Calcutta High Court (Appellete Side)
Smt. Sabita Roy vs State Of West Bengal & Ors on 17 August, 2015
Author: Dipankar Datta
Bench: Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT : HON'BLE JUSTICE DIPANKAR DATTA
CAN 1667 of 2012
in
W.P. 22618(W) of 2011
Smt. Sabita Roy
v.
State of West Bengal & ors.
with
W.P. 4888(W) of 2007
Puspa Roy
v.
State of West Bengal & ors.
For the petitioner : Mr. Anup Mukhopadhyay,
in W.P. 22618(W)/2011 Mr. Anirban Saha.
For the respondents 1 to 3 : Mr. Ziaul Islam.
in W.P. 22618(W)/2011
For the petitioner in : Mr. Amal Baran Chatterjee,
W.P. 4888(W)/2007 and Mr. S. Chatterjee.
the respondent no. 10
in W.P. 22618(W)/2011
For the applicant in CAN : Mr. Piyush Chaturvedi,
1667 of 2012 Mr. Ardhendu Sekhar Biswas.
Heard on: March 31, 2015
Judgment on : August 17, 2015
1. A vacancy on the post of Class IV staff (matron) in Radhikapur High School, P.S.
Kaliaganj, District - Uttar Dinajpur (hereafter the school) fell vacant. By
operation of the relevant roster, appointment on the post had to be made from
amongst candidates belonging to the scheduled caste. The secretary of the
managing committee of the school approached the District Inspector of Schools
(S.E.), Uttar Dinajpur (hereafter the DIoS) for prior permission to fill up such
vacancy. The DIoS vide memo dated April 5, 2005 granted prior permission to the
secretary to proceed with the recruitment process in accordance with the
guidelines issued by the Director of School Education vide memo dated
November 1, 1999. Upon receipt of the prior permission, the secretary
approached the Employment Officer-in-Charge, District Employment Exchange,
Raiganj, Uttar Dinajpur to sponsor names of eligible SC candidates. The
employment officer vide memo dated May 11, 2005 sponsored the names of 20
candidates, starting with Sri Amalesh Kr. Roy and ending with Sri Animesh Roy.
2. It would appear from the list of eligible candidates sponsored by the Employment
Officer-in-Charge that the said Amalesh Kr. Roy was registered on January 4,
1985 whereas the said Animesh Roy was registered on December 21, 1988 and
the other 18 (eighteen) candidates were registered in between January 4, 1985
and December 21, 1988. The list included the name of Smt. Sarama Baishya
(Mali) (hereafter Sarama) at serial no. 6. She is the applicant in CAN 1667 (an
application for addition of party), which I propose to decide while deciding the
writ petitions being W.P. 22618(W) of 2011 and W.P. 4888(W) of 2007.
3. Smt. Sabita Roy (hereafter Sabita) and Smt. Puspa Roy (hereafter Puspa), the
petitioner and the respondent no. 10 in W.P. 22618(W) of 2011 respectively, were
not sponsored by the employment exchange since both of them were not
registered between 1985 and 1988. While Sabita was registered with the
employment exchange in 1990, Puspa was registered in the year 2000. Both
Sabita and Puspa had the occasion to move independent writ petitions before
this Court, being W.P. 12047(W) of 2005 and W.P. 12045(W) of 2005 respectively.
There is some controversy as to whether Puspa in fact moved W.P. 12045(W) of
2005 or not. It has been contended by Mr. Chatterjee, learned senior advocate
representing Puspa that W.P. 12045(W) of 2005 had not been moved by her. He
argued that the signature of Puspa ought to be tallied with her signature
available in other writ petitions/affidavits.
4. Be that as it may, W.P. 12045(W) of 2005 and W.P. 12047(W) of 2005 were
disposed of by a coordinate Bench during the summer vacation of this Court for
the year 2005 by passing identical ex parte orders dated May 30, 2005. One such
order reads as follows:
"The respondent authorities are directed to allow the petitioner to appear at
the interview if the petitioner fulfils all the eligibility criteria and if it
appears that the juniors to the petitioner in respect of registration before
the Employment Exchange have been sponsored by the Employment
Exchange and if the petitioner belongs the same category with that of the
other sponsored candidates then and then only the authorities will allow
the petitioner to appear at the interview which will be scheduled to be held
on 5-6-05.
The writ application is, thus, disposed of without, however, any order as to
costs.
Let a plain copy of this order duly countersigned by Assistant Registrar
(Court) be given to the learned Advocates appearing for the parties."
5. It is not available on record as to whether any interview was conducted on June
5, 2005 or not, as noted in the order dated May 30, 2005 extracted supra.
However, it appears from the written notes of arguments filed on behalf of
Sarama that the interview scheduled on June 5, 2005 was postponed and
rescheduled on August 10, 2008.
6. An interview appears to have been conducted on August 10, 2008 which was
attended by 14 (fourteen) candidates including Sarama, Puspa and Sabita. A
panel was prepared wherein Sarama allegedly figured at the first position. Since
the panel was not forwarded by the managing committee of the school for
approval, Sarama presented W.P. 31850 (W) of 2008. The same was disposed of
on April 6, 2009 by a coordinate Bench with direction upon the DIoS to treat the
writ petition as a representation and to take a decision on the issues raised
therein within eight weeks from date of communication of such order.
7. The DIoS by his memo dated July 24, 2009 rejected the claim of Sarama on the
ground of non-availability of a suitable candidate, which was earlier conveyed to
the DIoS by the managing committee vide memo dated September 29, 2008. The
order of the DIoS was subjected to a further challenge by Sarama by presenting
W.P. 16960 (W) of 2009, which was disposed of by me on December 7, 2009 by
passing the following order:
" None appears for the school authorities despite service Affidavit of
service filed in Court today shall be retained with the records.
The petitioner was a contender for appointment to the post of
'Matron' in the school. It appears that the Managing Committee of the
school vide memo dated 29.09.08 conveyed to the District Inspector of
Schools (SE), Uttar Dinajpur to the effect that the process of selection
dated 10.8.08 stands cancelled due to non-availability of a suitable
candidate. The District Inspector in the impugned order dated
24.07.2009 has referred to such fact and has come to the conclusion
that since no panel had been prepared by the Selection Committee,
question of its approval does not arise.
Mr. Chaturvedi, learned Advocate appearing for the petitioner while
assailing the impugned order contends that the District Inspector ought
to have enquired from the school authorities as to how they could form
an opinion that none of the contenders for the post of 'Matron' were
suitable. According to him the recruitment rules provide that a
candidate aspiring for appointment as 'Matron' must be Class - VIII
passed and must be within the age limit prescribed by the relevant
rules. There is no other criteria laid down which is required to be
fulfilled. In such situation on the basis of the ipse dixit of the school
authorities, the District Inspector ought not to have been swayed.
Mr. Roy Chowdhury, learned Advocate representing the District
Inspector contends that since the Managing Committee is the
appointment authority and the process initiated by it could not result in
selection of a suitable candidate, he had no other option but to hold
that the question of approval of panel does not arise. No case for
interference, according to him, has been made out.
Since none has appeared for the Managing Committee or the
Headmaster of the school despite service, their version is not available.
Having heard learned Advocates for the parties and in view of the
issue involved, this Court considers it unnecessary to keep the writ
petition pending. This Court is of the further view that the submission
of Mr. Chaturvedi deserves to be accepted.
In terms of the extant recruitment rules, the qualifications for
appointment of a Group - D staff in a School, apart from the age
criterion, are:
(i) a certificate of passing Class VIII from a recognised School;
(ii) ability to read and write Bengali (or Nepali in case of hill areas).
Recruitment of a Group - D staff of a School, the rule further provides,
shall be made on the basis of selection (direct recruitment). So far as
allotment of marks is concerned, the rule provides as follows:
'(3) For selection of a Group D staff ......
(a) full marks for possessing the skill of reading shall be 5 marks;
(b) full marks for possessing the skill of writing shall be 5 marks;
(c) full marks for the interview shall be 5 marks.'
That the post of 'Matron' belongs to Group - D has not been disputed at
the bar.
It is well known that eligibility for a post and suitability for
appointment thereto are distinct. One may not be found suitable for
appointment despite being eligible i.e. possessing requisite criteria.
In the present case the petitioner was a Class - VIII pass Scheduled
Caste candidate and also within the age limit. There can be no dispute
on the score of her eligibility to be considered for the post. So far as
suitability is concerned, she had to be assessed along with other
candidates on the skills of reading and writing and also on the basis of
her performance in the interview. The intimation sent by the school
authorities to the District Inspector does not reflect with any degree of
clarity as to whether the candidates aspiring for the post failed to read
or write Bengali as so to compel the Selection Committee members to
form an opinion that they are not suitable for the post at all. The
District Inspector did not call for the records to satisfy himself that tests
were conducted for finding reading and writing skills. To this extent, the
District Inspector is found to be remiss in his duty. Instead of relying on
the intimation sent by the school authorities, he ought to have called for
the records from the Managing Committee to find out the extent of
unsuitability of the candidates aspiring for appointment to the post in
question. By not calling upon the Managing Committee to satisfy him on
this point, the District Inspector appears to have abdicated his duty of
applying his mind. Experience has shown that selection process is
anyhow shown to have terminated because of unsuitability of
candidates with a view to start such process again to accommodate a
candidate of the Managing Committee's choice. To guard against such
malpractice the District Inspector ought (sic to) have been vigilant and
exercised the power of scrutiny vested in him by law. Regrettably, this
exercise has not been done. The impugned order, therefore, stands set
aside.
He shall now proceed to call upon the Managing Committee to place
before him papers/documents/ records for the purpose of ascertaining
whether the opinion communicated regarding unsuitability of
candidates is substantiated by the records or not. In the event the stand
of the Managing Committee is accepted by him, he shall pass necessary
order recording reasons in support thereof. On the contrary if he finds
that the Managing Committee has abandoned the process mid way, he
shall direct the Managing Committee to complete the process in
accordance with law with those candidates who had participated in the
process.
The writ petition stands disposed of with the above direction.
There shall be no order as to costs."
8. The DIoS complied with the aforesaid order by passing a fresh order dated June
11, 2010, whereby the managing committee was directed to hold a fresh
interview. Operative part of the said order dated June 11, 2010 is set out below:
"The documents were thoroughly examined. The S/A was asked to
submit the meeting resolution book. During examination of meeting
resolution book it was seen that one page/pages of resolution book
in between the last page signed by Secretary Managing Committee
and the 1st page of resolution adopted in the selection committee
meeting held on 10-08-2008 has/have been torned and removed
from the book. The resolution book has no page number which is
irregular. It is assumed from the written resolution that a panel had
been prepared and by torning the page/pages it was written that the
members of selection committee did not come to the uniform opinion
about the suitability of the candidates. Thus no panel was prepared.
After thorough examination it was decided that the papers need to be
verified by the members of selection committee. The submitted
papers and the resolution books had been taken in the custody of
D.I./S(SE) and again it had been sealed in presence of T.I.C. and
Secretary.
All the selection committee members were called upon on 20-05-
2010 and in presence of secretary, T.I.C and other selection
committee members, the sealed packet once again opened. The
selection committee members were asked to write down their opinion
about the preparation of panel on that very date of interview. They
submit differently. Once opines that panel was prepared and signed
by all & other opine that panel was not prepared.
Definitely the opinion of M.C/Selection Committee regarding
unsuitability of candidates is not substantiated by the records.
Though the records contains the individual score sheets but there
was every possibility of changing up of the scores written by
individual interviewer in the long time already passed away to
accommodate a candidate of Managing Committee's choice.
Now, verifying all the records, documents and keeping in mind all
law points, it is now decided that the candidates were not unsuitable
and the selection process was not completed. Being a vigilant officer
and exercising the power of scrutiny vested on the undersigned it is
decided now that the selection process has to be completed freshly.
M.C is directed to take fresh interview and written test within 1
month in terms of extant recruitment rules as followed. For the
purpose, the present managing committee will form new selection
committee and only the candidates who had participated in the
selection process will be eligible as candidates for the post.
It is now disposed off. All concerned be informed."
9. The said order dated June 11, 2010 of the DIoS was again subjected to challenge
in W.P. 14113(W) of 2010 by Sarama. The writ petition was again considered by
me and disposed of by an order dated July 28, 2010, reading as follows:
"The order of the District Inspector of Schools (SE), Uttar Dinajpur
dated 11.06.2010 passed in compliance with this Court's order dated
07.12.2009 on the petitioner's earlier writ petition is under challenge
herein.
The records of selection have been placed before this Court by Mr.
Banerjee, learned Advocate for the District Inspector. Although this
Court agrees with all the findings recorded by the District Inspector,
there is room for disagreement with one finding. The District
Inspector has observed that due to lapse of time there is possibility of
changing the scores written by the individual selectors for
accommodating a candidate of the Managing Committee's choice.
I have looked into the individual score-sheets purported to have been
prepared by the selectors on 10.08.2008. There is no scope to come to
any finding that the score-sheets have either being manipulated or
doctored at a subsequent point of time. The finding appears to be
based on 'no evidence'.
Interest of justice, in my view, would be best served if the selectors are
called upon by the District Inspector to prepare the panel based on the
marks reflected in such sheets, since there is no dispute that all of
them independently assessed the merits of the aspirants for the posts
and awarded marks. It is ordered accordingly.
The District Inspector shall proceed in the manner directed above. The
selectors shall prepare a panel in the presence of the District Inspector
and shall forward the same to the Managing Committee of the School.
The Managing Committee, on examination thereof, shall send the
panel along with related papers to the District Inspector for his
approval. The District Inspector upon receipt of all the papers shall
decide the question of according approval to the panel, strictly in
accordance with law.
The District Inspector shall take expeditious steps to have the exercise
indicated above undertaken by the respective persons, who shall
cooperate with him.
The writ petition stands disposed of with the above directions. There
shall be no order as to costs.
The records are returned to Mr. Banerjee.
Copy of the score-sheets of the individual selectors shall be retained
with the records duly countersigned by the Assistant Court Officer."
10. The order dated July 28, 2010 was carried in appeal by Sarama by filing a writ
appeal (MAT 1084 of 2010); however, the said writ appeal was dismissed by an
Hon'ble Division Bench on September 10, 2010. Ultimately the Hon'ble Supreme
Court was also approached by Sarama but without success.
11. In the meanwhile, it appears that W.P. 4888(W) of 2007 came to be presented
before this Court by Puspa on March 9, 2007. True to the submission of Mr.
Chatterjee, noted above, Puspa in such writ petition has not said that she had
earlier moved a writ petition before this Court for permission to attend the
interview which was scheduled to be held on June 5, 2005. She pleaded that the
managing committee of the school had received prior permission to recruit a
class - IV staff, the vacancy being reserved for scheduled caste, and with that in
view had requisitioned names of eligible candidates from the district employment
exchange and the list of candidates sponsored by such exchange did not include
her name. Referring to the fact that the West Bengal Schools (Control of
Expenditure) Act, 2005 had been enacted whereunder the State Government had
framed the West Bengal Schools (Recruitment of Non-teaching Staff) Rules, 2005
(hereafter the 2005 Rules) ordaining that only the candidates sponsored by the
employment exchange could be considered, she pleaded that a writ petition was
moved challenging the vires of Rule 8(5)(a) of the 2005 Rules and against the
refusal to pass any interim order, a writ appeal being MAT 3652 of 2006 was
preferred together with an application for stay whereupon an order was passed
by an Hon'ble Division Bench on November 7, 2006 directing that the
respondents in the appeal should allow the appellant to appear at the interview,
if the same is conducted during the pendency of the appeal subject to the
condition that the appointment of the appellant, if at all made, would abide by
the result of the appeal. Puspa, therefore, challenged Rule 8(5)(a) of the 2005
Rules and prayed for a declaration that the same is ultra vires the Constitution of
India. She also prayed for an interim order to direct the respondents in the writ
petition to allow her appear at the interview to be conducted for filling up the
post of matron in the said school along with the other candidates on March 18,
2007.
12. Upon hearing learned advocates for the parties, Hon'ble Debashish Kar Gupta, J.
on March 14, 2007 passed the following order:
"Let affidavit of service filed in Court be kept on record. The petitioner files this writ application for a direction upon the respondent authorities to allow her to participate in the interview scheduled to be held on March 18, 2007 for preparation of a panel to appointment Group D staff (under reserved category) in Radhikapur High School, P.O Radhikapur, District-Uttar Dinajpur. The learned Counsel appearing on behalf of the petitioner submits that in accordance with the provisions of clause (5)(a) of Rule 8 of the West Bengal Schools (Recruitment of Non-teaching Staff) Rules, 2005, only the candidates sponsored by the employment exchange concerned have the right to participate in the above interview. In this writ application constitutional validity of the above rule is under challenge. Reliance is placed on an order dated September 21, 2006 passed by a Division Bench of this Court in CAN No. 7295 of 2006 arising out of MAT No. 3687 of 2006. By the above interim order, the appellant was allowed to participate in the interview. Having heard the learned Counsel appearing on behalf of the respective parties, in my opinion, this matter cannot be decided without giving opportunity to the parties to file affidavits. Let affidavit-in-opposition be filed within a period of three weeks from the date, reply thereto, if any, be filed within a week thereafter. Liberty to mention before the appropriate bench for hearing of the matter.
With regard to the question of passing an interim order in this matter, I find that in a similar situation of Division Bench of this Court passed an interim order dated September 21, 2006 in an application being CAN No. 7295 of 2006 arising out of MAT No. 3687 of 2006, allowing the candidate to appear in the interview pending final disposal of the appeal observing that both the balance of convenience and inconvenience as also the question as to the suffering of irreparable loss and injury were in favour of the candidate at that stage. It was the further observation of the above Division Bench of this Court that if the candidate was not allowed to participate in selection process which was going to be held only after two days, then in the event of success of the appellant in that appeal, she would not get any chance to participate in the selection process and the loss that would occur to him could not be compensated by cost.
Taking into consideration the above order as also the facts and circumstances of this case, I direct the respondent authorities to allow the petitioner to participate in the interview scheduled to be held on March 18, 2007 for selection of a candidate in the post of Group D staff (under reserved category) in the above school, if the petitioner is otherwise eligible.
In the event of inclusion of the name of the petitioner in the panel of selected candidates, the same shall not be given effect to without the leave of this Court.
It is made clear that in the event of inclusion of the name of the petitioner in the panel of selected candidates, she will not be entitled to claim any enquiry on such basis in this writ application. Since the constitutional validity of Clause (5)(a) of Rule 8 of the West Bengal (Recruitment of Non-teaching Staff) Rules 2005 is under challenge in this writ application, the Learned advocate-on-record appearing on behalf of the petitioner is directed to serve a copy of this writ application upon the Learned Advocate General, West Bengal.
Leave is granted to the learned advocate-on-record appearing on behalf of the petitioner to communicate this order to the respondent authorities along with a copy of this writ application. The respondent authorities are directed to act on the basis of such communication."
13. Sometime thereafter, Puspa had presented W.P. 10178(W) of 2010 on May 11, 2010. It was pleaded therein that she had attended the interview conducted on August 10, 2008. She was unaware of the fate of the panel prepared pursuant to the interview that was conducted and, accordingly, had submitted a representation before the DIoS on May 3, 2010. Referring to the fact that from a reliable source she had come to learn having secured the 1st position in the panel, a prayer was made for consideration and approval of the panel. Since the representation did not evoke any positive response from the DIoS, Puspa had presented such writ petition claiming, inter alia, the following relief:
"a) A writ in the nature of Mandamus commanding the respondent and/or their agents to approve the panel pursuant to the score sheets prepared by the Members of the Selection Committee in the interview held on 10.8.2008 and also further order commanding the respondents to issue appointment letter pursuant thereto; * * *"
14. This writ petition came up for consideration before me. Since none had appeared for Puspa on June 21, 2010, hearing was adjourned. On June 22, 2010, once again, none appeared for Puspa. Recording the presence of the learned advocates for the State, the writ petition was dismissed for default. No application for recall of such order appears to have been made by Puspa.
15. A fresh panel had been prepared in compliance with the directions passed by me on July 28, 2010 while disposing of the writ petition filed by Sarama. In such panel Puspa, Sabita and Sarama secured the 1st, 2nd and 3rd positions respectively. The DIoS by his order dated June 17, 2011, contained in memo dated June 20, 2011, approved the panel and advised the managing committee to issue appointment letter to the candidate whose position in the panel is first. It is not in dispute that based on such approval, Puspa was offered appointment by the managing committee of the school on July 19, 2011 and she has been continuing to discharge the duty of a matron since then.
16. After Puspa was offered appointment by the managing committee, Sabita complained to the Inspector-in-Charge, Kaliaganj Police Station on August 22, 2011 that Puspa had committed fraud. There were two transfer certificates issued in her favour, one issued by the headmistress of Mohipal High School and the other by the headmistress of Nahit Junior High School (both dated April 7, 1992). It is recorded in both the certificates that Puspa was a student of the certificate issuing school in Class VIII and had passed the annual examination for promotion to Class IX. Accordingly, a prayer had been made by Sabita for launching prosecution against Puspa. The inspector-in-charge did not take any action prompting Sabita to file representations before the DIoS, the Director and other officers in charge of the civil administration of the State as well as the Secretary of the Education Department. Such representations also did not yield any result. Feeling aggrieved thereby, Sabita has presented W.P. 22618(W) of 2011 seeking, inter alia, the following relief:
"a) A writ of or in the nature of mandamus commanding the respondent and their agent and servants to delete the name of the respondent No. 10 from the panel under No. 919 dated 20.6.2011 is annexure 'P-9' Forthwith and further commanding in respondents, their agents and servants be issues appointment letter in favour of the petitioner upon approval of the recasted panel.
b) A writ of or in the nature of Mandamus Commanding the respondents, then agents and servant to for bear for giving the any appointment to the respondents No. 10 to the post of Class IV Staff in the Radhikapur High School and/or alternative not give effect any appointment if already given to the respondent No. 10 pursuant to approval of panel under memo 919 dated 20.6.2011 is annexure 'P- 9'.
c) A Writ of or in the nature of Mandamus Commanding the respondent their, agents men and servants to take appropriate proceeding against the respondent No .10 for practicing fraud and for using fabricated documents."
17. W.P. 22618(W) of 2011 came up for consideration before various coordinate Benches. Ultimately, the same was listed before me on February 9, 2015. My attention was drawn to pages 63 and 64 of the writ petition (two transfer certificates issued in favour of Puspa by Mohipal High School and Nahit Junior High School) by Mr. Mukhopadhyay, learned advocate for Sabita and it was contended by him that Puspa could not have passed out of Class VIII in the same year from two different schools; therefore, it is clear that Puspa had practiced fraud on the authorities.
18. Hearing such submission, Mr. Ziaul Islam, learned advocate who had appeared for the State on a previous occasion was called upon to produce the relevant records relating to approval of the panel that was prepared by the managing committee of the school for appointment on the post of matron. The records were produced on February 23, 2015. It appeared therefrom that the transfer certificate issued by Nahit Junior High School was part thereof, suggesting that Puspa had submitted the same in support of her educational qualification at the time of attending the interview. It was then that Mr. Mukhopadhyay submitted of Puspa having earlier moved W.P. 12045(W) of 2005 (seeking a direction on the authorities of the school to allow her participate in the interview), wherein the transfer certificate issued by Mohipal High School had been annexed. Considering such submission, the file of W.P. 12045 (W) of 2005 was requisitioned and hearing was adjourned till March 3, 2015. On March 4, 2015, the file of W.P. 12045 (W) of 2005 was placed before me. On perusal of page 25 thereof, the submission of Mr. Mukhopadhyay as recorded in the order dated February 23, 2015 was found to be correct. It was at that stage Mr. Chatterjee had submitted that Puspa had not presented W.P. 12045(W) of 2005 at all and that her signature available in the other writ petitions/affidavits should be compared. The signatures have since been compared. It is difficult to form an opinion either in favour of Mr. Mukhopadhyay or Mr. Chatterjee. Opinion of a handwriting expert could have been obtained in respect of the two signatures but having regard to the disclosures made by Mr. Chaturvedi, learned advocate for Sarama, which I propose to refer hereafter, I do not consider it necessary to obtain any report of a handwriting expert.
19. Mr. Chaturvedi appeared on March 23, 2015 in support of the application for addition of party filed by Sarama. He contended that Sarama's name was sponsored by the district employment exchange, whereas neither Puspa nor Sabita was so sponsored; therefore, Sabita and Puspa could not have been called upon to appear at the interview since no candidate junior to Sabita or Puspa in the matter of registration with the employment exchange had been sponsored. The orders dated May 30, 2005 passed on the writ petitions of Puspa and Sabita were referred to in this connection. Mr. Chaturvedi then referred to a list of 20 (twenty) candidates sponsored by the employment exchange to demonstrate that all the sponsored candidates were senior to Sabita and Puspa.
20. It was considering such submission of Mr. Chaturvedi that the list of 20 (twenty) candidates sponsored by the district employment exchange was directed to be placed on record by an affidavit, which has since been complied with.
21. Mr. Chaturvedi contended that although Sarama had an independent right to challenge the panel that was prepared (wherein Puspa secured the 1st position) and approved by the DIoS in her capacity of being the 3rd empanelled candidate, to avoid multiplicity of proceedings she had instead filed the application for addition of party to raise all points that are available to her in law. It was further contended that neither Puspa nor Sabita was entitled to participate in the selection process in view of Rule 8(5)(a) of the Rules. Reference was made to the decisions of Hon'ble Division Benches of this Court (delivered by the same set of learned Judges comprising the Benches) reported in (2008) 3 Cal LT 205 (HC) :
Tanmoy Ramaya Lahiri & ors. v. The State of West Bengal & ors., and (2008) 2 Cal LT 574 (HC) : Tulsi Roy v. Krishanu Roy & ors. A decision of a coordinate Bench reported in (2007) 1 CLJ 505 : Kartik Pandit v. State of West Bengal & ors.
was also placed, where Rule 8 of the 2005 Rules was considered and it was held that apart from employment exchange sponsored candidates, no other candidate can claim any right to participate in the interview. It was next submitted by Mr. Chaturvedi that the order dated July 28, 2010 passed in W.P. 14113(W) of 2010 (the writ petition of Sarama) having attained finality, the DIoS was under an obligation to ascertain the eligibility of Sabita and Puspa to participate in the selection process and on a satisfaction being reached that anyone or both of them were ineligible to participate in the selection process, to strike out their names. It was urged that if illegality in a selection process can be separated/removed and the process to the extent legal and proper can be retained, the entire selection process ought not to be cancelled and Sarama being the sole eligible candidate who was empanelled, appropriate direction ought to follow for recasting of the panel keeping Sarama at the 1st position and, thereafter, to approve such panel in accordance with law. Reliance in this connection was placed by Mr. Chaturvedi on the decisions reported in (2003) 7 SCC 285 : Union of India v. Rajesh P.U., (2006) 11 SCC 356 : Inderpreet Singh Kahlon v. State of Punjab, (2003) 2 SCC 673 : Omkarlal Bajaj v. Union of India, and (1990) Supp SCC 692 : Anamica Mishra v. UP, PSC Allahabad & ors.
22. Reference was also made by Mr. Chaturvedi to the order dated March 14, 2007 on the writ petition of Puspa [W.P. 4888(W) of 2007] wherein it was made abundantly clear that no effect shall be given to inclusion of the name of Puspa in the panel of selected candidates without the leave of the Court. According to him, Puspa could not have been appointed since there was an injunction in operation in relation to consideration of the panel by the DIoS [if it included the name of Puspa, the petitioner in W.P. 4888(W) of 2007]. That apart, it was submitted that Puspa had practiced fraud upon the selectors as well as on this Court and, therefore, cannot claim any equity.
23. Finally, it has been urged by Mr. Chaturvedi that since Sarama was the only candidate amongst the 3 (three) empanelled candidates who had a right to participate in the selection process, she is entitled to be considered for appointment after setting aside the order of approval of panel and appointment of Puspa on the post of matron in the said school.
24. Appearing for Puspa, Mr. Chatterjee contended that she was permitted to appear before the selection committee for interview by the order dated March 14, 2007 and there being no decision of this Court declaring Rule 8(5)(a) of the Rules of 2005 intra vires, participation of Sarama in the selection process cannot be branded illegal. He feigned ignorance with regard to the transfer certificate issued by Mohipal High School and reiterated his submission that no writ petition was moved by Puspa before Hon'ble Pinaki Chandra Ghose, J. (as His Lordship then was). It was also submitted that Rules 8(5)(a) and 8(5)(b) of the 2005 Rules have been struck down by this Court as ultra vires in the decision reported in 2008 (2) CHN 900 : Prabir Kumar Maji v. State of West Bengal & ors., and, therefore, W.P. 4888 (W) of 2007 ought to be allowed by following such decision.
25. I have heard learned advocates for the parties at length and perused the materials on record.
26. Since orders have previously been passed on the writ petitions filed by Sarama and the process by which Puspa ultimately came to be appointed was the result of compliance of one such order, I am of the view that Sarama ought to be impleaded as a respondent in W.P. 22618 (W) of 2011. Office shall make necessary amendment in the cause title of the writ petition to implead Sarama as respondent no. 13. CAN 1667 of 2012 is, thus, allowed without order for costs.
27. On perusal of the files of W.P. 12045 (W) of 2005 (Puspa Roy v. State of West Bengal & ors.) and W.P. 12047(W) of 2005 (Sabita Roy v. State of West Bengal & ors.), it appears that the affidavits accompanying both the writ petitions were sworn by one Safirul Islam claiming to be the authorized agent of the respective petitioners. The advocate-on-record for both Puspa and Sabita was one Ms. Faria Hossain, learned advocate and the writ petitions were moved by Mr. Abdul Alim, learned advocate. Both the writ petitions were affirmed on the same day, i.e. May 20, 2005. Having regard to the serious allegation of fraud committed by Puspa, it would only be just and proper to direct investigation by the police into the complaints lodged by Sabita. However, for the reasons indicated hereafter, I do not feel inclined to make such an order since the facts and circumstances are overwhelmingly against Puspa's appointment being saved and it would not be prudent to rub salt in her wound.
28. The signature of Puspa in the vakalatnama available on the file of W.P. 12045(W) of 2005 has been compared with her signatures in the other writ petitions/affidavits. As has been observed above, prima facie, a view that Puspa did not sign the vakalatnama could be formed on comparison of her other available signatures. But merely because of such reason Puspa cannot derive any advantage. In W.P. 12045(W) of 2005, Puspa laid a claim for participation in the interview for the same post of matron for which Sabita had also expressed interest. Sabita and Puspa were competitors and, therefore, it is too far-fetched to think that Sabita or anyone else would set up Puspa as a competitor in the selection process by persuading her to file a separate writ petition. Two professionals (the advocates) were engaged in filing of W.P. 12045(W) of 2005 and there is nothing on record to accept that the professionals rendered gratuitous service. Puspa has not been able to disabuse my mind that there was no necessity for her to express interest for appointment on the post of matron and, therefore, had no occasion to approach the Court in 2005. If indeed that be so, why Puspa presented the writ petition in 2007 for obtaining an order for attending the interview for the selfsame post of matron has not been explained. Although the signature of Puspa may not tally on comparison, as noticed above, there remains a lurking suspicion that W.P. 12045(W) of 2005 was moved on her instructions but the vakalatnama did not bear her signature. It is difficult to believe that a writ petition was moved on behalf of Puspa before this Court for obtaining an order without any reason at all. Be that as it may.
29. The Primary School Teachers Recruitment Rules, 2001 was under consideration in Tanmoy Ramaya Lahiri (supra) ordaining that only candidates sponsored by the employment exchange maintaining seniority are to be considered. Since the controversy in these writ petitions relate to a secondary school, any decision on consideration of the recruitment rules applicable to a primary school would not be of any guidance and, thus, the decision in Tanmoy Ramaya Lahiri (supra) is distinguishable. In Tulsi Roy (supra), upon consideration of the 2005 Rules, a difference of opinion expressed by the Hon'ble Division Bench with two other decisions of Hon'ble Division Benches reported in (2007) 2 CLJ 105 : Gaya Nath Banshi v. State of West Bengal & ors. and 2007 (4) CHN 499 : Uttam Kumar Maity v. State of West Bengal & ors., led to a reference being made to the Hon'ble the Chief Justice. In view of the reference, the decision of the Full Bench has to be looked into for finding out what the law is.
30. The Full Bench decision on the reference made by the Division Bench in Tulsi Roy (supra) has not been placed before me but its decision is found reported in 2011 (2) CHN (CAL) 1021 : Tulsi Roy v. Krishanu Roy. Three matters were considered by the Full Bench and the following questions were formulated for decision:
"8. Therefore, in all these three matters which are now placed before us, although in the reference no specific point has been formulated, after hearing the learned Counsel appearing on behalf of the parties and after taking into consideration the materials on record, we have, however formulated the following questions for decision in these three writ applications:
1. Whether the principle laid down in the aforesaid case of Excise Superintendent Malkapatnam, Krishna District, A.P. vs. K.B.N. Visweshwara Rao & Ors., reported in 1996 (6) SCC 216 is applicable also to a case of a Government sponsored school.
2. Whether for the post of non-teaching staff of a Government sponsored school, a person whose name has not been sponsored by the Employment Exchange, can file a writ-application thereby praying for allowing him to participate in the process of selection without praying for a direction for advertisement for that post in the newspaper as held by the Supreme Court in the case of Excise Superintendent (Supra).
3. Whether the West Bengal School Service Commission (Selection of Person for Appointment to the Post of Non-teaching Staff) Rules, 2009 is applicable in respect of vacancy where the selection of the selected candidate has been set aside by a Writ Court for non-compliance of the formalities mentioned by the Supreme Court in the case of Excise Superintendent (Supra), notwithstanding the fact that the process of the initial selection for the post concerned started at a point of time, when the aforesaid Rules of 2009 had not come into operation."
31. The first two questions are relevant and the answer given by the Full Bench may, accordingly, be traced.
32. Paragraph 14 contains the answer to the first question reading as follows:
"14. We, therefore, answer the first question formulated by us by holding that the observations of the Supreme Court in the case of Excise Superintendent Malkapatnam, Krishna District, A.P. vs. K.B.N. Visweshwara Rao & Ors. (supra), will be equally applicable to the employment in any educational institutions sponsored by the Government."
33. The second question that was formulated by the Full Bench was answered in the negative by holding as follows:
"17. A person by taking aid of the said decision can most certainly come to a High Court for enforcing the aforesaid direction. But he cannot approach the Court for permitting him to appear at the selection process on the strength of the said decision of the Supreme Court if he simply prays for permitting him to appear at the process of selection but without praying for direction for giving advertisement with the object of avoiding contest with the others, similarly placed with him, who would also apply pursuant to such advertisement. In our opinion, the High Court in such circumstances should reject his prayer. In the cases before us, all the petitioners prayed for direction for giving advertisement but in the case of Tulsi Roy, the learned Single Judge did not pass such direction and disposed of the writ-application on the very first day of moving the same. Thus, in this type of a writ-application, it is the first duty of the Court is to see whether the allegations of the writ-petitioner that he has the requisite qualification for the post concerned. If the Court is satisfied on that aspect then it should verify whether the allegation of the writ-petitioner that no advertisement was given was correct or not. After being so satisfied from the materials on record and after giving an opportunity to contest the allegation, the writ-petition should be disposed of by directing the authority to give advertisement for the post with liberty to the writ-petitioner to apply pursuant to such advertisement."
34. In view of the findings that were reached, the Full Bench set aside the appointment of the selected person in the case of Tulsi Roy (supra) and directed the school authority to proceed afresh in accordance with the new Rules of 2009 as if the post stood vacant on the date of the judgment. It was also directed as follows:
"25.*******Similar direction is given in the two other matters by setting aside the selection if any. If the selected persons have not yet joined, the process of selection should be completed in accordance with the rules which stood effective at the time of initiating the process of selection; otherwise, fresh selection should commence in accordance with the new rules after complying with the formalities prescribed in the new rules."
35. Much the same view as taken by the Full Bench is found in a Division Bench decision reported in 2008 (2) CHN 661 : Radha Giri (Pradhan) v. State of West Bengal & ors. Paragraph 6 of the decision being relevant is set out below:
"6. In view of the aforesaid, we are of the considered opinion that the Trial Court had erred in issuing a positive direction to the respondents that the petitioner be permitted to appear for the interview as no legal right of the petitioner had been infringed. Admittedly, the vacancies were never advertised. Therefore, neither the petitioner nor the respondents had any legal right to be either considered or appointed on the aforesaid posts. Any appointments made are clearly violative of Articles 14 and 16 of the Constitution of India. The appointments would also be contrary to the law laid down by the Supreme Court in the cases of Visweshwara Rao (supra) and Arun Kumar Nayek (supra)."
36. Although the order in Radha Giri (supra) was not one which finally disposed of the appeal of which the Division Bench was in seisin, the law laid down therein may be of useful guidance.
37. Reverting to the factual decision at hand, it would be clear that the managing committee of the school did not publish advertisements inviting all eligible candidates to offer their candidature and to take part in the selection process; on the contrary, selection was confined to the candidates sponsored by the employment exchange and those like Sabita and Puspa who had been permitted to appear before the selection committee on the strength of orders passed by this Court. In view of the law laid down by the Full Bench in Tulsi Roy (supra), no legal right of Puspa and Sabita could be said to have been infringed warranting an order to direct the managing committee of the school to allow them participate in the selection process. In any event, the selection that was conducted by the managing committee of the school confining the same to the candidates noted above, cannot be sustained having regard to such Full Bench decision in Tulsi Roy (supra). Although W.P. 22618(W) of 2011 was presented by Sabita after the Full Bench decision in Tulsi Roy (supra) and she has confined her grievance only in relation to appointment of Puspa on the ground that she has practiced fraud, it is difficult for me to remain a mute spectator when other illegalities have surfaced warranting intervention. The first illegality emanates from non- publication of advertisement; the second is in relation to making an order in favour of Puspa allowing her to appear at the interview without requiring the managing committee of the school to publish advertisement inviting all eligible candidates to offer their candidature; the third is forwarding of the panel to the DIoS for approval; the fourth is approval of the panel by the DIoS; and the fifth and final is allowing Puspa to join despite the subsisting injunction that no further steps were to be taken on the panel prepared by the managing committee of the school. That any action in violation of an order of Court is a nullity is settled law. If any authority is required, one may refer to the decision reported in 1992 Supp (2) SCC 651 : Kihoto Hollohan v. Zachillhu. Puspa has been appointed on the post of matron in clear violation of law and, therefore, she is not entitled to reap any benefit from an action taken in violation of the Court's order.
38. In view of the Full Bench decision in Tulsi Roy (supra), the challenge to Rule 8(5)(a) of the Rules laid in W.P. 4888(W) of 2007 does not call for any decision. However, since Puspa was offered appointment in violation of the interim order and the vacancy on the post was sought to be filled up without wide publicity, the appointment offered to Puspa stands set aside with the further observation that she shall not be entitled to any remuneration for the work put in by her since appointment.
39. Sarama is not entitled to any benefit since the post of matron was not advertised on the basis of the law laid down by the Full Bench in Tulsi Roy (supra). The process for filling up the post of matron should now be undertaken in terms of the Rules that are presently in vogue.
40. As and when fresh process is initiated, Sarama, Puspa and Sabita shall be entitled to offer their candidature by responding within the time limit fixed in the advertisement. However, if any one of them is age barred on the last date for receiving applications, such bar shall not stand in the way of their participation in the process and their candidature shall be considered on merits.
41. W.P. 22618(W) of 2011 and W.P. 4888(W) of 2007, accordingly, stand disposed of. There shall be no order as to costs.
42. Photocopy of this judgment and order, duly countersigned by the Assistant Court Officer, shall be retained with the records of W.P. 4888(W) of 2007. Urgent certified copy of this judgment and order, if applied for, may be furnished to the applicant at an early date.
(DIPANKAR DATTA, J.)