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2011 DIGILAW 1319 (CAL)

Jakir Hossain v. STATE OF WEST BENGAL

2011-09-22

HARISH TANDAN

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JUDGMENT HARISH TANDAN 1. THESE two writ petitions were directed to be heard analogously. The facts adumbrated in both the writ petitions are identical and similar. Briefly stated the facts, the petitioner passed madhyamik examination from the West Bengal Board of Secondary Education and obtained the training qualification (Junior Basic Training) from Bihar Vidyalaya Pariksha Samity, Patna. The petitioner was registered with the concerned employment exchange as a trained candidate for the purpose of recruitment to the post of primary teacher. After notifying the number of vacancies by the Murshidabad District Primary School Council, the employment exchange sponsored the name of the petitioner as trained candidate. The petitioner was thereafter found successful and his name was included in the panel. The approval to such appointment was not given to the petitioner as the training certificate obtained from the Bihar Vidyalaya Pariksha Samity, Patna is not valid. 2. CHALLENGING the inaction on the part of the respondent authorities in issuing the letter of appointment to the petitioner, the petitioner moved before this court in writ jurisdiction which was disposed of with a direction upon the concerned respondent to dispose of the representation of the petitioner by passing reasoned order. The concerned Primary School Council communicated to the petitioner that the Director of the School Education have approved the panel excepting the petitioner. The writ petition being WP 1357 (w) of 2001 against the said order was disposed of by directing the concerned Primary School Council to award the prescribed marks as per the said training certificate and to give appointment to the petitioner within two months. At the time of the disposal this court observed that the certificate issued by the Bihar Vidyalaya Pariksha Samity, Patna is valid as Bihar School Examination Board and the said samity are one institution under the Government of Bihar. 3. THE Murshidabad District Primary School Council assailed the said order in intra court appeal being MAT 3763 of 2001 and the Division Bench set aside the said order and directed the director of the School Education, West Bengal to decide the equivalence of the said training certificate and to pass order accordingly. 4. PURSUANT to the said order of the Division Bench the Director of the School Education on 25.9.2001 rejected the candidature of the petitioner as the certificate issued by the Bihar Vidyalaya Pariksha Samity, Patna cannot be treated as valid one. 4. PURSUANT to the said order of the Division Bench the Director of the School Education on 25.9.2001 rejected the candidature of the petitioner as the certificate issued by the Bihar Vidyalaya Pariksha Samity, Patna cannot be treated as valid one. By filing the writ petition being WP 7528 (w) of 2003 the petitioner assailed the said decision of the Director of the School Education vide memo no. 540 dated 25.9.2002. Pending the said writ petition, several other similarly circumstanced candidate who filed the writ petitions before this court, were appointed by the concerned District Primary School Council on the basis of an order of the Division Bench dated 10.10.2002 passed in MAT 2852 of 2001 where the Division Bench observed that the government of Bihar vide communication dated 9.10.2002 have clarified that the ‘Bihar Vidyalaya Pariksha Samity’ and Bihar School Examination Board? is one and the same organization. It is further observed that Bihar Vidyalaya Pariksha Samity is the hindi translation of Bihar School Examination Board. 5. BY a government order dated 30.4.2003 issued by the Special Secretary, Government of West Bengal to the Director of the School Education by which the certificate issued by the Bihar School Examination Board, Patna is treated as equivalent. The further case of discrimination is made out by the petitioner in contending that similarly circumstanced person has already been appointed. 6. HOWEVER, comprehensive representation which was subsequently made by the petitioner on the basis of the Division Bench orders passed by this court in the matter of similarly circumstanced candidate was considered by the Director of the School Education whereby and whereunder it has been observed that the matter relating to the petitioner has already been decided on 25.9.2002 and as such no further adjudication is required. Assailing the said decision dated 17th July 2008 the petitioner has filed another writ petition being WP 6919 (w) of 2009. Mr. Subir Sanyal, learned Advocate appearing for the petitioner submits that in view of the clear pronouncement by the Division Bench of this court that the Bihar Vidyalaya Pariksha Samity is the hindi translation of Bihar School Examination Board, Patna the authorities cannot withhold the approval of the name of the petitioner. Mr. Subir Sanyal, learned Advocate appearing for the petitioner submits that in view of the clear pronouncement by the Division Bench of this court that the Bihar Vidyalaya Pariksha Samity is the hindi translation of Bihar School Examination Board, Patna the authorities cannot withhold the approval of the name of the petitioner. He further submits that other similarly circumstanced candidates have been favoured with the appointment but the petitioner has been spared and thus meted with the discrimination in violation of Article 14 and 16 of the Constitution of India. 7. MR. Kamalesh Bhattacharyya, learned Advocate appearing for the District Primary School council, Murshidabad submits that the Council have found the petitioner as successful but because of the decision of the Director of the School Education in not declaring the training certificate obtained from the Bihar Vidyalaya Pariksha Samity to be equivalent to the training certificate issued by the Government of West Bengal his client is unable to issue the letter of appointment in absence of the approval. 8. MR. Yeamin Ali, learned Advocate appearing for the state respondent submits that on 30.4.2003 the government has taken a decision to treat the training certificate issued by the Bihar School Examination Board, Patna or Bihar Vidyalaya Pariksha Samity, Patna to be equivalent to the training certificate issued by the government of West Bengal. Having considered the respective submission made at the bar, it is undisputed that the petitioner was allowed to participate in the selection process as a trained candidate on the basis of the training certificate obtained by the petitioner from Bihar Vidyalaya Pariksha Samity, Patna. The petitioner was found successful and was empanelled. An objection was taken by the Director of the School Education that the training certificate issued by the Bihar Vidyalaya Pariksha Samity, Patna is not a valid one. It appears that there was some confusion in the mind of the said authority whether the Bihar Vidyalaya Pariksha Samity, Patna and Bihar school Examination Board, Patna are one or different institutions. The candidature of the petitioner was rejected on 25.9.2002 as the Director of the School Education finds that the training certificate issued by the Bihar Vidyalaya Pariksha Samity, Patna is not a valid one. The candidature of the petitioner was rejected on 25.9.2002 as the Director of the School Education finds that the training certificate issued by the Bihar Vidyalaya Pariksha Samity, Patna is not a valid one. Subsequently the Government of West Bengal on 30.4.2003 declared that the certificate issued by the Bihar Vidyalaya Pariksha Samity, Patna and Bihar School Examination Board, Patna are equivalent to the training certificate issued by the State of West Bengal. Furthermore, the Division Bench at the time of disposing an appeal filed by the Muirshidabad District Primary School Council against an order passed in a writ petition filed by the similarly circumstnced candidate observed that the Bihar Vidyalaya Pariksha Samity, Patna is hindi translation of Bihar School Examination Board, Patna and directed the authorities to give appointment to the said candidate. 9. THIS court also cannot lose sight of that the similarly circumstanced candidates who obtained the training certificate from the said Bihar Vidyalaya Pariksha Samity, Patna are given appointment after the approval of the Director of the School Education. During the pendency of this first writ petition by which the decision of the director of the School Education in rejecting the candidature of the petitioner is assailed, the state government on 30.4.2003 recognized the training certificate of the institution from which the petitioner obtained the said training certificate as equivalent to the training certificate issued by the government of West Bengal. In view of the above, the said decision dated 25.9.2002 cannot be sustained and is hereby quashed and set aside. 10. THE writ petition being WP 7528 (w) of 2003 is hereby allowed. THE decision dated 17th July 2008 which is impugned in subsequent writ petition being WP 6919 (w) of 2009 was based on the fact that by decision dated 25.9.2002 the case of the petitioner has been decided. Thus the said decision is not taken independently but based upon the earlier decision dated 25.9.2002, in view of the quashment the decision dated 25.9.2002 the subsequent order dated 17th July 2008 cannot be sustained. THE same is also quashed and set aside. This court does not find any justification in withholding the approval to the appointment of the petitioner on such score. THE same is also quashed and set aside. This court does not find any justification in withholding the approval to the appointment of the petitioner on such score. Accordingly, the Chairman, District Primary School Council, Murshidabad is directed to recommend the name of the petitioner for appointment to the post of an assistant teacher to the Director of the School Education, West Bengal within four weeks from the date of communication of this order, the Director of the School Education shall thereafter grant approval to the appointment of the petitioner to the said post within two weeks from the date of receiving the said recommendation. THE Chairman of the concerned Primary School Council upon receiving the said approval shall issue the letter of appointment to the petitioner forthwith. Both the writ petitions are disposed of on above terms. However, there shall be no order as to costs. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.