Calcutta High Court (Appellete Side)
Kanika Biswas vs The State Of West Bengal & Ors on 24 September, 2013
Author: Soumitra Pal
Bench: Soumitra Pal
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
(Appellate Side)
Present:
The Hon'ble Justice Soumitra Pal.
W.P. No. 3256 (W) of 2013
Kanika Biswas
Vs.
The State of West Bengal & Ors.
With
W.P. No. 3258(W) of 2013
With
W.P. No. 3260 (W) of 2013
With
W.P. No. 3261 (W) of 2013
With
W.P. No. 3263 (W) of 2013
With
W.P. No. 4101 (W) of 2013
With
W.P. No. 4102 (W) of 2013
With
W.P. No. 4103 (W) of 2013
With
W.P. No. 4106(W) of 2013
With
W.P. No. 4441 (W) of 2013
With
W.P. No. 4444 (W) of 2013
With
W.P. No. 4446 (W) of 2013
With
W.P. No. 4936 (W) of 2013
With
W.P. No. 4937 (W) of 2013
With
W.P. No. 5085 (W) of 2013
With
W.P. No. 5089 (W) of 2013
With
W.P. No. 7978 (W) of 2013
With
W.P. No. 8188 (W) of 2013
For the Petitioners : Mr. Bratindra Narayan Roy,
Mr. Arnab Saha,
Ms. Priyanka Das.
For the State in : Mr. Bhakti Prasad Das.
W.P. 3256 (W) of 2013
For the State in : Ms. Sipra Majumdar,
W.P. 4103 (W) of 2013 Mr. Khairul Alam.
For the State in : Mr. Malay Chakraborty,
W.P. 4106 (W) of 2013 Mr. Naren Ghosh Dastidar.
For the State in : Mr. A. Jana,
W.P. 4444 (W) of 2013 Ms. Rita Patra.
For the State in : Mr. Biswajit De,
W.P. 4936 (W) of 2013 Ms. Shabana Hasin.
For the State in : Ms. Sipra Majumdar,
W.P. 7978 (W) of 2013 Mr. S. Das Chanda.
For the State in : Mr. Nirmal Kumar Manna, Senior
Advocate
W.P. 8188 (W) of 2013 Ms. Mitali Mukherjee.
For the State and : Mr. Joytosh Majumdar,
Primary School Council Ms. Sulagna Bhattacharyya,
Mr. Sirsanya Bandopadhyay.
Judgment on: 24th September, 2013.
Soumitra Pal, J.:
In these writ petitions, which were heard analogously, the petitioners who were appointed as enumerators in the census operations in the year 1991 and were registered with the employment exchange in the exempted category and were candidates in the said category for the posts of Assistant Teacher (Primary) in schools under the jurisdiction of the South 24- Parganas District Primary School Council in the 2006 selection process, have prayed for a direction upon the respondents to appoint them as primary teachers. According to the petitioners though they had participated in the written test, and performances were satisfactory, allegation is they were not selected and appointed as the bio data forms were attested by one Ranjan Roy, who according to the Council, was not competent to attest and certify the documents. Submission was as the names of the petitioners were registered under the exempted category as ex census employees and were sponsored by the exchange and as in two identical matters in Puspita Mondal v. The State of West Bengal: 2011(3) CHN (Cal) 852 and in W.P. 8387 (W) of 2010 Pravabati Midya (Sahoo) v. State of West Bengal it was held that appointment cannot be withheld on the ground that the statutory form was attested by the said Ranjan Roy and accordingly directions were issued to provide appointment and as total vacancies available and anticipated vacancies under the law are yet to be filled up, orders as prayed for may be issued. Submissions were that the writ petitions could not be moved earlier as the petitioners were under the bonafide impression that transparency in appointment was maintained by the Council and the State. However, subsequently as they learnt that illegalities were committed by the authorities and High Court had intervened and Council had appointed candidates, the writ petitions have been filed.
Mr. Bratindra Narayan Roy, learned advocate for the petitioners reiterating the statements in the writ petition submitted that as the cases of the petitioners were rejected on a ground which was held by the High Court in W.P. 8987 (W) of 2011 not to be good policy and there has been violation of Article 14 of the Constitution of India and as South 24- Pargrans District Primary School Council has accepted the judgment in W.P. 23501 (W) of 2010 which was passed along with Puspita Mondal (supra) and consequently appointments have been given even after the expiry of the panel, the writ petitions are maintainable and therefore, order may be issued directing appointment. Learned advocate for the petitioners had relied on the judgments of the Supreme Court in Olga Tellis v. Bombay Municipal Corporation: AIR 1986 SC 180; in Purushttam v. Chairman, M.S.E.B : 1999(6) SCC 49; in Abid Hussain and Others v. Union of India & Ors: AIR 1987 SC 820 and of the Calcutta High Court in Padma R. Thakur v. Secretary, Deptt. Of Home: 2007(1) CHN 351 besides the judgments in Puspita Mondal (supra) and in W.P. 8987 (W) of 2011 in support of his submission.
Mr. Joytosh Mazumdar, learned advocate for the Council submitted that provision for seeking bio data is inbuilt or deemed to be in Rule 9(1) of the West Bengal Primary School Teachers Recruitment Rules, 2001 ('Rules' for short) as otherwise it is not possible for the Council to verify the applications of the candidates. Accordingly, the petitioners had filled up the bio data forms and had participated in the selection process. Thereafter, panel was published on 14th August, 2010 which was valid till 13th August, 2012. The petitioners were found to be unsuccessful. However, as the petitioners during the subsistence of the panel did not file the writ petitions seeking direction for keeping one post vacant and as the judgment in Puspita Mondal was diluted in the subsequent judgment in Pravabati Midya (Sahoo), the petitioners are not entitled to the orders as prayed for. As Rule 11 of the Rules postulates that no appointments shall be given beyond the vacancies notified and as all vacancies have been filled up and as in order to comply with the directions passed by the learned Single Judge, it has been clearly mentioned in the appointment letters issued that such appointments will be subject to the result of appeal filed or to be filed, no order may be passed. Learned advocate for the Council had relied on the following judgments of the Apex Court in M.P. Electricity Board v. Virendra Kumar Sharma: 2002(9) SCC 650; in State of Orissa v. Bhikari Charan Khuntia : 2003(10) SCC 144; in State of Bihar v. Amrendra Kumar Mishra: (2006) 12 SCC 561; in Union of India v. B. Valluvan: AIR (2007) SC 210; in Aryavrat Gramin Bank v. Vijay Shankar Sukla: (2007) 12 SCC 413; in Nadia Distt. Primary School Council v. Sristidhar Biswas:
(2007) 12 SCC 779; in Girdhar Kumar Dadhich v. State of Rajasthan:
(2009) 2 SCC 706; in Shiba Shankar Mohapatra v. State of Orissa: (2010)12 SCC 471; and in State of Haryana v. Vijay Singh: (2012) 8 SCC 633 in support of his submission.
During hearing the learned advocates for the parties were apprised of an unreported judgment delivered on 26th April, 2013 in W.P. 6526 (W) of 2013 (Tapan Pradhan v. State of West Bengal and Ors.) where the issue was whether a writ petition challenging the selection process as well as preparation of panel of primary school teachers was maintainable after the panel had expired.
Admittedly, the petitioners had participated in the 2006 selection process. Their names did not figure in the panel of successful candidates. According to the petitioners, as the applicants in Puspita Mondal (Halder) (supra) and in W.P. No. 8387 (W) of 2010 Pravabati Midya (Sahoo) (supra) were candidates in the exempted category for the 2006 selection process and their contentions have been upheld and as the list containing the names of the successful candidates under the exempted category are yet to be published, the petitioners being similarly situated are entitled to be enlisted in the panel of successful candidates and appointed. In this background the question to be considered is whether a writ petition challenging the selection process of primary teachers as well as the preparation of panel is maintainable after the panel had expired.
In order to answer the issue it is necessary to set out Rule 13 of the Rules, which is extracted hereunder:-
" Validity of the panel.- Approved panel shall remain valid normally for one year from the date of approval by the Director or his authorised officer provided that the Director or his authorised officer may extend the validity of such panel by six months at a time, but the total period of such extension shall not exceed one year."
As noted, a panel approved by the Director under the Rules shall be valid for one year. However, the Director or his authorized officer may extend its validity by six months at a time, but the total period shall not exceed one year, meaning thereby an approved panel at the most shall be valid for two years. In the instant case the panel which was published on 14th August, 2010 was extended by one year and ultimately it expired on 13th August, 2012. Now the issue, as noted, is whether the writ petition is maintainable after the life of the panel had expired. In my view, as the principles of law are well settled in view of the judgments of the Apex Court in State of Bihar v. Amrendra Kumar Mishra (supra) and in Union of India v. B. Valluvan (supra), which were considered in Tapan Pradhan (supra), the argument of the petitioner cannot be accepted. It is to be noted that in State of Bihar v. Amrendra Kumar Mishra (supra) it was held "Life of a panel, it is well known, remains valid for a year. Once it lapses, unless an appropriate order is issued by the State, no appointment can be made out of the said panel." (paragraph-9). An identical issue came up for consideration in Union of India v. B. Valluvan (supra) where while allowing the appeal the Apex Court had held that "Life of a panel, as is well known, must be for a limited period. It is governed by the statutory rules". (paragraph - 12).
Similarly in M. P. Electricity Board (supra), where prayer was made for appointment of the selectee after expiry of the panel on the basis of the Circular mentioned, while allowing the appeal and negating the plea of the selectee it was held " Any scheme for selection will depend upon the terms on which selections are made. In the present case, there is a scheme as provided in the circular dated 9-12-1968 and that circular also provided for the panel to be valid/current for a particular period namely one year. After that period, the list would lapse and fresh panel has to be prepared. If that is the scheme, none of the decisions relied upon by the learned counsel for the respondent would be of any assistance. The High Court is also not justified in relying upon the decision in Shivsingh case inasmuch as the scheme of appointment was entirely different. Moreover the validity/currency of panel was for a particular period; that is the salutary principle, behind that Rule so that after the selections are made and appointments to be made may take long time, it is possible that new candidates may have become available who are better or more qualified than those selected, and if they are appointed it would be in the best interests of the institution. Hence we do not think there was any justification for the High Court to have interfered in the matter and directed appointment of the respondent.........." (paragraph 5).
Similar situation arose in the case of Girdhar Kumar Dadhich (supra) where the petitioners were seeking appointment by filing writ petitions pursuant to a Full Bench judgment where provisions were declared unconstitutional. It was submitted on behalf of the appellants that as vacancy still existed, even without disturbing the existing appointees, the appellants could be accommodated. This argument was countered on behalf of the State by submitting that as they did not file any writ petition in the year 1998-99, the High Court had rightly dismissed the writ petition as being barred by delay and laches. The Supreme Court while dismissing the appeal held that "the select list would ordinarily remain valid for one year. We fail to understand on what basis appointments were made in 2003 or subsequently. Whether the validity of the said select list was extended or not is not known. Extension of select list must be done in accordance with law. Apart from a bald statement made in the list of dates that the validity of the said select list had been extended, no document in support thereof has been placed before us". (paragraph - 16) Therefore, law is any challenge with regard to the panel must be made during its validity. Keeping the proposition of law as laid down by the Apex Court and the High Court in mind, it is to be noted wherever selection and appointment are regulated by statutory rules, challenge to such list of selectees must be made during the subsistence of the panel. As under Rule 13 a panel even after extension is valid for a maximum period of two years and as the writ petitions were filed after the panel had expired and as by filing the petition belatedly, the petitioners in the instant cases have taken a chance, argument on their behalf cannot be accepted. In this regard it is appropriate to refer to the law laid down by the Supreme Court in Shiba Shankar Mohapatra (supra) wherein it has been held that "It is settled law that fence-sitters cannot be allowed to raise the dispute or challenge the validity of the order after its conclusion. No party can claim the relief as a matter of right as one of the grounds for refusing relief is that the person approaching the court is guilty of delay and the laches........." (paragraph-29). Similarly in Nadia District Primary School Council (supra) the Supreme Court while allowing the appeal had negatived the contention of the petitioners where the High Court had given directions for appointment long after the panel had expired relying on a judgment which was on the basis of concession. That apart the Apex Court in Aryavrat Gramin Bank (supra) while allowing the appeal had held that even pendency of the representation for extending the life of the panel by itself cannot confer any legal right on the applicant to seek for issuance of a writ of mandamus. The judgment in Purushottam (supra), relied on behalf of the petitioner, is not applicable to the facts of the case as therein the appellant was a duly selected candidate for being appointed, whereas in the instant case the name of the petitioners did not figure in the panel which had expired on 13th August, 2012. The judgment of the Apex Court in Olga Tellis (supra) is not applicable to the facts of the case as therein the Apex Court had no occasion to consider the issue regarding validity of a panel. The "Order" passed in Abid Hussain (supra) is not applicable as therein no law was declared as postulated under Article 141 of the Constitution and thus it is not a binding precedent. The judgment in Padma R Thakur is inapplicable as it was dealing with an issue relating to the claim of compensation arising out of custodial death. The judgment in Puspita Mondal (supra) and Pravabati Midya (Sahoo) (supra) are not applicable as therein petitions were filed during the continuance of the selection process and /or during the validity of the panel, whereas the instant writ petitions have been filed in 2013 when the panel had already expired on 13th August, 2012 and in such circumstances thus the issue is covered by the judgments in Girdhar Kumar Dadhich (supra) and Shiba Shankar Mohapatra (supra). Moreover, the argument of the petitioner that they have a right to be considered as the employment exchange had sent their names cannot be accepted as the Apex Court in State of Orissa v. Bhikari Charan Khuntia (supra) held that mere sending of names by the employment exchange cannot confer any right. That apart as in State of Haryana v. Vijay Singh (supra) it was held that "Before concluding, we consider it proper to notice the judgments on which reliance has been placed by the learned counsel for the respondents. This consideration needs to be prefaced with an observation that the cases in which recruitment and conditions of service including seniority are regulated by the law enacted by Parliament or the State Legislature or the Rules framed under Article 309 of the Constitution, the general proposition laid down in any judgment cannot be applied dehors the relevant statutory provisions and dispute relating to seniority has to be resolved keeping in view such provisions" (paragraph 23) and as Rules govern the selection and recruitment of primary teachers, the argument of the petitioners is not tenable.
Therefore, as under Rule 13 of the Rules a panel even after extension is valid for two years and as in the instant case the panel had expired on 13th August, 2012 and thereafter the petitioners have filed the writ petitions and as in view of settled principles of law laid down by the Apex Court the writ petitions are not maintainable, no order can be passed on the writ petitions. Hence, for the reasons as aforesaid, the writ petitions are dismissed.
There will be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be furnished to the appearing parties on priority basis.
(Soumitra Pal,J.)