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2011 DIGILAW 179 (CAL)

Deba Prasad Datta v. STATE OF WEST BENGAL

2011-02-07

AMIT TALUKDAR, PRABHAT KUMAR DEY

body2011
JUDGMENT Talukdar, J. 1. It would be short and sweet. The situation that has cropped up before us in the light of the decision of the Hon'ble Single Judge in W.P. No. 16417(W) of 2010 of 13/08/20I0 (Annexure-P 10) remaining no longer res integra and covered by the successive Division Bench decisions of this Court and is currently is in seizin by the Hon'ble Apex Court in Special Leave to Appeal (Civil) No(s). 24238 of 2010, should be dealt with accordingly. 2. Rendering of the Hon'ble Single Judge has been carried in appeal at the instance of the appellant hereinabove on the ground that the selection process initiated by the School Authorities beyond the period of 45 days from the date of receiving prior permission from the D.I. in terms of the Rules of 2005 does not vitiate the selection process and; that the decision of The Secretary of the Managing Committee, Kalinagar Girls' High School, Nadia v. Archana Ghosh (Saha) and Ors. reported in (2010)4 WBLR (Cal) 381 was not proper for this purpose. We have heard Shri Bhattacharya in support of the Appeal and Shri Mitra for the State respondents. 3. Whilst it was the case of Shri Bhattacharya that the Rules of 2005 does not vitiate the selection process if the requisitions are not sent to the Employment Exchange within 45 days; and the decision relied upon by Shri Bhattacharya in The Secretary of the Managing Committee, Kalinagar Girls' High School, Nadia v. Archana Ghosh (Saha) and Ors. (supra) in support of his contention that the Rules existing on the date of occurrence of vacancy should guide the selection process--Shri Mitra was of the view that no interference was required as His Lordship had interpreted Rule 8(5)(a) of the West Bengal Schools (Recruitment of Non-Teaching Staff) Rules, 2005 and had discussed with regard to the applicability of the cut off period of 45 days. 4. Shri Mitra prayed for maintaining the Order under appeal in the absence of any other illegality. Law governing the field of intra Court Appeal is quite well settled. 4. Shri Mitra prayed for maintaining the Order under appeal in the absence of any other illegality. Law governing the field of intra Court Appeal is quite well settled. Where we exercise, practically our Power of extended judicial review, not only we must be absolutely circumspective but be alive to the situation that our judicial daring does not upset the apple cart of a judicial review of an equally pristine Forum, who exercised its high prerogative writ under the constitutional sweep; simply whose amplified power we enjoy. Nothing more nothing less. 5. Nearly half a century ago, the Supreme Court in Uttar Pradesh Cooperative Federation Ltd. v. Sunder Bros, Delhi, AIR 1967 SC 249 , which was later on followed in Manjunath Anandappa URF Sivappa Hanasi v. Tammanasa, (2003)10 SCC 390 had held : "..........as is often said, it is ordinarily not open to the appellate Court to substitute its own exercise of discretion for that of the trial Judge; but if it appears to the appellate Court that in exercising its discretion the trial Court has acted unreasonably or capriciously or has ignored relevant facts, then it would certainly be open to the appellate Court to interfere with the trial Court's exercise of discretion." 6. We neither feel there is any formidable compulsion or forensic exigency for this Court of appeal to interfere with the immaculate piece of rendering by the Hon'ble Single Judge. But, as a Court of appeal simply, we cannot admire but we have to administer reasons for our decisions while in appeal. 7. After having apprised ourselves with the basic nuances of the mechanism of an Appellate Court, we would see the structure of the conclusion by the Hon'ble Single Judge. 8. Background facts leading to the file would be necessitated to be outlined before we again swim back to the mainstream. The appellant featured at the top of the panel prepared by the Selection Committee but in stead of the same being forwarded, the D.I. did not accord approval. This persuaded him to approach the Writ Court. The said Court of First Instance in W.P. No. 16456W of 2009 on 22/09/2009 found that such "candidate has not indefeasible right of appointment..." in a process for selection but it would have been converse, had the Managing Committee approached with such grievance. This persuaded him to approach the Writ Court. The said Court of First Instance in W.P. No. 16456W of 2009 on 22/09/2009 found that such "candidate has not indefeasible right of appointment..." in a process for selection but it would have been converse, had the Managing Committee approached with such grievance. Spurned by the Hon'ble Single Judge of the First Instance, the appellant submitted himself in earlier appeal. It was docketed as M.A.T. No. 1194 of 2009. The said Division Bench, relying on the decision of Smt. Antara Maji v. District Inspector of Schools (S.E.) and Ors. reported in (2010)2 WBLR (Cal) 127 had held that the appellant had a right to apply for appropriate direction to the D.I. for approval of the panel and accordingly disposed of the appeal by directing the D.I. to take appropriate steps with regard to the approval in question immediately. 9. Acting on the basis of the directions passed by the Division Bench on 14/05/2010, the D.I. by his Order dated 10/06/2010 took up the Matter for consideration and after taking into account the entire spectrum of the issue involved, declined approval on two fold grounds; firstly school authority submitted requisition for sponsoring candidates after lapse of ten months and secondly, the selection process has been made in violation of the existing Recruitment Rules. 10. As such a second trip for the appellant before the Writ Court of Second Instance in connection with W.P. No. 16417(W) of 2010, which held that since there was no discussion in The Secretary of the Managing Committee, Kalinagar Girls' High School, Nadia v. Archana Ghosh (Saha) and Ors. (supra) with regard to Rule 8(5)(a) of Rules of 2005, the same did not have any application and dismissed the writ application. Hence this appeal. 11. In the event we would abide by the decision of The Secretary of the Managing Committee, Kalinagar Girls' High School, Nadia v. Archana Ghosh (Saha) and Ors. (supra), the entire issue can be resolved very easily and the Order under appeal has to be forthwith set aside. Sitting in a coordinate Division Bench, we are bound by the ratio thereof so also the Hon'ble Single Judge. 12. The binding precedence of a Division Bench decision is required to be followed not only by the Single Judge but also by us in a coordinate Division Bench. This is the rule of stare decisis. Sitting in a coordinate Division Bench, we are bound by the ratio thereof so also the Hon'ble Single Judge. 12. The binding precedence of a Division Bench decision is required to be followed not only by the Single Judge but also by us in a coordinate Division Bench. This is the rule of stare decisis. But there are some exceptions. Those are doctrine of per inquirrium and sub silentio. In the instant case the Division Bench in The Secretary of the Managing Committee, Kalinagar Girls' High School, Nadia v. Archana Ghosh (Saha) and Ors. (supra) was in total oblivion of the Rule 8(5)(a) of the West Bengal Schools (Recruitment of Non-Teaching Staff) Rules, 2005 and came to a conclusion, which was bereft of appreciation of the said Rules. In Municipal Corporation of Delhi v. Gurnam Kaur reported in (1989)1 SCC 101 , a Three Judge Bench of Supreme Court speaking through Sen, J. while quoting Professor P.J. Fitzgerald, Editor, Salmond on Jurisprudence , 12th edn. held : ".........Precedents sub silentio and without argument are of no moment." 13. It further held : "A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law [read Rule 8(5)(a) of West Bengal (Recruitment of Non-Teaching Staff) Rules, 2005] involved in the decision is not perceived by the Court or present to its mind. The Court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. IT may be shown, however, that logically the Court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the Court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio." 14. Similarly, the Supreme Court in A-One Granites v. State of U.P. and Ors. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio." 14. Similarly, the Supreme Court in A-One Granites v. State of U.P. and Ors. reported in (2001) 3 SCC 537 , relying on its earlier decisions in State of U.P. v. Synthetics and Chemicals Ltd, (1991)4 SCC 139 and Arnit Das v. State of Bihar, (2000)5 SCC 488 has held that where a point ".........having not been referred to, much less considered by this Court in the earlier appeals, it cannot be said that the point is concluded by the same and no longer res Integra and accordingly this Court is called upon to decide the same." Interpretation of Rule 8(5)(a) of the West Bengal Schools (Recruitment of Non-teaching Staff), Rules, 2005 made by the Hon'ble Single Judge has fallen foul before the appellant on the anvil of the decision of this Court in The Secretary of the Managing Committee, Kalinagar Girls' High School, Nadia v. Archana Ghosh (Saha) and Ors. (supra). 15. What the Hon'ble Single Judge felt not to say, we would put it tersely to the extent that the decision of The Secretary of the Managing Committee, Kalinagar Girls' High School, Nadia v. Archana Ghosh (Saha) and Ors. (supra) relied upon by Shri Bhattacharya passed absolutely sub silentio for its failure to consider the impact of the said Rules. 16. Mosaic of the framework has already been laid down in a lovely piece of judgment of this Court in Asoke Sawoo v. State of West Bengal and Ors. reported in (2010)4 Cal LT (HC) 280 which has been affirmed by two different Division Bench in The Managing Committee of Polerhat High School v. State and Ors., (2011)1 WBLR (Cal) 214 and Sankar Das v. The State of West Bengal and Ors., (2011)1 WBLR (Cal)326-completely takes care of the situation. The situation has fructified to the position that the Rules applicable when the selection process was activated, would govern the fate of the applicant and not the Rule existing on the date of occurrence of vacancy, as have been held in the decision of The Secretary of the Managing Committee, Kalinagar Girls' High School, Nadia v. Archana Ghosh (Saha) and Ors. (supra), which has also been held to be not a good Law by another Division Bench in Sankar Das v. The State of West Bengal and Ors. (supra). 17. Straight away, we would find the same being sub silentio having no impinging effect upon us as a successor Bench. 18. From a wholesome appreciation of the agony felt by Shri Bhattacharya in the light of the contextual situation arising out of the finding returned by the Hon'ble Single Judge vis-a-vis the Division Bench decision in The Secretary of the Managing Committee, Kalinagar Girls' High School, Nadia v. Archana Ghosh (Saha) and Ors. (supra) and in interpretation of the said Rules in question, we find that the Hon'ble Single Judge was absolutely right in its conclusion and we find there is absolutely no scope for us to interfere in the appeal. Furthermore, the decision rendered in The Secretary of the Managing Committee, Kalinagar Girls' High School, Nadia v. Archana Ghosh (Saha) and Ors. (supra) on 09/07/2010 has been carried before the Hon'ble Apex Court in connection with Special Leave to Appeal (Civil) No(s). 24238 of 2010. A Bench of J.M. Panchal and Gyan Sudha Misra, JJ. by Their Lordships' Order dated 20/09/2010 directed : "Leave granted. By way of ad-interim relief, stay of the final judgment dated July 9, 2010 rendered by the High Court of Calcutta in M.A.T. No. 592 of 2010 is granted. List the matter for final disposal in the first week of May, 2011. The learned Counsel for the respondent may file reply within four weeks' from today and rejoinder affidavit, if any be filed with four weeks' thereafter." Accordingly, the same stands dismissed." 19. Since the connected appeal being M.A.T. 1256 of 2010 on the self-same score having been heard analogously, also deemed to be disposed of by this common Judgment which would bind the fate of both the appeals. 20. Appeals accordingly dismissed. Parties to bear their own cots.