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2009 DIGILAW 704 (CAL)

Papiya Patwary v. STATE OF WEST BENGAL

2009-09-02

J.K.Biswas

body2009
JUDGMENT: 1. THE third and fourth respondents in the writ petition dated October 9, 1996 that was registered under C. O. No. 17173 (W) of 1996 have taken out this application dated May 6, 1997 for an order setting aside the order dated April 21, 1997 disposing of the writ petition. 2. THE writ petition was taken out by one Papiya Patwary and the third and fourth respondents therein were the Headmistress, Serampore Ramesh Chandra Girls High School and the Secretary, serampore Ramesh Chandra Girls High School respectively. The order dated April 21, 1997 is as follows: -As submitted by the learned advocate appearing before me on behalf of the school authorities that since no appeal was preferred against the order dated 18th June, 1996 passed by the District Inspector of Schools (S. E.), Hooghly by the school authorities, the school is directed to act in terms of the said order positively within eight weeks from the date of communication of the order and I make it clear that the time limit so fixed above is peremptory and mandatory. With these observations, the civil order is disposed of as above without any order as to cost. The circumstances under which the district inspector of schools gave the decision dated june 18, 1996 are these. By an order dated December 28, 1994 the district inspector of schools permitted the institute (Serampore Ramesh Chandra Girls High School) to appoint an Assistant teacher of Bengali. According to the prescribed procedure, on receipt of the permission, the institute sent requisition requesting the employment exchange to sponsor names of candidates eligible for the post. Papiya was one of the candidates whose names were sponsored by the exchange. The duly constituted selection committee interviewed the candidates on December 16, 1995 and prepared a list of three select candidates placing Papiya in the second position. Feeling aggrieved, Papiya made a representation to the district inspector of schools alleging that though she was entitled to one mark for a diploma in music obtained from one Pracheen Kala Kendra, Chandigarh, the selection committee did not give her the mark. Then alleging inaction on the part of the district inspector of schools she moved this court by filling a writ petition that was registered under C. O. No. 22564 (W) of 1995. Then alleging inaction on the part of the district inspector of schools she moved this court by filling a writ petition that was registered under C. O. No. 22564 (W) of 1995. By an order dated March 29, 1996 the writ petition was disposed of directing the district inspector of schools to consider her representation and give an appropriate decision. Accordingly, the district inspector of schools gave the decision dated June 18, 1996 holding that she was entitled to one mark for the diploma and hence the list should be prepared afresh placing her in the first position. 3. THEN alleging that the institute was not enforcing the decision of the district inspector of schools dated June 18, 1996 Papiya took out the writ petition dated October 9, 1996. The headmistress and the secretary of the institute jointly filed an opposition dated March 31, 1997. Papiya filed a reply dated April 7, 1997. 4. IN the opposition it was stated that after the district inspector of schools gave the decision dated June 18, 1996, the institute requested the Rabindra Bharati University to examine whether Papiyas case that she obtained the diploma from an institute that was affiliated to the university was correct; that by a reply letter dated July 17, 1996 the university informed the institute that the institute from which Papiya obtained the diploma was not affiliated to the university and that the diploma was not recognized by it; that, under the circumstances, the institute submitted a representation dated September 23, 1996 requesting the district inspector of schools to recall his decision dated June 18, 1996 on the ground that on the basis of the unrecognized diploma Papiya could not claim one mark and hence the list of select candidates prepared by the selection committee and accepted by the managing committee of the institute should be considered for approval; that on receipt of the institutes representation the district inspector of schools wrote a letter dated November 29, 1996 requesting the university to examine whether the diploma obtained by Papiya was recognised by it; that by a reply letter dated December 24, 1996 the university gave the same reply that it gave by its previous letter dated July 17, 1996 to the institute; and that, under the circumstances, there was no scope for enforcing the decision of the district inspector of schools dated June 18, 1996. In paras. In paras. 25 and 26 of this application it has been stated that when the writ petition was called on for hearing on April 21, 1997 senior counsel engaged by the headmistress and the secretary was arguing an appeal before a division bench; that the advocate on record prayed for an adjournment that was refused; that the advocate on record could not draw the attention of the court to the case stated in the opposition; and that immediately after the order was dictated a prayer was made for recalling it, but the judge observed that for the purpose the headmistress and the secretary should take out an application. 5. IT is evident from the above-noted facts and circumstances that the third and fourth respondents in the writ petition did not get a fair opportunity of hearing before the order dated April 21, 1997, for all purposes actually allowing the writ petition, was made. The case of the third and fourth respondents stated in their affidavit was not noticed at all. As a matter of fact, no provision of any law conferred a right on any authority of the institute to appeal from the decision of the district inspector of schools dated June 18, 1996. The fact that the institute requested the district inspector of schools, who proceeded on the basis that Papiya obtained the diploma from an institute affiliated to the Rabindra Bharati University and that it was a recognised diploma, to recall the decision was not noticed. It has not been disputed by anyone that at the time the matter was called on for hearing advocate on record for the third and fourth respondents prayed for an adjournment on the ground that the senior counsel engaged in the case was actually arguing an appeal before a division bench, and that immediately after the order was made an oral prayer was made for recalling it and rehearing the writ petition. It is on these facts that the third and fourth respondents decided not to apply for review of the order, but for invoking the inherent power of this court to set aside the order. 6. NOTICE was given to all the parties and especially to Papiya, and it is evident from the acknowledgment card produced with the affidavit of service that she received notice of this application. But nobody has chosen to appear and contest the application. 6. NOTICE was given to all the parties and especially to Papiya, and it is evident from the acknowledgment card produced with the affidavit of service that she received notice of this application. But nobody has chosen to appear and contest the application. On the facts, I am of the view that this is a fit case where the inherent power should be exercised for setting aside the order dated April 21, 1997. At the cost of repetition, I say that, in my opinion, the third and fourth respondents are fully justified in saying that they did not get a fair opportunity of hearing before the order was made finally disposing of the writ petition. For these reasons, I allow this application, set aside the order dated April 21, 1997 finally disposing of C. O. No. 17173 (W) of 1996 and order that C. O. No. 17173 (W) of 1996, to which permanent writ petition number shall allotted by the department concerned immediately, shall be heard afresh. There shall be no order for costs.