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2010 DIGILAW 91 (CAL)

Sudhamoy Jana v. State

2010-02-02

I.P.MUKERJI

body2010
JUDGMENT 1. THIS writ petition is by an interviewee in the selection of assistant teacher for physical education of Nayabasan Janakalyan Vidyapith in the District of West Midnapore, West Bengal. The interview was held on July 30, 1997. A panel was prepared on July 30, 1997 itself where the petitioner was first. The interview sheet is annexed as Annexure-D to the writ petition at page 32. 2. THIS panel seems to have been approved by the District Inspector of Schools (S.E.), Midnapore on May 24,1999. But the writ petitioner was no where in this list of selected candidates. The second and third candidates in the panel, namely, Santanu Bhowmik and Atanu Pattanayak were selected with the position first and second. But the writ petitioner being first in the panel was not selected and in his place one Ajoy Kumar Senapati who was in the panel but with no rank was selected. This is a very old writ petition. It appeared before Lala, J. and Kundu J. when directions for affidavits were made in the presence of the State. No affidavit has been filed. None appears for any of the respondents. 3. AFTER nearly ten years the matter appeared before me on October 23, 2009 when direction was made for production of records. Direction was also made upon the writ petitioner to file a supplementary affidavit to explain his income position so that the Court could consider compensation to be given to him in the event he succeeded in the writ application. Neither the records are produced nor any affidavit has been filed. 4. SOME explanation was called for to explain the complete ouster of the petitioner from the selected list after having appeared first in the interview list. As I have said earlier the second and third candidates from the panel prepared after interview have been selected as is noticed from the selection list prepared by the District Inspector of Schools. In the absence of any affidavit-in-opposition by the State it is to be presumed that they have no explanation to afford. At least somewhere in the records some explanation or some reason ought to have been there for excluding the writ petitioner in the selected list. On the face of available records the action of the District Inspector of Schools in not selecting the writ petitioner is arbitrary and discriminatory. 5. At least somewhere in the records some explanation or some reason ought to have been there for excluding the writ petitioner in the selected list. On the face of available records the action of the District Inspector of Schools in not selecting the writ petitioner is arbitrary and discriminatory. 5. THUS, I hold that the writ petitioner had a very real chance of being selected and appointed as an Assistant Teacher for Physical Education. By the above action he could not work as such. A real chance of employment carries with it a real chance of earning livelihood. By succeeding up to the interview stage the writ petitioner can be said to have acquired a right to earn that livelihood and by not selecting him the District Inspector of Schools has deprived him to this right. It is now well established that the right to livelihood in circumstances as this is a fundamental right under Article 21 of the Constitution of India. At this stage, after efflux of a period of more than 10 years, this Court is unable to direct the District Inspector of Schools to appoint the writ petitioner because other third party rights must have been created in the meantime which I am not minded to disturb. Therefore, the writ petitioner should get compensation for this wrong. 6. THE writ petitioner has not filed any affidavit as directed by my order of October 23, 2009. THE before, this Court is not in a position to know whether after the selection made by the District Inspector of Schools on May 24,1999 the writ petitioner has obtained any alternative source of employment and what is his current income for the purpose awarding compensation to him. Since real compensation cannot be granted by the Court in the absence of this affidavit, the Court is minded to award to this writ petitioner who has been wrongly deprived in my opinion some minimum compensation to redress this wrong. 7. IN the circumstances, I direct the Government of West Bengal, Education Department to pay the writ petitioner a sum of Rs.50,000 A as compensation for the wrong done by the District Inspector of Schools as stated above. Within twelve weeks of communication of the order. This is the minimum compensation that the writ petitioner would have got under any circumstances, in my opinion, irrespective of any employment or income. 8. Within twelve weeks of communication of the order. This is the minimum compensation that the writ petitioner would have got under any circumstances, in my opinion, irrespective of any employment or income. 8. THE writ petition is allowed to the above extent only. The Government of West Bengal, Education Department will also pay costs to the writ petitioner assessed at Rs.5,000/-. Urgent certified photostat copies of this order, if applied for, shall be given to the parties subject to compliance with all requisite formalities.