Calcutta High Court (Appellete Side)
Chittaranjan Baidya vs Dipankar Mandal & Ors on 22 March, 2023
1
IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Appellate Side
Present: - Hon'ble Justice I.P. Mukerji
Hon'ble Justice Biswaroop Chowdhury
FMA 3534 of 2014
With
CAN/3/2014 (Old CAN 2711 of 2014)
Chittaranjan Baidya
VERSUS
Dipankar Mandal & Ors.
for the appellant: Mr. Ekramul Bari, Adv.
Mr. Santanu Chatterjee, Adv.
Mr. Divya Chatterjee, Adv.
Mr. Rajendra Kumar Nandi, Adv.
for the respondent no.1 Mr. Sundarananda Pal, Adv.
Mr. Manoj Kumar Roy, Adv.
Mr. Lakshmi Kanta Pal, Adv.
for the respondent no. 5 Mr. Bandhubrata Bhula, Adv.
Judgment on: March 22, 2023
Biswaroop Chowdhury, J:
This appeal is directed against the Order dated 10-01-2014 passed
in WP No. 14353 (W) of 2010 with WP 11494 (W) of 2007. The appellant
before us was not a party in the writ petition the Order of which is
assailed but was a candidate in a recruitment interview in which the
respondent no.1 / writ petitioner appeared pursuant to the Order passed
in Writ Petition 11494 (W) of 2007.
The case of the Writ Petitioner/respondent no-1 may be summed up
thus:
1. The Writ Petitioner being unemployed registered his name in the
District Employment Exchange Basirhat on 28.1.2002 and since the
date of registration no interview call was given to the petitioner.
2. The Writ Petitioner came to know from a reliable source that a post
of Clerk Group 'C' was lying vacant at Chowdhury Chwak Santimay
Siksha Niketan (High School) P.O. Kamarganti P.S. Haroa District-
North 24 Parganas and names of 35 candidates have been
sponsored by the District Employment Exchange Authority filling
up the said post of Clerk in the said school excluding the name of
the petitioner. Petitioner's name was not sponsored by the concerned
Employment Exchange or office of the District Inspector of schools
(SE) concerned.
3. The Writ Petitioner made an application for the post of Clerk in the
said school but the authority of the said school did not accept his
application on 24-05-2007 and the authority of the said school has
also stated that there was no provision for taking any application
from outsiders. The post of clerk was a skilled post and the
Employment Exchange concerned did not sponsor the name of the
petitioner.
4. No advertisement was made by the Respondent authorities for filling
up the said vacant post and no notice was displayed in their notice
board.
5. The petitioner being aggrieved by and dissatisfied with the inaction
of the respondent authorities moved a writ petition being No. WP No.
11494(W) of 2007. His Lordship the Hon'ble Justice Biswanath
Samaddar was pleased to pass the following Order:
'I therefore direct the concerned respondent authorities to permit the
Writ Petitioner to appear at the interview for filling up the post of
Clerk/Group 'C' staff in Chowdhury Chawk Santimay Siksha Niketan
(High School) P.O. Kamarganti, P.S. Haroa, District North 24 Parganas
and when such an interview is going to be held by the said authorities
and if he/she is otherwise eligible. However this will create no equity in
favour of the Writ Petitioner and the same shall abide by the result of
the instant writ application.'
6. Pursuant to the Order dated 15-06-2007 passed in WP No. 11494
(W) of 2007 the Writ Petitioner/Respondent no-1 was allowed to
appear at the interview for the post of Clerk at Chowdhury Chak
Santimay Siksha Niketan (H.S.). The Writ Petitioner appeared at the
interview and answered all questions put to him and stood first in
the panel for the post of clerk prepared on the basis of interview held
on 8-07-2007
7. The Writ Petitioner/respondent No-1 upon coming to know that the
panel for the post of Clerk of the school concerned prepared on the
basis of interview held on 8-07-2007 was sent to the District
Inspector of schools (Secondary Education) for approval but the
same not being approved made a representation to the Additional
District Inspector of Schools (SE) Basirhat the respondent no.7
herein on 30/06/2010.
8. As the representation made before the Additional District Inspector
of Schools by the Writ Petitioner/Respondent no-1 was not
considered and decided by the concerned respondent a Writ
application was moved before this Court by the
petitioner/Respondent no-1 being WP. No. 14353 (W) of 2010.
9. By Order dated 10-01-2014 His Lordship the Hon'ble Justice
Tapabrata Chakraborty was pleased to dispose W.P.14353 (W) of
2010 with W.P. 11494(W) of 2007 by observing and directing as
follows:
'Today both the matters have come up for hearing before this Court.
Upon hearing the submissions made by Mr. Maitra, Learned Senior
Advocate appearing for the petitioner, Mr. Ganguly appearing for the State
authorities and Mr. Pal appearing for the said school authorities and
upon considering the materials on record I find that no useful purpose
will be served by keeping the Writ applications pending.
Accordingly both the writ applications are disposed of by directing the
Additional District Inspector of Schools (SE) of Basirhat Sub-division to
take a decision as regards approval of the said panel for the Group - 'C'
post (Clerk) in the said school in accordance with law and upon grant of
opportunity of hearing to the petitioners and the school authorities.
The decision so taken by the said Additional Inspector of Schools
should be communicated to the petitioners as well as the school
authorities.
The entire exercise should be concluded by the Additional District
Inspector of Schools (SE), Basirhat Sub-division within a period of six
weeks from communication of this Order.
The Writ applications are accordingly disposed of.'
Pursuant to the Order passed by the Hon'ble Justice Tapabrata
Chakraborty the Writ Petitioner and the Headmaster Chowdhury Chawk
Santimay Siksha Niketan (H.S.). was called for hearing by the Additional
District Inspector of Schools (S.E.). Basirhat Sub-Division. Upon hearing
the Writ Petitioner and the Headmaster of Chowdhury Chawk Santimay
Siksha Niketan High School, the Additional District Inspector of Schools
(S.E) Basirhat sub-division approved the panel prepared by the School
Authority. It appears from the Order passed by the Additional District
Inspector of Schools that the Additional District Inspector of Schools after
considering the number of candidates appearing pursuant to being
sponsored by the Employment Exchange and the Writ Petitioner
appearing pursuant to Order of Court and having found that the papers
regarding approval of the panel of Clerk in the School in Order was
pleased to approve the panel.
The appellant pursuant to the Order of approval given by the
Additional District Inspector of Schools has preferred this Appeal
challenging the Order passed by the learned trial Court. The Appellant
along with the appeal prayed for leave to prefer the appeal and, filed
application for condonation of delay. This Court by Order dated 22-09-
2014 granted the leave to prefer the appeal after condoning the delay.
It is the contention of the appellant that the appellant being sponsored
by the Employment Exchange for the post of Clerk at Chowdhury Chwak
Santimay Siksha Niketan (H.S.) post-office- Kamarganti, Police Station -
Haroa District- 24 Parganas (North), was issued with an Interview Letter
by Nirapada Mondal the then Secretary of the said School requiring him
to appear at the interview on 8.07.07. It is further contended that
appellant appeared at the interview and performed well and was under a
legitimate expectation that he would be selected as the 1st empanelled
candidate and appointed to the post in question. It is also contended that
the appellant met the Headmaster of the said school to ascertain the fate
of selection process and everytime was assured that as per his academic
qualification and performance amongst all participated candidate the
appellant deserves 1st position and on completion of formality panel would
be published. On such assurance the appellant had been passing days
with a great hope that either today or tomorrow he would be appointed to
the post in question. The appellant all on a sudden came to learn that one
Dipankar Mondal son of Nirapada Mondal village Chowdhury Chwak Post
Office - Kamarganti, Police
Station-Haroa, District- 24 Parganas (North) filed a Writ Application vide
WP No. 14353 (W) of 2010 claiming himself as 1st empanelled candidate of
the panel for said post in question and praying for approval of said panel,
without impleading appellant as a party to said Writ Application and the
said Writ Application has been disposed of on 10.01.2014 by the Hon'ble
Justice Tapabrata Chakraborty inter-alia directing the Additional District
Inspector of Schools concerned to take a decision regarding approval of
panel for said post in question. It is contended by the appellant that the
appellant came to learn that throughout the selection process mal
practice and/or nepotism has been adopted. The appellant further
contends that he came to know that though name of son of the then
Secretary of the said school was not sponsored by the Employment
Exchange he appeared in the interview on the basis of an interim Order
dated 15-06-2007 passed in WP. No. 11949(W) of 2007. It is also
contended, that the appellant came to know that the then Secretary of
said school took active part throughout out the selection process with an
ill motive to favour his son the Writ Petitioner who was a candidate by
virtue of Courts Order and on 27-06-2007 said Nirapada Mondal issued
interview letter in favour of all candidates. The said Secretary of the
Managing Committee influenced unduly the Selection Committee to
procure a panel by placing his son i.e. the Writ Petitioner at the top
denying the performance and academic qualification of other candidates
and illegally placed the appellant in the 2nd position instead of first. The
Managing Committee though was represented on the hearing dated 10-
01-2014 but relation of the Writ Petitioner and Nirapada Mondal was
never disclosed before the Court. It is also contended that in another Writ
Application filed by 4 other candidates being WP. No. 20719 (W) of 2007
was also pending before this Court and appearing in the list of Hon'ble
Justice Tapabrata Chakraborty when the said Order was passed in W.P.
No.14353 (W) of 2010. The pendency of WP. No. 20719 (W) of 2007 was
suppressed when Order in WP. No. 14353 (W) of 2010 was passed.
Heard Learned Advocate for the appellant and Learned Advocate for the
respondents. Perused the petition of appeal and the materials on record.
Mr. Bari Learned Advocate appearing for the appellant has confined his
argument to the ground of eligibility of the Writ Petitioner/Respondent
no-1 to appear at the interview for the post of Clerk at Chowdhury Chwak
Santimay Siksha Niketan (HS), although this ground was not taken in the
memorandum of appeal. However as the point raised by Mr. Bari is a
question of law, we propose to deal, with the same even though it is not
taken as a ground of appeal. Mr. Bari submits that as the Writ Petitioner
was not sponsored by the Employment Exchange he is not eligible to
appear at the interview in absence of advertisement. Mr. Bari submits
that the Learned Judge permitted the Writ Petitioner to appear at the
interview by virtue of interim-Order which is not sustainable in the eye of
law.
Mr. Bari relies upon the following decisions passed by a Division Bench
of this Court. Debendra Nath Mondal. Vs Ratan in 2008(1) CLJ Cal-912.
Gaya Rajbanshi vs State of West Bengal and Ors reported in 2007 (2)
CLJ Cal-P-105
Judgment of the Hon'ble Special Bench in the matter of:
Tulshi Ray Vs Sri Krishnau Roy and Ors.
FMA No-768 of 2007
With
WP 30027 (W) of 2008
Shymal Kumar Jana
Vs
State of West Bengal and Ors.
With
WP. No. 27411 (W) of 2009.
Rabindra Nath Pradhan.
Vs
State of West Bengal and Ors.
The Division Bench of this Court in the case of Debendra Nath Mondal
Vs Ratan Kumar Das and Ors (supra) observed as follows:
"Learned Advocate appearing for the respondent Writ Petitioner has
opposed this appeal by contending that on 27th February 2001, when the
secretary of the Managing Committee allowed participation of the
appellant in the interview, the judgment passed by the Special Bench in
the case Sri Debasis Dutta (supra) was holding the field and it was
overruled subsequently in the case Rabindra Nath Mohata (supra). On 7th
July 2005 and since the Order passed by D.P. Kundu, J (as His Lordship
then was) never was an Order allowing participation in the interview but
only an order directing to dispose of the prayer of respondent no. 6 for
permanent appointment the Secretary of the Managing Committee was
bound to reject the application as under the recruitment procedure there
was no scope either to absorb someone in a permanent post irrespective
of his alleged working on taking a device of backdoor method by
regularizing his service or there was no scope to allow participation in the
interview as per law applicable in the field."
In the case of Gaya Nath Rajbanshi Vs State of West Bengal and Ors
reported in 2007 (2) CLJ. (Cal) P-105 a Division Bench of this Court
observed as follows:
"Hence, it appears that Visweshwara Rao (supra) is a judgment not in
personem but a judgment in rem and the same was a judgment declaring
the law under Article 141 of the Constitution of India. From the judgment
of Visweshwara Rao (supra) it appears that an individual non-sponsored
candidate got no right to appear suo motu and/or by decision of the
Managing Committee and/or employer concerned allowing any individual
non-sponsored candidate to appear in the interview as per their sweet will
unless the right of a non-sponsored candidate for appearance in the
interview matures on the contingency of advertisement of the concerned
vacancy in the daily Newspapers and/or Employment Exchange
notification having a wide publication and/or other media advertisement,
radio and television as held by the Apex Court. As a corollary thereof
since an individual non-sponsored candidate got no right to appear in the
interview simplicitor in the absence of the aforesaid contingency of
advertisement of the post in the Newspapers and other media, the High
Court also sitting in the Writ Jurisdiction cannot allow the appearance of
the individual candidate until and unless there is an advertisement of the
particular post inviting the names of the general candidates by publishing
the same in the State Wide published daily Newspaper for the reason that
allowing of any individual candidate in absence of those contingencies in
exercising the power under Article 226 of the Constitution of India would
be nothing but an exercise of power which per se violative of Article 14 of
the Constitution of India as the other identically placed candidates who
may be the next door neighbour of the Writ Petitioner who since could not
approach the High Court due to financial stringency or for any other
reason would be denied to appear in the interview despite fulfillment of
qualification alike the Writ Petitioner. On considering that aspect of the
matter, the Apex Court accordingly in the case Visweshwara Rao (supra)
opined the right of non-sponsored candidates to appear in the interview
only in the contingency when such post would be advertised in the
newspaper and/or any employment news publication along with
displaying on the notice boards etc. as has been quoted in paragraph-8 of
Arun Kumar Nayak (supra). In the case Visweshwara Rao (supra) the
Apex Court accordingly held "Better view appears to be that it should be
mandatory for the requisitioning authority/establishment to intimate the
employment exchange, and Employment Exchange should sponsor the
names of the candidates to the requisitioning departments for selection
strictly accordingly to seniority and reservation, as per requisition. In
addition, the appropriate department or undertaking or establishment
should call for the names by publication in the newspapers having wider
circulation and also display on their notice boards or announce on radio,
television and employment news bulletins, and then consider the cases of
all the candidates who have applied. If this procedure is adopted, fair play
would be subserved. The equality of opportunity in the matter of
employment would be available to all eligible candidates."
In the case of Tulsi Ray Hon'ble Special Bench of this Court observed
as follows:
"From the decision of the Supreme Court in the case of Exise
Superintendent Malkapatnam, Krishna District, A.P. v. K.B.N.
Visweshwara Rao (supra), quoted by us while dealing with first question,
it is clear that the aforesaid direction of the Supreme Court to advertise,
being a law declared by it, a valuable legal right accrued in favour of a
person having the requisite qualifications for the post concerned to apply
for being considered for appointment even if such a person is not
sponsored by the Employment Exchange pursuant to the statutory Rules
framed by the State in that behalf and the selection without such
advertisement has been held to be violative of the fundamental rights
conferred under Articles 14 and 16 of the Constitution. Therefore, if the
school authority proceeds to fill up the vacancy without complying with
the direction of the Supreme Court, a person not sponsored bv the
Employment Exchange having requisite qualification can approach the
High Court for a direction upon the employer to follow the said direction
so that pursuant to an advertisement so given, he can apply for being
considered for the post along with other applicants.
A person by taking aid of the said decision can most certainly come to
a High Court for enforcing the aforesaid direction. But he cannot
approach the Court for permitting him to appear at the selection process
on the strength of the said decision of the Supreme Court if he simply
prays for permitting him to appear at the process of selection but without
praying for direction for giving advertisement with the object of avoiding
contest with the others, similarly placed with him, who would also apply
pursuant to such advertisement. In our opinion, the High Court in such
circumstances should reject his prayer. In the cases before us, all the
petitioners prayed for direction for giving advertisement but in the case of
Tulsi Roy, the Learned Single Judge did not pass such direction and
disposed of the writ-application on the very first day of moving the same.
Thus, in this type of a writ-application, it is the first duty of the Court is
to see whether the allegations of the writ-petitioner that he has the
requisite qualification for the post concerned. If the Court is satisfied on
that aspect then it should verify whether the allegation of the writ-
petitioner that no advertisement was given was correct or not. After being
so satisfied from the materials on record and after giving an opportunity
to contest the allegation, the writ-petition should be disposed of by
directing the authority to give advertisement for the post with liberty to
the writ-petitioner to apply pursuant to such advertisement."
Upon perusing the Order passed by the learned trial Court it will
appear that although the learned trial Court disposed the Writ
applications after granting liberty to file affidavits to the respondents and
the respondent no-5, Headmaster Chowdhury Chawk Santimay Siksha
Niketan (H.S.) filed affidavits and the State Authorities were also
represented at the time of hearing of the matter but learned trial Judge
did not pass any mandatory Order but left the issue of approval of panel
to be decided by Additional District Inspector of Schools in accordance
with law, upon giving opportunity, of hearing to the School Authority and
the Writ Petitioner.
As the Additional District Inspector of School was permitted to take
decision with regard to approval of panel, he had the authority to either
approve the panel or refuse to approve -the panel by citing the reasons.
It appears from the Order of Additional District Inspector of Schools
(S.E.) Basirhat Sub-Division that in terms of the Order dated passed in
the Writ Application being WP. No-14353 (W) of 2010 with WP 11494 (W)
of 2007, that the Additional District Inspector of Schools (S.E.) upon
hearing the Writ Petitioner, the Secretary and the Headmaster of
Chowdhury Chawk Santimoy Sikhsha niketan School and upon finding
the panel in Order approved the said panel. Thus at the time of
consideration of panel it was open to the Additional District Inspector of
Schools to reject the entire panel, or to cancel the interview of the Writ
Petitioner, as he was not sponsored by the Employment Exchange. It is to
be remembered that by the interim Order dated 15-06-2007 passed in WP
No. 1494 (W) of 2007 a direction was issued upon the respondent
authorities to permit the Writ Petitioner to appear at the interview for
filling up the post of Clerk/Group - 'C' staff in Chowdhury Chawk
Santimay Siksha Niketan (High School) P.O. Kamarganti, P.S. Haroa and
when such an interview is going to be held by the said Authorities and if
he is otherwise eligible. It was further clarified that the appearance in
interview will create no equity in favour of the Writ Petitioner in getting
the Employment and the same to abide by the result of the Writ Petition.
Thus from the interim Order passed in the Writ Application it will be
clear, that firstly the School Authorities were directed to allow the Writ
Petitioner to appear at the interview if the petitioner is otherwise eligible
and the same will not create any equity in favour of the Writ Petitioner in
getting the employment. Now the question of eligibility contains different
factors, firstly it involves educational qualification secondly with regard to
age and thirdly with regard to nationality. Hence when requisition is sent
to the Employment Exchange to sponsor candidates whose names are
registered in the said exchange of the District the said exchange does the
needful after considering the criteria. However, when an application is
made pursuant to an advertisement for a post the Employer concerned
has to verify the credentials of the applicants to ascertain as to whether
the applicants have fulfilled the eligibility criteria similarly when a
candidate appears in the interview as per Order of Court the applicant is
required to furnish necessary particulars in Order to enable the employer
to ascertain as to whether the said candidate is eligible to appear at the
interview.
The interim Order dated 16-06-2007 passed by a learned Single Judge
of this Court clearly gave the discretion to the School Authority to verify
and consider as to whether the Writ Petitioner was eligible to appear at
the interview prior to granting opportunity to appear at the interview.
Thus it is clear that the learned Judge did not pass any blanket Order
directing the School Authority to permit the Petitioner to appear at the
interview for the post of clerk. The School Authority after being satisfied
about the eligibility of the Writ Petitioner permitted him to appear at the
interview. Although no dispute is raised with regard to the educational
qualification, age or nationality but the main point of law urged by the
Appellant and is required to be decided in this appeal is whether a non-
sponsored candidate from Employment Exchange has right to appear in
the interview when the said post is not advertised by the employer/School
Authority.
Learned Advocate for the appellant in support of his argument relied
upon two decisions of Division Bench of this Court namely Gaya
Rajbanshi Vs State of West Bengal and Ors (supra) and Debendra Nath
Mondal Vs Ratan Kumar Das and Ors (supra). The Hon'ble Division
Bench of this Court in the above matters held that a non-sponsored
candidate of employment exchange had no right to appear in the interview
unless the said post was advertised. The Hon'ble Division Bench by the
said Judgments struck down the selection of the candidate who was not
sponsored by the employment exchange and directed that the selection
process to be confined on the basis of results of those candidates whose
names were sponsored by the employment exchange. Thus a candidate
who stood second in the selection test got the opportunity to get
appointed as his name was sponsored by the employment exchange on
the other hand a candidate who stood first in the selection test could not
be considered for appointment as their names were not sponsored by the
employment exchange but appeared for interview on the basis of order of
Court or was permitted suo moto by the School Authority. However as
there are contrary decisions of division bench of this Court a special
Bench was constituted in the matter. The Hon'ble Special Bench while
considering the issue formulated the following questions for decision in
the said writ application.
1. Whether the principle laid down in the aforesaid case of Excise
Superintendent Malkapatam Krishna district A.P versus K.B.N
Vishesh Warra Rao, reported in (1996) 6 SCC 216 is applicable also
to a case of a government sponsored school.
2. Whether for the post of non-teaching staff of a government-
sponsored school, a person whose name has not been sponsored by
the employment exchange, can file a writ application thereby praying
for allowing him to participate in the process of selection without
praying for a direction for advertisement for that post in the
newspaper as held by the Supreme Court in the case Excise
Superintendent.
3. Whether the West Bengal schools service commission (selection of
post of non-teaching staff) rules 2009 is applicable in respect of
vacancy where the selection of the selected candidate has been set
aside by a writ court for non-compliance of the formalities
mentioned by the Supreme Court in the case of Excise Supt (Supra)
notwithstanding the fact that the process of initial selection for the
post concerned started at a point of time when the aforesaid rules of
2009 had not come into operation.
The Hon'ble Special Bench observed as follows:
"From the decision of the Supreme Court in the case of Excise
superintendent Malkapatnam's, Krishna district , versus K. B.
N.visweshwara Rao (SUPRA), quoted by us while dealing with first
question, it is clear that the aforesaid direction of the Supreme
Court to advertise, being a law declared by it, a valuable legal right
accrued in favour of a person having the requisite qualifications for
the post concerned to apply for being considered for appointment
even if such a person is not sponsored by the employment exchange
pursuant to the statutory rules framed by the State in that behalf
and the selection without such advertisement has been held to be
violative of the fun fundamental rights conferred under article 14
and 16 of the Constitution. Therefore, if the school authority
proceeds to fill up the vacancy without complying with the direction
of the Supreme Court, a person not sponsored by the employment
exchange having requisite qualification can approach the High Court
for a direction upon the employerto follow the said direction so that
pursuant to an advertisement so given, he can apply for being
considered for the post along with other applicants.
A person by taking aid of the said decision can most certainly come
to a High Court for enforcing the aforesaid direction. But he cannot
approach the court for permitting him to appear at the selection
process on the strength of the said decision of the Supreme Court if
he simply prays for permitting him to appear at the process of
selection but without praying for direction for giving advertisement
with the object of avoiding contest with the others, similarly placed
with him, who also apply pursuant to such advertisement. In our
opinion the High Court in such circumstances should reject his
prayer. In the cases before us, all the petitioners prayed for direction
for giving advertisement but in the case of Tulsi Roy, the learned
single Judge did not pass such direction and disposed of the writ
application on the very first day of moving the same. Thus in this
type of a writ application, it is the first duty the court is to see
whether the allegation of the writ petitioner that no advertisement
was given was correct or not. After being so satisfied from the
materials on record and after giving an opportunity to contest the
allegation, the writ petition should be disposed of by directing the
authority to give advertisement for the post with liberty to the writ
petitioner to apply pursuant to such advertisement.
We thus answer the second question formulated by us in the
negative..."
The Hon'ble special bench while answering the second question
which was formulated, in the negative was pleased to observe that a
person taking the aid of the decision passed by the Hon'ble Supreme
Court in the case of Malkapatnam, Krishna district A. Pvs KBN.
Vishesh Wara Rao reported in (1996)6 SCC.216, can most certainly
come to a High Court for enforcing the aforesaid direction. But he
cannot approach the court for permitting him to appear at the
process of selection but without praying for direction for giving
advertisement with the object of avoiding contest with others
similarly placed with him who also apply pursuant to such
advertisement. The High Court in such circumstances should reject
his prayer. The Hon'ble bench was further pleased to observe that in
this type of writ application it is the first duty of the court to see
whether the allegation of the writ petitioner that no advertisement
was given was correct or not. After being so satisfied from the
materials on record and after giving an opportunity to contest the
allegation, the writ petition should be disposed of by directing the
authority to give advertisement for the post with liberty to the writ
petitioner to apply pursuant to such advertisement.
Now it is necessary to consider as to whether the decision of
the Hon'ble Special Bench in the case of Tulsi (Supra) is applicable
to the facts of the case. In the case of Tulsi Roy the learned single
Judge while disposing the writ application on the first day directed
the school authority to permit the writ petitioner to participate in the
process of selection which according to the Hon'ble Special Bench is
bad in law. In this matter it appears from record that the petition by
the respondentno1/writ petitioner beingWPno.11494 (W) of 2007
was moved on15/06/2007 upon notice to all parties, and State of
West Bengal was represented on the date fixed and other parties
including school authority did not appear. The learned Judge while
allowing the writ petitioner to appear at the interview was pleased to
observe as follows.
'In the circumstances, I am of the clear opinion that in the
instant writ petition an interim order can be passed by following the
ratio of the decision of division bench of this Hon'ble Court rendered
on18th May, 2007. I therefore direct the concerned respondent
authorities to permit the writ petitioner to appear at the interview for
filling up the post of'clerk'/Group-C staff in Chowdhury Chawk
Santimoy Shiksha Niketan high School P. O, Kamarganti, P. S.
Haroa when such an interview is going to be held by the said
authorities and if he/she is otherwise eligible. However this will
create no equity in favour of the writ petitioner in getting the
employment, and the same shall abide by the result of the writ
application.'
Thus upon a plain reading of the interim order passed by the
learned single Judge of this court in WPNo.11494 (W) of 2007 it will
appear that the learned Judge being convinced by following the ratio
of the decision of the division bench of this court rendered on 18
May 2007 in Mat No: 4912 of 2006 (ManikChandra Das vs State of
West Bengal and others and the judgments of the Hon'ble Supreme
Court relied upon passed the interim order permitting the writ
petitioner to appear at the interview. As the school authority did not
appear on the date of moving the writ application there was no scope
for the court to verify as to whether the writ petitioner possessed the
required qualification to appear at the interview. Thus the school
authority concerned was directed to permit the petitioner to appear
at the interview if the writ petitioner was otherwise eligible. The
learned Judge was further pleased to direct that the appearance of
the writ petitioner in the interview will create no equity in his favour
in getting the employment and the same to abide by the result of the
writ application. Hence the learned trial judge kept all the points
open to be raised at the final hearing of the writ application.
Thus upon perusal of the interim order passed in WP11494 (W) of
2007 and the observation made by the Hon'ble Special Bench in the
case of Tulsi Roy which considered the order passed by the learned
trial judge in the said writ application it will appear that the facts of
the said case slightly differed from this case. The observation made
by the Hon'ble Special Bench and the requirement laid down are
partly complied with. It is a settled legal position that a decision is
an authority for what it decides and not that everything said therein
constitute a precedent. A decision of the court takes its colour from
the question involved in the from which it was rendered. Reliance
may be placed to the Constitution bench judgment passed in the
case of State of Punjab versus Baldev Singh reported in 1999 (6)
SCC172. It has been held by the Apex Court in the case of
Commissioner of income tax versus sun engineering Works (P) LT D,
reported in 1992 (4) SCCP363 at para-39' "judgment have to be
considered in the light of the questions which were before the court.
A decision takes colour from the questions involved court must
carefully try to ascertain the true principle laid down by decision
and not to pick out words and sentence from the judgment divorced
from the context of the questions under consideration by the court
to support their reasoning."
Further it is a settled legal position that one additional or
different fact can make a world of difference between the conclusions
in two cases even when the same legal principles are applied in each
case.
In the case before us observation made by the Hon'ble Special
Bench is considered with the interim order passed by the learned
single Judge. The learned Judge except passing an order of making
publication in newspaper for the post of clerk in the concerned
school gave liberty to the school authority to verify and allow the writ
petitioner to appear at the interview if he was otherwise eligible. All
points in the said writ petition were kept open. The Hon'ble Special
Bench observed that the writ court while deciding a writ petition
praying for permission to appear at the interview should verify the
eligibility of the writ petitioner and after being satisfied about the
eligibility of the writ petitioner direct publication in the newspaper
and other media so that the writ petitioner can apply for the post
along with others. In the instant case the school authority was not
specifically directed to make advertisement. The challenge in the
said writ petition was absence of advertisement and an observation
was made by the learned Judge in the interim order about the acts
of the School authority in not making advertisement for the said
post. Thus, it was open to the school authority to give advertisement
for large participation of candidates and it was also open to the
District Inspector of schools to pass direction upon the school
authority to give advertisement so that there was wide choice to the
school authority to select a suitable person from large number of
applicants.
In the instant case no such steps were taken prior to holding
interview nor was any objection raised by the District Inspector of
schools at the final hearing of the writ application. Moreover the writ
petition WP. NO-14353 (W) of 2007 was disposed along with WPNO-
14353 W of 2010 by directing Additional District Inspector of schools
to take a decision as regards approval of the panel for group C Post
(clerk) in Chowdhury Chawk shantimoy Shiksha Niketan (high
School) upon granting opportunity of hearing to the writ petitioner
and the school authority. Thus upon hearing the writ petitioner and
the school authority and upon perusing the panel the Additional
District Inspector of schools decided to approve the panel. In the
event the Additional District Inspector of schools was of the view
that more participation of candidates were required by
advertisement for selecting a suitable candidate or that there was
objections from people regarding holding interview without
publication by which lot of persons deprived from participating in
the interview he had the discretion to refuse the grant of approval of
panel and direct school authority to make fresh publication.
Moreover no challenge by any person who could not appear in the
interview due to non-publication in the newspaper has been made
by any representation to the District Inspector of schools or by filing
writ application.
The object of making publication in the newspaper is to grant
reasonable opportunity to all the persons eligible to participate in
the interview and not to deprive any persons whose name do not
appear in the employment exchange but are otherwise eligible.
Further by making publication for a post a school or undertaking
can select a suitable candidate from a large number of participants.
Thus in the absence of any objection from third party who could not
appear in the interview due to non-publication and in the absence of
any objection from school authority or District Inspector of schools
before the trial court or before this court that due to non-publication
of advertisement a suitable candidate could not be appointed as
there was participation by only 25 candidates and the fact the writ
petitioner/respondent No.1 is already appointed in the school and is
discharging service for a period of eight and half years it would not
be just and proper to strike down the appointment of the writ
petitioner/respondentno1 and direct the school authority to start a
fresh selection process.
Upon considering the facts of the case and the decision of the
Hon'ble Special Bench in the case of Tulsi Roy and others (Supra)
this court with due respect to the Hon'ble special bench is of the
view that as the facts of the case differs from that of Tulsi Roy and
considering the special circumstance that the writ
petitioner/respondent No.1 is already in service for 8 ½ years it
would not be reasonable to strike down the appointment of the writ
petitioner/respondent No. 1. In the event the appointment of the
writ petitioner after serving for 8 ½ years is struck down the school
authority will again have to start fresh selection process incurring
huge expenditure and the work will also be affected for a
considerable period till a new candidate is appointed. Moreover the
writ petitioner after serving for a period of 8 ½ years will be thrown
out of employment. Courts should normally refrain from passing
orders against any person which will cause extreme hardship to the
said person and put him into a helpless situation unless the said
person has committed fraud as fraud and justice cannot dwell
together and fraud vitiates justice. In the instant case no fraud is
committed by the writ petitioner thus no harsh order be passed in
the instant case.
Now with regard to the ground raised by the appellant in the
appeal although not argued at the time of hearing is that there was
large malpractice at the time of interview for the purpose of enabling
the writ petitioner/respondent No.1 to succeed in the interview this
court is of the view that this is a question of fact and in the event the
appellant was aggrieved by such acts of the School authority and
Interview Board it was open to him to complain before District
Inspector of schools against such malpractice immediately after the
interview. The appellant has neither made any representation before
the District Inspector of schools regarding malpractice nor moved
any writ petition after the interview was held challenging such
malpractice. The appellant knowing fully well that he was 2nd in the
panel chose to come up in appeal after the period of about six
months from the date of appointment of the writ petitioner in the
concerned school. Even if it is assumed that the writ petitioner was
not eligible to appear at the interview as there was no publication
the appellant does not become automatically eligible to be selected
as fresh selection process is to be initiated by making publication in
terms of judgment of Hon'ble Special Bench.
Now the point to be considered and decided is whether in the
present facts and circumstances of the case the appellant can be
considered and appointed. It appears from record that the appellant
was registered in the employment exchange and was sponsored for
interview at the age of 40 years. The appellant although did not
stand first in the said interview but stood second. During the year
2007 when the interview was held a decision of the division bench of
this court in (Gaya Nath Rajbanshi vs State of West Bengal) reported
in 2007(2) CLJ (Cal) p105 held that non-sponsored candidates from
employment exchange were not eligible to appear for interview
unless the post was advertised. Thus in the said case selection was
to be confined within the sponsored candidates. Although there were
contrary judgments in this regard but the appellant did not move
writ application when non-sponsored candidate appeared in the
interview by enquiring about the situation or preferring an appeal on
the basis of the said judgment when the interim order was passed.
The appellant chose to wait for seven years till the appointment
process was completed and challenged the appointment of the writ
petitioner in the year 2014 when the judgment of the Hon'ble Special
Bench became binding precedent. Even if appointment of non-
sponsored candidate is held to be bad by virtue of the said judgment
the selection process is to start afresh by making necessary
publication. Thus there is no scope for the sponsored candidates
who stood 2nd to be selected for appointment as the judgment of the
Hon'ble Special Bench is to be followed and fresh process of
appointment is to be initiated by publication in newspapers.
Considering the special circumstances of this case that the
appellant was a sponsored candidate from the employment exchange
and stood second in the panel and the judgment of the division
bench of this court in Debendra Nath Mondal (supra) and (Gaya
Nath Rajbanshi) (supra) which held a non-sponsored candidate had
no right to appear at the interview unless the post was advertised
the appellant having stood second in the panel had the right to be
selected for appointment to the exclusion of the writ petitioner by
virtue of the said decisions. However there are contrary decisions
and the subsequent decision of the Hon'ble special bench came in
the year 2011. It can be said that the appellant proceeded with a
legitimate expectation. Upon further consideration of the fact that
the name of the appellant was sponsored when he was 40 years old
and the fact that the appellant pursuant to the appointment of the
writ petitioner preferred this appeal and is now about 56 years age
the appellant should be appointed in the event there is vacancy in
the post of clerk in the school. However if there is no vacancy a
supernumerary post of clerk should be created and the appellant
should be appointed in the said post.
Thus this appeal stands disposed by affirming the order dated
10 January 2014 passed in WPNO14353 (W)2010 and the
appointment of the writ petitioner/respondent No. one in the post of
clerk in Chowdhury Chawk shantimay Shiksha Niketan and with the
direction upon the respondents to appoint the appellant in the event
there is vacancy in the post of clerk in Chowdhury Chawk
Shantimoy Shiksha Niketan within eight weeks of communication of
the Order and in the event there is no vacancy supernumerary post
of clerk be created by Sec Department of Education (schools) State of
West Bengal and the appellant appointed within the aforesaid
period. Notional pay scale be fixed by treating the appointment from
the date when the writ petitioner was appointed. The school
authority shall intimate the District Inspector of schools (secondary
education) North 24 Parganas as to whether there is vacancy or not,
within three weeks of communication of the Order.
The appeal stands disposed.
I agree
(I.P. MUKERJI, J) (BISWAROOP CHOWDHURY, J)
