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Calcutta High Court · body

2016 DIGILAW 902 (CAL)

Md. Jamil Anwar v. State of West Bengal

2016-11-22

C.S.KARNAN

body2016
C. S. Karnan, J.: The short facts of the case are as follows:- 1. The petitioner submits that he has completed the B.A examination in the year 1987 from the Kolkata University. Thereafter he also completed the basic training as a Primary Teacher trainee, from the recognized training Institute in the year 1990 as an Assistant Primary Teacher. In the year 2011 the petitioner name is on the authorized list as serial No.13 for recruitment as Head Teacher, thereafter the petitioner’s name was listed in the subsequent years i.e 2012, 2013 and 2014 in the panel list for the post of Head Teacher under the Kolkata Primary School Council. The respondent had published a formal list for the year 2014 this name was No.8 of the serial number. 2. The petitioner further added that the respondent called the empanelled candidates for counselling on 18.9.2014 for the post of Head Teacher in different vacancies in the respective Primary Schools. The Kolkata Primary Schools Council had accommodated the empanelled candidates in different Urdu Medium Primary Schools. The petitioner’s and other empanelled candidates would not be accommodated due to lack of vacancies. Actually as per the panel published in the 1st week of September 2014, the petitioner’s name was against serial No.1 for Urdu Medium Schools. Under these circumstances on 31.1.2015, the Head Teacher’s post at Dr. A.M.O. Ghani Memorial School became vacant. The petitioner has appointed for the said post under the concerned Chairman Kolkata Primary School Council, the same was not considered in his favour. 3. The petitioner further submits that one Md. Nasim was appointed as an Assistant Teacher at Dr. A.M.O. Ghani Memorial Schools on 5.1.1999 and subsequently became a teacher in-charge of the said school. The said Md. Nasim was an untrained candidate at the time of initial appointment, therefore the said Md. Nasim was not considered in the panel as Head Teacher after 2014. The said Md. Nasim had completed the basis primary course in the year 2011, therefore his name was included in the year 2014 by the panel that is below the rank of the petitioner. The panel was prepared in accordance with this Court order dated 11.3.2013. The said Md. Nasim/5th respondent herein moved a writ petition for inclusion in the panel for the post of Head teacher Urdu Calcutta Primary School Council. The panel was prepared in accordance with this Court order dated 11.3.2013. The said Md. Nasim/5th respondent herein moved a writ petition for inclusion in the panel for the post of Head teacher Urdu Calcutta Primary School Council. This Court was pleased to direct the Calcutta Primary School Council to prepare the panel of the private respondent in accordance with seniority and to select the Head Teacher in accordance with the law, laid down procedure. The said Md. Nasim who was a junior teacher when compared to the petitioner herein. By superseding the petitioner’s position, the 5th respondent herein has been appointed as Head teacher at Dr. A.M.O. Gani Memorial Primary School on 10. 12.2015. 4. The petitioner further submits that the appointment of the 5th respondent by way of superseding the petitioner is violating Rules 17, 18 and 19 of the Primary Teacher Recruitment Rules 2001. Actually the petitioner’s name was given in serial no.1 of the empanelled list. The respondent had prepared the empanelled list which is against this Court order passed in W.P. No. 33750 (W) of 2014 and also against the Teachers Recruitment Rules. As such the appointment of the 5th respondent herein as a Teacher is in violation of natural justice. The petitioner also made an application under the Right to Information Act and sought the panel of the Head Teacher list, the same was not furnished, hence, an appeal has been filed before the West Bengal Commissioner who deals with appeals under the Right to the Information Act. The respondent shall supersede the petitioner and appointed the 5th respondent herein as a Head Teacher on 14.12.2005 which is not valid under the Teachers Recruitment Rules. The petitioner had submitted an objection letter on 7.1.2016 and approved the appointment of the 5th respondent herein as Head Teacher, the same was not considered. Hence, the above writ petition has been filed to set aside the impugned order of the respondents dated 11.3.2015. Hence, the above writ petition has been filed. 5. The 5th respondent herein has filed an affidavit-in-opposition, stating that the respondent is presently working under the 6th respondent school since 1980. His appointment to the post of Teacher in the 5th respondent school has been made pursuant to the order passed by this Hon’ble Court in W.P. No. 33750(W) of 2014 as a teacher. 5. The 5th respondent herein has filed an affidavit-in-opposition, stating that the respondent is presently working under the 6th respondent school since 1980. His appointment to the post of Teacher in the 5th respondent school has been made pursuant to the order passed by this Hon’ble Court in W.P. No. 33750(W) of 2014 as a teacher. The writ petitioner is a senior to the 5th respondent by one day and there is no dispute in this case. Further the petitioner was not a party to the writ petition no. 33750(W) of 2014, as such he has no local stand to challenge the said post, there are six schools which are nearer to the residence of the petitioner, as such he may join any of these schools as Head Teacher, that the benefit of the seniority as claimed by the petitioner has not found a place in the statute, as such the claim is unjustified, there has been no violation for appointing this respondent as Head Teacher in the present school. Hence, the th respondent prays to dismiss the above writ petition. 6. The learned counsel for the petitioner submits that the petitioner completed the B.A. degree course, as well as basic training course. He has been appointed on 4.1.1999 as an Assistant Primary Teacher and the 5th respondent herein has been appointed as an Assistant Primary Teacher on 5.1.1999 at the 6th respondent school. As such the petitioner is senior by appointment, besides the petitioner is also a senior an elder by about 3 years than the 5th respondent. Regarding educational qualification the petitioner had obtained eligibility prior to the 5th respondent. The 5th respondent is having lengthy service in order to reach superannuation retirement than the writ petitioner herein. Therefore, the appointment of 5th respondent as a teacher becomes discriminatory and unlawful. The petitioner’s name was included in the panel as serial no.8 for the year 2014. The petitioner’s representation to the respondents was not well considered. 7. The learned counsel has cited a judgment reported in AIR 1991 SC 1924 in Dharam Vir Singh Tomar, Vs. The Administrator, Delhi Admn. And Others. 8. The petitioner’s name was included in the panel as serial no.8 for the year 2014. The petitioner’s representation to the respondents was not well considered. 7. The learned counsel has cited a judgment reported in AIR 1991 SC 1924 in Dharam Vir Singh Tomar, Vs. The Administrator, Delhi Admn. And Others. 8. Delhi School Education Act (18 of 1973), S.28 – Delhi School Education Rules (…973), R.47(4) – Seniority – Benefit of Selection Grade – Denial –Employee senior and better qualified that other employee who was given Selection Grade – No adverse entry in his character rolls – No disciplinary proceedings pending against him – Seniority cannot be held to have lost on ground that he was declared surplus – Authorities directed to place him in Selection Grade from date on which his junior was placed therein. 9. The learned Counsel appearing for the 5th respondent submits that this Hon’ble Court passed an order in W.P. No. 33750 (W) of 2014 on the strength of this judicial order, the 6th respondent herein has been appointed in the post of Head Teacher at 5th respondent School. In the said writ petition the present writ petitioner is not a party. The 5th respondent has been appointed as an Assistant Teacher from the year 1999 initially, thereafter, he has been promoted as Head Teacher on 8.12.2015 on the strength of this Hon’ble Court judicial order. 10. Further the 5th respondent possessing requisite qualification as laid down in Rule 2001, therefore, the above writ petition is not maintainable. 11. The highly competent counsel for the State submits that the 5th respondent has been appointed as per this Court order passed in W.P. No. 33750 (W) of 2014 dated 11.3.2015 wherein the learned Judge has directed the school authorities to prepare the panel and appoint Head Teacher, accordingly the 5th respondent herein has been appointed. Hence, the highly competent counsel entreats the Court to dismiss the above writ petition. 12. The learned counsel Mr. Hence, the highly competent counsel entreats the Court to dismiss the above writ petition. 12. The learned counsel Mr. Bhaskar Prasad Baisya, appearing for the district counsel submits that this Hon’ble Court had directed the School authorities to prepare the seniority panel for the post of Head Teacher, the same was not executed within the specified period, therefore the writ petitioner had levelled a contempt application in order to execute the order passed in the writ petition, at that point of time the competent school authorities had prepared a seniority panel and then the 5th respondent has been promoted as Head Teacher. The very competent counsel further submits that the order passed in W.P. 33750 (W) of 2014 dated 11.3.2015 becomes final. As such there is no impediment whatsoever for promoting the 5th respondent as Head Teacher. Therefore, the highly competent counsel entreats the Court to dismiss the above writ petition. 13. Considering the facts and circumstances of the instant case and the arguments advanced by the learned counsel on all sides and on perusing the annexed papers along with this writ petition, this Court is of the opinion that the petitioner is possessing the requisite qualifications even prior to the 5th respondent herein and also in joining as an Assistant Teacher one day before his contemporary, besides is an elder by three years to the 5th respondent. As such this Court directs the concerned respondent to provide promotion to the petitioner herein as Head Teacher on top most priority basis. This Court’s further view that the 5th respondent had been appointed as a Head Teacher pursuant to this Court’s judicial order passed in W.P. No. 33750 (W) of 2013 dated 11.3.2013 hence this Court decline to set aside the 5th respondent’s promotion as Head Teacher. Accordingly, this writ petition is disposed of. 14. Urgent Xerox certified copy of this order, if applied for, be supplied to the learned advocates appearing for the parties.