Calcutta High Court (Appellete Side)
Madhyapally Sikshaniketan & Ors vs Anirban Das & Ors on 20 November, 2014
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
AND
The Hon'ble Justice Tapash Mookherjee
M.A.T. No. 1669 of 2014
(CAN 9371 of 2014)
The Managing Committee of
Madhyapally Sikshaniketan & Ors.
Versus
Anirban Das & Ors.
For Appellant : Mr. Milan Bhattacharya,
Mr. Mahananda Roy,
Ms. Seba Roy.
Opposite Party/ : Mr. Subir Sanyal,
Writ Petitioner Mr. Anup Dasgupta.
For the State : Mr. Jagadish Chandra Roy,
Mr. Binoy Kumar Das.
Heard On : 20th November, 2014.
Judgement On : 20th November, 2014.
Jyotirmay Bhattacharya, J. Two writ petitions were disposed of by the writ
court by passing a common order and/or judgment on 23rd July, 2014. Presently
we are concerned with the appeal being M.A.T. 1669 of 2014 arising out of a writ
petition being W.P. No. 19748(W) of 2009 which was filed by the writ petitioner
concerning selection of a candidate for the post of Group-C in Madhyapally
Sikshaniketan at Nandigram within the district of Purba Medinipur.
The writ petitioner was an aspirant for the said post. He alongwith the other
applicants participated in the selection process conducted by the selection
committee. Typing test was taken under the supervision of the selection
committee. Some of the candidates participated in the typing test. Interview
was also held. All the candidates, including the writ petitioner, appeared in
the interview before the selection committee. After considering the academic
qualifications of the respective candidates and their performance in the typing
test and interview, marks were allotted to the participating candidates by the
individual members of the selection committee. Thereafter, a panel was prepared
by the selection committee on 7th February, 2009. The said panel alongwith all
relevant papers were submitted by the selection committee to the appointing
authority for its approval. The managing committee of the said school held a
meeting on 15th June, 2009 for considering the panel prepared by the selection
committee. The said selection process could not be completed as it was
contended by the Headmaster and the Secretary of the said school that while the
members of the managing committee met for holding a discussion with regard to
the said panel on 15th June, 2009; some unknown persons entered into the meeting
room and snatched away all original papers relating to the said panel and as a
result, no decision could be taken by the managing committee of the said school
on the said panel on the said date. Selection process was, thus, practically
abandoned from that stage of the selection process. The writ petitioner who
claimed to have occupied the first position in the panel filed the said writ
petition for selecting him for appointment in the said post by denying the
alleged occurance of the said incident of snatching of all relevant papers as
claimed by the school authority.
The Headmaster of the said school affirmed an affidavit for himself as well as
on behalf of the then Secretary of the said school contending therein that some
unknown persons entered into the meeting room on the date when the meeting was
continuing on 15th June, 2014 and they snatched all the relevant papers and left
the meeting room after confining the members of the managing committee in the
meeting room by locking the door thereof from outside.
With regard to such stand taken by the school authorities in their affidavit, an
enquiry was directed to be held by the learned Trial Judge through police and
accordingly an enquiry was held by the Criminal Investigation Department, West
Bengal. After holding such an enquiry, the Criminal Investigation Department
submitted a report before the learned Trial Court stating interalia that no such
incident of snatching had taken place on the said date, i.e. 15th June, 2009.
Considering the said report, the learned Trial Judge ultimately disposed of the
said writ petition on 23rd July, 2014 by directing the school authorities to
forward the names, testimonials and other relevant documents of the writ
petitioner to the respondent no. 2, namely, the concerned District Inspector of
Schools (S.E.) for consideration of the said panel. The school authority was directed to comply with the said direction within two weeks from the date of communication of His Lordship's order.
The concerned District Inspector of Schools was directed to consider the case for grant of approval to the said panel within a period of four weeks thereafter upon giving opportunity of hearing to the concerned parties. The school authority felt aggrieved by the said order of the learned Trial Judge. Hence, the instant mandamus appeal was filed by the school authority.
Considering the rival contention of the parties and particularly in view of the stand taken by the school authority that all relevant papers were snatched by the unknown persons from the school authority in course of the meeting being held on 15th June, 2009, this Court wanted to be further sure about the correctness of such incident allegedly occurred on the said date and keeping in mind the text of the report submitted by the C.I.D. in the Trial Court, this Court further directed the Special Inspector General of Police, Criminal Investigation Department, West Bengal, to cause a search & seizure for recovering the relevant documents relating to the said selection and for submission of a report before this Court within a time bound period. Accordingly, search & seizure was conducted by the police authority and in course of search, the following documents were seized from the school authority :
(i) Original type writing test (examination) sheets of 16 (sixteen) candidates who appeared on 07.02.2009 for the post of Group-'C' of Madhyapally Siksha Niketan, Amdabad, under P.S. Nandigram. (Total 16 sheets).
(ii) Original hand writing & spelling test (examination) sheets of 17 (seventeen) candidates who appeared on 08.02.2009 for the post of Group-'D' of Madhyapally Siksha Niketan, Amdabad, under P.S. Nandigram (Total 17 sheets).
(iii) Original Managing Committee Resolution Book of Madhyapally Siksha Niketan, containing resolution of meeting no. 06/06 dated 29.12.2006 to meeting no. 01/10 dated 09.01.2010.
A copy of the said report was circulated amongst the learned advocates of the respective parties. No exception has been taken by any of the parties to the said report. The parties, thus, have accepted the said report.
Be that as it may, it appears from the said report as well as the documents seized by the police authority in course of such search & seizure that neither the panel which was prepared by the selection committee nor the score sheet of the individual member of the said selection committee in respect of those candidates could be recovered by the police.
In our view, those documents are very vital and relevant and in the absence of those documents, the selection process cannot be completed. However, since the testimonial regarding the academic qualification of the individual candidates and the type writing test papers are available, we feel that such selection process can be completed after holding a fresh interview of those candidates only, by a newly constituted selection committee.
Having regard to the fact that some allegations are made by the writ petitioner against the Headmaster of the said school, we feel that it is not desirable to include him in the selection committee.
As such, we feel that justice will be subserved if such selection committee is constituted by the concerned District Inspector of Schools (S.E.) and the selection process is completed under his supervision. We thus, direct the concerned D.I. of Schools (SE) to constitute a selection committee, without including the Headmaster of the said school therein who may be substituted by a Headmaster of any neighboring school of his choice, and the residuary process may be completed by the said selection committee under the supervision of the concerned D.I. of Schools (SE).
Having regard to the fact that the managing committee had since been reconstituted and the erstwhile Secretary against whom some allegations are made by the writ petitioner is no more the Secretary of the said school and a new Secretary has already taken over charge, we feel that newly selected Secretary may be included in the said selection committee as its member.
It is made clear that while completing the said selection process by the newly constituted committee, fresh interview will be taken of those candidates only who participated in the selection process for the post of Group - C earlier and their performance will be assessed by the selection committee while preparing a fresh panel in this regard.
The entire exercise for selection of the suitable candidate in the post of Group-'C' should be completed within twelve weeks from the date of communication of this order.
The time limit which is fixed hereinabove should be regarded as peremptorily fixed by this Court.
The impugned order is thus, modified and this appeal is allowed.
Re : Lodging of complaint with the First Class Magistrate having Jurisdiction as per the provision contained in Section 340 Of the Code of Criminal Procedure.
Before concluding, we find that an attempt was made by the school authority to upset the entire selection process by stating on oath in paragraph 4.6 of their affidavit-in-opposition filed before the learned Trial Judge about the incident of snatching of the relevant papers from the school authority by some unknown persons and as a consequence thereof, the selection process had to be abandoned. The said affidavit was affirmed by the Headmaster of the said school for himself as well as on behalf of the then Secretary of the said school, namely Gourhari Pradhan. The statements made in the said affidavit in paragraph 4.6 is relevant for the present purpose. Accordingly, the statements made in paragraph 4.6 of the said affidavit is quoted below :
"Para 4.6 - That on 15.6.2009 a meeting was convened by the Secretary of the school for discussion of the two panels and all original papers were placed in the meeting held on 15.6.2009 and the members of the Managing Committee while discussing regarding approval of the panel, all on a sudden a mob of unknown persons entered into the office room of the school premises where the meeting was going on and snatched away all the original documents from the members of the Managing Committee and left the place by locking them inside room. The said incident was also recorded in details in the said resolution dated 15.6.2009 and in the said meeting a resolution was adopted to lodge a diary in the Reapara Police Station and to inform the District Inspector of Schools (SE) about the incident."
The statements made in the said paragraph was affirmed by the said deponents as true to their knowledge. The police authority in terms of the direction of this Court conducted search & seizure for recovering the documents in connection with the said selection process from the custody of the school authority and after conducting a search & seizure, some documents were recovered from the custody of the school authority. The police authority submitted a report before this Court reporting that on enquiry it revealed that no such incident of snatching occurred on 15th June, 2009 as alleged by the school authority in the diary lodged by them. In fact, identical allegations are made by the Headmaster and the then Secretary of the said school in their affidavit filed before the writ court.
In the context of the above contention made by these deponents on oath, an enquiry was caused to have been conducted by the police authority under the order of the Learned Trial Court and the police authority after holding such investigation reported that no such incident of snatching occurred in the school premises on the said date. After taking into consideration the said report of the police authority, this court, while considering this appeal directed the Special Inspector General of Police, C.I.D. West Bengal to cause search & seizure for recovering the relevant papers connected with the said selection process.
Considering the report submitted by O.S.D., Midnapore Zone, C.I.D., West Bengal, this Court is of prima facie view that the deponents intentionally made some incorrect statements in their affidavit for misleading the Court so that the Court cannot come to a proper decision with regard to the dispute involved in the writ petition.
By making such statements on affidavit and affirming those statements as true to their knowledge, in our prima-facie view, an offence referred to Clause -(b), sub-section 1 of section 195 was committed by those deponents.
Accordingly, we feel that an enquiry by a first class Magistrate is needed.
We thus, in exercise of our suo motu jurisdiction under sections 340 of the Code of Criminal Procedure, direct the learned Registrar General of this Court to lodge a complaint in writing in this regard with the Magistrate of First Class having jurisdiction with a direction upon the concerned Magistrate to hold an enquiry in this regard and pass necessary order thereon.
Let such a complaint be sent to the Magistrate along with authenticated cause papers of this litigation and the authenticated copies of the relevant seized documents such as the type written test papers, copy of the resolution of the meeting of the school's Managing Committee held on 15th June, 2009. Such action should be taken within two weeks from date.
Let this file be placed before the learned Registrar General of this Court for taking necessary action in this regard.
The Registrar General of this Court is also directed to prepare a photocopy of the type-written test of the sixteen candidates who participated in the selection process for the post of Group-C and sent those photo copies with a certificate of its authentication to the concerned District Inspector of Schools (SE) who is directed to complete the said selection process in terms of order passed hereinabove by accepting those authenticated documents as original .
The seized documents which were submitted before us by the police authority be retained in a sealed cover under the safe custody of the learned Registrar General of this Court so that as and when the original documents will be necessary for holding such enquiry by the Learned Magistrate, those can be sent to the Learned Magistrate.
The appeal is, thus, disposed of.
Re : CAN 9371 of 2014.
In view of the disposal of the appeal, no further order need be passed on the application. Accordingly, the application is also disposed of.
It is made clear that while disposing of this appeal, we have not dealt with the other appeal being M.A.T. 1778 of 2014 arising out of the writ petition being W.P. No. 9283(W) of 2009 which relates to the selection process concerning to the post of Group-D of the said school.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
(Jyotirmay Bhattacharya, J.) (Tapash Mookherjee, J.) ac.