Calcutta High Court (Appellete Side)
Nepal Chandra Das vs State Of West Bengal & Ors on 19 January, 2012
Author: Ashoke Kumar Dasadhikari
Bench: Ashoke Kumar Dasadhikari
1
19.01.2012
ss W.P. 7635(W) of 2009
Nepal Chandra Das
Vs.
State of West Bengal & ors.
Mr. Tanoy Chakraborty
... For the petitioner
Mr. Kamalesh Bhattacharya
Mr. Tapas Ballav Mondal
... For the State
Let affidavit-in-reply filed today be kept in record.
The controversy in this writ petition is as regards
appointment of Group 'D' employee in a school reserved
for scheduled caste category. The concerned school
authorities invited sponsored candidates from the
employment exchange. Pursuant to such requisition the
employment exchange sponsored 20 candidates
including the writ petitioner. Out of 20 candidates 13
candidates including the writ petitioner appeared at the
interview along with one more candidate being the
private respondent herein who was allowed to appear at
the interview on the basis of the order passed by this Hon'ble Court.
The writ petitioner's main grievance in this writ 2 application is that the private respondent is not at all entitled to appear before the interview board since his name was not sponsored. Therefore, his selection is bad and his appointment in the post of group 'D' should be cancelled.
It was submitted that although the petitioner did not object at the time of interview that the post should be filled up by inviting the applications through advertisement, but subsequently he has taken this plea in this writ application that the applications should be invited through advertisement.
It was submitted by the learned Counsel that since the applications were not invited through advertisement the entire process is vitiated and the selection is also bad. He further contended that since there was no sponsorship in favour of the private respondent he ought not to have been allowed to participate in the process of selection.
Learned Counsel for the writ petitioner in support of his contention cited two decisions, one is reported in 2011(3) S.C.C. page 436 paragraphs 35 and 36 (State of Orissa & ors. Vs. Mamata Mohanty). He submits that selection should be made after advertising the post and 3 inviting applications by it. He also cited another judgement of this Hon'ble Court reported in 2008(4) C.H.N. page 275 (Debendra Nath Mondal Vs. Ratan Kumar Das & ors.). It was submitted that in this case the Hon'ble Supreme Court judgement rendered in case of Abu Taher was considered by this Hon'ble Court.
It was further submitted that in the instant case the judgement of Abu Taher is of no effect. According to the learned Counsel appearing for the writ petitioner it is not proper for the Managing Committee and/or the concerned authority to allow the private respondent to appear at the interview and/or participate in the process of selection.
Mr. Bhattacharya, learned Counsel appearing for the State submits that the petitioner himself appeared at the interview being sponsored by the employment exchange and he never raised any question before appearing the interview and also never questioned about the filling up of the post by a selection from the sponsored candidates. Therefore, at this juncture he is estopped from questioning the selection process.
Mr. Bhattacharya, learned Counsel appearing for the State submitted that the private respondent was 4 allowed to appear at the interview pursuant to an order of this Hon'ble Court, which the writ petitioner is aware and the writ petitioner has never questioned such order by preferring any appeal and on that score also he cannot question the same before this Hon'ble Court after appearing at the interview and being not selected in the selection process.
It was submitted by Mr. Bhattacharya that had he been selected in the selection process, all these things would not have arisen. It is only after becoming unsuccessful in the selection process he is making such allegation which he is not entitled. The writ petitioner is taking a chance before this Court and therefore this is clear abuse of process of this Court.
It was further submitted by Mr. Bhattacharya that there are judgements of this Hon'ble Court following Abu Taher's judgement, to the effect that even a non- sponsored candidate can appear at the interview and participate in the selection process. It was submitted by Mr. Bhattacharya that the case of Abu Taher is squarely applicable in the instant case specially when the writ petitioner is aggrieved against the selected candidate who was allowed to appear at the interview in view of the 5 order passed by this Hon'ble Court in a proceeding and the order has not been challenged by the writ petitioner. Heard the learned Counsel appearing for the parties. It appears that the writ petitioner himself is a sponsored candidate and he appeared before the selection committee as a sponsored candidate. He never questioned this sponsorship and also he was not aggrieved against non-publication and/or inviting applications in the newspaper for filling up such post and therefore, he cannot now come and say that the selection is contrary to the established norms and/or procedures. In my view the writ petitioner cannot blow hot and cold at the same time, on the one hand he appeared himself before the interview board being a sponsored candidate and at the same time he is saying that no interview ought to have been held amongst the sponsored candidates but it should have been published in the newspaper and applications ought to have been invited through such advertisement.
So far as allowing the private respondent to appear at the interview, not being a sponsored candidate, it appears that the Apex Court judgement delivered in case of Abu Taher is clearly applicable. There are judgements 6 of this Court where it was clearly decided that even a non-sponsored candidate can appear at the interview and participate in the selection. It appears from the facts that the private respondent came up before this Hon'ble Court and moved a writ petition and obtained an order in his favour for allowing him to appear and contest at the selection process. That order has not been challenged and there is no scope for reopening the same by a learned Single Judge of this Hon'ble Court since the said order has reached its finality.
In my view the issue cannot be reopened and the selection held by the respondent authorities are lawful and valid and therefore, the approval granted in favour of the private respondent is also lawful and valid. However, it was pointed out that the Additional District Inspector of Schools approved the panel and that is not permissible. In such case the District Inspector of Schools will give such approval, if necessary.
In view of the aforesaid finding I dismiss this writ petition. There would be no order as to costs.
(Ashoke Kumar Dasadhikari, J.) 7