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2001 DIGILAW 395 (CAL)

Prabhat Kumar Bhattacharyya v. Balai Chand Jana

2001-07-05

ASHOK KUMAR MATHUR, GIRISH CHANDRA GUPTA

body2001
JUDGMENT The judgment of the Court was as follows :–– Mathur, C. J. : This is an Appeal directed against the order passed by a learned Single Judge of this Court whereby the learned Single Judge allowed the writ petition and directed the School Authorities to issue letter of appointment in favour of the petitioner who was the only eligible candidate in the approved panel and satisfied all prescribed qualifications mentioned in the Sanction Memo. dated 25th March, 1987 issue by the Directed of School Education within a period of fortnight from the date of communication of that order. It was also directed that the School Authorities should forward the relevant papers and documents to the District Inspector of Schools (SE), Midnapore within a fortnight from the date of joining of the petitioner to the School, seeking approval of appointment and the District Inspector of Schools was also directed to pass necessary orders for approval of the appointment of the petitioner within a period of 7 days thereafter. Aggrieved against this order the present appeal has been filed by the private respondent. 2. Brief facts which are necessary for disposal of this appeal are : The Director of School Education, West Bengal by Memo, dated 25th March, 1987 sanctioned one additional post of Assistant Teacher in Rambharapur Junior High School in language group. The post of the Assistant Teacher was sanctioned in language group and the qualification laid down was B.A. with Physical Education. It was also mentioned in the aforesaid Memo, that the change of subject teacher in respect of the sanctioned additional post may not be accorded without permission of the Directorate. 3. The sanction issued by the Director of School Education, West Bengal dated 25th March, 1987 is reproduced hereunder:– Government of West Bengal Directorate of School Education 6, Bhabani Dutta Lane, Calcutta-73 Memo No. 446-SC/G Dated, Calcutta the 25.3.87 From : The Director of School Education, West Bengal To : The District Inspector of Schools (SE) Midnapore P. O. & Dist.-Midnapore. The sanction issued by the Director of School Education, West Bengal dated 25th March, 1987 is reproduced hereunder:– Government of West Bengal Directorate of School Education 6, Bhabani Dutta Lane, Calcutta-73 Memo No. 446-SC/G Dated, Calcutta the 25.3.87 From : The Director of School Education, West Bengal To : The District Inspector of Schools (SE) Midnapore P. O. & Dist.-Midnapore. Sub : Sanction of Additional Posts of Assistant Teacher in Junior High School/Junior High Madrasah sanctioned in terms of G. O. No. 17-10-Edn(S) dated 11.12.85 In terms of G.O. No. 17-10-Edn (S) dated 11.12.85 additional post(s) in Junior High Madrasah is sanctioned for two years with effect from 1.4.87 on/from any subsequently date(s) on which the post(s) is/are actually filled up, subject to fulfilment of usual terms and conditions for opening of additional class units due to increase in roll strength. School authority will take immediate steps to fill up the post(s) strictly according to the existing recruitment procedure. Name of the School. For retention of the post beyond Rambhadrapur Jr. High School this stipulated period the school authority with a proposal through the District Inspector of Schools (SE) concerned at least six months ahead from the date of expiry of the period of sanction of the post(s). Payment beyond the period of sanction should not be made without obtaining specific orders of retention from this Director. No. of Post(s) sanctioned Total Language or Social Science B.A. with Phy. Education 1 (one) Work Education-Gr. 1 (one) This raises the total strength Change of subject teachers of teaching staff to 11 (eleven) of this present sanctioned including Headmaster/Headmistress additional post(s) may be accorded from his/her and without permission of this Directorate. Sd/- R. P. Banerjee For Director of School Education West Bengal Memo No. 4461 (1) SC/G dated Calcutta the 25.3.87 Copy forwarded to the Secretary/Administrator Rambhadrapur Jr. High School P.O. Rambhadrapur, Dist-Midnapore for information and necessary action. Sd/Illegible For Director of School Education West Bengal" 4. The School Authorities approached the District Inspector of Schools (S.E.), Midnapore for according a prior permission for appointment. High School P.O. Rambhadrapur, Dist-Midnapore for information and necessary action. Sd/Illegible For Director of School Education West Bengal" 4. The School Authorities approached the District Inspector of Schools (S.E.), Midnapore for according a prior permission for appointment. On 18th January, 1990 the prior permission was accorded by the District Inspector of Schools for appointment against the additional post of a teacher with the qualification of B.A. with English as one of the combination subjects along with P.G.B.T. Thereafter again on 4th February, 1993 the School Authorities approached the District Inspector of Schools (SE) for prior permission for filling up of this vacancy. That on 4th February, 1993 on the request of the School Authorities the District Inspector of Schools (SE), Midnapore accorded a fresh permission for filling up of the additional post created under Sanction Memo. of the Director of School Education dated 25th March, 1987 by issuing fresh Memo. dated 18th February, 1993. However, the District Inspector of Schools (SE) while issuing the sanction dated 18th February, 1993 accorded the permission but changed the prescribed qualification as graduate with Physical Education or equivalent training instead of B.A. with Physical Education. On receipt of this permission the School Authorities approached the Employment Exchange, Kharagpur for sponsoring the names of the candidates including the petitioner. However, the Employment Exchange Authorities did not sponsor the name of, one Respondent No. 11. Therefore Respondent No. 11 Prabhat Kumar Bhattacharyya moved this Court by filing a writ petition and the learned Single Judge of this Court by the order dated 2nd April, 1993 directed the School Authorities to permit the petitioner Prabhat Kumar Bhattachayya to appear before Selection Committee for selection of the post. The petitioner as well as the Respondent Prabhat Kumar Bhattacharyya (now appellant) were invited for by the Selection Committee for interview. They appeared for interview on 4.8.1993 with other candidates. The Selection Committee prepared a panel of three candidates and submitted the same to the Managing Committee. The Managing Committee of the School held a meeting on 4th August, 1993 in an unusual haste and approved the Panel and forwarded the same to the District Inspector of Schools on 5th August, 1993 along with the relevant records. The Selection Committee prepared a panel of three candidates and submitted the same to the Managing Committee. The Managing Committee of the School held a meeting on 4th August, 1993 in an unusual haste and approved the Panel and forwarded the same to the District Inspector of Schools on 5th August, 1993 along with the relevant records. The petitioner raised objection and submitted a written representation to the District Inspector of Schools on the very next date i.e. on 6th August, 1993 indicating the various irregularities and requested for necessary inquiry. The petitioner also made a complaint before the Director of School Education. Since the name of the Respondent No. 11 (now appellant) appeared at serial No.1 in the panel the same was approved and the letter of appointment was issued in favour of Respondent No. 11 and the same was sent by registered post on 6th August, 1993 and on 7th August, 1993 respondent No. 11 joined the school against the said post. This appointment of Respondent No. 11 was challenged by filing present writ petition. The petitioner challenged the entire selection process and also raised various objections to the conduct of the selection including the fact that the District Inspector of Schools has changed the qualification for the post in a clear violation of the Sanction Memo. dated 25th March, 1987 issued by the Director of School Education. The matter was opposed by the Respondent No. 11 and he contested the matter and submitted that he was qualified according to the Rules and therefore the selection & appointment does not suffer from any illegality. The learned Single Judge examined the matter in detail and came to the conclusion that the initial qualification which was laid down in the sanction memo. issued by the Director of School Education the District Inspector had no authority to change that qualification and therefore the selection of the Respondent No. 11 on the basis of changed qualification was illegal and it was also held that undue haste has been done in filling up of the vacancy in favour of Respondent No. 11. Hence he allowed the writ petition, quashed the letter of appointment of Respondent No. 11, but directed the School Authorities to appoint the petitioner. Hence the present Appeal. 5. We have heard the learned Counsel for the parties. Hence he allowed the writ petition, quashed the letter of appointment of Respondent No. 11, but directed the School Authorities to appoint the petitioner. Hence the present Appeal. 5. We have heard the learned Counsel for the parties. It is an admitted fact that the Director of School Education laid down the qualification for appointment for the post, i.e. B.A. with Physical Education and the District Inspector of Schools changed the qualification and laid down as graduate with Physical Education or equivalent in training. The Director of School Education while sanctioning the post has laid down the qualification, the District Inspector being a junior officer than that of the Director of School Election should not have varied the qualification which was laid down in the Sanction Memo. of the Director of School Education. It could have been possible for the D.I. to have changed the qualification from B.A. (Bachelor of Arts) to Graduate with the prior permission of the Director of School Education. However, no affidavit in opposition was filed by the State. Therefore for abundant precaution we directed the Counsel for the State to seek instruction that whether the Director of School Education has accorded necessary permission to D. I. for varying the qualification laid down in Sanction Memo. Learned Counsel for the State after instruction informed the Court that no such permission was granted by the Director of School Education. Thus, the fact remains that when the Director of School Education has already laid down the qualification at the time of sanctioning the post, could a junior officer in the rank of D.I. on his own vary the qualification or not. Answer is in negative. The D.I. in the scheme of things cannot override the Creation Memo. and lay down the qualification on his own or change the qualification laid down in the Creation Memo. If there was any request made before the D.I. for some reasons and it was felt necessary then only proper course for the D.I. was to have moved the Director for amendment of the Sanction Memo. But, that course was not resorted to and the D.I. on his own changed the qualification and the recruitment was undertaken despite the contest made by the writ-petitioner. In fact the petitioner filed the petition to the Director of School Education and the Director of School Education sought the information, but without any result. But, that course was not resorted to and the D.I. on his own changed the qualification and the recruitment was undertaken despite the contest made by the writ-petitioner. In fact the petitioner filed the petition to the Director of School Education and the Director of School Education sought the information, but without any result. The subordinate authority cannot override the order passed by the superior authority, i.e. the competent authority for sanctioning the post and admittedly in the present case the post which was sanctioned by the Director has been with the qualification of B.A. with Physical Education or equivalent training. This change of qualification by the D.I. was totally without jurisdiction and the whole selection which was proceed on illegal basis cannot stand. 6. Learned Counsel for the Appellant has strenuously urged before us that if the appellant cannot be selected and appointed then equally the writ-petitioner also cannot be stand to benefit. Since, the basis on which the selection has proceeded which stands vitiated on the basis of the illegality committed by the D.I. then the writ-petitioner cannot also seek mandamus that since he is qualified as per the qualification laid down by the Director, he should be appointed against the post. The learned Single Judge has issued a direction in favour of the writ-petitioner directing the authorities to make the appointment against the post, that too also cannot be sustained as we have found that the selection proceeded on erroneous basis as the qualification has been varied by D.I. who had no jurisdiction to do. Therefore the entire selection has to go and the fresh selection has to be undertaken in accordance with rules. 7. Learned Counsel for the appellant has urged before us that looking to the equity in the matter though the selection is illegal, still appellant be allowed to continue as he is working for long time and in that connection he has made a reference to some of the decisions of the Apex Court. But the question remains that there is a lis between other candidates. Had there been no lis of the other candidates then perhaps on the basis of the equity we could have allowed the petitioner to continue, but we haven to see the equity of the others also. But the question remains that there is a lis between other candidates. Had there been no lis of the other candidates then perhaps on the basis of the equity we could have allowed the petitioner to continue, but we haven to see the equity of the others also. The petitioner filed a writ petition and challenged the selection and he has succeeded before the learned Single Judge as well as before us and inspite of that if the appellant is allowed to continue then it will be equally harsh and inequitable against the petitioner. Learned Counsel has invited our attention to a decision in the case of (1) H. C. Puttaswamy & Ors. v. The Hon'ble Chief Justice of Karnataka High Court reported in AIR 1991 Supreme Court 295. In this case the employees of Subordinate Courts were appointed by the Chief Justice of the High Court of Karnataka without consulting the Public Service Commission. The Court found that the appointment was not proper. However, the Apex Court on the humanitarian ground allowed all the appointees to be treated as regularly appointed with all benefit of past service. But, here the considerations are different, the writ-petitioner succeeded before the learned Single Judge as well as before this Court and now if the appellant is allowed to continue then it will be inequitable. Learned Counsel has also invited our attention to the case of (2) Ashok Kumar Yadav and Others v. State of Haryana and Others reported in AIR 1987 Supreme Court 454. This judgment was considered by their Lordships in the case of H. C. Puttaswamy & Ors. v. The Hon'ble Chief Justice of Karnataka High Court (supra). Therefore, we need not to discuss this case over again. 8. Similar view was taken in the case of (3) State of U. P. v. Rafiquddin reported in AIR 1988 SC 162 and in the case of (4) Miss Shainda Hasan v. State of Uttar Pradesh reported in AIR 1990 SC 1381 . All these cases were considered in the case of H. C. Puttaswamy (supra). Therefore, we need not to discuss these cases over again. Our attention was invited to the decision of the Apex Court in the case of (5) Dr. Meera Massey & Ors. v. Dr. S. R. Mehrotra & Ors. reported in 1998(3) SCC 88 . All these cases were considered in the case of H. C. Puttaswamy (supra). Therefore, we need not to discuss these cases over again. Our attention was invited to the decision of the Apex Court in the case of (5) Dr. Meera Massey & Ors. v. Dr. S. R. Mehrotra & Ors. reported in 1998(3) SCC 88 . This was a case in which their Lordships found that regularisation of all ad hoc appointees was made dehors the rules and held it to be ultra vires. Their Lordships did not interfere with the appointments on humanitarian grounds. However, it was clearly laid down that the decision shall not be treated as a precedent. Therefore, this case also does not help the petitioner. All cases depend on their peculiar facts. 9. Our attention was also invited to a decision of the Apex Court referred by the learned Counsel for the respondent in the case of (6) State of M. P. & Anr. v. Dharam Bir reported in 1998(6) SCC 165 . In this case their Lordships held that equities are to be balanced to do justice with both the parties. The human approach should not till the balance in favour of one party and Courts cannot ignore the statutory provisions. Therefore, their Lordships declined to take a humane approach and to suffer illegality to the detriment of candidates duly selected in accordance with law. Similar is the position here. Here the petitioner felt aggrieved against the illegal action of the D.I. by changing the qualification against the creation memo and laid down his own qualification and permitted the selection to be made despite protest made by the writs petitioner with undue haste. Therefore, we cannot on the face of these glaring facts accept the contention of the learned Counsel for the appellant to allow this illegal appointment to continue on humanitarian ground. 10. As a result of the above discussion, we are of the opinion that the view taken by the learned Single Judge cannot be said to be wrong. However, the direction given by him for appointment of the writ petitioner against the post cannot be sustained. Since, we have already found that the selection is illegal and the same stands vitiated then the panel prepared on that basis also stands vitiated and no benefit would accrue in favour of either party i.e. either the appellant or the petitioner. However, the direction given by him for appointment of the writ petitioner against the post cannot be sustained. Since, we have already found that the selection is illegal and the same stands vitiated then the panel prepared on that basis also stands vitiated and no benefit would accrue in favour of either party i.e. either the appellant or the petitioner. Therefore the whole selection is set aside. 11. It is relevant to mention here that now the new Act has come into force i.e. West Bengal School Service Commission Act, 1997 with effect from 1st of November, 1997. Therefore, all the selection in the West Bengal will have to be under the provisions of this Act. According to Section 9 which has the overriding effect says that "Notwithstanding anything contained in any other law for the time being in force or in any contract, custom or usage to the contrary, appointments to the post of Teachers in a school shall be made by the Managing Committee, by whatever name called, or by the ad hoc committee, or by the administrator, if any (where there is no managing committee), of that school on the recommendation of the Regional Commission having jurisdiction" and in sub-section (2) of section it is laid down that any appointment of Teacher made on after the commencement of this Act in contravention of the provisions of this Act shall be invalid and shall have no effect and the Teacher so appointed shall not be a Teacher within the meaning of Clause (p) of Section 2 of the Act. Therefore, no appointment now can be made for a teacher in the State of West Bengal except on the recommendation of the Service Commission of the concerned region. Therefore, it is not possible to direct the Managing Committee to make recruitment for this post created under the Creation Memo dated 25th March, 1987. Let this post now be sent to the concerned Service Commission to make the necessary recruitment in accordance with the Act and the rules. 12. The appeal of the appellant has, therefore, no merit and the same is dismissed with the modification of the order as aforesaid passed by the learned Single Judge. No order as to costs. Gupta, J.: I agree. Later On––Request for stay as prayed for by the learned Counsel for the appellant, is considered and the same is rejected. 12. The appeal of the appellant has, therefore, no merit and the same is dismissed with the modification of the order as aforesaid passed by the learned Single Judge. No order as to costs. Gupta, J.: I agree. Later On––Request for stay as prayed for by the learned Counsel for the appellant, is considered and the same is rejected. Urgent xerox certified copies of this order, if applied for by the parties, be delivered to them. Mathur, C.J. Gupta, J.