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2011 DIGILAW 421 (CAL)

Malay Kumar Misra v. The State of West Bengal

2011-03-23

HARISH TANDAN

body2011
JUDGMENT : HARISH TANDON, J. In spite of service no one appears on behalf of the respondents. The writ petitioner challenged the action of the respondent authorities in not permitting him to appear in the interview for appointment to the post of Assistant Teacher to be held on 6.12.2009. The facts briefly stated is that the selection process was initiated in the year 2006 for filling up the post of the assistant teacher in the various primary schools set up within the district of Purulia. The writ petitioner, though eligible for such post, was not permitted to participate in the selection process as his name was not sponsored by the Employment Exchange. Challenging such action the petitioner filed a writ petition being WP No. 28825 (w)/06 in this court which was disposed of on 29.12.2006 permitting the writ petitioner to appear for the interview to be held on 31.12.2006 or any other date subsequent thereto. The said selection process could not be completed due to various proceedings pending before this court but ultimately recommenced in the year 2009. In spite of the order passed in an earlier writ petition the petitioner was not allowed to participate in the written examination scheduled to be conducted on 6.12.2009. The writ petitioner moved the instant writ application and by way of an interim order this court on 3.12.2009 allowed the petitioner to participate in the written examination scheduled to be held on 6.12.2009. It appears subsequently that the authorities did not conduct the written examination on 6.12.2009 and communicated the petitioner that the next date would be notified subsequently. The written examination was re-fixed on 17.1.2010 and by an order of this court the writ petitioner was allowed to participate in the written test. It has been submitted that the petitioner did appear on 17.01.2010 and has been empanelled but no appointment could be made as the writ application is pending. In spite of the service no one appears on behalf of the respondents. The short question that arises for consideration is whether the writ petitioners acquired any right to be considered in selection process for appointment of the assistant teacher. Though initially this court was hesitant in granting relief to the writ petitioner as the candidature of the writ petitioner was not sponsored by the Employment Exchange under Rule 8 of the West Bengal Recruitment Rules 2001. Though initially this court was hesitant in granting relief to the writ petitioner as the candidature of the writ petitioner was not sponsored by the Employment Exchange under Rule 8 of the West Bengal Recruitment Rules 2001. But after perusal of an order dated 29.12.2006 passed in WP no. 28825 (w)/06 the aforesaid question is diluted and the point now emerges is whether a right which accrued in terms of an order passed in an earlier proceeding can be denied and defeated in a subsequent proceeding. Before dealing with the point as aforesaid it is trite to depict the order dated 29.12.2006 passed in an earlier writ application in toto : “The petitioner is permitted to appear for the interview for the purpose of selection for appointment to the post in question, as prayed for in the writ petition, along with other sponsored candidates on 31.12.2006 or any other subsequent date or dates, when such interview takes place. The case of the writ petitioner will be considered at par with other sponsored candidates for such selection. This writ petition is, thus, disposed of. There will be no order as to costs. Learned Advocate for the writ petitioner is given liberty to communicate the gist of the order to the concerned authority. Urgent xerox certified copy, if applied for, be given to the parties on priority basis.” (Emphasis supplied) From a meaningful reading of the aforesaid order the writ petitioners were directed to be considered at par with other sponsored candidates for such selection. Thus the writ petitioners were treated akin or similar to a candidate whose candidature is sponsored by the Employment Exchange in terms of Rule 8 of the West Bengal Recruitment Rules 2001. The said order which was passed in an earlier writ application has not been assailed and/or challenged and have thus attained finality. Once an order has attained finality, having not been challenged or otherwise, the same cannot be reopened in a second round of litigation. Reliance can be placed to a judgment of the Supreme Court in case of Kishore K. Pati Vs. District Inspector of Schools, Midnapore & Ors. reported in (2000) 9 SCC 405 . In the said case the authorities were directed to consider the case of the appellant therein in interview notwithstanding the fact that the names have not been sponsored by the Employment Exchange. District Inspector of Schools, Midnapore & Ors. reported in (2000) 9 SCC 405 . In the said case the authorities were directed to consider the case of the appellant therein in interview notwithstanding the fact that the names have not been sponsored by the Employment Exchange. The said order by which the appellant was permitted to participate in interview was not assailed by the authorities. In a second writ application the Division Bench annulled the appointment of the appellant being contrary to the provision of law. In such perspective the apex court was pleased to hold : “3. It transpires that the learned Single Judge by order dated 16.11.1998 and 19.12.1998 directed the authorities concerned to consider the case of the present appellant as well as Respondent 7 in interview notwithstanding the fact that their names had not been sponsored by the employment exchange. This view of the learned Single Judge cannot be said to be erroneous. Pursuant to the said order, the appellant and Respondent 7 did appear in the interview and though the appellant was found suitable, yet Respondent 7 was found unsuitable. The order of the learned Single Judge directing the authorities to allow the appellant and Respondent 7 to be interviews were not assailed and thus became final. In that view of the matter, in the second round of litigation, the Division Bench was totally in error to annul the appointment made in favour of the appellant after interviewing him pursuant to the orders of the learned single Judge, which has attained finality, is without jurisdiction and we are of the considered opinion that the Division Bench was in error in setting aside the appointment of the appellant. 4. Mr. Banerjee, learned counsel appearing for Respondent 7 contended that in the writ appeal filed by him before the Division Bench, he has raised several questions which have not been answered and therefore it would be appropriate for this court to remit the matter to the Division Bench for redisposal. On going through the counter-affidavit and the impugned judgment of the High Court, we do not find any contention raised not being answered by the Division Bench. On going through the counter-affidavit and the impugned judgment of the High Court, we do not find any contention raised not being answered by the Division Bench. On the other hand, the Division Bench has disposed of the appeal on the ground that the consideration of the case of the appellant and Respondent 7 whose case has not been sponsored by the employment exchange is not sustainable in law and as we have said earlier, the said view is not correct. In that view of the matter, we set aside the impugned judgment of the Division Bench and allow this appeal.” Similar view was taken by the apex court in case of Abani Mahato Vs. Kanchan K. Sinha & Ors. reported in (2000) 9 SCC 527 , while upholding that once an order has attained finality, the same cannot be questioned in a subsequent proceeding, in the following words : “4. Learned counsel for the appellant has drawn our attention tot he legal decision of this Court in Kishore K. Pati V. District Inspector of Schools, Midnapore dated 10.1.2000 in which it has been held that it was not necessary that the name should have been sponsored by the employment exchange. Be that as it may, what is important in the present case is, that the appellant herein had been directed by the High Court n an earlier proceeding to be considered for appointment and be interviewed. That judgment of the High Court dated 7.8.1997 was not challenged and had become final. This being so, the selection which was made would not be quashed. We allow these appeals, set aside the decision of the Single Bench and the Division Bench of the High Court and direct the respondents to take further proceedings pursuant to the panel which had been constituted by the Selection Committee. It is further made clear that the salary to the appellant will be paid only from the day he joins duty pursuant to the orders passed in his favour. Formality be completed within two months. No costs.” On a Rule of res judicata as enshrined under section 11 of the Code of Civil Procedure the Supreme Court in case of Swamy Atmananda & Ors. Vs. Sri Ramakrishna Tapovanam & Ors. reported in AIR 2005 SC 2392 observed : “29. Formality be completed within two months. No costs.” On a Rule of res judicata as enshrined under section 11 of the Code of Civil Procedure the Supreme Court in case of Swamy Atmananda & Ors. Vs. Sri Ramakrishna Tapovanam & Ors. reported in AIR 2005 SC 2392 observed : “29. The object and purport of principle of res judicata as contended in Section 11 of the Code of Civil Procedure is to uphold the rule of conclusiveness of judgment, as to the points decided earlier of fact, or of law, or of fact and law, in every subsequent suit between the same parties. Once the matter which was the subject-matter of lis stood determined by a competent court, no party thereafter can be permitted to reopen it in a subsequent litigation. Such a rule was brought into the statute book with a view to bring the litigation to an end so that the other side may not be put to harassment. 30. The principle of res judicata envisages that a judgment of court of concurrent jurisdiction directly upon the point would create a bar as regards a plea between the same parties upon some other matter directly in question in another court and that the judgment of the court of exclusive jurisdiction direct in point. 31. The doctrine of res judicata is conceived not only in larger public interest which requires that all litigation must, sooner than later, come to an end but is also founded on equity, justice and good conscience.” Thus in an earlier proceeding the writ petitioners were directed to be considered at par with the sponsored candidate at the time of selection for appointment of the assistant teacher such right cannot be said to be defeated by the authority concerned by taking a plea that only the sponsored candidate in terms of Rule 8 of the West Bengal Recruitment Rules 2001 shall be allowed to participate in the selection process. The right of the writ petitioner is already crystallized in the earlier proceeding which cannot be defeated in a subsequent proceeding as the said order attains finality. The right of the writ petitioner is already crystallized in the earlier proceeding which cannot be defeated in a subsequent proceeding as the said order attains finality. In view of the discussion made above, the writ application is disposed of with a direction upon the Director of the School Education, West Bengal to take appropriate steps and grant approval in favour of the writ petitioner subject to fulfillment of all other statutory requirements required for his appointment. Such decision shall be taken as expeditiously as possible preferably within six weeks from the date of communication of this order. In the event of grant of approval in favour of the writ petitioner the Chairman of the District Primary School Council, Purulia shall issue a necessary appointment letter to the writ petitioner within a week thereafter. However, there shall be no order as to costs.