Calcutta High Court (Appellete Side)
Sri Arindam Sannigrahi vs The State Of W.B. & Ors on 7 November, 2013
Author: Patherya
Bench: Patherya
1
1. 7.11.2013
sd. Ct. 8. FMA 371 of 2012
Sri Arindam Sannigrahi vs. The State of W.B. & ors.
Mr. A. Bhattacharrya ..For appellant.
Mr. B.R. Bhakat
Mr. S.R. Kundu ..For the respondent no. 9.
In this appeal the order under challenge is dated 16th December 2011.
The case of the appellant is that the dismissal of the writ petition by the trial court was erroneous as the two grounds on which the writ petition was dismissed is contrary to the 2001 Guidelines and principles applicable to pendency of criminal case. The selection process for appointment of Samprasarak is guided by 2001 Guidelines. Clause 29 of the said Guidelines lays down the qualification needed for appointment of a Samprasarak. The appellant fulfilled the conditions laid down in the said Guidelines and being a Honours graduate the appellant ought to have been given preference over the private respondent who was only a Pass graduate. The trial court in holding that Honours graduate and Pass graduate are at par and stand on equal footing has erred as the said Guidelines specifically provide that Post graduates and Honours graduates should be given preference. Criminal case being G.R. case no. 248/2004 was initiated under sections448/323/506/34 IPC and was not under section 498A of the IPC. There is no bar in appointment of a Samprasarak 2 in case criminal proceedings are pending against him. The appellant was also not required to disclose the pendency of the criminal case. Therefore, the question of suppression of facts as held by the trial court could not be a ground for dismissal of the writ petition. In fact G.R. Case no. 248/2004 by order dated 6.2.2012 has been dismissed and the appellant acquitted. Therefore, the order under appeal dated 16.12.2011 be set aside.
Reliance is placed on 2009(4) CLT 63 and 2010 CHN 98 for the proposition that a person is presumed to be innocent until the contrary is proved and the benefit of the principles of presumption of innocence ought to have been extended to the appellant. Reliance is also placed on 2005(2) SCC 746.
Counsel for the private respondents submits that clause 44 of the 2001 Guidelines specifically provides that the progress of the program is to be personally monitored by the SDOs. The executive officer of the Panchayet Samity and block level nodal officer, SSK are the responsible persons for supervision of the said program. Therefore, if there was any irregularity in running the Siksha Kendra, a complaint ought to have been made to the persons mentioned above. As there is no grievance addressed to the persons as per clause 44 of the 2001 Guidelines, the writ petition was rightly dismissed. Clause 29(iii) deals only with the required educational qualification of candidates. The candidates were called for an interview which is an admitted fact and has been admitted by the appellant in the writ petition. At such interview the private respondent spoke fluently 3 while the appellant stammered. Therefore, the authority were justified in not giving appointment to the appellant as no person who stammers can be appointed as a teacher. G.R. Case no. 248/2004 was pending during the selection process in 2007 and this was a valid ground for rejecting the appellant's candidature. At the time of evaluation the Madhyamik and Higher Secondary marks were also to be evaluated and the appointment to the candidates could not have been given only on the basis of being an Honours graduate. Pendency of the criminal case was a material fact suppressed. Therefore, the authorities were justified in not appointing the appellant. As the Guidelines does not bar consideration of the Madhyamik and Higher Secondary marks and in view of the suppression of material fact, viz. the criminal proceedings, the order dated 16.12.2011 be affirmed. Each case is to be considered on its own facts and 2010(4) CHN 98 is distinguishable on facts from the present case, therefore, the principle of presumption of innocence will not apply to the facts of the case.
In reply, it has been submitted by Counsel for the appellant that the Guidelines do not make any provision for holding of an interview and in fact no interview was held.
Having considered the submissions of the parties the writ petition was dismissed by order dated 16th December 2011 on two grounds. The first ground on which it was dismissed was that an Honours graduate and a Pass graduate as per the 2001 Guidelines stand on an equal footing. The second ground related to the pendency of criminal case being G.R. Case 4 No. 248/2004 and non-disclosure of the same by the appellant which amounted to suppression of fact.
Although the appellant writ petitioner had taken the point of nexus between the private respondent and the Secretary of the MSK, the said contention was rightly rejected by the trial court as on a drawing up of a Genealogical table, no nexus can be drawn between either the grand father of the Secretary and the grand father of the private respondent or their respective fathers. But the trial court in holding that Guidelines 21 (C) equivalent to Guideline 29(iii) of the 2001 Guidelines stood on an equal footing misdirected itself. For the purpose of convenience Guidelines 29(iii) is set out herein below:
"29(iii) The persons who are graduates from a recognized University having studied the subject, for which they are being considered, at the graduation level would be eligible for engagement as Siksha Samprasarak/Samprasarika. Post-graduates, Honours graduates should get preference. In case of Mukhya Siksha Samprasarak/Samprsarika a retired Headmaster/Headmistress or at least a retired teacher of a higher/junior high school preferably with post-graduate/honours degree should be selected."
From a reading of the said Guidelines, it is clear that graduates who had studied in the subject for which they were considered, were eligible for appointment. But Post-graduate and Honours graduates should get preference. Therefore, while considering the application the Honours 5 graduate candidates should get preference. Admittedly, the appellant is an Honours graduate and although the private respondent got an opportunity also to file an affidavit in opposition, the certificate received from the University so also the mark sheet has not been disclosed. It is also pertinent to mention that neither the State or the managing committee has appeared nor filed any affidavit. Therefore, the only documents that can be looked into are those disclosed in the writ petition and in the affidavit filed by the private respondent, and in view of non-disclosure of mark sheet by the private respondent, one can conclude that the private respondent was a Pass graduate and the appellant was a Honours graduate as will be evident from the mark sheet disclosed by him in these proceedings. Therefore, the appellant's candidature should have been given preference as per Guideline 29(iii) of the 2001 Guidelines. But this was not done and therefore the writ petition was filed in 2007.
Therefore, what emerges is that Guideline 29(iii) treats a Pass graduate and Honours graduate in two different class and category and the finding of the Trial Court to that extent cannot be supported and is set aside.
The next ground that is to be dealt with is the pendency of G.R. Case no. 248/2004 during the selection process.
Neither does the 2001 Guidelines require disclosure of any criminal proceedings nor pendency of a criminal proceeding is a bar to appointment of a Samprasarak. Even assuming that it would amount to bar principle of 6 presumption of innocence would come to the aid of the appellant as every person is presumed to be innocent until the contrary is proved. Therefore, based on this principle, the appellant would be in the zone of consideration for appointment to the post of Samprasarak and the finding of the trial court that non-disclosure of the criminal case amounts to suppression of fact can not be supported. Accordingly, the said finding is set aside.
Stress has been laid on the call for interview letter by the private respondent. From a reading of the said letter, it will appear that although the subject was letter for interview but all that was required to be done by the candidates was to appear before the selection committee with all testimonials and with the original copy of such testimonials on a particular date. By the said letter the MSK did not inform the candidates that a viva test would be conducted. In fact, the Guidelines also do not make any provision for holding of a viva. Therefore, the submission of the private respondent that the appellant stammered at the interview cannot be accepted. More so, as each candidate would be interviewed separately and none of the candidates would be aware of what transpired at the interview of each candidate. The verification as regards this aspect of stammering at the interview in the affidavit filed by the respondent no. 9 has been verified as true to knowledge. This again could not have been within the knowledge of the private respondent. Therefore, this argument of stammering made by the Counsel for the private respondent can not be accepted. 7
In view of the aforesaid, the order dated 16.12.2011 cannot be sustained in the eye of law and therefore is set aside.
The writ petition has been disposed of and an appeal is a continuation of the original proceedings. As the grounds on which the writ petition was dismissed have been set aside entitles the appellant to consideration of his candidature by the authorities at the time of consideration of the private respondent's appointment as the appointment to the post is on an annual basis. The clock would have to be set back to the year 2007 when the selection process was initiated, and the question of any age bar would not arise in case of appointment. As the private respondent has served in the intervening period and been paid sums, no order is made in respect of refund of such sums.
In view of the aforesaid, this appeal succeeds and is disposed. Urgent certified photocopies of this order be made available to the parties, if applied for, subject to the compliance of all requisite formalities.
After passing the order, the learned Counsel appearing on behalf of the private respondent prays for stay of operation of the order.
The prayer is considered and rejected.
( Patherya, J.) (Tapash Mookherjee, J.) 8