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2011 DIGILAW 936 (CAL)

Enamul Haque v. STATE OF WEST BENGAL

2011-07-15

JAYANTA KUMAR BISWAS

body2011
JUDGMENT 1. THE petitioner in this art.226 petition dated October 20, 2009 is questioning a decision of the District Magistrate, Murshidabad and District Nodal Officer SSK and MSK, Murshidabad dated September 14,2009 (at p.51) cancelling his appointment to the post of History Samprasarak in Narendrapur MSK, and directing the Managing Committee of the MSK to offer appointment to the private respondent (Samsul Alam). 2. THE Secretary of the MSK published a notice dated March 10, 2008 (at p.30) inviting applications from eligible candidates for appointment to the posts of English Samprasarak and History Samprasarak. There was no prohibition against a candidate applying for both the posts. While the petitioner applied for the post of History Samprasarak, the private respondent submitted an application "for the post of sikhsha samprasarak in History" stating as follows: "In response to your advertisement in the Notice Board of your M.S.K. dated on 10.03.08 inviting applications for the post of siksha samprasarak in English in your institution. I beg to offer myself as a candidate for the same post and furnished the following particulars in support of my candidature." 3. The Secretary of the Managing Committee of the MSK registered the private respondent in the application register under serial no.2 as a candidate for the post of History Samprasarak and under serial no.5 as a candidate for the post of English Samprasarak. But the Scrutiny Committee rejected his application on March 29, 2008 on the grounds that he applied for both the posts. 3. THE petitioner was selected for the post of History Samprasarak. THE private respondent filed W.P.No.6473(W) of 2008 dated April 4,2008 under art.226 questioning the petitioner’s selection. THE petitioner accepting the offer of appointment started working as History Samprasarak with effect from May 2, 2008. By an order dated May 22, 2009 the private respondent’s W.P.No.6473(W) of 2008 was disposed of. THE order dated May 22, 2009 disposing of W.P.No.6473(W) of 2008 is quoted below: "Consequent to invitation for applications, for vacancies to be filled up for the Madhyamik Sihsha Kendra (MSK), the writ petitioner applied. He offered his candidature both for English and History. It appears from a report dated 12th November, 2008, appearing to have been furnished by the B.D.O., Raninagar, that the candidature of the petitioner was not considered because he had offered his candidature for both the subjects. THE B.D.O., Raninagar, has also expressed his dissenting view. He offered his candidature both for English and History. It appears from a report dated 12th November, 2008, appearing to have been furnished by the B.D.O., Raninagar, that the candidature of the petitioner was not considered because he had offered his candidature for both the subjects. THE B.D.O., Raninagar, has also expressed his dissenting view. There is no government order prohibiting such an offer. In spite thereof candidature of the petitioner was not taken into consideration. THE writ petitioner claims to be a graduate and he is also possessed of the B.Ed degree. THE respondent No.10 who has been chosen by the authority concerned is a graduate simpliciter. Naturally, the grievance of the writ petitioner is that he had better qualification but his candidature was not taken into consideration. THE contention of the writ petitioner, prima facie, has some substance. No justification for the aforesaid activity was brought to my notice by the state authority. In the premises, this writ petition is disposed of by directing the respondent No.2 to consider the case of the writ petitioner and to offer him appropriate relief in the event the contention of the petitioner is upheld by him. This exercise must be completed within eight weeks from the date of communication of this order. Needless to mention that the respondent No.2 shall give an opportunity of hearing to all the affected parties. He shall afford them an opportunity to adduce evidence and thereafter he shall decide the matter in accordance with law. This writ petition is, thus, disposed of. There will be no order as to costs. Let urgent xerox certified copy of this order, if applied for, be delivered to the learned counsel, for the parties, upon compliance of all usual formalities." 4. IN compliance with the order of this Court dated May 22, 2009 the District Magistrate and District Nodal Officer gave the impugned decision. IN his decision he recorded as follows: "IN application register for both the posts of English and History Samprasaraks the name of the petitioner i.e. Samsul Alam was registered in Sl.No.5 and Sl.No.2 by the Secretary Amjad Molla of the Managing Committee of Narendrapur MSK and the petitioner applied for both the posts on 18.03.2008. IN his decision he recorded as follows: "IN application register for both the posts of English and History Samprasaraks the name of the petitioner i.e. Samsul Alam was registered in Sl.No.5 and Sl.No.2 by the Secretary Amjad Molla of the Managing Committee of Narendrapur MSK and the petitioner applied for both the posts on 18.03.2008. But the scrutiny Committee which was formed for the engagement procedure of Samprasaraks in MSK by the Managing Committee of the said MSK rejected the candidature of the petitioner because he had offered his candidature for both the subjects. There is no government order prohibiting such an offer in spite thereof candidature of the petitioner was not taken into consideration." The question is whether the private respondent really applied for both the posts. This question of fact requires a close examination, for the petitioner’s specific case is that though the private respondent did not apply for both the posts, presumably because of the prima facie view of this Court expressed in the order dated May 22, 2009 that there was no prohibition against a candidate applying for both the posts, the District Magistrate and District Nodal Officer gave a totally perverse decision. 5. MR. Jahan appearing for the petitioner, producing a copy of the private respondent’s W.P.No. 6473 (W) of 2008 and relying on p.33 thereof, and also relying on a copy of the private respondent’s original application submitted in response to the employment notice, produced by counsel for the State, has submitted that this is a clear case of commission of a fraud on the Court by the private respondent. MR. Sengupta appearing for the State, producing copies of the original records including a copy of the private respondent’s original application, and closely examining the copy of the application produced by the private respondent with his W.P.No.6473(W) of 2008, has also submitted that since fraud unravels everything, the decision of the District Magistrate and District Nodal Officer who failed to detect the fraud cannot be sustained. MR. Alam appearing for the private respondent has submitted that actually the private respondent submitted two separate applications for the two posts. 6. AS noted hereinbefore, there was no prohibition against a candidate applying for both the posts. MR. Alam appearing for the private respondent has submitted that actually the private respondent submitted two separate applications for the two posts. 6. AS noted hereinbefore, there was no prohibition against a candidate applying for both the posts. Accordingly, even if a candidate applied for both the posts submitting one application, perhaps, his candidature could not be rejected on the grounds that he did not submit separate applications offering his candidature for both the posts. It is evident from the order of this Court dated May 22, 2009 that this Court proceeded on a prima facie view that the private respondent had applied for both the posts of History Samprasarak and English Samprasarak, and that his candidature had been rejected on the grounds that he applied for both the posts. In his W.P.No.6473(W) of 2008 the private respondent asserted that he was producing therewith a copy of his application dated March 18,2008 " for the post of sikhsha samprasarak in History." Relevant part of the copy of the application he produced with the WP is quoted below: "In response to your advertisement in the Notice Board of your M.S.K. dated on History 10.03.08 inviting applications for the post of siksha samprasark in English in your institution. I beg to offer myself as a candidate for the same post and Furnished the following particulars in support of my candidature." 7. IT is, therefore, evident that the private respondent calculatedly produced with his W.P.No.6473(W) of 2008 a fabricated copy of his application dated March 18,2008; and that the produced copy was materially different from his original application dated March 18,2008 produced by counsel for the State. In his W.P.No. 6473(W) of 2008 the private respondent did not state a case that he had applied for both the posts of History Samprasarak and English Samprasarak. On the contrary, by producing a fabricated copy of his application dated March 18,2008 he wanted to make out a case that he had applied only for the post of History Samprasarak; and that his candidature had been wrongfully cancelled. These facts were not brought to the notice of the Court that expressed a, prima facie, view in the order dated May 22,2009 that he had applied for both the posts of History Samprasarak and English Samprasarak. 8. These facts were not brought to the notice of the Court that expressed a, prima facie, view in the order dated May 22,2009 that he had applied for both the posts of History Samprasarak and English Samprasarak. 8. IT is not the case of the private respondent even today that he applied for both the posts submitting one application or submitting two separate applications. His counsel has made an attempt to make out, at the time of argument, from nothing that he actually applied for both the posts by submitting two separate applications. This is another blatant attempt to perpetuate the fraud. In the copy of the application the private respondent produced with his W.P. No.6473 (W) of 2009 the word "History" was written by hand above the word "English" that was penned through; and the produced copy of the application was not the real copy of the application he had actually submitted on March 18, 2008; it was a fabricated document. 9. HIS original application dated March 18, 2008 was described as an application for the post of History Samprasarak. But in the body of the application he clearly stated that he was applying for the post of English Samprasarak. He did not say that the application was for both the posts of History Samprasarak and English Samprasarak, or that he was applying for both the posts of History Samprasarak and English Samprasarak. The Scrutiny Committee rejected the application recording that he had applied for both the posts. That was not a correct conclusion. As a matter of fact, it was not possible to ascertain from the application for which post the private respondent was actually applying. For this evident ambiguity the application was liable to be rejected. 10. IT is also evident that the Secretary of the MSK wrongfully entered the private respondent’s name in the application register as a candidate for both the posts, when it was impossible to ascertain from his application actually for which post he had applied. Totally ignoring these obvious facts revealed by the original application of the private respondent, the District Magistrate and District Nodal Officer proceeded on the basis that since there was no prohibition against a candidate applying for both the posts, the private respondent’s candidature could not be rejected on the grounds that he had applied for both the posts. Totally ignoring these obvious facts revealed by the original application of the private respondent, the District Magistrate and District Nodal Officer proceeded on the basis that since there was no prohibition against a candidate applying for both the posts, the private respondent’s candidature could not be rejected on the grounds that he had applied for both the posts. The Officer proceeded on the basis of a non-existent fact, and, consequently, recorded a totally perverse finding of fact. The facts noted hereinbefore evidently show that the private respondent not only suppressed the material facts in his W.P.No.6473(W) of 2008, but also produced a fabricated copy of the application, and that he obtained the order dated May 22,2009 by exercising fraud. Quite unfortunately the District Magistrate and District Nodal Officer to whom this Court relegated the parties did not to take sufficient care to examine the facts while deciding the matter. The obvious fraud exercised by the private respondent escaped the Officer’s notice. The Scrutiny Committee was fully justified in rejecting the private respondent’s application dated March 18, 2008. There was no reason to interfere with the petitioner’s selection for the post of History Samprasarak and appointment thereto. 11. FOR these reasons, I set aside the impugned decision, allow the petition and order that the respondents shall treat the petitioner duly appointed to the post of History Samprasarak in the MSK and give him all benefits treating him as continuously in service. No costs.