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2003 DIGILAW 303 (CAL)

TAPAN KUMAR DAS v. STATE OF WEST BENGAL

2003-06-26

BHASKAR BHATTACHARYA

body2003
B. BHATTACHARYYA, J. ( 1 ) BY this writ application, the writ petitioner has prayed for direction upon the respondent/school Authority to forthwith give appointment letter to the petitioner for the post of Class IV staff on the ground that he stood first in the panel and such panel had already been approved by the concerned District Inspector of Schools. Following facts are not in dispute: ( 2 ) THE petitioner appeared at the interview for the post of class IV staff from Scheduled Caste category and his name appeared at the top of the panel prepared by the Selection Committee. The School Authority endorsed the panel and submitted the same for approval before the District Inspector of Schools (SE), Howrah. It appears that District Inspector of Schools (SE), Howrah, approved the panel vide Memo No. 1291/n dated 3rd October, 2000. But the same was lost in its way to school. The School Authority thereafter requested the District Inspector of Schools concerned to supply the duplicate copy of the approved panel so that they could take action on the basis of such order. ( 3 ) THERE is no dispute that the District Inspector of Schools issued a duplicate copy of approved panel vide Memo No. 653/n dated 19th October, 2000. ( 4 ) THE grievance of the writ petitioner is that inspite of the aforesaid fact, the school concerned has not given the appointment letter to the petitioner although he stood first in the panel. ( 5 ) NONE appears on behalf of the School Authority but Mr. Dutt, the learned counsel appearing on behalf of the State/respondents has opposed this application on a pure technical ground. Mr. Dutt contends that according to Rule 6 (O) of the recruitment rules, the panel approved by District Inspector of Schools remains valid for one year from the date of approval of such panel and after the expiry of one year, the petitioner cannot have any legal right even to be considered for the aforesaid post. Mr. Dutt points out that in this case panel having been approved in the month of October, 2000, the case is no longer alive and as such, the petitioner has no existing legal right to enforce through this writ application. Mr. Mr. Dutt points out that in this case panel having been approved in the month of October, 2000, the case is no longer alive and as such, the petitioner has no existing legal right to enforce through this writ application. Mr. Dutt, however, in his usual fairness, did not dispute the fact that the petitioner stood first in the panel as would appear from the xerox copy of the panel annexed to this writ application. ( 6 ) IN support of his contention, Mr. Dutt placed strong reliance upon the decisions of the Supreme Court in the cases of State of Uttar Pradesh and Ors. v. Harish Chandra and Ors. reported in (1996)9 SCC 309 and State of Bihar and Ors. v. Md. Kalimuddin and Ors. reported in (1996)2 SCC 7 . ( 7 ) IN the case of State of Uttar Pradesh and Ors. v. Harish Chandra and Ors. (supra) the Supreme Court was considering the scope of selection to the post in class III and class IV under a Statutory Rule called the Sub-ordinate Officers Clerical Staff (Direction Recruitment) Rules, 1985. Under the Rules, the Appointing Authority is required to determine the number of vacancies to be filled during the course of year and notify the same to the Employment Exchange for sponsoring candidates. The Appointing Authority is also entitled to invite applications directly by issuing an advertisement in a local daily newspaper. On receipt of the names of the candidates, the Selection Committee should prepare a merit list in the manner prescribed under Rule 23. The Selection Committee then should forward the list thus prepared to the Appointing Authority under Rule 26 mentioning the aggregate marks obtained at the selection by each candidate. The names of candidates are arranged by the Appointing Authority in accordance with the merit of the candidates and thereafter the appointments are offered in the order in which the names are arranged. ( 8 ) THE respondents approached the High Court alleging, inter alia, that although there existed vacancies during the year 1987 and the select list was prepared on 04/04/1987 but the Appointing Authority arbitrarily did not fill up the vacancies and the respondents having failed in their attempt by filing representations, approached the Court for issuance of mandamus. ( 8 ) THE respondents approached the High Court alleging, inter alia, that although there existed vacancies during the year 1987 and the select list was prepared on 04/04/1987 but the Appointing Authority arbitrarily did not fill up the vacancies and the respondents having failed in their attempt by filing representations, approached the Court for issuance of mandamus. It was also alleged that Appointing Authority ignoring the select list prepared by the Statutory Selection Committee had been filling up the vacancies in accordance with its own sweet will and the right of the candidates in the select list was thereby being infringed. The appellant filed counter affidavit controverting the allegations made in the writ application and took the positive stand that the select list of the year 1987 became inoperative after lapse of one year from the date of selection and, therefore, the applicants who claimed to be in the select list prepared on 04/04/1987 did not have any right to be appointed as the life of the list had expired by 04/04/1988. It was also pleaded before the High Court that there did not exist any vacancy during the year as contended in the writ application. The High Court came to the conclusion that several vacancies having occurred after 04/04/1987 on account of superannuation of many of the existing employees, the stand of the State that there existed only one vacancy could not be accepted. With such findings, direction was issued to appoint writ petitioners. ( 9 ) WHILE deciding such appeal, the Supreme Court was of the opinion that in view of statutory provisions contained in Rule 26, the conclusion was irresistible that a select list prepared under Recruitment Rule had its life only for one year from the date of preparation of the list and the same expired thereafter. Rule 26 is quoted hereunder:rule 26: Appointment by appointing authority.-The select list referred to in sub-rules (6) and (7) of Rule 23 shall be forwarded by the Selection Committee to the appointing authority mentioning the aggregate marks obtained at the selection by each candidate. Rule 26 is quoted hereunder:rule 26: Appointment by appointing authority.-The select list referred to in sub-rules (6) and (7) of Rule 23 shall be forwarded by the Selection Committee to the appointing authority mentioning the aggregate marks obtained at the selection by each candidate. The name of general and reserve candidates shall be arranged by the appointing authority in a common list according to the merit of the candidates and the appointment shall be offered in the order in which the names are arranged in the list shall hold good for a period of one year from the date of selection. ( 10 ) WHILE interpreting the aforesaid rule the Supreme Court held that no direction could be given by the High Court to recruit the respondents who were included in the select list prepared on 04. 04. 1987 after the expiry of one year as right of the person included in the list did not subsist after one year. ( 11 ) IN the case of State of Bihar and Ors. v. Md. Kalimuddin and Ors. (supra), the Director, Primary Education, Bihar, issued an advertisement on August 7, 1988 inviting applications for appointment to the post of Assistant Teachers. The respondent applied and they were all interviewed by a Selection Committee in July, 1989 and thereafter a panel of 273 persons including the respondents were prepared by the said committee on 19th January, 1991. Out of the candidates so selected, the Director approved the names of 98 persons for appointment on 30th January, 1991 and the remaining candidates remained on the panel described as the waiting list. Out of 98 candidates only 91 joined. The panel of the remaining candidates was prepared on 26th August, 1991 which was described as revised waiting list. Some of the candidates, who were not appointed, moved the High Court by way of writ petition on 20th January, 1992. It was contended on behalf of the Government that a candidate placed on the waiting list had no right to appointment and in any case, the waiting list could not be a list which would ensure indefinitely till every candidates on the list were appointed. It was contended on behalf of the Government that a candidate placed on the waiting list had no right to appointment and in any case, the waiting list could not be a list which would ensure indefinitely till every candidates on the list were appointed. According to the Government, under the provisions of clause (6) of Rule 5, the list of candidates prepared could ensure for one year only from the date of approval of the project by the Selection Committee and on the expiry of that period, which expired two days before the filing of the writ application, the list would stand exhausted. The High Court pointed out that against 160 vacancies only 98 persons were given appointment, out of them 91 reported on duty and the rest were denied appointment for no valid reason. The Clause 6 of Rule 5 is quoted below:every teacher will be appointed on probation for two years. The list of candidates prepared for direct appointment will be valid of one year from the date of approval of the project by Selection Committee. ( 12 ) UNDER such circumstances, the Supreme Court by relying upon the earlier decision of that Court in the case of Shankarsan Dash ( AIR 1991 SC 1612 ) held that even if vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates do not acquire an indefeasible right to be appointed, unless the relevant rules indicate to the contrary. The Supreme Court further held that it was indeed expected of the State to act bona fide and there should be valid reasons in refusing to make the appointments after selection process had been gone through. ( 13 ) IN the case of Shankarsan Dash v. Union of India (supra) it has been held by Supreme Court that if a number of vacancies is notified for appointment and adequate number of candidates are found fit, the successful candidates do not acquire any indefeasible right to be appointed against the existing vacancies. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the Supreme Court proceeded, the State is under no legal duty to fill up all or any of the vacancies. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the Supreme Court proceeded, the State is under no legal duty to fill up all or any of the vacancies. ( 14 ) THE aforesaid decisions make it abundantly clear that whether a person who has been selected has indefeasible right to be appointed depends upon the provision of the rules by virtue of which selection is made. In the present case, the panel was prepared in accordance with the recruitment rules. Sub-rules (j) and (o) of the Rule 6 are important and those are quoted below: (J): the total marks awarded to each of the candidates on the items mentioned before shall be computed and panel consisting of three candidates in order of merit shall be prepared for submission to the Managing Committee. Panel of less than three candidates can be prepared only for the posts reserved for S. C. and S. T. /o. B. C. candidates provided the names of three or more candidates are not available inspite of all possible efforts. (O): on getting approval of the panel, the Managing Committee/ad-hoc Committee/administrator of School shall issue appointment letter to the first empaneled candidate within 15 days through Registered Postcard/registered Inland letter. The panel shall remain valid for one year from the date of approval of the panel by the DIS (S ). If any candidate fails to join within three months from the date of receipt of appointment letter or leaves post within the validity of the panel, the next empaneled candidate shall be offered appointment. Name of such candidates who do not join within three months from the date of receipt of appointment letter shall be struck off from the panel. (emphasis supplied) ( 15 ) A bare reading of sub-rule (o) leaves no doubt that the Managing Committee/ad-hoc Committee/administrator of the School is bound to issue appointment letter to the first empaneled candidate within 15 days through registered postcard or registered inland letter. Therefore, the first empaneled candidate has an indefeasible right to get appointment letter within 15 days from the date of approval of panel by the District Inspector of School (SE ). Therefore, the first empaneled candidate has an indefeasible right to get appointment letter within 15 days from the date of approval of panel by the District Inspector of School (SE ). If the first man refuses to accept the job, the School Authority will wait for three months and thereafter will offer the appointment to the second man and on refusal of the second man the appointment will be offered to the third man of the panel after expiry of three months. If any selected person after joining resigns or for any other reason vacates the post, the next empaneled candidate will be offered employment, if such post is vacated within one year from the date of approval of panel. Therefore, the statutory mandate that the panel shall remain valid for one year from the date of approval of panel as indicated in sub-rule (o) should be read along with the first sentence of the said sub-rule and the outcome of such statutory provision is that so far first empaneled candidate is concerned, he is not affected by such life time of the panel because the said sub-rule enjoins a duty upon the School Authority to issue an appointment letter within 15 days. The right to be considered within one year time is conferred upon other members of panel than the first one under the circumstances mentioned therein. ( 16 ) IN the present case, the petitioner is the first empaneled candidate, therefore, according to the recruitment rule he has an indefeasible right to get appointment and such right is not taken away merely because one year time has expired for the inaction of the school. The petitioner is not a waiting list candidate, and the moment the panel is approved the law enjoins that the appointment letter must be issued in his favour within 15 days. Thus, such a right is not taken away after the expiry of one year as contended by Mr. Dutt. By restricting the life of the panel to one year, the legislature intended that in case of refusal by the first, no further selection need be made but appointment can be give from the waiting list of the selfsame panel within one year. Dutt. By restricting the life of the panel to one year, the legislature intended that in case of refusal by the first, no further selection need be made but appointment can be give from the waiting list of the selfsame panel within one year. Thus, those waiting list candidates have no absolute right to get appointment and after expiry of one year they are required to face fresh selection process if the post falls vacant for any reason. But such is not the position in case of first empaneled candidate. The respondent authority is not entitled to refuse appointment to the first empaneled candidate, once panel is approved and the Appointing Authority cannot take advantage of their own wrong by not issuing appointment letter on the plea that one year time has already expired. The distinguishing feature of this case from the Supreme Court decisions cited by Mr. Dutt is that unlike those cases, here the post is only one and the Rule provides for direction upon school to issue appointment letter to the first empaneled candidate within 15 days. Thus, the first man in the one post panel has absolute right to get appointment. ( 17 ) I, thus, find no substance in the aforesaid contention of Mr. Dutt. Thus, the relief cannot be refused to the petitioner on the ground of expiry of one year from the date of approval of panel. ( 18 ) I am quite conscious of the position of law that although one year life time of the panel cannot stand in the way of the petitioner in getting relief, delay is also a factor to be considered while entertaining a writ application. The rule which says that the High Court may not enquire into belated or stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. The principle on which the relief to the party on the ground of laches or delay is denied is that the rights which have accrued to others by reason of delay in filing the petition should not be allowed to be disturbed unless there is reasonable explanation for delay. The real test to determine delay in such cases is that the petitioner should come to Court before a parallel right is created and the lapse of time is not attributable to any laches and negligence. The real test to determine delay in such cases is that the petitioner should come to Court before a parallel right is created and the lapse of time is not attributable to any laches and negligence. In this case, for inaction of the petitioner no parallel right has accrued in favour of any other person. Thus, this application cannot be dismissed even on the ground of delay. ( 19 ) I thus, find that the respondent authority in violation of the Mandatory statutory rules without any just cause refused to give appointment letter to the petitioner, the first empaneled candidate and thus a legal right which still exists in favour of the petitioner has been infringed by inaction on the part of the respondent authority. I, thus, allow this application and direct the School Authority to immediately issue appointment letter in favour of the petitioner and to send the name of the petitioner to the District Inspector of Schools within a week from the date he joins in the service for approval in terms of Rule 7. In case the petitioner does not join within three months from the service of appointment letter his appointment shall stand cancelled and no further appointment however, need be given to the second or third empaneled candidate as their right by virtue of their placement in the panel has lapsed. The School Authority is directed to issue appointment letter within a fortnight from the date of the communication of this order. The writ application is thus allowed to the extent indicated. In the facts and circumstances, there will be, however, no order as to costs. Writ Petition allowed