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1997 DIGILAW 60 (CAL)

Bharati Roy v. Shyamal Mukhopadhyay

1997-02-05

BHAGABATI PROSAD BANERJEE, VIDYA NAND

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JUDGMENT By consent of parties appearing the appeal and the application are taken up together for hearing by treating the appeal as on day's list and are disposed of by the following order:- By the order dated 24th September, 1996 the learned trial Judge after contidering the facts and circumstances of the case and in view of the principles laid down by the Supreme Court In the case of (1) Ashok Kumar Sharma & Anr. v. Chonder Shekhar & Anr. reported in 1993 Supp (2) SCC 611 directing that there should be fresh interview of all the candidates including the writ petitioner Shyamal Mukhopadhyay and also the candidates whose names appear in the said panel, the panel that was prepared was quashed by the learned trial Judge on the ground that the additional qualification of B. Ed. acquired by Shyamal Mukhopadhyay in the year 1990 was not recorded in the Employment Exchange Register but he produced the same before the Interview Board but the same was not taken Into consideration. In view of the provisions of Recruitment Rules regarding allotment of marks Clause 6 of the aforesaid Rules provides that no credit shall be given to the qualification other than the qualification mentioned by the DIS (SE) in the prior permission and mentioned by the Employment Exchange. 2. Mr. Kashi Kanta Moitra, learned Counsel appearing on behalf of the appellant/petitioner submitted that this Recruitment Rule must be followed and unless the qualification as mentioned in, the Employment Exchange those added marks could not be taken into Consideration and submitted that this Court cannot, override the provision of the statutory rules framed by the authorities concerned. 3. The procedure for recruitment which is commonly known as Recruitment Rules is not a Rule but a mete direction Issued in exercise of power conferred by the Director of School Education by Clause (i) and Clause (ii) of sub-section (1) and Clause (i) of sub-rule 4 of Rule 28 of the Rules for management under which the Rule making -authority had conferred power upon the School Committee subject to the approval of the Board. Sub-rule 4 of the said Rule provides that in an unaided Institution the Board shall have the power to appoint in accordance with the direction given by the Director of School Education. But this Rule does not confer any power open the Director of School Education to frame any Rule. Sub-rule 4 of the said Rule provides that in an unaided Institution the Board shall have the power to appoint in accordance with the direction given by the Director of School Education. But this Rule does not confer any power open the Director of School Education to frame any Rule. But instead of issuing a separate directions a comprehensive direction has bee a Issued in the form of Office Memorandum which was required to be followed by the school authorities. 4. Accordingly this direction is in the nature of administrative direction which is binding upon the school and not binding upon the Court as statutory Rule have only the force of law. If there is any Rule the High Court cannot Ignore such a Rule. It is a direction and in this connection the Supreme Court had made a pronouncement in the case of Ashok Kumar Sharma & Anr. v. Chander Shekhar & Anr. reported in 1993 Supp (2) SCC 611 wherein the Supreme Court has said in no uncertain terms that if a candidate has obtained any additional qualification before the Interview and even after the applications are made acquired such diploma or degree before the Interview and in the interview the same qualifications are produced in that event the same should also be considered and the reasons given by the Supreme Court is very clear that it was in the public interest that better candidates who were fully qualified on the dates of selection should not be rejected. It is in the interest of the institution which is paramount and not in the interest of the parties inter se. While interpreting the direction and/or the Rules the paramount consideration is the interest-of the Institution and the students at large. The Court cannot resort any procedure beyond the statute which stand against gives of the benefit to the duly qualified teachers on some technical plea or other. Such technical view adopted by the High Court was set aside by the Supreme Court as incorrect. The law laid down by the Supreme Court by virtue of the provisions of Article 141 of the Constitution is a law of the land. 5. Such technical view adopted by the High Court was set aside by the Supreme Court as incorrect. The law laid down by the Supreme Court by virtue of the provisions of Article 141 of the Constitution is a law of the land. 5. Accordingly it is a law of the land that if the qualification of a particular candidate is not recorded in the Employment Exchange Register but subsequently acquired before the Interview and the produced the same at the Interview by virtue or the law of the land the school authorities are bound to take into consideration the same and award marks accordingly on the basis of the added qualification. 6. Accordingly we do not find any reason to interfere with the order passed by the learned trial Judge but we make it clear that the authorities while considering the matter afresh within a period of two months from date in terms of the order of the learned trial Judge the principles laid down mentioned above must have into consideration of the added qualifications not only by the writ petitioner Shyamal Mukhopadhyay but also to the other candidates who have acquired any added qualification or degree or diploma, If any, the same should be taken into consideration and on that basis marks should be awarded within a period of one month thereafter and the panel should be prepared accordingly but the diploma, degree and/or certificates in support of such added qualifications must be as a matter of fact be produced before the Selection Committee. 7. Accordingly the appeal is dismissed with this observation. 8. No order as to costs. 9. It is also made clear that it is well settled principle that at the time of interview the Recruitment Rule invogue at the time of selection should be adhered to. In the instant case excepting the difference between the New Rule and the old Rule that the added qualification could not be taken into consideration unless recorded in the Employment Exchange Register but in view of the decision of the Supreme Court that part of the direction cannot be allowed to be override in view of the law laid down by the Supreme Court mentioned above. In view of the dismissal of the appeal the cross appeal filed by the respondent is allowed. No order as to costs.