passed

by the respondent No. 4 goes in favour of the

petitioner, it will automatically have an overriding

effect on the impugned order dated October 29,

2013, Annexure P-12 at page 47 to the writ petition

passed by the respondent No. 6 and the same shall

lose its force forthwith.

It is made clear that this order shall not create

any equity or right in favour of the petitioner, if the

petitioner is not eligible to succeed to his claim strictly

in accordance with law.

On the above terms, this writ petition being

WPA 27054 of 2017 along with the application being

CAN 1 of 2020 stand disposed of.

There shall, however, be no order as to costs.

Urgent certified photo copy of this order, if

applied for, be supplied to the parties expeditiously on

compliance of usual legal formalities.

(Aniruddha Roy, J.)