Calcutta High Court (Appellete Side)
Samar Chandra Samanta vs The State Of West Bengal & Ors on 8 August, 2023
Author: Aniruddha Roy
Bench: Aniruddha Roy
Court No. 22 IN THE HIGH COURT AT CALCUTTA
08.8.2023 Constitutional Writ Jurisdiction
(Item No. 105)
Appellate Side
(AB)
W.P.A. 19266 of 2010
+
CAN 1 of 2011 (old No. CAN 5207 of 2011)
Samar Chandra Samanta
VS
The State of West Bengal & Ors.
Mr. Anil Kumar Chattopadhyay
Mr. Dinesh Pani
.... For the petitioner
Mr. Supriyo Chattopadhyay
Mr. Arindam Ghosh
.... For the State
The relevant selection process was held way
back in 1995 for the post for Assistant Teacher in
Social Science Group at Sundarban Janakalyan
Sangha Vidyaniketan, District - 24 Parganas
(South). The selection process was held pursuant to
the prior permission issued by the jurisdictional
District Inspect of Schools (for short, the D.I.) dated
June 21, 1995, Annexure P-2 at page 37 to the writ
petition. The mandatory criteria fixed for the post was
that the aspirant must have the qualification
M.A./M.Sc (Geography) and B.Ed was decided to be
given preference, as would be evident from the said
prior permission issued by the D.I. The petitioner was
admittedly qualified M.A. (Geography) but without
B.Ed at the relevant point of time when he
participated in the selection process. However, the
petitioner had the qualification B.P.Ed (Physical
Education) on such relevant date. The petitioner
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contended that, the said B.P.Ed was equivalent to
B.Ed and as such the said qualification of the
petitioner B.P.Ed should have been counted for and
the petitioner should be given preference in the light
of the said prior permission issued by the D.I. for the
selection process. However, the petitioner
subsequently has acquired the qualification B.Ed.
There was also a prior permission issued by
the D.I. on June 24, 1994 as pleaded in paragraph 4
in the writ petition. The petitioner travelled to this
Court through a previous writ petition, when a co-
ordinate Bench by its order dated September 26,
1997, Annexure P-4 at page 41 to the writ petition
allowed the claim of the petitioner and directed the
relevant authority to consider his qualification and to
grant appointment.
Being aggrieved by the said order of the co-
ordinate bench the School Authority carried out an
appeal being MAT No. 4253 of 1997 and the Hon'ble
Division Bench by its order dated March 5, 1998,
Annexure P-5 at page 45 to the writ petition allowed
the appeal and was pleased to set aside the order of
the co-ordinate bench as referred to above. The
relevant observation made by the Hon'ble Division
Bench is quoted below:
"The impugned order cannot be sustained
on more than one ground. It is not within the
province of the Court to direct the D.I. of Schools
(SE) to approve a particular panel or to appoint
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some persons. The District Inspector of Schools
(S.E.) is a statutory functionary under the
provision of the Recruitment Rules. There cannot
be any doubt that a statutory functionary if does
not perform his statutory function within a
reasonable time, a writ of Mandamus can be
issued directing him to perform such statutory
function within the time stipulated by this Court
but this Court while exercising its power cannot
usurp the statutory power of the statutory
functionary directing him to do something and
particularly to appoint the writ petitioner. The
said order is ex-facie bad in law. However it
appears that by letter dated 4th June, 1997 the
District Inspector of Schools (S.E.) has already
passed an order although the impugned order
was passed on 26.9.97. It appears that the said
order had been questioned by the petitioner.
The learned counsel appearing on behalf of
the respondent No. 6, Headmaster, however
submits that the District Inspector of Schools (S.E.) has passed an order directing the School authority to recast the panel.
If the School authority or the writ petitioner is aggrieved by any action taken by the District Inspector of Schools (SE), they may take recourse to law but keeping in the view the facts and circumstances of this case, the impugned order cannot be sustained and the same is set aside.
This appeal is allowed with the aforementioned observations."
The petitioner then travelled this Court once again in the second round of writ litigation being W.P. No. 9496(W) of 1998. A co-ordinate bench by its order dated June 25, 2001 directed the D.I. to 4 consider the case of the petitioner once again. The D.I. then passed its order dated August 13, 2002, Annexure P-7 at page 52 to the writ petition. Through the instant writ petition the petitioner sought to enforce and execute the said direction of the D.I. made in the said reasoned order dated August 13, 2002 for recasting of the panel. The relevant observation from the impugned order is quoted below:
"I find that the petitioner obtained B.P.Ed.
degree in the year 1991 from Amarabati University vide page 29 of the writ petition. He
obtained B.Ed. degree from the University of Calcutta in the year 1996 vide page 30 of the writ petition. On the date of interview i.e. on 28.8.1995 the petitioner did not have the B.Ed. degree. His B.P.Ed. or Bachelor of Physical Education degree is not equivalent to B.Ed. or B.T. or P.G.B.T. and for that matter the B.P.Ed.
degree cannot be treated as training qualification, this is clearly mentioned in item
(viii) and item (xii) of clause (c) of para 6 of the directions contained in the recruitment procedure notified by the Director of School Education, West Bengal in his Memo No. 2066-GA dated 27.10.95 B.P.Ed. degree is required only for appointment as a teacher in Physical Education as clarified also in Govt order in No. 523-Edn(S) dated 4.6.93.
In the circumstances the marks allotted to the petitioner for B.P.Ed. degree should be excluded and the panel should be recast by the School authorities and thereafter forwarded the same to the D.I. of Schools (SE) by 31.10.2002 for necessary approval."
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Mr. Anil Kumar Chattopadhyay, learned counsel appearing for the petitioner submitted that, the direction was made in 2002 to take into consideration the petitioner by excluding the B.P.Ed degree and then to recast the panel but till today no step was taken.
Mr. Supriyo Chattopadhyay, learned Additional Government Pleader appeared for respondent Nos. 1 to 3 referred to the said prior permission of D.I. dated June 21, 1995, Annexure P-2 at page 37 to the writ petition which is a later one and submitted that, the aspirant must have M.A./M.Sc. (Geography) and B.Ed was decided to be given preference. He submitted that, admittedly the petitioner did not posses with the qualification B.Ed at the relevant point of time when he participated in the selection process pursuant to the said prior permission issued by D.I. However, the petitioner had the qualification of M.A. in Geography and he participated in the selection process but could not come within the consideration zone and accordingly the merit list and the panel was finalized by the Managing Committee of the relevant school authority.
Learned Additional Government Pleader then submitted that, the order which sought to be enforced through this writ petition was passed by the respondent No. 2 on August 13, 2002 and the writ petition was filed in 2010, after around eight years. 6 The petitioner cannot seek equitable relief after such an inordinate delay.
Mr. Chattopadhyay then submitted that, since November 22, 1997 the West Bengal School Service Commission Act, 1997 (for short, the 1997 Act) came into force. The method and mode of selection process for the post for which the petitioner was an aspirant had undergone sea change with the promulgation of the said 1997 Act. The Managing Committee of the School Authority had no role to play for holding the selection process or for causing any appointment therein after promulgation of the said Act. The respective authorities mentioned in the 1997 Act are now empowered to conduct a selection process and for appointment of the selected candidates. The West Bengal Board of Secondary Education is the appointing authority and the West Bengal School Service Commission is the recommending authority. Since the panel was not approved despite direction made by the respondent No. 2 in its said order dated August 13, 2002 and in the meantime the 1997 Act came into force, the relevant panel prepared by the School Authority cannot be considered for recasting any further. The rule of the game has changed with the promulgation of 1997 Act.
Mr. Anil Kumar Chattopadhyay, leaned counsel appeared for the petitioner in reply submitted that, since 2002 the petitioner was pursuing his case 7 before the State Authorities for recasting of the panel and on repeated occasions the petitioner was assured by the State Authority that the panel would be recast but ultimately the panel was not recast. The petitioner filed the instant writ petition in 2010. Hence the delay, if any, caused was not attributable to the petitioner. He further submitted that, despite there being order passed by this Court from time to time and despite the direction of the respondent No. 2 in 2002 and despite the direction of the D.I. to recast and submit the panel on June 14, 1997, due to negligence on the part of the School Authority the panel was not recast and the petitioner lost his opportunity of employment.
After considering the rival contentions of the parties and upon perusal of the materials on record, this Court is convinced that, under the mandatory requirement for selection for the post where the petitioner was an aspirant in terms of the prior permission issued by the D.I., Annexure P-2 at page 37 to the writ petition, the petitioner admittedly did not posses the qualification B.Ed at the relevant point of time when he participated in the selection process but the petitioner possessed the qualification B.P.Ed which was not at all relevant or material for participating in the selection process in terms of rule of the game framed by the D.I. in his said prior permission. The petitioner, therefore, primarily did not 8 qualify the criteria of the selection process which was rule of the game to get a preference in the selection process. The petitioner participated in the selection process only on the basis of his qualification M.A.(Geography) which was relevant for consideration of the petitioner's candidature in the given facts and circumstance under which the petitioner participated in the selection process.
The previous order of the co-ordinate bench was set aside by the Hon'ble Division Bench by its order dated March 5, 1998 passed in MAT 4253 of 1997, Annexure P-5 at page 45 to the writ petition. In the light of the observation made by the Hon'ble Division Bench, as quoted above, the respondent No. 2 proceeded and passed the order dated August 13, 2002 directing to recast the panel by not taking into consideration the B.P.Ed degree of the petitioner. The School Authority sat idle on the matter since 2002 and the petitioner only in 2010 after a period of about eight years filed the instant writ petition for enforcement of the said direction dated August 13, 2002. Meanwhile, the 1997 Act came into force. The law relating to selection process had undergone a sea change as already discussed above. It is an admitted position that, the panel was not recast, until the panel was recast no right was created in favour of the petitioner. Since July 2009 the law of selection process has undergone a sea change with the 9 promulgation of 1997 Act, even if any, direction is made for recasting of the panel by giving effect to the said direction of the respondent No. 2 dated August 13, 2002 for considering the candidature of the petitioner today in 2023, the same would amount to be in violation of the statutory provisions under the said 1997 Act, which is not permissible in law.
In view of the foregoing reasons and discussions, this Court is of the firm view that, the writ petition filed in 2010 after the promulgation of the 1997 Act is devoid of any merit.
Accordingly, this writ petition being W.P.A. 19266 of 2010 along with application being CAN 1 of 2011 (old No. CAN 5207 of 2011 stand dismissed, without any order as to costs.
Urgent certified photo copy of this order, if applied for, be supplied to the parties expeditiously on compliance of usual legal formalities.
(Aniruddha Roy, J.)