Calcutta High Court (Appellete Side)
Susanta Patra vs The State Of West Bengal & Ors on 12 December, 2013
Author: Patherya
Bench: Patherya
1 32 12.12.2013
SD F. M. A. 1440 of 2011 Re : An appln. for Stay (ASTA271/11) Susanta Patra.
Vs. The State of West Bengal & Ors.
With F. M. A. 1441of 2011 Re :An appln. for Stay (ASTA289/11) M. C. Bholakwali Adibashi Shiskha Niketan & Anr.
Vs. The State of West Bengal & Ors.
Mr. Mohinoor Rahaman.
... For the Appellant.
(In FMA 1440 of 2011) Mr. Sarwar Jahan, Mr. Shahan Shah, ... For the Appellants (in FMA 1441 of 2011) Mr. Kazi Ahmed Hossain.
.... For Respdt. Nos. 7 & 8(in both the appeals) The order under appeal is dated 4th March, 2011. By the said order the Trial Court dismissed the appellant's writ petition on the ground that he is not the aggrieved party and the party who was aggrieved has filed no writ petition and, therefore, the appellant was espousing the cause of the empanelled candidate at Serial No. 1 being Susanta Patra.
It has been contended by the counsel for the appellant that it may be true that its legal rights are not affected but the directives given to it are contrary to the recruitment rules of 1995 whereunder it was to undertake the process of selection.
On a complaint filed by Dilip Das (Dilip) the District Inspector of Schools passed an order on 25th August, 2006 whereby the appellant was directed to recast the panel by including Dilip's name as he was senior to the empanelled candidate at Serial No. 1 Susanta Patra (Susanta). Such a situation would arise only if both Susanta and Dilip 2 as per Rule 6 (k) of the 1995 Rules got equal marks. But this is not the basis of the order dated 25th August, 2006. In fact the order dated 25th August, 2006 proceeds on the basis that Dilip was on deputation for a year in the said institution and this is another reason for him being empanelled. At the time when Dilip participated in the selection process, he satisfied the age criteria but while disposing of his representation on 25th August, 2006 he was beyond the maximum age and the overage of Dilip is a factor for empanelment. Therefore, the deputation of Dilip and his over age formed the basis of the directive issued to recast the panel. These conditions do not find mention in the recruitment rules of 1995 and, therefore, if the order dated 25th August, 2006 was to be implemented, the same would be contrary to the statutory rules which the Selection Committee and the Managing Committee are required to follow. This aspect was not considered by the Trial Court and it is only on the basis of non-existence of legal right that the writ petition was dismissed. Therefore, the order dated 4th March, 2011 be set aside.
In opposing the said appeal it has been contended on behalf of Dilip that when his complaint was not considered, W. P. No. 9816 (W) of 2006 was filed and an order passed directing the District Inspector of Schools to consider his complaint. It is on consideration of such complaint that the order dated 25th August, 2006 has been passed and to implement the said order, the order dated 20th October, 2006 was passed. There is no dispute that the expert appointed in the Selection Committee is the relative of Susanta and this will appear from the certificate issued by Khulna Gram Panchayat on 30th December, 2007. This, therefore, vitiates the entire selection process and, therefore, the directions given by the District Inspector of Schools be upheld and no interference is called for with the order dated 4th March, 2011 Counsel for Susanta Patra has submitted that the illegality committed by the District Inspector of School was brought to the notice of the Court and without considering the same, Dilip's appointment has been upheld.
Having considered the submissions of the parties the only 3 ground for dismissing the appellant's writ petition is non-existence of legal right as according to the Trial Court, the appellant cannot be the aggrieved party as its rights have not been infringed. But what the Trial Court did not consider is that the appellant is a body which must act in accordance with law and when a directive is given by no less a person than the District Inspector of Schools to do an act, which is contrary to the Statute, then the right of the appellant-managing Committee is affected and it is this right then which stands infringed and the appellant, therefore, becomes an aggrieved party because it cannot be made to act contrary to the recruitment rules and statute. Therefore, the writ petition was maintainable and the order dated 4th March, 2011 in view of the aforesaid cannot be sustained in the eye of law and is set aside. The appeal succeeds, is allowed and disposed of.
Directions are, however, given to file affidavits to the writ petition as all parties are appearing in the appeal and it is only to expedite the matter.
Let affidavit-in-opposition to the writ petition be filed within one week after the X'mas Vacation. Reply, if any, one week thereafter.
Let the matter appear before the Trial Court three weeks after the X'mas vacation depending on the convenience of the Trial Court.
In view of the order passed in F. M. A. 1441 of 2011, no order is passed on F. M. A. 1440 of 2011 and the same is accordingly dismissed.
(PATHERYA, J.) (TAPASH MOOKHERJEE, J.) 4