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2000 DIGILAW 558 (CAL)

Madhumita Dutta v. State of West Bengal

2000-11-15

Pranab Kumar Chattopadhyay

body2000
JUDGMENT Pranab Kumar Chattopadhyay, J. The petitioner herein challenged the preparation of the panel for the post of Assistant Teacher of Geography in Social Science Group in Saheb Nagar High School, Kankuria, Murshidabad. 2. The District Inspector of Schools (S.E.), Murshidabad accorded prior permission for recruitment to the said post of Assistant Teacher in Geography prescribing qualification for the post as B.A. (Hons) in Geography and mentioned preference for trained candidates having B.Ed. qualification. Such permission was accorded by the District Inspector of Schools (S.E.), Murshidabad by letter dated 11th October, 1993. 3. On the basis of the said prior permission, the School Authority approached the Employment Officer of the Employment Exchange, Farakka, on 1st November, 1993 for sponsoring the names of the eligible candidates for the said post. The Employment Exchange sponsored the names of the eligible candidates in tow phases. First list containing names of 8 eligible candidates including the name of the petitioner was forwarded on 14th December, 1993 and the second list was forwarded on 30th December, 1993. 4. The petitioner herein acquired B.Ed. qualification on 14th December, 1993 and immediately approached the concerned Employment Exchange for recording the said qualification. The Employment Exchange recorded the aforesaid B.Ed. qualification of the petitioner and sent a communication to the School Authority intimating the improved qualification of the petitioner on account of acquiring B.Ed. degree. The Employment Officer of the concerned Employment Exchange by the written communication dated 17th January, 1994 tried to inform the Secretary of the School in respect of the aforesaid additional qualification of the petitioner in the matter of acquiring B. Ed. degree but such written communication could not reach the Secretary as the envelope containing the side written communication was returned to the Employment Exchange with the postal endorsement 'Refused and returned to sender'. The Employment Officer, thereafter, by another written communication dated 31st January, 1994 forwarded the copy of the earlier communication dated 17th January, 1994 by ordinary post to the Secretary for the purpose of taking necessary action in the matter. 5. The interview was held for filling up the vacancy in the post of Assistant Teacher in Geography on 5th February, 1994 and a panel was prepared which was approved by the Managing Committee of the School on 20th February, 1994. 5. The interview was held for filling up the vacancy in the post of Assistant Teacher in Geography on 5th February, 1994 and a panel was prepared which was approved by the Managing Committee of the School on 20th February, 1994. The petitioner herein filed an objection with the District Inspector of Schools (S.E.), on 25th February, 1994 as the petitioner was not awarded marks for her B. Ed. qualification. According to the petitioner inspite of repeated requests and even after producing the mark-sheets in respect of B.Ed. Examination and after furnishing a copy of the letter of the Employment Exchange Authority wherein request was made for recording the B. Ed. degree of the petitioner as the additional qualification, the Selection Committee refused to award any mark for the said B.Ed. degree and on account of non-awarding of marks for B. Ed. qualification petitioner herein could not secure the top position in the panel. The Selection Committee prepared the panel wherein the name of Md. Mehbub Alam, the added-respondent herein, was at Serial No.1 of the panel and the said panel was subsequently approved by the Managing Committee of the School was forwarded to the D.I. of Schools (S.E.), Murshidabad for according necessary approval in terms of the Rules. The petitioner herein claims that the Selection Committee should have awarded the marks in her favour for the B.Ed. qualification which she obtained on the very day when the Employment Exchange sponsored the names of first batch of eligible candidates including the petitioner herein. 6. According to the petitioner, though an objection was submitted in writing to the District Inspector of Schools (S.E.), Murshidabad challenging the validity of the panel prepared by the Selection Committee without awarding any marks for the B.Ed. qualification to the petitioner but such representation of the petitioner has not been considered. The petitioner thereafter challenging the validity of the said panel prepared for the post of Assistant Teacher in Geography in Social Science Group in respect of the said High School filed the present writ petition. Initially the successful candidate, namely Mehbub Alam, whose warne was mentioned at serial No.1 of the said panel, was not impleaded as party-respondent in the writ petition. The present writ petition was initially heard and disposed of by the Hon'ble Justice Asok Kr. Initially the successful candidate, namely Mehbub Alam, whose warne was mentioned at serial No.1 of the said panel, was not impleaded as party-respondent in the writ petition. The present writ petition was initially heard and disposed of by the Hon'ble Justice Asok Kr. Chakravorty(as His Lordship then was) on 13th June, 1995 and the said writ petition was allowed with the direction whereby the panel prepared by the respondent-authorities was declared to be non-sustainable as the same was prepared without consideration of the enhanced qualification of the petitioner. In the said judgment, Asok Kr. Chakravorty, J. directed the District Inspector of Schools to revise the panel of candidates in order of merits by awarding the marks to the petitioner herein for passing B.Ed. examination and on the basis of the interview already held in the matter. 7. An appeal was thereafter preferred by one Md. Mehbub Alam whose name was at serial No.1 of the panel which was set aside by Asok Kr. Chakravorty, J. in the aforesaid judgment and order dated 13th June, 1995 while deciding the writ petition being Civil Order No. 4262(W) of 1994. The said Appeal was numbered as F.M.A. 293 of 1997 and was finally decided by a Division Bench presided over by the Hon'ble Justice S.B. Sinha on 8th November, 1997, wherein the Division Bench set aside the earlier order dated 13th June, 1995 passed by Asok Kr. Chakravarty, J. and directed for deciding the matter afresh upon giving an opportunity of hearing to the said appellant whose name figured at serial No.1 of the panel prepared by the Selection Committee and approved by the Managing Committee of the School. In terms of the aforesaid direction, affidavits were filed on behalf of the respective parties and the petition was listed for final hearing. 8. Mr. Pratap Kr. Sen, learned Counsel appearing for the petitioner, submitted that the Selection Committee could not have ignored the B.Ed. qualification of the petitioner and should have awarded requisite marks in favour of the petitioner while considering her candidature for the said post of the Assistant Teacher in Geography particularly when the petitioner acquired the said B.Ed. qualification long before the actual date of interview, i.e. on 14th February, 1993, when the Employment Exchange concerned sponsored the first list of eligible candidates to the School Authorities. Mr. qualification long before the actual date of interview, i.e. on 14th February, 1993, when the Employment Exchange concerned sponsored the first list of eligible candidates to the School Authorities. Mr. Sen further submitted that the School Authorities with a mala fide intention refused to receive the envelope containing the written communication of the concerned Employment Exchange in respect of acquiring of the enhanced qualification namely B. Ed. degree by the petitioner herein. From the conduct of the School Authorities it is clear that before holding the interview said authority came to a conclusion that no credit should be given to the petitioner for her enhanced qualification of B.Ed. degree and that is why written communication forwarded by the Employment Officer of the concerned Employment Exchange on a closed envelope was refused and returned to the sender. 9. Mr. Sen submitted that the petitioner herein passed the B. Ed. examination prior to the date when the last list of eligible candidates was forwarded by the Employment Exchange as the petitioner passed the B.Ed. Examination on 14th December, 1993 and the last list of eligible candidates was forwarded by the Employment Exchange on 30th December, 1993. According to the petitioner, the Selection Committee wrongly refused to take note of the enhanced qualification of the petitioner and committed an error by not awarding requisite marks for B. Ed. qualification of the petitioner. According to Mr. Sen, the petitioner at the time of interview though requested the members of the Selection Committee to award the marks for B. Ed. degree, but, the members of the Selection Committee refused to award the same on the ground that such qualification was not sponsored by the Employment Exchange though the Employment Officer of the concerned Employment Exchange by a subsequent communication intimated the aforesaid qualification of the petitioner to the School Authority. Mr. Sen further submitted that the petitioner not only submitted the mark-sheet in support of her B.Ed. qualification but also submitted a copy of the written communication of the Employment Officer of the concerned Employment Exchange regarding recording of the said B.Ed. degree by the Employment Exchange Authority which was duly intimated to the School Authority prior to the date of interview. The members of the Selection Committee refused to entertain such submission of the petitioner and did not award any marks for her B. Ed. qualification. degree by the Employment Exchange Authority which was duly intimated to the School Authority prior to the date of interview. The members of the Selection Committee refused to entertain such submission of the petitioner and did not award any marks for her B. Ed. qualification. According to the petitioner, the panel prepared by the Selection Committee without awarding requisite marks for B. Ed. qualification to the petitioner was erroneous and imporper as the name of the petitioner could figure at the top position in the event requisite marks were awarded for her B. Ed. qualification. The petitioner accordingly challenged the validity and/or legality of the panel prepared by the Selection Committee and subsequently approved by the Managing Committee of the School without awarding marks for B. Ed. qualification to the petitioner. 10. Mr. Ashok Maity, the learned counsel appearing on behalf of the added respondent, namely, Md. Mehbub Alam, whose name figured at the top of the impugned panel prepared by the Selection Committee and subsequently approved by the Managing Committee of the School submitted that the panel was properly prepared following the Rules as are applicable in this regard. According to Mr. Maity, once Employment Exchange forwards the names of the eligible candidates with qualifications as per available records the added qualification acquired subsequently and recorded subsequently in respect of any candidate can not be forwarded to the employer by the Employment Exchange by any subsequent communication for the purpose of taking into consideration of such added qualification by the concerned authority at the time of interview. According to Mr. Maity, cut-off date in respect of acquiring qualification of a candidate should be the date of prior permission granted by the District Inspector of Schools (S.E.), Murshidabad which in the instant case is 11th October, 1993. 11. Mr. Maity referred to Rule 4(b) of the Recruitment Rules, 1993 in this regard. Mr. Maity also relying on Rule 6(k) submitted that the Employment Exchange could not send second list on 30th December, 1993 when first list was sent on 14th December, 1993 and was duly received by the School Authority. Mr. Maity admitted that the name of the petitioner was included in the first list which was forwarded by the Employment Exchange. According to Mr. Mr. Maity admitted that the name of the petitioner was included in the first list which was forwarded by the Employment Exchange. According to Mr. Maity even on the date of sponsoring the names of the eligible candidates by the Employment Exchange added qualification of the petitioner was not in the record of the Employment Exchange and as such, the Employment Exchange could not forward any further communication to the School Authority on a subsequent date after recording further qualification of the petitioner. Mr. Maity placed reliance on the decision of the Supreme Court in the matter of Bhupinder Pal Singh & Ors. vs. State of Punjab & Ors., reported in (2000) 5 SCC 262 , Mr. Bhudeb Bhttacharjee the learned counsel appearing on behalf of the State respondents also opposed the claim of the writ petitioner. According to Mr. Bhattcharjee, cut-off date in respect of acquiring qualification by a candidate in the instant case should be the date of sponsoring the name by the Employment Exchange as per Rule 4(b) of the Recruitment Rules, 1993. Mr. Bhattacharjee adopted the submission of Mr. Maity while opposing the said writ petition. Mr. Sen appearing on behalf of the petitioner submitted that Rule 6 (k) of the Recruitment Rules, 1993 has no manner of application herein as in Rule 6(k) it has been specifically provided that 'no second list should be obtained,' i.e. the employer is prevented from obtaining the second list from the Employment Exchange concerned but the same can not debar the Employment Exchange to forward the names of the eligible candidates in phases as has been done in the instant case. Mr. Sen submitted that the decision of the Supreme Court in Bhupinder Pal's case (supra) has no manner of application in the instant case as the same relates to the fixation of cut-off date for determination of the eligibility of a candidate seeking employment against a vacancy advertised by the employer and in the instant case the name of the petitioner was admittedly forwarded by the Employment Exchange as eligible candidate. Mr. Sen also submitted that the question of acquiring eligibility in the instant case can not be a subject matter of dispute. Mr. Mr. Sen also submitted that the question of acquiring eligibility in the instant case can not be a subject matter of dispute. Mr. Sen placed reliance on a Division Benchjuc1gement of this Court reported inI997(2) CLJ 386 (Bharati Roy vs. Shyamal Mukhopadhyay & Ors.) wherein the Division Bench of this court after considering the principles laid down by the Supreme Court in the case of Ashok Kumar Sharma & Anr. vs. Chander Sekhar & Anr., reported in 1993 (Supp) 2 SCC 611, held as under:-" It is the 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 he produced the same' at the interview by virtue of 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." 12. Considered the rival contentions of the respective parties. Admittedly the petitioner herein improved her qualification and acquired B. Ed. degree on 14th December, 1993, when the Employment Officer forwarded the first list of the eligible candidates. The petitioner improved her qualification even before the last date of forwarding the last list, i.e. the second list by the concerned Employment Exchange. The School Authority could not have refused the written intimation of the Employment Exchange which was communicated in a closed envelope. By doing so, the School Authority exposed its hostile attitude towards the petitioner and the same also established the knowledge of the School Authority regarding the contents of the said written communication contained in the closed envelope sent by the Employment Exchange Authority which admittedly contained the intimation regarding enhanced qualification of the petitioner regarding B. Ed. degree. It is also an admitted fact that the petitioner herein could secure the first position in the panel in the event requisite marks were awarded for B. Ed. qualification of the petitioner. The principles laid down by the Apex Court in Bhupinder Pal Singh's case (supra) are not applicable herein as in the said case the Apex Court considered the matter relating to eligibility of the candidates who admittedly were ineligible at the time of submitting the applications and acquired requisite qualification subsequently but before the date of interview. The principles laid down by the Apex Court in Bhupinder Pal Singh's case (supra) are not applicable herein as in the said case the Apex Court considered the matter relating to eligibility of the candidates who admittedly were ineligible at the time of submitting the applications and acquired requisite qualification subsequently but before the date of interview. In the instant case petitioner was admittedly an eligible candidate whose name was duly forwarded along with the added respondent Md. Mehbub Alam by the Employment Exchange. In Bhupinder Pal Singh's case (supra) the Apex Court considered the principles governing cut-off date for testing eligibility qualifications of the candidates. The Apex Court in the said case considered the cut-off date by reference to which the applicants were required to satisfy that eligibility. In the instant case facts are completely different. The petitioner herein was an eligible candidate whose name was duly sponsored by the Employment Exchange. Now the only point falls for determination as to whether the additional qualification acquired by the petitioner before the interview and even before the last date of forwarding the names of eligible candidates by the Employment Exchange can be ignored by the Selection Committee inspite of written intimation given by the Employment Exchange in this regard apprising the School Authority regarding the enhanced qualification of the petitioner by dint of acquiring B. Ed. qualification. In the instant case the additional qualification of the petitioner though admittedly was not recorded in the Employment Exchange at the time of sponsoring the name of the petitioner but subsequently the same was recorded by the Employment Exchange before the actual date of interview and necessary intimation was given by the concerned Employment Exchange to the School Authority for taking necessary consideration. Rule 6(k) of the Recruitment Rules, 1993 as has been referred to be Mr. Maity in the instant case has no manner of application as no second list has been obtained by the School Authority, but the Employment Exchange concerned forwarded the names of eligible candidates in response to the request of the School Authority in two phases. Accordingly, the last date of submission of the list of eligible candidates by the Employment Exchange should be taken as 30th December, 1993. Since the petitioner herein acquired the additional qualification by obtaining B.Ed. Accordingly, the last date of submission of the list of eligible candidates by the Employment Exchange should be taken as 30th December, 1993. Since the petitioner herein acquired the additional qualification by obtaining B.Ed. degree and the same was duly recorded by the Employment Exchange concerned long before the actual date of interview and was duly intimated to the School Authority there can be no justifiable reason to deprive the petitioner of the requisite marks for the B.Ed. qualification at the interview by the Selection Committee. In my opinion, the members of the Selection Committee acted illegally in the matter of preparation of the panel and wrongly excluded the petitioner by not awarding the requisite marks for her B.Ed. qualification. For the afore-mentioned reasons, panel prepared by the Selection Committee is liable to be declared invalid as the same is not tenable in the eye of law. 13. From the foregoing discussions, it will also appear that since the Employment Exchange had been forwarding the list of eligible candidates in phases, the application process was going on and the petitioner acquired her B. Ed, qualification long before the last of such list was received by the School Authority. It is to be noted that the School Authority did not ask for a second list and made only one request. 14. In any view of the matter, the petitioner's case receives support from the decisions of the Supreme Court Case reported in (2000) 5 SCC page 262 cited by Mr. Maity on behalf of the added respondent herein. It is also to be noted that there was no cut-off date fixed by the School Authority in the instant case and as such, the last date of receiving the names from the Employment Exchange is very much material. In the instant case, before the said last date, the petitioner had acquired her B.Ed. qualification. In fact, the petitioner had obtained B. Ed. qualification on the date her name was forwarded by the Employment Exchange with other eligible candidates in the first list and the last list of eligible candidates was admittedly received by the School Authorities a couple of days thereafter. 15. qualification. In fact, the petitioner had obtained B. Ed. qualification on the date her name was forwarded by the Employment Exchange with other eligible candidates in the first list and the last list of eligible candidates was admittedly received by the School Authorities a couple of days thereafter. 15. In my opinion, an eligible candidate whose name was duly sponsored along with other eligible candidates by the Employment Exchange can not lose the benefits of additional qualification on the plea of non-recording of the same initially by the Employment Exchange while forwarding the names of such candidates with requisite qualifications to the employer. The additional qualification of an eligible candidate can not be ignored though the same has been acquired after sponsoring of the name by the Employment Exchange but before the date of last list of eligible candidates forwarded in this regard by the Employment Exchange as has been done in the instant case. So added qualification of an eligible candidate acquired before the date of interview even not initially recorded in the Employment Exchange Register at the time of sponsoring the name should be taken into consideration by the Selection Committee and requisite marks should be awarded in respect of the added qualification at the time of considering the candidature of the candidate by the members of the Selection Committee at the interview. Accordingly, the writ petition succeeds as I find no merits in the objections raised on behalf of the added respondent as well as the State respondents herein. 16. It has been submitted in course of hearing of this petition that pursuant to the earlier judgment and order dated 13th June, 1995 passed by Asok Kumar Chakravorty, J. the District Inspector of Schools (S.E.), Murshidabad, took necessary steps to revise the panel of candidates after awarding requisite marks to the petitioner for the B.Ed. qualification and thereafter, the Managing Committee of the School has issued appointment letter in favour of the petitioner since her name figured at the top after adding the requisite marks for the B.Ed. qualification. The petitioner has already joined in the service of the School as an Assistant Teacher in Geography pursuant to the said appointment letter issued by the Managing Committee and is regularly drawing salary and other allowances as are admissible to the said post. qualification. The petitioner has already joined in the service of the School as an Assistant Teacher in Geography pursuant to the said appointment letter issued by the Managing Committee and is regularly drawing salary and other allowances as are admissible to the said post. The District Inspector of Schools (S.E.), Murshidabad has already approved the appointment of the petitioner in the said post of Assistant Teacher in Geography in the said School. Accordingly, no further direction is required to be passed in the present case. 17. The writ petition is thus disposed of. In the facts and circumstances of the case, there will be, however, no order as to costs. Later: After pronouncement of the judgment, the learned Advocate appearing on behalf of the added respondent prays for stay of operation of this judgment. I do not find any reason to grant such stay. Accordingly, the prayer for stay is refused. Writ application allowed.