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2010 DIGILAW 1387 (CAL)

Sajal Das v. STATE OF WEST BENGAL

2010-12-01

BISWANATH SOMADDER

body2010
JUDGMENT 1. THE writ petitioner participated in a recruitment process initiated by the District Primary School Council, South 24-Parganas, for filling up of posts of Assistant Primary Teachers on the strength of an order passed by this Court on 9th May, 2008, in an earlier writ petition, being W.P. No.8836 (W) of 2008, which was filed by the writ petitioner. By that order, a learned Single Bench of this Court disposed of the earlier writ petition permitting the petitioner and others to appear for an interview to be held on 11th May, 2008, or any other subsequent date or dates for the purpose of selection for appointment to the post in question, as prayed for in that writ petition, along with other sponsored candidates. The Court further observed that the case of the writ petitioner would be considered at par with other sponsored candidates for such selection. 2. CONSEQUENTLY, the District Primary School Council, South 24- Parganas, acted on the basis of the directions contained in the said order dated 9th May, 2008, and allowed the writ petitioner to participate in the recruitment process, which was held sometime in December, 2009. Upon competing in the recruitment process successfully, the writ petitioner was selected for appointment as an Assistant Teacher (Primary), in the District of South 24-Parganas, and an appointment letter signed by the Chairman of the Council, dated 16th February, 2010, was issued in his favour. In the said appointment letter, the petitioner was directed to join Barberia Free Primary School. However, when the petitioner, armed with the appointment letter given to him by the Chairman. District Primary School Council, South 24-Parganas, went to the said school to join service, he was restrained by the school authorities to do so. Later on, upon enquiry, he found out, that an administrative direction was given to the school authorities to restrain him from joining service in the said school. The writ petitioner, thereafter, on several occasions requested the authorities concerned, more specifically, the school authority and the Chairman of the District Primary School Council, South 24-Parganas, to allow him to join his post, but they did not take any action in that regard. The writ petitioner, thereafter, approached this Court by filing the instant writ petition and this matter now appears 'For Final Disposal', upon exchange of affidavits. The writ petitioner, thereafter, approached this Court by filing the instant writ petition and this matter now appears 'For Final Disposal', upon exchange of affidavits. In the Affidavit-in-Opposition filed by the Chairman, District Primary School Council, South 24-Parganas, being the respondent No.4, it has been specifically stated that the writ petitioner was not a candidate because his name was not sponsored by the Employment Exchange. The respondent No.4, however, has acknowledged and admitted the earlier order of this Court dated 11th May, 2008, passed in W.P. No.8836 (W) of 2008. At the same time, the respondent No.4, has referred to Rule 8(1) of the West Bengal Primary School Teachers Recruitment Rules, 2001 and has stated that the constitutional validity of the said Rule had been challenged by the non-sponsored candidates and a Division Bench of this Court had upheld the constitutional validity of the said provision of law. In this context, the respondent No.4, has referred to and relied upon the judgment and order passed by the Division Bench of this Court in the case of Tanmoy Ramaya Lahiri v. State of West Bengal and Ors., reported in 2008 (3) CLT 205 : 2008 (3) WBLR (Cal) 108 and another judgment and order rendered by a learned Single Bench of this Court on 17th December, 2009, wherein the same question with regard to the constitutional validity of Rule 8(1) was raised by the non-sponsored candidates, which the Court was pleased not to accept. 3. ACCORDING to the learned Advocate appearing on behalf of the District Primary School Council, South 24-Parganas, the writ petitioner was not entitled to participate in the recruitment process and, therefore, the question of giving him appointment as a Primary School Teacher does not even arise. He further submits that the judgment and order rendered by the Division Bench of this Court in Tanmoy Ramaya Lahiri (supra) is squarely applicable and the writ petitioner, being a non- sponsored candidate, could not have been allowed to participate in the recruitment selection process. He also relies on the subsequent judgment rendered by another learned Single Bench (referred above), which reiterates the law laid down by the Division Bench of this Court in Tanmoy Ramaya Lahiri. He submits that in the facts and circumstances of the present case, the writ petition is liable to be dismissed. 4. He also relies on the subsequent judgment rendered by another learned Single Bench (referred above), which reiterates the law laid down by the Division Bench of this Court in Tanmoy Ramaya Lahiri. He submits that in the facts and circumstances of the present case, the writ petition is liable to be dismissed. 4. LEARNED Advocate appearing on behalf of the State of West Bengal submits that the writ petitioner was allowed to participate in the recruitment process by virtue of an earlier order of this Court dated 9th May, 2008. However, in the backdrop of the two judgments relied on by the learned Advocate representing the District Primary School Council, South 24-Parganas, this Court may review the said order dated 9th May, 2008, since the same is contrary to Rule 8(1) of the West Bengal Primary School Teachers Recruitment Rules, 2001. In this regard, learned Advocate for the State relies on a judgment of the Supreme Court rendered in the case of Shivdeo Singh and Ors. v. State of Punjab and Ors., reported in AIR 1963 SC 1909 . Learned Advocate appearing on behalf of the writ petitioner, in reply, relies on a judgment of the Supreme Court in the case of Commissioner, Karnataka Housing Board v. C. Muddaiah, reported in 2007 (7) SCC 689 . He submits that once express and unequivocal directions are issued by a Court, such directions become final and binding and it is not open to the respondent authorities to contend, at a belated stage, that the writ petitioner was not entitled to participate in the recruitment process, in view of Rule 8(1) of. the West Bengal Primary Teachers Recruitment Rules, 2001. He further submits that the writ petitioner participated in the recruitment process by virtue of the order of this Court dated 9th May, 2008. In that order, this Court specifically directed that the case of the writ petitioner was to be considered on par with other sponsored candidates for such selection. That writ petition, being W.P. No.8836 (W) of 2008, stood disposed of by the order dated 9th May, 2008. No appeal was preferred there from by any of the respondents. No review was sought for either. The order dated 9th May, 2008, thus, reached finality. Moreover, the respondents have acted on the basis of the direction contained therein. That writ petition, being W.P. No.8836 (W) of 2008, stood disposed of by the order dated 9th May, 2008. No appeal was preferred there from by any of the respondents. No review was sought for either. The order dated 9th May, 2008, thus, reached finality. Moreover, the respondents have acted on the basis of the direction contained therein. Therefore, this Court cannot pass any order, at this stage, to render nugatory the earlier order of this Court dated 9th May, 2008. 5. HAVING regard to the submissions made on behalf of the parties and upon perusing the pleadings, it appears without an iota of doubt that the writ petitioner was allowed to participate in the recruitment process by the District Primary School Council, South 24-Parganas, on the basis of an order passed by this Court on 9th May, 2008, in a writ petition, being W.P. No.8836 (W) of 2008. By that order, the said writ petition was finally disposed of. The order was passed in May, 2008 and the recruitment process was held in December, 2009. Between May, 2008, and December, 2009, nay, till date, neither the District Primary School Council, South 24-Parganas, nor the State of West Bengal moved this Court, either in appeal or in its review jurisdiction. The order dated 9th May, 2008, has, thus, reached its finality and is binding upon the parties to that proceeding. 6. THE reference to the Division Bench judgment of this Court in Tanmoy Ramaya Lahiri's case as also the judgment and order rendered by a learned Single Bench of this Court cannot be of any assistance to the respondent No.4. THE reason is, once a direction is issued by a competent Court, it has to be obeyed and implemented without any reservation. If an order passed by a Court of law is not complied with or is ignored, there will be an end of the rule of law. If a party against whom such order is made has a grievance, the only remedy available to him is to challenge the order by taking appropriate proceeding known to law. But it cannot be made ineffective by not complying with the directions on a specious plea that no such direction could have been issued by the Court. Upholding of such argument would result in chaos and confusion and would seriously affect and impair administration of justice. But it cannot be made ineffective by not complying with the directions on a specious plea that no such direction could have been issued by the Court. Upholding of such argument would result in chaos and confusion and would seriously affect and impair administration of justice. These are the observations of the Supreme Court in the case of Commissioner, Karnataka Housing Board (supra), which has been relied on by the learned Advocate for the petitioner. In that judgment, the Supreme Court has gone ahead to observe as follows:- "THE matter can be looked at from another angle also. It is true that while granting a relief in favour of a party, the Court must consider the relevant provisions of law and issue appropriate directions keeping in view such provisions. There may, however, be cases where on the facts and in the circumstances, the Court may issue necessary directions in the larger interest of justice keeping in view the principles of justice, equity and good conscience. Take a case, where ex facie injustice has been meted out to an employee. In spite of the fact that he is entitled to certain benefits, they had not been given to him. His representations have been illegally and unjustifiably turned down. He finally approaches a Court of law. The Court is convinced that gross injustice has been done to him and he was wrongfully, unfairly and with oblique motive deprived of those benefits. The Court, in the circumstances, directs the authority to extend all benefits which he would have obtained had he not been illegally deprived of them. It is open to the authorities in such case to urge that as he has not worked (but held to be illegally deprived), he would not be granted the benefits? Upholding of such plea would amount to allowing a party to take undue advantage of his own wrong. It would perpetrate injustice rather than doing justice to the person wronged." The observations of the Supreme Court makes it clear that when an order is passed by a competent Court of law so - long that order remains - it is not open for a party to desist giving full effect to the same by citing a reason that such an order could not have been passed by the Court in the first place. 7. 7. THE submissions of the learned Advocate for the State that this Court has power to review the order dated 9th May, 2008, passed by another coordinate Bench, is wholly unsubstantiated and cannot be accepted. The judgment relied on by the learned Advocate for the State, rendered by the Supreme Court in Shivdeo Singh (supra), was, inter alia, on the question as to whether Article 226 of the Constitution confers any power on the High Court to review its own order. The Supreme Court, observed to the effect that there was nothing in Article 226 of the Constitution to preclude a High Court from exercising its power of review. 8. THIS proposition of law is well settled. However, in the instant case, it is on the writ petitioner's application that the State - by way of an oral submission - is seeking review of an earlier order of this Court passed in a different writ petition, which stood disposed of by a coordinate Bench of this Court on 9th May, 2008. This is wholly impermissible. No review application has been filed till date, either by the State of West Bengal or the District Primary School Council, South 24-Parganas, in respect of the order dated 9th May, 2008. As observed hereinbefore, both, The State of West Bengal as well as the District Primary School Council, South 24-Parganas, have allowed the said order dated 9th May, 2008, to reach its finality, not only by not preferring any appeal there from or by filing a review, but also by acting upon the directions contained therein; which, in effect, amounts to waiver and acquiescence on their part to contend otherwise, at this belated stage. For reasons stated above, the writ petitioner is entitled to a writ in the nature of mandamus directing the respondent No.4 to give effect to the letter of appointment issued in favour of the writ petitioner on 16th February, 2010, by allowing the writ petitioner to join service in Barberia Free Primary School with immediate effect along with all consequential benefits. 9. THE writ petition, thus, stands disposed of accordingly. Urgent photo-stat certified copy of this order, if applied for, be given to the parties.