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2012 DIGILAW 351 (CAL)

Suhrid Gopal Roy v. STATE OF WEST BENGAL

2012-04-20

INDIRA BANERJEE

body2012
JUDGMENT 1. This writ petition is directed against the failure and/or refusal of the concerned respondent to confirm the petitioner in service as Assistant Primary School Teacher under South 24 Parganas District Primary School Council. 2. Pursuant to a requisition placed by the South 24 Parganas District Primary School Council, the petitioner was sponsored by the Employment Exchange as a candidate of the exempted category of ex-census enumerators. 3. A Bio-Data Format No. EC/462 dated 22nd November, 2006 was issued to the petitioner by the Primary School Council. The petitioner duly filled in the Bio-Data Format and submitted the same to the Council. 4. The written examination for appointment of Assistant Primary School Teachers in the District was held on 12th December, 2009. The petitioner was allowed to participate in the written examination and he emerged successful. The petitioner was duly selected and empanelled for appointment. 5. The panel of selected candidates was duly approved by the Director of School Education, Government of West Bengal. It was only after the panel of selected candidates was approved that appointments were made from the said panel. 6. By a letter of appointment being Memo No. Appt/EC/401/5 dated 16th February, 2010 the petitioner was appointed Teacher of Harinayan Nandanpur F.P. Primary School at Joynagar in the Baruipur Sub-Division of South 24 Parganas district. The petitioner was directed to join within one month from the date of issuance of the said letter. 7. The petitioner duly started rendering service with effect from 11th March, 2010. Even after the petitioner had rendered service for months, his appointment was not approved. The salary and allowances of the petitioner were not released. 8. By a letter no. 1693/3 dated 13th September, 2010, the President of the South 24 Parganas District Primary School Council informed the petitioner that the petitioner could not be confirmed as, in terms of the letter of appointment, confirmation of the petitioner was subject to final verification of all testimonials by the South 24 Parganas District Primary School Council. 9. Selection, appointment or confirmation subject to final verification of all testimonials necessarily means selection, appointment or confirmation, as the case may be, subject to verification of the correctness of claims made by the candidate in his application or otherwise. 9. Selection, appointment or confirmation subject to final verification of all testimonials necessarily means selection, appointment or confirmation, as the case may be, subject to verification of the correctness of claims made by the candidate in his application or otherwise. Thus, before a selected candidate is appointed and/or before a candidate appointed is confirmed, the Primary School Council might verify the genuineness of the documents furnished by the candidate. For example, a candidate might be selected or even appointed on the basis of his claim of having the requisite educational qualification. However, if at any subsequent stage, it is found that such claim is based on a false or a forged certificate or if there are no documents at all to support the claim the selection and/or appointment may be cancelled. Similarly if a candidate is awarded marks for co-curricular activities on the basis of a certificate of the District Sports Authority which is found to be forged and/or fabricated and/or procured, upon verification, the selection and/or appointment might be cancelled. Inability to produce certificates that are required to support a claim to marks for academic qualifications or co-curricular activities may render selection or appointment liable to cancellation. However, decision taken on the basis of information furnished, that is not false, cannot be reviewed. 10. It appears that in purported exercise of power conferred under Sub-Rule 2 of Rule 10 of the West Bengal Primary School Teachers’ Recruitment Rules, 2001 the Director of School Education, West Bengal directed the Chairman South 24 Parganas District Primary School Council to rectify the panel after deduction of one mark that was alleged to have been erroneously awarded to the petitioner. Thereafter the petitioner was verbally directed not to attend the school. 11. Rules 10(1) and 10(2) of the Recruitment Rules of 2001 are set out hereinbelow: “10.Approval of the panel.—(1) The panels, after being passed in the meeting of the Council, shall be sent in triplicate to the Director with all necessary papers for approval. (2) The Director or his authorized officer on receipt of such panels passed by the Council shall satisfy himself that the rules and the procedures in this respect have been followed and may approve the panel. (2) The Director or his authorized officer on receipt of such panels passed by the Council shall satisfy himself that the rules and the procedures in this respect have been followed and may approve the panel. Such approval, if made, shall be communicated to the Council immediately, provided that if in the opinion of the Director, there are defects or mistakes in the panel in observing the rules and the procedure, he shall point out the defects and mistakes and ask the Council to rectify the defects and mistakes and to submit the panels to him with correction for approval.” 12. Power under Rule 10(2) can be exercised before the panel is approved, but not afterwards, after the panel is approved and candidates from the panel are appointed. 13. The short question involved in this writ petition is whether a candidate can, after selection and appointment upon approval of the panel, be removed on the purported ground that he had been awarded one extra mark for co-curricular activity erroneously and thereby obtained an unfair advantage. The answer to the aforesaid question necessarily has to be in the negative. 14. Once a validly appointed Selection Committee awards marks upon interpretation of the Rules, the Director of School Education cannot sit in appeal over the decision of the Selection Committee. Such an appointment is final and binding, more so, when the panel has been approved by the Director of School Education and appointment made. 15. It may be open to rectify mistakes in allocation of marks, but not after a candidate is appointed and has started rendering service. Such mistake would necessarily have to be rectified before appointment is actually made. After the candidate is appointed, the candidate cannot be removed on ground alone of the candidate having mistakenly been awarded an extra mark. 16. Mr. Majumdar, appearing on behalf of the Primary School Council, referred to Rule 9 of the Rules Regulating the Recruitment and Leave of Teachers of Primary Schools in West Bengal of 1991 and to Rule 9 of the West Bengal Primary School Teachers Recruitment Rules promulgated vide Notification No.57-SE(Pry) 10R-1/91 dated 15.1.2002 which are hereinafter referred to, for convenience, as the 1991 Rules and the 2001 Rules. 17. 17. As per the said 1991 Rules candidates were to be awarded 65 marks for academic qualification, 20 marks for training, 10 marks for interview and 5 marks for co-curricular activity. 18. Rule 9A(vi) of the 1991 Rules provided that in awarding marks for co-curricular activities, one mark was to be credited for each of the certificates mentioned below: (a) A certificate to the effect that the candidate represented the District in State level games, sports, issued by a District level sports authority, (b) A certificate that the candidate had shown excellence in cultural activities representing the district in State level competitions issued by District level authority, (c) Minimum ‘A’ certificate of National Cadet Corps, (d) A certificate of successful participation in literating the illiterates by a District level officer and, (e) A Diploma and certificate in music, arts and craft on completion of a course of at least one years duration from any University/recognized Government institutions. 19. The proviso to the aforesaid Rule provided that the maximum marks to be credited could not exceed 5. The aforesaid Rule could be interpreted to mean that marks could only be awarded for the certificates mentioned subject to maximum of 5 marks. The aforesaid Rule could also be interpreted to mean that marks might be allotted, at the discretion of the Selection Committee for co-curricular activities provided, of course, the maximum did not exceed 5. However, for each of the certificates specified, one mark would have to be allotted, subject to a maximum of five marks. 20. The 1991, Rules have been replaced by the West Bengal Primary School Teachers Recruitment Rules 2001. As per the 2001 Rules, 65 marks are to be awarded for academic qualifications, 22 marks for training and 3 marks for co-curricular activities as prescribed in Clause 9(2)(f), which is set out herein below: “(f) in awarding marks for co-curricular activities one mark shall be credited for,- (i) a certificate that he represented the district in State level games or sports, issued by West Bengal School Sports Association. (ii) the ‘A’, ‘B’, or ‘C’ level certificate of National Cadet Corps : Provided that the maximum of such marks to be credited shall not exceed three.” 21. Clause 9(2)(f) of the 2001 Rules could be interpreted to mean that marks could only be awarded for the certificates specified in the said clause, up to a maximum of 3 marks. (ii) the ‘A’, ‘B’, or ‘C’ level certificate of National Cadet Corps : Provided that the maximum of such marks to be credited shall not exceed three.” 21. Clause 9(2)(f) of the 2001 Rules could be interpreted to mean that marks could only be awarded for the certificates specified in the said clause, up to a maximum of 3 marks. The said Rule could also be interpreted to mean that a certificate from the West Bengal School Sports Association certifying that the candidate had represented the district in State level games or sports entitle a candidate to one mark as of right. Similarly ‘A’, ‘B’ or ‘C’ level certificate would entitle the candidate to one mark, leaving balance one which could be awarded by the Selection Committee at its discretion for co-curricular activities other than those specified. When a Rule is ambiguous and/or capable of more than one interpretation and the Selection Committee proceeds on the basis of an interpretation that is possible, the selection cannot be interfered with on the ground that the other interpretation is better. 22. If the Selection Committee has proceeded on the basis of its own interpretation of the Rule and awarded one mark, that mark cannot be deducted after appointment is made. In this case, the original application form submitted by the petitioner was produced in Court. The extra one mark allegedly awarded for cu-curricular activity was not by reason of any false statements or misrepresentation made by the petitioner. The appointment could not have been cancelled on the ground of over marking. 23. However, in a case where a candidate who is not eligible at all is given appointment by reason of some error, the error may be rectified and the appointment may be cancelled, for example, where the candidate does not fulfil the mandatory eligibility requirement. 24. Mr. Majumdar, argued that the petitioner was over-aged. Reference was made by Mr. Majumdar to Rule 6 of the Rules of 2001, in terms whereof a candidate is required to be a citizen of India not below 18 years of age and not above 40 years of age. The statutory rules are obviously binding. This may not have been a ground shown for cancelling the appointment of the petitioner. However, this Court cannot allow the appointment of the petitioner to stand, if he was actually over-aged, as contended by Mr. Mazumdar. 25. The statutory rules are obviously binding. This may not have been a ground shown for cancelling the appointment of the petitioner. However, this Court cannot allow the appointment of the petitioner to stand, if he was actually over-aged, as contended by Mr. Mazumdar. 25. The short question is whether there is any relaxation of age for candidates of the exempted category of ex-census enumerators and if so, what is the upper age limit. 26. Mr. Maity referred to certain Government Circulars of the Directorate of Employment/Labour Directorate, in terms whereof, candidates are to be registered with the Employment Exchange up to the age of 45 years. Those circulars are of general application for registration for all kinds of employment and in any case do not provide for age relaxation for appointment. Candidates of the exempted ex-census category may be registered with the Employment Exchange till they attain the age of forty-five years and thereafter be appointed to those posts for which there is higher upper age limit. 27. When the statutory 2001 Rules stipulate an upper age limit of 40 years, for appointment as Primary School Teachers, it is not understood how the upper age limit can be relaxed by general Government Orders of the Labour/Employment Departments, which do not have any statutory force and are contrary to express statutory Rules. 28. Placing reliance on circulars of the Labour/Employment Directorate, relating to registration with the Employment Exchange it was sought to be argued on behalf of the petitioner that the upper age limit for registration was 45 years, but there was no upper age limit for appointment. So far as this category of candidates is concerned, there are instances where candidates over 59 years old have been given appointment. 29. Unfortunately, there can be no equality to an illegality. Nor can there be any claim to equality where an action is taken pursuant to an order of Court. 30. It is absurd to contend that there is no upper age limit at all. This would, in other words, mean that a candidate could be sponsored even a month or two before attaining the age of retirement and retire soon after joining the post in question. 31. It is true, that Scheduled Caste and Scheduled Tribe candidates enjoy a higher upper age limit. However, this relaxation is provided by statute and/or statutory Rules and not merely by Government Orders. 31. It is true, that Scheduled Caste and Scheduled Tribe candidates enjoy a higher upper age limit. However, this relaxation is provided by statute and/or statutory Rules and not merely by Government Orders. Government Orders may be passed in furtherance of the provisions of statutory Rules. No Government Order can be passed, which is contrary to the statutory service Rules. Even in case of Scheduled Caste and Scheduled Tribe candidates the upper age limit is 43 years. 32. The Chairman of the Primary School Council may review the case of the petitioner in the light of the observations made above within one month from the date of communication of this order. If, however, the appointment of the petitioner is not sustained on the ground of the petitioner being over-aged, similar action shall be taken against all candidates who have crossed the stipulated age limit. 33. The petitioner shall, however, be paid salary and allowances for the period during which he has rendered service along with interest at the rate of 6% from 7th day of the month following the month during which service was rendered. 34. The writ petition is disposed of with the above directions/observations.