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2009 DIGILAW 523 (CAL)

Mahasin Biswas v. State of West

2009-07-20

ABDUL GHANI, KALYAN JYOTI SENGUPTA

body2009
Judgment :- (1) This appeal is directed against a well reasoned judgment and order of the learned Trial Judge dated 28th September, 2000 by which the writ petition has been dismissed with detailed discussion. (2) The facts and circumstances leading to filing the writ petition as well as preferring the appeal are succinctly recorded hereunder notwithstanding the recording of the learned Trial Judge. (3) For the sake of disposal of the appeal we feel the repetition of such fact is necessary. (4) The petitioner/appellant was asked to take an interview on 5th September, 1998 for being appointed in the post of Group D (Peon) in a school called Dhubulia Subhas Chandra Balika Vidyalaya. His participation in the selection process was for appointment on compassionate ground and as such he was sponsored by the DI. He was successful and he was empanelled and topped on the panel for the said post. This panel was ultimately approved by the DI when it was sent to him, followed by issuing a letter of appointment dated 5th January, 1999. (5) According to the petitioner, he went to join but the school authority refused to allow him to join and put a condition precedent that he has to pay Rs.60,000/- cash and to execute a bond. He made complaint to the various authority including DI, District Magistrate etc., however, of no result. Hence, he came to this Court with the reliefs for allowing him to join in the said post. (6) The writ petition was contested by State as well as the school authority by filing affidavit-in-opposition. After considering the pleadings of both parties the learned Trial Judge, as we read His Lordships judgment, did not accept the version of the school authority that the petitioner was time and again asked to join but refused to join as the school authority wanted the petitioner to serve as Night Guard in addition to his own duty as Peon. (7) It is also stated in the affidavit-in-opposition that there has been a complaint as to genuineness of certificate of Class-VIII pass produced by him to prove age. In view of the said complaint he was not allowed to join. Learned Trial Judge was not convinced with the plea put forward by the school authority with regard to the refusal of the petitioner to join on other conditions. In view of the said complaint he was not allowed to join. Learned Trial Judge was not convinced with the plea put forward by the school authority with regard to the refusal of the petitioner to join on other conditions. Learned Trial Judge on face of the averment and statement made in the affidavit with regard to genuineness of certificate proceeded in the matter. The learned Trial Judge directed the DI to make an enquiry as to whether the certificate produced by the petitioner/appellant is a genuine or valid one and really issued by the concerned school authority. On consideration of all the aspect, DI submitted a report against the appellant and serious doubt has been raised as to genuineness of the certificate. But learned Trial Judge on fact found that certificate produced by the petitioner is not valid. The said report of the DI, pursuant to the order of the Court, was not challenged by taking any exception but ultimately the Court had accepted such report. (8) As such, the reliefs prayed for were not granted by the learned Trial Judge on the factual background as above. (9) Now Mr. Tapan Mukherjee, learned Advocate appearing for the appellant, submits that the learned Trial Judge had no jurisdiction to decide the question of genuineness of this certificate when it has been accepted by the school authority at the time of issuance of interview letter and allow him to participate in the selection process and the panel was approved by the DI and moreover, when the letter of appointment was issued. It is not within the power of the learned Trial Judge to question what has not been done by the respondents. According to him, it is nobodys case that the document is in genuine. (10) In view of this argument we are to look into what has been stated in the affidavit-in-opposition though copy of which has not been included in the paper book. But the learned Trial Judge in his judgment has recorded that the school authority at that stage observed that the petitioner was not qualified and the document produced by him at the time of selection before selector to prove his qualification that he was studying in Class-VIII in Harinarayanpur J.K Vidyapith is a fake document. But the learned Trial Judge in his judgment has recorded that the school authority at that stage observed that the petitioner was not qualified and the document produced by him at the time of selection before selector to prove his qualification that he was studying in Class-VIII in Harinarayanpur J.K Vidyapith is a fake document. In view of such recording by the learned Trial Judge, we think the learned Trial Judge was perfectly within his own power to decide the issue whether the document produced by the appellant is genuine or not. (11) In view of the aforesaid pleading and issue posed before the learned Trial Judge His Lordship had no option but to proceed to dispose of issue. We are unable to accept the contention of Mr. Mukherjee that learned Trial Judge has decided anything which is a non-issue. (12) Then Mr. Mukherjee submits that even if it is assumed that document is a fake one, the same should be ignored and there is no prescribed qualification for appointment in Group D staff under the rules. We are of the view that this submission is not acceptable for the simple reason that a candidate has to produce a document relating to his age and in order to prove the same the appellant produced the aforesaid questioned document. So genuine of that document cannot be ignored altogether. Mr. Mukherjee then contends that if the report is scanned carefully, then it would emerge that the petitioner got the certificate from unrecognised school and there is no bar to produce a certificate from an unrecognised school. According to us, when a particular person has relied on a document and invited the school authority and all other authorities to act upon such document, he has to accept such document with success or failure. He did not challenge the report submitted by the DI which was unfavourable one and having found no infirmity in the report, the learned Trial Judge accepted the same and came to the conclusion as follows: "In view of the facts stated above, the following decision may be arrived at: i) The transfer certificate on the basis of which Md. He did not challenge the report submitted by the DI which was unfavourable one and having found no infirmity in the report, the learned Trial Judge accepted the same and came to the conclusion as follows: "In view of the facts stated above, the following decision may be arrived at: i) The transfer certificate on the basis of which Md. Mahasin Biswas was admitted in Class- VIII in the school was issued by an unrecognised school and as such the same is not a valid one for which it should not be considered at the time of admission; ii) No document for authentication of date of birth of Md. Mahasin Biswas has been furnished to the school except the Transfer Certificate. iii) The overwriting of the marks obtained by Md. Mahasin Biswas, as it is evident from Progress Report Register, cannot be accepted. This act raises every doubt as to whether the student actually passed for promotion to Class-IX. Under the circumstances stated above I have verified the relevant documents available for verification and found that the certificate dt. 24.9.96 and 13.2.99 and also the mark-sheet dt. 24.9.96 were actually issued in favour of Mahasin Biswas by the Teacher-in-Charge of Harmarayanpur J. K. Vidyapith but as the mark-sheet issued by the Teacher-in-Charge cannot be considered a valid document, the certificate dt. 24.9.96 and dt. 13.2.99 also may not be considered as valid documents." (13) It is pertinent to mention that in the Memorandum of Appeal there is no challenge at all. so to say, against the aforesaid fact finding and observation of the learned Trial Judge except on one ground that the learned Trial Judge has relied on a bias report which, in our view, should have been or could have been challenged before learned Trial Judge before acceptance of such report. It was not done so and the reasons for which we need not go into details suffice it to record that said fact finding of the learned Trial Judge before us remains unchallenged. (14) Under those circumstances, we do not find the submission of Mr. Mukherjee is helpful in any manner in this case. We dismiss this appeal and uphold the judgment of the learned Trial Judge. (15) Mr. Nayak wanted to make some submission on the aforesaid factual and legal position which is not required. (14) Under those circumstances, we do not find the submission of Mr. Mukherjee is helpful in any manner in this case. We dismiss this appeal and uphold the judgment of the learned Trial Judge. (15) Mr. Nayak wanted to make some submission on the aforesaid factual and legal position which is not required. (16) However, the judgment and order of this Court as well as the learned Trial Judge will not debar the school authority to undertake fresh selection process, if the post is not filled in by this time. If such fresh selection process is undertaken, then we direct the DI to put forward the name of the petitioner on compassionate ground. However, at that time he must produce some other genuine records in support of his qualification, age or education, if any, required under the rules. Age bar, if any, shall be condoned since the matter was pending before this Court. We notice that petitioner was otherwise successful but for production of fake document, as found by the learned Trial Judge, his appointment has to be cancelled and he has rightly been refused not to allow him to remain in duty. The selection process shall be undertaken under the Rules which was prevailing at the time of selection process earlier. (17) Urgent xerox certified copy of this order shall be supplied to the applicants, if applied for. Appeal dismissed.