Calcutta High Court (Appellete Side)
Tanushree Sadhukhan & Ors vs The State Of West Bengal & Ors on 16 December, 2011
Author: Pinaki Chandra Ghose
Bench: Pinaki Chandra Ghose
1
86.
16.12.2011.
d.d.
FMA No.1286 of 2010
(CAN 8060 of 2010)
Tanushree Sadhukhan & Ors.
Vs.
The State of West Bengal & Ors.
Mr. Subir Sanyal
..... For the Appellants.
Sk. Kamaluddin
...... For Respondent Nos.4 & 5.
This mandamus appeal is directed against the judgment and/or order dated 28th January, 2010 passed by the Hon'ble Single Judge in W. P. No.21913(W) of 2009.
It appears that the identical question has already been decided by this Court when similar appeal was heard out and was disposed of by the Division Bench on 29th September, 2011 challenging an order passed by the Hon'ble Single Judge on 28th January, 2010 dismissing the writ petitions and held that Rule 8 of the West Bengal School Teachers Recruitment Rules, 2001 is logical, rational and no relief can be granted to the writ petitioners.
Being aggrieved, the batch of appeals were filed and had been disposed of by the Division Bench holding as follows:
" In view of the aforesaid discussion we therefore hold that the unamended portion of the Recruitment Rules of 2001 or selection for the post of Primary Teacher being Rule 8 was contrary to the decision of the Supreme Court hence it could not stand to scrutiny under Articles 14 and 16 of the 2 Constitution of India. Therefore the said unamended portion debarring by necessary implication, eligible candidates from applying without being sponsored by the employment exchange is constitutionally invalid. "
Thereafter, Their Lordships further held:
" In spite of the knowledge of the said judgment and order the appellants/writ petitioners before us did not challenge the same hence, the said order has now become binding and in spite of the aforesaid findings on the legal issues this Court cannot grant any relief as far as the appellants' claim for consideration in the vacancies arose in 2006, as the Recruitment Rules then prevailing will be applicable and which necessarily debars any person other than the sponsored candidates to participate in the selection process. "
Ultimately, Their Lordships were pleased to dispose of the appeals and held as follows:
" We therefore dispose of the appeal directing the Primary School Council and State concerned that if the posts/vacancies of which arose in 2009 are not filled up as yet or for that matter after having clubbed in 2006 and 2009 if all the vacancies are not filled up in terms of the order of the learned Single Judge the performance of each of the appellants before us should be considered in the selection process to fill up left over vacancies which arose subsequent to the year 2006 or 2006 year itself. "
After hearing learned Counsel and after considering the judgment of the Division Bench and as it is submitted that this appeal is also an identical appeal arising out of the same order by the Hon'ble Single Judge and the appeal has been filed from the said order dated 28th January, 2010 and since the appeal has been filed involving the same question, we express the same view as has been expressed by the other Division Bench and dispose of this 3 appeal in the light of the judgment and/or order dated 29th September, 2011 directing the Primary School Council and State concerned should take steps in the matter, if the posts and vacancies which arose in 2009 are not filled up and the matter having been clubbed in 2006 and 2009, and if all the vacancies are not filled up in terms of the Hon'ble Single Judge, the performance of each of the appellants before us should be considered in the selection process to fill up left over vacancies which arose subsequent to the year 2006 or 2009.
The appeal and the application are disposed of.
Urgent certified photostat copy of this order, if applied for, be supplied to the parties subject to compliance of all requisite formalities.
( Pinaki Chandra Ghose, J ) ( Ashoke Kumar Dasadhikari, J )