Calcutta High Court (Appellete Side)
Tapan Kumar Hazra & Ors vs State Of West Bengal & Ors on 15 September, 2014
Author: Aniruddha Bose
Bench: Aniruddha Bose
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Aniruddha Bose
(i)C.O. 12403 (W) of 1993
Tapan Kumar Hazra & Ors.
Vs.
State of West Bengal & Ors.
(ii)W.P. No. 18583 (W) of 1997
Tapan Kumar Hazra & Ors.
Vs.
State of West Bengal & Ors.
Advocates for the petitioners: Mr. Milon Kumar Bhattacharya,
Ms. Sulagna Bhattacharya,
Mr. Ayub Abedin,
Ms. D. Basu.
Advocates for the Council: Mr. Subir Sanyal,
Mr. Ratul Biswas,
Ms. S. Sarkar.
Advocates for the State: Mr. Pantu Deb Roy,
Mr. Siddhartha Ruj,
Mr. Amit Kumar Das.
Judgment On: 15th September, 2014.
ANIRUDDHA BOSE, J.:-
1. In these two proceedings, the petitioners are seeking direction upon the
District Primary School Council Howrah for appointing them as primary
teachers in the Udaynarayanpur Circle or any Circle nearby in the District
of Howrah. The factual background of these two petitions and the legal
issues involved are near-identical. These proceedings were heard
analogous and are being disposed of by this common judgment. The
petitioners' quest for employment in such capacity had started in the
year 1979 when they participated in an interview for such posts.
Subsequently, there has been several proceedings on that issue and I
shall refer to some of these litigations later in this judgment, whenever
necessary. In C.O. No. 12403, there are eight petitioners, but one of
them, Sri. Krishna Chandra Bhowmick has passed away during subsistence
of the proceeding. He was the sixth petitioner in that proceeding, to
which I shall henceforth refer to as the first petition. His claim thus
does not survive and in any event there is no substitution application by
his legal heirs. The first writ petition has abated so far as petitioner no.
6 is concerned. The rest of the petitioners are same in both these
petitions. Among them, Tapan Kumar Hazra, Sisir Kumar Kheto, Ashok
Kumar Kheto, Sachi Dulal Bera and Bhupal Chandra Bera have crossed the
employable age. Thus, on the question of appointment, which was the main
prayer of the petitioners when these proceedings were instituted, claims
of only Samir Kumar Kheto and Murari Mohan Mondal survive. Foundation
of their claim is that they were at all material times eligible to be
appointed as primary teachers having completed their junior basic
training from a basic training institute and fulfilled other qualification
criteria. The other point on which they found their claim is on certain
judicial pronouncements, which I shall refer to in the subsequent part of
this judgment. There has been some reference to applicable law in the
facts of these cases, as when the subject-selection process had started,
the West Bengal Primary Education 1973 had been enacted, but by virtue
of a Repeal and continuance provision contained in Section 105 of the said
statute, Rules framed under the West Bengal (Rural) Primary Education
Act, 1930 and the West Bengal (Rural) Primary Education (Temporary
Provisions) Act, 1969 were made applicable in respect of the subject
selection process. But the controversy involved in these proceedings
relate to general principles pertaining to service jurisprudence. As such,
it would not be necessary to refer to or construe any specific statutory
provision for adjudication of these proceedings.
2. The factual basis of both these writ petitions remain the same, except
that in the later proceeding, which has been registered as W.P. No. 18583
(W) of 1997, (the second petition), a memorandum in the form of an order
of the Chairman, Ad Hoc Committee, Howrah District Primary School
Council dated 5 February 1997 is additionally under challenge. This
memorandum was issued in response to a representation made on behalf
of the petitioners in terms of an order passed by a learned Single Judge
of this Court in an application taken out in connection with C.O. No. 12403
(W) of 1993. That order was passed on 12 October 1993. No affidavit
has been filed on behalf of the respondents in these two matters, and
the stand of the respondents resisting the claim of the petitioners becomes ascertainable primarily from the order of the Chairman, Ad Hoc Committee, Howrah District Primary School Council passed on 5 February 1997.
3. The petitioners appeared in an interview as per direction of the President, Ad Hoc Committee, District School Board, Howrah on 21 November 1982 for the said posts before the interview Committee for being empanelled as primary school teachers under the District School Board, Howrah. The petitioners claim to fulfill the eligibility criteria for that purpose and that question is not in dispute in these two proceedings. The interview was taken, as pleaded in both these proceedings, by Barin Koley and Pannalal Majhi who at the material point of time were members of the State Legislative Assembly, and Sambhu Charan Bose and Nemai Chandra Mondal. It appears that at that point of time the Selection Committee was required to be constituted in terms of a Government Order dated 24 March 1972 bearing No. 366-Edn (P)/10-R. The legal validity of composition of the Selection Committee was questioned by the petitioners in an earlier proceeding, which was originally registered as C.O. No. 5499 (W) of 1983, and later renumbered as C.R. No. 9098 (W) of 1983 after issue of Rule. In that writ petition the petitioners wanted to prevent the authorities from proceeding with the selection process, for which interview letters were issued to them. In C.R. No. 9098 (W) of 1983, the petitioners had questioned the formation of selection committee, which was constituted on the basis of an Executive Order issued under memorandum No. 459-Edn (P)/3P-16/81 dated 4 August 1981. By this memorandum, all panels were directed to be prepared by the District School Boards/the District Inspector of Schools (Pry. Education) as the case may be, from amongst the names obtained from the Employment Exchanges of the district concerned. It was contended on behalf of the petitioners that under the provisions of the Rules framed under the Bengal (Rural) Primary Education Act, 1930, the selection committee was to be set up by the Director of Public Instruction, West Bengal with the approval of the State Government.
4. In C.R. No. 9098 (W) of 1983 direction was given to keep at least eight posts vacant at the interim stage. The petitioners had appealed against that interim order before a Division Bench of this Court primarily seeking more substantive relief at the interim stage. In course of hearing before the Division Bench, it was ascertained that three of the writ petitioners, Sisir Kumar Kheto, Sachi Dulal Bera and Murai Mohan Mondal (being appellant nos. 2, 5 and 8) were included in the panel. The Division Bench had disposed of the said appeal on 13 March 1984. holding:-
"It is stated before us and we are also satisfied that the names of the appellants Nos. 2, 5 and 8 have already been included in the panel. We are also told that there are 39 persons to be empanelled. We direct, let those 39 persons including the five appellants be placed in the supplementary panel. Such panel of trained made teachers for Uday Narayanpur Circle should be submitted to the Direction of School Education (Primary) within six weeks from date. The names of the remaining five appellants viz., appellant Nos. 1, 3, 4, 6 and 7 will be at the top of the supplementary Panel as agreed to by the parties. This order virtually disposes of the appeal the appeal is treated as on day's list and both the appeal and the application are disposed of above. There will be no order for costs."
5. It is admitted position that thereafter all the petitioners in the first proceeding found their positions in the main panel and the supplementary panel prepared on the basis of the aforesaid direction of the Court. An application was taken out in connection with the said writ petition, [C.R. No. 9098 (W) of 1983] by the petitioners for further interim order and on 20 September 1984 a direction was issued by an Hon'ble Single Judge of this Court in that application to the following effect:-
"This application has been made for further interim order. It appears that on 13th March, 1983 an order was passed by the Appellate Court in F.M.A.T. 3189 of 1983 directing the respondents that the names of the writ petitioners or where the petitioners were sought to be included in the panel should be included in the supplementary panel to be prepared to have priority in the matter of appointment as training teacher under the Govt. order dated 20th April, 1977.
Having regard to the facts and circumstances of this case, I direct the respondents to appoint the petitioners on ad-hoc basis as primary teachers on the basis of the panel to Udaynarayanpur Circle or to any other Circle nearer to Udaynarayanpur, Dist. Howrah.
This order is being made having regard to the fact that the petitioners should have been empanelled in 1982 but they were not so empanelled. However, the petitioner shall be appointed only on ad-hoc basis in the event there are no other persons senior to the petitioners in panel for being appointed as primary teachers. No appointments will however be made without considering first the case of the petitioners."
6. Alleging wilful disobedience of the order passed by the Learned Single Judge on 20 September 1984, the petitioner had instituted a contempt action. In the contempt action Rule was issued, and the same was registered as Civil Rule 2181 (W) of 1985. On 16 January 1986 an order was passed by the Hon'ble Judge hearing the contempt petition, directing:-
"After hearing the learned advocates for the parties appearing and after perusing the charts produced before me as regards the appointment made after the order passed on 20th September, 1984 by this court, I direct the respondents to give appointment to the petitioners as trained teachers purely on ad hoc basis within a week from date and the said assistant teachers will continue till the disposal of the Rule. It is made clear that these appointments will not make any precedents nor the same will create any equity in favour of the petitioners. Respondents are directed to file supplementary affidavit giving particulars of the persons who have been appointed in the different circles of the district of Howrah after the order passed on 20th September, 1984. Such affidavit shall be filed within two weeks from date, reply if any thereto one week thereafter.
I make it further clear that appointments made during the pendency of this Rule shall abide by the result of the Rule. Let the matter appear for further orders three weeks hence."
7. I have been apprised by the learned counsel for the petitioners that the Rule was made absolute by the Hon'ble Single Judge by an order passed on 16 July 1987 and in that order it was directed that the contemnors should purge themselves of the contempt by giving ad hoc appointment to the petitioners irrespective of the fact that there is a subsequent panel or the petitioners are juniors or the life of the panel expired and His Lordship had been further pleased to direct that such appointment should be given purely on ad hoc basis and shall abide by the result of the writ petition. The copy of the order of 16 July 1987 has not been produced before me at the time of hearing, but has been made part of pleading in paragraph 21 of the first as well as the second petition.
8. This order was appealed against by the President, Ad Hoc Committee of the District Primary School Board, Howrah and the District Inspector of Schools, Primary Education. The appeal was registered as F.M.A.T No. 2302 of 1987 and an order of stay of operation of the direction of the learned Single Judge was obtained at the initial stage. Subsequently, this appeal has been dismissed. C.R. No. 9098 (W) of 1983, was disposed by an Hon'ble Single Judge of this Court on 29 March 1990, inter alia, holding that as per the applicable Rules, the Director of Public Instructions had the power to select suitable persons with the approval of the State Government and/or delegate his power to a selection committee. The District School Board or the Ad Hoc Committee had no power to select teachers, and the Director of Public Instruction could not delegate the selection power to the Board itself, or to the Ad Hoc Committee. The memorandum dated 4 August 1981, which was made Annexure 'E' to the petition was set aside and quashed.
9. As I have observed earlier, in that writ petition one of the prayers of the petitioners was for direction restraining the authorities from proceeding or taking further step in connection with Annexure 'A' to the petition. Annexure 'A' to the petition comprised of the interview letters issued to the petitioners by the President, Ad Hoc Committee, District School Board. Admitted position is that the petitioners had appeared in such interview. It appears that a panel was prepared on the basis of such interview. On that question, it was observed by His Lordship in the judgment delivered on 29 March 1990:-
"The present rule was issued on 22.9.83 at the instance of the writ petitioners praying, inter alia, for a writ of Mandamus commanding the respondents to forbear from giving effect the steps taken by the respondent No. 3, President, Ad-hoc Committee District School Board, as per Annexure "A" to the petition. The panel concerned was prepared in 1983. Admittedly, life of a panel is not for an indefinite period. It is submitted by both sides that the said panel cannot be given effect to and has agreed that the same may be quashed."
10. On the question as to who would be the selecting body, it was held in that judgment:-
"Considering such aspects of the matter, this court is of the view that the Director of Public instruction and/or the selection committee appointed by him is entitled to prepare a panel, but such a delegated authority will not be the District School Board and/or the ad hoc committee. The District School Board remains the only appointing authority, but it cannot act as a selection committee. Hence, the impugned order and/or direction in annexure 'E' to this petition is set aside and/or quashed. The Rule is therefore disposed of without costs. All other orders are vacated."
11. Though in that writ petition, allegation was made as regards the authority the respondent no. 11 to 14 in that proceeding to form the selection committee, whose identity has been indicated in the earlier part of this judgment, no specific finding was given on that count but by implication, the selection committee was found to have had been constituted in violation of the applicable Rules.
12. It was on the basis of an interim order passed in the first writ petition, the memorandum rejecting the petitioners' claim was passed by the Chairman, Ad Hoc Committee of Howrah District Primary School Council. The interim order was passed on 12 October 1993, in which leave was granted to the petitioners to make representation to the respondent authorities without prejudice and subject to the result of the writ petition. This order, issued on 5 February 1997, under memorandum no. HD/PSC/03 (7)/law is impugned in the second writ petition. This memorandum or order records:-
"Upon receiving the representation of the Writ Petitioners for Ad-hoc appointment, petitioners were directed to appear in person on 8th August, 1996. On that date, writ petitioners appeared and prayed for time for production of all testimonials and for production of the copy of the order. On 5th February, 1997 the writ petitioners appeared before the undersigned and submitted xerox copies for their respective testimonials including the order dated 12.10.1993 passed by His Lordship the Hon'ble Mr. Justice s. Chatterjee.
It appears in the panel of Assistant teachers prepared by the erstwhile District School Board, the names of the Writ Petitioners were not included.
It appears in the panel of Assistant teachers prepared by the erstwhile District school Board, the names of the Writ Petitioners were not included. Subsequently interms of the orders passed by the Hon'ble High Court their names were included in a supplementary panel and the same was sent to the Director of School Education (PE) West Bengal, for approval. The life of the panel expired on 4th July, 1985. Candidates whose names were included in the original Panel could not be exhausted and the life of the supplementary panel also ceased. As such the writ petitioners could not be given employment.
That when preparation of fresh panel started, the District Primary School Council, Howrah Asked the writ petitioners to appear before the selection committee for consideration of their candidature, although their names were not sponsored by the Employment Exchange.
Unfortunately, the reasons best known to the petitioners they did not appear before the selection committee. The petitioners again moved a Writ Application being civil/order No. 12403 (W) of 1993. On 10th September 1993 Mr. Justice Susanta Chatterjee was kind enough to give liberty for the council for issue of appointment letters in favour of persons whose names do appear in the approved panel keeping Eight posts vacant till disposal of the civil order.
Subsequently by an order dated 12th October, 1993 His Lordship was further graciously pleased to direct the writ petitioners to make a representation before the District Primary School Council for ad-hoc appointment.
On receiving such a representation the Writ Petitioners were directed to appear and they have submitted all papers.
After careful consideration of the records and the case of the Writ Petitioners, it appears that there is no provision under the Act and the Rules framed thereunder, to give employment to the post of Assistant teacher of any primary school. It is necessary that their names must appear in the panel of Assistant teachers so approved by the Director of School Education. In this connection it may be noted that in the provisional panel so approved in the month of September, 1993 and in the panel which was approved on 27th November, 1995 by the Director of School Education, the names of the Writ Petitioners do not find place. It may be noted here that in respect of this panel of Assistant Teachers two joint special officers were appointed by the Hon'ble High court to scrutiny and enquire into the deals of the panel.
Thereafter the Director of School Education has finally approved the panel. In several cases the Hon'ble High Court has been kind enough to issue mandates upon the Council to give employment to the post of Assistant Teachers from the approved panel and strictly maintaining the serial number. Further the said penal was expired on 22nd January, 1997. There is no provision for giving employment to the post of Assistant Teachers on an ad- hoc basis. No candidates can be employed in the approved panel of the Director of School Education. As such the writ petitioners prayer for Ad-hoc Employment can not be allowed.
However upon consideration of the materials on record it is ordered that the writ petitioners shall be permitted to appear before the Selection Committee for selection and preparation of the next panel of Assistant Teachers by the Council, even if their names be not sponsored by the Employment Exchange. Their age bar will be condoned, if they are selected." (quoted verbatinm)
13. On behalf of the petitioners argument had been advanced to sustain their case for being appointed mainly on two grounds. First, it was submitted that their right to get ad hoc appointment crystalized by virtue of the interim order of this Court passed on 20 September 1984 in C.R. No. 9098 (W) of 1983, which was in substance confirmed and directed to be complied with in the contempt proceeding in Civil Rule 2181 (W) of 1985. Though operation of the mandatory direction contained in the order of the Court in the contempt proceeding passed on 16 July 1987, by which the Rule was made absolute, was stayed by the Appellate Bench of this Court, the appeal subsequently stood dismissed on 27 February 1997 in terms of an order of the Appellate Bench passed on 11 December 1996. It has been asserted on behalf of the petitioners that on dismissal of the appeal, the order to give appointment on ad hoc basis in the interim order as also in the contempt action stood revived. Secondly, it has been argued that it is not an absolute proposition of law that life of a panel can never be extended beyond the one year period. The following judgments of the Hon'ble Supreme Court as also of this Court have been relied on by the learned counsel of the petitioners in support of his submissions:-
(i) [(2000)3 SCC 699] State of U.P. Vs. Ram Swarup Saroj.
(ii) [(1999)6 SCC 49] Purushottam Vs. Chairman, M.S.E.B. & Anr.
(iii) [(1996)9 SCC 619] Dr. Surinder Singh Jamwal & Anr. Vs. State of J & K & Ors.
(iv) [(2013)3 WBLR (Cal) 544] Susama Roy Pramanik & Ors. Vs. State of West Bengal & Ors.
(v) [(2005)1 CLJ (Cal)193] Nadia District Primary School Council Vs. Sristidhar Biswas.
(vi) Ratan Kumar Saha & Ors. Vs. State [1997(1) CLJ 501]
14. The first question which requires determination in this case is as to whether the right of the petitioners to get appointment had crystalized on the basis of the orders of this Court passed in C.O. No. 9098 (W) of 1983 on 20 September 1984 and 16 January 1986 and 16 July 1987 in the contempt action. Case of the petitioners is that the appeal against the order in the contempt petition, which was registered as F.M.A.T. 2302 of 1987, and later renumbered as F.M.A No. 194 of 1991 having been dismissed, the aforesaid interim order followed by the directions of this Court in the contempt proceeding became operational.
15. The writ petition in which the interim order was passed on 20 September 1984 was disposed of on 29 March 1990. In the judgment, there is no reference to the question as regards ad hoc appointment of the petitioners. Ordinarily, in a proceeding, an interim order merges with the final order and on rare occasions an interim order may assume a permanent character. But that is not the case in these two proceedings. In the judgment delivered, there is specific direction that all other orders were being vacated. The form in which the interim order of 20 September 1984 was passed itself reflected that its operation was dependent upon the final decision of the Court on that point. In the interim order, it was clarified that the petitioners were being directed to be appointed only on ad hoc basis. This implies that such appointment was required to be confirmed at a later stage, either by the authorities themselves, if they chose to do so or by the Court at the time of final disposal of the writ petition. The Court's directions in the contempt proceeding for such ad hoc appointment was also made subject to the disposal of the Rule at the first stage, and at the time of disposal of the Rule, such direction for ad hoc appointment was given subject to the result of the writ petition.
16. The observation of the Chairman in the order dated 5 February 1997 to the effect that ad hoc appointment could not be given because there is no Act or Rule to make appointment outside the panel is improper, because direction to that effect was issued by the Court. The Chairman could not place himself in the position of an Appellate Authority over the Court to adjudicate on the question as to whether the direction of the Court was as per law or not. If he, or any other authority was aggrieved by the order of the Court and it appeared to him or to such authority that any direction of the Court is contrary to any legal provision then he or such authority ought to have appealed against that order or applied for review of the same. Having not taken recourse to such procedure, it was not open to him to flout the judicial direction.
17. But when I am examining at this stage the order of the Chairman, the directive of the Court in my opinion, has lost its force. In fact, on the date decision was given by the Chairman of the Ad Hoc Committee of the Council, the directives of the Court issued in C.R. No. 9098 (W) of 1983 and the subsequent contempt action did not remain operational. Those directions were interim in nature for ad hoc appointment, which the petitioners are contending had crystalized into a legally enforceable right. The writ petition in which such direction was issued itself has been disposed of and in the final judgment, there is no direction or even reference in relation to appointment of the petitioners. In such circumstances in my opinion, an interim order for ad hoc appointment in a writ petition cannot survive after the writ petition itself is disposed of without making any direction on such appointment. Thus, the petitioners in this case cannot claim any vested legal right for being appointed as Assistant Teachers under the District Primary School Council Howrah on the strength of the interim order passed on 20 September 1984 or in the contempt action, which was registered as Civil Rule No. 2181 of 1985.
18. Next comes the question as to whether the petitioners can claim appointment on the basis of being empanelled subsequent to of their interview and direction of the Appellate Bench issued on 13 March 1984. In the order of the Chairman passed on 5 February 1997, it has been recorded that the life of the panel had expired on 4 July 1985. In the judgment of this Court in C.R. No. 9098 (W) of 1983 it has been recorded that the panel concerned was prepared in the year 1983 and life of a panel is not for an indefinite period and on agreement of the learned counsel for the parties the said panel was quashed. This is the only panel in which their names were recorded. In the writ petitions the petitioners have not given any particulars of any other panel in which their names have been recorded. In the judgments on which reliance has been placed on behalf of the petitioners, circumstances have been explained under which the life of a panel can be extended beyond the one year period. In the cases of Ram Swarup Saroj (supra), and Susama Roy Pramanik (supra), life of the respective panels had been directed to be extended in situations where the panels could not be given effect to because of intervening litigations. In the case of Purushottam (supra) the Court found fault in the action of the employer in keeping a selected candidate out during the lifetime of the panel. But the factual context of these two proceedings is entirely different. In these cases, the constitution of the selection committee which prepared the panel has been held to be improper by the Court at the instance of the petitioners themselves. Before the Court, on agreement of the petitioners the panel was quashed. After a panel is quashed by the Court in a proceeding brought by the petitioners only, it is not open to the petitioners to seek appointment on the strength of being placed in that panel. In the cases of Dr. Surinder Singh Jamwal (supra) and Ratan Kumar Saha (supra), directions were given for condoning the age bar in participation in the selection process. But as I do not think the petitioners cannot take any benefit from this judgment, as the petitioners have failed to make out their case of substantive issues.
19. The case of Nadia District Primary School Council (supra) has been relied upon to sustain the petitioners' claim for parity with other similarly situated candidates. In that case also, relief was extended on the ground of parity with other similarly situated empanelled candidates even after term of the panel under ordinary circumstances had lapsed. In these proceedings, however, there does not appear to be any valid panel through which the petitioners can claim entry into employment. It was also sought to be argued on behalf of the petitioners that the panel which was quashed had been given effect to earlier, and on the ground of parity with other similarly situated individuals they have staked their claim for appointment. No particulars has been disclosed by the petitioners of such other persons and their mode of appointment, with whom the petitioners seek parity. No substantive case of discrimination has been made out by the petitioners on this count. Admittedly the selection process based on which the petitioners claimed right of appointment in C. R. No. 9098 (W) of 1983 stands quashed. There is no specific pleading in either of these two writ petitions as regards preparation of any other panel. In the absence of petitioners having been empanelled in a proper manner, the petitioners cannot claim right of appointment merely on fulfilling qualification criteria. The ratio of the judgments cited by the petitioners cannot be made applicable in the facts of these two writ petitions. In such circumstances both these petitions shall stand dismissed.
20. All interim orders shall stand vacated
21. There shall be no order as to costs.
22. Urgent certified photocopy of this order be made forthwith available to the parties if applied for, subject to compliance with all necessary requisite formalities.
(ANIRUDDHA BOSE J.,)