Calcutta High Court (Appellete Side)
Debasis Manna vs State Of West Bengal & Ors on 25 August, 2008
Author: Indira Banerjee
Bench: Indira Banerjee
Form No. J.(2)
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
(APPELLATE SIDE)
Present:
The Hon'ble Justice
Indira Banerjee.
W.P. No.24782 (W) of 2007
DEBASIS MANNA
Vs.
STATE OF WEST BENGAL & ORS.
For the Petitioner: Mr. Sadananda Ganguly
Mr. Kumaresh Dalal
For the School Authority: Mr. Debabrata Karan
For the respondent No.22: Mr. Kishore Dutta
Mr. N. Bhattacharya Mr. Sandip Kumar Dutta Heard on: 04.08.08 & 08.08.08.
Judgment on: 25 th August, 2008. INDIRA BANERJEE, J.: In this writ application the petitioner has
challenged the process of selection for appointment of a teacher of English of Raghunathbari Ram Tarak High School, Raghunathbari, Panskura, Purba Midnapore, hereinafter referred to as the school.
The District Inspector of Schools concerned granted prior permission to the school to appoint an Assistant Teacher of English. The requisite qualification for the post was B.A. with English of 300 marks and preferably B.Ed/PGBT.
The petitioner participated in the interview along with others. A panel was prepared in which the respondent No.20 was placed in the first position. The petitioner alleges that the said respondent was not eligible in terms of the prior permission granted by the District Inspector of Schools.
Challenging the selection process, the petitioner filed a writ application being W.P. No.24251 (W) of 1997. It is stated that the respondent No.20 was impleaded party to the writ petition.
The respondent No.20, it is stated, filed a Writ Petition No.484 (W) of 1998 without impleading the petitioner as respondent and obtained an order directing that the panel be approved.
Pursuant to the aforesaid order, the District Inspector of Schools approved the panel by a Memo No.201-dated 25 th February, 1999. The respondent No.22 who was the 4 th empanelled candidate got himself added in the writ application filed by the petitioner, that is, Writ Petition No.24251 (W) of 1997.
The writ petition of the petitioner was ultimately disposed of by an order dated 23 rd April, 2002 directing the respondent No.2, that is, the Director of School Education, Government of West Bengal to consider the representation of the petitioner and pass a reasoned order.
By an order dated 23 rd April, 2002, the respondent No.2 rejected the representation of the petitioner. However, the District Inspector of Schools, (Secondary Education) Purba Midnapore issued the Memo No.1464/S indicating his inability to approve the panel prepared by the Selection Committee on the purported ground that the first candidate did not have the requisite qualifications for the post.
Aggrieved by the impugned decision, the petitioner and the respondent No.20 filed to independent writ applications being W.P.429 (W) of 2003 and W.P. No.836 (W) of 2003. The said writ applications were heard and disposed of by a common judgment dated 5 th August, 2005.
This Court observed that the appointment of the respondent No.20 was not only irregular but also illegal and accordingly, the appointment was set aside. The authorities were directed to re-evaluate the performance of the candidates by holding class-room demonstration, viva voce test and personality test afresh by appointment of a Selection Committee.
Being aggrieved, the petitioner filed an appeal being M.A.T. 3332 of 2005 which was disposed of by a judgment and order dated 5 th January, 2006, the operative portion whereof is extracted hereinbelow:
"We, therefore, dispose of the above application and the appeal by holding that instead of the persons that may be appointed by the Director of School Education, the concerned school authority will appoint a Selection Committee for the purpose of fresh evaluation of the performance of the candidature of all the candidates included in the panel afresh in accordance with law as per the provisions of the West Bengal Board of Secondary Education Act, 1963. We make it clear that except for the modification of impugned order, as above all other portions of the same will remain as it is. The evaluation of the performance of the candidature of all the candidates included in the panel shall be made as per the direction made by the learned Trial Judge.
With these modifications and observations as above, the appeal and the application are disposed of.
The above order will govern the appeal being M.A.T. No.3333 of 2005."
After disposal of the appeal, the respondent No.4 summoned the petitioner for interview scheduled on 22 nd August, 2006. The interview on 22 nd August, 2006 was postponed on the ground that a judgment delivered on 27 th June, 2006 in relation to recognition of B.Ed. degree by the National Council of Teachers Education, stood in the way of evaluation.
Subsequently, a fresh interview was scheduled on 31 st March, 2007. The interview of 31 st March, 2007 was also cancelled on the ground of absence of external expert.
By a Memo dated 15 th may, 2007, the respondent No.4 directed the school authorities to hold re-interview as directed by the Hon'ble Court. A further direction was issued on 4 th October, 2007. The petitioner contends that the respondents are bound to hold a fresh interview.
The writ application has been opposed by the respondent No.22 who submits that the writ petition is not maintainable as the petitioner is seeking implementation of an order of the Hon'ble Division Bench.
It is next submitted that the writ petition should not be entertained on the ground of delay. Lastly, it is argued that the writ petitioner did not, at the time of making of application, have the requisite eligibility. The petitioner obtained B.Ed. degree from Panskura Banamali College in 1996. The degree conferred by the said College were validated by National Council for Teacher Education on 8 th December, 2006 with retrospective effect from 1995-96.
The petitioner, therefore, did not have any right to appear in the interview or participate in the selection process. Subsequent validation of the degree cannot make the petitioner eligible. Reliance was placed on a judgment of the Supreme Court in Ashok Kr. Sharma vs. Chandrasekhar reported in 1997 (4) SCC 18 (Para 6). The judgment has no application in this case since a qualification that the petitioner had acquired before applying has been validated.
Lastly, it was contended that the petitioner was not sponsored by the Employment Exchange and as such his appearance before the Selection Committee was not a valid appearance.
The arguments advanced on behalf of the said respondent are unsustainable in law. First of all, as per the prior permission, the requisite qualification was B.A. in English with 300 marks and preferably B.Ed.
The B.Ed. qualification was not mandatory. It cannot, therefore, be said that the petitioner was ineligible. In any case, the B.Ed. degree of Panskura Banamali College has been validated with retrospective effect from 1995.
The submission that a writ petition cannot be filed to enforce compliance with an order of Court is patently misconceived. A person who obtains an order of Court acquires a legal right to enforcement of the order. A writ certainly lies to enforce a legal right, which includes the right to enforcement of an order of Court.
Contempt proceedings are filed for penalisation of those who violate the order of Court. Contempt proceedings being quasi-criminal proceedings, personal to the contemnor. The remedy of contempt is cumbersome since officials get transferred, Managing Committees are re- constituted, Head Masters and Headmistress retire and are replaced by successors against whom no order can be passed in contempt unless there is clear case made out against them of deliberate contravention of order of Court.
The fact that contempt proceedings might be filed for penalization of a contemnor for violation of an order of Court, does not take away the right to enforce an order of Court by seeking a writ of mandamus.
The delay of about 22 months in filing the writ petition is not fatal having regard to the facts and circumstances of this case. On a true construction of the orders passed by this Court, panel was intended to mean the panel of candidates who were called for the interview/selection test and not just those candidates who had been empanelled.
An order of Court cannot be given an interpretation which leads to abysurdity and/or apparent illegality and/or contravention of the rules of recruitment.
As per the rules of recruitment prevalent at the material time, a panel of three candidates was required to be prepared of which one candidate had to be selected. Of course, in case there are no eligible candidates available, a panel might be prepared comprising less than 3 candidates.
In this case, on the basis of merit a panel of 3 candidates was prepared. This Court held that the selection of the respondent No.22 was illegal. If the respondent No.22 is excluded there would only be 2 candidates left. It was not intended that fresh selection be made from amongst only 2 candidates. Even otherwise, if the selection was found illegal, it is only fit that a fresh selection should be held considering the candidature of all candidates.
It is now well-settled by judicial decisions that exclusion of candidates from consideration on the ground of their names not having been sponsored by the Employment Exchange, is discriminatory and offends Article 14 of the Constitution of India. A candidate who had been allowed to participate in the interview and selected on the basis of performance cannot be rejected on the ground of his name not having been sponsored. Reference may be made to the following judgments:
1. Excise Superintendent Malkapatnam, Krishna District vs. K.B.N. Visweshwara Rao & Ors. reported in (1996) 6 SCC
216.
2. Arun Kumar Nayak vs. Union of India & Ors. reported in (2006) 8 SCC 111.
3. Rabindra Nath Mahata vs. State of West Bengal & Ors.
reported in 2005 (3) CHN 337.
The writ petition thus succeeds in part.
The candidates shall be interviewed afresh within 6 weeks from the date of communication of this order and a fresh panel of selected candidates shall be prepared in accordance with law.
Learned Counsel appearing on behalf of the petitioner prays for stay of operation of this order. The prayer for stay is considered and refused.
Xerox certified copy of this order, if applied for, be supplied to the learned Counsel appearing for the parties, subject to compliance with the requisite formalities.
(Indira Banerjee, J.)