Calcutta High Court (Appellete Side)
Firoja Begum vs The State Of West Bengal & Others on 16 November, 2016
Author: Tapabrata Chakraborty
Bench: Tapabrata Chakraborty
1
15 16.11.2016
rpan Ct. No.38
W.P. No. 15304 (W) of 2015
Firoja Begum
Versus
The State of West Bengal & Others
Mr. Sarwar Jahan
Mr. Debabrata Sen
... for the Petitioner.
Mr. Jaharlal De
Mr. Srikanta Paul
... for the State.
Mr. Goutam Mukherjee
... for the Respondent No.3.
The instant writ petition has been preferred challenging, inter alia, an order dated 16th September, 2014 passed by the respondent no.2.
Shorn of unnecessary details the facts are that pursuant to a notification dated 25th March, 2010 the petitioner participated in a selection process for engagement to the post of Fourth Shiksha Sahayika at Old Duckbanglow Sishu Shiksha Kendra (hereinafter referred to as the said Kendra). The petitioner's name was forwarded by the Managing Committee of the said Kendra for necessary approval of the Siksha Sthayee Samity (hereinafter referred to as the said Samity). The said Samity by a resolution dated 5th January, 2011 approved the name of the petitioner for engagement in the said Kendra. As thereafter no further steps were taken towards issuance of appointment letter, the petitioner was constrained to prefer a writ petition being W.P. No.16078(W) of 2011. The said writ petition was disposed of by an order dated 17th November, 2011 directing the respondent no.10 therein being the Secretary to the said Kendra to take steps in accordance with law. Pursuant thereto the petitioner was engaged by the said Kendra and an agreement was entered into with the petitioner towards such engagement and the relevant documents were forwarded to the competent authority for approval of such engagement but such approval was withheld and the respondent no.4 by a memorandum dated 30th May, 2012 opined that after 2 issuance of the memorandum dated 23rd April, 2010, the Shiksha Sanskrity Tathya-O- Krira Sthayee Samity was not the competent authority regarding engagement of Sahayikas. Challenging the said order, the petitioner preferred a fresh writ petition, being W.P. No.16627(W) of 2012 and by an order dated 11th October, 2012 the impugned order dated 30th May, 2012 was set aside and the respondent no.4 herein was directed to approve the engagement of the petitioner, if she fulfils other conditions. Pursuant to the said order, the petitioner was heard and the respondent no.4 ultimately passed an order on 8th February, 2013 observing, inter alia, that for the post of Fourth Sahayika in the said Kendra only one application was received from the petitioner and that the Managing Committee did not publish a second advertisement/notice, as required in terms of the Government Order dated 19th November, 2009 and that the First Sahayika of the said Kendra was the petitioner's elder sister, who was present in the meeting in which the resolution towards the engagement of the petitioner was adopted. In consideration of such anomalies the said respondent no.4 referred the matter to the Panchayat & Rural Development Department, Government of West Bengal for necessary instruction. Thereafter, as no instruction was forthcoming and no final decision was communicated, the petitioner again approached this Court by preferring a writ petition, being W.P. No.20594(W) of 2013. The writ petition was disposed of by an order dated 24th July, 2013 directing the Secretary, Department of Panchayats & Rural Development, Government of West Bengal to take a decision in the matter, in accordance with law. Pursuant to the said order, the respondent no.2 passed an order dated 16th September, 2014 rejecting the petitioner's claim.
Mr. Jahan, learned advocate appearing for the petitioner submits that a perusal of the impugned order would reveal that the petitioner's claim was rejected primarily on three grounds.
First, the advertisement was partly defective as the date, time and place of interview required to be incorporated in the advertisement in terms of the existing Government guideline, were absent.
Second, as there was a single participant in the concerned selection process, the Managing Committee of the said Kendra ought to have published a second notice as mandatorily required under Government Order dated 19th November, 2009.
3Third, as the petitioner's elder sister was a member of the Managing Committee, the petitioner ought not to have been considered for the post of Sahayika.
Drawing the attention of this Court to the advertisement at page 28 of the writ petition, Mr. Jahan submits that it had been specifically incorporated in the same that the applicant should be a permanent resident of Teenpukuria Gram Panchayat within which the said Kendra is situated and that the eligibility criterion towards qualification and age also stands incorporated in the advertisement and that as such the same cannot be construed to be defective. However, it could not be pointed by Mr. Jahan that the date, time and place of the interview were incorporated in the advertisement. He further argues that the petitioner cannot be made to suffer for the laches on the part of the Managing Committee of the said Kendra. Obligation, in terms of the Government Order, was cast upon the Managing Committee of the said Kendra to make a second advertisement in the event there was a single participant and for the failure on the part of the Managing Committee to discharge such obligation, the petitioner's claim could not have been negated.
He argues that it is true that the petitioner's elder sister was an invitee member of the Managing Committee of the said Kendra. The process towards the engagement of a Sahayika does not prescribe for any written test or any interview. It is solely dependent upon the marks obtained by the applicant in the Madhyamik Examination. As there was no interview and written test it cannot be said that the selection process was vitiated only due to the presence of the petitioner's elder sister in the Managing Committee meeting in which resolution was adopted towards engagement of the petitioner.
Mr. Jahan further submits that the proposal of the Managing Committee towards the engagement of the petitioner was approved by the competent authority, being the said Samity. The sole ground for rejection of the petitioner's claim initially was to the effect that there had been a change in the constitution of the selection committee, as would be explicit from the order dated 30th May, 2012 issued by the respondent no.4 herein. The said ground was negated and the memorandum dated 30th May, 2012 was set aside by this Court and as such, subsequent thereto the respondents could not have taken any fresh ground of rejection of the petitioner's claim. The additional grounds 4 taken in the subsequent orders passed by the respondent no.4 and the respondent no.2 cannot stand in the way towards grant of engagement in favour of the petitioner.
Drawing the attention of this Court to the Government Orders dated 27th October, 2006 and 24th November, 2008, he submits that the procedure towards the selection of Sahayika was incorporated in the said Government Orders and that the said procedure was sought to be supplemented by Government Orders incorporating additional conditions towards engagement of Sahayika. The said orders were not appropriately notified to the Managing Committee of the said Kendra and as such, on the basis of the same the petitioner's candidature could not have been rejected. In support of his contention Mr. Jahan has placed reliance on an unreported judgment of this Court in Waktunnesa Bibi Vs. The State of West Bengal & Ors. He has also placed reliance upon an interim order passed in a matter pertaining to selection of a Samprasarak, as annexed at page 81 of the writ petition.
Mr. De, learned senior advocate appearing for the State respondents argues that the advertisement itself is defective inasmuch as particulars regarding the date and time of the interview do not stand specified in the same though such specification is mandatory as would be explicit from the Government Order dated 8th November, 2004.
He further submits that the entire selection smacks of mala fide and bias. The petitioner's elder sister was present in the Managing Committee meeting in which decision was taken to engage the petitioner and her sister did not dissociate herself from the selection process. Such presence of a near relation of the petitioner in the Managing Committee is violative of the provisions of the Government Orders dated 8th July 1999 and 15th September, 2004.
He further argues that the petitioner was the sole participant and with an intent to appoint the petitioner, no second notice was published though the Government Order dated 19th November, 2009 clearly provides that if after wide circulation of the advertisement only one candidate applies, the Managing Committee must take necessary steps towards publication of a second notice. From such facts it is thus evident that the selection process was not fair and transparent and the same has been conducted in blatant violation of the Government Orders.
5Heard the learned advocates for the respective parties and considered the materials on record. The argument of Mr. Jahan to the effect that the reason contained in the memorandum dated 30th May, 2012, passed by the respondent no.4 towards denial of the petitioner's claim having been set aside by this Court, the respondent no.2 could not have passed the impugned order incorporating fresh reasons. Such argument is, however, not acceptable to this Court inasmuch as the respondent no. 2 passed the order dated 16th September, 2014 in strict consonance with the directions contained in the subsequent order dated 24th July, 2013 passed by the Court in W.P. No.20594 (W) of 2013 preferred subsequent to issuance of the order dated 30th May, 2012 by the respondent no.4.
Indisputably, the petitioner was the sole participant in the selection process. The Managing Committee of the said Kendra did not publish any second notice inviting applications from other eligible candidates, though such provision has been mandatorily incorporated in the Government Order dated 19th November, 2009.
The invitee member of the Managing Committee of the said Kendra was the elder sister of the petitioner. Admittedly, the elder sister of the petitioner did not dissociate herself from the selection process. The process adopted by the said Managing Committee towards engagement of the petitioner is suggestive of a total pick and choose policy, which castigates upon the independence and fairness of the members of the Managing Committee of the said Kendra.
The advertisement was published on 25th March, 2010 and on the date of such advertisement the Government Circulars dated 8th July, 1999, 12th December, 2001, 15th September, 2004 and 19th November, 2009 were operative and valid. By the Government Orders dated 27th October, 2006 and 24th November, 2008, as relied upon by Mr. Jahan, the prior Government Orders were neither relaxed nor cancelled and that the restrictions contained in the Government Orders dated 8th July, 1999 and 15th September, 2004 were very much operative.
The order dated 30th July, 2007 passed in W.P. No.15566 (W) of 2007, as relied upon by the petitioner, is an interim order and that the same was passed since the candidate therein was sought to be disqualified only on a ground that a member of the Panchayat was related to him. In the instant case, the ground of presence of a near 6 relation in the Managing Committee was not the sole ground towards cancellation of the petitioner's candidature. The judgment delivered in the case of Waktunnesa Bibi (Supra) is also distinguishable on facts.
For the reasons discussed above, this Court is reluctant to exercise any discretion in favour of the petitioner and accordingly, the writ petition is dismissed.
There shall be, however, no order as to costs.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties, upon compliance of all requisite formalities as expeditiously as possible.
(Tapabrata Chakraborty, J.)