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1999 DIGILAW 548 (CAL)

TAPATI CHAKRABORTY v. RAGHUNATH GHOSH

1999-10-08

MAHEMMAD HABEEB SHAMS ANSARI, S.B.SINHA

body1999
S. B. SINHA, ACJ. ( 1 ) THIS appeal is directed against a judgment and order dated 13th November, 1998 passed by a learned Single Judge of this court in Writ Petition No. 17174 (W) of 1997 whereby and where under the writ petition filed by the 1st respondent herein was disposed of directing: -"no authority can be allowed to take any action in violation of the order of the court. So the panel prepared by the school authorities cannot stand and the same is hereby set aside and quashed. If any approval has been accorded by the D. I. concerned to the said panel that also stands set aside and cancelled. The school authority now shall proceed for holding interview afresh inviting all the candidates who were, at the time of the impugned interview, as well as the petitioner herein. After holding interview of all the candidates who were called previously and the petitioner, the school authorities shall proceed in accordance with law. It is made clear that if on the date of passing of the previous order i. e. dated 11. 8. 97 the petitioner was within the prescribed age limit then the school authorities shall allow the petitioner to take interview in terms of my order. The school authorities shall send the panel to the D. I. concerned and who shall proceed for approval of the same in accordance with law thereafter. " ( 2 ) THE fact of the matter lies in a narrow compass. A prior permission was granted by the District Inspector of Schools, pursuant whereto names were called for, from and sponsored by the employment exchanges. However, the name of the writ petitioner having not been sponsored, writ application was filed by the writ petitioner herein for a direction upon the authorities of the school to allow him to appear at the interview. The said writ application was allowed. Pursuant thereto the writ petitioner approached the school authorities with a letter of the learned advocate on the date of interview but the said letter was allegedly torn down. Thereafter, an application for contempt was filed. ( 3 ) A second writ petition was filed by the writ petitioner which was marked as W. P. No. 17174 (W) of 1997 wherein a prayer for grant of stay as regard approval of the panel dated 12. 8. Thereafter, an application for contempt was filed. ( 3 ) A second writ petition was filed by the writ petitioner which was marked as W. P. No. 17174 (W) of 1997 wherein a prayer for grant of stay as regard approval of the panel dated 12. 8. 97 was made and the same was accordingly allowed. However, in the meantime, the District Inspector of Schools approved the panel and the appellant herein was appointed and her appointment had also been approved. ( 4 ) IN view of the direction issued by the learned trial Judge this appeal had been preferred by the appellant on the ground that she being not a party to the writ application, the order of approval could not have been set aside or cancelled. ( 5 ) MR. Protap Chatterjee, the learned counsel appearing on behalf of the appellant, submitted that the appellant was a necessary party and, thus, the entire order is void. The learned counsel had strongly relied upon the decision of V. V. Joseph and Ors. v. Union of India and Ors. , reported in 1993 (1) SLR 436, Biswa Ranjan Sahoo and Ors. v. Sushanta Kr. Dinda and Ors, reported in 1998 (5) Supreme 216 and Ram Chandra Tripathi v. U. P. Public Services Tribunal, IV and Ors. , reported in 1994 (5) SCC 180 . ( 6 ) THE learned counsel appearing on behalf of the writ petitioner-respondent, on the other hand submitted that as the orders of approval as regard the panel as also the appointment of the appellant had been made in violation of the order of injunction passed by this court and the writ petitioner was denied an opportunity by appearing at the interview despite the order of this court, the same was a nullity. ( 7 ) KEEPING in view the nature of the order proposed to be passed by us, in our opinion, it is not necessary to go into the rival contentions of the parties in great details. ( 8 ) ADMITTEDLY, the name of the writ petitioner was not sponsored by the employment exchange, so is the case of the appellant. ( 7 ) KEEPING in view the nature of the order proposed to be passed by us, in our opinion, it is not necessary to go into the rival contentions of the parties in great details. ( 8 ) ADMITTEDLY, the name of the writ petitioner was not sponsored by the employment exchange, so is the case of the appellant. In exercise of its power conferred upon it under Clauses (i) and (ii) of Sub-Rule (1) and Clause (i) of Sub-rule (4) of Rule 28 of Rules for Management of Recognised Non-Governmental Institutions (Aided and Unaided), 1969, framed under the West Bengal Secondary Education Act, 1963, the Director of School Education had framed Recruitment Rules. In terms of the aforementioned Recruitment Rules, inter alia, the following procedure are required to be adopted. When a post is sanctioned, the District Inspector of School grants prior permission for filling up of the post of a teaching or non-teaching staff. On receipt of the prior permission the school authorities approach the local employment exchange for sponsoring the names of 20 candidates having requisite qualifications. The employment exchange thereafter sponsors the names of the 20 candidates. The said 20 candidates are interviewed and marks are allotted by the Selection Committee in terms of the said Recruitment Rules. ( 9 ) THE Selection Committee prepares on the basis of the marks allotted to the candidates a panel and sends the same to the Managing Committee. The Managing Committee upon approval thereof in its turn sends the same to the District Inspector of School, appointment letter is issued. Such appointment also requires approval. Both the writ petitioner and the appellant appeared at the interview pursuant to the orders passed by this court. The question as to whether this court could have issued such a writ of or in the nature of mandamus directing the school authorities, to allow a candidate where names have not been sponsored by the employment exchange at the interview came up for consideration before a Special Bench of this court in Debasis Dutta v. State of West Bengal, reported in 1998 (2) CLJ. Pg. 1. In the aforementioned case, it was held that all such directions would stand overruled. Pg. 1. In the aforementioned case, it was held that all such directions would stand overruled. The effect of the said decision is that no person who had appeared at the interview pursuant to the order of the court was eligible for appointment, as his name had not been sponsored by the employment exchange. Furthermore, if requirement of Articles 14 and 16 are required to be conformed to an opportunity was required to be granted to all the eligible candidates and not only to the fortunate few who could move this court and obtain an order for appearance at the interview. Such an order does not fulfil the requisite criteria for being empanelled and/or for obtaining appointment as such approval of panel and such appointment must be held to be contrary to the provisions of the Recruitment Rules. This aspect of the matter has been considered by a Division Bench of this court in Sri Muktipada Maity v. State of West Bengal and Ors. , reported in 1999 WBLR (Cal.) 252, wherein this court has held :-"however, the matter came up for consideration before a Special Bench of this court reported in (1998) 1 Cal. HN 455 wherein, it has been held that the decision of the Apex Court in the case of Excise Superintendent, Malkapatnam, Krishna District, A. P. v. K. B. N. Vishweshwara Rao and Ors. , reported in 1996 (3) SCC 216 on the basis whereof the said order dated 17. 7. 97 was passed by the learned Trial Judge does not lay down on inflexible rule and in any event is not applicable in a case where Recruitment is governed by a statutory rule, the Special Bench held : 33. Having considered the submission of learned counsel for the parties we are of the view: (1) The Recruitment Rules although contained directory provisions, the same are required to be substantially complied with. (2) Any deviation and departure from the directions issued by the Director of School Education by reason of the said Recruitment Rules can only be made by the Director of School Education himself or by the State Government by issuing an order or a direction or guideline depending upon the facts and circumstances. (2) Any deviation and departure from the directions issued by the Director of School Education by reason of the said Recruitment Rules can only be made by the Director of School Education himself or by the State Government by issuing an order or a direction or guideline depending upon the facts and circumstances. (3) The Managing Committee of the respondent school is bound to follow the provisions of the Recruitment Rules and the petitioner having not raised the question of constitutionality of the said rules in the writ application cannot be permitted to do so by way of argument. (4) No direction can be issued by this court upon the Managing Committee of the school to allow any and every person to appear in the interviews although his name has not been sponsored by the employment exchange. The orders issued in this behalf by same of the procedure do not lay down the correct law and must be overruled. (5) The Managing Committee cannot act in contravention of the said provision unless the same is unconstitutional. This court in exercise of its power under Articles 12 and 226 of the Constitution of India cannot also issue a direction asking it to violate the provision of Statute. ' in this view of the matter, the petitioner cannot be said to have appeared at the interview, on his own right inasmuch as, the aforementioned order dated 17. 7. 97 passed by a learned single Judge of this court, although had not been questioned by any other person, will be deemed to have overruled. Furthermore, the Apex court as also this court in various other decisions clearly held that any appointment made in violation of the Recruitment Rules shall be void and nullity. Recruitment must be made strictly in terms of the procedure laid down in the Recruitment Rules framed by the Director of School Education in exercise of its power conferred upon it in Clauses (i) and (ii) of sub-rule (1) Clause (i) of sub-rule (4) of Rule 28 of the Rules for Management of Recognised Non-Government Institutions (Aided and Un-aided), 1969". ( 10 ) THIS aspect of the matter has been considered also by a Division Bench of this Court in Ziaul Islam v. State, reported in Calcutta Law Times 1999 (1) High Court 509. ( 10 ) THIS aspect of the matter has been considered also by a Division Bench of this Court in Ziaul Islam v. State, reported in Calcutta Law Times 1999 (1) High Court 509. ( 11 ) IN view of the aforementioned decisions of the court it must be held that both the writ petitioner and the appellant were not entitled to appear at the interview. For the reasons aforementioned it is held that both the writ petitioner and the appellant had no cause of action to maintain the appeal and the writ application. Both the appeal and the writ applications are disposed of but without any order as to costs. M. H. S. Ansari, J.-I agree. Appeal disposed of of .