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2011 DIGILAW 1553 (CAL)

Swapan Kumar Maity v. STATE OF WEST BENGAL

2011-12-23

JOYMALYA BAGCHI, KALYAN JYOTI SENGUPTA

body2011
JUDGMENT: K.J. Sengupta, J. 1. THIS appeal has impugned the judgment and order of the learned Single Judge dated 8th April, 2010 passed in the writ petition being W.P.No.13825 (W) of 2009, made by one Avik Chowdhury, respondent No.9 herein by which the learned Trial Judge has been pleased to grant relief to the writ petitioner/respondent directing the D.I. concerned namely the respondent No.3 herein to approve the panel sent to him by the School Authority within a period of two weeks from the date of communication of the order. Avoiding unnecessary details of the fact we record the factual score as follows:- In or about 2006 the Managing Committee of the school namely Madanmohan Chak Chowdhury Institution initiated selection process for filling up of a post of Clerk in terms of the Recruitment Rules as prescribed by the Government of West Bengal. The appellant herein and the respondent No.9 were among the eligible candidates. For the purpose of recruitment of Clerk under the rules eligible candidates are to take viva voce and typing test. In the selection process the Committee selected the respondent No.9, Avik Chowdhury and the appellant herein as first and second successful candidate respectively, and another candidate was placed in third position who of course is not in the picture at the moment. The Selection Committee consists of several members namely Secretary, Headmaster of the School concerned, one of the Members of the Panchayat nominee and an outside Expert. 2. IT appears that despite panel being prepared by the Managing Committee based on the assessment made by the Selection Committee, and having been sent to D.I., as no action was taken the respondent No.9, herein, filed a writ petition being W.P. No.20587 (W) of 2007 in this Court for a direction on the D.I. to take decision on the question of approval. By an order dated 5th March, 2007 Hon'ble Justice Debasish Kar Gupta was pleased to dispose of the said writ petition directing the District Inspector of Schools to decide the matter within certain time. The D.I., thereafter took decision, and refused to approve the panel on the ground that the panel was not prepared in a free and fair manner. The D.I. directed the School Authority to prepare a panel afresh with the same set of candidates on holding type test in accordance with the rules. The D.I., thereafter took decision, and refused to approve the panel on the ground that the panel was not prepared in a free and fair manner. The D.I. directed the School Authority to prepare a panel afresh with the same set of candidates on holding type test in accordance with the rules. D.I. passed the said order in terms of the order of this Hon'ble Court on 28th August, 2007. At that point of time it was noticed that the papers recording assessment of the typing test was not sent to D.I. Thereafter the respondent No.9 filed second writ petition challenging the said order dated 28th August, 2007. The second writ petition was disposed of by an order dated 25th February, 2009 by Justice Indira Banerjee. Justice Banerjee was pleased to set aside the said order of the D.I. dated 28th August, 2007, and further directed the D.I. to take fresh decision on the panel in accordance with law. The D.I. again in terms of the order of Justice Banerjee reconsidered, hearing all the parties, and he reiterated his earlier decision holding impossibility to grant approval in absence of the papers recording evaluation of the typing test of the candidates. The last order of D.I. dated 1st July, 2009 was challenged by a third writ petition by the respondent No.9 on which the impugned judgment and order was passed. It is pertinent to record that in the third writ petition the appellant before us was not a party, thence on his application he was added as party respondent. Learned counsel for the appellant submits that D.I. has rightly refused to approve the panel, as admittedly type test papers were not sent along with the panel. It was a fact that type test was taken and the reason behind not sending the type test papers along with the panel in view of the fact that writ petitioner/respondent was unsuccessful as he does not know how to type. He really did not secure any mark in the type testing and with the help of the local antisocial element on the date of interview compelled the member of the Selection Committee to allot desired marks. He really did not secure any mark in the type testing and with the help of the local antisocial element on the date of interview compelled the member of the Selection Committee to allot desired marks. The incident of preparation of panel under extortionate situation at the instance of the respondent No.9 was informed by making joint complaint by the Headmaster, the then Secretary and Panchayat nominee to the District Inspector of Schools and it was subsequently recorded by the D.I. (SE) in his two orders dated 28th August, 2007 and 1st July, 2009. 3. LEARNED counsel for the appellant submits that in terms of Rule 9 (7a) and (7b) of West Bengal Schools (Recruitment of Non-teaching Staff) Rules, 2005 the School Authority is required to submit a panel along with all relevant papers before the concerned D.I. for approval and therefore the type sheets are part and parcel of the panel in question. He further contends that the appellant is not estopped from challenging the said selection process as well as the panel as because he participated and he has right to do so still as glaring illegalities has been detected in selection process. In such situation, he urges with support of the Supreme Court decision reported in AIR 1997 SC 2110 (Rajkumar v. Shakti Raj) that the principle of estoppel does not apply. 4. HE contends that when glaring injustice resulted in view of the complete violation of the Recruitment s is brought to the notice of the Court, duty of the Court is to do complete justice to the parties. HE has cited a decision of this Court reported in (1998) II CHN page 121 that the Court has previously on the similar facts has done so. HE contends further that the learned Trial Judge has totally overlooked the aforesaid glaring illegalities and irregularities by directing to approve of the panel and thereby ignored provision of the Recruitment Rules. The Court cannot ignore the Recruitment Rules as it has been well settled by the Hon'ble Supreme Court in Uma Devi's case. Learned lawyer for the State has supported the argument of the appellant both on fact and in law. The Court cannot ignore the Recruitment Rules as it has been well settled by the Hon'ble Supreme Court in Uma Devi's case. Learned lawyer for the State has supported the argument of the appellant both on fact and in law. Learned lawyer for the State has brought the attention of the Court to the rules providing allocation of marks in the selection process of Clerk in a school wherefrom, he contends, it will appear that 5 marks have been allocated for type writing and 5 marks for the interview. According to him non-production of relevant material namely evaluation of the typing test by the expert body is violative of the said Rule and without the same panel cannot be approved. He contends that no Court can direct to approve panel aiming at recruitment of any person ignoring the relevant Recruitment Rules. In support of his submission he has referred to a decision of Supreme Court reported in 1992 Supp (2) SCC 118, (Krishan Yadav v. State of Haryana and ors.). 5. MR. De, learned Senior Advocate appearing for the respondent No.9 while supporting the judgment of learned Trial Judge submits that appellant took part in the selection process and was placed as a second candidate. He took a chance to get selected. Having found unsuccessful he has challenged the selection process, and he thus is estopped from doing so. He submits that he did not challenge correctness of marks given to him by the respective Members of the Selection Committee in typing test, oral or interview and academic qualifications. He had no grievance before the D.I. alleging that he is aggrieved with the marks allotted including typing test. Out of 5 full marks in typing test he was given 4 marks. The score sheets and papers are all signed by each and every Member of the Selection Committee and selection was not challenged by the appellant at any stage. In a pending writ application and also in page 44 of the Paper Book the appellant contended that he stood first in the said selection and therefore the panel is to be recast and he should be placed in the 1st position. But in the present appeal the appellant contends that the selection should be set aside and there should be a de novo selection. Such stand of the appellant is contradictory. He cannot approbate or reprobate in situation like this. But in the present appeal the appellant contends that the selection should be set aside and there should be a de novo selection. Such stand of the appellant is contradictory. He cannot approbate or reprobate in situation like this. According to him by the judgment and order dated 1st July, 2009 Justice Indira Banerjee has decided the issue conclusively and since it was not challenged by anyone else, it has reached its finality. In this appeal the judgment and order of the Justice Indira Banerjee cannot be reopened nor can be questioned. According to him Rule 7b of Recruitment Rules is directory in nature and not mandatory. The said Rule does not provide a penal consequences. 6. HE reminds that whatever decision has been taken by Selection Committee that is final and further that D.I. had no jurisdiction to take decision ignoring the judgment and order of Justice Indira Banerjee to refuse to grant approval. The said Rule does not provide a penal consequences. 6. HE reminds that whatever decision has been taken by Selection Committee that is final and further that D.I. had no jurisdiction to take decision ignoring the judgment and order of Justice Indira Banerjee to refuse to grant approval. In support of his submission he has relied on the following decision: (i) AIR 1995 SC 1088 paragraph 9 (ii) (2002) 6 SCC 127 , (iii) (2002) 9 SCC 765 (iv) AIR 1994 SC 579 , (v) Craies on Statute law, 7th Edition page 267 (vi) Construction of statutes by Crawford page 529 para 266 (vii) (2010) 6 SCC 759 (Himachal Pradesh Public Service Commission v. Mukesh Thakur and another.) On hearing the learned counsel for the parties and considering the materials placed before us and further in course of hearing of the appeal we observed that there has been doubt as to whether typing test was taken factually or not and further whether the said type test sheets were handed over to the Headmaster or not' During hearing stand was taken that the Headmaster never received the typing sheets recording performance of the respective candidates from the Selection Committee as such it could not be produced before D.I. Subject to the decision in the context of the argument that the said Recruitment Rule 7 is directory not mandatory, we decided to bring evidence on record to conclude whether the typing tests were taken by the respective candidates and further whether the Selection Committee handed over the papers recording evaluation of typing test to the Headmaster or not' The Headmaster of the school concerned who was a Member not only of the Selection Committee but also the Member of the Managing Committee came to this Court and had filed an affidavit, in addition thereto he was examined orally on oath before the Court. In his affidavit, in paragraph 4 he has stated that the type test was taken under threat and duress but the said type test papers were and are not in his custody. 7. IN his oral evidence before this Court this Headmaster has said in answer to question No.18 put by the Court he has said that after the type test had been completed the same were kept at the place where the interview took place. 7. IN his oral evidence before this Court this Headmaster has said in answer to question No.18 put by the Court he has said that after the type test had been completed the same were kept at the place where the interview took place. IN his answer to question No.19 he has said that the type sheets were kept with many files and records. When the Court put a specific question "After selection process was over with whom the typing sheets and other papers were kept" He avoided direct answer to the said question, instead he said that there was a clerk of the School who arranged the papers and documents we were also there. Then in answer to question No.21 he has said specifically that he got papers from Selection Committee. But realizing his difficulty he volunteers that each paper was received by him but were not checked up. However, he said in question No.29 that he did not get the type sheets. He admitted that he sent up all the papers to D.I. without type sheets. We called the Expert Member of the Selection Committee being the Headmaster of an adjoining School who was independent person. IN his oral testimony he has said in answer to question No.12 that he personally handed over all the papers to the Headmaster and he asked him to verify and check up. IN answer to question No.13 he answered that he handed over everything including the type test result to the Headmaster. IN answer to question No.13 and 15 he stated that he has also filed an affidavit before us and in paragraph 10 he has stated that all the score sheets including type sheets were handed over by him to the Headmaster of the school. He has confirmed the statement made in his affidavit when he was examined before us. IN answer to question No. 14 he said in his answer that there was score sheets for viva-voce test, result regarding academic careers and type tests. 8. AFTER evaluating the evidence of both the persons we are inclined to believe the testimony of third and disinterested person being one of the Members of the Selection Committee who has said in no uncertain terms that type sheets were handed over to the Headmaster. 8. AFTER evaluating the evidence of both the persons we are inclined to believe the testimony of third and disinterested person being one of the Members of the Selection Committee who has said in no uncertain terms that type sheets were handed over to the Headmaster. By necessary implication the Headmaster has admitted this fact as he has admittedly received many papers, though he has conveniently denied having received the type sheets. We think that his testimony to the extent of non-receipt of type sheets by him should not be believed. Those were handed over to him and he has admitted that he did not send up those type sheets to D.I. without approval. Now we shall decide the question whether the aforesaid Rule 7(a) is mandatory or not. Before we do so we think Rule relating to subject matters of test and allocation of respective marks therefore has to be considered. Sub Rule 2(a) provides the same and is thus set out hereunder: "Rule (2)(a) For selection of clerk in a school,- (i) full marks for possessing the certificate of passing Madhyamik Examination (or equivalent) shall be 10 marks; (ii) full marks for possessing the skill of typewriting shall be 5 marks; (iii) full marks for the interview shall be 5 marks;" The language of above Rule is clearly mandatory and that all the papers shall have to be placed before the D.I. including the type sheets for taking decision with regard to approval. When there has been separate allocation of marks of the typing examination, and without the test and the result of the same the selection process cannot be completed and consequently approval cannot be accorded. According to us having regard to scheme of aforesaid provision for granting approval marks for type test cannot be excluded as allocation of 5 marks for this subject comprises part of full marks of twenty (20) for whole test. If it is ignored the rule maker would not have allocated the aforesaid marks. The mandatory nature of the said rule will also appear from the sub-rule 4 which specifically says each Member of the Selection Committee shall record separately in item-wise score sheet and the marks awarded for those item to each candidate. If it is ignored the rule maker would not have allocated the aforesaid marks. The mandatory nature of the said rule will also appear from the sub-rule 4 which specifically says each Member of the Selection Committee shall record separately in item-wise score sheet and the marks awarded for those item to each candidate. Sub-rule 5(a) however provides that the total marks awarded to each candidates by each Member of the Selection Committee shall be computed and then the average of all total marks awarded to each candidate by all the Members of the Selection Committee shall be computed and finally panel of three candidates who scored the highest total marks in average shall, with names of such candidates arrange in order of merit be prepared. Therefore, the rule framer has not only made separate allocation of marks for separate testing but the utility of performance of each and every separate item of testing has also been taken into consideration of overall evaluation of performance. On conjoint reading of the above provision it is clear that there is no scope for deviation or departure from the aforesaid rules in the evaluation process. 9. THE rule of construction of statute as mentioned by the author RT Crawford for interpreting whether a statutory provision is mandatory or not we think it is one of the instances to regard the provision of statute being mandatory where if nothing is stated regarding consequences or effect of non-compliance. Similarly Caraies on Statute Law with regard to the interpretation one of the test contemplated by the author is that if there is any provision providing anything done contrary to this provisions shall be null and void to all intents. No-one can dispute the aforesaid rule of interpretation of the statute as regard mandatory and directory but those are illustrative and cannot be applied in all cases. 10. WHILE interpreting the mandatory or directory character of the provisions of the statute we think the entire provision has to be read as a whole with reference to the object to be achieved by the statutory provision. 10. WHILE interpreting the mandatory or directory character of the provisions of the statute we think the entire provision has to be read as a whole with reference to the object to be achieved by the statutory provision. Here best candidate has to be chosen through various tests which has been provided in the rules and in no uncertain terms it has been provided in the Rule skill of typing is one of the criteria for recruiting a clerk and for which separate marks has been allotted as we have indicated and there is no indication that the selector or for that matter Appointing Authority has any discretion to exclude any of the items for evaluating the performance of the candidates. The issue as we have already indicated in this case is whether in absence of the type testing sheet the D.I. can accord approval to the panel or not. In this connection the rule is very specific what is to be done after preparation of panel followed by examination thereof by the Appointing Authority. Thus it is necessary to set out the procedure after formation of the panel mentioned in clauses 7(a), 7(b) and 7(c). "7(a) the selection committee shall, within fifteen days from the date of the interview, prepare a panel and submit the same to the appointing authority, 7(b) the appointing authority shall, within 15 days from the date of submission of the panel by the selection committee, examine the panel and, along with all relevant papers, submit the same to the District Inspector Schools for his approval, 7(c) the District Inspector of Schools shall, within one month from the date of receipt of the panel, convey his decision thereon," It is clear that the Appointing Authority shall submit the panel along with all relevant papers to the District Inspector of Schools for his approval. On receipt of the same the District Inspector shall convey his decision thereon on receipt of those materials. It is absolutely clear that it is the duty cast upon the Appointing Authority to send all the relevant papers and to submit the same to the D.I. of the School for his approval. It is trite that when a duty is cast upon any authority under law irrespective nature of language (whether shall or may) the same is treated as mandatory. It is trite that when a duty is cast upon any authority under law irrespective nature of language (whether shall or may) the same is treated as mandatory. The Managing Committee has no power to approve the panel, and has a duty to submit, and the submission of panel has to be done along with all papers which includes the score sheets of all the Members of the Selection Committee recording the performance of typing sheets also. 11. UNDER this circumstances if anything short of that procedure is done for decision making, then it is not the lawful method of recruitment process. We think it is impossible to accept the argument that the candidates after having participated in the selection process is estopped from challenging any selection or approval. It is settled law that there cannot be estopped as against provision of law whereby no individual right is created. The legal requirement for submission of panel with the papers by the Appointing Authority to the D.I. for approval of the same has nothing to do with the candidate concerned except they are interested to know the decision of the D.I. UNDER these circumstances we think the appellant is entitled to question legitimately the selection process, consequently question the judgment of the learned Trial Judge. The Supreme Court decision rendered in case of Chancellor and another, appellant v. Dr. Bijayananda Kar and others reported in AIR 1994 SC 579 cited was on the issue whether decision of the Selection Committee was lawful or not is delivered on the given facts and circumstances of that case. Here selection process is not questioned rather the method of obtaining approval of the panel by the D.I. is assailed. The method of approval resorted to in this case is contrary to the mandatory provision of law. The decision of the Supreme Court in case of Himachal Pradesh Public Service Commission v. Mukesh Thakur and ors reported in (2010) 6 SCC 759 was taken on different facts and issues therein. It was held, amongst other, in absence of any provision under the statute or statutory rules and regulation Court cannot generally direct re-evaluation of the answer scripts. Rather the Supreme Court in that decision expressed view that statutory provision has to be applied and in absence of the statutory provision nothing can be done. 12. It was held, amongst other, in absence of any provision under the statute or statutory rules and regulation Court cannot generally direct re-evaluation of the answer scripts. Rather the Supreme Court in that decision expressed view that statutory provision has to be applied and in absence of the statutory provision nothing can be done. 12. IN the case of Jaginder Singh and ors v. Rosonlal and ors reported in (2002) 9 SCC 765 the Supreme Court has laid down where the High Court under Article 226 of the Constitution of INdia will interfere with the selection process. IN that case factually large number of candidates participated in the selection process. It was ruled by the Supreme Court participation of such large number of candidates itself is a flawed selection method. The aforesaid Supreme Court decision has not laid down approval of selectee contrary to provision of law cannot be challenged by the candidate who is likely to be affected. The submission of Mr. De that the issue relating to non-compliance of Rule 7 (b) of the Recruitment Rules has been finally decided by Banerjee, J., is untenable. Such issue was neither raised nor decided by Banerjee, J., in the judgment and order dated 1st July, 2009. By the said judgment and order the matter was remanded to D.I. for fresh decision in accordance with law in the light of the observations made therein. Since there is no whisper, far less any observation, in the said judgment and order regarding the impact of non-furnishing of type-test papers by the school authorities to D.I. in compliance of the mandatory provision of Rule 7 (b) of the Recruitment Rules, we negate the submission of Mr. De that this issue had been foreclosed in the judgment of Banerjee, J., and cannot be reopened. IN view of the above discussion we are unable to accept the contention of Mr. De that the petitioner/appellant is not entitled to question the act and action of the Managing Committee for obtaining approval of the D.I. to a panel without submitting all the relevant papers. We hold the D.I. had rightly taken decision in absence of the typing sheets, which is the part of the one of evaluation materials no decision can be taken with regard to approval. We hold the D.I. had rightly taken decision in absence of the typing sheets, which is the part of the one of evaluation materials no decision can be taken with regard to approval. It is clear that the Appointing Authority shall submit the panel along with all relevant papers to the District Inspector of Schools for his approval. On receipt of the same the District Inspector shall convey his decision thereon on receipt of those materials. It is absolutely clear that it is the duty cast upon the Appointing Authority to send all the relevant papers and to submit the same to the D.I. of the School for his approval. It is trite that when a duty is cast upon any authority under law irrespective nature of language (whether shall or may) the same is treated as mandatory. The Managing Committee has no power to approve the panel, and has a duty to submit, and the submission of panel has to be done along with all papers which includes the score sheets of all the Members of the Selection Committee recording the performance of typing sheets also. 11. UNDER this circumstances if anything short of that procedure is done for decision making, then it is not the lawful method of recruitment process. We think it is impossible to accept the argument that the candidates after having participated in the selection process is estopped from challenging any selection or approval. It is settled law that there cannot be estopped as against provision of law whereby no individual right is created. The legal requirement for submission of panel with the papers by the Appointing Authority to the D.I. for approval of the same has nothing to do with the candidate concerned except they are interested to know the decision of the D.I. UNDER these circumstances we think the appellant is entitled to question legitimately the selection process, consequently question the judgment of the learned Trial Judge. The Supreme Court decision rendered in case of Chancellor and another, appellant v. Dr. Bijayananda Kar and others reported in AIR 1994 SC 579 cited was on the issue whether decision of the Selection Committee was lawful or not is delivered on the given facts and circumstances of that case. Here selection process is not questioned rather the method of obtaining approval of the panel by the D.I. is assailed. Bijayananda Kar and others reported in AIR 1994 SC 579 cited was on the issue whether decision of the Selection Committee was lawful or not is delivered on the given facts and circumstances of that case. Here selection process is not questioned rather the method of obtaining approval of the panel by the D.I. is assailed. The method of approval resorted to in this case is contrary to the mandatory provision of law. The decision of the Supreme Court in case of Himachal Pradesh Public Service Commission v. Mukesh Thakur and ors reported in (2010) 6 SCC 759 was taken on different facts and issues therein. It was held, amongst other, in absence of any provision under the statute or statutory rules and regulation Court cannot generally direct re-evaluation of the answer scripts. Rather the Supreme Court in that decision expressed view that statutory provision has to be applied and in absence of the statutory provision nothing can be done. 12. IN the case of Jaginder Singh and ors v. Rosonlal and ors reported in (2002) 9 SCC 765 the Supreme Court has laid down where the High Court under Article 226 of the Constitution of INdia will interfere with the selection process. IN that case factually large number of candidates participated in the selection process. It was ruled by the Supreme Court participation of such large number of candidates itself is a flawed selection method. The aforesaid Supreme Court decision has not laid down approval of selectee contrary to provision of law cannot be challenged by the candidate who is likely to be affected. The submission of Mr. De that the issue relating to non-compliance of Rule 7 (b) of the Recruitment Rules has been finally decided by Banerjee, J., is untenable. Such issue was neither raised nor decided by Banerjee, J., in the judgment and order dated 1st July, 2009. By the said judgment and order the matter was remanded to D.I. for fresh decision in accordance with law in the light of the observations made therein. Since there is no whisper, far less any observation, in the said judgment and order regarding the impact of non-furnishing of type-test papers by the school authorities to D.I. in compliance of the mandatory provision of Rule 7 (b) of the Recruitment Rules, we negate the submission of Mr. Since there is no whisper, far less any observation, in the said judgment and order regarding the impact of non-furnishing of type-test papers by the school authorities to D.I. in compliance of the mandatory provision of Rule 7 (b) of the Recruitment Rules, we negate the submission of Mr. De that this issue had been foreclosed in the judgment of Banerjee, J., and cannot be reopened. IN view of the above discussion we are unable to accept the contention of Mr. De that the petitioner/appellant is not entitled to question the act and action of the Managing Committee for obtaining approval of the D.I. to a panel without submitting all the relevant papers. We hold the D.I. had rightly taken decision in absence of the typing sheets, which is the part of the one of evaluation materials no decision can be taken with regard to approval. On fact established by evidence that the result of the typing test recorded in the sheets were not available though Selection Committee evaluated and handed over to the Appointing Authority namely Managing Committee. The Headmaster being one of the Member of the Managing Committee has said the same are not traceable. Under this circumstances, we think that fresh typing test has to be undertaken and this test shall confine to the three top-most candidates. This shall be done by the School Authority and for this purpose the D.I. will depute an Officer of his choice subordinate to him for observing typing test to be undertaken by the Selection Committee. For this purpose let fresh Selection Committee as per rule be constituted within seven days from the date of receipt of this order and typing test shall be completed within seven days thereafter and all other papers with this fresh type test result shall be submitted to the D.I. within fortnight thereafter. The D.I. shall take decision on the question of approval within 30 days from the date of receipt thereof. Thus the appeal is allowed. There will be no order as to costs. We make it clear that in the event any one who is appointed by this time his appointment will abide by the result of the aforesaid typing test. Stay of operation of the judgment is prayed for and the same is granted for a period of four weeks after Christmas vacation. There will be no order as to costs. We make it clear that in the event any one who is appointed by this time his appointment will abide by the result of the aforesaid typing test. Stay of operation of the judgment is prayed for and the same is granted for a period of four weeks after Christmas vacation. Urgent xerox certified copy of this order be supplied to the applicants.