Calcutta High Court (Appellete Side)
Angshuman Mandal vs State Of West Bengal & Ors on 12 February, 2018
Author: Dipankar Datta
Bench: Debi Prosad Dey, Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT : Hon'ble Justice Dipankar Datta
and
Hon'ble Justice Debi Prosad Dey
FMA 1425 of 2011
Angshuman Mandal
v.
State of West Bengal & ors.
For the appellant : Ms. Pampa Dey (Dhabal).
For the respondents 1, 2 and : Mr. Sadhan Kumar Halder,
4 to 6 Mr. Shamim ul Bari.
For the respondent no. 3 : Mr. Ranjan Saha.
Hearing concluded on : January 30, 2018
Judgment on : February 12, 2018
DIPANKAR DATTA, J. :
1. The unsuccessful petitioner in WP 639 (W) of 2011 is the appellant before us, challenging the judgment and order dated July 4, 2011 passed by a learned Judge of this Court while dismissing such writ petition. In the writ petition, the appellant had challenged an order dated September 21, 2006 passed by the Director of School Education (in-charge), West Bengal. The said order had been passed by the director while considering a representation that the appellant had filed in compliance with an order dated June 20, 2006 passed by a learned Judge of this Court while disposing of the appellant's previous writ petition being WP 24832 (W) of 2005.
2. The appellant was an aspirant for appointment on the post of assistant teacher in primary schools within the jurisdiction of the Paschim Medinipur District Primary School Council (hereafter the council). Upon succeeding in the school final examination, he had enrolled himself in Sabrakone Government Primary Teachers' Training Institute in the District of Bankura (hereafter the institute) and claimed to have successfully cleared the course resulting in issuance of appropriate certificate in his favour. The name of the appellant having been sponsored by the relevant employment exchange pursuant to a requisition received from the council, he had taken the written examination conducted by the council and also attended a session of interview. Having noticed that he had not been empanelled for appointment, the appellant had initiated the first round of litigation which terminated with a direction upon the director to take a decision on his representation.
3. In course of hearing before the director, the representative of the council claimed that the appellant had secured admission in the institute on the basis of a fake mark-sheet pertaining to school final examination. The claim of the council was upheld by the director resulting in an order dated September 21, 2006 being passed to the effect that no relief could be extended to him. The learned Judge in the impugned judgment and order assigned the following reasons for dismissing the writ petition:
"A bare perusal of the impugned order dated 21st September, 2006, reveals that the same has been rendered by the Director of School Education, West Bengal, in terms of the specific direction given by this Court in the order dated 20th June, 2006.
The writ court ought not to transpose itself as an appellate authority when a particular authority has performed its obligation to abide by the specific directions given by this Court and rendered a decision in a matter supported with cogent reasons. The discretionary jurisdiction of this Court under Article 226 of the Constitution of India ought not to be invoked in such cases, unless of course, the decision so rendered by the concerned authority is palpably wrong or is arbitrary or perverse or smacks of mala fide motive or has been rendered without adhering to the specific directions given by this Court. In this context, one may refer to a recent judgment rendered by this Court in the case of Amarendranath Mandal - vs - State of West Bengal & ors. reported in AIR 2011 Cal 56.
As observed hereinbefore, the impugned order dated 21st September, 2006, has been rendered in terms of the specific direction given by this Court while disposing of the earlier writ petition and in the facts and circumstances of the case there is no cause for interference and the writ petition is liable to be dismissed and is accordingly dismissed."
4. It would appear from the aforesaid extract that the learned Judge did not examine the grievance of the appellant in any great depth. It appeared to the learned Judge that the director had rendered a decision in terms of the writ court's earlier direction and there being some reasons assigned to support the ultimate conclusion, the grievance of the appellant did not deserve interference.
5. Having regard to such opinion of the learned Judge, it becomes imperative to note what the director said in his order dated September 21, 2006. Relevant portion from such order reads as follows:
"From the original mark-sheet, produced at the time of hearing it appears that he obtained 544 marks out of 900 marks in the M P Examination, 1992. From the office records of this Directorate it appears that two copies of mark-sheets of M P Examination of the petitioner, produced at the time of admission to pry. Trs.' Trg. Institution and for appointment to the post of primary Teacher under Dist. Pry. School Council, paschim Medinipur, differs as per report of the Chairman, paschim Medinipore, vide his Memo No. 4484/....... dt. 19.12.03. This Directorate in terms of Memo. No. 289(a) - Exam dt. 25.6.04 observed that the petitioner got himself admitted into the Sabrakone Govt. Pry. Trs.' Trg. Institute, Bankura on production of fake M P Mark-sheet. As such the Chairman, Paschim Medinipore Dist. Pry. School Council, who is the Chairman of the Selection Committee meant for the selection of candidates for admission into Pry. Trs. Trg. Institute of the district was instructed to lodge FIR against the petitioner."
6. Ms. Dhabal, learned advocate appearing for the appellant contended that none of the documents referred to in the aforesaid extract was made available to him and, therefore, he had no occasion to place his version for consideration of the director in relation thereto.
7. Mr. Bari, learned advocate for the State, had placed for our consideration the documents that were furnished to the department by the principal of the institute. On perusal thereof, we had directed the principal of the institute to be present with all the relevant records vide our order dated April 10, 2017.
8. Mr. Manoj Kumar Panda, Lecturer-in-Charge of the institute remaining personally present in Court on April 19, 2017, submitted that he had been discharging duty as such lecturer-in-charge from 2011 but he was not in a position to produce the application form submitted by the appellant at the time of taking admission in the institute. He was also unable to answer as to how the alleged fake mark- sheet produced by the appellant, which was evidently attested on December 16, 2003, could find place in the records of the institute given the situation that the appellant had secured admission in the institute during the academic session 1999-2000.
9. The plinth of the department's defence is that based on the marks obtained by him in the school final examination, the appellant could not have secured an admission in the institute; and that, in order to secure admission he produced a fake mark-sheet which suggested that he had obtained marks sufficient enough to make him qualified for such admission.
10. As it appears from the mark-sheet at page 36 of the paper book, the appellant had obtained 544 marks in the school final examination. However, from the records that were furnished to the department by the principal of the institute, it reveals that there is a mark-sheet issued in favour of the appellant by the West Bengal Board of Secondary Education suggesting that he had obtained 659 marks. If indeed the appellant secured 544 marks in the school final examination, he would not have been eligible for admission in the institute since the last candidate who was granted admission had secured 70.77% marks.
11. Ms. Dhabal has emphatically denied that the appellant had placed before the authorities of the institute the mark-sheet suggesting that he had obtained 659 marks. According to her, the appellant had along with his application submitted copy of the mark-sheet showing that he had obtained 544 marks.
12. Ms. Dhabal also placed reliance on an unreported decision of a coordinate bench of this Court dated January 12, 2017 in MAT 1775 OF 2015 (State of West Bengal & ors. v. Anupam Mondal) wherein it was held that if at all a candidate acquired training qualification without being eligible to be admitted to the relevant course, so long such certificate is cancelled/revoked, ~ the authorities would not be justified in refusing to accord approval of admission on the specious ground that he was not eligible to take admission.
13. Mr. Halder, learned advocate leading Mr. Bari, contended that no mala fide having been alleged, the writ court was justified in declining relief to the appellant by dismissing his writ petition.
14. Mr. Saha, learned advocate for the council adopted the submissions of Mr. Halder and also submitted that since the appellant was guilty of practising fraud, he was rightly denied relief by the learned Judge.
15. We have heard the learned advocates for the parties and perused the materials on record.
16. Whether or not the appellant had stolen a march while gaining admission in the training course by producing a fake mark-sheet could have been cleared if only the application form submitted by him together with copy of the mark-sheet annexed to it was produced. Mr. Panda has conceded that despite vigorous search in the institute, such application could not be traced out. Copy of the mark-sheet that the appellant had submitted along with the application form, as required, has also not been produced. What has been produced is a copy of mark-sheet attested on December 16, 2003 by the principal of the institute. Mr. Panda could not explain as to how the principal could attest such mark-sheet without looking at the original which has never been produced. Without looking at the original, which admittedly was not before the principal at the time of such attestation, the exercise of attestation is totally flawed. There is no direct evidence of the appellant having sought to rely on the mark-sheet suggesting that he had obtained 659 marks in the school final examination. The best piece of evidence was available with the institute. Failing to trace out the best piece of evidence tantamounts to withholding the same for consideration and an adverse presumption can legitimately be drawn that had the same been produced, it would have operated to the detriment of the institute. On consideration of all the above factors, we are inclined to the view that there was no material before the director to arrive at a finding that the appellant had secured admission in the institute taking the aid of a fake mark-sheet.
17. In that view of the matter, we hold that the director erred in deciding against the appellant. The learned Judge also erred in not examining the issue of law and facts from the proper perspective.
18. The judgment and order dismissing the writ petition stands set aside. The order of the director dated September 21, 2006 also stands set aside.
19. If the appellant is otherwise eligible for appointment as primary teacher, the Chairman of the council shall take immediate steps to appoint him on an appropriate vacancy. If presently no vacancy is available, he shall be considered for appointment on the next vacancy that arises commensurate with his status and qualifications. Should the appellant be not found suitable still, he shall be duly informed the reasons for the same.
20. The appeal, accordingly, stands allowed. There shall be no order for costs.
Urgent photostat certified copy of this judgment and order, if applied, may be furnished to the applicant at an early date.
(DIPANKAR DATTA, J.) DEBI PROSAD DEY, J. :
I agree.
(DEBI PROSAD DEY, J.)