Calcutta High Court (Appellete Side)
For The vs M.A. A. Baig Reported In Air 1999 Sc 2093 on 13 August, 2013
Author: Girish Chandra Gupta
Bench: Girish Chandra Gupta
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13.08.2013 FMA 1659 of 2013
With
CAN 8274 of 2012
Mr. Kanailal Samanta
... for the Appellant.
Mr. Anil Kumar Jana
Mr. Bhakti Prasad De
... for the respondents
The order under challenge was passed by Sister Patherya, J. on 19th July, 2012 allowing the writ petition and directing the respondent no.8 to implement the order dated 25th November, 2004 within six weeks. The respondent no. 8, to the writ petition was the Secretary Village Education Committee. Aggrieved by the order the State through the District Project Officer has come up in appeal.
The facts and circumstances of the case ascertainable from the writ petition, a copy whereof was supplied to us by Mr. Jana, learned advocate, appearing for the writ petitioner/respondent are that a notice inviting application for appointment of Para-teachers was issued on 23rd July, 2004. In pursuance thereof the writ petitioner applied. He duly appeared at the interview held on 18th August, 2004. According to him a panel was prepared and he was at the top in the panel. In support of his aforesaid claim he relied on a minutes of the meeting dated 1st September, 2004. The third empanelled candidate aggrieved by the selection and the consequent panel approached this Court and his writ petition was registered as W.P. 16217 (W) of 2004 which was disposed of by an order dated 15th September, 2004 directing the respondent no. 2 therein to consider the representation. The representation was ultimately considered and disposed of on 25th November, 2004 by holding that the panel was irregularly prepared. Consequently the panel was directed to be scraped. A direction was also issued for fresh interview. The case of the writ petitioner was that he was not made a party to the writ petition filed by the third empanelled candidate. He as such was not 2 aware of the developments which took place pursuant to the order dated 15th September, 2004. He in the circumstances, by a letter dated 26th September, 2011 complained that although he was the first empanelled candidate he was yet to be appointed. When his representation dated 26th September, 2011 went unheeded, he filed the writ petition which culminated in the order under challenge.
Mr. Samanta, learned advocate appearing for the appellant, submitted that the order under challenge is patently bad. He drew our attention to the fact that the writ petition filed in the year 2012 was grossly belated. He submitted that the writ petition should not have been entertained in the first place because there is no satisfactory explanation for the delay for more than 8 years.
The second point submitted by him was that the State has already stopped the recruitment of Para-teachers because they are no longer needed and the State has issued necessary intimation in that regard by its letter dated 27th March, 2010 a copy whereof is Annexure P-5 to the stay petition which reads as follows:
" Sir/Madam, I am directed to bring to your notice that recruitment of regular primary teachers is in progress and about 28,000 Primary Teachers have been recruited till date. Additionally, the Govt. has taken steps for establishing new upper primary schools with regular teachers. Under the circumstances stated above, it has been decided that no further para-teachers shall be engaged in Primary and Upper Primary Schools.
If any para-teacher engaged previously in any schools, leaves the job or has already left the job of if his position falls vacant due to any other reason, the vacant 3 position also shall not be filled by engagement of Para Teachers and the position shall lie sine die till if it is filled up through regularly recruited teacher(s).
This order shall take immediate effect.
Yours faithfully State Project Director Date : 27/03/2010."
Mr. Jana, learned advocate, submitted that he has explained the delay by stating on oath that due to unrest in the Nandigram area the writ petitioner was not in a position to approach the Court and necessary averment in that regard is to be found in paragraph 11 of the writ petition, which reads as follows:
" 11. That the petitioner states and submits that there was political disturbance in the P.S. Nandigram since 2005 which was serious from 7th January, 2007 when school boy Biswajit Maity and two others were sought. Every day the people of Nandigram had to face Meetings and Processions of different political parties. The education of the students in the schools in Nandigram was seriously affected. The situation of the area was so grave that it was not possible for the petitioner to come to this Hon'ble court for ventilating the grievance of the petitioner earlier. So the delay in filing this petition should be condoned and/or ignored and the petition should be heard on merits."
As regards the second submission that the State is no longer in need of Para-teachers, Mr. Jana, learned advocate, appearing for the writ petitioner/respondent, drew our attention 4 to a Judgment of the Apex Court in the case of Gopal Krushna Rath vs. M.A. A. Baig reported in AIR 1999 SC 2093.
We have considered the rival submissions advanced by the learned advocates appearing for the parties and are of the opinion that the appeal must be allowed for the following reasons:
(a) There can be no denial of the fact that the writ petitioner was sitting tight over the matter for almost or more than 8 years for no justifiable reason. The explanation is devoid of any merit.
(b) The Judgment in the case of Gopal Krushna Rath (supra) cited by Mr. Jana, has no manner of application to the facts and circumstances of the case.
What had happened there was that selection process was started for the purpose of recruitment of a Professor. The requisite qualification as per rules and also as per the advertisement was 10 years' teaching experience. The interview was held on 11th May, 1992, before the interview was held the University Grants Commission had changed the prescribed guidelines as regards eligibility. The last date for application had expired on 15th July, 1991 and the guideline was changed with effect from 19th September, 1991. In those facts and circumstances of the case, Their Lordships opined that the guidelines subsequently introduced could not govern the process which had already started. Their Lordships to be precise opined as follows:
" Subsequent change in the requirement regarding qualifications by the University Grants Commission will not affect the process of selection which has already commenced."5
The same reasoning cannot be applied to the case in hand. If the writ petitioner had approached the Court promptly his case could have been considered. He allowed the time to lapse. He has applied at a time when State is no longer in need of Para-teachers. Therefore, the State is not at fault. The State cannot therefore be directed to start the process for a post which no longer survives. This futile exercise cannot be directed nor in the ultimate analysis can the same be of any assistance to the system of education.
For the aforesaid reasons, the order under challenge cannot be sustained and is set aside.
The appeal succeeds. Parties shall, however, bear their own costs.
(Girish Chandra Gupta, J.)
bd. (Tarun Kumar Das, J.)
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