Managing Committee of Aligung Rishi Rajnarayan Valika Vidyalaya 82 v. Jamuna Ghosh Paladhi
2009-07-24
ABDUL GHANI, KALYAN JYOTI SENGUPTA
body2009
DigiLaw.ai
Judgment :- (1) By this appeal, the learned single Judges judgment and order has been challenged. Jamuna Ghosh Paladhi, approached this Court with the writ petition No.9919(W) of 2005, praying for the relief for granting appointment to the post of Assistant Headmistress, pursuant to the approval, said to have been granted by the D.I. (2) The fact of this case appears to be as follows : Decision was taken to fill up the post of Assistant Headmistress of Aligung Rishi Rajnarayan Valika Vidyalaya. Eligible candidates participated in the selection process. A panel was formed and the first respondent came to be the first candidate in the said panel. In the extraordinary general meeting, managing committee of the said school decided to approve the said panel. The resolution of the said extraordinary general meeting was thereafter supposed to be placed before the regular managing committee for acceptance. (3) Before this could be done, the managing committee received various complaints including those of selection of two candidates viz. second and third candidate in the panel, alleging that there has been undue and extraneous influence in the decision making process. It was also alleged that the expert, being one of the members of the selection committee was influenced. (4) On receipt of this complaint, in the regular meeting of the managing committee it was decided to reverse the earlier decision taken in the extraordinary general meeting, but by this time, resolution of the extraordinary general meeting was sent to the D.I. Immediately after the aforesaid resolution being adopted in the general meeting, the managing committee requested the D.I. not to take cognizance of the earlier resolution and not to approve the panel. But by a letter in the month of July, 2004 of dated 11th June, 2004 communication of approval was sent to the school by the D.I. In the approved panel the writ petitioner/respondent was figured as the first candidate. In natural course of event, the writ petitioner / respondent should have been given appointment. (5) However, response of the managing committee of the school concerned was just the reverse and they did not accept the approval of the D.I. rather vented that no appointment could be given pursuant to the said approval.
In natural course of event, the writ petitioner / respondent should have been given appointment. (5) However, response of the managing committee of the school concerned was just the reverse and they did not accept the approval of the D.I. rather vented that no appointment could be given pursuant to the said approval. By a subsequent communication dated 3rd January, 2005, Managing Committee asked the D.I. for granting prior permission for appointment of Assistant Head Master afresh as earlier panel was not accepted by way of ratification in the regular meeting of the managing committee. (6) Mr. Maity appearing for the appellant submits that preparation of the panel by the selection committee was vitiated with undue influence and pressure and it was not a correct decision of the selection committee and, as such, in the regular meeting of the managing committee, on receipt of complaints and examining all the aspects, it was decided that approval provisionally granted in the extraordinary meeting should not be accepted. In spite of communication of such decision of the managing committee, the D.I. in a high handed manner, has granted approval and indeed the approval was granted ante-dating the memo of approval. Such fact of mala fide act on the part of the D.I. by way of ante-dating will be apparent from the endorsement of the Peon Book in which fact of receipt of communication is recorded to have been received on 10th July, 2004. He submits that fraud has been practised by the D.I. by ante-dating in order to subvert the valid resolution of the managing committee adopted in the regular meeting. It is surprising that in the Midnapore town itself one month time could be taken to despatch the letter of approval. (7) Mr. Maity further submits that Court has no power to extend the life of the panel. Here, the life of the panel, under the rule, should be three months from the date of preparation of the same; whereas, the Court without any valid reasons has extended the life of the panel. The exercise of Court in extending the life of the panel, has been dis- approved by the Honble Supreme Court in decisions reported in (1996) 2, SCC page 7 and (2003) 6 SCC page 699.
The exercise of Court in extending the life of the panel, has been dis- approved by the Honble Supreme Court in decisions reported in (1996) 2, SCC page 7 and (2003) 6 SCC page 699. (8) He further submits that when the managing committee had conveyed its disapproval of the panel before D.I. took decision, no cognizance ought to have taken of panel. In support of his submission, he has relied on a decision of the Constitution Bench of the Honble Supreme Court, on the above principle that before it is accepted, if the resignation from services is withdrawn, there cannot be any acceptance of the same. He submits that on the face of the aforesaid serious illegality and infirmity, learned trial Judge should not have given direction for appointment. (9) He also urges, drawing our attention to a portion of observation of the learned trial Judge that the same is based on no evidence; rather conjecture and surmise. It is not understood why the learned trial Judge had given 24 hours time to give appointment and at the same time passed an order of execution of the order by appointing DDO and panel measure in case of default. Such directions were uncalled for as the same are based on anticipatory non-compliance of order. This sort of order could be passed only when there is actual non-compliance on the part of a litigant. (10) Mr. Shyamal Kumar Das, appearing for the respondents No.5 and 6 adopts the submission of Mr. Maity and submits that approval of the panel by the D.I. has been accorded under suspicious circumstances and selection was held in a biased manner. He, therefore, asked for cancellation of the order of appointment made by the learned trial Judge and also approval of the D.I. and seeks re-selection in respect of the said post. (11) Learned counsel for the State submits that there is no illegality and infirmity in this matter. According to him, under the rules, approval is never accorded by a managing committee of the school. Its function is to receive the panel prepared by the selection committee and after having examined the same, to send it to the D.I. for approval. Approval is granted by the D.I. alone and none else and there has been no challenge by initiating separate proceedings against the said approval of the panel.
Its function is to receive the panel prepared by the selection committee and after having examined the same, to send it to the D.I. for approval. Approval is granted by the D.I. alone and none else and there has been no challenge by initiating separate proceedings against the said approval of the panel. He submits that it is incumbent upon the managing committee or ad-hoc committee or the administrator, as the case may be, to obey the direction of the D.I. and to give appointment, the moment the panel is approved. (12) Mr. Saugata Bhattacharyya, appearing for the writ petitioner/ respondent No. 1 submits that the judgment and order of the learned trial Judge is perfectly justified in the fact and circumstances of this case. He says that this approval of the D.I. was not granted in a day. The complaint, as alleged by the appellant, was duly considered and dealt with upon hearing everyone and after deliberation of everything, the panel was approved. To support this submission, he has drawn our attention to the statements and averments made in paragraph 3(iv) of the affidavit affirmed by one Prasanta Kumar Bag, being the Sub-Inspector of Schools, at page 70 of the paper book. (13) He, thereafter drawn our attention to the resolution, alleged to have been adopted in the regular meting of the managing committee subsequently and commented that the candidates who participated in the selection process, were happened to be the members of the said managing committee and they were present in the said meeting. As such, the decision taken in the subsequent meeting is vitiated with mala fide and element of bias. (14) After having heard the learned counsels for the parties and after having considered all the aspects of the matter and after having considered the submission in reply, we find that the judgment and order of the learned trial Judge directing to give appointment in favour of the writ petitioner/respondent No.1, is not improper and/or illegal as the D.I approved the panel, may be rightly or wrongly. In the Management Rules, nowhere the managing committee has been authorised to ignore the direction of the D.I. It is well settled law that an artificial body cannot do whatever it likes, unlike an individual, unless this body is empowered specifically.
In the Management Rules, nowhere the managing committee has been authorised to ignore the direction of the D.I. It is well settled law that an artificial body cannot do whatever it likes, unlike an individual, unless this body is empowered specifically. In case of individual person he or she can do whatever he or she likes, unless it is prohibited and restricted by law. (15) Mr. Maity is fair enough to concede that there is no provision in the Management Rules under which the managing committee can ignore or sit over the decision of D.I. and refuse appointment. But the question is, does it mean to say that void and illegal order can be accepted for all the times to come? The answer is in negative. But, unless the order of D.I., being competent person is challenged by the managing committee; putting rather differently so long the order of the D.I. remain subsisting and valid, there is no option for any person but to accept the same, unless the same is set aside or quashed by a competent Court of law. If order of competent is allowed to be flouted by unauthorised person or body, rule of law is thrown to wind. (16) So far the question of extending the life of the panel is concerned, we feel that true the life of the panel had expired, but it is not the fault of the writ petitioner/respondent No. 1; rather it was the duty of the school authority to give appointment in terms of the panel approved by the D.I. and in that case it was their duty to offer appointment within the validity period of the panel and within the time mentioned in the Management Rules. For this reason, the writ petitioner/respondent No. 1 cannot be non-suited. Therefore, the decisions cited by Mr. Maity regarding extension of validity of the panel by the Court is not apposite to this case. In the case, cited by Mr. Maity, the litigants were responsible for the delay. Power of the Writ Court is wide enough to grant appropriate relief. (17) There is yet another aspect of the matter, i.e. if the approval of panel is bad then appointment obviously would be bad, as we have already held that the approval was granted by the D.I., may be rightly or wrongly.
Power of the Writ Court is wide enough to grant appropriate relief. (17) There is yet another aspect of the matter, i.e. if the approval of panel is bad then appointment obviously would be bad, as we have already held that the approval was granted by the D.I., may be rightly or wrongly. So, long the order of the D.I. remain subsisting and valid and is not set aside by any competent Court, the same has to be accepted for the time being. (18) The managing committee did not challenge or asked for setting aside the said panel within the prescribed time. Therefore, in this writ petition. there is no scope, either to set aside or cancel the order of approval of the D.I. It may be possible in a separate action. (19) As such, we are of the view that the order granting relief for giving appointment to the writ petitioner/respondent No. 1. is not an improper one and it is accepted by this Court, for the time being. However, we make it clear that if the managing committee decides to take action to challenge the order of approval of the D.L, they will be free to do so in the event, such course of action is taken within a period of one month from the date of receipt of certified copy of this order, the period during which this matter was pending before this Court, will be a factor for exclusion of time for the purpose of limitation or delay, whatever it may be. Therefore, all the points agitated before the learned trial Judge or before this Court, are not to be taken in to account nor to be put forward as defence or plea by way of res judicata. (20) Though we have accepted the order of the learned trial Judge regarding granting appointment in favour of the writ petitioner/respondent No. 1, but we cannot approve of or endorse the remaining portion of the order by which D.D.O. was appointed, for nothing. This sort of order is required when the direction of the Court is not carried out within the time mentioned and this could have been by way of a deterrent action. Deterrent action in anticipation or apprehension of non-compliance of order, must not be taken. We fail to understand, why the D.D.O. was appointed.
This sort of order is required when the direction of the Court is not carried out within the time mentioned and this could have been by way of a deterrent action. Deterrent action in anticipation or apprehension of non-compliance of order, must not be taken. We fail to understand, why the D.D.O. was appointed. When there has been no proof of mis-management, nor any scope of non-compliance of the order of the Court, this order was simply uncalled for. (21) We, therefore, discharge the D.D.O. forthwith. We direct the D.I. to examine whether the D.D.O. has functioned within his own parameter, as permissible under the law, or not. if any steps had been taken by him, exceeding his permissible limit, such action shall stand cancelled automatically, being without jurisdiction. With the aforesaid observations, we dispose of this appeal without any order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the applicants. Appeal disposed of