Calcutta High Court (Appellete Side)
Sanjit Kumar Sheet vs The State Of West Bengal & Ors on 7 May, 2008
Author: Pranab Kumar Chattopadhyay
Bench: Pranab Kumar Chattopadhyay
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Pranab Kumar Chattopadhyay
And
The Hon'ble Justice Tapan Mukherjee
F.M.A. 183 of 2006
Sanjit Kumar Sheet
Versus
The State of West Bengal & Ors.
W I T H
M.A.T. 3064 of 2005
Sanjit Kumar Sheet
Versus
The State of West Bengal & Ors.
For the Appellant: Mr. Kalyan Bandopadhyay
Mr. Soumen Kr. Dutta
Mr. Narayan Chandra Ganguly
For the School : Mr. Milan Ch. Bhattacharyya
Ms. Sulagna Bhattacharyya
For the State : Mr. P. K. Basu
Ms. Indrani Pal
For the Added Respondent : Mr. Amal Baran Chatterjee
Mr. Bhaskar Ch. Manna
Heard On: 16.04.2008 & 29.04.2008.
Judgment On: 07.05.2008.
PRANAB KUMAR CHATTOPADHYAY, J.
Both the appeals have been preferred at the instance of the same appellant. These appeals were heard analogously since the facts involved in the said appeals are almost identical and the issues raised therein are more or less similar.
The appellant herein initially filed a writ application before this court for granting an opportunity to the said appellant to appear at the interview in the post of Group 'D' staff in the Majilapur Birendra Vidyapith at Purba Midnapore, as the name of the said appellant was not sponsored by the concerned Employment Exchange.
The learned Single Judge of this Hon'ble Court upon hearing the submissions of the respective parties passed an interim order directing the Secretary and the Headmaster of the said school to consider the candidature of the appellant herein for the said post of Group 'D' staff along with other candidates sponsored by the Employment Exchange. The relevant portion of the said order dated 18th August, 2004 passed by the learned Single Judge in favour of the appellant herein is set out hereunder:
" There will be an interim order directing the Respondent Nos. 5 and 6 to consider the candidature of the petitioner for the said post along with other candidates sponsored by the Employment Exchange. If the petitioner is otherwise eligible, it will be open to the respondent Nos. 5 and 6 to call him for an interview."
Pursuant to the said interim order, the appellant herein was allowed to appear at the interview and ultimately, the said appellant secured first position in the panel prepared by the Selection Committee. The said panel was thereafter submitted to the District Inspector of Schools (SE), Purba Midnapore. The District Inspector of Schools, however, refused to grant approval to the said panel on the ground that the initial appointment of the appellant herein in the said school as a Group 'D' staff was illegal since such appointment was made without following the regular recruitment rules. It was also pointed out by the District Inspector of Schools that the appellant/writ petitioner was not sponsored by the Employment Exchange although he was allowed to participate at the interview pursuant to the interim order passed by this Court on the basis of the claim of the said appellant that he has been serving in the concerned school for a long time.
The learned Counsel representing the appellant/writ petitioner herein before the learned Single Judge specifically referred to the Full Bench decision of this Hon'ble court and submitted that the selection of the appellant herein could not be rejected only on the ground that the said appellant was not sponsored by the Employment Exchange. The learned Single Judge specifically agreed with the aforesaid contentions made on behalf of the writ petitioner namely, the appellant herein, but observed that the school authorities illegally appointed the appellant/writ petitioner initially and thereafter, when the regular recruitment process started placed the said appellant/writ petitioner at the top of the list by virtue of an interview held by the school authorities. The learned Single Judge thereafter, held that the District Inspector of Schools is the ultimate authority to approve the panel and since the said District Inspector of Schools has passed a reasoned order refusing to approve the panel, there was no special equity for which the appellant/writ petitioner could be given priority over the sponsored candidates. In the aforesaid circumstance, the learned Single Judge refused to interfere with the order passed by the District Inspector of Schools and dismissed the writ petition filed initially by the appellant herein being W.P. No. 12863 (W) of 2004.
The appellant herein filed another writ petition subsequently bearing W.P. No. 3291 (W) of 2005 for quashing the order passed by the District Inspector of Schools (SE), Purba Midnapore dated 31st January, 2005 which was also dismissed by the said learned Single Judge in view of the aforesaid dismissal of the earlier writ petition on the basis of the aforesaid findings. Assailing the aforesaid decisions of the learned Single Judge, these appeals have been preferred before this Court. It is true that the appellant herein filed the first writ petition not only for granting an opportunity to appear at the interview for the post of Group 'D' staff but also claimed regularisation of his service in the said Group 'D' post. The learned Single Judge never decided the claim of regularisation of service made on behalf of the appellant herein and only granted the prayer of the said appellant/writ petitioner to appear at the interview by issuing an interim order along with other Employment Exchange sponsored candidates. The appellant/writ petitioner herein also virtually gave up his claim for regularisation of his service pursuant to his past services in the said school upon participating in the regular recruitment process for filling up the concerned Group 'D' post by appearing at the interview before the Selection Committee on the basis of the interim order passed by the learned Single Judge. When the appellant/writ petitioner herein participated in the regular recruitment process and appeared at the interview before the duly constituted Selection Committee, there was no scope to consider the legality and/or validity of the initial appointment of the appellant in the school concerned.
Mr. Milan Ch. Bhattacharyya, learned Counsel representing the school authority submits that the appellant/writ petitioner committed fraud by making wrong and misleading statement to the effect that the school authorities appointed the said appellant/writ petitioner before the regular Selection Committee and the appellant/writ petitioner served the school continuously for a considerable period although according to Mr. Bhattacharyya, the said appellant/writ petitioner was never appointed in the said school. We are, however, not concerned about the legality and/or validity of the earlier appointment of the appellant/writ petitioner in the school concerned as we have already observed hereinbefore that in the regular recruitment process, past service of the appellant/writ petitioner was not at all a point for consideration by the Selection Committee. In any event, from the records we find that the Secretary of the school affirmed a specific affidavit in connection with the writ petition bearing W.P. No. 3291 (W) of 2005 wherein it has been admitted that the appellant/writ petitioner was employed in the said school.
Mr. Pabitra Basu, learned Counsel representing the State- respondents namely, the respondent Nos. 1 to 3 submits that the writ petitioner herein has no legal right to claim approval of the panel in question wherein the name of the said writ petitioner was placed at Serial No. 1 on the ground that it has not been established beyond all reasonable doubt that the said writ petitioner had been working as unapproved staff in the Group 'D' post of the said school previously for a continuous period of seven years as specifically claimed by the writ petitioner in the earlier writ petition bearing W.P. 12863 (W) of 2004. Mr. Basu also urged before this court that the writ petitioner was appointed previously in the concerned school as unapproved Group 'D staff in violation of the recruitment rules and, therefore, the District Inspector of Schools could not accept the panel in question wherein the writ petitioner was placed at the first position. Mr. Basu further submits that the selection of the writ petitioner is also bad as the said selection should have been confined only amongst the candidates sponsored by the Employment Exchange.
Mr. Amal Baran Chatterjee, learned Counsel representing the added respondent also raised the similar points to support the decision of the District Inspector of Schools concerned regarding disapproval of the panel prepared by the Selection Committee wherein the writ petitioner was placed at the first position.
We fail to understand how the previous appointment of the writ petitioner and/or the service rendered by the said writ petitioner on the earlier occasion against the unapproved Group 'D' post can be a relevant consideration at the time of filling up the vacant post following the regular recruitment process. Furthermore, as discussed hereinabove, selection process cannot be confined only amongst the Employment Exchange sponsored candidates in view of the law already settled by the Hon'ble Supreme Court as well as the Division Bench of this Hon'ble Court.
The learned Single Judge specifically held that there was no special equity for which the appellant/writ petitioner could be given priority over the sponsored candidates but we fail to understand how the said appellant/writ petitioner was given any priority over the sponsored candidates at the time of regular selection for filling up the vacant Group 'D' post in the school concerned. The learned Single Judge by the interim order dated 18th August, 2004 directed the school authorities to consider the candidature of the appellant/writ petitioner along with other Employment Exchange sponsored candidates and in the event, the appellant/writ petitioner was found eligible then only liberty was granted to the said school authorities to call the said appellant/writ petitioner for the interview. Pursuant to the said interim order, the appellant/writ petitioner herein was called before the Selection Committee for interview along with other Employment Exchange sponsored candidates as the appellant was found otherwise eligible by the said school authorities.
Before the Selection Committee, candidature of the appellant/writ petitioner was undisputedly, considered along with other Employment Exchange sponsored candidates. Therefore, neither any special equity nor even priority was given to the appellant/writ petitioner over the Employment Exchange sponsored candidates as has been erroneously held by the learned Single Judge.
It is true that the District Inspector of Schools is the ultimate authority to approve the panel but such approval cannot be denied illegally and/or in absence of any valid reason. It is not in dispute that the appellant/writ petitioner is otherwise not eligible for the said Group 'D' post. Even assuming that the appellant/writ petitioner was not appointed initially on temporary basis by the school authority but such appointment, in our opinion, had no role to play at the time of regular recruitment following the recruitment rules. Although it was argued on behalf of the State respondents that the case of the appellant/writ petitioner could not be considered by the Selection Committee as the name of the said appellant was not sponsored by the concerned Employment Exchange.
The learned Single Judge, however, did not dispute that the selection of the appellant/writ petitioner could not be rejected only on the ground that he was not sponsored by the Employment Exchange and the decision of the District Inspector of Schools to that effect was, therefore, not approved by the learned Single Judge although the learned Single Judge rejected the claim of the appellant/writ petitioner for appointment on different grounds as discussed hereinabove. The State respondents or the school authorities did not prefer any appeal challenging the aforesaid decision of the learned Single Judge.
In any event, it is well settled that selection to a post cannot be restricted only amongst the Employment Exchange sponsored candidates. Following the decisions of the Hon'ble Supreme Court, a Division Bench of this Hon'ble Court in the case of Manick Chandra Das vs. State of West Bengal & Ors. reported in 2007 (2) CHN 761 specifically held as hereunder:
"21. Following the decisions of the Supreme Court as mentioned hereinabove and in view of the law laid down by the Supreme Court in the case of K. B. N. Visweshwara Rao (supra), we also hold that the appropriate authority of the department or undertaking or establishment shall consider the cases of all the candidates who have applied for filling up any vacant post or posts along with the Employment Exchange sponsored candidates strictly in accordance with law in order to ensure equal opportunity in the matter of employment to all the eligible candidates and any executive order or circular issued by any authority in this regard has to be read and/or followed subject to the aforesaid law laid down by the Hon'ble Supreme Court."
In view of the settled legal position pursuant to the decisions of the Apex court as mentioned in the aforesaid Division Bench judgment of this Hon'ble court, it is no longer open to the respondents to argue that the candidature of the appellant herein could be rejected only on the ground that he was not sponsored by the Employment Exchange. Since the duly constituted Selection committee upon following the prescribed procedure considered the candidature of the appellant/writ petitioner along with other Employment Exchange sponsored candidates and ultimately, placed the said appellant/writ petitioner at the top of the panel prepared for the said Group 'D' post, the District Inspector of Schools (SE), Purba Midnapore had no authority to refuse the approval of the said panel on the ground that the initial appointment of the appellant/writ petitioner in the said school was illegal and the said appellant/writ petitioner was not sponsored by the Employment Exchange.
For the aforementioned reasons, the order passed by the District Inspector of Schools (SE), Purba Midnapore dated 31st January, 2005 refusing to grant approval to the panel prepared by the duly constituted Selection Committee cannot be sustained in the eye of law and the same is, therefore, quashed.
Elaborate submissions have been made almost in an identical manner by the learned Counsels representing the State-respondents, the respondent-School authorities and also the added respondent but the same are not required to be discussed and/or dealt with in further details in view of the discussions made in the preceding paragraphs.
It is not in dispute that subsequently the District Inspector of Schools approved the appointment of the respondent-Pulin Behari Mondal as Group 'D' staff in the school during the pendency of the present appeal. The fate of the said appointment of Pulin Behari Mondal, the added respondent herein and subsequent approval thereof by the District Inspector of Schools concerned is, therefore, dependent on the fate of the present appeal.
Since we have already quashed the order dated 31st January, 2005 passed by the District Inspector of Schools (SE), Purba Midnapore whereby and whereunder the said District Inspector of Schools refused to grant approval to the panel prepared by the Selection committee wherein the appellant/writ petitioner was placed at the top, the subsequent steps taken by the District Inspector of Schools (SE), Purba Midnapore and/or his subordinate officer namely, the Additional District Inspector of Schools, Contai Sub-division, by approving the appointment of the respondent-Pulin Behari Mondal cannot be sustained and such appointment as well as the approval as communicated by the Additional District Inspector of Schools, Contai Sub-division, under Memo dated 22nd August, 2007 are liable to be quashed and the same are, therefore, quashed.
The District Inspector of Schools (SE), Purba Midnapore is directed to approve the panel as prepared by the Selection Committee wherein the name of the appellant/writ petitioner was placed at the top, within two weeks from date positively since the reasons for rejection of the said panel by the District Inspector of Schools could not sustain the legal challenge and is rejected by this court. After according formal approval to the panel, the said District Inspector of Schools will communicate the same to the school authorities immediately and the school authorities are also directed to appoint the appellant/writ petitioner in the said Group 'D' post within a week from the date of receiving the necessary order of approval from the District Inspector of Schools concerned.
Needless to mention, the appellant/writ petitioner after joining the school will be entitled to regular salary and allowances as are admissible to the said post. Furthermore, after appointment and joining of the appellant/writ petitioner to the said Group 'D' post, the school authorities are directed to take necessary steps for approval of the appointment of the said appellant/writ petitioner by the District Inspector of Schools (SE), Purba Midnapore and the District Inspector of Schools concerned is also directed to accord necessary approval to the appointment immediately after receiving the necessary papers from the school authorities. The respondent authorities are further directed not to allow the respondent-Pulin Behari Mondal to discharge any duty in the said Group 'D' post since we have already quashed all the decisions of the District Inspector of Schools (SE), Purba Midnapore and the Additional District Inspector of Schools (SE), Contai Sub-division regarding filling up the Group 'D' post in the said school and issued fresh direction for filling up the said Group 'D' post.
With the aforesaid directions, both the appeals stand allowed and the judgment and orders under appeal passed by the learned Single Judge are set aside.
In the facts and circumstances of the present case, there will be no order as to costs.
Urgent Xerox certified copy of this judgment, if applied for, be given to the learned Advocates of the parties on the usual undertaking.
[PRANAB KUMAR CHATTOPADHYAY, J.] TAPAN MUKHERJEE, J.
I agree.
[TAPAN MUKHERJEE, J.]