Calcutta High Court (Appellete Side)
Waktunnesa Bibi vs The State Of West Bengal & Ors on 24 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
F.M.A. No. 19 of 2013
(CAN 3271 of 2012)
Waktunnesa Bibi
Versus
The State of West Bengal & Ors.
For Appellant : Mr. Arabinda Chatterjee,
Mr. M. R. Abedin.
Opposite Party : Mr. Goutam Mukherjee.
No. 2.
Opposite Party : Mr. Sarwar Jahan,
No. 8. Mr. Md. Ashraful Haque,
Mr. Debabrata Sen,
Mr. Sirajul Haque Mondal.
For the State : Mr. Sadhan Roy Chowdhury,
Mr. Manas Kumar Sahdu.
Heard On : 24th November, 2014.
Judgement On : 24th November, 2014.
Jyotirmay Bhattacharya, J. This mandamus appeal is directed against the judgment
and/or order passed by a learned Single Judge of this Court on 6th March, 2012
in W.P. No. 12110(W) of 2011 at the instance of the writ petitioner/appellant.
The order of discontinuation of the engagement of the writ petitioner as 4th
Sahayika in Nazrana Bairagi Asan Sishu Siksha Kendra passed by the Block
Development Officer, Rani Nagar - II, Murshidabad, was upheld by the learned
Single Judge of this Court and the writ petition was dismissed.
The legality of the said order of the learned Single Judge of this Court is
under challenge in this writ petition.
Let us now consider the merit of the appeal in the facts of the instant case.
Pursuant to an advertisement dated 16th July, 2009; issued by the Secretary of
the concerned Sishu Siksha Kendra, the writ petitioner applied for seeking her
engagement as Sishu Siksha Sahayika in the said Sishu Siksha Kendra. Two other
candidates also applied for seeking their engagement as Sahayika in the said
Sishu Siksha Kendra. The writ petitioner was ultimately selected for such
engagement as 4th Sahayika in the concerned Sishu Siksha Kendra and agreement
was also entered into for the period 2009-10. Her appointment was approved by
the concerned authority. She reported for joining and started working in the
said Sishu Siksha Kendra as 4th Sahayika. Her engagement as 4th Sahayika in the
said Sishu Siksha Kendra was approved by the concerned authority and honorarium
was also paid to her. Subsequently, on a complaint made by the private
respondent, the legality of the selection process and her engagement was
considered by the concerned Block Development Officer in terms of the order passed by the learned Single Judge of this Court in W.P.No. 24034(W) of 2009 and ultimately the concerned Block Development Officer declared that the engagement of the writ petitioner was vitiated as the procedure as laid down in the extant guide line was not followed. It was held by the concerned Block Development Officer that the notice inviting application was not widely circulated. It was, further, held that the mandatory provision regarding displaying of such advertisement in the office of the Gram Panchayet has not been followed in the instant case. It was, further, held that even prior approval for engaging a candidate below 40 years was not taken by the concerned Sishu Siksha Kendra from the Panchayet Samity. The said decision of the concerned Block Development Officer was approved by the learned Trial Judge in the impugned order.
Let us now consider as to how far the learned Trial Judge was justified in doing so in the facts of the instant case.
Here is the case where we find that by the notification issued by the Secretary of the concerned Sishu Siksha Kendra on 16th July, 2009 applications were invited from the eligible candidates who were above 40 years of age. It was also mentioned in the said notice that in case suitable candidates having requisite educational qualification within the said age group, i.e. 40 years and above, is not available then the candidates having requisite educational qualification, but below the said age group, will also be considered. As such, applications were invited from those candidates also.
Admittedly, pursuant to such advertisement no candidate within the concerned Gram Panchayet or within the Gram Samsad having requisite educational qualification within the age group of 40 years and above applied for the said post. Three candidates, including the writ petitioner, applied for the said post. All of them were residents of the local Gram Panchayet and all of them had requisite educational qualification. The writ petitioner who was aged about 29 years 6 months at the relevant time was the oldest amongst those three candidates having higher educational qualification, as she was a graduate. The other two candidates passed secondary examination. Accordingly, panel was prepared by the managing committee of the said school and the same was forwarded to the concerned Panchayet Samity for its approval. The Panchayet Samity approved the said panel and recommended for the engagement of the writ petitioner.
The State respondents complained that as per the extant rules, prior approval for giving relaxation to the age criteria should have been obtained by the managing committee of the said Sishu Siksha Kendra from the Panchayet Samity before preparation of the panel.
If we read the relevant government circular dated 8th November, 2004 then we find some substance in such contention of the State respondent. But here is the case where we find that selection process was neither disapproved, nor discontinued on the said ground. On the contrary, the Panchayet Samity subsequently approved the same. Thus, the said procedural lapse should be deemed to have been condoned.
As such, we hold that for this procedural lapse, the selection procedure cannot be set aside, particularly when, her engagement was subsequently approved by the concerned authority and honorarium was also released in her favour.
Let us now consider the other objection which was raised by the respondent, i.e. insufficient circulation of notice.
It is contended by the State respondent that as per the said government order dated 8th November, 2004; fifteen days' notice in advance should be displayed in the concerned Sishu Siksha Kendra premises and in the office of the concerned Gram Panchayet. Here is the case where we find that fifteen days' notice in advance, was displayed in the Sishu Siksha Kendra premises. But no such notice was displayed in the office of the concerned Gram Panchayet, even though the said government order provides for displaying fifteen days' notice in advance in both the places, i.e. in the Sishu Siksha Kendra premises as well as in the office of the Gram Panhayet. But the consequence for not displaying such notice in the office of the Gram Panchayet is not provided in the said notice.
As such, we agree with the finding of the other Division Bench of this Hon'ble Court in F.M.A. No. 1122 of 2012 wherein the Division Bench of this Hon'ble Court held that the provision regarding publication of such notice as provided in the said government order is not mandatory.
Be that as it may, we find that such notice was not only displayed in the Sishu Siksha Kendra premises, but also it was displayed in several other government premises, including the office of the Panchayet Samity, bank, post office etc. Thus, we find that substansive compliance regarding wide publication of the employment notice was made in the instant case.
Having regard to the fact that the writ petitioner was the oldest amongst the three applicants within the said age group and moreover, she had the better educational qualification than the other two applicants, we do not find any reason to maintain the order of discontinuation of her engagement as 4th Sahayika in the said Sishu Siksha Kendra, particularly in view of the fact that she is undisputedly a physically handicapped lady.
Accordingly, we set aside the impugned order passed by the learned Trial Judge, consequently, the order passed by the concerned authority which was impugned in the writ petition was also set aside.
The concerned authority is, thus directed to allow the said writ petitioner/appellant to resume her duties as 4th Sahayika in the said Sishu Siksha Kendra. The concerned authority is also directed to pay her honorarium regularly henceforth.
The appeal is, thus, disposed of.
(Jyotirmay Bhattacharya, J.) (Tapash Mookherjee, J.) ac.