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2012 DIGILAW 1007 (CAL)

Partha Protim Mitra v. State of West Bengal

2012-11-30

ASHOKE KUMAR DASADHIKARI, Pranab Kumar Chattopadhyay

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JUDGMENT This application has been filed in connection with the appeal preferred from the order dated 14th May, 2012 passed by a learned Judge of this court whereby and whereunder the said learned Judge dismissed the writ petition on merits. 2. Scrutinising the records we find that the District Inspector of Schools (S.E.), Nadia refused to approve the panel prepared for the post of Group ‘D’ (Laboratory Attendant) by the school authority firstly, on the ground that the said school authority did not issue call letters to the candidates through registered post and issued advertisement in the newspaper requesting the eligible candidates to appear at the interview which according to the said District Inspector of Schools, is violative of sub-rule 7(c) of Rule 8 of the West Bengal Schools (Recruitment of Non-teaching Staff) Rules, 2005. 3. A Division Bench of this court in the case of Asok Kumar Malik vs. The State of West Bengal & Ors. (M.A.T. 121 of 2012 with C.A.N. 3267 of 2012) specifically held that sub-rule 7(c) of Rule 8 is procedural and directory in nature since it prescribes the mode and manner of despatching interview letters. The relevant extracts from the aforesaid judgment are set out hereunder: “………………………………Therefore, it cannot be disputed that Sub-Rule 7(a) and (b) are substantive provisions and mandatory in nature conferring right in favour of the candidates whereas Sub-Rule 7(c) of Rule 8 is procedural and directory in nature since it prescribes mode and manner of despatching interview letters…………………………. *** *** *** *** *** *** *** *** The matter can be looked at from another angle. A candidate who has not received the interview letter may lawfully raise a grievance. His grievance in such a case will be for noncompliance of Rule 8(7)(a) or (b), but definitely not for non-compliance of clause (c), since a candidate is concerned with the receipt of interview letter and not with the mode in which it was sent. From this point of view, having regard to the aim of the Rule, Clause (c) of Rule 8(7) though uses the word ‘shall’, is to be held as a directory and not a mandatory provision………………………………………” 4. In the present case, there is no dispute that 95 candidates appeared at the interview held on 20th December, 2008 and Selection Committee prepared a panel. In the present case, there is no dispute that 95 candidates appeared at the interview held on 20th December, 2008 and Selection Committee prepared a panel. It has also been admitted by the learned Advocate of the State-respondents that no complaint was made by any eligible candidate to the effect that the interview letter was not received by him or her. So, in absence of any complaint regarding non-receipt of interview letter, it can be said that the interview letters were despatched to all the candidates and the same were also duly received by the candidates concerned. 5. Therefore, in the present case, requirement of sub-rule 7(c) of Rule 8 has been substantially complied with as is required to be done in respect of a directory provision. 6. The District Inspector of Schools (SE), Nadia also raised another ground for refusing to approve the panel since the school authority did not approve the panel within 15 days from receipt of the said panel from the Selection Committee i.e. within one month from the date of interview. 7. Mr. Bari, learned Advocate representing the appellant-petitioner relied on a decision of the Division Bench of this Court presided over by Justice Satyabrata Sinha (as His Lordship then was) in the case of Nomita Chowdhury vs. The State of West Bengal & Ors. reported in 1999 (2) CLJ 21 wherein the Division Bench upon considering the Full Bench decision of the Patna High Court and also the Supreme Court specifically held that where a statutory functionary is asked to perform a statutory duty within the time prescribed therefor, the same would be directory in nature and not mandatory. The relevant extracts from the aforesaid decision are set out hereunder: “4…………………………………It is well settled principle of law that where a statutory functionary is asked to perform a statutory duty within the time prescribed therefor, the same would be directory in nature and not mandatory………………………………” 8. It is not in dispute that the Selection Committee prepared the panel and the school authority approved the same and forwarded to the District Inspector of Schools for necessary approval. 9. Another Division Bench of this court also considered the identical issue while deciding the matter being M.A.T. 384 of 2010 with C.A.N. 2642 of 2010 [Subrata Mondal vs. The State of West Bengal & Ors.] on 9th April, 2010. 9. Another Division Bench of this court also considered the identical issue while deciding the matter being M.A.T. 384 of 2010 with C.A.N. 2642 of 2010 [Subrata Mondal vs. The State of West Bengal & Ors.] on 9th April, 2010. The relevant extracts from the aforesaid judgment are set out hereunder: “…………………………………In any event, for the laches and/or lapses on the part of the school authorities, empanelled candidates cannot suffer any prejudice specially when the empanelled candidates including the petitioner were not responsible for not forwarding the panel in question to the District Inspector of School (S.E.), Purba Medinipur………………………” 10. In the present case also empanelled candidates cannot suffer any prejudice on account of the laches and/or lapses on the part of the school authorities for not forwarding the panel in question to the District Inspector of Schools (SE), Nadia within time. 11. For the reasons mentioned hereinbefore, the objections raised by the District Inspector of Schools (SE), Nadia for not approving the panel in question for the post of Group ‘D’ (Laboratory Attendant) in the concerned school cannot be sustained and therefore, the decision of the District Inspector of Schools (SE), Nadia as communicated under Memo dated 9th January, 2012 stands quashed. 12. We hereby condone the delay in the matter of forwarding the panel by the Managing committee of the school as a special case and direct the District Inspector of Schools (SE), Nadia to approve the panel in question within two weeks from the date of receipt of this order positively. 13. With the aforesaid observations and directions, we set aside the impugned order under appeal passed by the learned Single Judge and dispose of both the application as well as the appeal upon treating the said appeal as on day’s list. 14. In the facts of the present case, there will be no order as to costs. Let a xerox plain copy of this order duly countersigned by the Assistant Registrar (Court) be given to the learned Advocates of the respective parties on usual undertaking.