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2010 DIGILAW 146 (CAL)

Hare Krishna Chakraborty v. STATE OF WEST BENGAL

2010-02-17

J.K.BISWAS

body2010
JUDGMENT 1. THE petitioner in this Article 226 petition dated December 12, 2005 is seeking a mandamus commanding the respondents to "absorb" him. "Permanently to the post of Clerk (reserved for general category) lying vacant in Dhakuria High School (Chandpara), P.O. Dhakuria Kalibari, P.S. Gaighata, District-24 Parganas (North), forthwith" and also to allow him "to participate in the interview and/or selection process for recruitment to the post of Clerk (reserved for general category) in Dhakuria High School (Chandpara), P.O. Dhakuria Kalibari, P.S. Gaighata, District-24 Parganas (North), forthwith". 2. HIS case is this. The Managing Committee of the institute adopted a resolution dated March 9,1999 to appoint him as a Clerk in the institute on a temporary basis. Accordingly, an appointment letter dated March 15, 1999 was issued, and he joined the institute on a low monthly remuneration of Rs. 150/-. He was verbally assured of a permanent appointment to the post. On January 17,2004 the Managing Committee decided to fill a vacancy for Clerk in the institute. On February 27, 2004 the head of the institute requested the Additional District Inspector of Schools (SE), 24 Parganas (North) to give permission to initiate recruitment process. He requested the head of the institute to absorb him on a permanent basis. Instead of making him permanent, the institute sent requisition requesting the employment exchange to sponsor names of eligible candidates. HIS name was not sponsored. Considering the case of the petitioner, this Court made an order December 15, 2005, which is set out below:- "Admittedly, the petitioner is overaged. The petitioner claims that the petitioner has been working as a Clerk in Dhakuria High School (Chandpara) in the District of North 24 Parganas on temporary basis in the concerned school since 1999. It is alleged by the petitioner that the school authority is going to fill up the said post on permanent basis. The petitioner wants to participate in the selection process for the said post, but the school authority has refused to allow the petitioner to participate in the selection process, as the petitioner is overaged. the petitioner claims relaxation of the age bar. The learned Advocate, appearing for the petitioner relies upon a decision of the Hon'ble Supreme Court in the case of Dr. Surinder Singh Jamwaland Anr. the petitioner claims relaxation of the age bar. The learned Advocate, appearing for the petitioner relies upon a decision of the Hon'ble Supreme Court in the case of Dr. Surinder Singh Jamwaland Anr. v. State of Jammu and Kashmir and Ors., reported in AIR 1996 SC 2775 in support of his claim for relaxation of the age bar. Under such circumstances, this Court permits the petitioner to participate in the selection process provided he petitioner can satisfy other eligibility criteria for the said post. For the time being, in view of the aforesaid decision of the Hon'ble Supreme Court, this Court directs the concerned authority to allow the petitioner to participate in the selection process, although he has crossed the maximum age limit as prescribed under the extant Rules, provided, however, the petitioner fulfils the other eligibility criteria for the said post. The panel for the said post may also be prepared, but no appointment will be given without the leave of this Court till the end of February, 2006. It is made clear that the petitioner will not be entitled to claim any equity simply because of his/her participation in the selection process. Leave is given to the respondents to file affidavit- in- opposition to this writ petition two weeks after the reopening of this Court after x-mas vacation, reply, thereto, if any, be filed within a week thereafter. Let this matter appear in the list under the heading 'For Orders' in the monthly combined list of February, 2006. Since, inspite of service upon the school authority, the school authority remains unrepresented today, the petitioner is directed to intimate this order to the school authority and file further affidavit of service on the next date of hearing. Let a xerox plain copy of this order duly countersigned by the Assistant Registrar (Court) be given to the learned Advocates of the respective parties on usual undertaking." 3. COUNSEL for the petitioner argues as follows. By the order dated December 15,2005 this Court granted the petitioner benefit of age relaxation. The order was not challenged by anyone. It attained finality and hence today nobody can be permitted to question the petitioner's eligibility on the ground that he was overage for the post. The petitioner topped the select candidate list that was approved by the District Inspector of Schools. The order was not challenged by anyone. It attained finality and hence today nobody can be permitted to question the petitioner's eligibility on the ground that he was overage for the post. The petitioner topped the select candidate list that was approved by the District Inspector of Schools. Since after February, 2006 no order was obtained by anyone, the institute appointed the petitioner and the District Inspector of Schools approved the appointment. Today the appointment cannot be cancelled. 4. I find no merit in the arguments. The order dated December 15, 2005 was an interim order granting interim relief in aid of final relief. The questions involved in the petition are, having worked on a temporary basis as Clerk in the institute, whether the petitioner acquired a right to absorption into the institute's employment as a Clerk on a permanent basis, or alternatively to participation in the selection process as a candidate. The real questions in controversy between the parties were not, and rather could not be, decided at the admission stage of the case when the order dated December 15, 2005 was made admitting the petition and granting interim relief. The petitioner has claimed a right to absorption on the ground that having been appointed on a temporary basis he continued to work as such, and thus he acquired the right. The claim has no legal basis. The Managing Committee, of its own accord, decided to appoint him on a temporary basis. Appointment to any post in the institute, getting grant-in-aid from the State Government, could be made only according to the recruitment rules; they did not provide that one appointed by the Managing Committee on a temporary basis would acquire a right to absorption. All permanent appointments were to be made with the prior permission of the District Inspector of Schools and after initiating requisite recruitment process. A backdoor entry in the institute's employment, such as the one in question, could not be legalized by absorption. Hence the petitioner is not entitled to a mandamus commanding the respondents to absorb him. 5. THE next question is whether the petitioner had a right to participation in the selection process as a candidate. THE recruitment rules provided that only those candidates whose names were sponsored by the employment exchanges should be interviewed by the Selection Committee. THE petitioner's name was not sponsored by the employment exchange. 5. THE next question is whether the petitioner had a right to participation in the selection process as a candidate. THE recruitment rules provided that only those candidates whose names were sponsored by the employment exchanges should be interviewed by the Selection Committee. THE petitioner's name was not sponsored by the employment exchange. He did not come with a case that the employment exchange wrongfully deprived him of the benefit of sponsorship, or that the institute was following an illegal or unfair procedure. Hence I am unable to see how he could claim a right to participation in the process as a candidate. By working on a temporary basis he could not, and actually did not, acquire such a right. 6. NO provision of the rules empowered the Selection Committee or the institute, the employer, or the District Inspector of Schools, the authority competent to approve the select candidate list and the appointment, to give age relaxation benefit to an overage candidate. I am unable to see how it can be said that by the order dated December 15, 2005 this Court granted the petitioner age relaxation-benefit. This Court simply said, while passing an interim order, that in view of the Supreme Court decision relied on it would be appropriate to permit him to participate in the process as a candidate. It is wrong to say that by the order this Court granted him any final relief; or that since no one challenged the order, today his eligibility to participate in the process cannot be questioned or examined. It is rather evident from the order that the question was not determined, for at the admission stage there was no scope for its final adjudication and determination. In the absence of any provision empowering the Selection Committee or the institute or the District Inspector of Schools to grant age relaxation benefit to an overage candidate, I am unable to see how the petitioner could claim a right to the benefit of age relaxation. It is to be noted that in Dr. Surinder Singh Jarnwaland Anr. v. State of JandKand Ors., (1996)9 SCC 619 , their Lordships of the Supreme Court directed the State Government to consider the question of grant of age relaxation benefit according to the relevant provision, Rule 9(3), of the Rules. It is to be noted that in Dr. Surinder Singh Jarnwaland Anr. v. State of JandKand Ors., (1996)9 SCC 619 , their Lordships of the Supreme Court directed the State Government to consider the question of grant of age relaxation benefit according to the relevant provision, Rule 9(3), of the Rules. Hence, even assuming that the petitioner had a right to participation in the process, though his name was not sponsored by any employment exchange, being overage, he was simply not eligible to participate. Therefore, he is not entitled to a mandamus commanding the respondents to permit him to participate in the selection process. He is not entitled to any relief at all. 7. FOR these reasons, I dismiss the petition and order as follows. The petitioner's appointment, presumably given in view of the order dated December 15, 2005, is hereby cancelled. Deleting the petitioner's name from the select candidate list, the District Inspector of Schools (SE), North 24 Parganas shall modify the select candidate list, and approve such modified list within a fortnight from the date of communication of this order. The institute shall offer appointment to the candidate according to the approved modified list, within a fortnight from the date of communication of the decision of the District Inspector of Schools. No costs. 8. COUNSEL prays for stay. There is no reason to stay the operation of the order. The petitioner, not eligible for the post, was appointed giving a peculiar interpretation to the order dated December 15, 2005 that after February, 2006 the institute was free to appoint him without obtaining any leave of the Court to make appointment. He has wrongfully enjoyed the benefits of the post depriving a lawful beneficiary. Hence stay is refused. Certified xerox according to law.