Swapan Kumar Hazra & Ors vs The State Of West Bengal & Ors
2023 Latest Caselaw 1973 Cal

                           IN THE HIGH COURT AT CALCUTTA
                             Constitutional Writ Jurisdiction
                                     Appellate Side

Present :- Hon'ble Justice Amrita Sinha

                                  WPA 29065 of 2013
                             Swapan Kumar Hazra & Ors.
                                          Vs.
                            The State of West Bengal & Ors.

                                         With

                                  WPA 18303 of 2015

                                    Sabitri Mahata
                                          Vs.
                            The State of West Bengal & Ors.


For the Writ Petitioners                :-    Mr. Rabindranath Mahato, Adv.
                                              Mr. Lal Ratan Mondal, Adv.
                                              Mr. Dilip Kumar Sadhu, Adv.
                                                           ...In WPA 18303 of 2015
                                              Mr. Sakya Maity, Adv.
                                                           ...In WPA 29065 of 2013

For the State                           :-    Mr. Subhabrata Dutta, Adv.
                                              Mr. Tapas Kumar Mandal, Adv.
                                                          ...In WPA 18303 of 2015

For the respondent school               :-    Mr. Ekramul Bari, Adv.

Ms. T. Basak, Adv.

Sk. Imtiazuddin, Adv.

For the respondent no. 7                :-    Md. Shahjahan Hossain, Adv.
                                              Mr. Sakya Maity, Adv.
                                              Mr. Prithwiraj Biswas, Adv.
                                              Ms. Prubasha Goswami, Adv.
                                                           ...In WPA 18303 of 2015

Heard concluded on                      :-    17.02.2023

Judgment on                             :-    24.03.2023


Amrita Sinha, J.:-

Swapan and two others filed writ petition being WP No. 24339 (W) of 2013

seeking regularization of service alleging that they were rendering continuous

service in the Goaltor High School (H.S.) but the school did not regularize their

service against the vacant posts. The petitioners claimed that they were eligible for

being appointed in the post of non-teaching staff but the school was trying to fill up

the vacant posts through direct recruitment without considering their case.

The petitioners averred in the writ petition that there were several vacancies

in the post of non-teaching staff and the school management engaged/ appointed

the petitioners as non-teaching staff in the vacant posts. Swapan was appointed as

Group-C employee and all the petitioners performed their work satisfactorily. The

school paid monthly honorarium to the petitioners.

Despite repeated requests the managing committee did not issue any

appointment letter in favour of the petitioners, but they were able to obtain a

written declaration from the employees of the school that the petitioners were

serving in the school.

An advertisement was published by the managing committee of the school in

the daily newspaper on 14th September, 2013 for recruitment in one vacant post of

Group-C and two vacant Group-D posts. Being aggrieved by the act of the

managing committee of the school to fill up the vacant posts by ignoring the claim

of the petitioners for regularization, Swapan and two others filed yet another writ

petition being WPA No. 29065 (W) of 2013 which was taken up for consideration on

26th September, 2013 when the Hon'ble Court was pleased to direct the parties to

file their affidavits. The point of maintainability of the writ petition was kept open.

The interim order prayed for by the petitioners stood refused. The Court, however,

directed that steps taken by the respondents on the basis of the impugned

advertisement shall abide by the result of the writ petition.

Affidavits have since been filed by the parties and the matter is being decided

by the court on merits.

The earlier writ petition filed by Swapan and two others being WP No. 24339

(W) of 2013 seeking regularization was also taken up for consideration on the same

day i.e, 26th September, 2013. The Court after hearing the parties recorded that the

petitioners failed to produce any document in support of their appointment to the

posts under reference adhering to the provisions of the West Bengal Schools

(Recruitment of Non Teaching Staff) Rules, 2005. The Court observed that it is the

settled principle of law that the recruitment rules have to be followed strictly and

not in breach. The Court found that the prayer of the petitioners to regularize or

give approval of appointment cannot be allowed as the petitioners do not have any

legally enforceable right. The writ petition was dismissed.

Challenging the order of dismissal the petitioners preferred an appeal before

the Hon'ble Division Bench being MAT 1622 of 2013. The said appeal was taken up

for consideration by the Hon'ble Division Bench on 19th November, 2013. The

Hon'ble Division Bench recorded that pursuant to the advertisement published on

14th September 2013 the appellants / writ petitioners applied. The appellant no. 1

i.e. Swapan has not been called for interview. As it was submitted that the

petitioners were serving in the school for the last eleven years, the Court allowed

Swapan to participate in the interview to be held subject to the result of the appeal.

The order records that Swapan has crossed the age bar and would otherwise

not be eligible for the post but as he has been allowed to continue in service

temporarily, not allowing him to participate in the interview would be to deprive

him for all times to a permanent post. The said reasoning was in view of the

decision reported in 2013 (1) CHN (Cal) 9 (Gobinda Chandra Mondal vs. Principal,

Rabindra Mahavidyalaya).

Swapan participated in the recruitment process and his name was

empanelled in serial no. 1 of the merit list.

Sabitri is a contender to the Group-C post of the school. In response to the

advertisement published by the school, Sabitri applied and was called for interview.

She appeared before the selection committee and claims to have performed well.

Her name was empanelled in serial no. 2 of the merit list. Sabitri apprehended that

if the panel is approved, then she may lose her chance of being appointed in the

single vacant post. As the District Inspector of Schools was actually taking steps to

approve the panel despite pendency of the appeal filed by Swapan, Sabitri filed a

writ petition before this Court being WP No. 36555 (W) of 2013.

Sabitri's petition being WP 36555 (W) of 2013 was heard and disposed of on

23rd April, 2014. The Court observed that the appeal preferred by Swapan was

pending and the Hon'ble Division Bench was in seisin of the matter. By way of an

interim measure, Swapan was permitted to appear in the interview subject to the

decision of the appeal. As the Hon'ble Division Bench was yet to decide the fate of

Swapan, to avoid any conflict of opinion, it would be just and proper for the parties

to take steps for early hearing of the appeal so that the matter can be resolved.

Sabitri not being a party in the appeal preferred by Swapan and others filed

an application for addition of party before the Hon'ble Division Bench. The Hon'ble

Division Bench permitted Sabitri to be added as respondent in the appeal.

During pendency of the appeal (MAT 1622 of 2013) and the writ petition filed

by Swapan (WPA 29065 of 2013) and Sabitri (WPA 18303 of 2013), the District

Inspector of Schools, Secondary Education in January, 2015 approved the panel

forwarded by the school authority with condition that it will abide by the final

result of MAT 1622 of 2013. The name of Swapan appeared in the first position of

the approved panel.

After the approval of the panel, the appellants i.e. Swapan and others

submitted before the Hon'ble Division Bench that in view of the subsequent

appointment of the appellants through regular selection process, the appeal have

become infructuous. Prayer was made for not pressing the appeal. The Hon'ble

Division Bench by order dated 30th June, 2015 recorded the submissions made by

the learned senior counsel representing Swapan and others and dismissed the

appeal as 'not pressed'. The Hon'ble Division Bench recorded that the Court did not

decide any issue raised in the appeal on merits.

Consequent to the order passed by the Hon'ble Division Bench, the District

Inspector of Schools on 12th August, 2015 withdrew the condition imposed in the

letter of approval of appointment issued in favour of Swapan and confirmed his

appointment. Swapan is serving in the school till date.

The contention of Sabitri is that as Swapan was ineligible to appear in the

recruitment process being overaged, accordingly, his appointment is bad in law. It

has been contended that there is no order relaxing the age bar of Swapan. Till a

formal order is passed condoning the overage, Swapan cannot be appointed in the

said post. Formal appointment letter was never issued by the school authority in

favour of Swapan and, accordingly, Swapan will not get the benefit of the judgment

in Gobinda Chandra Mondal (supra).

It has been contended that Swapan was permitted to participate in the

recruitment process as an interim measure, but the Court did not decide the

eligibility of Swapan to participate in the said process. On dismissal of the appeal,

the interim order passed therein merged with the final order and, accordingly,

Swapan cannot be permitted to remain in service any further.

The moment the appointment of the first empanelled candidate is set aside,

the second empanelled candidate i.e. Sabitri qualifies for appointment and she

ought to be appointed in the said vacancy. Prayer has been made to direct the

respondent authority to issue appointment letter in her favour as her name

appeared in the second position of the merit list.

Learned advocate representing the school authority admits that Swapan is

working in the school for a long time without any formal letter of appointment in

his favour. After the publication of the advertisement, Swapan participated in the

recruitment process where he became successful and presently his service has

been confirmed by the District Inspector of Schools.

Learned advocate representing the District Inspector of Schools submits that

as the Hon'ble Division Bench did not mention anything with regard to the interim

order that was issued earlier and as no consequence of withdrawal of the appeal

was mentioned, the District Inspector of Schools confirmed the appointment of

Swapan.

Learned advocate representing Swapan presses the issue of res judicata. It

has been contended that as the earlier writ petition filed by Sabitri being WPA

36555 of 2013 with the same prayer as in WPA 18303 of 2013 was disposed of

without granting any relief to Sabitri, accordingly, the subsequent petition by

Sabitri will not be maintainable. It has been stressed that Swapan is working in the

said school for a considerably long period of time and at this stage his service

ought not to be disturbed. It has been represented that the matter has been put to

rest by the order passed by the Hon'ble Division Bench in MAT 1622 of 2013 and

the issue ought not to be reopened after so many years. Valuable right has accrued

in favour of Swapan in the meantime.

In support of the submissions made herein above Swapan has relied on the

judgments delivered by the Hon'ble Supreme Court in Abhimanyoo Ram vs. State

of Uttar Pradesh & Anr; (2008) 17 SCC 73, Madras Institute of Development

Studies & Anr. vs. K.Sivasubramaniyan & Ors.; (2016) 1 SCC 454, P.

Bandopadhya & Ors. vs. Union of India & Ors.; (2019) 13 SCC 42 and Rana

Pratap Singh vs. Vittiya Evam Lekha Adhikari; AIR 2020 SC 294.

Prayer has been made by Swapan for dismissal of the writ petition filed by

Sabitri and to permit him to continue in service.

I have heard and considered the rival submissions made on behalf of all the

parties. Both the petitioners Swapan and Sabitri are contenders to the single

Group C post of the school. Swapan claims to be working in the school for nearly

eleven years prior to the recruitment process being initiated by the school to fill up

the vacancies, albeit without a formal appointment letter being issued in his favour

by the school authority.

The writ petition filed by Swapan praying for restraining the school from

proceeding further with the recruitment process for filling up three posts of non

teaching staff has been admitted with order directing the parties to exchange

affidavits. Point of maintainability of the writ has been kept open and steps taken

on the basis of the impugned advertisement is to abide by the result of the writ

petition.

The writ petition filed by Swapan seeking regularization stood dismissed. The

Hon'ble appeal court by way of an interim order permitted Swapan to appear in the

interview, however, subject to the result of the appeal. The Hon'ble appeal court

was conscious of the fact that Swapan was ineligible to participate in the

recruitment process as he had crossed the prescribed age limit. Relying on the

principle laid down in Gobinda Chandra Mondal (supra) the interim order was

passed.

Both Swapan and Sabitri participated in the recruitment process. Swapan

stood first in the merit list and Sabitri stood second.

After attaining the first position in the merit list, Swapan did not press the

appeal. On account of not pressing the appeal, the court did not have an occasion

to decide the issue raised by Swapan. The prayer in the writ from which the appeal

arose was for regularization. Had the writ been allowed, the ultimate relief which

Swapan could have got is regularization in service. As Swapan got selected in a

regular recruitment process, he thought it fit not to press the appeal.

What Swapan missed is that it is in the writ seeking regularization that the

court permitted him to appear in the interview. The court noticed that Swapan was

overaged and ineligible to participate in the recruitment process initiated by the

school. But instead of shutting him away, the Court afforded an opportunity to

Swapan to participate in the regular selection process along with other eligible

candidates. Swapan took advantage of the interim order passed by the court, but

did not follow it through. He withdrew his case before the appeal court.

The present writ petition of Swapan, has practically become infructuous as

Swapan himself is a beneficiary of the recruitment process which was under

challenge.

Should Swapan be permitted to enjoy the fruit of the proceeding which was

ultimately dismissed as 'not pressed'? Sabitri contends that with the withdrawal of

the appeal, the interim relief enjoyed by Swapan lost its force and Swapan ought

not to be permitted to work on the strength of the said interim order.

Swapan must have thought that as he was able to secure the first position in

the panel he was eligible for appointment, when admittedly, he was not. Swapan

was overaged. He could not have participated in the recruitment process but for

the interim order granted in his favour. The interim order was subject to the result

of the appeal. With the appeal not being pressed further, the interim order

automatically loses its force. The interim order remains valid as long as the

proceeding is in existence. With the end of the litigation, the interim order ceases to

exist.

Can an ineligible candidate be permitted to be appointed? The Court did not

decide the eligibility of Swapan. The overage was never condoned by the Court. In

paragraph 23 of the judgment of Gobinda Chandra Mondal (supra) the Court held

that no ad hoc or temporary appointee can be absorbed or be regularized in any

post in government or government aided establishment de hors the recruitment or

service rule ordinarily.

In the present case, no appointment letter was issued in favour of Swapan

by the school authority. Neither the school nor Swapan has disclosed before this

court as to how he was appointed in the school. In the absence of an appointment

letter it cannot be said that Swapan was appointed in the school. Swapan may have

been hand-picked to work in the school but that does not give any legal right to

Swapan to continue in service after a regular selection process was undertaken.

Permitting Swapan to continue the job will amount to perpetuating an

illegality. If Swapan is permitted to continue in service, then the person who

participated in the recruitment process being eligible for the same, will be deprived

of the job even though the candidate is successful in the selection process.

Accordingly, the ratio of the judgment in Gobindo Chandra Mondal cannot come to

the aid of Swapan.

It is exactly on this ground that the earlier writ petition filed by Swapan,

seeking regularization, was dismissed by the court holding that Swapan does not

have a legally enforceable right to be regularized in service.

Swapan has relied on the judgment in Abhimanyoo Ram (supra) wherein the

Hon'ble Supreme Court laid down that any attempt by a litigant to retain the benefit

of the interim order by avoiding final adjudication, requires to be deprecated. The

court held that it requires to be dealt with sternly. The court noted that sometimes,

the departmental officials concerned, on account of collusion with the petitioners

who obtained the interim relief, will not withdraw or reverse the benefit granted to

the petitioner in pursuance of the interim order, when the petition is withdrawn or

dismissed as not pressed. Appropriate consequential directions cancelling or

vacating the interim order should be passed so as to restore status quo ante.

In the present case, the Hon'ble appeal court at the time of dismissing the

appeal clearly recorded that, the court has not decided any issue in the appeal on

merits. The same implies that there has been no adjudication of the right of Swapan

to participate in the recruitment process in which, admittedly, he was ineligible to

participate, far less continue in service after the appeal stood withdrawn.

In Abhimanyoo Ram (supra) though the Hon'ble Supreme Court was pleased

to set aside the order of the High Court but permitted the appellant to pursue the

writ petition in accordance with law. Here, both the writ petitions are being decided

on merits after hearing both the contenders.

In Madras Institute (supra) the question before the Hon'ble court was

whether a person who consciously takes part in the selection process can turn

around and question the method of selection. The court reiterated the opinion that

having taken part in the selection process with full knowledge the respondent

waived the right to question the same. Here, Sabitri, participated in the recruitment

process as she was eligible to take part in the same. She is not aggrieved with the

selection process; neither does she challenge the same. Her point is that she is

eligible to be appointed whereas Swapan is not. She prays for issuance of

appointment letter in her favour after revoking the appointment letter issued in

favour of an ineligible candidate.

In Rana Pratap Singh (supra) the court took into consideration the

subsequent facts and thereafter passed necessary order. The appellant before the

Hon'ble Supreme Court was an ineligible candidate who participated in the

recruitment process and was successful. In the instant case Swapan is an ineligible

candidate who participated in the recruitment process by the strength of an interim

order in a proceeding which later on stood dismissed. Swapan cannot, under any

circumstances, be permitted to enjoy the benefit of the interim order without a

proper adjudication of his right to participate in the recruitment process.

The ground of res judicata as raised by Swapan cannot be accepted by the

court. The issue that is being decided herein was not decided by the court in the

earlier writ petition filed by Sabitri. In fact, the court relegated Sabitri to the appeal

court so that the matter could be resolved conclusively once and for all. Swapan, in

order to avoid the appeal proceeding, withdrew the appeal itself. Thus, the eligibility

of Swapan to participate in the recruitment process remained undecided and

inconclusive.

The District Inspector of Schools though issued a conditional appointment

letter but thereafter erroneously withdrew the condition even though the appeal was

not decided on merits. The District Inspector of schools even went to the extent of

confirming the service of Swapan despite pendency of the writ petition filed by

Sabitri in connection with the self same selection process. The District Inspector of

Schools ought to have taken proper legal advice prior to taking further steps in the

matter.

In normal course if the first empanelled candidate is held to be ineligible for

appointment, then the second empanelled candidate gets a chance to be appointed.

Swapan was admittedly ineligible to appear in the selection process and accordingly

appointment cannot be given to him. Sabitri being the first eligible candidate ought

to be issued the appointment letter. Swapan has illegally enjoyed the benefit of the

interim order for a pretty long time even after his writ petition stood dismissed and

the appeal not pressed.

In view of the discussions made hereinabove, the court is of the considered

opinion that the appointment letter issued in favour of Swapan is liable to be

revoked and cancelled. Fresh appointment letter is required to be issued in favour of

Sabitri.

Accordingly, the appointment letter issued in favour of Swapan is hereby

cancelled and the District Inspector of Schools, Secondary Education, Paschim

Medinipur is directed to issue appointment letter in favour of Sabitri within a

fortnight from the date of communication of this order. Sabitri will be entitled to

receive her pay from the date of her appointment but will not be entitled to any

arrears. As the appointment of Sabitri got held up due to no fault of hers, as such,

she will be entitled to get notional benefit from the date Swapan was appointed in

the school.

In usual course of events, Swapan is liable to refund the money received by

him on account of salary as he was not eligible to be appointed; but keeping in mind

the fact that it may be a bit too harsh to direct Swapan to refund the salary amount

received by him since 2013, accordingly, the court refrains from passing such

direction. Swapan will not get any financial benefit hereinafter, not even the benefit

which may have accrued to him on account of provident fund and gratuity.

It will, however, be open for the school authority to permit Swapan to

perform duty if the school thinks that his service is required. In such case, the

school will be entirely responsible to bear his financial burden and not a penny

shall be paid to him from the State exchequer.

Writ petition of Swapan being WPA 29065 of 2013 stands dismissed.

Writ petition of Sabitri being WPA 18303 of 2015 stands disposed.

The parties shall bear their own costs.

The records relating to MAT 1622 of 2015, FMA 4268 of 2016 and WPA

36555 of 2013 be returned to the concerned department.

Urgent certified photocopy of this judgment, if applied for, be supplied to the

parties expeditiously on compliance of usual legal formalities.

(Amrita Sinha, J.)