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2009 DIGILAW 323 (CAL)

Sayadul Islam v. STATE OF WEST BENGAL

2009-04-22

ANIRUDDHA BOSE

body2009
JUDGMENT 1. IN this matter direction was given for filing of affidavit but no affidavit has been filed by any of the respondents. 2. UNDER these circumstances this writ petition is being taken up for final hearing at this stage only. In this writ petition, the petitioner is an aspiring candidate for the post of Group "C" staff in Hallyan High School in the district of Howrah. 3. THIS is an aided school in which the salaries of the teaching and non- teaching staff are met by the State under a grant in aid scheme. The State has imposed certain restrictions on the aspect of appointment of teaching and non- teaching staff in the institutions of this nature. At the time the writ petition was filed, the position of law was that before initiating the selection process, the managing committee of the school was required to take approval from the District Inspector of Schools and subsequent to holding of the interview, the panel was required to be approved by the same authority before the State took up the responsibility to meet the financial commitment on account of salary and other benefits of such staff. The practice is to specify the staff pattern in respect of individual schools primarily depending on the number of students enrolled with individual schools. 4. THE petitioner claims to be working in the school since the year 1995. It has been submitted by Mr. Bari, learned Counsel for the petitioner that he was appointed by the managing committee of the school under a resolution dated 2nd September, 1995 on a temporary basis for the post of a clerk. At that point of time, however, this was not a sanctioned post compatible with the staff pattern and hence no prior approval was asked for or given for such appointment. Vacancy for the post of a clerk arose sometime in the year 2007 and prior permission for filling up the post of a clerk under general category-was given by the Additional District Inspector of Schools (S.E.) under a memorandum dated 1st March, 2007. At that point of time the appointment procedure was regulated by a rule framed under the provisions of section 22(1) read with section 5(2) of the West Bengal Schools (Control of Expenditure) Act, 2005. This rule was called the West Bengal Schools (Recruitment of Non-teaching Staff) Rules, 2005. At that point of time the appointment procedure was regulated by a rule framed under the provisions of section 22(1) read with section 5(2) of the West Bengal Schools (Control of Expenditure) Act, 2005. This rule was called the West Bengal Schools (Recruitment of Non-teaching Staff) Rules, 2005. As per clauses 8(5)(a) and (b) of the said rules, only those candidates could participate in the selection process whose names were sponsored by the Employment Exchange. Several writ petitions were moved before this Court challenging the vires of the said rule. In the case of Prabir Kumar Maji vs. State of West Bengal and Ors., reported in (2008) CLJ 823, the said provisions were struck down being unconstitutional by an Hon'ble Single Judge of this Court relying on the judgment of Hon'ble Supreme Court delivered in the case of Excise Superintendent vs. K. V. N, Bisweswara Rao, reported in 1996(6) SCC page 216. 5. It was directed in that judgment that the wide circulation should be given in respect of the vacancy and persons who otherwise fulfill eligibility of criteria should be permitted to participate in the selection process along with those whose names are sponsored by the Employment Exchange. 6. In the present case the petitioner had approached this Court for obtaining permission to participate in the selection process upon condoning the age bar specified in terms of the 2005 Rules. The relevant rule in this regard stipulates that maximum age for participating in the selection process or for appointment would be 35 years, providing for relaxation for certain categories of applicants. The petitioner comes from the general category and as such his case would come within the prohibition prescribed by the said rules on the aspect of minimum entry age under normal circumstances. IN the year 2007, the petitioner was above 44 years of age. Interview was scheduled to be held on 22nd December, 2008 and an Hon'ble Single Judge of this Court passed an interim order in this matter permitting the petitioner to participate in the selection process. Now it appears that a panel has been prepared on the basis of interview. IN the year 2007, the petitioner was above 44 years of age. Interview was scheduled to be held on 22nd December, 2008 and an Hon'ble Single Judge of this Court passed an interim order in this matter permitting the petitioner to participate in the selection process. Now it appears that a panel has been prepared on the basis of interview. However in the interim order, which was passed on 8th December, 2008, it was specified that permission in favour of the petitioner was being granted provisionally and no equity in favour of the petitioner would be created so far as his claim made in the writ petition was concerned. 7. NO affidavit-in-opposition has been filed on behalf of the respondents in spite of direction of this Court. The petitioner's prayer now is for direction upon the respondent authorities to finalise the panel and give approval to the same. 8. THE petitioner in this writ petition is not seeking regularisation or absorption in the post on the strength of past senice. His prayer is for being permitted to participate in the selection process along with other general candidates. Now the question arises as to whether the, age bar contemplated in clause (4) of the said Rules ought to operate against the petitioner or not. Mr. Bari has relied on two decisions of the Hon'ble Supreme Court being the cases of Surinder Singh Jamwal and Anr. vs. State of Jammu and Kashmir and Ors., reported in AIR 1996 SC 2775 and State of Madhya Pradesh vs. Yogesh Ch, Dubey, reported in 2006(8) SCC 67, in support of his submission's. In both these cases, the Hon'ble Supreme Court directed relaxation the maximum age limit in the cases of a candidate seeking to participate in the selection process if they had served the organisation for a long period of time. 9. IN the present case, I am also inclined to follow the same .course as directed by the Hon'ble Supreme Court in these two decisions. Initial appointment of the petitioner was made in the year 1995 by the school concerned, when the petitioner was within the maximum age limit prescribed by the said Rules. The bar in clause (4) is on appointment of a person by a school authority if he crosses the prescribed age limit. Initial appointment of the petitioner was made in the year 1995 by the school concerned, when the petitioner was within the maximum age limit prescribed by the said Rules. The bar in clause (4) is on appointment of a person by a school authority if he crosses the prescribed age limit. IN my view, in the event a person who serves the school for reasonably long period of time but his initial appointment is without the approval of the educational authorities, then his past service and, the initial age of joining ought to be taken into account for the purpose of determining whether the maximum age prescribed by the statute out to be relaxed in his case or not. The schools of this nature are not Government schools and are operated by a managing committee. There is no bar on the managing committee in giving appointment to any staff but unless a staff is appointed through the process of prior permission and post selection approval, the obligation of the State to pay the salary and other benefits to such candidates do not arise. IN a case of this nature, I am of the opinion that determining the right of a candidate to participate in the selection process, the embargo imposed by the said Rules should be construed in such manner so that the age of an incumbent on the date of his appointment effected by the school is treated to be relevant date. Otherwise, a person who serves a school for a reasonably long period of time would forever lose his chance of getting appointment in a post for which he has gained expertise and experience. 10. SO far as construction of statutory provisions is concerned, the Court has been conferred with sufficient jurisdiction to read certain imperative provisions of a statute, which per se appears to be mandatory as directory in exceptional circumstances. In "Statutory Construction Interpretation of Laws" by Earl. T. Crawford, the following principle of construction has been laid down. "Miscellaneous Implied Exceptions from the Requirements of Mandatory Statutes, in General.- Even where a statute is clearly mandatory or prohibitory, yet, in many instances, the Courts will regard certain conduct beyond the prohibition of the statute through the use of various devices or principles. Most, if not all of these devices find their justification in considerations of justice. "Miscellaneous Implied Exceptions from the Requirements of Mandatory Statutes, in General.- Even where a statute is clearly mandatory or prohibitory, yet, in many instances, the Courts will regard certain conduct beyond the prohibition of the statute through the use of various devices or principles. Most, if not all of these devices find their justification in considerations of justice. It is a well known fact that often to enforce the law to its letter produces manifest injustice, for frequently equitable and humane considerations, and other considerations of a closely related nature, would seem to be of a sufficient caliber to excuse or justify a technical violation of the law. In order to eliminate cases of this character from the prohibitory and penal provisions of the law, the Courts have in numerous cases recognised that these considerations are sufficient to relieve or exempt the actor from the statute's provisions. Of course, this action upon the part of the Court may be justified by the principles that the legislature must not be presumed to enact a statute which will operate harshly and inequitably, and that where the statute operates fairly generally, a presumption also arises that if the law operates unjustly in a given case, the legislature intended to exempt such case from the scope of the statute. This, of itself, should completely dispose of the objection that to allow the Court to make exceptions simply allows the Court to exercise the legislative power. But this objection fades away; if we will accept the view that at best the legislature can only lay down a broad and general rule to govern our conduct, and leave the determination of specific cases to the Court in accord with the general legislative intent, that the law is designed to promote justice as determined from our standards of ethics. Rarely, if ever, can the legislature lay down a law which, will reveal a specific intent clearly applicable to all cases which will or may arise. Indeed, is it not an essential part of the judicial power to deal with specific cases, where no specific legislative intent appears, in the light of the basic general legislative intention that the law shall operate fairly. If, so then so called exceptions from the mandatory provisions of the law may properly be recognized by the Courts without any violation of the triparte theory of Government". If, so then so called exceptions from the mandatory provisions of the law may properly be recognized by the Courts without any violation of the triparte theory of Government". Applying this principle, I hold that in the case of the petitioner, clause (4) of the said Rule ought to be construed to mean that the date of appointment by the school management shall be the relevant date for computing the age of an incumbent. In the present case, there is no dispute over the appointment. 11. THE writ petition accordingly stands allowed. 12. THE respondents are directed to consider for approval the panel if the same is with them and in the event the petitioners comes within the zone of consideration, he shall not be disqualified for having crossed the age bar on the date on which prior permission for the post was granted. This exercise shall be completed within a period of of communication of this order. There is also application by the Secretary of the managing committee seeking direction on the respondents for giving approval to the panel. In view of this judgment, the said application being CAN No. 605 of 2009 also stands allowed. 13. THERE shall, however, be no order as to costs Appeal allowed.