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2012 DIGILAW 571 (CAL)

Shyamal Kumar Maity v. STATE OF WEST BENGAL

2012-06-29

PRANAB KUMAR CHATTOPADHYAY, TARUN KUMAR DAS

body2012
JUDGMENT 1. This application has been filed in connection with the appeal preferred from the judgment and order dated 8th January, 2010 whereby and whereunder a learned Judge of this Court dismissed the writ petition filed by the appellants herein on merits. Going through the records we find that pursuant to an interim order passed by the learned Single Judge appellants-petitioners were allowed to appear in the written examination and participate in the selection process for recruitment to the post of Assistant Teachers under the District Primary School Council, Purba Medinipur although the appellants were not sponsored by the Employment Exchange. Ultimately, on 8th January, 2010 the writ petition was finally taken up for hearing by the learned Single Judge and the order impugned under appeal was passed upon relying on the decision of this Court in the case of Tanmoy Ramaya Lahiri & Others vs. The State of West Bengal & Others reported in (2008) 3 Cal. LT 205 HC wherein it has been held that the selection process should be confined only to employment exchange sponsored candidates. Since the petitioners/appellants herein were not sponsored by the employment exchange, learned Single Judge upon relying on the judgement of Tanmoy Ramaya Lahiri & Others (supra) held that the said petitioners had no right to appear in the written examination in order to participate in the selection process for recruitment to the post of Assistant Teacher under the District Primary School Council, Purba Medinipur. 2. Mr. Bari, learned counsel representing the appellants referred to and relied on a judgment of the Division Bench of this Court passed on 29th September, 2011 in the case of Biswajit Das & Others vs. State of West Bengal & Others [M.A.T. 237 of 2010] wherein the said Division Bench considered the decision of the earlier Division Bench in the case of Tanmoy Ramaya Lahiri & Others (supra) and also another judgment of the Division Bench in the case of Manick Ch. Das vs. State of West Bengal & Others reported in 2007 (2) CHN 761 . Das vs. State of West Bengal & Others reported in 2007 (2) CHN 761 . The Division Bench of this Court in the case of Biswajit Das & Others (supra) specifically relied upon the decision of the Supreme Court in the case of Excise Superintendent, Malkapatnam vs. K.B.N. Visweshwara Rao reported in (1997) (6) SCC 216 and also the earlier judgment delivered by the Division Bench of this Court in the case of Manick Ch. Das (supra). In the case, of Manick Ch. Das (supra) the Division Bench considered the Full Bench judgment of this Court in the case of Rabindra Nath Mahata vs. State of West Bengal & Others reported in 2005 (3) CHN 337 and also the decisions of the Supreme Court in the case of Excise Superintendent, Malkapatnam (supra) and Arun Kumar Nayek vs. Union of India & Others reported in (2006)8 SCC 111 . 3. The Division Bench of this Court in the case of Biswajit Das & Others (supra) also specifically considered the earlier Division Bench judgment of this Court in the case Manick Ch. Das (supra) and the Full Bench judgment of this Court in the case of Rabindra Nath Mahata (supra) apart from the Supreme Court judgment in the case of Excise Superintendent, Malkapatnam (supra) and Arun Kumar Nayek (supra). 4. Mr. Bhattacharya, learned advocate representing the District Primary School Council, Purba Medinipur, referred to an order passed earlier by the Division Bench of this Court on 15th February, 2010 in AST 44 of 2010 with ASTA 45 of 2010 wherein the Division Bench following the decision of the earlier Division Bench in the case of Tanmoy Ramaya Lahiri & Others (supra) dismissed the appeal. The aforesaid order was not a judgement and cannot have any binding effect since the same was passed following the judgement of the Division Bench in the case of Tanmoy Ramaya Lahiri (supra) which has been subsequently not followed by the Division Bench in the case of Biswajit Das & Others (supra). The aforesaid order was not a judgement and cannot have any binding effect since the same was passed following the judgement of the Division Bench in the case of Tanmoy Ramaya Lahiri (supra) which has been subsequently not followed by the Division Bench in the case of Biswajit Das & Others (supra). The judgement of this Court in the case of Tanmoy Ramaya Lahiri & Others (supra) cannot have any binding precedent in view of the pronouncement of the Full Bench judgement of this Court in the case of Rabindra Nath Mahata (Supra) as well as several other decisions of the Supreme Court which have been specifically referred to and relied upon in the case of Biswajit Das & Others (supra). 5. Considering the aforesaid Supreme Court judgment and Full Bench judgment of this Court, the Division Bench of this Court in the case of Biswajit Das & Others (supra) held as under: .......It appears that Division Bench in case of Tanmoy Lahiri's case did not take note of the aforesaid binding value on the issue involved. We think that ignoring the consistent views of the Supreme Court even that of Larger Bench, relying on a smaller Bench of the Supreme Court any issue decided by the law Court is not a binding precedent. ..........We therefore of the view that the learned Trial Judge should have taken note of the other decisions, of the Supreme Court but had chosen to follow the Division Bench judgment on this particular point. The learned Trial Judge could have accepted the judgment of the Supreme Court Larger Bench and Full Bench of this Court to distinguish decision in Tanmay Lahiri case. 6. Therefore now it can be said without any hesitation that the decision of the Division Bench of this Court in Tanmoy Ramaya Lahiri (supra) is no longer good law. 7. The learned Single Judge undisputedly dismissed the writ petition upon placing reliance only on the Division, Bench judgement of this Court in the case Tanmoy Ramaya Lahiri (supra). Since the law declared in the aforesaid case of Tanmoy Ramaya Lahiri (supra) cannot be held to be a good law any longer, the decision of the learned Single Judge cannot be sustained in the eye of law and the same is therefore set aside. 8. Since the law declared in the aforesaid case of Tanmoy Ramaya Lahiri (supra) cannot be held to be a good law any longer, the decision of the learned Single Judge cannot be sustained in the eye of law and the same is therefore set aside. 8. The respondents particularly the authorities of the District Primary School Council, Purba Medinipur are directed to take necessary steps for appointment of only those petitioners/appellants as Primary School Teachers who are already empanelled and secured marks above the cut of marks secured by the last empanelled candidate. Since the considerable time has already lapsed, the respondent authorities are directed to expedite the process of appointment of the eligible appellants in terms of this order so that the eligible appellants-petitioners are appointed to the post of teacher in terms of this order at an early date but positively within a period of six weeks from the date of communication of this order. 9. Needless to mention that the Director of School Education shall expedite the process of approval in respect of the eligible appellants after receiving the relevant records from the District Primary School Council, Purba Medinipur so that the selected candidates can be appointed Within the stipulated time as mentioned hereinbefore. 10. With the aforesaid observations and directions, both the application as well as the appeal stand allowed upon treating the appeal as on day's list. In the facts of the present case, there will be no order as to costs. Urgent photostat certified copy of this order, if applied for, be supplied to the parties on priority basis.