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2014 DIGILAW 5 (CAL)

Arup Kumar Ghosh v. State of West Bengal

2014-01-08

HARISH TANDON

body2014
Judgment : Respondents nos 1, 2, 3 and 6 seeks extension of time to file affidavit-in-opposition. Although affidavit-in-opposition was directed to be filed by 17th December 2013 but because of unavoidable circumstances, the same could not be affirmed within time and in fact the same has been affirmed on 2nd January 2014. As prayed for, time to file affidavit-in-opposition is extended. Affidavit-in-opposition filed today be kept with the record. Copy of the opposition is served on the learned advocate appearing for the petitioner in Court today. The learned advocate for the petitioner submits that his client does not intend to file any reply and prays for taking up of the writ application on the basis of the pleadings made in the writ application as well as in the opposition filed today. The petitioner has challenged two memos dated 22nd February 2013 and 8th April 2013 by which the petitioner is reverted to the post of Samprasarak from the post of Mukhya Samprasarak and the difference of the honorarium, paid to the petitioner, was sought to be recovered. The State Government decided to open Madhyamik Shiksha Kendra at the elementary level and launched Madhyamik Shiksha Karmasuchi, in the form of Guidelines, which includes various aspects relating to administration, management and running of the Madhyamik Shiksha Kendra as well as appointments. Paragraph 19 of the said Guidelines provides that every Madhyamik Shiksha Kendra shall have one Mukhya Samprasarak/Samprasarika and five other Samprasaraks/ Samprasarikas of which one Samprasarak/Samprasarika, including Mukhya Samprasarak/Samprasarika, should be there for teaching the following subjects: a. Life Science b. Physical Sciences including Mathematics c. English d. Mother Language e. History including Social Science f. Geography including Social Science. Paragraph 22 of the said Guidelines further provides engagement of the Samprasaraks/ Samprasarikas on contractual basis. Paragraph 21 of the said Guidelines, which speaks of the qualification of Samprasaraks/Samprasarikas, was altered and/or superceded by a Government Order dated 16th March 2004 as eligible candidates were not available. By the said Government Order, the conditions, relating to qualification, was relaxed and the candidates above the age of 40 years having honours degree with B.Ed., or post graduate degree in any of the subjects, mentioned in paragraph 19 of the said Guidelines, with B.Ed. degree shall be appointed on contractual basis. It is undisputed that the petitioner has a post graduate degree in History subject along with B.Ed. degree. degree shall be appointed on contractual basis. It is undisputed that the petitioner has a post graduate degree in History subject along with B.Ed. degree. The petitioner was discharging his duty as Mukhya Samprasarak on contractual basis, which was renewed from time to time. By Government Order dated 23rd April 2010, the conditions, embodied in paragraph 22, was revised and engagement was made imperative; to be done on the basis of the written test and interview of the candidates by the Recruitment Committee. Paragraph 6 of the said Government Order takes care of the existing appointees who were not obliged to go for written test and interview but subject to verification of the appropriate authority of their current engagement as per the existing guidelines. It was subsequently found that the engagement of the petitioner, to the post of Mukhya Samprasarak, was shown in English subject instead of History and the petitioner made a representation to the authority for issuance of the engagement letter after correcting such discrepancy. By memo dated 16th March 2012, issued by the Panchayet Samity, the petitioner was communicated that there cannot be two Samprasaraks in the same subject and contemplated to suspend disbursement of the honorarium until the said subject specification is confirmed by the Sthayee Samity. The said order was assailed before this Court in W.P. 6627 (w) of 2012 which came to be disposed of on 13th March 2013 by directing the Sthayee Committee to confirm the specification under reference within six weeks from the date of communication of that order. Subsequently, on 22nd February 2013 the Zilla Parishad issued a memo withdrawing suspension of the disbursement of the honorarium and reverting the petitioner from the post of Mukhya Samprasarak to Samprasarak. By a subsequent memo dated 12th April 2012, the authorities intended to recover the difference of the honorarium paid to the petitioner as Mukhya Samprasarak. The sheet anchor of the argument before this Court is that the impugned memos were issued unilaterally without affording an opportunity of hearing. According to the petitioner the Guidelines does not suggest that there cannot be two Samprasaraks under the same subject and the decision of the authorities is contrary to the aforesaid guidelines. The sheet anchor of the argument before this Court is that the impugned memos were issued unilaterally without affording an opportunity of hearing. According to the petitioner the Guidelines does not suggest that there cannot be two Samprasaraks under the same subject and the decision of the authorities is contrary to the aforesaid guidelines. It is further submitted that the petitioner has been discharging his duty as Mukhya Samprasarak since 2004 uninterruptedly and without any break and by one stroke of pen, more particularly without granting any opportunity of hearing, he cannot be penalised by reverting to the post of Samprasarak and recovering the differential amount. The respondent authorities, however, submits that in terms of the guidelines, there cannot be more than one Samprasarak imparting education in the same subject. It is further submitted that the petitioner himself has made a representation indicating the discrepancies and the authorities, after taking into consideration the amended guidelines; which sees the light in the year 2010, held that the petitioner is not eligible to hold the post of Mukhya Samprasarak. The respective counsels have laid foundation of their submissions on the basis of the guidelines issued by the Government of West Bengal relating to engagement of Samprasarak/Samprasarika Mukhya Samprasaraks/ Samprasarikas. The qualification, as enshrined in paragraph 21 of the Guidelines provides that a person can be engaged as Samprasarak /Samprasarika provided he or she is at least 40 years of age, resident of the same gram panchayet where the MSK is located or the adjacent gram panchayet or municipality in the event of non-availability of qualified person, should be graduate from a recognised university while preference shall be given to the candidates having honours/post graduate degree. In case of Mukhya Samprasarak /Samprasarika retired Head Master/Head Mistress or at least a retired teacher of a High/Junior High School with post graduate/honours decree and the candidates having B.Ed. degree shall be given preference. Paragraph 19 of the said Guidelines relates to the number of Siksha Samprasarak /Samprasarika with one Mukhya Samprasarak /Samprasarika, in each MSK teaching the subjects, as indicated in preceding paragraphs. On a conjoint reading of the aforesaid provisions, my endeavour has failed to find out that the appointments cannot be made to the post of Samprasarak/Samprasarika with more than one candidate teaching in the same subject. On a conjoint reading of the aforesaid provisions, my endeavour has failed to find out that the appointments cannot be made to the post of Samprasarak/Samprasarika with more than one candidate teaching in the same subject. The qualification for engagement to the aforesaid post does not restrict engagement to a particular subject but what makes it imperative is that the candidate must have post graduate degree/honours degree and preference shall be given to the candidate having B.Ed. degree. The revised Guidelines, issued in the year 2004, makes abundantly clear that appointment to the post of Mukhya Samprasarak/Samprasarika, can be given to the candidates who are above 40 years of age having honours degree with B.Ed. or post graduate degree with B.Ed. qualifying in any of the subjects. Though the respondent authorities submit that the said Guidelines were subsequently superceded in the year 2007 but it is a matter of record that the recent guidelines, issued in the year 2010 is in vogue and operative in the field. The said revised guidelines also does not suggest that in the event two Samprasaraks/Samprasarikas are engaged for the same subject, they cannot be engaged as Mukhya Samprasarak/Samprasarika. The Government, for the purpose of projecting more clear and transparent procedures for engagement of the Samprasaraks/Samprasarikas, introduced written test and interview for such appointments. The Government was conscious of the engagements of the existing Samprasaraks /Samprasarikas and, therefore, in paragraph 6 of the revised Guidelines, have excluded the rigors of written test and interview for appointment of Samprasaraks /Samprasarikas. They were allowed to continue subject, however, to verification by the appropriate authority as per the existing guidelines. This Court, therefore, finds that the impugned memos are issued in clear contradiction to the guidelines covering the field and, therefore, cannot be sustained. The impugned memos dated 22nd February 2013 and 8th April 2013 are hereby quashed and set aside. The writ application is disposed of. However, there will be no order as to costs.