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2015 DIGILAW 918 (CAL)

Provat Kumar Das v. State of West Bengal

2015-11-19

SUBRATA TALUKDAR

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JUDGMENT : Subrata Talukdar, J. In this writ application the petitioner challenges the appointment of the private respondent no. 7 to the post of Group-D staff at Bisinda Kali Krishna Memorial High School, P.O. Bisinda, District-Bankura (hereinafter referred to as the said school). 2. Sri Nirbanesh Chatterjee, Ld. Counsel appears on behalf of the petitioner and submits that in response to Memo dated 27th October, 1994 issued by the District Inspector of Schools (SE) (for short DI (SE), Bankura 20 candidates including the writ petitioner were sponsored by the District Employment Exchange, Bankura for being called for interview on the 17th of February, 1995. 3. Pursuant to the interview a panel was prepared in which the private respondent no.7 was placed first and the petitioner second. Since the appointment was to be offered to the private respondent no.7, the petitioner lodged a complaint with the DI (SE) that the private respondent no.7 had produced a false school leaving certificate stating that he had read up to class VIII although the said school did not have any recognition as a Junior High School at the relevant point of time. The second limb of the petitioner' complaint was that the date of birth shown in the certificate of the private respondent no.7 as 03.01.1955 is false since his year of birth in his earlier school is shown as 1956. The petitioner accordingly complained before the DI (SE) to take necessary steps for investigating the matter and if it is found that the complaint of the petitioner is correct, then appointment should not be offered to the private respondent no.7. 4. In compliance with the order of an Hon'ble Single Bench of this Court dated 27th May, 1997 in WP 10872(W) of 1996, the DI (SE) upon hearing the parties and examination of the records came to the following conclusion vide his order dated 30th May, 1997:- "Examined the original records (administration Registers) of bot the schools and it is found that the date of birth of Sri Bauri has been recorded as 4.1.56 in the Admission Register of Kusthalia Jr. Basic School and as 3.1.55 in the Admission Register of Kusthalia Jr. High School. Basic School and as 3.1.55 in the Admission Register of Kusthalia Jr. High School. From the original recognition memo of Kusthalia Junior High School issued by the West Bengal Board of Secondary Education vide Memo No. 890/Jr., dated 12.9.74, it is found that the school has been recognised as a 2-class Junior High School w.e.f. 1.1.74 and as a 4-class Junior High School w.e.f. 1.1.83. Sri Radharaman Rauri, the respondent No.6 and the first man of the panel submitted that he read in the school and got the school leaving certificate. He has nothing to say about the entries in that certificate. Considered the above submissions and on examining the original records etc., connected with the matter I became confident that the Transfer Certificate (class-VIII passed) issued in favour of Sri Bauri was a fake one and must not be given any credit to considering the fact that it was issued by Kusthalia Junior High School as a 4-class one on 22.1.70 when it did not enjoy any departmental recognition having no legal authority as such and hence it is ordered that the candidature of Sri Radharaman Bauri for the post of a class-IV staff shall not be accepted. The school authority is directed to recast the panel by dropping the name of Sri Bauri and to submit the same after positioning 2nd, 3rd and 4th candidate as 1st, 2nd and 3rd for approval. The case is thus disposed of. All concerned be informed accordingly." 5. During such period the issue of the appointment came up for consideration before a Hon'ble Division Bench of this Court on an appeal filed by the present private respondent no.7. By order dated 11th February, 1998 the Hon'ble Appeal Court held that the basic requirement of empanelment for candidates to the said post was whether the applicant can only read and write in Bengali and English. In addition marks were allotted for the viva voce and cycling. Therefore the Ld. Appeal Court remanded the matter to the DI (SE) for fresh consideration on the point that even assuming that the petitioner had filed a fake certificate whether the requirement to possess benchmark academic qualifications could be held to be binding. 6. In addition marks were allotted for the viva voce and cycling. Therefore the Ld. Appeal Court remanded the matter to the DI (SE) for fresh consideration on the point that even assuming that the petitioner had filed a fake certificate whether the requirement to possess benchmark academic qualifications could be held to be binding. 6. Sri Chatterjee further submits that in compliance with the decision of the Hon'ble Division Bench dated 11th February, 1998, the DI (SE) vide his order 13th August, 1998 came to the following conclusion:- "In the above context, it may be taken into consideration that the applicant possesses the ability of reading and writing in Bengali and English. In the light of Government Order No. 451-Edn (S) dt-3.6.1989, in concurrence with Finance Department Notification No. 8321-F, dt-5.11.81, the petitioner deserves the right of his candidature for the appointment of class-IV staff in the Non-Government Secondary School. The prior permission was issued vide this office Memo No. 48387S dt-27.10.94. affixing class-VIII passed as qualification for the post in terms of C.O. No. 190- Edn(S). Dt- , prescribing qualification of a Group-'D' staff, the prescribed it as able to read and write in Bengali/English/Nepali. Considering this, the qualifications possessed by the petitioner though it was fake one is considered to be suitable in the eye of law for the post. Hence it is ordered that the panel in which the petitioner secured the 1st place be approved if it is found otherwise in order. The case is thus disposed of. All concerned be informed accordingly." 7. The above-noted order of the DI (SE) dated 13th August, 1998 was carried before a Hon'ble Single Bench by the present writ petitioner in WP 16625(W) of 1998. By order dated 2nd January, 2001 the Hon'ble Single Bench of this Court directed the DI (SE) to comply with the order of the Hon'ble Appeal Court dated 11th February, 1998 (supra) and to pass an order after hearing all concerned. The Hon'ble Single Bench further held that if the DI (SE) adopts his earlier decision dated 30th May, 1997 (supra), the appointment of the private respondent no.7 shall stand automatically cancelled. The decision of the DI (SE) should be reasoned. 8. The Hon'ble Single Bench further held that if the DI (SE) adopts his earlier decision dated 30th May, 1997 (supra), the appointment of the private respondent no.7 shall stand automatically cancelled. The decision of the DI (SE) should be reasoned. 8. In compliance with the order of the Hon'ble Single Bench dated 2nd January, 2001 by the order impugned in this writ petition dated 29th May, 2001, the DI (SE) did not find any reason to deviate from his previous decision dated 13th August, 1998 and therefore continued the appointment of the private respondent no.7. 9. It is the pointed submission of Sri Chatterjee that by the order of the Hon'ble Single Bench dated 2nd January, 2001 (supra), the DI (SE) was required to adopt a reasoned stand upon considering all aspects of the matter. However, the DI (SE) acted in a mechanical fashion and did not at all consider the complaint of supplying a false mark sheet and a false date of birth as lodged by the petitioner against the private respondent no.7. 10. The private respondent no.7 is represented by Ld. Counsel, Sri Samiran Mondal, who argues that the private respondent no.7 has already completed his service period with the said school and has superannuated with effect from 1st February, 2015. Therefore the relationship of master and servant between the said school and the private respondent no.7 has ceased. 11. On merits of the issue Sri Mondal argues that the order of the Hon'ble Appeal Court dated 11th February, 1998 has settled the issue and therefore, the DI (SE) vide the order impugned dated 29th May, 2001 has correctly adopted the previous order of the DI (SE) dated 13th of August, 1998 which was passed in compliance with the order of the Hon'ble Appeal Court dated 11th February, 1998. 12. The State of West Bengal is represented by Sri N.K. Manna, Ld. Senior Counsel with Ms. Mitali Mukherjee, Ld. Advocate. 13. Having heard the parties and considering the materials on record this Court is first required to notice the order of the Hon'ble Appeal Court dated 11th February, 1998 by which the DI (SE) was called upon to consider the nature of the requirement stipulated for recruitment to the said post. Senior Counsel with Ms. Mitali Mukherjee, Ld. Advocate. 13. Having heard the parties and considering the materials on record this Court is first required to notice the order of the Hon'ble Appeal Court dated 11th February, 1998 by which the DI (SE) was called upon to consider the nature of the requirement stipulated for recruitment to the said post. This Court is also required to notice that by order dated 13th August, 1998 the DI (SE) upon noticing the fact that the private respondent no.7 was found to be able in reading and writing in English and Bengali and, in respect of the other tests, viz. viva voce and cycling, was also found to be qualified came to the conclusion that assuming that the certificate produced by the private respondent no.7 was fake, he cannot be declared ineligible since he fulfilled the criteria for appointment to the said post. 14. To the mind of this Court there is an inherent fallacy in the argument adopted by the DI (SE) to demonstrate compliance to the order of the Hon'ble Division Bench dated 11th February, 1998. While noticing the eligibility criteria as directed by the Hon'ble Appeal Court, at the same time this Court finds that the DI (SE) was also called upon by the order of the Hon'ble Single Bench dated 2nd February, 2001 to pass a reasoned order upon consideration of all aspects of the matter. 15. To the further mind of this Court in order to demonstrate his ability to read and write the private respondent no.7 was required to produce a certificate from the school authority showing his minimum ability to step into the zone of consideration. Assuming that the terms "academic qualification" be not applied in the strict sense to the facts of this case as discussed by the Hon'ble Appeal Court, it does not stand to reason that the DI (SE) should brush aside under the carpet the fraud committed by the private respondent no.7 by producing a false certificate to step into the zone of consideration for being assessed with regard to his ability to read and write. Only in the event the petitioner could step into the zone of consideration, then the next issue as directed by the Hon'ble Appeal Court would arise for consideration, viz. the ability of the private respondent no.7 to read and write in English and Bengali. 16. Only in the event the petitioner could step into the zone of consideration, then the next issue as directed by the Hon'ble Appeal Court would arise for consideration, viz. the ability of the private respondent no.7 to read and write in English and Bengali. 16. In the considered view of this Court a conjoint reading of the orders of the Hon'ble Appeal Court dated 11th February, 1998 and the Hon'ble Single Bench dated 2nd February, 2001 while remanding the matter to the DI (SE) did not preclude the DI (SE) from not only considering the aspect of reading and writing under the selection criteria but also the surrounding facts germane to the selection. 17. Therefore, to the further mind of this Court the mechanical adoption of the order of the DI (SE) dated 13th August, 1998 by the DI (SE) vide his order dated 29th May, 2001 is bad and liable to be set aside. This Court is persuaded to arrive at the conclusion that the private respondent no.7 adopted a camouflage by presenting a fake or false certificate and date of birth to step into the zone of consideration and therefore should not be allowed to reap his ill-gotten fruits. In this connection the attention of this Court is drawn to the first order of the DI (SE) dated 30th May, 1997 read with the observations of the DI (SE) in his subsequent order dated 13th August, 1998 to the following effect:- "Considering this the qualifications possessed by the petitioner (read the private respondent no.7) though it was fake one (emphasis supplied) is considered suitable in the eye of law for the post." 18. Therefore, this Court directs that since the private respondent no.7 stepped into the zone of consideration by producing a fake certificate and thereby practised fraud which touches at the root of his appointment vitiating the same and considering that the private respondent no.7 has since superannuated from the said post this Court finds it fit to stop forthwith the payment of all pension and retirement benefits in favour of the private respondent no.7. This Court also directs that the DI (SE) forthwith shall take steps to recover the amount of pension and other retirement benefits already disbursed in favour of the private respondent no.7. 19. Registry is directed to communicate this order to the DI (SE), Bankura for necessary compliance. 20. This Court also directs that the DI (SE) forthwith shall take steps to recover the amount of pension and other retirement benefits already disbursed in favour of the private respondent no.7. 19. Registry is directed to communicate this order to the DI (SE), Bankura for necessary compliance. 20. WP 7957(W) of 2002 is allowed to the above extent. 21. There will be, however, no order as to costs. 22. Urgent certified photocopies of this judgment, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.