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2007 DIGILAW 764 (CAL)

Kazi Manwar Faruk v. Manab Kumar Dutta

2007-09-28

ASHIM KUMAR BANERJEE, TAPAN MUKHERJEE

body2007
Judgment :- (1.) ON November 29, 1996 the District Inspector of School, Murshidabad granted prior permission to Patikabari High School to fill up the post of Assistant Teacher in science. The requisite qualification was b. Sc. (Pure), preferably B. Ed. The Managing Committee thereafter asked the employment Exchange, Baharampur to sponsor the names of eligible candidates. The Employment Exchange sent 20 names including one Golam Mustafa. The appellant Kazi Manwar Faruk and the respondent No. 1, Manab Kumar Dutta moved this Honble Court separately, inter alia, praying for permission to participate in the selection process as according to them they were also eligible for the said post, however, they were not sponsored by the Employment Exchange. The writ petition of the appellant was disposed of by the learned Single Judge by an order dated April 9, 1997 with a direction upon the Employment Exchange to forward the name of the appellant. The school authority was, however, directed to permit the appellant to participate at the interview along with other sponsored candidates if he was otherwise qualified for the post in question. The learned single Judge also made it clear that such permission was subject to verification of the fact that any candidate junior to the appellant in the matter of registration had been sponsored by the Employment Exchange. Similar order was also passed in case of respondent No. 1 by the learned Judge on April 8, 1997. The School authority permitted both of them to appear before the Selection Committee. Altogether 22 candidates were considered for the post. The Selection Committee prepared a panel by placing the appellant in the first position, Golam Mustafa in the second position and respondent No. 1 in the third position. According to the school authority they verified from the Employment Exchange whether any junior had been sponsored. The Employment Exchange vide letter dated June 2, 1997 appearing at page 191 of the Paper Book observed, "it is found from the scrutiny of those registration of the sponsored candidates that the juniors name have already been sponsored". (2.) THE District Inspector approved the panel on June 9, 1997. The appellant was given the appointment and he joined the school on June 27, 1997 and since then he was working. On August 6, 1997 Mustafa filed a writ petition with a grievance that the appellant did not have the requisite qualification. (2.) THE District Inspector approved the panel on June 9, 1997. The appellant was given the appointment and he joined the school on June 27, 1997 and since then he was working. On August 6, 1997 Mustafa filed a writ petition with a grievance that the appellant did not have the requisite qualification. The learned single Judge disposed of his writ petition by directing the Director, School education to dispose of the writ petition of Golam Mustafa. The Director by his reasoned order dated April 19, 1998 observed that although the appellant had economics, Physics and Mathematics as combination in his graduation course there was no bar to select him for the post of science teacher as per the prior permission granted therefor. Mustafa did not proceed further in the matter. (3.) MANAB, however, moved a writ petition complaining about the selection of the appellant on various grounds. It was contended by Manab that selection process was vitiated by illegality. It was also contended that the appellant was the nephew of the then Secretary of the school being the respondent No. 7 therein. It was also contended that Manab had Physics, Chemistry and mathematics as combination in his graduation course, even then he was not considered properly although the appellant did not have Chemistry as a combination subject. The learned Single Judge directed the District Inspector to consider his representation. The District Inspector by his order dated July 15, 1998 rejected the said representation by observing that there was no anomaly. Challenging the order of the District Inspector Manab filed another writ petition which was disposed of by the learned Single Judge by judgment and order dated December 3, 2003. His Lordship set aside the order of the district Inspector. His Lordship also quashed the appointment given in favour of the appellant. Hence, this appeal by the appellant. (4.) MR. Moitra appearing in support of the appeal contended that the appellant by that time acquired post-graduate degree coupled with B. Ed. qualification. He was admittedly better qualified than Golam Mustafa or Manab. He was working in the post for last 10 years without any interruption. Hence, he should not be disturbed. Mr. Moitra further contended that the District Inspector being the appropriate authority considered all the objections raised by the petitioner and thereafter by a reasoned order held that the appointment of the appellant did not suffer from any infirmity. He was working in the post for last 10 years without any interruption. Hence, he should not be disturbed. Mr. Moitra further contended that the District Inspector being the appropriate authority considered all the objections raised by the petitioner and thereafter by a reasoned order held that the appointment of the appellant did not suffer from any infirmity. Hence, this Court should not upset such status quo which would cause immense prejudice to the appellant. Mr. Moitra also contended that Manab admittedly was also not sponsored by the Employment exchange. He was also not senior to any other sponsored candidate. Hence he did not have any right to question the selection process. Mustafa being a sponsored candidate raised objection with regard to the qualification of the appellant. The Director, School Education rejected such contention. Mustafa accepted the decision of the Director and did not proceed any further. Hence, manab was not entitled to raise the plea taken by Mustafa with regard to the qualification of the appellant. (5.) MR. Amal Baran Chatterjee, learned Counsel appearing for the school authority supporting the appellant admitted that the then Secretary was the maternal uncle of the appellant. He, however, contended that the Secretary was not in the Selection Committee and in any way he was never involved in the selection process. Hence, the allegation raised by Manab on that score was baseless and rightly rejected by the District Inspector. (6.) BOTH Mr. Moitra as well as Mr. Chatterjee criticised the impugned judgment by contending that the learned Single Judge was not invited to go into the question as to whether the order of the learned Single Judge permitting the appellant to appear at the interview had been strictly followed by the parties or whether the appellant was at all entitled to participate at the selection process. According to them, this issue was not at all raised either by Manab or by Mustafa at any point of time. Hence, the learned Judge was not right in setting aside the appointment of the appellant on the ground not raised before his Lordship. (7.) IN support of their contentions they relied on the following decisions: (i) 1991, All India Reporter, Supreme Court Page 2219 (State of Punjab and ors. vs. Gurdev Singh, Ashok Kumar) (ii) 2004 (2) SCC page 76 (Ramrao and Ors. (7.) IN support of their contentions they relied on the following decisions: (i) 1991, All India Reporter, Supreme Court Page 2219 (State of Punjab and ors. vs. Gurdev Singh, Ashok Kumar) (ii) 2004 (2) SCC page 76 (Ramrao and Ors. vs. All India Backward Class bank Employees Welfare Association and Ors.) (iii) 2006 (2) CLT Page 611 (Sri Dhananjoy Pradhan vs. Chairman, Egra municipality and Ors.) (8.) APPEARING for the respondent No. 1 Mr. De contended that assuming manab was not entitled to participate at the interview on the ground that no junior was sponsored by the Employment Exchange, on the identical ground appellant was also not entitled to participate in the selection process. Hence, if manab was not considered to be eligible appellant was also not entitled to claim any benefit out of the said selection process on the identical ground. Mr. De also contended that assuming Mustafa left the battle field in the midway manab was entitled to raise the identical issue in this appeal. (9.) WE have considered the rival contentions of the parties. We have carefully perused the orders of the learned Single Judge permitting Kazi Manwar Faruk and Manab to participate at the interview. The learned Single Judge was specific to the extent that they would only be permitted provided they were found to be superseded in the matter of sponsoring of names. The learned Single Judge called for an affidavit from the Employment Exchange. The Employment exchange categorically sponsored or not, as directed by the learned Single Judge. The learned Single Judge observed on perusal of the records that there was no basis on which the letter appearing at page 191 was written by the Employment exchange. The learned Single Judge on verification of records came to a finding that no junior name had in fact been sponsored by the Employment Exchange and as such the appellant was not entitled to appear at the interview and the appointment given to him was liable to be quashed and set aside. (10.) THE decision of the Apex Court in the case of State of Punjab (supra) was relied upon by the appellant to support their contention that once Mustafa gave up his battle with regard to the qualification, same issue could not be raised by Manab again. (10.) THE decision of the Apex Court in the case of State of Punjab (supra) was relied upon by the appellant to support their contention that once Mustafa gave up his battle with regard to the qualification, same issue could not be raised by Manab again. Even if the order of the Director was found to be wrong in absence of any challenge to the same by Manab this Court was not competent to go into such question. (11.) THE decision in the case of Ramrao and Ors. (supra) was relied upon to support the contention of the appellant that in absence of any specific challenge to the qualification issue and the order of the Director the learned Single Judge was not right in interfering with the same. (12.) THE decision of the same learned Single Judge sitting singly in the case of Dhananjoy Pradhan (supra) was relied upon by the appellant wherein the learned Single Judge observed that applying the doctrine of social justice concept the appearance of the petitioners at the interview irrespective of non-sponsorship would not vitiate their selection on merit. (13.) WE are of the view that the learned Single Judge was right in going into the root of the matter and no interference can be made by us on that score. (14.) TWENTY names were sponsored by the Employment Exchange. The appellant as well as Manab were not sponsored. They participated in the selection process pursuant to the Court order. Hence, their right to participate at the interview flew from the orders of the Court. The orders of the Court permitting them to appear in the selection process was subject to verification of a particular fact which was admittedly not done by the school authority contemporaneously. The learned Single Judge upon verification of records came to a definite finding that both Kazi Manwar Faruk as well as Manab could not come within the zone of consideration at the time of sponsoring of names. Hence, both of them were not at all entitled to appear at the interview far to speak of being selected for the post. The action on the part of the Selection Committee considering both Kazi Manwar Faruk and Manab for the post was in clear violation of the Court order. Hence, the result of such selection was bound to be vitiated by illegality. The action on the part of the Selection Committee considering both Kazi Manwar Faruk and Manab for the post was in clear violation of the Court order. Hence, the result of such selection was bound to be vitiated by illegality. The learned Judge approached the problem from that angle and in our view, rightly. It might be so that Manab was also not entitled to be considered on the identical reason. Once the issue was brought before the learned Single Judge in writ jurisdiction His Lordship being the Court of equity was entitled to examine the selection process. After examination once His lordship was satisfied that the appointment was illegal it was immaterial whether Manab was entitled to maintain his writ petition or not. If the learned judge dismissed the writ petition on the ground that Manab did not have the authority to appear at the interview on the same logic Kazi was also to be debarred. Dismissal of the writ petition would amount to giving approval to the same illegality which was not permissible specially in writ jurisdiction. We do not find any reason for disagreement on that score. (15.) THE appeal thus fails and is hereby dismissed. (16.) THERE would be no order as to costs. (17.) THERE will be stay of operation of this judgment and order for a peried of three months from date. (18.) BEFORE parting with we would be failing in our duty if we do not record our views on the issue of qualification, although not germane herein. Mr. Moitra was right that once the qualification issue was finally decided by the Director in terms of the direction of this Court and the same was not available for challenge herein we should not allow Manab to bring that issue. We are, however, of the view that it is high time that the State should rethink while prescribing eligible qualification for the post of science teacher in any secondary school. The appellant was having Physics, Mathematics and Economics in his b. Sc. course. The State considered this combination as pure science and made such combination eligible for the post of science teacher. The concerned teacher would have to teach Physical Science in IX and X apart from Pure Science in the junior classes. Admittedly the appellant did not have any formal coaching in Chemistry at the graduation level. course. The State considered this combination as pure science and made such combination eligible for the post of science teacher. The concerned teacher would have to teach Physical Science in IX and X apart from Pure Science in the junior classes. Admittedly the appellant did not have any formal coaching in Chemistry at the graduation level. Chemistry is an integral part of Science specially in Physical Science. A teacher who does not have any knowledge in chemistry would be entrusted to teach the students on the subject. This would not only be injustice to the students who would be undergoing studies under the concerned teacher but also cause great difficulty for the teacher. In our view the State must rethink before allowing science graduates without having physics, Chemistry and Mathematics as combination subjects to be appointed as science teacher in secondary schools. The Government must rethink at the appropriate level. (19.) THE Registrar General of this Court is directed to send a copy of this judgment to the appropriate Ministry for their perusal. Appeal dismissed.