Calcutta High Court (Appellete Side)
For The vs State Of on 24 March, 2014
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
1
24.03.2014. MAT 1950 of 2012
dc. with
CAN 11571 of 2012
with
MAT 1951 of 2012
with
CAN 11579 of 2012
with
MAT 1952 of 2012
with
CAN 11573 of 2012
with
MAT 1337 of 2012
with
CAN 8975 of 2012
with
MAT 1338 of 2012
with
CAN 8976 of 2012
with
MAT 1339 of 2012
with
CAN 8977 of 2012
Mr. D.K. Shome,
Mr. Asim Halder,
Mr. Lakshminath Bhattacharyya
... For the Appellants in MAT 1950/2012,
MAT 1951/2012 & MAT 1952/2012.
Mr. Sadhan Roy Chowdhury,
Mr. Manas Kumar Sadhu
... For the State in MAT 1950/2012,
MAT 1951/2012 & MAT 1952/2012.
Mr. Ekramul Bari,
Mr. Syed Mansur Ali,
Mr. Santanu Chatterjee
... For the Appellant in MAT 1337/2012,
MAT 1338/2012 & MAT 1339/2012.
Mr. Supratim Dhar
... For the State in MAT 1337/2012,
MAT 1338/2012 & MAT 1339/2012.
There are altogether six mandamus appeals before us.
Three sets of the mandamus appeals were filed by the writ
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petitioners of three sets of writ petitions. The other three
mandamus appeals were filed by the District Primary School
Council, South 24-Parganas.
All these six appeals were directed against a common
order passed by the Learned Single Judge of this Court,
disposing of all the three writ petitions filed by three different
sets of writ petitioners.
Since the point of challenge in all those writ petitions
was identical and since all those writ petitions were disposed
of by a common order dated 17th July, 2012, we feel that it will
be beneficial for the parties if all these six appeals are taken up
together. That apart, if all these six appeals are taken up
together and are decided by a common order, possibility of
conflict of decision may also be avoided. As such all these six
appeals are taken up together.
For proper appreciation of the merit of all these six
appeals, the grievances of the petitioners which were
highlighted in their writ petitions are mentioned herein.
One of such writ petitions was filed by Manisankar
Bhandari & Ors. The said writ petition was registered as
W.P.No. 2574(W) of 2010. The other writ petition being W.P.No.
2575(W) of 2010 was filed by Kartick Chandra Ghosh & Ors.
The other writ petition being W.P.No. 2576(W) of 2010 was filed
by Pannalal Halder & Ors.
In all these writ petitions, the common grievance of the
petitioners were founded on the allegation against the
3
Chairman, District Primary School Council, South 24-
Parganas for not permitting them to participate in the selection
process in spite of their names being sponsored by the
concerned Employment Exchange. Copy of the list of
candidates containing the names of 402 candidates sponsored
by the Employment Exchange, Diamond Harbour which was
submitted to the Council was annexed to the writ petitions.
Writ petitioners were amongst those 402 candidates who were
sponsored by the Employment Exchange, Diamond Harbour.
Since the Council raised a doubt as to the genuinity of
the said list of sponsored candidates before the Learned Single
Judge of this Court, the Learned Single Judge of this Court
directed the Director General of Police, West Bengal to depute
the Superintendent of Police or any other competent Officer to
make necessary inquiries and to submit the report as to the
genuineness of the said sponsored list before the Court.
Pursuant to such direction passed by the Learned Single
Judge of this Court, an enquiry was held by the police
authority and on the basis of such enquiry, the Director
General of Police, West Bengal submitted his report vide Memo
No. 317 dated 16th December, 2010 reporting therein that the
Employment Officer-in-Charge of Diamond Harbour prepared a
list of 402 left out candidates and forwarded it to the
Chairman, District Primary School Council, South 24-
Parganas. It was also reported therein that on the same day a
list of 903 candidates was also submitted from the office of the
Deputy Director of Employment, South 24-Parganas to the
said Council. It is also disclosed therein that the list of 402
candidates was not considered and/or accepted by the
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Chairman as it was not routed through the office of the Deputy
Director of Employment, South 24-Parganas.
In this connection, a question came up for consideration
before the Learned Single Judge of this Court as to whether
there existed any provision which required the list of
sponsorship to be routed through the Deputy Director of
Employment of the concerned district.
The Learned Single Judge held that there was no
provision which required the list of sponsorship to be routed
through the Deputy Director of Employment of the concerned
district. As such, the Learned Single Judge ultimately held
that the Chairman of the concerned Council was not justified
in refusing to accept the said list of sponsorship and thereby
illegally excluded the writ petitioners from the zone of
consideration.
Despite such a conclusion was arrived at by the Learned
Single Judge, no positive direction could be given to the
Council for allowing the writ petitioners to participate in the
selection process which was initiated in 2006 as the said
selection process was completed and appointments were given
to all the selected candidates before disposal of the writ
petitions.
Under such circumstances, the Learned Single Judge
held that the relief which was initially claimed by the writ
petitioners in those writ petitions, has become inappropriate
by such subsequent facts and as such the Learned Single
Judge disposed of the writ petition by moulding the relief
5
appropriately and directed the Chairman, District Primary
School Council, South 24-Parganas to allow the writ
petitioners to participate in the future selection process by
relaxing the age bar of the writ petitioners with a rider that in
the event any of the petitioners will be found eligible to the
post of primary teacher neither the Chairman nor the
appropriate authority would reject his candidature on the
ground of age bar.
All those three writ petitions were disposed of by the said
common order passed by the Learned Single Judge on 17th
July, 2012 by issuing identical directions in all those three writ
petitions.
The petitioners in all those three writ petitions felt
aggrieved by the said order as the said order does not explicitly
provide for grant of relaxation of their minimum qualification
requirement as unless such relaxation is given, they cannot
fulfil the eligibility criteria regarding educational qualification
under the changed Recruitment Rules.
Accordingly, Manisankar Bhandari & Ors. being the
petitioners of W.P.No. 2574(W) of 2010 filed an appeal being
MAT 1950 of 2012. The Council in its turn also felt aggrieved
as the age relaxation was given to the petitioners for enabling
them to appear in the future selection process even though
they became ineligible by this time because of their age bar.
Accordingly, the Council also filed an appeal being MAT 1337
of 2012.
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Similarly Kartick Chandra Ghosh & Ors. being the
petitioners of W.P.No. 2575(W) of 2010 also filed an appeal
being MAT 1951 of 2012 and the Council also filed an appeal
being MAT 1338 of 2012 challenging the order passed in the
said writ petition.
Similarly, Pannalal Halder & Ors. who were the
petitioners in W.P.No. 2576(W) of 2010 also filed an appeal
being MAT 1952 of 2012 and the appeal which was filed by the
Council against the order passed on the writ petition filed by
Pannalal Halder & Ors. was registered as MAT 1339 of 2012.
Mr. Shome, learned senior counsel represents all the
appellants in all the appeals filed by three sets of writ
petitioners. Altogether there were 36 writ petitioners in those
three writ petitions. All of them are appellants before us.
Mr. Bari, learned counsel represents the District Primary
School Council, South 24-Parganas in all these six appeals.
Mr. Roy Chowdhury, learned counsel represents the
State-respondents in three appeals being MAT 1950 of 2012,
MAT 1951 of 2012 & MAT 1952 of 2012.
Mr. Dhar, learned counsel represents the State-
respondents in three appeals being MAT 1337 of 2012, MAT
1338 of 2012 & MAT 1339 of 2012.
Mr. Shome, learned senior counsel appearing for the writ
petitioners/appellants submits that his clients are not
aggrieved by that part of the impugned order by which the
7
direction was given upon the Chairman of the District Primary
School Council, South 24-Parganas to allow his clients to
participate in the future selection process by relaxing the age
bar. He, however, submits that when the names of the writ
petitioners were sponsored by the Employment Exchange, the
minimum educational qualification of the candidates
prescribed in the then Recruitment Rules was school final
passed or madhyamik passed.
Mr. Shome submits that all the writ petitioners were
either school final passed candidates or madhyamik passed
candidates. As such they were all eligible to participate in the
selection process as per the extant Recruitment Rules which
was prevalent on the date when the selection process was
initiated for filling up those vacancies.
We are informed by Mr. Shome that subsequently the
Recruitment Rules were amended and the minimum
qualification of the candidates was prescribed as higher
secondary passed.
Admittedly none of the writ petitioners passed higher
secondary examination. As such they are not eligible to
participate in the ensuing selection process as per the
amended Recruitment Rules.
Mr. Shome thus contends that if the present
Recruitment Rules are applied to the writ petitioners, then
they will not be allowed to participate in the selection process
as they are lacking minimum requisite educational
qualification.
8
Mr. Shome contends that now the dispute as to which
Recruitment Rules are applicable in such situation is no longer
a res integra in view of the decision of the Division Bench of
this Hon'ble Court in the case of Asoke Sawoo Vs. State of
West Bengal & Ors. reported in 2012 (3) CLJ 483 wherein it
was held that the Recruitment Rule which was prevalent on
the date when the vacancies were created should be followed
for completion of the recruitment process, notwithstanding any
amendment introduced in the Recruitment Rules laying down
different eligibility criteria pending continuation of the
selection process.
Relying upon the said Division Bench decision of this
Hon'ble Court, Mr. Shome submits that the petitioners cannot
be excluded from the ensuing selection process by referring to
the eligibility criteria laid down in the amended Recruitment
Rules. According to him, their eligibility should be considered
in the light of the Recruitment Rule which was prevalent at the
time when the recruitment process was initiated in the year
2006 wherefrom they were excluded illegally from the zone of
consideration.
Mr. Shome thus invites us to modify the impugned order
suitably, so that the writ petitioners can be allowed to
participate in the selection process by considering their
eligibility with reference to the eligibility criteria as laid down
in the Recruitment Rules which were prevalent in the year
2006 and also by giving relaxation of age bar as given by the
Learned Single Judge of this Court in the impugned order.
9
Mr. Bari, learned counsel appearing for the District
Primary School Council, South 24-Parganas in all these six
appeals refuted such submission of Mr. Shome by drawing our
attention to the fact that none of the 36 writ petitioners in all
those three writ petitions, approached the concerned authority
and/or the writ court at the appropriate time for ventilating
their grievances.
By referring to the newspaper advertisement published
in "Aajkal" on 22nd October, 2009 appearing at page 60 of the
stay application, Mr. Bari points out that all the aspiring
candidates were informed by the Chairman, District Primary
School Council, South 24-Parganas that those whose names
were sponsored but had not yet received the proforma bio-data
form, they can apply for issuance of the proforma bio-data
form, from the Council within 10th November, 2009 and they
will have to submit the said duly filled up bio-data form with
the Council within 18th November, 2009.
Admittedly the writ petitioners had knowledge about the
said newspaper publication on the day when it was published.
Still then none of the 36 writ petitioners approached the
Council either for issuance of the bio-data form within the cut
off date nor any of them submitted the duly filled up bio-data
form within the cut off date i.e., 18th November, 2009.
Only four writ petitioners, viz., (i) Pannalal Halder, (ii)
Sujay Pal, (iii) Somnath Karati and (iv) Gopal Halder who were
the petitioners in W.P.No. 2576(W) of 2010 claimed that they
approached the concerned authority for issuance of the bio-
data form within the cut off date, but they were denied on the
10
plea that they having not been sponsored regularly by the
concerned Employment Exchange are not entitled to get the
proforma bio-data form and after being ultimately
unsuccessful in persuading the concerned authority for
issuing their bio-data form, they ultimately submitted a joint
representation to the Chairman of the District Primary School
Council, South 24-Parganas on 17th December, 2009 which
was beyond the cut off date.
We are informed by Mr. Bari that the interview of the
eligible candidates was held on 20th December, 2009 and the
selection process was completed by giving appointment to the
selected candidates by the end of December 2009, but the writ
petitioners filed the instant writ petitions on 1st February,
2010.
According to Mr. Bari, had there been any bonafide on
the part of those four writ petitioners, they should have
approached the Writ Court before the date which was fixed for
holding interview of the eligible candidates. He further
contends that the reason for the delay in approaching the Writ
Court for the relief they claimed therein was not at all
convincing as though they were all-through-out aware of the
schedule fixed by the Council for completion of the selection
process, they did not come forward to exercise their right
within the cut off date.
Mr. Bari thus submits that even those four candidates
who did not approach the authority concerned for issuance of
the proforma bio-data form within the cut off date, should not
be allowed to participate in the future selection process by
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relaxing the age bar as they made themselves disentitled to
appear in the said selection process by not submitting their
bio-data within the cut off date.
Mr. Bari is also very much candid in his submission that
apart from those four writ petitioners of W.P.No. 2576(W) of
2010, no other writ petitioners of those three writ petitions
approached the concerned authority either for issuance of bio-
data form within the cut off date nor any of them submitted
their bio-data form within the cut off date. As such under no
circumstances, their candidature should be considered even
for participation in the future selection process.
After hearing the learned counsel of the parties and after
considering the materials on record, we find much force in the
contention of Mr. Bari as we do not find any diligence on the
part of the writ petitioners either in approaching the Council
for issuance of the bio-data form or for submission of the same
within the cut off date or even for approaching the Writ Court
for ventilating their grievances.
Thus though we agree with the contention of Mr. Shome
that the selection process should be completed by applying the
Recruitment Rule which was prevalent at the time when the
vacancies were created, but here is the case where the
vacancies which were created prior to 2006 for which the said
selection process was initiated in the year 2006 were all filled
up and as such presently no post which fell vacant prior to
2006 is now available today which can now be filled up by the
future selection process.
12
Even if we take a sympathetic view for those four writ
petitioners of W.P.No. 2576(W) of 2010, still then we find that
no relief can be granted to them as they were not at all diligent
either in approaching the concerned authority for supply of the
bio-data form to them within the cut off date or in submitting
their biodata within the cut off date.
Facts remain that they have not submitted their bio-data
with the concerned authority and thereby they became disentitled to appear in the said selection process.
Even assuming that the writ petitioners were denied of supply of the bio-data form by the concerned authority within the cut off date and as a result thereof they could not submit their bio-data form within the cut off date, still then we are of the view that they should have approached the Court seeking appropriate relief before conclusion of the selection process.
Since the selection process was concluded in 2006 and appointments have already been given to the selected candidates, we find no reason to allow the writ petitioners/appellants to participate in the future selection process for filling up future vacancies by giving any relaxation either with regard to their age bar or with regard to their lacking minimum educational qualification.
We cannot be oblivious about the other practical difficulty that will arise in case we allow even those four writ petitioners in the ensuing selection process. Recruitment Rules have since been changed prescribing higher educational qualification for the aspiring candidates for the post of primary 13 teacher. Now higher secondary examination passed is the minimum educational qualification prescribed in the changed Rules. None of the petitioners is having the requisite qualification as per the new Recruitment Rules. As such, they will not be able to compete with the candidates having higher qualification than them.
Thus if we allow the petitioners to participate in the selection process, then we will have to direct the authority to hold a separate test for them as per their standard. Two parallel process cannot be conducted for selecting candidates for the same post. As such, we cannot accept the suggestion of Mr. Shome for holding a separate selection test for the writ petitioners.
The appeals filed by the writ petitioners being MAT 1950 of 2012, MAT 1951 of 2012 & MAT 1952 of 2012 thus stand dismissed.
The order passed by the Learned Single Judge of this Court in all those three writ petitions stand set aside.
The appeals filed by the District Primary School Council, South 24-Parganas being MAT 1337 of 2012, MAT 1338 of 2012 & MAT 1339 of 2012 thus stand allowed.
14In view of disposal of all the appeals in the manner as aforesaid, no further order need be passed on the connected stay applications. All the connected stay applications are thus deemed to be disposed of.
(JYOTIRMAY BHATTACHARYA, J.) ( ISHAN CHANDRA DAS, J. )