Calcutta High Court (Appellete Side)
The District Primary School Council vs Himanshu Mondal & Ors on 2 December, 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
AST 419 of 2014
(ASTA 305 of 2014)
(ASTA 306 of 2014)
The District Primary School Council, Howrah & Anr.
-versus-
Himanshu Mondal & Ors.
For Appellants : Mr. L. K. Gupta,
Mr. Subir Sanyal,
Mr. Bhaskar Vaishya,
Mr. Ratul Biswas.
For the Writ Petitioners/:Mr. Bikash Ranjan Bhattacharya,
Respondents Mr. Soumen Kumar Dutta,
Mr. Subhs Jana.
For the State : Mr. Abhratosh Majumdar,
Mr. T. M. Siddiqui.
Heard On : 2nd December, 2014.
Judgement On : 2nd December, 2014.
Re: ASTA 305 of 2014
Jyotirmay Bhattacharya, J.
This mandamus appeal is directed against an interim order passed by a learned Single Judge of this Court on 28th November, 2014 in W.P. No. 31563(W) of 2014. By the said order, liberty was given to the District Primary School Council to prepare a panel, with this rider that necessary approval thereof may also be obtained, but no appointment shall be made from the panel without obtaining the leave of the Court till 12th December, 2014 or until further order whichever is earlier.
The said interim order was passed in a writ petition wherein the District Primary School Council, Howrah, was not a party. However, the Chairman of the District Primary School Council was impleaded as a respondent in the said writ petition and the Chairman of the District Primary School Council, Howrah, was represented by his lawyers, before the Learned Single Judge in course of hearing of the writ petition.
Since the District Primary School Council, Howrah, was not a party to the said proceeding, an application has been taken out by the said Council seeking leave of this Court to prefer an appeal for challenging the order passed by the learned Trial Judge of this Court on 28th November, 2014 as a party adversely affected by the interim order passed by the learned Single Judge.
We find that in the impugned order some directions were issued upon the District Primary School Council for not giving any appointment from the panel prepared on the basis of de novo recruitment process without the leave of the Court. Such directions, according to the said Council are contrary to the spirit of the order passed by the Division Bench of this Hon'ble Court on 9th June, 2014 in a mandamus appeal being F.M.A. 3116 of 2013. Our attention has been drawn to the order passed by the Division Bench of this Hon'ble Court on 9th June, 2014 in F.M.A. 3116 of 2013 whereby the said Council was directed to complete the entire selection process in terms of the order passed by the Principal Secretary to the Government of West Bengal on 21st June, 2012 as early as possible and positively within a period of three months from the date of communication of the said order so that the selection process can be completed without any further delay.
Considering the said order passed by the Division Bench of this Court, we find substance in the contention of the applicants that implementation of the order passed by the Division Bench of this Court may ultimately be delayed in case the order passed by the learned Single Judge of this Court is allowed to operate.
Under such circumstances, we grant leave to the applicants to file this appeal. The application for leave to appeal being ASTA 305 of 2014 is, thus, allowed.
Let the appeal now be registered.
Re: AST 419 of 2014 Immediately after the application for leave to appeal was allowed, we were requested by the learned Counsel appearing for the parties to consider the appeal itself on merit. Accordingly, we have heard the learned Advocate of the parties on the merit of the appeal.
Let us now consider the merit of the instant appeal in the facts of the present case.
The selection process was initiated in the year 2009 for filling up several vacant posts of Assistant Teachers in primary schools under various Districts Primary School Councils including Howrah District Primary School Council. However since presently we are concerned with the selection process relating to the concerned posts under Howrah District Primary School Council, we will deal with the present dispute relating to the selection process under Howrah District Primary School Council. Serious irregularities in the recruitment examination were detected and ultimately the recruitment examination conducted by the District Primary School Council, Howrah was cancelled and the Chairman of the concerned District Primary School Council was directed to conduct the recruitment examination de novo with a rider that only the eligible candidates who had applied for recruitment against the advertisement issued by the concerned District Primary School Councils and had appeared in the written examination will be allowed to appear in the de novo examination and no separate fees will be collected from them for appearing in such examinations.
It was also directed that no other candidates except those who were allowed to appear in the earlier written recruitment examination conducted for the same purpose will be allowed to appear in the de novo written examination. The entire process including publication of the final panel was scheduled to be completed by the District Primary School Councils within 90 days from the date of issue of the said Government Order. The said Government Order was issued on 21st June, 2012.
While disposing of the writ petition being W.P.No. 9739(W) of 2012 (Sri Atanu Chakraborty & Ors. Vs. State of West Bengal & Ors.) on 22nd June, 2012, a Learned Single Judge of this Court refused to interfere with the said Government Order dated 21st June, 2012 by holding inter alia that it was rightly held in the order dated 21st June, 2012 that the written test and interview be treated as cancelled. The other directions which were given in the said Government order regarding holding of fresh recruitment test from amongst the candidates who applied pursuant to the advertisement and who participated in the earlier selection process was also not disturbed by the Learned Single Judge of this Court while disposing of the said writ petition.
The judgement and/or order passed by the Learned Single Judge of this Court in the said writ petition was challenged in an appeal being FMA 3116 of 2013 at the instance of the writ petitioners therein. The said mandamus appeal was dismissed by a Division Bench of this Court on 9th June, 2014 with a direction upon the Council to complete the entire selection process in terms of the order passed by the Principal Secretary to the Government of West Bengal on 21st June, 2012 as early as possible and positively within a period of three months from the date of communication of the said order, so that the selection process can be completed without any further delay.
Thus it is apparent from the said order passed by the Division Bench of this Court that the Government Order which was issued on 21st June, 2012 was actively considered by the said Division Bench and the modalities worked out by the Government for conclusion of the recruitment process was approved by the Division Bench of this Court while dismissing the said appeal.
It is contended by Mr. Gupta, Senior Counsel of the appellant that when the order passed in the said Mandamus Appeal was brought to the notice of the learned Single Judge, the learned Single Judge ought not to have passed any interim order in said writ petition. Even entertainability of the said writ petition was also questioned before us by relying upon a decision of the Hon'ble Supreme Court in the case of National Housing Cooperative Society Ltd. V. State of Rajasthan & Ors. reported in (2005)12 SCC 149, wherein it was held in an identical situation that appeal and/or review are the only courses which could be followed by the aggrieved party for reopening the issue which was set at rest by the Appeal Court However in the instant case we find from the impugned order that the learned Single Judge after taking note of the fact that an identical interim order was passed in another writ petition being W.P.No. 27619(W) of 2014 and the said interim order was continuing till the said writ petition was withdrawn and the said writ petition was withdrawn a few minutes before passing of the impugned order, passed the impugned order in this writ petition presumably for the reason that the challenge raised in this writ petition was identical with the challenge raised in the earlier writ petition being W.P No.27619(w) 2014.
Since apart from challenging the legality of the impugned order, entertainability of this writ petition was also questioned, we have examined the pleading of this writ petition and the grounds made out therein in support of the relief claimed therein.
We have seen that none of the present writ petitioners were party to the earlier writ petition being W.P.No. 9739(W) of 2012. They were also not parties in the mandamus appeal being FMA 3116 of 2013 which arose from the final order passed in the said writ petition being W.P.No. 9739(W) of 2012.
Again we find that though the subject matter of challenge in the said writ petition was the Government Order dated 21st June, 2012, but in fact on perusal of the writ petition, we find that the grounds on which the said Government Order was challenged did not find any place in the earlier writ petition which gave rise to the said mandamus appeal being F.M.A No.3116 of 2013.
Since none of the present writ petitioners were party to the earlier writ proceedings and/or in the appeal arising therefrom, and further since the issues which are sought to be raised in this present writ petition were neither raised in the earlier writ petition and/or in the appeal arising therefrom nor those issues were finally decided in the appeal being F.M.A No.3116 of 2013, the maintainability of the present writ petition, in our considered view, cannot be questioned on the ground of bar of res judicata.
As such, we cannot hold that the Learned Trial Judge acted illegally inentertaining the said writ petition, but at the same time we cannot be oblivious of the facts that the said Government Order dated 21st June, 2012 which is now under challenge in the present writ petition was approved by the Division Bench of this Hon'ble Court while disposing of the appeal being FMA 3116 of 2013.
While approving the said Government Order the Division Bench of this Hon'ble Court also directed the Council to complete the entire selection process in terms of the modalities which were worked out by the Government as mentioned in the said Government Order dated 21st June, 2012. Thus, for all practical purpose the said Government Order merged with the order passed by the Division Bench of this Hon'ble Court in the Mandamus Appeal being F.M.A No.3116 of 2013. May be that the Government Order dated 21 June, 2012 was challenged from a different angle but still then when the Division Bench approved the said Government Order, resulting in its merger with the order of the Division Bench, we feel that under such circumstances, instead of filing a separate writ petition before the Writ Court, the Division Bench of this Court should have been approached with an application for review along with a prayer for the addition of the writ petitioner in the main proceeding so that the order passed by the Division Bench of this Hon'ble Court could have been considered again in the context of the challenge which the writ petitioners are now seeking to raise in the present writ petition in view of the judgment of Hon'ble Supreme Court reported in 2005(12) SCC 149--National Housing Co-operative Society Ltd. -vs- State of Rajasthan & Ors.
Even without filing any review application, the order passed by the Division Bench of this Hon'ble Court approving the Government Order dated 21st June, 2012 could have alsobeen challenged before the Hon'ble Supreme Court after obtaining leave to challenge the said order in appeal as a party adversely affected by the said order.
Filing of a separate writ petition before the Writ Court should be discouraged as in case a different conclusion is arrived at by the Writ Court, a question will arise as to which one of those two decisions will be implemented. Two conflicting orders cannot operate in the same field. As such, it is desirable that in such circumstances the aggrieved party either should approach the same Division Bench for review of its earlier order or prefer an appeal before the higher Forum.
When the Division Bench has approved the Government Order dated 21st June, 2012 and further when the said order is in operation, we feel that a Learned Single Judge of this Court ought not to have been invited to consider the legality of the Government Order dated 21st June, 2012 which was approved by the Division Bench of this Hon'ble Court resulting in merger of the Government order with the order of the Division Bench.
Though elaborate submission was made by the Learned advocates of the parties with regard to the merit of the grounds made out by the writ petitioner for challenging the Government Order dated 21st June, 2012, but presently we do not feel it necessary to consider such submission advanced before us by the counsel of the respective parties.
Suffice it to mention here that after the order was passed by the Division Bench of this Hon'ble Court approving the Government Order dated 21st June, 2012, notifications were published once in the Newspaper on 30th July, 2014 inviting the eligible candidates to appear at the written test which was scheduled to be held on 10th August, 2014 and subsequently on 17th September, 2014, calling upon the eligible candidates to appear in the oral test which was scheduled to be held on 20th/21st September, 2014 but still then the writ petitioners did not approach the Writ Court immediately thereafter. The writ petition was filed on 27th November, 2014 i.e. long after those two notifications were issued. Delay in filing this writ petition remains unexplained. Considering the stage of the selection process, the writ petitioner should have approached the appropriate forum immediate after publication of the first notification in July, 2014. Their promptness in approaching the court for seeking the interim relief is also wanting in the present case.
Again, none of the writ petitioners were residents of the Howrah district. Though participation in the recruitment process by the residents of other districts is not barred, but no averment was made by the writ petitioners as to whether they are at all interested in the recruitment process in the district of Howrah. In the absence of such averments, we are unable to understand as to how the writ petitioners will be affected, if the writ petition is not entertained.
Thus, considering the facts and circumstances of the case as stated above, we feel that this is not a fit case where any interim order was required to be passed by the Learned Trial Judge.
Accordingly, we set aside the interim order passed by the Learned Trial Judge on 28th November, 2014.
The appeal is thus, allowed by treating the same as on the days list.
Re: ASTA 306 of 2014 In view of the disposal of the appeal itself, no further order need be passed on the application for stay which is deemed to be disposed of. The application for stay being ASTA 306 of 2014 is thus, deemed to be disposed of.
Urgent Photostat certified copy of this order, if applied for, be supplied to the applicant immediately.
(Jyotirmay Bhattacharya, J.) (Tapash Mookherjee, J.) ac.