Calcutta High Court (Appellete Side)
Subrata Patra vs District Inspector Of Schools (S.E.) on 26 August, 2008
Author: Pranab Kumar Chattopadhyay
Bench: Pranab Kumar Chattopadhyay
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Pranab Kumar Chattopadhyay
And
The Hon'ble Justice Tapan Mukherjee
F.M.A. 2718 of 2007
Subrata Patra
Versus
District Inspector of Schools (S.E.), Midnapore & Ors.
For the Appellant : Mr. P. R. Mondal
For the Respondent Nos.
3&4: Mr. Asoke De
Mr. Dipak Chowdhury
For the Respondent No. 5 : Mr. Kamalesh Bhattacharyya
Mr. Himadri Sekhar Chakraborty
Mr. Aninda Bhattacharyya
For the S.S.C. : Mr. Bikash Bhattacharyya
Mr. Tapabrata Chakraborty
Mr. Kumaresh Dalal
For the State : Mr. Kanailal Samanta
Ms. Navanita Pal
Heard On: 16.07.2008 & 04.08.2008.
Judgment On: 26.08.2008.
PRANAB KUMAR CHATTOPADHYAY, J.
The principal issue raised in this appeal relates to filling up the post of Headmaster in the Ghatal Vidyasagar High School.
The facts relevant for the purpose of deciding the instant appeal are mentioned hereinafter:
On 1st March, 1995 an advertisement was published in the newspaper for filling up the post of Headmaster in the aforesaid Ghatal Vidyasagar High School. Pursuant to the aforesaid advertisement, interview was held on July 29, 1995. However, in view of the objection raised by the respondent No. 5, District Inspector of Schools concerned cancelled the panel prepared by the school authority. Thereafter, second advertisement was published in the newspaper on January 12, 1996. The panel prepared pursuant to the said advertisement was again cancelled in view of the objection raised by the said respondent No. 5. On September 8, 1996 again another advertisement was published for filling up the said post of Headmaster in the said school but this time also the panel prepared by the school authority was cancelled pursuant to an order passed by a learned Single Judge of this court on 24th December, 1998 whereby and whereunder the said learned Single Judge finally disposed of the writ petition filed at the instance of the appellant herein bearing C.O. No. 19730 (W) of 1996. The aforesaid order dated 24th December, 1998 passed by Hon'ble Justice P. K. Samanta is set out hereunder:
" As agreed upon by the respondent-
School authorities that it will not give effect to the selection already made for the purpose of appointment in the post of Head Master of the Ghatal Vidyasagar High School, so the selection, if any, made for such appointment in the said post is hereby cancelled.
This writ petition is, further, disposed of with a direction upon the School Authorities to make fresh appointment in the said post upon cancellation of all previous selections in this regard by taking into consideration the candidature of the writ petitioner on the basis of the application already made, along with all other candidates who had already applied for the said post as also others who may be eligible for the same. It is made clear that the selection and/or appointment to the said post should be made as per the provisions of law.
The prayer for stay of this order is refused.
Urgent Xerox certified copy of this order, if applied for, be supplied to the parties as expeditiously as possible."
In view of the aforesaid order dated 24th December, 1998 further interview was held on 28th April, 2000 for filling up the said post of Headmaster in the concerned school. Out of total 36 eligible candidates called at the said interview, only 8 candidates appeared on 28th April, 2000 before the Selection Committee including the appellant herein. The Selection Committee, however, could not select any candidate this time as according to the said Selection Committee; none of the candidates are suitable for appointment as Headmaster of the concerned school. The decision of the Selection Committee has been recorded as hereunder:
" Interview for the Selection for the post of Headmaster of Ghatal Vidyasagar High School.
Consolidated sheet
Sl Name Experience as Qualificatio
. on 17.2.95 n
No
.
1 Gouri Sankar 8 yrs.10 months M.A. B.Ed.
Pradhan 17 days
2. Dr. Debabrata No Experience M.A. Ph.D.
Pahari
3. Amalendu Lochan More than 10 M.Sc. B.Ed.
Chowdhury yrs.
4. Subrata Patra 9 yrs. 6 months M.Sc. B.Ed.
13 days
5. Gourhari Jana No Experience M.A. B.Ed.
certificate
6. Uttam Kumar Tunga 8 yrs. 10 M.Sc. B.Ed.
months 16 days
7. Kamal Koska Roy No teaching M.A. M.Ed.
experience
8. Sukdev Bati More than 10 M.Sc. P.G.
yrs. B.T.
On the basis of the performance of the Viva-Voce test of all the eight (8) candidates appear before selection committee for the post of H.M. of the School, the members of the selection committee are of unanimous opinion that no candidates should be recommended for the appointment as Headmaster of the School. Hence no panel can be prepared for the said post.
Sd/-
1. Brajabihari Mondal
2. Banamali Ghora
3. Ashok Dey
4. Sushil Kumar Kunda Das 28.4.2000"
The aforesaid decision of the Selection Committee was thereafter placed in the meeting of the Managing Committee of the school. The members of the Managing Committee accepted the aforesaid decision of the Selection Committee and did not prepare any panel and also decided to report the matter to the District Inspector of Schools concerned. It would not be out of place to mention that the respondent No. 5 herein, Sri Dulal Chandra Kar, did not appear before the Selection Committee for the interview held on 28th April, 2000 though he applied for the said post of Headmaster.
From the records we also find that none of the members of the Selection Committee awarded any mark in viva-voce to the aforesaid 8 candidates who appeared before the said Selection Committee at the time of interview held on 28th April, 2000. Since the Selection Committee could not select any candidate on 28th April, 2000 to fill up the vacant post of Headmaster of the concerned school, the school authority requested the District Inspector of Schools (SE), Midnapore to take necessary steps in order to fill up the said vacant post of Headmaster in the school. Thereafter, the aforesaid vacancy in the post of Headmaster of the said school was reported to the West Bengal Regional School Service Commission and the said West Bengal Regional School Service Commission by letter dated 9th August, 2000 recommended the name of Sri Dulal Chandra Kar, the respondent No. 5 herein for appointment against the regular vacancy in the post of Headmaster of the Ghatal Vidyasagar High School. Pursuant to the aforesaid recommendation, respondent No. 5 herein joined the post of Headmaster of the school on 18th August, 2000.
It is the case of the appellant that the result of the interview held on 28th April, 2000 was not known for a considerable time and the said appellant after coming to know about the appointment of the respondent No. 5 as Headmaster of the said school made several representations to the District Inspector of Schools (SE), Midnapore and other authorities informing the illegalities committed by the Managing Committee of the said school and thereafter, again filed a writ petition before this Hon'ble court bearing W.P. No. 14107 (W) of 2000 challenging the appointment of the said respondent No. 5 in the post of Headmaster of Ghatal Vidyasagar High School. The said writ petition was ultimately dismissed by a learned Single Judge of this Hon'ble court on 16th March, 2006.
The appellant herein also filed an application for reviewing the aforesaid judgment of the learned Single Judge dated 16th March, 2006 and the said review application was dismissed by the learned Single Judge on 9th August, 2006. Being aggrieved by the order of dismissal of the writ petition passed by the learned Single Judge on 16th March, 2006 and subsequent rejection of the review application by the order dated 9th August, 2006, instant appeal has been preferred at the instance of the writ petitioner.
It has been argued on behalf of the appellant/writ petitioner that the Selection Committee most illegally refused to select a suitable candidate on the basis of the interview held on 28th April, 2000 pursuant to the specific order passed by Prabir Kumar Samanta, J. in the writ petition bearing C.O. No. 19730 (W) of 1996. It has also been argued on behalf of the appellant/writ petitioner that the school authorities should not have approached the West Bengal Regional School Service Commission for recommending a candidate in order to fill up the vacant post of Headmaster instead of allowing the Selection Committee to act fairly in the matter of selection of a suitable candidate. It has been specifically alleged on behalf of the appellant/writ petitioner that the school authorities persuaded the said Regional School Service Commission to recommend the name of the respondent No. 5 for the post of Headmaster of the school.
The learned Counsel of the appellant/writ petitioner submits that the Selection Committee was constituted for the purpose of selecting suitable candidates to fill up the vacant post of Headmaster and the Managing Committee of the concerned school was required to prepare a panel for the post of Headmaster under the Rules prevailing at the relevant time. Mr. Mondal, learned Counsel of the appellant submits that the Managing Committee of the said school had no power or authority to disregard the specific order passed by a learned Single Judge of this court on 24th December, 1998 in the earlier writ petition bearing C.O. No. 19730 (W) of 1996 by not preparing a panel of suitable candidates for the post of Headmaster of the school on the basis of the interview held on 28th April, 2000.
On examination of the records produced before this court we find that the members of the Selection Committee refused to award any mark to the candidates who appeared at the interview for the post of Headmaster of the concerned school. From the individual marking sheet we find that the Chairman of the Selection Committee did not award any mark to anyone of the candidates and made the following remark:
"No marks awarded to any candidate."
Mr. Ashok Dey, another member of the Selection Committee also did not award any mark in favour of any candidate and made the following remark.
"No marks"
The expert member of the Selection Committee, Sri Banamali Ghora acted in the identical manner and made the following remark:
"No marks is awarded to any candidate" (Emphasis Added) The knowledge and expertise of the expert members of the Selection Committee would appear from the aforesaid remark as the same is not even written in correct English. The other member of the Selection Committee, Sri Sushil Kumar Kunda Das while acting in the similar manner made the following remark:
"No marks has been awarded."
The aforesaid remarks of the members of the Selection Committee would clearly demonstrate their malafide intentions which ultimately led to an arbitrary decision of not selecting any candidate on the basis of the interview held on 28th April, 2000. On examination of the records of the interview conducted by the Selection Committee and other relevant documents produced before this court we are satisfied that the members of the Selection Committee acted in an illegal and irregular manner. The arbitrary, illegal and malafide actions of the members of the Selection Committee have thus clearly vitiated the entire selection process initiated for selecting the candidate for the post of Headmaster of Ghatal Vidyasagar High School. Therefore, the decision of the Selection Committee in respect of the candidates appearing at the interview held on 28th April, 2000 and subsequent approval of the said decision by the Managing Committee of the school cannot be accepted by us.
In view of the specific order passed by the learned Single Judge of this court on 24th December, 2000 in C.O. No. 19730 (W) of 1998, the school authorities should have prepared a panel in order to appoint a suitable candidate to the post of Headmaster upon considering the candidatures of the candidates appearing at the interview held on 28th April, 2000. Unfortunately, the school authorities instead of acting in compliance with the aforesaid order dated 24th December, 1998 passed by this Hon'ble court reported the vacancy in respect of the post of Headmaster of the school to the West Bengal Regional School Service Commission for recommending a suitable candidate after making a mockery of the entire selection process including the interview held on 28th April, 2000.
In view of the specific direction passed by the learned Single Judge on 24th December, 1998 in C.O. No. 19730 (W) of 1996, the Managing Committee of the school was required to take necessary steps for making appointment to the post of Headmaster by taking into consideration, the candidature of the appellant/writ petitioner herein along with all other candidates who had already applied for the said post of Headmaster before the aforesaid date of the order and, therefore, the said Managing Committee of the school had no occasion to report the vacancy to the West Bengal Regional School Service Commission for recommending a suitable candidate for the post of Headmaster.
There being no occasion to report any vacancy, the recommendation of the West Bengal Regional School Service Commission for the post of Headmaster of the school is liable to be withdrawn and/or cancelled. It was only because of the illegal action and/or decision of the Managing Committee of the school that the vacancy in the post of Headmaster of the concerned school was reported to the West Bengal Regional School Service Commission and request was made for recommending a suitable candidate for the said vacant post of Headmaster. Thereafter, the West Bengal Regional School Service Commission recommended the name of the respondent No. 5 herein for appointment to the post of Headmaster of the concerned school.
For the aforementioned reasons, the recommendation made by the West Bengal Regional School Service Commission in favour of the respondent No. 5 and the subsequent appointment of the said respondent No. 5 to the post of Headmaster of the concerned school by the Managing Committee of the school and approval of the said appointment by the District Inspector of Schools (S.E.), Midnapore cannot be sustained in the eye of law.
We also take serious exception to the aforesaid conduct of the members of the Selection Committee as well as the Managing Committee of the school concerned for not conducting the selection process strictly in accordance with law.
In the aforesaid circumstances, we set aside the selection process conducted for selecting the candidate for the post of Headmaster from the stage of viva-voce held on 28th April, 2000 as a result whereof all steps taken pursuant to the recommendation of the Selection Committee including the appointment of respondent No. 5 to the post of Headmaster of the school and subsequent approval thereof by the District Inspector of Schools concerned are liable to be quashed and the same are, therefore, quashed.
The learned Counsel of the respondent No. 5, however, raised an objection with regard to maintainability of the present appeal on the ground that the appeal preferred from the order passed by the learned Single Judge on 16th March, 2006 was barred by law of limitation and no application was filed for condoning the delay in preferring the said appeal from the said order dated 16th March, 2006 passed by the said learned Single Judge. The aforesaid submission of the learned Counsel of the respondent No. 5 is not factually correct and contrary to the records of this case.
From the office report we find that the Additional Stamp Reporter of this Hon'ble Court after scrutinising the Memorandum of Appeal made the following note:
"In time upto 25/04/06, but filed out of time on 07/09/06, i.e. delayed by 135 days as calculated from order dated 16/03/06."
The appellant herein duly filed an application under Section 5 of the Limitation Act for condoning the delay of 135 days in preferring the appeal against the judgment and order dated 16th March, 2006 passed by the learned Single Judge and the said application was numbered as C.A.N. 6657 of 2007. The earlier Division Bench of this court by the order dated 6th August, 2007 allowed the aforesaid application filed under Section 5 of the Limitation Act for condoning the delay and directed registration of the present appeal. The relevant portion of the said order dated 6th August, 2007 passed by the Division Bench of this Court, allowing the aforesaid application for condonation of delay of 135 days is set out hereunder:
"We have heard the learned Advocate of the appellant as well as the learned Advocate appearing for the respondents.
Considering the submission of the respective parties and the explanation given in the application under Section 5 of the Limitation Act, we find that delay has been sufficiently explained and the reasons given in the application are quite satisfactory and convincing. The learned Advocate appearing for the respondents, in his usual fairness, does not oppose such prayer. Accordingly, we allow the application under Section 5 of the Limitation Act for condoning the delay as aforesaid."
Mr. Bikash Ranjan Bhattacharyya, learned Senior Counsel representing the Chairman, West Bengal Regional School Service Commission submits that since the West Bengal School Service Commission Act, 1997 came into effect, the vacancy to the post of Headmaster in the concerned school was duly reported to the said commission. The commission thereafter conducted the selection process strictly in accordance with the provisions of the aforesaid Act of 1997 and recommended the respondent No. 5 for appointment to the said post of Headmaster. Mr. Bhattacharyya also submits that even if the selection to the said post of Headmaster in terms of the then prevailing Rules is found to be bad, fresh selection cannot be made avoiding the existing statutory rules as the earlier rules of selection by the school authorities have been superseded after West Bengal School Service Commission Act, 1997 came into force. Mr. Bhattacharyya further submits that the recommendation already made by the Regional School Service Commission in respect of the post of Headmaster to the concerned school cannot be interfered with in judicial review in the present proceeding.
Mr. Bhattacharyya also submits that the Regional School Service Commission cannot be asked to act contrary to the mandatory provisions of the Act by this court by issuing any further direction to recommend the name of the respondent No. 5 for any other vacancy. Mr. Bhattacharyya referred to and relied on the following decisions of the Hon'ble Supreme Court in support of his aforesaid arguments:
1) (2002) 8 SCC 715 [West Bengal
Electricity Regulatory Commission vs.
CESC Ltd.]
2) (2002) 5 SCC 294 [Union of India vs.
Association for Democratic Reforms
and another]
We are, however, of the opinion that the principles of law laid down by the Hon'ble Supreme Court in the aforesaid decisions are not at all applicable in the facts of the present case.
We have already observed hereinbefore that the Regional School Service Commission was not required to recommend any candidate to the post of Headmaster in the concerned school as the authorities of the said school and the District Inspector of Schools (SE), Midnapore wrongfully and illegally reported the vacancy to the West Bengal School Service Commission and persuaded the said Commission to recommend a candidate for filling up the said vacant post of Headmaster without appreciating that pursuant to the order passed by a learned Single Judge of this court on 24th December, 1998, the selection and appointment could only be made to the said post of Headmaster in the concerned school in strict compliance with the aforesaid order dated 24th December, 1998 in C.O. No. 19730 (W) of 1996.
In any event, for the reasons specifically mentioned hereinbefore, since we have quashed the appointment of the respondent No. 5 to the post of Headmaster of the concerned school and subsequent approval of such appointment by the District Inspector of Schools (SE), Midnapore, the post of Headmaster in the said school has now fallen vacant. Therefore, steps are required to be taken for filling up the said vacant post of Headmaster.
The Division Bench of this Hon'ble Court in the case of Snehansu Jas vs. State of West Bengal & Ors. reported in 2001 (3) CHN 313 considered various decisions of the Hon'ble Supreme Court and specifically held:
"21..................................................................The selection process is deemed to have commenced if the posts have been advertised and candidates have been called for interview and meanwhile if the Rules are amended then that selection process should be allowed to continue without being affected by the amendment of the Rules unless the Acts or Rules have been amended with a retrospective effect.........................................."
In the present case, not only the vacancy to the post of Headmaster is of prior to 1997 but the selection process for filling up the said vacant post also commenced before the coming into force of the Act of 1997 and furthermore, the learned Single Judge by the order dated 24th December, 1998 in C.O. No. 19730 (W) of 1996 specifically directed the school authorities to make appointment in the said post of Headmaster upon cancellation of all previous selections and by taking into consideration the candidature of the appellant herein along with all other candidates who had applied for the said post as also others who may be eligible for the same.
In the aforesaid circumstances, the selection process has to be confined only in respect of the candidates who participated in the selection process pursuant to the aforesaid order passed by the learned Single Judge of this court on 24th December, 1998. The aforesaid order dated 24th December, 1998 passed by the learned Single Judge of this court in C.O. No. 19730 (W) of 1996 has become final and binding and this Court now in a subsequent proceeding cannot allow the said order to be frustrated. Therefore, we have no other option but to direct the school authorities to undertake the selection process de novo by constituting a fresh Selection Committee and to consider the candidatures of those candidates who appeared at the interview held on 28th April, 2000.
Needless to mention that in terms of this order de novo selection process to be conducted hereinafter and appointment to the said post of Headmaster to be made only upon complying with the provisions of law, which were in force before the West Bengal School Service Commission Act, 1997 came into force.
Since the respondent No. 5 had already been appointed on the recommendation of the Regional School Service Commission, the said respondent No. 5 cannot suffer any prejudice.
In terms of Regulation 9(4) of the West Bengal School Service Commission (Procedure for Selection of Persons for Appointment to the Posts of Teachers including Head Masters/Head Mistresses/Superintendents of Senior Madrasah in recognised non- Government Aided Schools and Procedure for Conduct of Business of the Commission) Regulations, 1998, if a candidate appointed on the recommendation of the Regional Commission is thrown out of employment on the ground that the vacancy for which he was recommended by the said Commission ceased to exist, on receipt of such information the said Commission may recommend the name of the said candidate for any other vacancy in the same school or any other school. The said Regulation 9, sub-regulation 4 is set out hereunder:
"9. Allotment of candidates-
................................................................................................................ ................................................................................................................ (4) If a candidate appointed on the recommendation of the Regional Commission is thrown out of employment owing to the vacancy for which he/she was recommended by the Regional Commission ceasing to exist, the Commission may, on receipt of such information from the appropriate authority, recommend his name for any other vacancy in the same school or any other school. This regulation shall not be applicable in the case of filling up of short-time vacancies such as deputation vacancy/maternity leave vacancy/medical leave vacancy/vacancy due to any other leave/vacancy owning to suspension or lien or for vacancy in the post of Assistant Headmaster/Assistant Headmistress or vacancy in the death-in-
harness category where the procedures as laid down by the State Government in the School Education Department shall be followed in the preparation of panels which shall remain valid till they are exhausted for the purposes for which such panels are prepared."
In the aforesaid circumstances, we direct the West Bengal Regional School Service Commission to recommend the name of the respondent No. 5 for any other vacancy in any other nearby school, in the same district, at an early date but positively on or before 30th September, 2008.
There is no doubt that some time is necessary to fill up the vacancy in the post of Headmaster in the school concerned in terms of this order following the prescribed rules as mentioned hereinbefore and the school in question should not run without a Headmaster for long.
Therefore, as a stopgap measure and purely on ad-hoc temporary basis the respondent No. 5 should be allowed to continue in the said post of Headmaster until and unless the said respondent No. 5 is absorbed in any other school in the post of Headmaster on the basis of the subsequent recommendation of the West Bengal Regional School Service Commission in terms of our aforesaid direction or till 30th September, 2008, whichever is earlier.
With the aforesaid observations and directions, this appeal stands allowed and the judgment and order under appeal dated 16th March, 2006 passed by the learned Single Judge dismissing the writ petition filed by the appellant herein and also the subsequent order dated 9th August, 2006 passed in the Review Application stand set aside.
In the facts and circumstances of the present case, there will be, however, no order as to costs.
Let urgent Xerox certified copy of this judgment and order, if applied for, be given to the learned Advocates of the parties on usual undertaking.
[PRANAB KUMAR CHATTOPADHYAY, J.] TAPAN MUKHERJEE, J.
I agree.
[TAPAN MUKHERJEE, J.]