Calcutta High Court (Appellete Side)
Babita Sarkar vs The State Of West Bengal & Ors on 24 June, 2022
Author: Abhijit Gangopadhyay
Bench: Abhijit Gangopadhyay
24. 06. 2022
BP WPA 5406 of 2022
Sl 441 & 442 With
Court No. 17 CAN 1 of 2022
Babita Sarkar
Vs.
The State of West Bengal & Ors.
With
WPA 12270 of 2021
With
CAN 1 of 2022
Sabina Yeasmin & Ors.
Vs.
The State of West Bengal & Ors.
Mr. Bikash Ranjan Bhattacharya, Sr. Advocate
Mr. Firdous Samim
Ms. Gopa Biswas
Ms. Mousumi Hazra
..for the petitioner.
Mr. Bikash Ranjan Bhattacharya, Sr. Advocate
Mr. Sudipto Dasgupta
Mr. Bikram Banerjee
Ms. Dipa Acharya
Mr. Arka Nandi
Mr. S. Nayek
..for the petitioners in
WPA 12270 of 2021.
Mr. Billwadal Bhattacharya, Ld. Assistant
Solicitor General
..for CBI.
Mr. B.P. Vaisya
Mr. Arindam Chattopadhyay
..for the State.
Mr. Supriya Chattopadhyay
Mr. Samir Kumar Ghosh
Mr. Jaydip Banerjee
..for the State in
WPA 12270 of 2021.
2
Mr. L.K. Gupta, Sr. Advocate
Mr. Kishore Dutta, Sr. Advocate
Dr. S.K. Patra
Ms. S. Dubey
..for SSC.
Mr. Biswarup Bhattacharya
Mr. Subhankar Nag
..for the added respondent.
Ms. Koyeli Bhattacharya ..for the Board.
Re: WPA 5406 of 2022
1. In this matter this court has already removed Ms. Ankita Adhikary as a teacher of Indira Girls High School as she was brought in the waitlist (WL, in short) shamelessly by the School Service Commission by inducting her in WL in a manner unknown to law. The petitioner's service as a School Teacher was stolen by the responsible officers of the School Service Commission and definitely by the responsible officers of the Department of Education of this State, as without their manipulations another candidate Ankita Adhikary would not have been the first WL candidate when initially Ankita was nowhere in the scene. 20 (twenty) WL candidates were there. After smuggling Ankita in the WL the petitioner became the 21st WL candidate as the unqualified candidate 3 Ankita Adhikary was given the 1st place amongst the 20 WL candidates, whom the job of a teacher in a School was given by issuing recommendation letter and appointment letter. In the state of affairs as to employment of teachers in schools in this state now it is not surprising that Ankita Adhikary is the daughter of the Minister Mr. Paresh Chandra Adhikary.
We have heard about theft of gold, cash, and several other things and even in Bengali Phrase also পু র চু ির (theft of a pond) sarcastically, but before this we never heard theft of service. There was absolutely no fair and legal reason for bringing Ms. Ankita Adhikary in the WL as WL rank no.1 wherefor out of the original, true and correct WL 20 candidates, original WL rank no.20 became WL rank no.21. The WL rank no.21 who has been displaced from rank no.20 for the above reason is the petitioner here (Babita).
2. From the documents annexed to the writ application and from the pleadings and also from the submission made on behalf of the School Service Commission it became clear to this court that most illegally said Ankita for the reasons best known to the authorities was brought in the WL 4 wherefor the petitioner Babita became the 21st candidate in the WL and therefore I am compelled to say that the petitioner's service was stolen by some white-collar criminals who were in responsible posts under the Government in the education department, including the Commission.
3. In the meantime by order of this court Ankita has been removed from the post of teacher. How this Ankita was brought in serial no.1 of WL and what were the factors really behind it, is now a matter of investigation by CBI.
4. Now the petitioner (Babita Sarkar) should get back her stolen service with proper compensation and she has to be recommended and appointed in the vacant post where Ankita joined by recommendation of the School Service Commission and by issuance of appointment letter by the West Bengal Board of Secondary Education. This court was waiting for quite sometime to see whether the Commission recommends the petitioner i.e. Babita Sarkar in the said post i.e. where Ankita joined. But till date the Commission has not taken any step in this regard and, therefore, I direct the Commission to issue recommendation letter to the petitioner by 27th June, 2022 and I direct the West Bengal Board 5 of Secondary Education to issue appointment letter to the petitioner by 30th June, 2022. I also direct the Commission to send a copy of the recommendation letter to the Board by 28th June, 2022.
5. The petitioner Babita Sarkar is granted ten days time from 30th June, 2022 to join the said vacant post where said Ankita Adhikary joined and was subsequently removed by this court. The qualification of the petitioner matches with the requirements of the post.
I also direct the concerned District Inspector of Schools to give approval to the petitioner's appointment by seven days from her joining in the said school.
The school shall take all necessary steps for her joining and she shall be given classes according to the routine of the school and shall get the salary from the date she would join.
6. In the meantime by order of this court Ankita Adhikary has deposited a sum of Rs. 7,96,422/- as the first installment of her net received salary working in the stolen service with the Registrar General of this court. Here, I hold that Ankita was not in the original WL was definitely known to her 6 wherefor the whole service-stealing-game took place and her name was smuggled in the second WL where she became the 1st WL candidate and Ankita knew fully well that she was joining in a school depriving one candidate. Ankita's father is still the Minister of State of Education of West Bengal.
7. The Registrar General is directed to hand over the entire money deposited by Ankita with interest accrued thereon, if any, to the petitioner within a period of ten days from the date of communication of this order to him. This money is to be given to the petitioner as compensation because of the fact that actually Babita was entitled to work in the post from the date or even before the date of joining of Ankita in the school. The second installment of the amount shall also to be deposited by Ankita Adhikary with the Registrar General and necessary order for such handing over of the said amount of money to the petitioner as compensation will be passed by this court at a later stage. Babita's service was stolen; she was not allowed to work in the school because of the highly placed officials as indicated above and it is established from the facts and circumstances of the case that it would be impossible for the petitioner to get the amount of 7 money to which she is actually entitled to even as the writ application ultimately has succeeded and therefore, she should get the compensation for the period for which her service was stolen and she was not allowed to work in the school.
Principle analogous to 'special equity' is applicable here.
Unless, this compensation including the second i.e. last installment which Ankita has been directed to deposit with the Registrar General of this Court is given to the petitioner as compensation, this court will fail to act according to the principles of justice equity and good conscience. The petitioner would never be able to realize the compensation for her for the above amounts though she was illegally deprived form it. The mental agony and pain of the petitioner after her service was stolen has also been considered by this writ court including the petitioner's tears in her eyes for such deprivation of job done by the above miscreants.
8. The petitioner shall also get all notional benefit from the date Ms. Ankita Adhikary joined the school as if the petitioner joined the school on that date.
9. I make it clear that as the very appointment of Ms. Ankita Adhikary (I.e. the Minister's daughter) was 8 extremely and extremely illegal, she is not entitled to any amount of money because the fruits of illegality cannot be enjoyed by her which is a fundamental principle of justice, equity and law.
10. The daughter of the Minister Ankita Adhikary's service in the School cannot be equated with 'begar' and any similar form of forced labour as she was also a conspirator along with others in stealing the service of the petitioner. 'Begar' connotes forced worked of any person or persons without any remuneration. Nobody forced Ankita to give her labour in teaching; she did it on her own and voluntarily being a conspirator along with others in stealing the employment of the petitioner. Therefore, the Fundamental Right under Article 23 of the Constitution of India (i.e. right against exploitation) does not come into play here as nobody exploited Ankita. However, if Ankita can prove that her working in the school was begar or forced labour, she can realize the money she has been directed to deposit by this court (if she does not fail to deposit the last installment) from the officials of the School Service Commission after proving that she did not know anything about the theft of the petitioner's service and such realization 9 of money, if there is any, shall be realized from the pocket of the above mentioned white-collar criminals and not a single furthering in this respect shall be spent from the state exchequer.
11. I also accept Mr. Bikash Ranjan Bhattacharya's submission that this is also to be considered as unjust enrichment of Ankita Adhikary because Ankita was not at all entitled to any amount of money and her work in the school was clearly and wholly illegal which should not be recognised by any authority under the law.
12. In this respect Mr. Biswarup Bhattacharya, learned advocate for the added respondent Ms. Ankita Adhikary, submits that as they have not used any affidavit and there was also no such direction they are not admitting any fact.
13. Such direction was not required as the illegality was like a day light which enlightened a dark room full of some nasty worms and in view of the concrete facts of illegality which has come before this court there was no requirement of calling for any affidavit when the Chairman of the Commission said that Ankita Adhikary got much lesser marks than that of the petitioner and the said Ankita Adhikary did not appear in any interview conducted by the 10 Commission which the Chairman found from the documents and from his Assistants of the server room of the Commission.
Here I must say that the present Chairman of the Central School Service Commission has performed his duty honestly and diligently in intimating the material facts to this court.
14. Today, Mr. Biswarup Bhattacharya submitted that his client may have some case somewhere else in this matter and he referred to the question of interview.
15. Mr. Gupta, Mr. Dutta and Dr. Patra, learned advocates appearing for the Commission has intimated this court today again that no interview was held for Ms. Ankita Adhikary. This is not their categorical statement only it was also the statement of the Chairman of the Commission on the very first day when the order was passed in this case. This matter is adjourned till 20th July, 2022 for further hearing.
(Abhijit Gangopadhyay, J.) Later:
Mr. Biswarup Bhattacharya for Ankita Adhikary has prayed for stay of operation of this order which I 11 have considered and I reject it with a cost of Rs. 100/-
to be paid to the petitioner by fifteen days from date.
(Abhijit Gangopadhyay, J. )