Calcutta High Court (Appellete Side)
Manik Kumar Mahata vs The State Of West Bengal & Ors on 21 August, 2013
Author: Biswanath Somadder
Bench: Biswanath Somadder
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IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Mr. Justice Biswanath Somadder.
W. P. No.9490 (W) of 2013
Manik Kumar Mahata
Vs.
The State of West Bengal & Ors.
For the petitioner : Ms. Amrita Sinha,
Mr. Monoranjan Mahata
For the State : Mr. Bhakti Prasad Das
For the Council : Mr. Kamalesh Bhattacharya,
Mr. Anindya Bhattacharya
Heard on : 21st August, 2013.
Judgement on: 21st August, 2013.
Biswanath Somadder, J. :
The petitioner joined the Indian Army on 3rd July, 1995, and served till 1st September, 2003. Subsequently, in terms of an advertisement dated 30th August, 2009, the petitioner applied for the post of an assistant primary school teacher, under the District Primary School Council, Paschim Medinipur. The petitioner applied for the post-in-question in terms of clause 3 of the General Information, which forms part of the application form and information brochure 2 and allows reservation and relaxability for certain categories, including "ex- servicemen", as defined under sub-clause (b) of clause 3, which reads as follows:
"Ex-Servicemen are those who have put not less that 6 months continuous service in any rank (whether as a Combatant or a Non- Combatant) in the Armed Forces of the Union."
His application was duly considered by the concerned authority and he was allowed to participate in a written examination, which was held on 11th April, 2010. It has been stated by the petitioner that he was successful in the written examination and a call letter was issued directing him to be present on 10th May, 2010, with all original and attested copies of various testimonials. He duly appeared on that day. Subsequently, he received a memo/letter dated 29th October, 2010, issued by the Chairman, District Primary School Council, Paschim Medinipur, instructing him to contact the Council within seven days from receipt of the said memo/letter alongwith "all original testimonials, one set attested xerox copy (educational certificates and caste certificate, if any) and one copy of passport size photograph." The petitioner has stated that he duly appeared before the Chairman, District Primary School Council on 3rd November, 2010, and produced all documents/certificates, which were asked for. In paragraph 12 of the writ petition, he has categorically stated that the Chairman, District Primary School Council, Paschim Medinipur, told him that a joining letter would be sent to him by post within a very short time. After waiting for a certain period of time, the petitioner approached the Chairman, District Primary School Council, Paschim Medinipur, through the Union Indian Ex-Service League 3 in the month of February, 2011, when the Chairman, District Primary School Council, Paschim Medinipur, assured him that appointment letter would be given at the earliest. The petitioner has stated further that the General Assembly elections in the State of West Bengal intervened and thereafter he again pursued the matter through the Union Indian Ex-Service League, but nothing concrete materialised. After waiting for some more time, during which period there was change of the Chairman of the concerned Council and further embarking on a futile exercise of pursuing his matter, the petitioner filed the instant writ petition, which now appears under the heading, "For Final Disposal".
In spite of specific direction for filing of affidavits given on 3rd May, 2013, no affidavit-in-opposition has been filed by any of the respondents, including the District Primary School Council, Paschim Medinipur, till date. It further appears in terms of the order dated 17th April, 2013, the Zila Sainik Board, Medinipur, Paschim Medinipur, and Secretary of the Zila Sainik Board, Medinipur, Paschim Medinipur, were added as respondents, since the learned advocate for the Council had relied on an illegible communication issued by the Secretary, Zila Sainik Board, Medinipur, sometime in the month of January, 2012, addressed to the Chairman, District Primary School Council, Paschim Medinipur. A copy of the said communication, although quite illegible, is now directed to be kept on record. It appears therefrom that it refers to a memo dated 1st January, 2012, issued by the Chairman, District Primary School Council, Paschim Medinipur, addressed to Zila Sainik Board, Medinipur, for verification of "ex-serviceman" 4
status of the petitioner. The Secretary, Zila Sainik Board, Medinipur, in the said communication has informed the Chairman, District Primary School Council, Paschim Medinipur, that the petitioner was not an "ex-serviceman", as per adopted policy by Kendriya Sainik Board, New Delhi, vide memo dated 2nd April, 2009.
It appears that the only reason for the District Primary School Council, Paschim Medinipur, in not providing the writ petitioner with an appointment letter is the above communication of the Zila Sainik Board, Medinipur. Whether the policy adopted by Kendriya Sainik Board, New Delhi, as referred to in the said communication would have any relevance in the facts of the instant case, is the issue to be considered.
It may not be out of place, at this juncture, to take note of the fact that the said policy of Kendriya Sainik Board, New Delhi, has not been produced before this Court, either by the District Primary School Council, Paschim Medinipur, or for that matter, the Zila Sainik Board, Medinipur, being one of the added respondents.
Be that as it may, the selection process wherein the petitioner participated was pursuant to a public advertisement dated 30th August, 2009. The petitioner followed the terms and conditions clearly spelt out in the General Information, which formed part of the application form and information brochure that was provided to all applicants including the petitioner, by the District Primary School Council, Paschim Medinipur. Clause 3(b) of the General Information, which has 5 been reproduced hereinbefore, has categorically defined "ex-servicemen" and requires no further elaboration or discussion.
In view of such categorical definition of the term "ex-servicemen", as contained in the General Information, there was no question of the District Primary School Council, Paschim Medinipur, to rely on a policy adopted by Kendriya Sainik Board, New Delhi, which cannot have any manner of application in the facts of the instant case. If the District Primary School Council, Paschim Medinipur, wanted to rely on the policy adopted by Kendriya Sainik Board, New Delhi, as referred to in the communication of the Secretary, Zila Sainik Board, Medinipur, addressed to the Chairman, District Primary School Council, Paschim Medinipur, the same ought to have been included in the General Information, which contains the applicable guidelines and lays down the terms and conditions required to be adhered to by all the applicants who participated in the selection process. However, the policy of Kendriya Sainik Board, New Delhi, has not been reflected anywhere in the General Information, much less under clause 3(b) of the General Information. Clause 3(b) was taken up for consideration by this Court in a matter involving a similar selection process, which was conducted by the District Primary School Council, Purulia. In Matar Chandra Mahato Vs. The State of West Bengal & Ors., reported in (2012) 3 WBLR (Cal) 313, this Court observed in paragraphs 8 and 9, as follows:
"8. Upon considering the respective submissions, this Court is of the view that it may not at all be necessary to embark on an elaborate exercise of interpretation of statutes, in view of what is clear and apparent from the conditions laid down in the application form and 6 information brochure provided to all those candidates who had participated in the selection process for recruitment of assistant teachers for primary schools under the various District Primary School Councils in West Bengal.
9. Clause 3(b) under General Information, which has already been reproduced hereinabove, defines 'ex-servicemen' as those who have put not less than six months continuous service in any rank (whether as a Combatant or as a Non-Combatant) in the Armed Forces of the Union."
In Apurbalal Dutta Vs. Hooghly District Primary School Council, reported in 2013(2) CHN (CAL) 372, it has been held to the effect that the definition of "ex-servicemen" obtained from the website of the Ministry of Defence could not have any application in case of a selection process conducted by the District Primary School Council, Hooghly, and only the definition of "ex- servicemen", which is contained in the Brochure appended to the Selection Test Brochure of 2009, was to be applicable.
In the facts of the instant case, which is similar to Apurbalal Dutta (supra), as discussed hereinbefore, the definition of "ex-servicemen", is provided under clause 3(b). The petitioner falls squarely under the said definition of "ex- servicemen".
In such circumstances, the writ petition is disposed of with a direction upon the Chairman, District Primary School Council, Paschim Medinipur, to treat the writ petitioner as an "ex-serviceman" and forward his name to the office of the Commissioner of School Education, West Bengal, forthwith, to enable the 7 latter authority to grant formal approval to his candidature as an assistant primary school teacher, under the District Primary School Council, Paschim Medinipur.
The Commissioner of School Education, being the respondent no.2, upon receipt of the name of the petitioner from the office of Chairman, District Primary School Council, Paschim Medinipur, shall complete the process of granting formal approval, within a fortnight therefrom.
Once the Commissioner of School Education, West Bengal, grants formal approval, the Chairman, District Primary School Council, Paschim Medinipur, shall issue an appointment letter in favour of the petitioner within a fortnight from the date of receipt of communication from the office of the Commissioner of School Education, West Bengal.
Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.
(Biswanath Somadder, J.) PP.
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