Calcutta High Court (Appellete Side)
Rebati Raman Koley vs State Of West Bengal & Ors on 15 June, 2012
Author: Harish Tandon
Bench: Harish Tandon
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate side
Present :
The Hon'ble Justice Harish Tandon.
W. P. No. 19450 (w) of 2010
Rebati Raman Koley
-vs-
State of West Bengal & Ors.
For the petitioner : Mr. Susanta Kumar Mukherjee
: Ms. Sonali Bhar
For the Respondent No. 9 : Mr. Saibalendu bhowmik
:Ms. Anandamoyee Ghosh
For the State : Mr. Rezaul Hossain
Heard on : 11.08.11, 07.09.11, 29.9.11, 31.01.12, 20.03.12 & 17.04.12
Judgment on : 15.06.2012
HARISH TANDON, J.:
The writ petition is filed at the instance of the Managing Committee of Srirampur Madhubati Bijan Behari Balika Vidyalaya through the secretary for an order commanding the respondent authorities to forebear from giving effect and/or further effect to the impugned decision dated 21.06.2010 passed by the respondent No.3, the District Inspector of School (SE), Hooghly, whereby and whereunder the panel sent for approval for appointment to the post of Group D Staff (peon) was rejected.
The brief facts are that the petitioner received the prior permission from the authority and approached the Employment Exchange for sending the name of the eligible candidates for the post of Group-D Staff (peon) in the said school. The Employment Exchange, in turn, sponsored the name of the eligible candidates who were duly notified for the interview.
However, some of the candidates whose names were not sponsored by the Employment Exchange, approached the High Court where the direction was made to undertake the selection process by giving open advertisement inviting application from all eligible candidates.
In due compliance of the said order, the advertisement was made and 99 candidates offered their candidature for the said post. The selection committee which comprises of the Secretary of the Managing Committee, Teacher-in-Charge of the said school, Headmaster of other High school, External Expert and a Panchyat nominee, conducted the interview on 04.01.2009 and awarded the marks on individual basis and submitted a panel showing the name of the candidates who secured first, second and third position.
The Managing Committee subsequently approved the panel and vide letter dated 24.02.2009 forwarded the same to the Additional District Inspector of School (SE), Chandannagar Sub-Division, Hooghly for necessary approval.
It is relevant to note that the said panel was received in the office of the said authority on 3rd March, 2009 which would be evident from the seal and signature put on the copy of the said letter which is annexed to this writ petition being Annexure P-2.
Before the decision relating to approval could be taken by the said authority, the third empanelled candidate being the added respondent No.9 filed a representation before the said authority alleging the illegality and arbitrary action on the part of the selection committee in preparation of the panel. The said representation was not attended by the said authority which prompted the said respondent to file a writ petition being W.P. No. 9124 (w) of 2009 before this court. By an order dated 07.12.2009, the District Inspector of School (SE) was directed to take a decision relating to the approval of the said panel. However, it was further observed that while taking the said decision, the said authority shall also consider the allegation made by the said respondent in her representation and if necessary shall also examine the original selection records.
By the impugned decision, the panel is disapproved on a solitary ground that there was no observance of Rule 9 Sub-rule 7 (a) mentioned in government order No. 1594-SE (s) dated 26.12.2005.
The learned Advocate appearing for the petitioner contends that although Rule 9 Sub-Rule 7 (c) of the said government order postulates that the Managing Committee shall send the panel within one month from the date of the interview but the same is not mandatory and placed reliance upon a judgment of the Apex Court in case of Nasiruddin & ors vs. Sita Ram Agarwal reported in AIR 2003 SC 1543. The petitioner further submits that because of the non-quorum in the meeting of the Managing Committee, the approval to the panel could not be granted. However, the subsequent meeting held on 07.02.2009 could not be conducted because of the retirement of the teacher-in-charge and for school sports and saraswati puja. The aforesaid fact should have been considered by the said authority before rejecting the panel on the ground of belated submission of the panel. He strenuously submits that the added respondent has no locus standi to challenge the selection process after participating therein and placed reliance upon a judgment of the Supreme Court in case of Manish Kumar Shahi vs. State of Bihar & ors. reported in (2010) 12 SCC 576, in case of Dhananjay Malik & Ors. vs. State of Uttaranchal & Ors. reported in (2008) 4 SCC 171, in case of Utpal Roy & Ors. vs. State of West Bengal & Ors. reported in 2009 (1) CHN 770 and a reported division bench judgment (MAT 655 of 2010 dated 10.02.2011).
Lastly it is submitted that the District Inspector of School did not consider the matter on merit and have rejected the panel on a technicalities in gross violation of the order passed by this court in the writ petition filed by the added respondent.
Per contra, the added respondent submits that she being the effected person has right to challenge the selection process in pointing out the illegalities committed by the selection committee and placed reliance upon a judgment of the Supreme Court in case of Raj Kumar & Ors. vs. Shakti Raj & Ors. reported in (1997) 9 SCC 527. It is further submitted that if the rule does not permit the relaxation of the period, the court cannot direct for such relaxation and placed reliance upon a judgment of the Supreme Court in case of Santosh Kumar Verma & Ors. vs. State of Bihar & ors. reported in (1997) 2 SCC 713, in case of Tirumala Tirupati Devasthanams vs. K. Jotheeswara Pillai & Ors. reported in AIR 2007 SC 1771 and a division bench judgment of this court in case of Mackintosh Burn Ltd. vs. State of West Bengal & Ors. reported in 2007 (2) CHN
115. It is audaciously submitted that the court should not grant a relief if not prayed for or in absence of any pleading to that effect and placed reliance upon a judgment of the Apex Court in case of State of Jammu & Kashmir & anr. vs. Ajay Dogra reported in 2011 AIR SCW 2605. It is submitted that the panel has been rejected as the same does not confirm the provision contained under Rule 9 Sub-Rule 7 (a) of the statutory rules. Lastly it is submitted that the writ petition is not maintainable in absence of any empowerment upon the secretary.
Having considered the respective submissions, there is no quarrel to the proposition that there must exist the nexus between the pleading and the prayer made in the writ petition. The substantive relief claimed in this writ petition is that the authorities could not be permitted to give further effect or take further steps on the basis of the impugned decision dated 21.06.2010. The fact pleaded in the writ petition relates to validity and the legality of the said decision. Although the prayer is not couched in the manner as submitted by the added respondents but in effect, the petitioner intends to arrest the impugned order from being implemented, meaning thereby, that the said order cannot operate in the field. Furthermore, there is already a sufficient pleading made in the writ petition to thwart the impugned order dated 21.06.2010. Although there is a sufficient pleading but the relief is not couched in clear terms. There is a sufficient indication in the pleading disclosing the manifest intention relating to unsustainability of the impugned order. Thus in such factual backdrop, the writ petition cannot be thrown on such technicalities.
The added respondent being an unsuccessful candidate have raised a question of locus standi of the petitioner to maintain the present proceeding. According to her, there is no empowerment upon the present secretary to maintain and/or proceed with the instant writ petition. The supplementary affidavit filed with the leave of this court discloses the resolution of the Managing Committee of the said School empowering the present secretary to proceed with the instant writ petition. Subsequently an application was taken out being CAN 179 of 2012 praying for substitution on the ground of devolution of office and which was allowed on 28th March, 2012. It is not the objection raised by the added respondent that the secretary of the Managing Committee cannot maintain the writ petition; what was objected is that the present secretary being not validly empowered by the Managing Committee cannot continue with the writ petition. As indicated earlier, the resolution of the Managing Committee is placed before this court through supplementary affidavit indicating that the present secretary has been authorized and empowered to proceed with the writ petition. Furthermore, none of the member of the Managing Committee nor the School Authority has come forward challenging the validity and genuinity of the said resolution and as such, the court cannot say that the present secretary cannot proceed with the writ petition.
Coming to the merit, admittedly after the prior permission, the selection committee undertook the selection process permitting the aspirants to offer their candidature for the said post of peon. It is also undisputed that the interview was held on 04.01.2009 and all the aspirants were examined by the selection committee. The added respondent filed representation before the District Inspector of Schools contending that she was never asked to read and write in English. The writ petition filed by the added respondent was disposed of by directing the District Inspector of School, to take a decision relating to the approval and in course of decision making process, shall also consider the allegations made in the writ petition filed by the added respondent. The impugned decision is the outcome of the said order.
The petitioner has annexed the sheet of papers evidencing the writing of the candidates in Bengali and English language including that of the added respondents. It reveals, therefrom, that the added respondent has written a sentence in Bengali whereas there is a remark of the selection committee that she could not speak and write in English. The impugned decision does not reflect any consideration on this aspect.
The specific allegation of the added respondent is that she was not asked to read, write and speak in English. The affidavit-in-opposition does not show that any challenge is made to the said document relating to its genuinity and authenticity. The paragraph dealing with those answer scripts in the writ petition has been dealt with as a matter of record in the opposition. Therefore, the court cannot disbelieve the said document and does not find any semblance of the truth in the allegation of the added respondent that she was not asked to read, write and speak in English.
Much argument has been advanced that after participating in the selection process, the candidate cannot challenge the same. In case of Dhananjay Malik & Ors.(supra), it is held that if the candidate participated in the process of selection being aware of the qualification prescribed in the advertisement, after being unsuccessful, they are estopped from challenging the selection criteria being contrary to the rules in these words:
" 9. In the present case, as already pointed out, the respondent-writ petitioners herein participated in the selection process without any demur; they are estopped from complaining that the selection process was not in accordance with the Rules. If they think that the advertisement and selection process were not in accordance with the Rules they could have challenged the advertisement and selection process without participating in the selection process. This has not been done."
The apex court in case of Manish Kumar Shahi (supra) approved and applied the aforesaid principle in the following words:
" 16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This Conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition. Reference in this connection may be made to the judgments in Madan Lal v. State of J & K, Marripati Nagaraja v. Govt. of A.P., Dhananjay Malik v. State of Uttaranchal, Amlan Jyoti Borooah v. State of Assam and K.A. Nagamani v. Indian Airlines."
In the above report, the Apex Court took note of the previous judgment rendered in case of Raj Kumar and Ors. (supra) wherein it is held that if there is a glaring illegalities in the procedure, the principle of estopple by conduct or acquiescence has no application. In the said case (Raj Kumar & Ors), the selection was to be conducted under the Punjab Public Works Department (Irrigation Branch) Patwaris State Service, Class- III Rules, 1955. But the government adopted his own procedure through an executive instructions which was found to be illegal as it denies an equal opportunities to many candidates waiting in the register of the Employment Exchange. The Apex Court found that the procedure offends Article 14 & 16 of the Constitution which cannot be taken away on the ground that they are stopped from challenging after participation therein.
In the present case, the added respondent has not contended at any point of time that the selection process offends the equality doctrine and thus cannot withstand on legal footings.
Therefore, the candidate after participating in the selection process cannot challenge the same which can be further fortified from the above noted judgment viz. State of West Bengal & Anr. vs. Rita Kar & Ors. reported in 2008 (1) CLJ (Cal) 507, Monirul Islam Mondal vs. State of West Bengal & Ors. reported in (2009) 4 CAT LT 654, Utpal Roy & Ors. vs. State of West Bengal & Ors. reported in 2009 (1) CHN 770 and unreported judgment in case of Avijit Ruidas vs. The State of West Bengal & Ors. ( MAT 655 of 2010).
The last point which is vital and apt in the present case is whether the rejection of the panel on the ground that it does not confirm the provision contained under Rule 9 Sub-rule 7(a) of the West Bengal Schools (Recruitment of Non-Teaching Staff) Rules 2005 is proper.
In exercise of the power conferred under Sub-Section 1 of Section 22 and Sub-Section 2 of Section 5 of the West Bengal School (Control of Expenditure) Act 2005, the Government framed West Bengal Schools (Recruitment of Non-Teaching Staff) Rules 2005 which regulates the appointment of the Non-Teaching Staff in the Secondary Schools within the State of West Bengal. Rule 9 of the said rules contains the procedure and the method of selection of the Non-Teaching Staffs. Sub-rule 7 of Rule 9 prescribes the period within which the different authorities are required to take steps. Although the use of expression "shall or may" is not decisive as to whether the provision is directory or mandatory, the intention of the legislature should be found out from the scheme of the Act. If the language employed in the statute is plain and unambiguous, the legislative intends could be gathered therefrom. It has been held by the Supreme Court in case of Nasiruddin (Supra) that if an Act is required to be performed by a private person within the prescribed period, same would ordinarily be mandatory but in case of Public Functionary, it would be directory unless the consequences are provided therein, in these words:
"39. Yet there is another aspect of the matter which cannot be lost sight of. It is a well-settled principle that if an act is required to be performed by a private person within a specified time, the same would ordinarily be mandatory but when a public functionary is required to perform a public function within a time-frame, the same will be held to be directory unless the consequences therefor are specified. In Sutherland, Statutory Construction, 3rd Edition.Vol.3 at P. 107 it is pointed out that a statutory direction to private individuals should generally be considered as mandatory and that the rule is just the opposite to that which obtains with respect to public officers."
The selection committee is the creature of the said statutory rules and consist of the Headmaster and the Secretary of the School Authority in case of a selection of a Clerk or Group-D Staff. There is no consequences provided in the said rule if the time-frame is not strictly observed with. The legislative intend behind the time-frame is obviously for speedy appointments of the Staff as unnecessary delay would result in proper functioning of the school. The object behind such time-frame cannot be said to be penal in nature so that non-compliance thereof would vitiate the entire process. Even it is imperative on D.I. Schools to convey his decision within one month from the date of the receipt of panel, the delay in taking a decision cannot render the entire selection process liable to be cancelled.
Therefore, in my opinion, the provision contained under Rule 9 (7) is not mandatory but directory in nature. Furthermore, the panel was received by the D.I. School on 16th March, 2009 whereas D.I. has taken the impugned decision on 21.06.2010 much beyond the stipulated period.
Thus the order impugned is quashed and set aside.
The D.I. School is directed to take a decision on merit relating to the approval of the panel in the light of the observations made herein above within one month from the date of the communication of this order and shall communicate the same to the appointing authority within two weeks therefrom.
The writ petition is thus allowed.
However, there shall be no order as to costs.
Urgent photostat certified copy of this judgment, if applied for, be given to the parties on priority basis.
(Harish Tandon, J.)