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1997 DIGILAW 442 (CAL)

Gopal Krishna Dikshit v. State of West Bengal

1997-12-03

DEBI PRASAD SARKAR

body1997
JUDGMENT Debi Prasad Sarkar, J. 1. The instant Rule was issued on 4.3.85 at the instance of the, petitioner for a Writ of Mandamus commanding the respondents to appoint the petitioner in the post of Assistant Teacher of Banamali Chatt High School, Midnapore on the ground that Rule 28(1) (i) of the. West Bengal Board of Secondary Education Act of 1963 lays down that in an aided Institution the committee shall subject to the approval of the Director, have the power the appoint a teacher in accordance with the directions given on that behalf. It is further submitted that the present petitioner has got the requisite qualification and he was duly called in an interview and the Selection Committee prepared a panel of three candidates placing the present petitioner lit the second place. The opposite party respondent No.17 was placed at the first place. But the, said respondent crossed the limit of normal age of appointment as laid down by the Notification No. 454-Edn (S) dated 25.4.83 modifying G.O. No. 530-Edn. (S) dated 2.9.82. But that Notification empowered, the Director of School Education (Secondary) to relax that age limit upto 40 yens. It appears from the letter of the District Inspector of Schools that the District Inspector recommended for relaxation of the age of respondent No.17, as it appeared from the attested copy of the Madhyamik Certificate, that the, said respondent was only 38 years of, age at that time. The Director of School Education (Secondary) relaxed the age limit of respondent No.17 and as such the, respondent No.17 was appointed. The present petitioner in the meantime could know that, the actual age of respondent No.17 at the time of interview and appointment was more than 41 years i.e. beyond the upper age limit of 40 years. It is the submission of the petitioner that this act of fraud, was brought to the notice of the District Inspector of Schools and the Director of School Education (Secondary), but to no effect. Accordingly he filed this writ petition and obtained a stay order for a limited period but subsequently on the expiry of that limited period, the Hon'ble Court was not pleased to extend that stay order and the respondent No.17 was thus appointed by the School Authority as an Assistant Teacher in 1984. Since then he has been working, as an Assistant Teacher. Since then he has been working, as an Assistant Teacher. But it is submitted that the entire procedure of his appointment was bad-in-law as be crossed the maximum age prescribed for the appointment of an Assistant Teacher even after relaxation be the Authority. 2. It is admitted by the respondent No.17 in his affidavit-in-opposition, that his date of birth was 29.3.43 and not 29.3.46 and that be produced all the original Certificates at the time of interview. But the then Headmaster of the institution attested the true copy of the Madhyamik Certificate showing his date of birth as 29.3.46. That apart, it also appears from a duplicate Certificate issued by the Beard of Secondary Education, West Bengal that the date of birth of the respondent No.17 was recorded as 29.3.43. This fact is further corroborated by the School Leaving Certificate issued by the School there the said respondent used to study. Now, admittedly, a fraud was committed in respect of the year of birth of the respondent No.17. According to the said respondent, it was deliberately done by the Headmaster but within his knowledge and the entire defect in the procedure had its root in such fraud. Therefore, the Director of School Education had the power under the Rules to relax the normal upper age limit upto 40, years but not in case of a candidate who bas already crossed 40 years at the time of appointment. Such an act of relaxation of age limit is an act beyond the Authority conferred by the Rules on the Director of School Education and accordingly, such an act of relaxation of upper age limit is bad-in-law and without jurisdiction on the part of the Director of School Education I have already mentioned that the entire illegality and defects In the matter of appointment bad its loot in the fraud committed by the Headmaster of the institution as alleged, but within the knowledge of the respondent No.17. Therefore, the respondent No.17 being a party to that fraud, according to the principles of equity he should not be allowed to reap the benefit of his own fraud and that also at the cost of a fair chance of appointment of the second candidate in the panel i.e. the present petitioner. Therefore, the respondent No.17 being a party to that fraud, according to the principles of equity he should not be allowed to reap the benefit of his own fraud and that also at the cost of a fair chance of appointment of the second candidate in the panel i.e. the present petitioner. In other words, the Court of Justice should not be a party to an act, to perpetuate a fraud committed by one of the parties to the litigation. 3. It would not be out of place to mention, that this particular writ Matter has got a very chequered career. From the record it appears that Hon'ble Mr. Justice Susanta Chatterji since transferred to the Orissa High Court, dictated an order on 11.12.90 thereby dismissing the Writ Petition. But unfortunately, that order was not signed or delivered by the Hon'ble Judge and naturally the matter remained undecided. On 17.4.97 the Hon'ble Acting Chief Justice assigned the matter to my Bench. 4. Learned Advocate for the respondent No. 17 as well as the learned Advocate appearing for the Headmaster of the institution have placed their arguments supporting the act of appointment of respondent No.17 as an Assistant Teacher and bas taken the ground in defence that their respondent No.17 bas been rendering his service since 1984 i.e. for long 13 years and after such long period he should not be thrown out of service. So far as this aspect is concerned, I have given full consideration and I have already observed that a person shall never be allowed to reap the fruits of his own fraud perpetually. No doubt, Justice should also be tempered with mercy but it should not be distorted with unwarranted compassion. That apart, the stay order was granted restraining the appointment of the respondent No.17 at the initial stages but later on it was modified on 16.9.86 when Hon'ble Mr. Justice U.C. Banerjee gave the liberty to the Managing Committee to appoint the respondent No.17 but made it clear in his order that such appointment, If made shall abide by the result of the Rule and the stay order was passed without prejudice to the right and contentions of the parties. On the basis of this order the Managing Committee gave appointment to the respondent No.17 as an Assistant Teacher to that School. On the basis of this order the Managing Committee gave appointment to the respondent No.17 as an Assistant Teacher to that School. So, such appointment did not create any vested right In favour of the respondent No.17 because, it was subject to the result of the Rule. In the above circumstances, the submission that the respondent No.17 has been rendering his service as an Assistant Teacher since 1984 can in no way affect the merit of the Writ Petition. 5. The learned Advocate appearing for the petitioner as well as the respondent No.17 have placed some decisions in support of their arguments. 6. On behalf of the petitioner a Supreme Court decision reported in Ram Chandra (Keshav Adke) vs. Govind Joti Chavare & other, AIR 1975 SC 915 and the decision reported in Bipadtaran Patra vs. State of West Bengal & other, 1994 (2) Cal LJ 450 and the decision reported in Maniruddin Bepari vs. The Chairman of the Municipal Commissioners, Dacca, 40 CWN 17, have been cited in support of the argument for the petitioner. But after going through those decisions I find that those decisions simply contain the general principle of law of interpretation and are not on the specific point involved in the present case. 7. Similar is the case with the respondent No.17. The decisions placed are not appropriate to the facts of the present case. Even the latest decision of the Supreme Court reported in Bihar Public Service Commission & another vs. State of Bihar & other, 1997 (3) SCC 198 , as referred to by the reamed Advocate for the respondent No.17 is also not appropriate on the point. It lays down that the Court of Law shall not sit in Appeal over the decision of the Selection Committee. There is no dispute so far as this legal point is concerned, but in the instant case where such decision of the Selection Committee is vitiated by fraud on the face of the record, the Court should not remain a silent spectator and allow such fraud to be perpetrated. 8. The learned Advocate for the respondent No.17 has canvassed a special point before this Court, the echo of which is found in that unsigned order of Hon'ble Justice Susanta Chatterji. 8. The learned Advocate for the respondent No.17 has canvassed a special point before this Court, the echo of which is found in that unsigned order of Hon'ble Justice Susanta Chatterji. It is submitted that the Educational Institutions enjoy some sort of autonomy in the administration of the Institution and the Court of Justice shall not interfere with such autonomy. In this connection, it is necessary, first of all to understand what is meant by autonomy. Autonomy should never be equated with autocracy. Mr. Amrik Sing in his took "Universities and Government" has defined autonomy as the right of the university to decide who will teach, whom shall the university teach, what shall be taught and how will it be taught. 9. In a question whether the Court of Law bas got writ jurisdiction in matters of university administration, bas been decided by the Assam High Court in Hemendra Chandra vs. Gowhati University reported in AIR 1954 55 and the Assam High Court bas decided the issue in the affirmative relying on a very well known English Decision i.e. King vs. Chancellor, Masters and Scholars of the University of Cambridge in 1718. In that decision it was held that if the act of the university was according to the university Rules and Statutes It must be confirmed, but if the acts are in violation of the Rules and Statutes of the University, the University Authority by the act of their unique status as an institution of learning cannot go outside the jurisdiction of the Court of Law. 10. Accordingly, in the above light we are to see whether the disputed appointment of the respondent No.17 as an Assistant Teacher was an act in violation of the Rules by which the institution is governed. We have already discussed that the Director of School Education had the power to relax the age limit of a candidate at the time of appointment from 35 years Upto 40 years, but not beyond 40 years. In the instant case, the relaxation was granted to respondent No.17 when be already crossed the age limit of 40 years. Therefore, such relaxation was done in violation of the Rules which have got the force of law. That apart, to sum up, there was a deliberate act of fraud by suppressing the real date of birth of the respondent No.17. Therefore, such relaxation was done in violation of the Rules which have got the force of law. That apart, to sum up, there was a deliberate act of fraud by suppressing the real date of birth of the respondent No.17. In the a have circumstances, the Educational Institution or the Government Authority like District Inspector of Schools or the Director of School Education should not be allowed to take shelter behind the shield of autonomy. 11. Accordingly, after careful consideration of the facts and circumstances of the case and the Rules and Statutes Involved, I bold, that the Rules be made absolute. The respondents are by a Writ of Mandamus commanded to appoint the present petitioner as an Assistant Teacher in the respondent School. In terms of the panel prepared by the Selection Committee and the order of the appointment of the respondent No.17 is hereby quashed the panel which was prepared on 5.8.84 by the Selection Committee be treated as valid for the purpose of appointment of the petitioner as an Assistant Teacher on the basis of that panel. It is further commenced that the respondent No.2 i.e. the Director of Secondary Education shall relax the normal age limit of 35 years in the case of the present petitioner for the purpose of the appointment, as for no fault of his, but for the fraud and collusion of the respondents, the petitioner was deprived of valuable 13 years of his career. The cost of this hearing is assessed at 500 G. Ms. to be paid by respondent No.17. The petitioner as prayed for is given the liberty to proceed against the partners to the fraud including the respondent No.17 and the then Headmaster Sri Ajit Kumar Chowdhury who perpetrated fraud in respect of the date of birth of the respondent No.17 according to law before the proper forum if be intends to vindicate the cause of Justice.