Sankar Das v. Arup Kumar Das — 1998 DIGILAW 507 (CAL)

Judgment Gupta, J. This Appeal under Clause 15 of the Letters Patent is directed against the Judgment dated 15.7.98 of the learned Single Judge of this Court whereby the writ petition filed by respondent No.1 Sri Arup Kr. Das was disposed of as having become infructuous and the prayer of the appellant Sri Sankar Das for adjudication of the issues involved in the writ application and for a decision on his counter-claim was refused. Brief facts leading to the filing of the Appeal may be stated as herein-below. 2. It appears that pursuant to the retirement of an Assistant Teacher, a post of Assistant Teacher in the language and literature group had been lying vacant in Balurghat Khadimpur High School at Balurghat in the district of Dakshin Dinajpur. The District Inspector of Schools, Dakshin Dinajpur vide his Memo. No. 1336/A dated 29.9.97 accorded his prior permission to the School Authorities for appointment of an Assistant Teacher In the aforesaid language and literature group sad prescribed the academic eligibility qualification as M.A. in Bengali, with added preference qualification of B. Ed. The District Inspector of Schools (D.I.S.) also permitted the Managing Committee of the School to fill up the said post after observing all formalities and complying with the requisite procedures as laid down in the relevant rules and regulations. The School Authorities accordingly asked the Directorate of Employment, Government or West Bengal to sponsor the names of suitable candidates for selection to the said post. Accordingly, the Employment Officer, Directorate of Employment, Government of West Bengal, Calcutta sponsored the names of 20 eligible candidates for the said post, which included the names of the appellant and respondent No. 1. Whereas the sponsoring documents showed against the name of respondent No. 1 the academic qualification of M.A. in Bengali and B. Ed., against the name of the appellant the academic qualification shown was only M.A. in Bengali. It is the undisputed case of the parties that the appellant and respondent No. 1 both possessed the academic qualification of B. Ed. as well since both had passed B. Ed. in the some year, from the same College and the same University. It is the undisputed case of the parties that the appellant and respondent No. 1 both possessed the academic qualification of B. Ed. as well since both had passed B. Ed. in the some year, from the same College and the same University. Actually it so happened that on 22nd November, 1995 the appellant, who had already been registered with the Employment Exchange at Balurghat in the district of Dakshin Dinajpur informed the Employment Exchange Officer about his having acquired the additional qualification of B. Ed. and the said Employment Exchange in turn forwarded this Information to the P & E section of the Directorate of Employment, Government of We6t Bengal, Calcutta vide its Office Memo. No. PE/Regn. 1/93/13063 dated 22.11.95. It was on 4th January, 1996 that pursuant to the aforesaid requisition from the School Authorities Directorate of Employment, Government of West Bengal, Calcutta sponsoring the names of the aforesaid 20 persons but as noticed earlier, omitted in the said sponsoring communication the mention of the appellant having acquired or being possessed of the B. Ed. qualification. Be that as it may, the Selection Committee considered the names of all eligible candidates and based on their inter se merit prepared a panel of 3 names for obtaining the approval of the D.I.S. In this Panel the name of the appellant figured al Sl. No. 1 in order of merit whereas the name of the respondent No. 1 figured at Sl. No. 3. Uadoubtedly and un-disputably, the appellant's name was at the top of the select panel because he had been given the credit for the additional qualification of B. Ed. Later on, however it transpired that the D.I.S. did not accord his approval to the aforesaid select panel and vide his communication dated 29th September, 1997 recast the panel, placing respondent No. 1 at Sl. No. 1 in order of merit and the appellant at Sl. No. 3 in order of merit. Based on such recasting of the panel the Administrator of the School issued an appointment order on 29th September, 1997 in favour of respondent No. 1. No. 1 in order of merit and the appellant at Sl. No. 3 in order of merit. Based on such recasting of the panel the Administrator of the School issued an appointment order on 29th September, 1997 in favour of respondent No. 1. The approval of the panel by D.I.S and the issuance of the letter by the School Administrator both clearly stated that the approval of the panel and the appointment offered to respondent No. 1 were subject to the outcome of the writ petition filed by respondent No. 1 in this Court being W.P. No. 10784 or 1997. It is the case or the respondent No.1 that pursuant to the appointment letter dated 29th July, 1997 he joined on 30th September, 1997. 3. It may be worthwhile to take note of two writ applications having been in the meanwhile filed in this Court, both by respondent No. 1 as well as the appellant. Respondent No. 1 had filed the writ petition challenging the panel prepared by the Selection Committee in which the appellant's name had figured at Sl. No. 1. It may be worth mentioning that in this writ application no order or direction had been issued by this Court. The appellant had also filed a writ application wherein N.K. Mitra, J., passed the following Order on 30th September, 1997 :- "Considering the urgency Rule 27A of the Court Rule is dispensed with. The School Authority sent the panel for approval to the District Inspector of Schools (S.E.) concerned on 12th May, 1997 but the District Inspector of Schools (S.E.) is sitting right over the matter for the reasons best known to him. As such the District Inspector of Schools (S.E.) concerned is directed to give approval of the panel, since from the action of the District Inspector of Schools (S.E.) concerned it should be presumed that there is no illegality in the panel. The approval should be given by 15th November, 1997 and the time limit so fixed above is peremptory and mandatory. The writ petition stands accordingly disposed of. There will be no order as to costs." 4. The approval should be given by 15th November, 1997 and the time limit so fixed above is peremptory and mandatory. The writ petition stands accordingly disposed of. There will be no order as to costs." 4. The aforesaid facts however clearly suggest that even though the aforesaid order was passed on 30th September, 1997 by N.K. Mitra, J., the developments leading to the preparation of the recast penal on 29th September, 1997, the issuance of the letter of appointment on the same date and the joining of the respondent No. 1 on 30th September, 1997 had practically rendered the aforesaid order otiose or infructuous. 5. It is in the aforesaid circumstances that when the writ application filed by respondent No. 1 came up for consideration before the learned Single Judge on 15.7.98 respondent No. 1 made a statement that the writ petition filed by him had become infructuous since the panel had been recast whereby the writ petitioner was placed at the top of the panel and had actually been appointed in 1998 itself. Based on submission accordingly, as noticed at the outset the writ petition was disposed of without adverting to the merits of the controversy or deciding the issues in the counter-claim appellant. 6. It is the undisputed case of the parties that the appellant and the respondent No.1 possessed same qualifications that of M.A. and B. Ed. It is also the undisputed case of the parties that in the panel as prepared by the Selection Committee the appellant was granted the credit of the additional B. Ed. qualification. This credit was granted to respondent No. 1 also. The appellant however having superior merit on overall consideration was placed at the top of the panel. It is also the undisputed case of the parties that the D.I.S. recast the panel by placing the appellant at the bottom of the panel by denying to him the credit of B. Ed. qualification. The undisputed case of the parties is that the credit of B. Ed. qualification was denied and refused to the appellant only on the ground that the Directorate of Employment, Government of West Bengal in the sponsoring communication dated 4.1.96 had not mentioned the aforesaid qualification and since such omission had occurred in the sponsoring qualification, the appellant was held disentitled to the grant of such credit. qualification was denied and refused to the appellant only on the ground that the Directorate of Employment, Government of West Bengal in the sponsoring communication dated 4.1.96 had not mentioned the aforesaid qualification and since such omission had occurred in the sponsoring qualification, the appellant was held disentitled to the grant of such credit. It is suggested that such disentitlement arose out of an interpretation put upon Rule 6A of 1993 Rules. Rule 6A reads as under :- "No credit shall be given to the qualification other than the qualification mentioned by the D.I.S. (S.E.) in the prior permission and mentioned by the Employment Exchange." The point which needs consideration therefore, is as to whether, on a reading of Rule 6(a) (supra) the appellant could be deprived of the credit of his B. Ed. qualification merely because the sponsoring authority omitted to mention this fact in the sponsoring communication even though admittedly the appellant was possessed of this qualification prior to the grant of the prior permission and the cut-off date and had also, admittedly and un-disputably informed the local Employment Exchange as early as on 22nd November, 1995. 7. The Synopsis of Instructions on Employment Exchange procedure issued in August 1998 by the Government of West Bengal (Directorate of Employment) lays down that graduates with B. Ed./B.T. should be registered at normal Employment Exchanges and Post Graduates with B. Ed./B.T. should be registered at P & E Section of the Directorate. At para 101 of the said synopsis appears a communication issued by the Directorate of Employment and addressed to all Employment Officer-in-Charge which lays down a detailed procedure for ensuring that the candidates obtaining additional qualification but originally registered in the local Employment Exchanges need not brother themselves to came all the way to Calcutta and that they can inform about there additional qualification to the local Employment Exchange. Exchanges concerned after checking all the relevant document and entries and verifying itself about the authenticity etc. should send the information to P & E Officer for regulation. This communication reads as under:- “101. Directorate of Employment Serial Instruction No. 6/87. To, (1) All Dy. Directors of Employment, West Bengal in the Districts, (2) The Regional Employment Officer, Calcutta, (3) All Employment Officer-in-Charge in the State & P & E Section of this Directorate. should send the information to P & E Officer for regulation. This communication reads as under:- “101. Directorate of Employment Serial Instruction No. 6/87. To, (1) All Dy. Directors of Employment, West Bengal in the Districts, (2) The Regional Employment Officer, Calcutta, (3) All Employment Officer-in-Charge in the State & P & E Section of this Directorate. It has been the experience at P & E Office that candidates from different districts report to them on acquiring Post Graduate qualification for Registration at P & E Office. Most of them are having registration upto graduation level at the local Employment Exchange. They stated that they met the local Exchange and had been advised to report to P & E Office. Obviously they feel harassed when they have again to go back after incurring all expenditure and wasting time. Employment Officers are, therefore, requested to act in the following manner:- 1. Candidates who are not registered but contact the local Office having Post Graduate qualification should be allowed to fill up X-1Cs and X-10C with their signature. One X-1C should be in red ink. Exchange concerned should check up all relevant documents and entries including Ration Card under initial of the verifying authority and sent it to P & E Officer for registration. The Identity Card after registration at P & E will be sent to him direct and the secondary X-1C will be sent to Exchange concerned from P & H Office. 2. Candidates who are already registered at the Exchange, should invariably be allowed to show the increased Post Graduate qualification in the record instead of directing them to P & E Officer direct for the purpose. Secondary X-1 is in old Trades/NCOs should be retained at the local Exchange and the original X-1 with updated qualification along with a Secondary X-1 (filed in red ink) and X-10C both duty signed by the applicant be sent to P & E Officer. Necessary entries of transfer be made in X-63 and separate register be maintained for this purpose. Upon receipt of this P & H Office should R/R him and sent the X-10C to the candidate by post and send back the Secondary records maintained at his end for local employment assistance. 3. Necessary entries of transfer be made in X-63 and separate register be maintained for this purpose. Upon receipt of this P & H Office should R/R him and sent the X-10C to the candidate by post and send back the Secondary records maintained at his end for local employment assistance. 3. In the interim period between sending the record and setting the feed back from P & E Officer, the candidate would continue to get employment assistance on the basis of old registration number of the local Employment Exchange. Authenticated by (Sri R.P. Ghosh.) 14.8.87 Issued from 3E-137/3/86/26748-823A Addl. Director of Employment. Dated : 14.8.87.” 8. The appellant had done whatever was required of him to be done. He had acquired the qualification of B. Ed. before 22nd November, 1995 and he informed the local Employment Exchange about this fact. Whether this information was forwarded by the local Employment Exchange to the Directorate of Employment or not was not something with which the appellant was concerned. Even then on 1st February, 1996 he represented to the Employment Exchange Officer of the local employment Exchange that the aforesaid information be forwarded to the Directorate of Employment (P & E Section). Not only this when the appellant was interviewed by the Selection Committee along with other eligible candidates, he produced the Identity Card issued by the Directorate of employment in which the qualification mentioned was M.A. with B. Ed. In this background therefore merely because the sponsoring communication, by an inadvertent mistake, omission or otherwise, failed to mention the qualification of the appellant as M.A., B. Ed. the appellant could not be denied and refused the credit for B. Ed. qualification, since he was possessed of this qualification and that everyone concerned including the Selection Committee and the D.I.S. knew about it. 9. Undoubtedly Rule 6A (supra) of the Recruitment Rules issued on 20th May, 1993 dose lay down that no credit shall be given to a candidate in respect of the qualification which has either not been mention by the D.I.S. in the prior permission communication or by the Employment Exchange in the sponsoring communication. We are also quite clear that Rule 6A is required to be followed. However, when this Rule refers to the expression “mentioned by the Employment Exchange”, such “mentioning” relates to an act validity and properly done by the Employment Exchange. We are also quite clear that Rule 6A is required to be followed. However, when this Rule refers to the expression “mentioned by the Employment Exchange”, such “mentioning” relates to an act validity and properly done by the Employment Exchange. If the Employment Exchange is seized of an information with regard to a candidates being possessed of a particular qualification and yet does not mention the same in the sponsoring communication, this cannot be called a valid or proper “mentioning” by the Employment Exchange and merely because by such improper or invalid “mentioning” the qualification of the candidates has been omitted, he cannot deprived of the credit in respect thereto. Similarly therefore, if the candidate has done all that was required of him to be done and, for no fault of his, the Employment Exchange concerned because of some Systems Failure, or otherwise does not mention the qualification, this cannot be construed to be of any disadvantage of the candidate concerned and the candidate cannot be deprived of the credit in respect of such qualification, if he is otherwise possessed of the same as on, or before the cut-off date and had taken all due steps to inform the Employment Exchange concerned regarding his having obtained such qualification. 10. Article 14 of the Constitution guarantees equality of opportunity. No one can be denied the equality of opportunity. If therefore the appellant and respondent no. 1 similarity situated, it was not permissible to the authorities to treat the appellant differently and to deprive him of the advantage which had accrued to him, along with respondent No. 1, in the matted of getting credit for B. Ed. qualification. It appears to us clearly that the authority by practicing hostile discrimination against the appellant have accorded under benefit and illegitimate favour to respondent No. 1 and the merit obtained by the appellant by such unconstitutional act of the respondents, has been converted into demerit. The D.I.S. committed a patent illegality by ordering the recasting of the panel. It appears that by placing on illogical and absurd interpretation upon rule 6A and improper application of this Rule to the facts of the present case, D.I.S. in utter disregard to established norms and principal illegally deprived the appellant of the benefit which had stood accrued in his favour on account of his having acquired the qualification of B. Ed. It appears that by placing on illogical and absurd interpretation upon rule 6A and improper application of this Rule to the facts of the present case, D.I.S. in utter disregard to established norms and principal illegally deprived the appellant of the benefit which had stood accrued in his favour on account of his having acquired the qualification of B. Ed. We can even go to the extent of saying that even independent of Rule 6A, on the reasoning and logic of common law and common sense, if a person has acquired a qualification before the cut-off date and such if qualification is to be counted for the purposes of either determining the eligibility of giving credit to the candidate, and the selection panel is convinced of the authenticity of the information regarding the qualification, the candidate concerned cannot be deprived of the benefits flowing therefrom. No Rule can take away such benefit from the candidates. Rule 6A also undoubtedly does not attempt to take away any such Benefit only it has to be properly applied and proper application has to be understood in its true perspective. So much for the merits of the controversy. 11. On the question of maintainability of the appeal itself, the learned Advocate appearing for the respondents submitted before us that the appeal in the present from was not maintainable because the learned Signal Judge merely disposed of the writ application as having become infructuous because of the fact that respondent No. 1 had joined on the post on which he was appointed on account of recasting of the panel. We do not agree with submission and for a very simple reason. The appellant being a party in the writ application and he having raised a question relating to the rights of the parties qua the appointment on the post or about their position in the select penal, these questions being at the root of the controversy, the learned Single Judge ought to have considered the objection of the appellant before permitting respondent no. 1 withdraw the writ application. After all the appellant was entitled to have such questions adjudicated. 12. There is yet another angle to this controversy. The respondent No. 1 had obtained the appointment on the condition that it was validity subject to the result of the writ application. The offer of appointment clearly carried such a conditional stipulation. 1 withdraw the writ application. After all the appellant was entitled to have such questions adjudicated. 12. There is yet another angle to this controversy. The respondent No. 1 had obtained the appointment on the condition that it was validity subject to the result of the writ application. The offer of appointment clearly carried such a conditional stipulation. This in effect means that if the writ application was dismissed, withdrawn or otherwise the appointment would automatically came to an end since the appointment was to remain valid only till the disposal of the writ application and/or depending upon its outcome. Surely there is no order passed by the learned Single Judge whereby the appointment made in favour of the respondent No. 1 has been either regularized or ratified or even authenticated. Either way the appointment of respondent No. 1 and its continuance depended upon the judgment of the learned Single Judge. 13. For the aforesaid reason therefore we allowed this appeal, set aside the judgment of the learned Single Judge and quash and set aside the appointment of respondent no. 1 from the post of Assistant Teacher. 14. Since we have returned a positive finding with regard to placement of the appellant at the top of the select panel and since admittedly the appellant, on the own showing of all the respondents, ought to have been at the top of the select panel if credit of B. Ed. qualification was to be given to him, there is no reason way the appellant should be denied the right of being appointed on the post of Assistant Teacher. We accordingly issue a Mandamus directing the respondents to appoint the appellant as such. His appointment, however, shall take effect prospectively. The appointment order shall be issued within two weeks from today. The appeal and the application for stay accordingly is disposed of. No order as to costs. Roy, J. : I agree.