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2014 DIGILAW 1162 (CAL)

Piyas Biswas v. State of West Bengal

2014-12-09

DIPANKAR DATTA

body2014
JUDGMENT : Dipankar Datta, J. This writ petition is at the instance of a teacher who finds himself in deep waters, for, what I perceive is a combination of lack of enterprise and promptitude on his part and obstinacy on the part of his adversary. Despite being recommended by the West Bengal Regional School Service Commission (Southern Region) (hereafter the Regional Commission) for being appointed as an Assistant Teacher in Bengali (H/PG) (hereafter the said post) in Shyam Bazar A.V. School (hereafter the school), the petitioner has been refused joining by the authorities of the school, that is, the respondents 7 and 8 on the ground that he did not report for joining within the time limit stipulated in the offer of appointment. Feeling aggrieved thereby, this writ petition dated January 21, 2014 has been presented seeking an order on the respondents 7 and 8 to allow the petitioner join the said post. 2. Facts leading to presentation of the writ petition are these. The petitioner is an approved teacher, who has been serving Sasati Nahala Abinash High School, P.O. Uluberia, District Howrah since September 1, 2008. Facing difficulty in commuting between Sonarpur (place of residence) and Uluberia (the workplace), the petitioner offered his candidature for fresh appointment by responding to an advertisement issued in connection with 12th Regional Level Selection Test, 2011 (hereafter the RLST). On the basis of its result, the Regional Commission recommended the petitioner for appointment in the school vide memo dated October 28, 2013. While mentioning that the recommendation would remain valid for 90 (ninety) days from date of its dispatch through post, such memo required the authorities of the school to issue letter of appointment in favour of the petitioner within 7 (seven) days from date of its receipt allowing him to join within the stipulated period, in terms of Rule 17(4) of the West Bengal School Service Commission (Selection of Persons for Appointment to the Post of Teachers) Rules, 2007 (hereafter the 2007 Rules). The Headmaster of the school, respondent 8, issued letter of appointment dated November 9, 2013 to the petitioner with a request to join within 7 (seven) days of receipt thereof. It is the pleaded case of the petitioner that he received the letter of appointment on November 12, 2013. The Headmaster of the school, respondent 8, issued letter of appointment dated November 9, 2013 to the petitioner with a request to join within 7 (seven) days of receipt thereof. It is the pleaded case of the petitioner that he received the letter of appointment on November 12, 2013. By a letter dated November 21, 2013, the petitioner prayed for extension of joining time by a month, instead of 7 (seven) days. The ground cited for extension was that the petitioner had been entrusted with various types of responsibilities related to Test examination of the students at his present workplace and that it would be difficult for him to ignore such responsibilities. Reference was made by the petitioner to the fact that the recommendation was valid for 90 (ninety) days. The Headmaster allegedly did not respond. It is further alleged that when the petitioner had been to the school on December 17, 2013, he was disallowed joining. A representation dated December 31, 2013 followed, addressed to the Chairman of the Regional Commission. The petitioner sought to apprise him of the rude behaviour of the Headmaster on first interaction and while expressing apprehension as to what was in store for the future if he were to serve the school as a teacher, made a request to appoint him in any other suitable vacancy. Such representation, however, yielded no result. 3. Counsel for the school argued that the period of joining as mentioned in the appointment letter is firm and inflexible and since the petitioner did neither join within 7 (seven) days of its receipt nor prayed for extension of joining time within November 19, 2013, the Headmaster was under no obligation to allow the petitioner to join after expiry of the stipulated period. 4. It is undeniable that not only when the petitioner prayed for extension of joining time but even on the date of presentation of this writ petition, the recommendation made in his favour by the Regional Commission did not lapse. It is equally undeniable that the petitioner did not seek extension of joining time within 7 (seven) days of receipt of the letter of appointment. It is equally undeniable that the petitioner did not seek extension of joining time within 7 (seven) days of receipt of the letter of appointment. In such circumstances, the question that arises for decision on this writ petition is whether the period of 7 (seven) days stipulated in the letter of appointment is firm and inflexible, as argued by counsel for the school, or did the school falter in not extending the time limit to accommodate the petitioner so long the recommendation was valid. 5. To appreciate the argument of counsel for the school, Rule 17 of the 2007 Rules dealing with recommendation of candidates for appointment as teachers has to be considered. Sub-rules (3), (4) and (5) of Rule 17 thereof read as follows: "(3) A recommendation letter shall remain valid for a period of ninety days from the date of its dispatch through post: Provided that the Regional Commission may, if it thinks expedient to extend the validity of the recommendation beyond the period of ninety days for any reasonable cause, for the reasons to be recorded in writing, extend the period of validity of such recommendation letter for a further period not exceeding sixty days. (4) The concerned School or Madrasah authority shall, on the basis of the recommendation of the Regional Commission, issue the letter of appointment to the candidate through registered post with acknowledgement due and upon receipt of appointment letter from the concerned school or Madrasah authority the candidate shall join the post within the stipulated period as mentioned in the appointment letter : Provided that if the School or Madrasah authority has any doubt about the vacancy position, it shall intimate the same to the Regional Commission, (5) If - (a) a candidate refuses to accept his allotment of post during counselling for the post of Teacher, or (b) the Regional Commission gets information from any school or Madrasah from the District Inspector of Schools (Secondary Education), or otherwise, that a candidate recommended for appointment has not accepted the offer of appointment within the stipulated period, or (c) such a candidate refuses to accept appointment, or (d) on further scrutiny it appears that the candidate has misrepresented the facts, The Regional Commission may do away with his name from the panel and recommend the name of a candidate from the waiting list strictly in order of merit within the validity period of the panel and waiting list." 6. It would appear that neither sub-rule (4) specifies a particular time limit for joining nor empowers the Regional Commission to impose any time-frame for joining; what it ordains is that the recommended candidate has to join within the period stipulated in the appointment letter. According to the scheme of the 2007 Rules, it is for the appointing authority to stipulate the time limit in the offer of appointment within which the recommended candidate ought to join. It is axiomatic, bearing in mind the fact that a recommendation is valid for 90 (ninety) days from the date of its dispatch by post, that the time limit allowable for joining must be reasonable. Here, the Regional Commission in the recommendation letter indicated that 7 (seven) days time ought to be allowed for joining. However, power to prescribe such period is not statutorily conferred on it. In such circumstances, what would be a reasonable time limit must depend upon a proper construction of the 2007 Rules. The West Bengal School Service Commission Act (hereafter the Act) and the rules/regulations framed thereunder do not bar an approved teacher from applying for a fresh recommendation and appointment. In such circumstances, what would be a reasonable time limit must depend upon a proper construction of the 2007 Rules. The West Bengal School Service Commission Act (hereafter the Act) and the rules/regulations framed thereunder do not bar an approved teacher from applying for a fresh recommendation and appointment. If such a teacher is selected and his name is recommended for appointment, he must have sufficient time at his disposal to wind up his responsibilities at his workplace and to take charge of his new assignment. If indeed the letter of recommendation is construed as having conferred unfettered right on the appointing authority to set the time for joining, which is rigid and inflexible, the same is likely to produce disastrous result. In a given case, if the appointing authority has some reservation about a recommended candidate and is disinclined to take him as a teacher, 7 (seven) days time stipulated for joining may not be sufficient and if the recommended candidate fails to join, the recommendation could effectively be rendered a dead letter. That would defeat the very object of the Act. A construction producing absurd results has to be eschewed and the statute has to be read in a manner that advances or promotes the object of the legislation, i.e. the Act. Proviso to sub-rule (3) of rule 17 confers power on a Regional Commission to extend the validity of a recommendation, if the situation so warrants. It would be perpetration of violence to the power of the Regional Commission (to extend the validity of the recommendation in a given case where it thinks fit), if argument of the nature advanced by counsel for the respondents 7 and 8 is accepted that a candidate loses the right of joining if he fails to join within the period stipulated in the letter of appointment. The time limit to be stipulated for joining has to be reasonable, if not co-terminous with the validity of the recommendation and any arbitrary stipulation of time limit has to be denounced. If indeed a recommended candidate does not join within the stipulated period of 7 (seven) days, there was no bar for the appointing authority to inquire from the Regional Commission as to whether an extension could be granted to the petitioner or not. If indeed a recommended candidate does not join within the stipulated period of 7 (seven) days, there was no bar for the appointing authority to inquire from the Regional Commission as to whether an extension could be granted to the petitioner or not. It has also not been submitted on behalf of the respondents 7 and 8 that they informed the Regional Commission of the fact that the petitioner did not join within 7 (seven) days. The reason for taking recourse thereto has not been explained. 7. Furthermore, it cannot be lost sight of that the Regional Commission has no right to do away with the name of an empanelled candidate, who has been recommended, without any one of the four events mentioned in clauses (a) to (d) of sub-rule (5) happening. Here, although the petitioner while praying for extension of time to join by his letter dated November 21, 2013 did not in so many words express that the offer of appointment was being accepted by him, the petitioner did not either show any sign of refusal to accept the appointment offered to him. On the contrary, his intention was clear. He wanted to discharge his responsibilities as a teacher at his workplace and thereupon join the school. Rather than this being considered as an unusual step, he appears to be perfectly justified in his approach. That apart, he never misrepresented facts. Thus, question of doing away his name from the panel does not and cannot arise. It could never have been the intention of the framers of the rule that a candidate would find himself in a precarious situation where he is unable to join despite the recommendation issued in his favour subsisting, and despite his name figuring in the panel. If the statute were to provide a specific time limit for joining and the consequence of non-joining, it would require serious consideration as to whether such time limit ought to be construed as rigid and inflexible or not. The statute being silent on this point, it has to be held that an appointing authority has no right to insist for joining within the stipulated period, and if within the validity of the recommendation request is received for extension of joining time, such request cannot be spurned only on the ground of expiry of the period stipulated in the letter of appointment. Acceptance of the argument of the counsel for the respondents 7 and 8 would encourage unscrupulous people to take advantage of a slip in the 2007 Rules (of not making provision that in appropriate cases during the validity of the recommendation made by a Regional Commission, joining time may be extended), breed corruption to achieve vested interest and throw the system of appointment of candidates through the machinery envisaged by the Act out of gear. 8. For the reasons aforesaid, refusal of the respondents 7 and 8 to allow the petitioner joining in the school is declared illegal. The petitioner is permitted to join the school by January 15, 2015 failing which the recommendation issued in his favour by the Commission shall stand lapsed and he shall have no further right to take the benefit of his selection in pursuance of the RLST. The writ petition is thus allowed, leaving the parties to bear their own costs. Urgent photostat certified copy of this judgment and order, if applied for, shall be furnished to the applicant at an early date.