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2009 DIGILAW 626 (CAL)

Motin Saikh v. STATE OF WEST BENGAL

2009-08-19

DIPANKAR DATTA

body2009
Judgment :- (1) The petitioner and the sixth respondent were contenders for appointment to a post of Group C staff in Pathardanga Sarbapalli High School (hereafter the school). An interview was conducted on 14.11.2008 wherein both participated. A panel was prepared by the selection committee in which the petitioner and the sixth respondent secured first and third positions respectively, which was later on accepted by the Managing Committee of the school and forwarded to the office of the District Inspector of Schools (S.E.), Burdwan on 17.11.2008. The District Inspector approved the panel on that very date. In pursuance thereof, the school issued offer of appointment in favour of the petitioner and he joined service on 19.11.2008. The District (2) Inspector also approved his service on 7.12.2008. In the meantime, however, the sixth respondent invoked the writ jurisdiction of this Court by filing a petition wherein the process of selection was challenged by him. The writ petition was disposed of on 23.2.2008 by a learned Judge of this Court by passing, inter alia, the following order : With the consent of the Parties, this Writ Petition is therefore disposed of by directing the Director of School Education, Government of West Bengal to look into the affairs of the School and if necessary, cause an investigation to be made by a competent Officer and take action in accordance with law. The Director of School Education is directed to take a decision after giving an opportunity of hearing to the Petitioner, the Respondent No.9 as well as to the School Authorities and also to the Secretary of the Managing Committee as well as to the District Inspector of Schools, if necessary. The decision of the Director of School Education should be taken within a period of eight weeks from the date of receipt of a copy of this Order. (3) This Court, at this stage, is not inclined to pass any interim Order save and except to only observe that the preparation of the panel and/or its effect shall be subject to the decision that is taken by the Director of School Education. (4) The Director of School Education in compliance with the order dated 23.2.2008 duly heard the parties. (4) The Director of School Education in compliance with the order dated 23.2.2008 duly heard the parties. By an order contained in Memo dated 30.4.2004/4.5.2009, he held that the process of selection suffered from various infirmities and that the panel prepared by the school authority was not in conformity with the existing rules/procedures for recruitment. The District Inspector was directed to cancel approval of the panel as well as service of the petitioner, being the first empanelled candidate, as accorded by him. The District Inspector was further directed to cause an internal enquiry by himself and to submit a report within a fortnight on the aspect of hurried examination of the panel, keeping in mind the fact that the panel was approved on the very date it was submitted by the school authority. Finally, the Director directed the school authority to hold a meeting for the purpose of formation of selection committee afresh as per extant rule and to fix up a date of interview of the candidates who were called upon to participate earlier and to submit a panel afresh as per extant rules to the District Inspector within the prescribed time limit. (5) Acting in compliance with the order of the Director, the District Inspector cancelled the panel forwarded to him by the Managing Committee of the School, resulting in the petitioner losing his service. The order of the Director referred to above forms the subject matter of challenge in the writ petition. (6) It appears from the impugned order of the Director that he had directed the District Inspector to cause an enquiry regarding the dispute involved and to submit a report at the time of hearing. This he was empowered to direct in view of the order of Court dated 23.2.2008. While proceeding to hold that the selection process was vitiated due to various infirmities, the Director appears to have considered an enquiry report submitted by the District Inspector vide Memo No. Nil dated 28.1.2009 pointing out defects to the effect that no resolution regarding formation of selection committee to conduct the process of recruitment was taken by the Managing Committee, the score sheet of the Secretary revealed that marks awarded by him had been penned through under the signature of the Headmaster of the School and that type test papers had been submitted without any signature of the examinees. On perusal of the order of the Director it does appear that these defects pointed out in the enquiry report weighed in his mind in arriving at the conclusion that the process of selection was vitiated. (7) Mr. Moitra, learned senior counsel for the petitioner contended that the enquiry report submitted by the District Inspector was not made available to the petitioner and the Director having considered a document behind his back, the order suffers from gross violation of principles of natural justice. It was further submitted by him that the District Inspector having once approved the panel, the Director could not have entrusted the District Inspector with the task of causing enquiry involving the dispute raised by the sixth respondent and that the Director acted illegally in this regard. (8) At the interim stage, this Court had called upon Mr. Samanta, learned counsel appearing for the Director to produce before the Court the enquiry report, recorded in the impugned order, to have been submitted by the District Inspector vide Memo No. Nil dated 28.1.2009. What was produced before the Court was not an enquiry report of the District Inspector but an enquiry report submitted by two Assistant Inspectors of Schools (S.E.), Burdwan dated 28.1.2009. This Court by order dated 9.7.2009 had sought for an explanation from the Director as to how he could act on the report of the two Assistant Inspectors particularly when the District Inspector was directed to cause an enquiry earlier and that having regard to settled principles of administrative law, the District Inspector could not have delegated the function of causing enquiry to the two Assistant Inspectors. The Director was further ordered to explain as to why a wrong picture was given in the impugned order by observing that the District Inspector had submitted a report dated 28.1.2009, although no such report in fact was submitted by him. The Director has since filed an affidavit dated 28.7.2009. This Court has duly considered the same and is constrained to hold that the explanation offered by him is not all worthy of acceptance. The Director should have remembered that being directed by this Court on an earlier occasion to decide the dispute raised by the sixth respondent in respect of illegalities committed while conducting the process of selection, he was acting in a quasi-judicial capacity. The Director should have remembered that being directed by this Court on an earlier occasion to decide the dispute raised by the sixth respondent in respect of illegalities committed while conducting the process of selection, he was acting in a quasi-judicial capacity. In such capacity, he was required to be fair in his dealings and should not have left any room for doubting his bonafides. (9) In his affidavit, the Director averred as follows: It is to be mentioned her that on the date of hearing the said District Inspector of schools (SE) sent his representative along with necessary papers including the enquiry report prepared by two Assistant Inspector of schools (SE) and the same was submitted at the time of hearing and the said report was treated as the report of the said District Inspector of schools (SE) Burdwan as the said report was prepared by the two Assistant Inspector of schools (S.E.), just below the rank of the D.I. of schools, at the instance of the District Inspector of schools (SE) Burdwan and it is the general norms of the office. (10) It does not appear from the impugned order that any representative of the District Inspector was present on the date of hearing, although presence of those who were in fact present has duly been recorded. The enquiry report does not in any manner give the indication that the same had been prepared by the District Inspector. No covering letter of the District Inspector enclosing the enquiry report with it has been brought on record. An official document could not have been forwarded to the Director without maintaining formality of sending a covering letter bearing Memo No. thereof. This Court is not prepared to believe that the report of enquiry was submitted by the Assistant Inspectors of Schools before the Director on the date of hearing. If it had been so, copy of the report ought to have been handed over to the parties present. That was undisputedly not done which belies his statement that the report was submitted in course of hearing. In such circumstances, the Director grossly erred in referring the same in the impugned order to have been submitted by the District Inspector. A totally wrong picture was sought to be given to the Court even when the anomaly was pointed out, which is inexcusable. In such circumstances, the Director grossly erred in referring the same in the impugned order to have been submitted by the District Inspector. A totally wrong picture was sought to be given to the Court even when the anomaly was pointed out, which is inexcusable. The District Inspector being the delegate of the Director could not have further delegate the function of causing enquiry to the two Assistant Inspectors. The Director appears to have made a frantic effort to sustain the report of the District Inspector, which is equally unjustified. The report of enquiry being an inadmissible piece of evidence, reliance placed thereon by the Director and without making the same available to the petitioner renders his order vitiated. (11) This Court warns the Director to be cautious in future and not to repeat a conduct not befitting the status of the high office he holds. This Court has come across various orders passed by the present incumbent in the office of Director of School Education, West Bengal, in quasi-judicial capacity, which have been subjected to challenge in writ petitions, inter alia, on the ground that the Director has looked into and based his order on document(s) without furnishing copy thereof to the person against whom the same has been relied on or without even giving him opportunity to take inspection thereof. The Director henceforth shall ensure due compliance with principles of natural justice by not looking into any document produced by a party before him or obtained by him from any source unless the party against whom the same is proposed to be used has access to it for meeting its contents. Notwithstanding the fact that the order of the Director stands vitiated for reasons discussed above, this Court is not inclined to grant any relief to the petitioner. The order of the Director could have been set aside and the issue remitted to him for fresh consideration in accordance with the principles of natural justice. However, it is settled law that natural justice principles are required to be followed for doing substantial justice and not for completing a mere ritual of hearing without possibility of any change in the decision of the case on merits [see Escorts Farms Limited vs. Commissioner, Kumaon Division, Nainital, U.P. and ors., reported in (2004) 4 SCC 281 ]. However, it is settled law that natural justice principles are required to be followed for doing substantial justice and not for completing a mere ritual of hearing without possibility of any change in the decision of the case on merits [see Escorts Farms Limited vs. Commissioner, Kumaon Division, Nainital, U.P. and ors., reported in (2004) 4 SCC 281 ]. (12) The petitioner has failed to satisfy this Court that the selection committee which interviewed the candidates was properly constituted in accordance with the extant recruitment rules. (13) It appears from the document at page 20 of the petition referred to by Mr. Moitra that the same is a resolution of the Managing Committee of the school dated 18.10.2008 deciding to form a panel of three experts, one of whom was to be nominated to the selection committee as an expert. However, there is no further resolution of the Managing Committee deciding which particular gentleman out of the three mentioned in the resolution dated 18.10.2008 would function as the expert in the selection committee. In the absence of any such resolution, any one of the three could not have functioned as the expert. This Court, accordingly, holds that the selection committee was not constituted according to rules and, therefore, the ultimate conclusion reached by the Director is not liable to be interfered with. This Court, however, would not permit the school authority to conduct selection process afresh as directed by the Director in his impugned order. With effect from 8.7.2009, the West Bengal School Service Commission (Selection of Persons for Appointment to the Post of Non- Teaching Staff) Rules, 2009 have come into force and, therefore, the process of selection must now be entrusted to the Regional School Service Commission having jurisdiction. The District Inspector is directed to report the vacancy to the Regional School Service Commission concerned for filling up the vacancy in accordance with law. This direction is issued because the selection process conducted earlier has been found to be illegal and the candidates who participated therein cannot claim accrual of any vested right in their favour based whereon they can choose to be guided by a particular procedure for selection. (14) The writ petition stands dismissed with the aforesaid observations. There shall be no order as to costs. (14) The writ petition stands dismissed with the aforesaid observations. There shall be no order as to costs. Copy of this judgment and order shall be forwarded to the Director of School Education, West Bengal by the office for his guidance. Urgent photostat certified copy of this judgment and order shall be furnished to the applicant as early as possible but positively within four days from putting in requisites therefore.