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2002 DIGILAW 139 (CAL)

GANESH CHANDRA SENAPATI v. STATE OF WEST BENGAL

2002-03-01

MAHEMMAD HABEEB SHAMS ANSARI

body2002
M. H. S. ANSARI, J. ( 1 ) ONLY certain relevant facts necessary for the disposal of the instant writ application need to be stated. They are for filling up the post of an Assistant Teacher in Geography in Banipur High School prior permission was granted by the DIS (SE), prescribing the qualifications as M. A. or M. Sc. in Geography along with B. Ed. , PGBT or BT. Interview for the same was held on 27th May, 1997 in terms of the Recruitment rules which came into operation from December 1, 1995. The panel prepared by the school authorities, was approved by the DIS (SE) on 20th October, 1997. It must be stated here that by the said order the panel prepared by the school authorities, which was in the following terms; smt. Sarmila De Dalal-1st. Ajoy Dey - 2nd. Ganesh Senapati (present writ petitioner) - 3rd. was recast by the DIS (SE) by his order dated 20th October 1997 approving the panel in the following manner; smt. Sarmila De Dalal -1st. Shri Ajoy Kumar Dey -2nd. Samar Chandra Samanta (private respondent No. 7) - 3rd. ( 2 ) THE first empanelled candidate Smt. Sarmila De Dalal was at the relevant time working in a different school and at the time of joining in the institution in question after approval of the panel by the DIS (SE) and letter of appointment having been offered to her produced a release letter on 4th December, 1997 i. e. within a month from the date of joining (see Page 34 being the finding arrived at in the order dated 22. 9. 1998 ). ( 3 ) PETITIONER herein filed a writ petition being W. P. No. 4069 (W) of 1998 (Ganesh Chandra Senapati v. State of West Bengal and Ors.) praying for a direction upon the respondents therein to recast the panel prepared by the Selection Committee and to cancel the appointment of respondent No. 6 (Smt. Sarmila De Dalal) in the said post and for appointing the petitioner in her place as an Assistant Teacher in Geography. ( 4 ) FIRST empanelled candidate Smt. Sarmila De Dala also filed a writ application being W. P. No. 8848 (W) of 1998 (Smt. Sarmila De Dalal v. State of West Bengal) praying for a direction upon the DIS (SE) to release her salary. ( 4 ) FIRST empanelled candidate Smt. Sarmila De Dala also filed a writ application being W. P. No. 8848 (W) of 1998 (Smt. Sarmila De Dalal v. State of West Bengal) praying for a direction upon the DIS (SE) to release her salary. ( 5 ) THE two writ applications were heard analogously by His Lordship Bhaskar Bhattacharya, J and disposed of by a common order dated 22. 9. 1998. Bhattacharyya, J. framed 3 questions, which had arisen for consideration of the two matters as under;" (A) Whether the Employment Exchange can sponsor the name of Sharmila for the aforesaid post knowing fully well that she was acting as an Assistant Teacher in a different school and the instant post was not a higher post than the one held by Sarmila? (B) Whether name of Sarmila could be considered by the school authority although she did not deposit "no objection" certificate from her ex-employee at the time of appearing at the interview? (C)whether Ganesh although an M. A. in Geography not having Geography as a subject in graduation level is entitled to be considered for the post of Assistant Teacher in Geography?" ( 6 ) IN so far as, the contention of the petitioner herein Ganesh Chandra Senapati, as regards, the appointment of the first empanelled candidate Smt. Sarmila De Dalal is concerned, Bhaskar Bhattacharya, J held as follows;"??therefore, according to Rule 6 (O) of the Recruitment Rule, 1995, she could join within 3 months from the date of receipt of the same. She having deposited all papers including release order on December 4, 1997. In my opinion, her appointment cannot be disapproved on the ground of non-production of release order on the date of joining. At the most, it can be argued that she should be deemed to have joined on December 4, 1997. Therefore on consideration of the entire materials on record I conclude that the appointment of Sarmila to the post in question is in no way violative of any of the provisions contained in the Recruitment Rules, 1995. " ( 7 ) POINTS (a) and (b) were accordingly held in favour of Smt. Sarmila De Dalal and against Shri Ganesh Chandra Senapati. " ( 7 ) POINTS (a) and (b) were accordingly held in favour of Smt. Sarmila De Dalal and against Shri Ganesh Chandra Senapati. ( 8 ) AS regards, point No. (c) the learned Judge observed that in view of his findings on points No. (a) and (b) there is no necessity to arrive at any conclusion on the said point. It was, however, observed as under;"???therefore, I refrain from deciding this point in the absence of Samir Chandra Samanta and Ganesh is at liberty to file a fresh writ application for adjudication of this point after making Samir Chandra Samanta a party respondent if he so desired. Therefore in view of my findings above Ganesh is not entitled to get any relief in his writ application and the same being W. P. No. 4069 (W) of 1998 is dismissed with the above observations. " ( 9 ) PERHAPS taking clue from the above observations the petitioner herein filed the present writ application inter alia contending that Smt. Sarmila De Dalal after joining the school left the school on November 20, 1998 (see Para 4 ). The second candidate, it is stated also joined in another institution and informed the school authorities of the same by his letter dated December 10, 1998. It is, therefore, the contention of the petitioner that he being the third in the panel should be offered the appointment. ( 10 ) ON behalf of the petitioner it is contended that the action of the DIS (SE) in recasting the panel by placing 4th candidate in the panel prepared by the school authorities as a "third candidate" in the panel was wholly without jurisdiction and therefore, petitioner being the "third candidate" is entitled to be offered the said appointment. ( 11 ) WHEN the instant writ application was moved on April 7, 1999 the writ petition was dismissed on the ground that consequent upon amendment of Rule 28 of the Management Rules with effect from 1st November, 1997 the school can appoint a teacher in the vacant sanctioned post only on the recommendation of West Bengal Regional School Service Commission and not otherwise. ( 12 ) AGGRIEVED by the aforesaid order passed by Barin Ghosh, J. the petitioner herein filed an appeal being M. A. T. No. 1765 of 1999, which was disposed of by an order dated 14. 1. 2000. ( 12 ) AGGRIEVED by the aforesaid order passed by Barin Ghosh, J. the petitioner herein filed an appeal being M. A. T. No. 1765 of 1999, which was disposed of by an order dated 14. 1. 2000. The Division Bench in its said order set aside the order under challenge and remanded the matter back for being contested after filing of affidavit. It was made clear by the Division Bench that it had not gone into the merits of the appellant's (petitioner herein) claim to be appointed as an Assistant Teacher in Geography in any manner whatsoever. ( 13 ) MR. Jamini Kumar Banerjee learned advocate appearing along with Mr. Mrinal Kanti Roy, Mr. K. C. Sahoo, learned Advocates for the petitioner contended that the first empanelled candidate having after appointment joined another school and second candidate likewise joined another institution, petitioner herein as the third empanelled candidate should be offered the appointment in the post. It was further contended that the DIS (SE) acted without jurisdiction by substituting the name of respondent No. 7 namely, Samir Chandra Samanta as the third man in the panel and excluding therefrom the name of the petitioner. ( 14 ) MR. Anil Chakraborty learned Advocate for the added respondent No. 7 (Samir Chandra Samanta) submitted that the petitioner obtained M. A. degree in Geography from Ghasidas University, Bilaspur, M. P. The petitioner was having the qualification B. Sc. (Pass) without any combination subject of Geography and therefore, the DIS (SE) was justified in law for recasting the panel by upgrading respondent No. 7 in the third position instead of the petitioner. ( 15 ) FROM the narration of facts as above, it will be apparent that the panel was approved on 20th October, 1997 by the DIS (SE ). The life of panel is for a period of one year. Petitioner herein had questioned the empanelment of the first empanelled candidate (Smt. Sarmila De Dalal ). The appointment had been offered to the first empanelled candidate but no salary was paid to her and thereupon the first empanelled candidate preferred writ petition being 8848 (W) of 1998. Both the writ petitions were disposed of by an order dated September 22, 1998, rejecting the claim of the petitioner herein and granting the relief as prayed for to the first empanelled candidate. Both the writ petitions were disposed of by an order dated September 22, 1998, rejecting the claim of the petitioner herein and granting the relief as prayed for to the first empanelled candidate. The life of the panel expired on 20th October, 1998 and even according to the petitioner the first empanelled candidate resigned with effect from November 19, 1998 and the same was accepted by the school authorities on November 20, 1998. ( 16 ) IN my view, therefore, the vacancy that has arisen consequent upon the resignation of the first empanelled candidate is after the life of the panel expired. Hence, selected candidate (first empanelled candidate) having joined duty, as in the case on hand, and no vacancy having arisen due to resignation or for any other reason within the period the panel is to operate under the Rules, the other candidates in the said panel cannot claim appointment by virtue of their empanelment in the said panel after its date of expiry (see Gujarat State Deputy Ex Engineers v. State of Gujarat) 1994 (suppl) 2 SCC 591. ( 17 ) I cannot accede to the contention of the petitioner as urged by Mr. Jamini Kr. Banerjee that by virtue of the observations in relation to point (c) by Bhaskar Bhattacharya, J extracted supra, petitioner has a surviving cause of action in being considered for appointment. Bhattacharya, J has categorically held that petitioner is not entitled to get any relief in the writ application filed by him and same being W. P. No. 4069 (W) of 1998 was dismissed. Point (c) was not considered necessary to be decided in that proceeding in view of the findings in respect of points (a) and (b ). The matter would have merited consideration here if the vacancy had arisen during the life of the Panel. ( 18 ) THE life of the panel expired on 20th October, 1998 whereas the affidavit in support of the Instant writ application has been affirmed on 11th January, 1999. In other words, the petitioner has approached the Court after the life of the panel expired. The petitioner cannot, therefore, claim any right based upon his alleged empanelment in the said panel which ceased to have any effect after its expiry. ( 19 ) IN State of U. P. and Ors. v. Harish Chandra and Ors. In other words, the petitioner has approached the Court after the life of the panel expired. The petitioner cannot, therefore, claim any right based upon his alleged empanelment in the said panel which ceased to have any effect after its expiry. ( 19 ) IN State of U. P. and Ors. v. Harish Chandra and Ors. reported in AIR 1996 SC 2173 , it was held as under;"we really fail to understand how the High Court could issue the impugned direction to recruit the respondents who were included in the select list ???? and the list no longer survived after one year and the rights, if any, of persons included in the list did not subsist ???? it is difficult for us to sustain the direction given by the High Court. Since, admittedly, the life of the select list prepared on 4-4-87 had expired long since and the respondents who claim their right to be appointed on the basis of such list, do not have a subsisting right on the date they approached the High Court. " ( 20 ) THE aforesaid ratio of the Supreme Court judgment squarely applies to the facts of the case on hand. ( 21 ) IN the circumstances, the writ application is liable to be and is accordingly dismissed. Interim orders, if any, shall stand vacated forthwith. There shall, however, be no orders as to costs. Let urgent xerox certified copy of this judgment and order be furnished to the appearing parties, if applied for, on priority basis. Application dismissed.