Calcutta High Court (Appellete Side)
Kabita Roy vs The State Of West Bengal & Ors on 30 January, 2019
Author: Debangsu Basak
Bench: Debangsu Basak
1
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present : The Hon'ble Mr Justice Debangsu Basak
W.P. No.603 (W) of 2008
Kabita Roy
-vs-
The State of West Bengal & Ors.
Mr. Ranajit Chatterjee
Mr. Arijit Dey ...for the petitioner.
Mr. Sakya Sen
Mr. Tapas Ballav Mondal ... for the State respondents.
Ms. Anita Khatri ... for the respondent no.4.
Mr. Saikat Banerjee
Ms. Papiya Chatterjee ... for the respondent no.5.
Heard on : January 30, 2019
Judgment on : January 30, 2019
The Court:- The appointment of the private respondent as an Assistant Teacher of a Christian Minority Educational Institution is under challenge in the present writ petition.
Learned advocate appearing for the petitioner relies upon a list of dates. Referring to the list of dates, he submits that, advertisement to the post of an Assistant Teacher, English Language Group in Schedule Caste category was published on July 6, 2006. Such advertisement required applications to be submitted within fifteen days. The petitioner applied to such post on July 15, 2006. The petitioner received a duplicate copy of the call letter on July 26, 2006. The petitioner participated in the interview on July 28, 2006. Apart from the petitioner, two other candidates participated in the interview. He refers to the mark sheet prepared at the interview and submits that, the 2 petitioner stood first therein. The private respondent was the third candidate in the order of merit. He submits that, a panel was prepared by the school authorities and submitted to the District Inspector of Schools for approval. The petitioner was arranged as the first empanelled candidate with the private respondent as the last one in the panel prepared by the school. He refers to the writing dated October 10, 2006 of the District Inspector of Schools. He submits that, there are two versions of such writing. He refers to the writing dated October 10, 2006, as appearing in the affidavit-in- opposition filed on behalf of the District Inspector of Schools as well as a copy of such writing, as obtained by the petitioner under the Right to Information Act, 2005. He submits that, there are material discrepancies between the two writings. Therefore, the writing dated October 10, 2006 cannot be taken as sacrosanct. According to him, the private respondent and the school authorities including the District Inspector of Schools entered into a conspiracy to deny the appointment to the petitioner. The writing dated October 10, 2006 is a product of such conspiracy. Acting in terms of such conspiracy, the school authorities and the District Inspector of Schools went out of their ways and granted appointment to the private respondent. He refers to the interim order dated July 8, 2008 passed in the writ petition and submits that, the appointment of the private respondent is subject to the result of the present writ petition. He relies upon (1976) 1 SCC 311 (Shri Krishnan v. The Kurukshetra University, Kurukshetra) and submits that, once the call letter was received by the petitioner and the petitioner having participated in the selection process, it is not open for the authorities to contend that, the application of the petitioner was belated. He relies upon 2013 (1) CLJ (Cal) 70 (Asok Kumar Malik v. The State of West Bengal & Ors.) and submits that, similar rules as that governing the appointment procedure of a Christian Minority School was construed to mean that, the requirement to apply by way of a registered is procedural and application for 3 appointment cannot be turned down merely on such plea. He relies upon (1990) 2 SCC 653 (Som Raj & Ors. v. State of Haryana & Ors.) in support of the contention that, where there is an element of the discretion involved, such discretion has to be exercised appropriately and must be confined within clearly defined limits. He submits that, the appointment granted in favour of the private respondent be quashed and the petitioner be granted the appointment.
Learned advocate appearing for the respondent no.5 submits that, the advertisement dated July 6, 2006 prescribed a period of fifteen days for the purpose of submitting applications. The petitioner did not submit the application within time. He refers to the order of the Court requiring production of the original records by the school authorities. He draws the attention of the Court to the original records, as produced by the school authorities, and submits that, the application of the petitioner is dated July 25, 2006. Therefore, the petitioner is guilty of making an application beyond the time period prescribed. The District Inspector of Schools correctly pointed out such infirmity in its report dated April 3, 2007. The petitioner did not challenge such report of the District Inspector of Schools. He refers to the prayer made in the writ petition. Therefore, he submits that, there is no infirmity in the appointment granted in favour of the private respondent requiring any interference by the Writ Court. He relies upon (2000) 2 SCC 439 (Commissioner, Bangalore Development Authority v. S. Vasudeva & Ors.) and submits that, since the initial writing of the District Inspector of Schools, which disqualified the petitioner is not under challenge, no relief can be granted to the petitioner.
School and the State authorities are represented.
4The petitioner, the private respondent no.5 and another candidate participated in a selection process for the purpose of appointment of an Assistant Teacher, English Language Group in the Schedule Caste category undertaken by the concerned school. The selection process was initiated by the advertisement dated July 6, 2006. The advertisement prescribed that, applications must be received by the school authorities within fifteen days thereof. The petitioner and the private respondent applied to such post. The application of the petitioner is dated July 25, 2006. Such writing appears from the original application submitted by the petitioner with the school authorities. The school authorities pursuant to the order of the Court, has produced the original records. The parties were afforded inspection of the original records on previous date. The parties have taken inspection of the original records.
Learned advocate appearing for the petitioner submits that, there is an overwriting on the application. The date initially was June 15, 2006 and has since been changed to June 25, 2006. With respect, after perusing the original Application Form, I am not in a position to arrive at a finding that, there is any overwriting on the application of the petitioner warranting an inference that the application is dated June 15, 2006. The application is dated June 25, 2006.
In terms of the advertisement dated July 6, 2006, the petitioner was required to apply within fifteen days thereof. The petitioner did not do so. Subsequent steps taken by the school authorities in issuing the interview letter and holding the interview and marking the petitioner on the basis of such interview, preparing a panel and sending up such panel for approval does not clothe the initial failure of the petitioner to submit the Application Form within time with any legality. Shri Krishnan (supra) is of the view that, where a student has been allowed to participate in an examination, the University 5 cannot take up any plea so as to deny such student the result of such examination. It has held that, the university ought to have exercised due diligence before allowing the student to take the examination. The fact scenario in the present case is different. The petitioner was obliged to apply within time for the purpose of participating in the selection process. The school authorities acted wrongly in considering the application of the petitioner, filed belatedly, to be within time. If such an action is allowed then, the school authorities would be permitted to change the rules of the examination after its commencement. The employer is not entitled to alter the terms and conditions governing the selection process subsequent to the commencement of the selection process. In the present case, the advertisement having prescribed a time limit for submission of applications, such time limit cannot be unilaterally extended by the employer, without reference to the public at large. In the present case, the school authorities not having extended time period for submitting the application by the candidates, is not entitled to consider the application of the petitioner received beyond time prescribed by the advertisement to be within time.
Som Raj (supra) is of the view that, the order of appointment should be in the order of merit of the candidates and that, the list must be in accordance with the rules. In the present case, having allowed the petitioner to participate in the selection process, when the petitioner was not legitimately entitled to do so, the school authorities had submitted a panel for consideration of the District Inspector of School. The District Inspector of Schools detected the anomaly and sent the panel for recasting on April 3, 2007. The decision of the District Inspector of Schools dated April 3, 2007 is not under challenge in the present writ petition. The ratio of Som Raj (supra) if at all, applies in favour of the private respondent. Asok Kumar Malik (supra) is of the view that, the provisions for making an application by registered post is directory and cannot be held 6 to be mandatory. In the present case, the issue as to whether the application was filed within time or not. As noted above, the petitioner did not submit her application within the time period prescribed.
S. Vasudeva & Ors. (supra) is of the view that, the Court must confine itself to the pleadings. In the present case, the Court is not proposing to travel beyond the pleadings and the records produced.
It is the contention of the petitioner that, the call letter is dated July 20, 2006 and therefore, it must be held that, the application of the petitioner is dated July 15, 2006. However, the original records produced before the Court demonstrate that, the interview call letter is dated July 26, 2006. It is signed by the Secretary of the school on July 26, 2006. There is a date of an internal memo given by the school in such call letter. Such internal memo is dated July 20, 2006. Therefore, on the strength of such call letter, it cannot be inferred that, the application of the petitioner was dated July 15, 2006 and July 25, 2006.
In such circumstances, I find no merit in the present writ petition. Interim order stands vacated.
W.P. No.603 (W) of 2008 is dismissed.
There shall be no order as to costs.
Urgent website certified copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
(Debangsu Basak, J.) SR 7