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2002 DIGILAW 652 (CAL)

BISWANATH DAS v. STATE OF WEST BENGAL

2002-10-02

A.K.MATHUR, J.K.BISWAS

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A. K. MATHUR, CJ. ( 1 ) THIS reference has been made by the learned single Judge because he does not agree with the finding given in the case of Birendra Pratap Singh by G. R. Bhattacharya, J. (as His Lordship then was ). Therefore, the learned single Judge referred the matter before a Larger Bench for answer that whether the view taken by the Bhattacharya, J. in that case is correct or not. ( 2 ) THE learned single Judge framed three questions for answer before a Larger Bench which reads thus: (A)whether the District Inspector of Schools (SE) of any District has any power/jurisdiction to cancel the panel relating to the interview for appointment of a candidate for the post of teaching and non-teaching staff in terms of the recruitment rule issued by Director of School Education, West Bengal and whether in view of the judgment of this Court in Birendra Pratap Singh (supra) case being an unreported judgment of G. R. Bhattacharya, J. the decision as passed by the District Inspector of Schools concerned in the present case directing fresh interview would be declared as nullity. (B)whether in view of the decision dated 25th August, 1992 directing fresh interview in view of the irregularities in preparation of the earlier panel, the subsequent decision dated 17th March, 1993 confirming such and in absence of any further rectification of the panel, the approval of panel with reference to the interview dated 3. 3. 91 as done by the District Inspector of Schools concerned on 28th March, 1995 would be considered as valid exercise of power and whether such can be given effect to. (C)whether the documents on the basis of which the earlier panel was cancelled and thereby the subsequent panel has been prepared by a fresh interview would be considered as valid and to that effect fate of the writ application. " ( 3 ) BEFORE we advert to answer these three questions as framed by the learned single Judge it may be relevant to state the brief facts which are necessary for the purpose of disposal of this reference. In Taherpur Girls' High School an interview was held for the post of a clerk and a panel was prepared by the Selection Committee, the same was approved by the Managing Committee and thereafter the same was sent to the District Inspector of Schools on 22nd July, 1991. In Taherpur Girls' High School an interview was held for the post of a clerk and a panel was prepared by the Selection Committee, the same was approved by the Managing Committee and thereafter the same was sent to the District Inspector of Schools on 22nd July, 1991. This panel was not approved by the District Inspector of Schools by his communication dated 25th August, 1992 as he found that there are certain defects and therefore he directed for preparation of a fresh panel after holding interview following the existing Rules. Thereafter one writ petition was filed before this Court which was registered as Civil Order No. 2119 (W) of 1993 and the Hon'ble Justice Sushanta Chatterjee, J. (as His Lordship then was) disposed of the writ petition on 13. 1. 1993 directing the District Inspector of Schools to take effective steps regarding approval of the panel within four weeks from the date of communication of the order. Thereafter on 17th March, 1993 the District Inspector of Schools in pursuance or the order passed by the learned single Judge issued an order that since the panel is not worthy of approval because of certain irregularities the Managing Committee after its reconstitution shall take steps for rectification of the panel. Then again on 16th August, 1994 the District Inspector of Schools further reminded the Administrator of the Girls' School to take steps in the matter regarding rectification of the panel in the light of the directions given by Sushanta Chatterjee, J. urgently. Meanwhile new Managing Committee started taking fresh steps in the light of the communication sent by the D. I. dated 25th August, 1992, 17th March, 1993 and 16th August, 1994 by issuing fresh interview letters for selection for the post of clerk to the sponsored candidates and thereafter they prepared the panel. On 1st September, 1995 the new Managing Committee issued letters of interview to the sponsored candidates for recruitment to the post of clerk. On 28th August, 1995 the new D. I. approved the panel sent by the School which was objected to by the earlier D. I. Therefore, the petitioner approached this Court by filing the present writ being Civil order No. 16826 (W)/95 seeking a Mandamus for directing the respondents to issue appointment letter in favour of the petitioner in view of the approval given by the D. I. on 28th August, 1995. In this factual controversy the learned single Judge rejected the prayer of the writ petitioner being prayer 'a' to the writ petition and also held the order of approval dated 28th March, 1995 being annexure 'e' to the writ petition to be bad. But the learned single Judge recorded his disagreement with regard to the view taken by G. R. Bhattacharya, J. that under Rule 28 (2) D. I. can only approve appointment and no approval of the panel for appointment. The view taken by Bhattacharya, J. is not correct; and referred the present controversy before us. Since the reference has been made by the learned single Judge our answer is as above. ( 4 ) THE prayer 'a' of the writ petitioner was rejected by the learned Judge that no writ of Mandamus for enforcement for enforcement of the approval order of the D. I. dated 28th August, 1995 can be issued, therefore nothing survives in this writ petition as far as the petitioner is concerned as his fate is sealed because the learned single Judge quashed the order dated 28th August, 1995. For fresh interview the petitioner has not appeared for selection, therefore the writ petition should have been dismissed on that count. Be that as it may, we will now answer the questions which have been framed by the learned single Judge specifically with regard to the judgment of Bhattacharya, J. in the case of Birendra Pratap Singh. In this connection it may be relevant to mention here that the present case is governed by the Rules for Management of Recognised Non-Government Institutions (Aided and Unaided), 1969. Rule 28 (1) lays down that the Director of School Education will issue necessary guidelines for appointment in Grant-in-Aid Schools and in pursuance of that guidelines have been issued by the Director. The learned single Judge also quoted the same in his judgment, which reads as under:-"5 (A ). . . . . . . . . (C) The panel will be framed with average of marks awarded by each of the members of the Selection Committee. If any member of the Selection Committee wants to keep his opinion reserved the average will be calculated on the basis of marks awarded by other members. . . . . . . . . (C) The panel will be framed with average of marks awarded by each of the members of the Selection Committee. If any member of the Selection Committee wants to keep his opinion reserved the average will be calculated on the basis of marks awarded by other members. (d) The Managing Committee after due consideration and approval shall forward the panel so prepared by the Selection Committee with all relevant papers to the Distinct Inspector of Schools (SE) of the District for approval. The Secretary after being authorised by the Managing Committee of the Administrator will issue intimation for appointment in order of position in the panel through Registered Post Card after receiving the panel duly approved by the District Inspector of Schools (SE ). The District Inspector of Schools (SE) will convey his decision ordinarily within a month from the date of receipt of the panel. The panel will remain for one year with effect from the date of approval of the District Inspector of Schools (SE) despite any of the empanelled candidates either not joining or leaving the post within life-time of the panel. Names of such candidates who do not join within 3 months from the receipt of the appointment letter will be removed from the panel. " ( 5 ) AFTER approval is received from the District Inspector of Schools (SE) then appointment letter is issued and thereafter under Sub-rule 2 of Rule 28 the appointment letter is issued to the incumbent and the same is sent for approval of the D. I. Under Sub-Rule 2 of Rule 28 this power of approval of the appointment has been conferred on the D. I. Sub-Rule 2 of Rule 28 reads as under:"28 (2) if the officer authorised by the Director under sub-rule (1) does not approve of the appointment or extension of service in any case coming under clause (i) or clause (ii) or clause (iii) of sub-rule (1), as the case may be, he shall refer the case to the Director and in the case of disapproval of any appointment or extension of service, the Director or the officer authorised by him shall communicate to the Committee the reasons therefor. " ( 6 ) THEREFORE, the first stage is preparation of approval as required under clause 5 (d) of the guidelines as quoted above. " ( 6 ) THEREFORE, the first stage is preparation of approval as required under clause 5 (d) of the guidelines as quoted above. After panel is prepared by the Selection Committee and approved by the Managing Committee thereafter that panel is sent to the D. I. for approval. After the D. I. approves the panel it sends the same back to the Managing Committee and the Managing Committee thereafter passes the order for appointment under sub-rule 2 of Rule 28. But the Hon'ble Bhattacharya, J. as he then was, erroneously took the view that under sub-rule 2 of Rule 28 panel is to be approved. That is not correct. Under sub-rule 2 of Rule 28 as quoted above, it is the appointment which is approved by the D. I. as a delegated authority of the Director of School Education. This stage only comes after the letter of appointment has been issued. It appears that the guidelines issued under Rule 28 (1) by the Director of School Education seems to not have been brought to the notice of the learned single Judge and the learned single Judge was made to believe that the panel has to be approved under Rule 28 (2) which is not correct. Therefore, the view taken by Bhattacharya, J. that panel has to be approved under sub-rule 2 of Rule 28 is not correct and the learned single Judge is right in observing that the stage under sub-rule 2 of Rule 28 will come after stage one, that is when panel is approved by the D. I. as per the guidelines issued by the Director of School Education under Rule 28 (1) of the Rules. Therefore, we are of the opinion that the view taken by the learned single Judge in Birendra Pratap Singh's case (supra) is not correct and we answer the question that approval under sub-rule 2 of Rule 28 is a second stage when the appointment is issued and the first stage is when the panel for appointment is approved by the D. I. Therefore, we answer the first question framed by the learned single Judge that the District Inspector of Schools has power of approving or not approving the panel forwarded to it by the Managing Committee as the approval includes disapproval of the panel also. The view taken by the learned single Judge in the Birendra Pratap Singh's case (supra) by Justice Bhattacharya does not lay down the correct law. ( 7 ) THE answer to the question (b) is that D. I. 's order dated 28. 3. 1995 is bad because the earlier order dated 25th September, 1992, 17th March, 1993 and 16th March, 1994 are valid orders and till the rectification made in the earlier panel the same could not have been approved. ( 8 ) THE answer to the question (c) is that the panel which has been prepared after cancelling the earlier panel by holding fresh interview of the sponsored candidate by the Managing Committee is correct, and is valid. ( 9 ) LET this matter be remitted back to the learned single Judge to decide in the light of the decision as aforesaid. ( 10 ) THE reference thus stands disposed of. ( 11 ) URGENT certified copy/copies if applied for, the same may be made available to the learned counsel for the parties upon compliance of all the formalities. J. K. Biswas, J.- I agree.