Research › Search › Judgment

Calcutta High Court · body

2010 DIGILAW 1367 (CAL)

Sankar Das v. STATE OF WEST BENGAL

2010-11-26

AMIT TALUKDAR, TARUN KUMAR GUPTA

body2010
JUDGMENT Talukdar, J. 1. IN the prism of the Order passed by the Hon'ble trial Court W.P. No. 14999(W) of 2009 on 18.04.2010, whereby the prayer of the petitioner challenging the selection process initiated by the respondent Nos. 5 and 6 proved abortive; we would be required to see as to whether the same can pass muster in the trajectory of the sequence of events that have surfaced before us interlaced with the legal position on the strength of various decisions operating in the field. 2. THE story of the Appellant dates back to his days of unemployment, which persuaded him to respond to an Advertisement (Page 66 of the Stay Application) issued on 16.09.2008 on behalf of respondent Nos. 5 and 6 requiring a Clerk having knowledge of Type Writing in English. In terms of the said Advertisement, the Appellant appeared for the Interview on 02.10.2008. It should be kept in mind in this calendar of events that on 28.07.2008 the District Inspector of Schools (respondent No. 4) had accorded permission for notifying the Post (Page 65 of the Stay Application). 3. LAPSE of several months and compounding the agony of unemployment, saw the Appellant approached the Authorities so as to ascertain the result of the Interview held on 02.10.2008. It was brought to his knowledge that on 09.02.2009 respondent No. 4 had cancelled the Panel since the School Authorities (respondent Nos. 5 and (6) did not follow the guidelines (Page 67 of the Stay Application). 4. SUBSEQUENT thereof, in terms of the directions passed in the said Notification of respondent No.4, a second advertisement was published on 24.02.2009 (Page 71 of the Stay Application) and second Interview was held on 26.07.2009, which saw the added respondent No.9 in the coveted position. Approach before the Hon'ble Trial Court on the premises that the 24.02.2009 being null and void having proved abortive; saw him in the precincts of this appeal. 5. IN a Mandamus appeal we exercise the self-same jurisdiction of the First Court of Writ, perhaps in a more magnified fashion. After all, while assessing the prayer made in a Writ Appeal, not only we are under the Constitutional sweep but have to ensure that the person, who has been able to establish his legal right, has an uninterrupted access to Justice. IN such curve we will look into the verdict returned by the Hon'ble Trial Judge. 6. After all, while assessing the prayer made in a Writ Appeal, not only we are under the Constitutional sweep but have to ensure that the person, who has been able to establish his legal right, has an uninterrupted access to Justice. IN such curve we will look into the verdict returned by the Hon'ble Trial Judge. 6. PRELIMINARILY, His Lordship was of the view that the Appellant lacked locus standi since he was not an empanelled candidate in the first Interview and secondly, that the Rules governing the field at the time of the vacancy having arisen, will take out the strength of the Appellant's stand that once the West Bengal School Service Commission (Amendment) Act, 2008 have come into existence, the respondent Nos. 5 and 6 lost their charm. Shri Soumya Majumdar, learned Counsel in support of the appeal with Shri Arjun Ray Mukherjee has placed before us the chronological events, which the Appellant faced. He made a very fine distinction with regard to the first part of the finding of the Hon'ble Single Judge. 7. ACCORDING to Shri Majumdar, the question of locus standi could not come into the way of the Appellant's legal right to have the frustration of the fall out of the Interview held on 02.10.2008, since the said Panel had been cancelled and the same was not approved by the respondent No. 4, which remained unchallenged. Cancellation of the same could never be an issue before the Court. 8. IN the light of the aforesaid situation, Shri Majumdar stressed that the second Interview on 26.07.2009 on the basis of the subsequent advertisement on 24.02.2009 was a reckoning factor as the communication made by respondent No. 4, to respondent Nos. 5 and 6 (Page 67 of the Stay Application) was a privileged communication on one hand. On the other hand it was never intimated in the second advertisement of 24.02.2009 that the earlier Panel was cancelled and sought to be given the colour of a fresh advertisement, which was absolutely improper. Wrapping up, Shri Majumdar would submit that since 14.01.2009 West Bengal School Service Commission (Amendment) Act, 2008 having been brought into the Statute Book, no appointment could be made by the School Authorities (respondent Nos. 5 and 6), which would be simply dehors the Rule. 9. Wrapping up, Shri Majumdar would submit that since 14.01.2009 West Bengal School Service Commission (Amendment) Act, 2008 having been brought into the Statute Book, no appointment could be made by the School Authorities (respondent Nos. 5 and 6), which would be simply dehors the Rule. 9. SHRI Majumdar concluded that once West Bengal School Service Commission (Amendment) Act, 2008 saw the light of the day on 14.01.2009 the subsequent advertisement of 24.02.2009 and the Interview on 26.07.2009 was a nullity in the eye of Law. By the same understanding empanelment of added respondent No. 9 would be absolutely illegal. 10. FURTHERMORE, he submitted that the Appellant had a legal right to know the fall out of his Interview. The same having been denied in the fashion, which he has illustrated; definitely, he has a locus by way of his access to Justice to have known the fate of the same and the view taken by the Court of First Instance could not be sustained. PER CONTRA : Shri Kamalesh Bhattacharya with Shri Bibekananda Tripathy put up a very forceful rebuttal of the arguments advanced by Shri Majumdar for the Appellant. 11. SHRI Bhattacharya invited our attention to the permission granted by respondent No.4 for filling up the post in question (Page 65 of Stay Application) on 28.07.2008. He was of the view that after complying with all the Rules, such permission having been granted - it is only thereafter the respondent Nos. 5 and 6 published the advertisement, but as it fell short of Some required compliance and had drawn their of the respondent No.4, the second advertisement was published and fresh interview was held thereafter. 12. HE submitted that the Rule on the date of Notification, i.e. the position prior to enactment of West Bengal School Service Commission (Amendment) Act, 2008 will govern the field. Question was raised by Shri Bhattacharya that failure on the part of the Appellant to notice the advertisement published subsequently, is a pure question of fact, which the Writ Court cannot enter into. 13. HE was also of the view that permission granted by the respondent No.4 was never challenged and as the Appellant is a stranger, he should not be entertained. 14. REFERRING to the Division Bench decision of this Court in The Secretary of the Managing Committee, Kalinagar Girls High School Nadia v. Archana Ghosh (Saha) and Ors. 13. HE was also of the view that permission granted by the respondent No.4 was never challenged and as the Appellant is a stranger, he should not be entertained. 14. REFERRING to the Division Bench decision of this Court in The Secretary of the Managing Committee, Kalinagar Girls High School Nadia v. Archana Ghosh (Saha) and Ors. reported in (2010)3 Cal LT (HC) 192 : (2010)4 WBLR (Cal) 381, Shri Bhattachaiya submitted the Order under appeal needs no fresh look and it may simply be dismissed. It was submitted on behalf of respondent Nos. 1 to 4(State respondents) that the appointment sought to be made, was not in accordance with the Rules and does not correspond to the actual vacancy. 15. IT was further submitted on their behalf that the records were manufactured by the Managing Committee. 16. SHRI Ashish Sanyal for respondent No. 9 argued at length to show that this is not a Public Interest Litigation. SHRI Sanyal was of the view that once it has been shown that the Appellant has no locus, how could he file the Writ as he is not a person aggrieved. Referring to the various documents and the publications, which Shri Bhattacharya for the respondent Nos. 5 and 6 had also placed before us, Shri Sanyal was of the view that respondent No. 9 was simply empanelled and as the old Rules would apply and the recruitment having been done after following the necessary formalities including the Expenditure Act, there is no reason as to why the Court would interfere. 17. WE called upon Shri Majumdar to have his say in reply to the aforesaid. He submitted that Panel was not cancelled As such, the fresh selection process initiated was ipso facto bad in Law. 18. HE also doubted the submission of Shri Sanyal with regard to the Power of the Managing Committee to be in seizing once the West Bengal School Service Commission (Amendment) Act, 2008 has come into operation. Shri Majumdar suspected something wrong. 19. WITHOUT being sucked in the whirlpool of the contradictions and contractions, we feel the situation can be narrowed down in our perspective on the basis of the factual matrix and our interface with the, legal position that we have felt. 20. Shri Majumdar suspected something wrong. 19. WITHOUT being sucked in the whirlpool of the contradictions and contractions, we feel the situation can be narrowed down in our perspective on the basis of the factual matrix and our interface with the, legal position that we have felt. 20. IT has been borne out from the Record that after the respondent No.4 had given permission to respondent Nos.5 and 6 on 28.07.2008, an advertisement was published on 16.9.2008 notifying the post of Clerk with knowledge in Type Writing (English). The Appellant appeared for the interview on 02.10.2008. Let us pause here. 21. IN the wake of the bundle of facts, we find it has not been disputed that in terms of permission granted by respondent No. 4, Notification was published by respondent Nos. 5 and 6 and Interview was held on 02.10.2008 where the Appellant had participated. Once we reconcile with this situation, it becomes at once irreconcilable to a man of any prudent sense that he will not be apprised of results of the same. 22. THE Appellant had responded to a public Notification and in terms thereof, had taken part in an Interview held under the auspices of respondent Nos. 5 and 6 with the signification of respondent No. 4. But he remains in the dark. At once he has acquired legal right to know his fate. It is not such a situation, as have been sought to be emphasised by Shri Bhattacharya for respondent Nos. 5 and 6 and Shri Sanyal for the respondent No. 9 that the appellant is a rank stranger and the shutters are required to be rolled down on his face thereby rendering the forecourts of Justice as no entry. 23. ONCE the Appellant has established his legal right over an issue, which we have seen in the trajectory of the various events - the breach thereof immediately provides him a key for access to the Hall of Justice. That having been denied before the Court of First Instance, definitely, he has made out a proper case for our interference in appeal. 24. ON the first question, which found favour with the Hon'ble Trial Court with regard to the lack of locus thereby ejecting the Appellant from the system - cannot have any impact in our decision making process. That having been denied before the Court of First Instance, definitely, he has made out a proper case for our interference in appeal. 24. ON the first question, which found favour with the Hon'ble Trial Court with regard to the lack of locus thereby ejecting the Appellant from the system - cannot have any impact in our decision making process. Question would at once arise, after the Appellant has established his legal right and we sitting on the task for redressal, whether that part of Shri Bhattacharya's objection, which has been covered by the Hon'ble Single Judge that firstly, reading of the second newspaper advertisement on 24.02.2009 by the Appellant is a question of fact and secondly that the Appellant not having been empanelled, did not create any right in his favour need not detain us any longer. 25. AS an appeals a continuation of the Trial, we have a wider scope to deal with this issue. Since we have concluded that the initial Interview in the Panel published by the Managing Committee at the first instance (16.09.2008) wherein the Appellant had participated but subsequently under some fortuitous circumstances the same was cancelled by the respondent No. 5 on 08.02.2009-it was incumbent upon the Authorities concerned to definitely have communicated the outcome of the said Interview. Failure on this score renders the infringement of a very valuable right of information available to the appellant. 26. THAT apart the second advertisement on 24.02.2009 published by the Managing Committee was given a very innocent cosmetic face of a virgin nature. Whereas it was the child of the earlier advertisement (16.09.2008) in terms of which the Interview was held but was scuttled by the respondent No. 4 in the circumstances noticed by the respondent No. 5 on 09.02.2009 (Page 67 of the Stay Application). Submission of Shri Majumdar inspires confidence in our mind in this regard. He is quite right that the communication (Page 67 of the Stay Application) between the Managing Committee (respondent Nos. 5 and 6) and the respondent No. 4 on 09.02.2009 was an absolutely privileged communication. Not only the Appellant, who having acquired a legal right to know about the fate of his participation in the Interview having been infringed on account of the said behind the door event but there has been a breach of Public Policy on account of such approach by the respondents. Not only the Appellant, who having acquired a legal right to know about the fate of his participation in the Interview having been infringed on account of the said behind the door event but there has been a breach of Public Policy on account of such approach by the respondents. It can never be said that the Interview held on 26.07.2009 was a fresh Interview in terms of the advertisement published on 24.02.2009, but in effect new wine has been put in an old bottle and shown to be given a new face with such cosmetic approach. Once we peel off the initial layers, we would have before us simply, the first advertisement published on 16.09.2008 (Page- 66 of the Stay Application) and the Interview held on 02.10.2008 and nothing more. All other circumstances simply pale into insignificance. 27. THE respondent No.9 entering the scene in such dubious circumstances cannot be said to be the product of a legally held Interview and obviously, the recruitment process not having been followed in the process as known to Law, cannot stand. 28. SINCE the situation is not at all mellifluous, the appeal is liable to be succeeded simply on this ground. However, as we have been addressed at the Bar with regard to the application of West Bengal School Service Commission (Amendment) Act, 2008 on the situation that has fallen before us for our consideration, we would deal with it in our own way. 29. SHRI Majumdar would submit that since 14.01.2009 West Bengal School Service Commission (Amendment) Act, 2008 having come into force, the second advertisement published on 24.02.2009 (Page 71 of the Stay Application) and the Interview held on 26.07.2009 was absolutely without jurisdiction as the Power of recruitment of even the non teaching staffs now vests with the Commission. 30. COROLLARILY, this view was that in view of the said situation, Managing Committee was divested of any such Power - steps taken as shown were complete nullity in the eye of Law. On the contrary Shri Bhattacharya referring to the Division Bench decision of The Secretary of the Managing Committee, Kalinagar Girls High School Nadia v. Archana Ghosh (Saha) and Ors .(supra) submitted that the Rules prevalent at the time, once the process started, would be applicable. 31. On the contrary Shri Bhattacharya referring to the Division Bench decision of The Secretary of the Managing Committee, Kalinagar Girls High School Nadia v. Archana Ghosh (Saha) and Ors .(supra) submitted that the Rules prevalent at the time, once the process started, would be applicable. 31. WE have carefully perused the said Division Bench decision of The Secretary of the Managing Committee, Kalinagar Girls' High School Nadia v. Archana Ghosh (Saha) and Ors. (supra) and the various citations relied upon by the Hon'ble Single Judge. 32. QUESTION that arises before us in the second part of our finding, is restricted to as to whether the stapes taken by the Managing Committee after coming into effect of the West Bengal School Service Commission (Amendment) Act, 2008, will be maintained. Elaborate deliberations have been made on the said issue. Volumes have been spoken. The Division Bench in The Secretary of the Managing Committee, Kalinagar Girls High School Nadia v. Archana Ghosh (Saha) and Ors. (supra) has felt that the decision of the First Bench (Coram: Ashok Kumar Mathur, C.J. and Girish Chandra Gupta, JJ.) in Snehansu Jas v. State of West Bengal and Ors., (2001) 3 Cal HN 313: 2002 WBLR (Cal) 36 and Abdul Mannan Laskar v. State of West Bengal and Ors., 2000 Vol.(1) Cal HN 435 rendered by Sinha, J.(As His Lordship then was) and Ansari, JJ. "do not operate as binding precedent on this Court" in view of the decisions of the Supreme Court in Arfun Singh Rathore v. B.N, Chaturvedi and Ors. reported in (2007)11 SCC 605 and V. V. Rangiah and Ors v. Sreenivasa Rao and Ors., (1983)3 SCC 284 as also State of Rajasthan v. R. Dayal and Ors. reported in (1997)10 SCC 419 . 33. IN a coordinate Bench, we would be required to see as to whether the decision of the said Division Bench of The Secretary of the Managing Committee, Kalinagar Girls' High School Nadia v. Archana Ghosh (Saha) and Ors. (supra) can have any persuasive value on us, leave alone of any binding precedent. 34. THE Division Bench of this Court in THE Secretary of the Managing Committee, Kalinagar Girls High School Nadia v. Archana Ghosh (Saha) and Ors. (supra) has riled under the impression that the earlier Division Bench decision of this Court in Abdul Mannan Laskar v. State of West Bengal and Ors. 34. THE Division Bench of this Court in THE Secretary of the Managing Committee, Kalinagar Girls High School Nadia v. Archana Ghosh (Saha) and Ors. (supra) has riled under the impression that the earlier Division Bench decision of this Court in Abdul Mannan Laskar v. State of West Bengal and Ors. (supra) cannot have any binding precedent in view of the reading of the Apex Court decisions by the Speaking Voice of the said Division Bench (Chattopadhyay, J.). In our forensic appreciation of the entire issue that surfaces before us, we are of the clear and unambiguous opinion that the said Division Bench in The Secretary of the Managing Committee, Kalinagar Girs High School Nadia v. Archana Ghosh (Saha) and Ors. (supra) has lost the essence of the very fine issue in question and on a broad spectrum basis came to its finding the effect "...........selection process impugned in the present appeal should be allowed to be completed under the 2005 Rules which were in force when the vacancy in question arose in the concerned school.........." 35. A clinical reading of the Rules and the materials, would at once show the coming into effect of the 2009 Rules, the earlier Rules of 2005 stood completely superseded. 36. THIS situation has been beautifully dealt with by Dipankar Datta J. in W.P. No. 16383(W) of 2010, Asoke Sawoo v. State of West Bengal and Ors. We can do no better than simply quote from His Lordship in Paragraph 38 of the Judgment. "38. With the introduction of the 2009 Rules, the 2005 Rules stood superseded. The effect of such supersession, in my view, would be decisive. I may observe at this stage that in none of the Supreme Court decisions referred to above did the effect of supersession of the previous rule directly fall for consideration. In a way, all the decisions dealing with amendment of rules and not supersession of rules are distinguishable." His Lordship had taken note of the Division Bench decision in The Secretary of the Managing Committee, Kalinagar Girls' High School Nadia v. Archana Ghosh (Saha) and Ors. (supra) and the situation in which the decision of the First Bench in Snehansu Jas v. State of West Bengal and Ors. (supra) and the Division Bench decision of this Court in Abdul Mannan Laskar v. State of West Bengal and Ors. (supra) were put in the backburner. 37. (supra) and the situation in which the decision of the First Bench in Snehansu Jas v. State of West Bengal and Ors. (supra) and the Division Bench decision of this Court in Abdul Mannan Laskar v. State of West Bengal and Ors. (supra) were put in the backburner. 37. WE will be of the considered view that once this position has been made clear, the situation fructifies to the following effect, as again very rightly held by His Lordship in the unreported decision of Asoke Sawoo v. State of West Bengal and Ors. (supra): "44. The Division Bench in Narayan Baidya (supra), it appears, declined to grant relief in almost similar circumstances. In my humble understanding of the statutory provisions applicable here, it is only when selection of suitable candidates has been made finally by the duly constituted selection committee in terms of the 2005 Rules by preparing a panel of three candidates upon consideration of the candidature of all the aspirants for the post sought to be filled up that the 2005 Rules would survive for the limited purpose of consideration of the panel by the District Inspector for approval in terms of Rule 24(2) of the 2009 Rules, sub-rule(2) of Rule 24 of the 2009 Rules, in my view, would save selections already made under the 2005 Rules, which are awaiting approval of the District Inspector. If the aspirants candidature has not been considered at all or an intermediate stage prior to final selection is reached, the process has to be scrapped and the vacancy filled up in accordance with the Amendment Act of 2008 read with 2009 Rules to give effect to the will of the people." 38. AS such the decision rendered by the Division Bench of Chattopadhyay, and Ghani, JJ. in The Secretary of the Managing Committee, Kalinagar Girls' High School Nadia v. Archana Ghosh (Saha) and Ors. (supra) cannot be an obiter on the question in issue as it was passed in oblivion to the cherry on the cream and obviously would have no impact on us leave alone any binding effect. From a wholesome appreciation of the entire materials, we feel that the appeal is liable to succeed. The decision rendered by the Hon'ble Single Judge in W.P. No.14999(W) of 2009 dated 28.04.2010 is set aside. 39. APPEAL allowed. 40. PARTIES to bear their own costs. Gupta, J.-I agree.