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2011 DIGILAW 1240 (CAL)

P. Chandini v. UNION OF INDIA

2011-09-06

INDIRA BANERJEE, S.K.CHAKRAVARTY

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Judgment : INDIRA BANERJEE, J. In this writ petition, the petitioner has inter alia challenged an order dated 9th September, 2010 passed by the Central Administrative Tribunal, Calcutta Bench, on Circuit at Port Blair dismissing the application being O.A. No.207/AN/2008 filed by the writ petitioner seeking orders on the respondent authorities to consider the candidature of the writ petitioner for appointment as Primary School Teacher and/or Graduate Trained Teacher without further delay. It appears that on or about 2nd June, 1992 the respondent authorities requisitioned candidates from the Employment Exchange for filling up 45 temporary posts of Primary School Teachers in the General Category and 3 Primary School Teachers in the Scheduled Tribe Category. In response to the aforesaid requisition the Employment Exchange sponsored 117 candidates of whom 90 belonged to the General category and 27 to the Scheduled Tribes category. All the candidates sponsored by the Employment Exchange as well as some candidates who had not been called for interview for the post of Graduate Trained Teacher were called for interview. Out of 193 candidates called for the interview, 166 were from the General category and 27 from the Scheduled Tribes category. Only 157 candidates under the General category and 27 candidates under the Scheduled Tribes category actually appeared for the interview. The Departmental Selection Committee recommended appointment of all Scheduled Tribe candidates. In the General Category a panel was prepared of those who secured 45 marks in the aggregate. The Departmental Selection Committee further recommended that the merit list of the remaining candidates might be maintained separately for temporary appointment in case temporary/maternity leave to avoid inconvenience to students. The validity of the panel was for one year. During the same period candidates were also requisitioned for filling up 20 vacancies of Graduate Trained Teachers in the Humanities stream in schools of different mediums. The interview for appointment was conducted on 9th and 10th October, 1992. The writ petitioner was called for and appeared at the interview but was not selected. Her candidature was however assessed as “fit for PST” along with some others. It is not in dispute that the writ petitioner neither applied for nor appeared in the interview for appointment of Primary School Teachers. As observed above, the panels were valid for one year. Her candidature was however assessed as “fit for PST” along with some others. It is not in dispute that the writ petitioner neither applied for nor appeared in the interview for appointment of Primary School Teachers. As observed above, the panels were valid for one year. However, even after one year i.e. after expiry of the period of validity of the panel, the panel was kept alive for filling up leave vacancies and/or other temporary vacancies. Mr. Das appearing on behalf of the petitioner submitted that the name of the petitioner appeared at Sl. No.33 of the panel of selected candidates. However, another candidate in the same panel, whose name appeared at Sl. No.35 i.e. Ms. K. Geeta was appointed Primary School Teacher in 2005. Mr. Das further argued that Shri Nil Kanta Bepari, Shri Shankar Mandal, Ms. Maya Dey and Shri Goutam Roy whose names appeared in the same panel of Graduate Trained Teachers as ‘fit for Primary School Teachers’ like the petitioner got appointment to the post of primary school teacher. Mr. Das argued that pursuant to an order of the Division Bench of this Court dated 14th September, 2001 also, a number of candidates from the same panel, who have been declared fit to be appointed Primary School Teachers, were given appointment. Mr. Das argued that the petitioner was the only unfortunate candidate who had been left out of consideration. The Administration had operated the panel published on 14th September, 1993 right till the year 2008 as might be seen from the appointment orders annexed to the writ petition. It was therefore not open to the Administration to contend that the panel had expired after one year. Mr. Das argued that the learned Tribunal had erred in law by dismissing the application of the writ petitioner on the ground that the writ petitioner had not challenged the order of the High Court and that since the petitioner was fit for appointment as Primary School Teacher she could not be considered for the post of Graduate Trained Teacher. In support of his submission Mr. Das cited Maharaj Krishan Bhatt and another v. State of Jammu & Kashmir and others reported in (2008) 2 SCC (L&S)783 where the Court held that once a judgement had attained finality it has to be complied with and its benefit ought to be extended to other similarly situated persons. Mr. In support of his submission Mr. Das cited Maharaj Krishan Bhatt and another v. State of Jammu & Kashmir and others reported in (2008) 2 SCC (L&S)783 where the Court held that once a judgement had attained finality it has to be complied with and its benefit ought to be extended to other similarly situated persons. Mr. Das also cited K.C. Sharma and others v. Union of India and others reported in (1997) 6 SCC 721 where the Supreme Court held that the extension of the benefit of judgement should be given to all similarly circumstanced persons. The judgements have no application for reasons discussed hereinafter. Mr. Mandal appearing on behalf of the respondents pointed out that there had been various litigations pertaining to the panel. By a judgement and order dated 13th February, 2001 the Tribunal held that no person should be appointed who was not found suitable for the post for which he had applied in view of the settled principle of law. The select list had to be adhered to and all appointments had to be made on merit in terms of the correct selected list. All appointments made contrary to well settled principles ought to be set aside. In compliance with the order of the Tribunal dated 13th February, 2001 the Department was constrained to initiate action to terminate services of the petitioner and others appointed outside the merit list. However, the action of the Department was challenged by the appointees by filing WPCT No.71 of 2001 and CAN 46 of 2001. Two more writ petitions bearing the Nos. WPCT 55 and 56 of 2001 were also filed. By a common judgement and order dated 12th September, 2001, this Court disposed of all the pending writ applications inter alia holding as follows:- “… … … … Ms. Ganguly’s clients who have already given appointments temporarily and subsequently made permanent are not the parties to the proceedings. Therefore, their services can not be disturbed in any manner whatsoever which are our considered opinion. Therefore, no proceedings can be initiated against such selected candidates in any manner whatsoever. … … … … … … … … … … … … Therefore, we also hold that services of Mr. Das’s clients can not be disturbed in any manner whatsoever and no proceeding can also be initiated as against them. Hence the remaining dispute is in respect of Mr. … … … … … … … … … … … … Therefore, we also hold that services of Mr. Das’s clients can not be disturbed in any manner whatsoever and no proceeding can also be initiated as against them. Hence the remaining dispute is in respect of Mr. Mukherjee’s clients. Mr. Mukherjee now representing 29 candidates when there are altogether 77 vacancies available. Therefore, there is no such situation prevailing for creation of any supernumerary posts. They can easily be accommodated within such 77 vacancies. Mr. Bahadur has pointed out that no panel can last more than one year period. We can not accept such view of Mr. Bahadur because of the simple reason that the principle lis pendens is clearly applicable in the panel in question. It has merged with several orders either passed by the Tribunal or by the Court. Therefore, we hold and clarify that out of 77 vacancies, 29 vacancies will be filled up strictly in conformity with the panel as per the circulation dated 12th September, 1993 being Annexure P-1 to the writ petition as expeditiously as possible and the balance will be filled up by following the appropriate recruitment procedure pursuant to the direction of this Court. Therefore, we dispose of all the appeals and applications by holding that the order of the Tribunal dated 13th February, 2001 as regards point Nos. (c) and (d) will be read as modified by this Court clarifying the position. Other part of the order remain unaltered. However, there will be no order as to costs.” It is submitted that in compliance of the order of the High Court the termination orders were withdrawn and 49 applicants of O.A. No.89/AN/1994 (Smt. J.F and 33 others) and O.A. No.05/AN/1999 (A Sen and 13 others) were appointed as Primary School Teachers by creation of 49 supernumerary posts. Mr. Mandal submitted that the case of the writ petitioner could not be considered as the High Court had directed that a person who was not found suitable for the post for which he/she had applied should not be appointed. As observed above, the writ petitioner had applied for the post of Graduate Trained Teacher. The petitioner was not selected for the post of Graduate Trained Teacher but was considered fit for the post of Primary School Teacher. However, the writ petitioner had not applied for the post of Primary School Teachers. As observed above, the writ petitioner had applied for the post of Graduate Trained Teacher. The petitioner was not selected for the post of Graduate Trained Teacher but was considered fit for the post of Primary School Teacher. However, the writ petitioner had not applied for the post of Primary School Teachers. Mr. Mandal pointed out that as per orders of the learned Tribunal and the orders of this Court those candidates who had been left out were given appointment to the post of Primary School Teachers in terms of the merit lists of Primary School Teachers published in the Daily Telegram dated 14th September, 1993. The last appointment was according to Mr. Mandal made in 2002 and not in 2008. Mr. Mandal submitted that there had been gross delay in filing the writ petition. The impugned order of the learned Tribunal is long and reasoned. The Tribunal found that the writ petitioner who had been empanelled way back in 1992-93 had initiated litigation after long lapse of about 18 years. On consideration of the materials on record the learned Tribunal arrived at the factual finding that the petitioner did not belong to the same category as 49 persons who had been appointed on 12th July, 1993. The petitioner had admittedly been considered for the post of Graduate Trained Teacher. She was however not found fit for appointment as Graduate Trained Teacher. We agree with the learned Tribunal that inclusion in the panel of Graduate Trained Teachers of persons found fit for appointment as Primary School Teachers is in itself questionable. Some of the candidates in the panel of Graduate Trained Teachers, who were found fit for appointment as Primary School Teachers also featured in the merit list of Primary School Teachers and were accordingly given appointment pursuant to various orders of Court. An order dated 8th February, 2001 was passed by the Central Administrative Tribunal in OA 29/AN/94 heard with OA 5/AN/99, whereby the learned Tribunal, having regard to observation of the High Court in certain writ petitions, directed that no person should be appointed, who was not found suitable for the post for which he had applied, in view of well settled principles of law and that the select list should be adhered to and all appointments made on merit in terms of the correct select list. All appointments contrary to well settled legal principles should be set aside. Thus Graduate Trained Teachers could be appointed from the panel of Graduate Trained Teachers. The petitioner was not found fit for appointment as Graduate Trained Teacher. Primary School Teachers had to be appointed from the list of Primary School Teachers. The name of the petitioner did not feature in the select list for Primary School Teachers. Admittedly, the petitioner had not applied for the post of Primary School Teacher. The learned Tribunal directed that appointments not made in accordance with established legal principles and/or in other words appointments made not from the select list for the post to which appointment was made but from some other list would necessarily have to be set aside. However, some such candidates whose appointments were set aside approached Court and were protected by the judgement and order dated 12th September, 2001, of the Division Bench, referred to above. The Division Bench of this Court, by its judgement and order dated 14th September, 2001 referred to above, also held that appointments might only be made from the select list prepared for the post for which the appointment is made. The learned Tribunal arrived at the factual finding that all appointments from the panels prepared in 1992-93 were made by 2002. The appointment orders of 2008 were pursuant to a scheme of 17th May, 2005 for regular appointment of those who had rendered two years of contract service during the period of 1997-2003. The petitioner had not rendered contract service of two years and was therefore not eligible. We find that the petitioner was not even in service in 2001/2002. This Court in exercise of jurisdiction under Article 226 of the Constitution of India does not sit in appeal over decisions of Tribunals. This Court is only to see whether there is such procedural illegality and/or patent error that renders the order unconscionable. There is no such infirmity in the process of reasoning by which the learned Tribunal arrived at its decision, that calls for interference under Article 226 of the Constitution of India. This Court is only to see whether there is such procedural illegality and/or patent error that renders the order unconscionable. There is no such infirmity in the process of reasoning by which the learned Tribunal arrived at its decision, that calls for interference under Article 226 of the Constitution of India. The issue of whether selected candidates from the list of Graduate Trained Teachers found suitable for appointment as Primary Teachers, can be given appointment as Primary School Teachers, even though their names did not feature in the list of Primary School Teachers has already been decided against the petitioner by judicial pronouncements which have assumed finality including the judgement and order dated 12th September, 2001 of the Division Bench of this Court. For the reasons discussed above, the writ petition cannot be entertained, and the same is dismissed.