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2016 DIGILAW 561 (CAL)

Ruhini Kanta Barman v. State of West Bengal

2016-07-18

ASHIS KUMAR CHAKRABORTY

body2016
JUDGMENT : Ashis Kumar Chakraborty, J. 1. In this writ petition the petitioner has challenged the Memo No. 2217/1(6) dated September 30, 2002 issued by the respondent no.3, the District Inspector of Schools (S.E.), Dakshin Dinajpur. By the impugned memo the respondent no. 3 declined to approve the panel of class IV staff (peon) prepared on June 14, 2001 by the Selection Committee in Badamail Laxmi Pratap High School, Post Office-Kamarpara, District- Dakshin Dinajpur (hereinafter referred to as “the said school’), where the name of the petitioner is appearing in the first position. The petitioner has also prayed for a writ of mandamus directing the respondent no.3 to approve the said panel prepared on June 14, 2001 for the post of class IV staff (peon) in the said school. Shorn of details, the relevant facts of the case are that the petitioner appeared in an interview held by the Selection Committee of the said school on June 14, 2001 for the post of class IV staff (peon). After the said interview, the Selection Committee prepared the panel of three successful candidates and the petitioner having obtained the highest marks was placed in the first position of the panel. After the said panel was approved by the Managing Committee, the Secretary of the school forwarded the said panel to the respondent no. 3, the District Inspector of Schools for his necessary approval. The respondent no. 3, however, did not take any action and the petitioner was constrained to file a writ petition, being WP No. 5034(W) of 2002. By an order dated April 22,2002 a learned Single Judge of this Court disposed of the said writ petition by directing the respondent no.3 to dispose of the said panel in accordance with law within a period of eight weeks from the date of communication of the order. The learned Single Judge also directed the respondent no. 3 that in the event the rejection of the panel, he will pass a reasoned and speaking order. Thereafter, on September 30, 2002 the respondent no. 3 held a hearing and passed the impugned decision declining to approve the said panel. The learned Single Judge also directed the respondent no. 3 that in the event the rejection of the panel, he will pass a reasoned and speaking order. Thereafter, on September 30, 2002 the respondent no. 3 held a hearing and passed the impugned decision declining to approve the said panel. The ground recorded in the impugned decision of the respondent no.3 for not approving the said panel was that on September 4, 1999 the Selection Committee of the said school had prepared a panel selecting some persons to the same post of peon in the said school wherein one Satyen Kumar Barman was recorded as the first successful candidate, the latter had filed a writ petition being WP No.17843(W) of 1999 for approval of the panel which was rejected by a learned Single Judge of this Court; an appeal, being MAT 1694 of 2001 (subsequently numbered as FMA 1818 of 2004) against the said order of dismissal the writ petition was pending before the Division Bench and in spite of his request to the Secretary and the Teacher-in-Charge of the said school to postpone the interview of the candidates to the said post, the Selection Committee held the said interview on June 14, 2001 and prepared the panel of the successful candidates. 2. The present writ petition was filed on July 17, 2006. From the records it appears that on January 17, 2007 when this application was taken up for hearing, in presence of the learned advocate for the State respondents, a learned Single Judge of this Court granted an opportunity to the State respondents to file their affidavit-in-opposition to this application within four weeks from that date. However, none of the respondents, namely, the Secretary, Department of Education (Secondary Education), the Director of School Education, the District Inspector of Schools has filed any affidavit disputing the averments made in the writ petition. However, on March 14, 2016 when this writ petition was taken up for hearing by a learned Single Judge of this Court, Mr. Saikat Chatterjee, learned advocate appearing for the State respondents prayed for an opportunity to obtain instruction from the respondents. Such prayer of Mr. Chatterjee was allowed. From the records it appears that on April 18, 2016 when this application was taken up for hearing before a learned Single Judge Mr. Chatterjee, after obtaining instruction from the respondent no. Saikat Chatterjee, learned advocate appearing for the State respondents prayed for an opportunity to obtain instruction from the respondents. Such prayer of Mr. Chatterjee was allowed. From the records it appears that on April 18, 2016 when this application was taken up for hearing before a learned Single Judge Mr. Chatterjee, after obtaining instruction from the respondent no. 3, submitted that the relevant records of this case are not traceable in the office of the respondent no.3 and as such the said school has been requested to forward a copy of the said panel to the respondent no.3. He further submitted that even the respondent nos. 4 and 5, being the Headmaster and the Managing Committee of the said school have communicated to the respondent no. 3 that no document in respect of preparation of the said panel of Group-D staff (peon) of the said school is available with them. Today when the writ petition was taken up for final hearing, Mr. Chatterjee however, submitted that when from the impugned decision dated September 30, 2002 it is clear that the name of the petitioner was recorded in the first place of the said panel prepared on June 14, 2001 for appointment of class IV staff (peon) in the said school, the respondent no.3 cannot dispute that the petitioner was the first successful candidate named in the said panel. By referring to the written instruction received by him from the respondent no.3, which already forms part of record of this petition, Mr. Chatterjee further submitted that the post of peon (Group-D staff) in the said school is still lying vacant and since the said appeal being FMA 1818 of 2004 was dismissed, there is no impediment for approval of the said panel and the respondent no. 3 is ready to obey any decision of this Court in this writ petition. 3. At this juncture, it may be noted that on May 16, 2016 when the writ petition was taken up for final hearing by a learned Single Judge of this Court one Satyen Kumar Barman, claiming himself to be the first person named in the earlier panel of the candidates who had applied for the post of peon had filed an application for being added as a party to this writ petition. By an order dated July 5, 2016 this Court rejected the said application of Satyen Kumar Barman on the grounds that the panel in which his name was appearing in the first position was set aside by a learned Single Judge of this Court in his own writ petition, being WP No. 17843(W) of 1999, even an appeal filed by him against the said decision of the learned Single Judge was also rejected by the Division Bench of this Court on August 5, 2004 and inasmuch as he did not appear in the subsequent interview held by the Selection Committee on June 14, 2001 he cannot claim to be imp leaded in the present writ petition to obtain any relief in his favour. 4. Today, when this application is taken up for hearing, Mr. Sikdar learned advocate representing the said Satyen Kumar Barman prayed for adjournment of hearing of the application. Since the prayer of the said Satyen Kumar Barman for his impleadment to this writ petition has already been rejected by this Court there was no scope for adjournment of hearing of this application at his instance. 5. In the writ petition, the petitioner categorically stated that the respondent no. 3 had granted its prior permission to the said school for filling up the vacancy to the said post of class IV staff (peon) and his name was forwarded by the concerned employment exchange to the said school as a sponsored candidate. From the impugned decision dated September 30, 2002, it is evident that the respondent no. 3 had accepted that on June 14, 2001 an interview was held by the Selection Committee of the said School for selecting the successful candidates for the post class IV staff (peon) in the said school and that a panel was also prepared by the Selection Committee with the name of the petitioner appearing in the first position. In the said panel it was also recorded that the petitioner secured the highest marks in the interview. 6. The only ground disclosed by the respondent no. In the said panel it was also recorded that the petitioner secured the highest marks in the interview. 6. The only ground disclosed by the respondent no. 3 in the impugned decision, for declining to approve the said panel was that in view of the pendency of the appeal filed by the said Satyen Kumar Barman against the order of dismissal of his writ petition by a learned Single Judge, the matter was sub judice, he had requested the school authority not to initiate any step for fresh appointment and to postpone the interview scheduled to be held on June 14, 2001, but the school authority did not honour his said request. Admittedly, on May 16, 2001 the writ petition filed by the said Satyen Kumar Barman was dismissed by a learned Single Judge of this Court and from the order dated August 05, 2004 passed by the Division Bench, it is evident that as on June 14, 2001 no effective appeal was filed by the said Satyen Kumar Barman against the said decision of the learned Single Judge. This is because it was on August 05, 2004 when the Division Bench condoned the delay in preferring the said appeal and thereafter dismissed the appeal. In these circumstances, when this Court asked Mr. Chatterjee when the main writ petition of the said Satyen Kumar Barman was dismissed on May 16, 2001 and in the month of June 2001 the said Satyen Kumar Barman had not filed any effective appeal before the Division Bench, how could the respondent no. 3 request the school authority not to hold any fresh interview, he was unable to give any explanation and submitted that the respondent no. 3 is now ready to approve the said panel. 7. In his written instruction to Mr. Chatterjee, the respondent no. 3 has recorded that the said post of peon in the said school is still lying vacant and if this Court directs, he is ready to approve the said panel prepared by the Selection Committee of the said school as per the interview held on June 14, 2001. 8. 7. In his written instruction to Mr. Chatterjee, the respondent no. 3 has recorded that the said post of peon in the said school is still lying vacant and if this Court directs, he is ready to approve the said panel prepared by the Selection Committee of the said school as per the interview held on June 14, 2001. 8. Having considered the facts and circumstances of the case, as already discussed above I am satisfied that when the writ petition filed by the said Satyen Kumar Barman, being W.P. 17843(W) of 1999 was rejected by this Court by holding that the panel containing his name as the successful candidate was void and in June 2004 there was no effective appeal before the Division Bench against the order of dismissal passed by the learned Single Judge, the impugned decision of the respondent no.3, the District Inspector of Schools (S.E.) is vitiated by arbitrary exercise of power, the same does not meet the test of reasonableness and results in utter violation of the fundamental right guaranteed to the petitioner under Article 14 of the Constitution of India. Accordingly, the impugned decision dated September 30, 2002 passed by the respondent no. 3, being Annexure P-8 to the writ petition, is set aside. 9. In the instant case, on June 14, 2001 the petitioner was selected as the first successful candidate in the panel prepared by the Selection Committee of the said school, but by the impugned decision dated September 30, 2002 the respondent no.3 has arbitrarily deprived the petitioner of his service as a class-IV staff (peon) in the said school for a period of fourteen years. The petitioner is presently 53 years old and has been deprived of the pensionary benefits. For all these reasons, the respondent no.3 is directed to forthwith, positively within seven days from date, communicate his approval to the said panel of selected candidates to the post of class IV staff (peon) in Badamail Laxmi Pratap High School, Post Office-Kamarpara, District-Dakshin Dinajpur, being Annexure-“P-3” to the writ petition, to the respondent nos. 4 and 5, who shall, in turn forthwith issue the letter of appointment to the petitioner and allow him to join the post of class IV staff (peon) of the said school with effect from August 01, 2016. 10. 4 and 5, who shall, in turn forthwith issue the letter of appointment to the petitioner and allow him to join the post of class IV staff (peon) of the said school with effect from August 01, 2016. 10. Since, this order is passed in presence of the learned Advocate representing the respondent no.3, he shall forthwith communicate this order to the respondent no.3. With the above directions, W.P. 17117 (W) of 2006 stands allowed. 11. There shall, however, be no order as to costs. 12. Let, a plain copy of this order duly countersigned by the Assistant Registrar (Court) be made available to the learned advocates for the parties on usual undertaking.