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2016 DIGILAW 1039 (CAL)

Kamakshya Narayan Pandey v. State of West Bengal

2016-12-16

DEBANGSU BASAK

body2016
JUDGMENT : Debangsu Basak, J. - The petitioner assails an order dated August 17, 2015 issued by the Commissioner of School Education. 2. Learned Advocate for the petitioner submits that the petitioner had participated in a selection process for the purpose of appointment of a librarian in the school. It was sent for approval. The approval was not granted on the ground of delay in applying for the grant for approval. Challenging the said decision, a writ petition was filed being W.P. No. 19030(W) of 2009 by the School Authorities. Such writ petition was disposed of by an order dated February 12, 2015 requiring the Commissioner of School Education to consider the issue afresh. He submits that the Commissioner of School Education proceeds on the basis that there is a delay. He does not consider the reason as to why the delay was occasioned. He, thereafter, proceeded to negate the claim of the School Authorities for grant of approval. He submits that such a procedure adopted by the Commissioner of School Education is erroneous. The impugned order, therefore, ought to be interfered with. 3. Learned Advocate for the petitioner submits that the time frame under the Rules for seeking grant of approval is directory and not mandatory. In support of such contention, he relied upon 2013 (1) CalLJ 70 (Asok Kumar Malik v. State of West Bengal & ors.) and an unreported judgment and order dated June 15, 2012 delivered in W.P. No. 19450(W) of 2010 (Rebati Raman Koley v. State of West Bengal & ors.). 4. Learned senior Advocate appearing for the State submits, the Commissioner had taken into consideration the relevant Rule relating to the grant of approval. The Commissioner had noted that the panel was selected on September 3, 2008 and that the Managing Committee meeting were held on October 13, 2008, October 18, 2008, December 13, 2008, December 24, 2008 and January 30, 2009. It had also noted that the panel was approved on January 30, 2009 and that the application was submitted on February 4, 2009. He points out that the Commissioner had found that there was tension at the school and that existence of such tension indicate that the recruitment process was not fair. He submits that referring two authorities cited on behalf of the petitioner that the fact situation obtaining in those authorities are different to that obtaining in the present writ petition. He points out that the Commissioner had found that there was tension at the school and that existence of such tension indicate that the recruitment process was not fair. He submits that referring two authorities cited on behalf of the petitioner that the fact situation obtaining in those authorities are different to that obtaining in the present writ petition. 5. I have considered the rival contentions of the parties and the materials made available on record. 6. The petitioner had participated in a selection process for the post of a librarian of the school. The panel was prepared on September 23, 2008. The panel was approved on January 30, 2009 by the Managing Committee of the school and the same was submitted for approval on February 4, 2009. Rule 9 (7) of the Government Order dated December 26, 2009 requires the Selection Committee to prepare a panel within 15 days from the date of interview and to submit the same to the appointing authority. The appointing authority is required to submit the panel with all relevant papers to the District Inspector of Schools for his approval within 15 days thereof. 7. In the present case, admittedly the time frame noted in the Government Order dated December 26, 2005 has not been adhered to. 8. Asok Kumar Malik (supra) and Rebati Raman Koley (supra) are of the view that the time frame stipulated in the Government Order dated December 26, 2005 is directory and not mandatory. They have held, in a given situation, it is open to the School Authorities to explain the delay and it is for the State Authorities to accept or reject the explanation for delay in submitting the panel for approval. 9. In the present case, the earlier writ petition filed at the instance of the School Authorities was disposed of by the judgment and order dated February 12, 2015. Such order allowed to the School Authorities to explain the delay and the State Authorities to consider the explanation in accordance with law. The Commissioner of School Education was required to hear the parties and to decide on the issue. The Commissioner of School Education has heard the parties and has decided the issue by negating the request for grant of approval of the panel. However, the impugned order does not take into consideration the explanation for the delay as advanced by the School Authorities. The Commissioner of School Education has heard the parties and has decided the issue by negating the request for grant of approval of the panel. However, the impugned order does not take into consideration the explanation for the delay as advanced by the School Authorities. The impugned order does not deal with the explanation as to why the explanation for the delay advanced by the School Authorities is not acceptable to the Commissioner of School Education. The Commissioner of School Education notes the delay. He is of the view that the delay of four months occasioned in submitting the panel violates the Rules prescribed under the Government Order dated December 26, 2005. He infers from statement made on behalf of the School authorities, that there was some tension prevailing at that material point of time, that the selection process was unfair. He has not explained as to why a tension at the school premises would ipso facto render a selection process unfair. 10. In such circumstances, the impugned order is set aside. The Commissioner of School Education is requested to adhere to the judgment and order dated February 12, 2015 passed in W.P. No. 19030(W) of 2009 (Managing Committee, Pukurgoria B.N. Vidyapith & anr. v. State of West Bengal & ors.). The Commissioner of School Education will complete the exercise within a period of six weeks from the date of communication of this order. 11. W.P. No. 27694(W) of 2015 is disposed of. 12. No order as to costs. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.