Research › Search › Judgment

Calcutta High Court · body

2008 DIGILAW 148 (CAL)

Debandra Nath Mondal v. Ratan Kumar Das

2008-02-01

PRASENJIT MANDAL, PRATAP KUMAR RAY

body2008
Judgment :- (1.) CHALLENGING the judgment and order dated 19th January, 2005 passed by the learned Trial Judge in W. P. No. 2262 (W) of 2003, this appeal has been preferred by the respondent No. 6 of the writ application against the order, quashing his appointment in the post of Peon, a Group-D post in Dantan Bhagat Charan Junior High School on the reasoning that the respondent No. 6s participation in the interview, a non-sponsored candidate, by the decision of the Managing Committed of the school was not in accordance with law, irrespective of the fact that the respondent No. 6 got an order on 19th February, 2001 in another writ application being W. P. No. 1907 (W) of 2001 whereby and whereunder managing Committee of the school was directed to consider his application seeking permanent appointment in the post in question. (2.) THE respondent No. 6 moved the writ application being W. P. No. 1907 (W) of 2001 on the ground that as he was discharging duty of peon in the concerned school without any remuneration and voluntarily, his appointment should be made permanent following the recruitment rules in the vacant post of Peon. D. P. Kundu, J. (as His Lordship then was)disposed of the said writ application by the order dated 19th February, 2001, which read such:- "the learned Advocate for the petitioner submits that the respondent No. 3 the Secretary, Dantan Bhagat Charan Junior High school, P.O. and P. S. Dantan, Dist. Midnapore, be directed to treat copy of the writ application as representation of the petitioner consider and dispose of the same by a reasoned order. Under the circumstances I dispose of the present writ application by the following order. The respondent No. 3 is directed to treat a copy of the writ application as the representation of the petitioner consider and dispose of the same by a reasoned order within 8 weeks from the date of communication of this order. A copy of the reasoned order would be served upon the petitioner within 2 weeks from the date of making thereof. The learned Advocate for the petitioner is permitted to take down the list of the order for communication and the respondent No. 3 to directed to act on such communication. A copy of the reasoned order would be served upon the petitioner within 2 weeks from the date of making thereof. The learned Advocate for the petitioner is permitted to take down the list of the order for communication and the respondent No. 3 to directed to act on such communication. The gist of the order and the copy of the writ application should be served upon the respondent No. 3 within, two weeks from to-day. In these terms, the writ application is disposed of. If xerox certified copy of this order is applied for, that should be made available to the learned Advocate/s for the party/parties as quickly as possible." (3.) THE Managing Committee of the school in pursuance of such order allowed his participation in the selection process, which following the recruitment procedures issued by Director of School Education, West Bengal as was in vogue at the material time being recruitment procedure issued under authority and power in terms of Rute 28 of the Rules for Management of Recognized Non-Government Institution (Aided and Unaided) Rules, 1969, hereinafter for brevity referred to as Management Rules, 1969, was already started by inviting the names of eligible candidates from the employment Exchange, which was the only mode to call for the candidates for fillinq up the post as per said recruitment procedure. (4.) THE recruitment procedure, which was followed by the Managing committee to fill up the vacant sanctioned post of Peon was issued under memo No. 1736 (21) G. A. dated Calcutta, the 1st November, 1999 and in the prior permission decision dated 19th September, 2000 issued by the District Inspector of Schools (SE) Midnapore, hereinafter referred to as concerned District Inspector of Schools for brevity, as per said recruitment procedure, direction was given to invite the names from employment Exchange only. Under the prior permission decision, the district Inspector of Schools concerned had informed the Managing committee to fill up the vacant post of Peon following the said Recruitment rules of Director of School Education, West Bengal dated 1st November, 1999. Under the prior permission decision, the district Inspector of Schools concerned had informed the Managing committee to fill up the vacant post of Peon following the said Recruitment rules of Director of School Education, West Bengal dated 1st November, 1999. The recruitment procedure of 1st November, 1999 deals with the different procedural aspect, namely, to call for the names from the employment Exchange, to prepare a Selection Committee, empanelment of meritorious candidate by holding interview in a panel, recommendation of such panel by the Managing Committee, approval of the same by the district Inspector of Schools concerned and follow up action of appointment of a candidate from the said panel. The relevant provisions of the said procedure are quoted hereinbelow:-"3 (a) When any vacancy occurs against any sanctioned post in any recognized and aided Schools, Madrasahs or in any set up school/madrasah. The management of these Institutions shall approach the d. I. S. (S. E.) for prior permission for taking steps for appointment with relevant papers. 4 (a) On receipt of the prior permission from the School stage from the D. I. of Schools (S. E.), the School Authorities shall approach the Local Employment Exchange for sponsoring the names of the employment Exchange candidates. (b) Employment Exchange shall mention in the list the qualification, date of birth, date of registration etc. of the candidates. Names shall be sponsored within 45 days in case of General candidates and 60 days in case of S. C. and ST. and O. B. C. candidates. If names are not sponsored within the time limit mentioned above the School Authorities may approach the D. I. S. (S. E.) who may take up the matter with the Employment Exchange. In case of receipt of non-availability Certificate from the Employment Exchange the school may advertise in any State Level Daily Newspaper under intimation to the D. I. S. In the advertisement name and full address of the Institution shall be mentioned irrespective of whether the vacancy is permanent or temporary. The reservation rules in all cases of appointments must be followed strictly. " (5.) UNDER mode of selection in terms of the said guideline, relevant portion of Clause (5) read such:- "mode of Selection and Selection Committee:-For Newly Set-up Educational Institution At Secondary Level 5 (a). . . . . . . . . . . . . . . . . . . . . . " (5.) UNDER mode of selection in terms of the said guideline, relevant portion of Clause (5) read such:- "mode of Selection and Selection Committee:-For Newly Set-up Educational Institution At Secondary Level 5 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (c) All the candidates sponsored by the Employment Exchange shall be called for interview. If the permission for advertisement is obtained from the District inspector of Schools (S. E.) and the number of application received through advertisement is more than 10, a preliminary screening may be made on the basis of marks obtained in the Examination as specified in prior permission. A record of receipt of names either through Employment Exchange or through advertisement should be preserved and will remain open for verification by the officers of the Education Directorate/department. " (6.) IN the said writ application being W. P. No. 1907 (W) of 2001, respondent No. 6 prayed the following reliefs:- " (a) A writ in the nature of Mandamus showing cause the respondents their agents, men, and each one of them why the petitioners representation should not be considered in accordance with law; (b) A writ in the nature of Certiorari directing the respondents to transmit all the papers and documents relating to the petitioners case before this Honble Court so that the conscionable justice can be administered. (c) Rule NISI in terms of prayers (a) and (b) above. (d) An ad interim order of injunction restraining the respondents, their agents, each one of them from fill up the said vacancy till disposal of the writ application. (e) And pass such order or orders direction or directions as your Lordships may deem fit and proper. " (7.) THE Managing Committee of the school in terms of the prior permission invited names from the Employment Exchange and got the list therefrom. The candidates sponsored from the Exchange was directed to appear in the interview before the Selection Committee on 18th March, 2001. " (7.) THE Managing Committee of the school in terms of the prior permission invited names from the Employment Exchange and got the list therefrom. The candidates sponsored from the Exchange was directed to appear in the interview before the Selection Committee on 18th March, 2001. The Secretary of the Managing Committee of the school in terms of the order dated 19th February, 2001 passed by D. P. Kundu, J. (as His lordship then was) in the said writ application took a decision on 27th february, 2001, allowing participation of the respondent No. 6 in the interview for the said post, which reads such:- "dantan Bhagat Charan Jr. High School p. O. and P. S. Dantan, Block - Dantan-l, Dist. Medinipur. Ref: W. P. No. 1907 of 2001 pursuant to the judgment and order dated 19. 2. 2001, passed by the Honble Mr. Justice D. P. Kundu of the Honble High Court, calcutta, consideration and reasoned order. In consideration with the representation made by the petitioner in the writ application I have heard the petitioners statements and before us, he states that he has desired qualification to become a candidate to the post of Group-D staff to which he deserves to be appointed by appearing in the interview for the said post as he is an unemployed youth of active habits and experience in discharging voluntary service towards literacy campaign, pass awareness of sanitation as launched by the local panchayat bodies and Govt, of west Bengal. He also states that the previous Managing Committee of the school has assured htm to give a scope to be appointed in a post of Group-D staff when the vacancy would be occuredr as such he approached the school authority with an application to consider his prayer as he belongs to the Scheduled Caste community and his financial condition is badly deplorable in the locality. He also appeals to give him a chance to appear in the interview for the said post of Group-D staff. In consideration with the representation made by the petitioner i have looked into the writ application including all annexture submitted to the Honble High Court. Calcutta as such the spirit of the writ application seems to me that the petitioner may be allowed atleast to have a chance for appearance in the interview of the group-D post of the school. In consideration with the representation made by the petitioner i have looked into the writ application including all annexture submitted to the Honble High Court. Calcutta as such the spirit of the writ application seems to me that the petitioner may be allowed atleast to have a chance for appearance in the interview of the group-D post of the school. Thus, to act, the ends of Social Justice, it is decided that the petitioner will be given atleast a chance of appearance in the interview of the post of Group-D staff scheduled to be held on 18.3.2001. Accordingly, letter of interview will be issued to the petitioner is due time. The matter is thus disposed of. " (8.) RESPONDENT No. 6 appeared in the interview along with sponsored candidates and in the panel he stood first, whereas the writ petitioner of the writ application being W. P. No. 2262 (W) of 2003, wherein the judgment under appeal was passed, stood second, who participated in the interview as a sponsored candidate from Employment Exchange following the recruitment Rules and prior permission direction. The said second candidate of the panel raised a grievance before the District Inspector of schools concerned on issue of empanelment of respondent No. 6 as a first candidate of the panel by contending, inter alia, that he was a non-sponsored candidate and as such had no eligibility to participate. (9.) LEARNED Trial Judge on considering the pleadings of the parties including the affidavit-in-opposition and reply as filed came to the conclusion that as under the recruitment procedure, sponsored candidats only were eligble and since by the order dated 19th February, 2001, D. P. Kundu, J. (as his Lordship then was) never directed participation in the interview but simply directed the Secretary of the Managing Committee to decide the application filed by him seeking permanent appointment on the alleged ground of his working voluntarily in the school in question, participation of respondent No. 6 was bad in law and the Secretary of the Managing Committee did not act in accordance with law. (10) IN the appeal, learned Advocate for the appellant-respondent No. 6 mr. (10) IN the appeal, learned Advocate for the appellant-respondent No. 6 mr. Tapabrata Chakraborty has assailed the judgment under appeal by contending, inter alia, that though under the recruitment procedure there is a provision that only sponsored candidates would be entitled to participate in the interview but in view of the judgment passed in the case Excise superintendent Malkapatnam, Krishna District, A. P. v. K.B.N. Visweshwara rao and Ors. , reported in 1996 (6) SCC 216 relying upon which a Full Bench judgment of Calcutta High Court in the case Sri Rabindra Nath Mahata v. The State of West Bengal and Ors. , reported in 2005 (2) CLJ (Cal) 161 overruled the views expressed by the Special Bench judgment passed in the case sri Debasis Dutta v. State of West Bengal, reported in 1998 (1) CHN 544 and the subsequent judgments of the Apex Court passed in the cases Kishore k. Pati v. District Inspector of Schools, Midnapore, reported in 2000 (9) SCC 405 , Abani Mahato v. Kanchan K. Sinha and Ors. , reported in 2000 (9) SCC 527 , the judgment of the Calcutta High Court passed in the cases prahlad majhi v. State of West Bengal and Ors. , reported in 2001 (1) CHN 229 and bhaskar Ranjan Ghosh v. Kamal Sen and Ors. , reported in 2000 (2) CHN 246 , appearance in the interview as per decision of Secretary, Managing Committee of School was not bad in law and the respondent No. 6s participation was not illegal and accordingly the judgment under appeal should be quashed and set aside. (11.) LEARNED Advocate appearing for the respondent writ petitioner has opposed this appeal by contending that on 27th February, 2001 when the secretary of the Managing Committee allowed participation of the appellant in the interview, the judgment passed by the Special Bench in the case sri Debasis Dutta (supra) was holding the field and it was overruled subsequently in the case Rabindra Nath Mahata (supra). On 7th July, 2005 and since the order passed by D. P. Kundu, J. (as His Lordship then was)never was an order allowing participation in the interview but only an order directing to dispose of the prayer of respondent No. 6 for permanent appointment by the Secretary of the Managing Committee in accordance with law, the Secretary of the Managing Committee was bound to reject the application, as under the recruitment procedure there was no scope either to absorb someone in a permanent post irrespective of his alleged working on taking a device of backdoor method by regularizing his service or there was no scope to allow particpation in the interview as per law applicable in the field. It is further contended on relying upon a Division Bench judgment of this Court, wherein one of us (Pratap Kr. Ray, J.) was the Presiding Member of the Division Bench in the case Gaya Nath Rajbanshi v. State of West bengal and Ors. . . reported in 2007 (2) CLJ (Cal) 105 that by the judgment passed in K. B. N. Visweshwara Rao and Ors. (supra), the Apex Court never directed that any non-sponsored candidates either suo motu or by Courts order would be allowed to participate in the interview due to the reason that by judgment in the case K. 8. N. Visweshwara Rao (supra) the participation of non-sponsored candidate in the interview was allowed with a rider that there should be a public advertisement inviting applications from eligible candidates, so that all eligibe candidates may appear. It has been further submitted by strong reliance of Gaya Nath Rajbanshi (supra) that Article 14 mandates equal treatment and as such, the appearance of the respondent no. 6 in the interview was violative of Article 14 of the Constitution of India, as he was allowed to appear by the Secretary of the Managing Committee when admittedly there was no public advertisement of the post in the daily newspaper and/or any employment notification issued by the School Authority inviting names of all eligible candidates. In answer to the argument advanced by Mr. Tapabrata Chakraborty, learned Advocate for the appellant submits that the order passed by D. P. Kundu, J. (as His Lrodship then was) though was never assailed, but relying up the case Jadab Chandra Mukhopadhyay v. The State of West Bengal and Ors. In answer to the argument advanced by Mr. Tapabrata Chakraborty, learned Advocate for the appellant submits that the order passed by D. P. Kundu, J. (as His Lrodship then was) though was never assailed, but relying up the case Jadab Chandra Mukhopadhyay v. The State of West Bengal and Ors. , reported in 1998 (2) CHN 121 this Court applying the test of "ex debito justitiae" as mentioned in Paragraph-29 of the said report has the power as a Superior Court to consider the order passed by D. P. Kundu, J. (as His Lordship then was) and the action of the Secretary of the Managing Committee allowing participation, in this appeal. (12.) SO far as the impugned judgment under appeal is concerned, whereby and whereunder learned Trial Judge allowed the writ application by quashing the appointment of respondent No. 6 on the reasoning that respondent No. 6 had no legal right to participate as by the order D. P. Kundu, j. (as His Lordship then was) never directed his participation and the Secretary of the Managing Committee since was directed to act in accordance with law, which is clear in the order of D. P. Kundu,j. (as His Lordship then was), it is submitted by respondent that the Secretary of the Managing Committee was required to follow the recruitment procedure issued by Director of School education, West Bengal of the year 1999 as referred to earlier and also the judgment passed in the case Sri Debasis Dutta (supra), the Special Bench view of the Calcutta High Court. (13.) THIS Court on the aforesaid factual matrix need not to wait further to adjudicate the issue as it is clear from the order passed by D. P. Kundu, j. (as His Lordship then was) that His Lordship only directed consideration of the application seeking permanent appointment in a post, wherein allegedly respondent No. 6 was working by illegal appointment, in accordance with law. "in accordance with law" is the main guiding word, which was directed to be followed by D. P. Kundu, J. (as His Lordship then was). Law as was prevalent at that time in the year 2001, when application of respondent no. "in accordance with law" is the main guiding word, which was directed to be followed by D. P. Kundu, J. (as His Lordship then was). Law as was prevalent at that time in the year 2001, when application of respondent no. 6 was considered were (1) the recruitment procedure issued by Director of School Education, West Bengal dated 1st November, 1999; (2) binding effect of prior permission decision issued by District Inspector of Schools concerned identifying the procedures as to be followed, namely, the said recruitment Procedure of 1999; (3) judgment of Special Bench Sri Debasis dutta (supra) by holding that non-sponsored candidates were not eligible to appear in the interview; (4) Binding effect of judgment passed in the case k. B. N. Visweshwara Rao andors. (supra) by Apex Court. (14.) AS admittedly, recruitment procedure read with Management Rules, 1969 does not provide any scope for regularization of service, the Secretary of the Managing Committee ought to have rejected the application, since there was no scope of permanent appointment of a candidate by regularizing who admittedly entered into the service in the backdoor method and worked voluntarily in absence of any scope in the recruitment procedure to regularize such appointment following the judgment passed in the case Secretary, State of Karnataka and Ors. v. Uma Devi (3) and Ors. , reported in 2006 (4) SCC 1 by confirming the earlier view of the Apex Court passed in the case B. N. Nagarajan and Ors. v. State of Karnataka and Ors. , reported in AIR 1979 SC 1676 and also on the reflection of the judgment passed in the case State of m. P. and Anr. v. Dharam Sir, reported in 1998 (6) SCC 165 . It is a settled legal position that there is no scope of regularization of any illegal appointment. Even if the respondent No. 6 worked in the post of Peon by rendering voluntary service, he had no legal right to seek permanent appointment in a vacant post when there is a recruitment procedure existing and as such, Secretary of the Managing Committee also got no right to consider the application, otherwise, save and except, rejection of the same. lt is a settled law in view of the Constitution Bench judgment Uma Devi (3) and Ors. (supra) that there is no scope of regularization of illegal appointments. lt is a settled law in view of the Constitution Bench judgment Uma Devi (3) and Ors. (supra) that there is no scope of regularization of illegal appointments. Furthermore, since d. P. Kundu, J. (as His Lordship then was) did not direct the participation in the interview by the order passed in the writ application being W. P. No. 1907 (W) of 2001, wherein the respondent No. 6 being a writ petitioner simply prayed for a writ of mandamus directing consideration of his representation in accordance with law on the pleading that he accrued a right to be absorbed, the direction of the said Court on 19th February, 2001 disposing writ application by directing consideration of his application in accordance with law was simply a direction to consider his prayer of permanent absorption by regularization as sought for and as such, there was no scope before the secretary of the Managing Committee to act otherwise by directing his participation in the interview before the Selection Committee, wherein matter was under process to appoint a candidate in a vacant permanent post. Writ application being W. P. No. 1907 (W) of 2001 was called for to verify by us about the pleading as made in the writ application to understand the order passed by D. P. Kundu, J. (as His Lordship then was). The prayer of writ application has already been quoted. The relevant pleading from the writ application reads such:- "5. That your petitioner states that there is a post of Peon (Group-D) reserved for schedule caste has been lying vacant since long in the concerned school and your petitioner has been working in the said post as voluntarily, and your petitioner has been discharging his duties an honestly and sincerely upto the full satisfaction to his employer and without any allegation from any corner in the said post. 6. That your petitioner states that he come to know from the reliable source that the school authority are going to fill up the said vacancy without considering the petitioners prayer and by depriving his legitimate right as well as by violating the fundamental rights. 7. That your petitioner further came to know that the school authority already requested the local employment Exchange to sponsor the names of the candidates for fill up the said vacancy and the employment Authority are going to sponsor the names of the candidates. 8. 7. That your petitioner further came to know that the school authority already requested the local employment Exchange to sponsor the names of the candidates for fill up the said vacancy and the employment Authority are going to sponsor the names of the candidates. 8. That your petitioner immediately made an application on 1.2.2001 before the school authority stating inter alia all the facts with a request to absorb him according to the recruitment rules and the school authority accepted the said application without seal and signature. Xerox copy of the said application is annexed hereto and marked with Annexure p-3. 9. That your petitioner submits that the respondents setting aside over the petitioners case till date without disposal of this application which is illegal, arbitrary and mala fide. " The relevant grounds of the said writ application read such:-"i. For that the petitioner has been working in the concerned school as voluntarily till date and without any allegation against him. ll. For that the school authority is liable to consider the petitioners application. III. For that the petitioner already accrued his right and he is entitle to absorb in the concerned school according to the recruitment rules in the said post. IV. For that the petitioner has requisite qualification for appoint in the said post. V. For that the instant case the respondents willfully violating the legitimate right. VI. For that the instant case is fit and proper to set aside. " (15.) THOSE are the only pleading in the writ application, which explicitly speaks that the said writ application was only for the relief of permanent absorption in a permanent vacant post where allegedly he was working voluntarily. The direction of D. P. Kundu, J. (as His Lordship then was) accordingly to be considered in the angle of the pleadings and the representation annexed at annexure p3 of the said writ, wherein the respondent No. 6 as a writ petitioner only sought for permanent absorption following the Recruitment Rule. Recruitment rule never made a scope to appoint a candidate who was not an appointee following the Recruitment Rules by regularizing his service. Following the B. N. Nagarajan and Ors. Recruitment rule never made a scope to appoint a candidate who was not an appointee following the Recruitment Rules by regularizing his service. Following the B. N. Nagarajan and Ors. (supra) and Dharam Bir (supra), the Secretary of the Managing committee accordingly ought to have rejected the application, which was directed to be considered by D. P. Kundu, J. (as His Lordship then was) by holding that under the Recruitment Rules there was no scope to regularize the service when admittedly candidate was an illegal appointee. The legal point is now settled in terms of the judgment passed in Uma Devi (3) and Ors. (supra), a constitution Bench judgment. As the decision allowing participation was taken while considering the order of D. P. Kundu, J. (as His Lordship then was), by the Secretary of the Managing Committee, we have discussed the pleading of the said writ application, the purport of the order and the qualifying word of the order "in accordance with law" to appreciate the issue as to whether the secretary of the Managing Committee got the power to allow the respondent no. 6s participation in the interview. Under the Management rule of 1969, there is no power vested to the Managing Committee of the school to allow somebody to appear in the interview, save and except, to seek prior permission to fill up the vacancy from District Inspector of Schools concerned and to act in pursuance of such direction of prior permission, which in the instant case, was a direction to fill up the vacancy asking the names from Employment Exchange, which is the only mode of consideration of the candidature of candidates in terms of recruitment Rules of 1999. As the participation issue decided by the Secretary of the Managing Committee has been covered up by referring the judgment of d. P. Kundu, J. (as His Lordship then was) we are of the view that D. P. Kundu, j. (as His Lordship then was) never directed to consider the issue of participation in the interview and there is even no whisper in the writ application also seeking such participation in the interview, save and except, the prayer of absorption. Hence, we are confirming the views expressed by the learned Trial Judge on that score. Hence, we are confirming the views expressed by the learned Trial Judge on that score. (16.) THAT this appeal could be dismissed on the said reasoning but as the learned Advocate for the appellant has opened a new area in the appeal being a point of law that following the K. B. N. Visweshwara Rao and Ors. (supra), judgment of Apex Court and Rabindra Nath Mahata (supra), a judgment of full Bench of Calcutta High Court, the participation of respondent No. 6 in the interview was not illegal as he accrued a right to appear, otherwise than the order of D. P. Kundu, J. (as His Lordship then was) and as the learned Advocate for the appellant has submitted that the judgment delivered by the Division Bench, wherein one of us (Pratap Kr. Ray, J.) was a member in the case Gaya Nath Rajbanshi (supra) has no retrospective effect but a perspective one, we think that point should be dealt with also. (17.) THE ratio of the judgment passed in the case K. B. N. Visweshwara rao and Ors. (supra), is that for proper selection, it should not be restricted to the candidates sponsored by the Employment Exchange, but in addition to that, the candidates to be called for by publication in newspaper, by wide circulation and displaying on office notice board or announcement in radio and television and employment news bulletin etc. as it appears from the observation in said case, namely, "we are of the view that contention of the respondents is more acceptable which would be consistent with the principles of fair play, justice and equal opportunity. . . . . . . . . . . . . . . under these circumstances, many a deserving candidate is deprived of the right to be considered for appointment to a post under the State. Better view appears to be that it should be mandatory for the requisitioning authority/establishment to intimate the employment exchange, and employment exchange should sponsor the names of the candidates to the requisitioning departments for selection strictly according to seniority and reservation, as per requisition. Better view appears to be that it should be mandatory for the requisitioning authority/establishment to intimate the employment exchange, and employment exchange should sponsor the names of the candidates to the requisitioning departments for selection strictly according to seniority and reservation, as per requisition. In addition, the appropriate department of undertaking or establishment should call for the names by publication in the newspapers having wider circulation and also display on their office notice boards or announceon radio, television and employment news bulletins; and then consider the cases of all the candidates who have applied. If this procedure is adopted, fair play would be sub-served. The equality of opportunity in the matter of employment would be available to all eligible candidates". (18.) EQUALITY of opportunity even to appear in the interview is coming within the field of Article 14 of the Constitution of India, which is the basic feature of the Constitution. Articles 14 and 16, which is also a facet of Article 14, are parts of basic structure of Constitution in terms of the views expressed by the Apex Court in the case His Holiness Kesavananda Bharati sripadagalvaru v. State of Kerala and Anr. , reported in 1973 (4) SCC 225 . In indra Sawhney v. Union of India and Ors. , reported in 2000 (1) SCC 168 , the apex Court held "neither Parliament nor the legislatures could transgress the basic feature of the Constitution, namely, the principle of equality enshrined in Article 14 of which Article 16 (1) is facet". In the case Indra Sawhney (supra), b. P. Jeevan Reddy speaking for the majority while acknowledging equal opportunity is a basic feature of the Constitution, has also explained the exalted position of Articles 14 and 16. Having a deduction of the issue in the angle aforesaid, the Constitution Bench of the Apex Court in the case uma Devi (3) and Ors. (supra) held "adherence to the rule of equality in public employment is a basic feature of our Constitution, so Court is liable to uphold violation of Article 14 for ordering the need of compliance of Articles 14 and 16". (19.) EVEN in the public employment it had been reiterated by the Apex court that adherence to the rule of equality is a basic feature of the constitution in the case Uma Devi (3) and Ors. (19.) EVEN in the public employment it had been reiterated by the Apex court that adherence to the rule of equality is a basic feature of the constitution in the case Uma Devi (3) and Ors. (supra), which has been reechoed in the case R. S. Garg v. State of U. P. and Ors. , reported in 2006 (6)SCC 430 . The Apex Court further insisted that High Court being the sentinel and guardians of equal rights protection should not forget its roll. In the case in hand before us by scanning the factual matrix it appears that the respondent no. 6 who is appellant before us either by reason of his acquaintance with any member of the Managing Committee or having a connection with the school Authority initially by securing his placement illegally to work voluntarily in the post of Peon as alleged, which has been denied, however, by the respondent-writ petitioner and as a result of his acquaintance with the members of the Managing Committee and/or his presence in the school, got the knowledge that the post of Peon, a permanent vacant post, was going to be filled up. He approached the Managing Committee to regularize his service and D. P. Kundu, J. (as His Lordship then was) directed to consider that application. The Secretary of the Managing Committee without regularizing his appointment, which was barred under the law, allowed his appearance in the interview. So as a result of such, it appears that the appellant is the sole non-sponsored candidate who got a chance to appear in the interview. In the area, where the school is situated and its surrounding neighbouring villages, it will be quite impossible that there is no other candidate qualified with pass in school final examination/madhyamik examination, a basic academic qualification for the post. There are so many candidates being qualified with such qualification in the area in question, even it may be that the next door neighbour of the appellant also is equally qualified, if not, better qualified. Hence, there are so many persons in the locality as well as in the concerned district itself. There are so many candidates being qualified with such qualification in the area in question, even it may be that the next door neighbour of the appellant also is equally qualified, if not, better qualified. Hence, there are so many persons in the locality as well as in the concerned district itself. Hence had there been advertisement in the newspaper and/or disclosure of the vacancy in the modes as directed to be followed in the case K. B. N. Visweshwara Rao (supra), in Paragraph-6 as quoted , surely they would have obtained the privilege to appear in the interview for consideration of their cases on merit. As vacancy was not declared inviting the names from all eligible non-sponsored candidates, but as the only candidate, appellant, under non-sponsored category was allowed by the school Authority to appear in the interview, the Secretary of the Managing committee, accordingly, caused a breach of Articles 14 and 16 of the constitution of India, namely, the equality in opportunity in public employment, which is the basic features of the Constitution in view of the judgments as already referred to being Uma Devi (3) and Ors, (supra) and Indra Sawhney (supra). The ratio decidendi of K. B. N. Visweshwara Rao and Ors. (supra) is not that any non-sponsored candidates suo motu and/or being favoured by the employer would be entitled to appear in the interview, but it is clearly mandated, which is the ratio of the judgment that by adhering to principles of fair play, justice and equal opportunity, it should be mandatory for the authority establishment to call for the names by publication in the newspaper having wide circulation and also by displaying the vacancy in the office notice board or announcement of the same in the media in addition to the requisition as to be send to the Employment Exchange. The core view of the said judgment speaks that there should be publication of vacancy in the newspaper having wide circulation and also displaying of the vacancy in the office notice board. The word "and" as used to connect this two forums of publication is conjunctive. The other forums by using the word "or", namely, the announcement in radio and television and employment news bulletin may be considered as disjunctive because of the use of the word "or". Hence, the judgment of K. B. N. Visweshwara Rao and Ors. The word "and" as used to connect this two forums of publication is conjunctive. The other forums by using the word "or", namely, the announcement in radio and television and employment news bulletin may be considered as disjunctive because of the use of the word "or". Hence, the judgment of K. B. N. Visweshwara Rao and Ors. (supra) being a judgment passed by three Judges Bench has a binding force and effect in the field of employment, wherein a scope was given for appearance of the non-sponsored candidates in the interview following the modes prescribed therein, which is consistent with the principle of fair play, justice and equal opportunity. Hence, having regard to such, the Secretary of the Managing Committee ought to have followed the said ratio of K. B. N. Visweshwara Rao and Ors. (supra) before allowing the appellant before us to participate in the interview as non-sponsored candidate to satisfy the constitutional mandate of Articles 14 and 16 (1) of the Constitution of India. K. B. N. Visweshwara Rao and Ors. (supra) is the law of the land holding the field in question has been echoed by the Apex Court in the subsequent judgment passed in the case Arun kumar Nayak v. Union of India and Ors. , reported in 2006 (8) SCC 111 in the following terms:-"9. This Court in Visweshwara Rao, therefore, held that intimation to the employment exchange about the vacancy and candidates sponsored from the employment exchange is mandatory. This. Court also held that in addition and consistent with the principle of fair play, justice and equal opportunity, the appropriate department or establishment should also call for the names by publication in the newspapers having wider circulation, announcement on radio, television and employment news bulletins and consider all the candidates who have applied. This view was taken to afford equal opportunity to all the eligible candidates in the matter of employment. The rationale behind such direction is also consistent with the sound public policy that wider the opportunity of the notice of vacancy by wider publication in the newspapers, radio, television and employment news bulletin, the better candidates with better qualifications are attracted, so that adequate choices are made available and the best candidates would be selected and appointed to subserve the public interest better. 10. . . . . . . . . . . . . . . . . . . 10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Therefore, the decision by this Court in Arun Tewari is based on the facts of that case, namely, a time-bound scheme and exigency of service. No law has been laid down thereunder. But in Visweshwara rao a three Judges Bench of this Court has laid down the law and that is still holding the field. " (20.) HAVING regard to the aforesaid views expressed by the Apex Court, a Division Bench of this Court, wherein one of us (Pratap Kr. Ray, J.) was the presiding Member of the Bench in the case Gaya Nath Rajbanshi (supra)held that "a non-sponsored candidate unless there is any public advertisement declaring the vacancy has no legal right to appear in the interview suo motu. and/or by grace of the employer". (21.) THE Full Bench judgment being Rabindra Nath Mahata (supra) as referred to by the learned Advocate for the appellant, there is no doubt has overruled the decision passed in Sri Debasis Dutta (supra), but the ratio of the judgment was following K. B. N. Visweshwara Rao and Ors. (supra) and Raj kumar v. Shaktiraj, reported in 1997 (9) SCC 527 as it appears from paragraph-26 of the report, which reads such:- "in above view of the matter the reference is answered by holding that following the law laid down by Supreme Court in the case of K. B. N. Visweshwara Rao (supra) and Raj Kumar (supra) by its judgment dated february 12, 2002 given in Abu Taher v. Abdul Wahab (supra) (Civil appeal No. 1203 of 2001 has impliedly overruled the Special Division bench decision of this Court in Debasis Dutta v. State of West Bengal, reported in 1998 (2) CLJ 1 and as a resulf a person whose name is not sponsored by the employment exchange has a right to participate as a candidate in a selection process initiated by a school governed by 1969 Management Rules (framed under West Bengal Board of secondary Education Act, 1963) for recruiting and selecting a person for appointment as a member of the non-teaching staff. The attention of the Bench has not been drawn by either of the parties to any statutory rule which compels it to take a different view. The attention of the Bench has not been drawn by either of the parties to any statutory rule which compels it to take a different view. Individual matters may be sent back to the respective Courts having jurisdiction for decision on merit on respective facts involved therein. " (22.) BEFORE the Full Bench, there was no argument advanced on the issue that in the K.B.N. Visweshwara Rao and Ors. (supra) the Apex Court mandated the mode of declaring the vacancies by advertising in the newspaper having wide publication and also in the notice board of the employers/establishment, so that all eligible candidates being in the category "non-sponsored" may appear in the interview, satisfying the equal opportunity clause of Article 14 of the Constitution of India. In Full Bench judgment, there was no issue whether a non-sponsored candidate suo motu or out of charity and/or grace of the employer/establishment alone could be allowed to appear in the interview from non-sponsored category but there question was whether any non-sponsored candidate was eligible to appear in the interview or not, following the K. B. N. Visweshwara Rao and Ors. (supra). The full Bench judgment of this Court in Rabindra Nath Mahata (supra) practically had followed the K. B. N. Visweshwara Rao and Ors. (supra), which was a judgment in the field whereby a non-sponsored candidate may appear in the interview subject to advertisement of the vacancy in the daily newspaper and this issue that "subject to advertisement in the daily newspaper of wide publication" neither was addressed nor argued and thereby was answered by the Full Bench. Hence, Rabindra Nath Mahata (supra) in the instant case has no applicability herein and it cannot be a binding precedent to us due to the law of the land under Article 141 as declared in the case K. B. N. Visweshwara Rao and Ors. (supra) read with Arun Kumar Nayak (supra) holding otherwise. Similarly, the judgment as relied upon passed by the Division bench (Coram: Ashim Kumar Banerjee and Tapan Mukherjee, JJ.) in the case Sri Gopal Sinha v. Sri Pa/as Sarkar, reported in 2007 (1) CLJ (Cal)129 is distinguishable. Herein also no argument was advanced on the basic features of the Constitution under Articles 14 and 16 (1) as well as its mandate and applicability as made in K. B. N. Visweshwara Rao and Ors. Herein also no argument was advanced on the basic features of the Constitution under Articles 14 and 16 (1) as well as its mandate and applicability as made in K. B. N. Visweshwara Rao and Ors. (supra), kesavananda Bharati (supra), Indra Sawhaney (supra), Uma Devi (3) (supra)and R. S. Garg (supra). Furthermore, in that case there is a distinguishing feature on factual matrix, namely, the Court in earlier writ application allowed the appearance of non-sponsored candidate, which was not assailed and reached finality. Having regard to such, the said judgment also has no applicability in the instant case. The judgments as referred to by the learned advocate for the appellant passed in the case Kishore K. Pati (supra), Abani mahato (supra), though as it appears, did not refuse the participation of a non-sponsored candidate in the interview but therein also, no issue raised and/or argument advanced about the ratio of the judgment passed in the case K. B. N. Visweshwara Rao and Ors. (supra)on reflection of the Articles 14 and 16 (1) of the Constitution of India, namely, whether a sole non-sponsored candidate without any public advertisement of the post may suo motu appear in the interview by filing an application or may be allowed to appear in the interview by the employer out of grace or charity or otherwise and as to whether such action would hit the equal opportunity clause of Article 14 in view of deprivation of other eligible non-sponsored candidates to have participation in the interview due to the reason that they have no knowledge of vacancy as it was not advertised. Said K. B. N. Visweshwara Rao and Ors. (supra) is the judgment passed by larger bench than Kishore Kumar Pati (supra) and Abani Mahato (supra), which we are compelled to follow as a binding precedent in view of the judgment of the Apex Court by settling the principle of law that "larger a coram-more binding effect". Said K. B. N. Visweshwara Rao and Ors. (supra) is the judgment passed by larger bench than Kishore Kumar Pati (supra) and Abani Mahato (supra), which we are compelled to follow as a binding precedent in view of the judgment of the Apex Court by settling the principle of law that "larger a coram-more binding effect". Reliance may be placed to the judgment passed in the case John Martin v. State of West bengal, reported in 19705 SCC 836, a Division Bench of three Judges, wherein the law declared in the case Haradhan Saha v. State of West Bengal, reported in 1975 (3) SCC 198 decided by a Division Bench of five Judgeswas followed in preference to the views expressed in the case Bhutnath Mete v. State of West Bengal, reported in 1974 (1) SCC 645 a Division Bench oftwo judges, in the case Smt. Indira Nehru Gandhi v. Shri Raj Narain and Anr. , reported in 1975 Suppl. SCC 1, where Justice Beg held "constitution Bench of Five Judges was bound by Constitution Bench of thirteen Judges of kesavananda Bharati v. State of Kerala, reported in 1973 (4) SCC 225 ", in the case Ganapati Sitaram Balvalkar and Anr. v. Waman Shripad Mage, reported in 1981 (4) SCC 143 , where it is expressly stated that "view of division Bench by four Judges was binding to Division Bench of three Judges", in the case Mattulal v. Radhe Lal, reported in 1974 (2) SCC 365 , the Apex court has observed specifically that when views of two Division Bench could not be re-conciled, pronouncement of law by Division Bench of larger number of Judges had to be preferred over the decision of Division Bench of smaller number of Judges. The same is the view by holding larger the coram more the binding effect", passed in the case Union of India and Anr. v. Raghubir singh, reported in 1989 (2) SCC 754 . (23.) THE case Abu Taher, an unreported judgment, being Civil Appeal no. 1203 of 2001 as relied upon, was passed by two Judges Bench of the Apex court while dealing with the judgment of the Division Bench of Calcutta High court as challenged, wherein Apex Court directed rehearing of the matter on merits by the Division Bench on recording submission of Mr. 1203 of 2001 as relied upon, was passed by two Judges Bench of the Apex court while dealing with the judgment of the Division Bench of Calcutta High court as challenged, wherein Apex Court directed rehearing of the matter on merits by the Division Bench on recording submission of Mr. Krishnamani, learned Advocate appearing for the appellant that on the reflection of the judgment K. B. N. Visweshwara Rao and Ors. (supra) and Raj Kumar (supra), the calcutta High Court judgment was erroneous as only because candidate was not sponsored from Employment Exchange, his participation in the interview was held as illegal. The said judgment Abu Taher (supra) reads such:-"leave granted. The impugned order of Division Bench of Calcutta High Court in m. A. T. No. 2076/1999 in the subject matter of challenge in this appeal. On a writ petition being filed, the learned Single Judge disposed of the matter holding that for the appointment of a Teacher in Arabic, the candidate should possess B. A. with Arabic combination and not with b. A. Special Arabic. Appropriate direction was given to the District inspector of Schools, Murshidabad to ignore the candidature of the present appellant, who was respondent No. 6, since he had the qualification of B. A. with Special Arabic and not B.A. Arabic combination. Against the judgment of the learned Single Judge, the appellant approached the Division Bench. The Division Bench without considering the ground on which the appellant was held to be disqualified for being appointed went into the question as to whether his name had been sponsored by the Employment Exchange and then following an earlier decision of the said Court came to hold that since appellants name had not been sponsored by the Employment exchange, he was ineligible for being considered for the post in question. It is this order of the Division Bench which is being assailed. Mr. Krishnamani appearing for the appellant contended that the aforesaid conclusion of the Division Bench of Calcutta High Court is erroneous in view of the decisions of this Court in 1996 (6) SCC 216 and 1997 (9) SCC 527 , we find sufficient force in the aforesaid contention and as such the name of appellant cannot be excluded from consideration merely because his name had not been sponsored by the Employment Exchange. In that view of the matter, the Division bench of Calcutta High Court not having applied its mind to the merits, namely whether B. A. with Special Arabic can be said to be the same as B. A. with Arabic combination on which reasoning the learned Single judge allowed the writ petition, it would meet and proper to direct the calcutta High Court to decide the case on merits. We, therefore, set aside the impugned judgment of the Calcutta High Court and remit the appeal to the Calcutta High Court for re-consideration on merits. The appeal is disposed of accordingly. The learned Chief Justice of Calcutta high Court is requested to place the matter of early disposal. Parties are at liberty to file any further documents in support of their case. " (24.) ON careful reading of the said judgment it appears that there was no argument advanced on the point as to whether a non-sponsored candidate without any advertisement of the vacancy suo motu and/or by permission of the employer may appear in the interview and if so, whether the same will hit the equality doctrine of Articles 14 and 16 (1) of the Constitution of India, when in K. B. N. Visweshwara Rao and Ors. (supra), the Apex Court by Larger bench decision, a three Judges Bench, held that there should be public advertisement of the post and subsequently in Arun Kumar Nayak (supra), the Apex Court held that the public advertisement of the vacancy is mandatory. (25.) IT is a settled legal position applying the principle of doctrine of sub silencio that a decision is not an authority for what it had not decided on a point, which has not been argued. Reliance may be placed to the judgment passed in the case M/s. Goodyear India Ltd. v. State of Haryana andanr,. reported in AIR 1990 SC 781 , Mittal Engineering Works (P) Ltd. v. Collector of Central Excise, Meerut, reported in 1997 (1) SCC 203 and municipal Corporation of Delhi v. Gurnam Kaur, reported in 1989 (1) SCC 101 . Prof. Reliance may be placed to the judgment passed in the case M/s. Goodyear India Ltd. v. State of Haryana andanr,. reported in AIR 1990 SC 781 , Mittal Engineering Works (P) Ltd. v. Collector of Central Excise, Meerut, reported in 1997 (1) SCC 203 and municipal Corporation of Delhi v. Gurnam Kaur, reported in 1989 (1) SCC 101 . Prof. P. J. Fitzgeralt in the Book "salmonds on Jurisprudence", 12th edition at page 153 has explained the concept of sub silencio to this effect: "a decision passes sub silencio in the technical sense that has come to be attached to that phrase when the particular point of law involved in the decision is not perceived by the Court or present in its mind". It is also a settled legal position that "a decision is an authority for what it decides and not that everything said therein constitute a precedent. . . . . . . . . . . a decision of the Court takes its colour from the questions involved in the case from which it was rendered". Reliance may be placed to the Constitution Bench judgment passed in the case State of Punjab v. Baldev Singh, reported in 1999 (6) SCC 172 . It has been held by the Apex Court in the case Commissioner of Income tax v. Sun Engineering Works (P) Ltd. , reported in 1992 (4) SCC 363 at para 39 "judgment must be read as a whole and the observation from the judgment have to be considered in the light of the questions which were before the court. A decision takes its colour from the questions involved -Court must carefully try to ascertain the true principle laid down by decision and not to pick out words and sentence from the judgment divorced from the context of the questions under consideration by the Court, to support their reasonings". Further, it is settled legal position that "one additional and different fact can make a world of difference between conclusion in two cases even when the same principles are applied in each case to similar facts". Reliance may be placed to the judgment passed in the case The Regional Manager and Ors. v. Pawan Kumar Dubey, reported in AIR 1976 SC 1766 , a three Judges Bench judgment, which has been referred to in the case Chandra Prakash Shahi v. State of U. P. and Ors. Reliance may be placed to the judgment passed in the case The Regional Manager and Ors. v. Pawan Kumar Dubey, reported in AIR 1976 SC 1766 , a three Judges Bench judgment, which has been referred to in the case Chandra Prakash Shahi v. State of U. P. and Ors. , reported in AIR 2000 SC 1706 . (26.) FOLLOWING the aforesaid principle of law, namely, binding precedent principle and doctrine of sub silencio, it appears that all the judgments as referred to by the learned Advocate for the appellant, there was no question involved for decision of the Court as to whether appearance of a non-sponsored candidate suo motu and/or by grace or charity of the employer or for other consideration, would hit the equality clause of Articles 14 and 16 (1) of the constitution of India and the ratio decidendi of the judgment passed in the case K. B. N. Visweshwara Rao and Ors. (supra) and the case Arun Kumar nayak (supra) read with basic features of Constitution under Articles 14 and 16 (1) of the Constitution. Having regard to the aforesaid findings and observation, with due respect to the authority of law as cited, we have failed to persuade our mind to accept the views expressed in those judgments as relied upon by learned Advocate for the appellant. As per our reading K. B. N. Visweshwara Rao and Ors. (supra) being a ratio decidendi and the judgment in the field passed by larger bench, which could be considered as a law of the land under Article 141 of the Constitution of India whereby and whereunder the Court have allowthe non-sponsored candidates to appear subject to public advertisement of the vacancy and notice by the employer following the modes as mentioned thereof, otherwise appearance of a candidate suo motu out of his own knowledge, which is nothing but a backdoor knowledge regarding vacancy and/or allowing someone, a non-sponsored candidate by the employer, which also a back door method as the same would deprive the other eligible candidates equally qualified to appear in the interview due to lack of such personal knowledge of the vacancy, will ex facie an arbitrary and ultra vires action to the constitutional mandate of Articles 14 and 16 (1)of the Constitution of India and it will hit the fair play, justice and equal opportunity clause of the Constitution. (27.) IT is also a settled proposition of law that even if there is any conflict in between the decisions of the Apex Court, if we assume such herein, then the judgments of the Larger Bench to be followed as larger the coram, it has more binding effect. Reliance may be placed to the judgment passed in the cases John Martin (supra), Smt. Indira Nehru Gandhi (supra), ganapati Sitaram Balvalkar and Anr. (supra), Mattulal (supra) and Union of india and Anr. (supra). (28.) HAVING regard to such, we are inclined to follow the judgment passed in the case K. B. N. Visweshwara Rao and Ors. (supra) to hold that a non-sponsored candidate suo motu and/or by grace and charity and/or other consideration of the employer without any public advertisement of the vacancy, if appears in the selection process, that will cause a breach of equality doctrine of the Constitution as enshrined under Articles 14 and 16 (1) of the constitution of India and will hit fair play, justice and equality clause, the basic structures of Constitution. (29.) HAVING regard to such, the second argument as advanced is answered negatively against the appellant by holding that the Secretary of the Managing Committee had no right to allow the participation of sole non-sponsored candidate, the appellant, who got the knowledge of vacancy otherwise but not from the public advertisement of the vacancy, which admittedly was not done by the Managing Committee and/or from the notice following the mode of K. B. N. Visweshwara Rao and Ors. (supra) and appellant had no legal right to appear in the interview and his participation caused a breach of Articles 14 and 16 (1) of the Constitution of India. In that view of the matter, we are not finding any merits in the appeal and appeal is, accordingly, stand dismissed.