Calcutta High Court (Appellete Side)
S.L.-18(Kb/Fb) Uttam Kumar Naskar vs The State Of West Bengal & Ors on 29 June, 2018
Author: Subrata Talukdar
Bench: Subrata Talukdar
1
29.06.2018 W.P. 21353 (W) of 2016
S.L.-18(KB/FB) Uttam Kumar Naskar
Versus
The State of West Bengal & Ors.
with
W.P.20871 (W) of 2016
Durga Mondal
Versus
The State of West Bengal & Ors.
with
W.P. 15507 (W) of 2017
Iqbal Hossain Gazi
Versus
The State of West Bengal & Ors.
(Assigned)
Mr. Debabrata Saha Roy
Mr. Lakshmi Nath Bhattacharjee
... For the petitioners in all
the three writ petitions.
Mr. Manas Kumar Sadhu
... For the State-respondents
in W.P.21353 (W) of 2016.
Mr. Sayantanee Bhattacharjee ... For the State in W.P. 15507 (W) of 2017.
Party/parties are represented in the order of their name/names as printed above in the cause title.
Three Writ Petitions appear for analogous consideration since the three Writ Petitioners claim to be identically circumstanced. Under challenge in the three Writ Petitions is the order dated 4th March, 2016 of the District Project Officer (DPO), Sarba Siksha Mission (SSM), South 24-Parganas, rejecting the continuation of 2 the petitioners as Para Teachers in the School in issue namely, Muldia Chaitanyapur Deshgourab Bidyamandir (for short the School).
In view of such rejection the DPO/ Respondent also considered the petitioners to be ineligible for online registration for D.El.Ed. Course.
The petitioners were further communicated that the decision dated 4th March, 2016 stood confirmed by the District Level Committee (DLC) at its meeting held on the 11th of February, 2016 headed by the Additional District Magistrate, South 24-Parganas, also a Respondent to the Writ Petition.
Mr. Bhattacharjee, Learned Advocate led by Mr. Saha Roy, Learned Counsel draws the attention of this Court to the inaccuracy of the order dated 4th March, 2016 (supra) on the ground that the order considered the petitioners to be ineligible for continuation in the year 2016 on the basis of a cut off date which, according to the petitioners, is not applicable to them. It is submitted that of relevance to the discussion in the above context is Paragraph 8 of the Affidavit-in- Opposition filed to W.P. No.20871 (W) of 2016 by the DPO/Respondent which reads as follows: 3
"With reference to
paragraph 10 of the said writ
petition, I deny the petitioner
statement he will continue till 60 years of age. He was engaged on 23.09.2010 for a period of one year.
Accordingly Memo dated 22.07.2010 is not applicable to him.
His was not engaged on or before 22.07.2010."
The petitioners submit that on the strength of an order dated 13th May, 2010 passed by a Hon'ble Single Bench, the DPO/Respondent was directed to select Para Teachers from the panel sent to him by the above referred school in issue on providing 50% posts in the aggregate to female candidates.
The discussion vide the order dated 13th May, 2010 in W.P.20943 (W) of 2008, also filed by one of the present Petitioners is required to be reproduced:
"By two orders of this Court in the above Writs dated 26.7.06 and 29.11.06, the District Project Officer was asked to consider the matter afresh. He has made a purported consideration by his decision dated June 22, 2007.4
He is unmoved on the earlier stand saying that the advertisement was flawed for not mentioning that 50% posts was reserved for female candidates and that the Selection Committee was not properly constituted.
When more than one opportunity has been given to the District Project Officer in earlier writs by this Court, the District Project Officer should have applied his mind properly and passed a well-considered order. He has not done so. His only ground for cancelling the selection process is that the advertisement was flawed for the above omission.
It is true that 50% posts according to the guideline were reserved for females. But the advertisement did not say that females would not be entitled to apply. The Selection was open to all. Therefore, after undergoing this selection process it could be meting out great injustice to the persons who are included in the panel, if the panel was cancelled on such ground. I do not think that there is any great irregularity in that 5 advertisement as all females could apply under that advertisement.
Further, when this officer was
asked to decide the matter,
pursuant to orders of this Court, it was absolutely irregular on his part to hold that the Selection Committee was improperly constituted without noticing all concerned persons and without deciding the issue on proper materials. His finding on the issue is based on no evidence and is set aside. Therefore, the panel ought not to have been cancelled. Since the matter has been sent more than once to the District Project Officer and he was not made proper consideration, I am not inclined to send the matter back to him again for consideration.
Hence, I direct the District Project Officer to make the selection from the above panel sent to him by the school by providing 50% posts in the aggregate to female candidates.
He should prepare a merit list for each subject and make the selection, according to the above direction. For selecting a candidate for a particular subject, he will have a discretion to select a male or a 6 female, so as to achieve the above result. Such exercise should be done within a period of four weeks from the date of passing of this order.
This writ application is, accordingly, disposed of."
It is next argued by the petitioners that the order dated 13th May, 2016 (supra) not having been complied with by the DPO/Respondent, the alleged non- compliance was brought to the notice of the Court by filing CPAN 1226 of 2008. The Contempt Application was disposed of by the Hon'ble Single Bench vide its order dated 17th September, 2010 recording the stand of the DPO/Respondent as follows:
"I am absolutely satisfied from the affidavit-in-opposition filed by the alleged contemnor that my order dated 13th May, 2010 has been complied with in its letter and spirit. The learned counsel for the alleged contemnor expresses apology that there is some delay in compliance with the order. Such apology is accepted considering that the government machinery may have taken some additional time to comply with an order of this nature".7
It is further pointed out to this Court that the panel was thereafter prepared by the SSM, South 24- Parganas vide Memo dated 31st August, 2010 and the petitioners appointed from the said panel in compliance with the stand taken before the Hon'ble Single Bench as recorded by the order dated 17th September, 2010 (supra) in compliance with the parent direction dated 13th May, 2010 (supra).
It is submitted that the petitioners therefore are not bound by the alleged cut-off date of 22nd July, 2010 as stated at Paragraph 8 of the Writ Petition since the engagement of the petitioners directly emanates from the parent order dated 13th May, 2010, which is prior to the Memo dated 22nd July, 2010.
In any view of the matter, it is submitted by the petitioners that the Affidavit-in-Opposition filed on behalf of the DPO/Respondent has the tendency of misleading this Court since, by an order dated 16th November, 2010 of the School Education Department, Government of West Bengal, it was, inter alia, observed as follows:
"4. In terms of the observations of Finance Department order under their U/O No. 1429 Gr.-8
'P' dated 23-4-2010 and in continuation of this Department NO SE (P)/PBRPSUS/ADMN/9/04-05 dated 9-6-2010 it is further ordered that all Para Teachers, VRPs and Siksha Bandhus now working on contractual basis under the PBSSM will be engaged by the Government through the District Project Officer, Sarba Siksha Mission as per procedure laid down at Para-'2' hereinabove and will continue to remain so engaged under contractual basis till attainment of the age of 60 years"
The petitioners argue that the order impugned dated 4th March, 2016 is without application of mind to the totality of facts and circumstances which ought to have been noticed by the DPO/Respondent since the SSM, South 24-Parganas stood continuously represented before the Hon'ble Single Bench in the proceedings commencing with the order dated 13th of May, 2010 in W.P.20943 (W) of 2008.
It is submitted that even if the Memo dated 22nd of July, 2010 of the School Education Department is noticed, as contended on behalf of the DPO/Respondent vide Paragraph 8 of the Affidavit-in- 9 Opposition (supra), such Memo clearly indicates that Para Teachers duly engaged previously will continue to so engaged till attaining sixty years of age.
It is the specific case made out by the petitioners that in view of the order dated 13th of May, 2010 and 17th of September, 2010 (supra), there has been due fulfilment of appointment norms qua the petitioners as Para Teachers prior to the Memo dated 22nd of July, 2010 (supra). Therefore, it is totally wrong on behalf of the DPO/Respondent to contend that the petitioners were engaged only on 23rd September, 2010 for a period of one year.
On behalf of the State-respondents appearance is put in by Mr. Manas Kumar Sadhu, Learned Advocate.
Mr. Sadhu seeks to rely on the contentions in the Affidavit-in-Opposition. The attention of this Court is drawn to Paragraph (d) of the Affidavit-in-Opposition at pages 3 and 4 thereof which refers to a purported appeal filed by the DPO/Respondent against the order dated 13th of May, 2010 and numbered as M.A.T 616 of 2011. It is submitted that the appeal is still pending for adjudication. However, no papers in connection with the appeal could be provided by Learned State Advocate. 10
Having heard the parties and considering the materials placed, this Court is required to first deal with the contention of the State-respondents/the DPO that there is an appeal which is pending for adjudication since 2011. This Court notices that the order dated 13th of May, 2010 was complied with in no uncertain terms by the alleged Contemnors/the DPO as recorded by the order dated 17th of September, 2010 (supra) in the contempt application. Upon the satisfaction and will expressed by the Hon'ble Single Bench, the panel dated 31st of August, 2010 engaging the petitioners as Para Teachers was treated as valid and confirmed.
Therefore, on the basis of the declared record tracing the genesis of the engagement of the petitioners to the parent order dated 13th May, 2010, this Court cannot be satisfied with the stand taken by the State- respondents that after such compliance an appeal was filed and this Court cannot be enlightened in any manner whatsoever today in 2018 of the details of the pending appeal of 2011.
On the issue of appointments of the petitioners relating to a period prior to 22nd of July, 2010, this Court reiterates its view that the engagement of the petitioners 11 was judicially tested and their validity upheld by the orders dated 13th of May, 2010 and 17th of Setpember, 2010 (supra). Even otherwise the Memo dated 16th of November, 2010 at Paragraph 4 thereof of the School Education Department, Government of West Bengal (supra) permits the Para Teachers so engaged to continue on contractual basis till attainment of the age of sixty years.
The factual position is therefore unmistakable that the petitioners were treated to be part of a valid panel directed to be aggregated and selected by the DPO/Respondent prior to 22nd July, 2010 on the strength of the order dated 13th of May, 2010. In the conspectus of the above facts, the order impugned dated 4th of March, 2016 betrays an utter non-application of mind.
The order of 4th March, 2016 is also knee-jerk in its approach in the light of the fact that suddenly in 2016 without considering any or all of the above points, the DPO/ Respondent came to the conclusion that there was a consultation among the stake-holders at the District level and, such consultation has yielded a negative result for the petitioners. 12
In the backdrop of the above discussion, this Court must therefore hold that the order impugned dated 4th of March, 2016 does not survive and accordingly stands set aside.
Since each of the assumed stakeholders being the State Project Director, the District Level Selection Committee and the District Level Project Officers were part of the consultative mechanism behind the order of 13th of May, 2010, this Court considers it to be an unworthy exercise to remand the matter back to the assumed stakeholders (supra) at the District level.
Accordingly, the Respondent No.2/the Commissioner of School Education will now take a responsible decision on the issue in the light of the above discussion, if necessary, after affording an opportunity of hearing to the petitioners and any other party who, in the opinion of the Respondent No.2, deserve to be heard.
It is expected that the decision of the Respondent No.2/the Commissioner of School Education shall be taken not later than a period of eight weeks from the date of communication of this order. 13
WP No. 21353 (W) of 2016, WP No.20871 (W) of 2016 and WP No.15507 (W) of 2017 stand accordingly allowed.
Urgent Photostat certified copy of this order, if applied for, be handed over to the parties upon compliance of necessary formalities.
(Subrata Talukdar, J.)