JUDGMENT : 1. The respondent no. 1 (hereafter the writ petitioner) offered her candidature for appointment as a para-teacher in Shyamchak Primary School. A panel was published on 30th August, 2004 in which she figured at the first position. An unsuccessful candidate lodged an objection with regard to the writ petitioner’s empanelment. Since such objection remained pending, the writ petitioner was not offered appointment. The District Project Officer, Purba Medinipur (hereafter the ‘DPO’) on 7th August, 2007 enquired as to validity of the panel from the Sabhapati, Bhagwanpur Panchayat Samity. On 24th September, 2007 the President of the concerned village education committee informed the DPO that the objection of the unsuccessful candidate was not valid. It was at that stage that the writ petitioner invoked the writ jurisdiction of this Court for the first time. 2. A learned Judge of this Court by order dated 5th July, 2010 dismissed the writ petition on the ground that the life of the panel having expired, the writ petition was belated. An appeal was carried before the Division Bench against such order by the writ petitioner. Before the Division Bench, which had the occasion to consider the appeal, the objection that the panel had lapsed was reiterated. On behalf of the writ petitioner it was contended that only on approval of the panel by the DPO the question of the panel becoming operative would come into question, and since the DPO had not approved the panel, question of the panel losing its life did not arise. Having heard learned advocates for the parties, the appeal was disposed of by the Division Bench on 20th January, 2011 by passing, inter alia, the following order:- “….As such we dispose of this appeal along with the application being CAN 7855 of 2010 by directing the respondent No. 3 to consider the various correspondences which we have referred hereinabove and in the event it is found that the respondent No. 10’s objection has not been sustained (see the letter dated 24th September, 2007 written by the respondent No. 5 to respondent No. 3 which is at page ‘40’ of the application) and the panel has not been made alive as submitted by the learned counsel for the appellant, necessary steps as known to law would be taken from the position which was very much there on 30th August, 2004. Since this matter has been kept pending for so many years, it is expected that the decision in this regard would be taken by four weeks. With this direction the appeal stands allowed.” 3. The aforesaid order of the Division Bench upon being served on the respondents in the appeal, the DPO addressed a letter dated 30th March, 2011 to the concerned Secretary and President of Srikantapur Primary School that a decision had been taken on 24th February, 2011 to engage the writ petitioner as para-teacher in Shyamchak Primary School. In pursuance of such decision, the writ petitioner duly joined as para-teacher on 5th April, 2011. 4. While discharging duty as para-teacher, the writ petitioner addressed a letter dated 26th September, 2012 to the DPO seeking approval to continue in service till she attains 60 years of age as well as for release of honorarium for the month of August, 2012. This letter was followed by another letter of the writ petitioner dated 12th February, 2013 to the effect that she had not received permission to continue in service till 60 years of age. A similar request followed in her subsequent letter dated 31st January, 2014. 5. The aforesaid letters may have reached the State Project Director, Paschim Banga Sarva Siksha Mission (hereafter the director), for, it appears that steps were initiated by him culminating in a letter dated 13th May, 2014 addressed to the Additional District Magistrate (Treasury), Sarva Siksha Mission, Purba Medinipur in reply to his memo No. 202/SSM dated 2nd April, 2014. The aforesaid letter of the director is quoted below for facility of appreciation:- “On perusal of your report and the order of the Hon’ble Division Bench of Kolkata High Court the observation of this office is as narrated below:- (a) The panel for selection of para teacher was prepared and submitted by the VEC to DPO in the year 2004.The case was kept pending at the district level till 2010 due to certain reasons, which caused filling of a writ petition by Smt. Arpita Das before the Hon’ble High Court. (b) As it transpires from the order of Hon’ble Division Bench, Hon’ble Trial Judge on the ground of delay refused the prayer of the petitioner as the life of the panel had expired. (b) As it transpires from the order of Hon’ble Division Bench, Hon’ble Trial Judge on the ground of delay refused the prayer of the petitioner as the life of the panel had expired. Finally, Division Bench of the Hon’ble High Court disposed of the matter by directing the respondent No. 3, i.e., the DPO which reads as ‘to consider the various correspondences which we have referred hereinabove and in the event it is found that the respondent No. 10’s objection has not been made alive as submitted by the learned counsel for the appellant, necessary steps as known to law would be taken from the position which was very much there on 30th August, 2004’. (c) The SPO informed in response to DPO’s memo No. 252/SSM dt 09.03.2011 ‘Action may be taken from his part to comply with the order of the Division Bench of the Hon’ble High Court and to dispose of the case after examining the present situation accordingly’. (d) DPO, after taking hearing, did not pass any reasoned order but instructed the Secretary and the President of VEC to ensure joining of Smt. Arpita Das as para teacher vide his memo NO. 300/SSM dt 30.03.2011. (e) In 2004, the contract period for the para teachers was for one year. The matter should have been kept in ..illegible.. while issuing the instruction to the VEC regarding engagement of the para teacher. (f) It was also known to the district that Govt. in SED have taken a policy decision not to engage any new para teacher vide order No. 376-SE(Pry) dt 09.05.2010 read with order No. 273-55(P) dt. 23.04.10. A part of the order, i.e., not to engage any new para teacher after 9th June, 2010, could not be applied in this particular case in view of the direction of the Hon’ble Division Bench. It is obvious that the other part of the same order–to extend benefit of service upto 60 years of age to the continuing para teacher–can’t be made applicable either and the period of engagement as per the original advertisement Terms and Conditions has to be applied viz. one year. (g) It is noteworthy to mention that in a similar case of Moumita Maity, we have clearly informed you about the action to be taken vide this office memo No. 88/Legal dt 17.04.2013. one year. (g) It is noteworthy to mention that in a similar case of Moumita Maity, we have clearly informed you about the action to be taken vide this office memo No. 88/Legal dt 17.04.2013. In view of the above observations, the question of awarding benefit of service upto 60 years age to Arpita Das, para teacher in Shyamchak Primary School does not arise at all. Smt. Arpita Das can no longer be allowed to continue her service as para teacher as the period of contract as availing in Aug 2004 (one year) has already elapsed. However, payment for the period she rendered satisfactory service should be released. You are requested to take necessary action accordingly.” 4. Perusal of the aforesaid extract would reveal reference to a Government Order dated 9th June, 2010 (hereafter the said ‘G.O.’). It was issued by the Secretary to the Government of West Bengal, School Education Department and reads as follows:- “In continuation and partial modification of the Memorandum No. 273SE (P)/PBRPSUS/ADMN 9/04-05 dt. 23-04-2010 & 275SE(P)/PBRPSUS/ADMN 9/04-05 dt.23-04-2010, the undersigned is directed by the order of the Governor to make the following inclusion/modifications in the aforesaid G.O.:- (i) No other allowance will be admissible to the Para Teachers, Siksha Bandhus, VRPs and other associated with PBSSM and the Contractual Teachers except the enhancement @6% of the remuneration; at every interval of 3 years, after the enhancement done as on 01-06-2010. (ii) These persons will remain engaged till they attain 38 years of age, and the State Government will bear the expenditure the Government of India stops funding the PBSSM Project before their cessation of engagement attaining 60 years of age. (2)No new engagement of Para Teacher or any other category of employees can be made after issue of this order.” 5. (2)No new engagement of Para Teacher or any other category of employees can be made after issue of this order.” 5. The letter of the director virtually sealed the fate of the writ petitioner insofar as continuation of service as para- teacher in the school is concerned, resulting in initiation of the second round of litigation before the writ Court wherein she sought for the following relief:- “(a) A writ in the nature of Mandamus commanding the respondents their men, agents and subordinates to show cause as to why the decision and/or order passed by the State Project Director, Paschim Banga Savra Simsha Mission as communicated vide Memo No. 33/Legal/PBSSM/1/41/2010 dated 13.5.2014 will not be set aside and/or quashed and also to show cause as to why the petitioner will not be allowed to discharge her duties as Para Teacher in Shyuamchak Primary School as per approval order of the District Project Officer, Tamluk vide Memo No. 300/SSM dated 30.11.2011 upto the age of her 60 years as per Government Order issued vide Memo No. 376-SE(Pry.) dated 09.6.2010; (b) A writ in the nature of Mandamus commanding the respondents, their men, agents and subordinates to cancel and/or recall and/or rescind and/or set aside the impugned decision/order passed by the State Project Director, Paschim Banga Sarva Siksha Mission as communicated vide Memo No. 33/Legal/PBSSM/1/41/2010 dated 13.5.2014; (c) A writ in the nature of Mandamus directing the respondents to allow the petitioner to discharge her duties as Para Teacher in Shyamchak Primary School and to release her salaries month by month in accordance with law; (d) A writ in the nature of Mandamus directing the respondent authorities to consider her representation for permanent engagement as Para Teacher upto the age of her 60 years as per Government Order No. 376/SE(Pry) dated 9.6.2010 and in accordance with law at the time of selection made on 30.8.2004 in view of the judgment and order dated 20.1.2011 passed in M.A.T. No. 1150 of 2010.” 6. A learned Judge of the Court had the occasion to consider such writ petition. By judgment and order dated 14th July, 2014, the learned Judge quashed and set aside the impugned order and directed the respondents in such writ petition to take consequential steps forthwith. A learned Judge of the Court had the occasion to consider such writ petition. By judgment and order dated 14th July, 2014, the learned Judge quashed and set aside the impugned order and directed the respondents in such writ petition to take consequential steps forthwith. His Lordship was of the view that the said G.O. being very much in existence on the date the writ petitioner joined service, she could not have been deprived of the benefit extended by the State Government of continuing para teachers in service till 60 years of age by taking into consideration the date of preparation of panel since “the material point of time was the date of joining of the petitioner”. 7. It is the said judgment and order dated 14th July, 2014 that has been called in question by the director in this appeal. 8. Appearing in support of the appeal, Mr. Gupta, learned senior advocate submits that having regard to the terms of the decision of the Division Bench dated 20th January, 2011, the situation that prevailed as on 30th August, 2004 would have to be borne in mind while dealing with the claim set up by the writ petitioner. According to him, the writ petitioner was held entitled to an appointment as on 30th August, 2004 when the guidelines relating to appointment of para-teachers existing then contemplated contractual service for one year and hence, she was entitled to continue in service only for a year and not beyond. It was further urged that the belated appointment of the writ petitioner in April, 2011 would not clothe her with any right to continue in service till 60 years of age as ordained by the said G.O. It was also argued that the writ petitioner not having claimed the benefit of the said G.O. at the time the Division Bench allowed her appeal on 20th January, 2011, the issue raised by her in the writ petition must be held to have been barred in view of Explanation IV to Section 11, Code of Civil Procedure (hereafter CPC). He, accordingly, submits that the judgment and order under appeal ought to be set aside. 9. Per contra, Mr. Jana, learned advocate for the writ petitioner contends that the judgment and order under appeal does not suffer from any infirmity warranting interference. He, accordingly, submits that the judgment and order under appeal ought to be set aside. 9. Per contra, Mr. Jana, learned advocate for the writ petitioner contends that the judgment and order under appeal does not suffer from any infirmity warranting interference. It is his contention that the said G.O. stipulated that no fresh appointment of para-teachers would be permissible after 9th June, 2010 and if indeed such was the legal position, the said G.O. could have been brought to the notice of the Division Bench while defending the appeal presented by the writ petitioner to oppose her claim for appointment. Elaborating the point, he argues that if as a matter of policy appointments of para-teachers were discontinued on and from 9th June, 2010, such change in policy could have been urged in defence and appropriate orders sought to dismiss the appeal citing change in law, which is an acceptable ground for declining relief claimed in a writ petition. He further argues that the writ petitioner, had she been aware of the said G.O., could have herself sought for a direction on the respondents in the appeal to permit her to continue in service till she attains 60 years of age. The respondents in the appeal not having brought the said G.O. to the notice and knowledge of the Division Bench and there being no publication of such G.O. in the official gazette, it is too late in the day for the parties to urge that the point of continuation of service till 60 years of age after joining as para-teacher should have been raised before the earlier Division Bench. According to him, the writ petitioner has suffered enough by reason of wrongful deprivation of appointment, which should have been offered in August, 2004, and she cannot now be made to suffer further by reason of lapse of time and change in law which the respondents in the earlier appeal ought to have placed before the Division Bench. He has, accordingly, prayed for dismissal of the appeal. 10. We have heard learned advocates for the parties and perused the materials on record together with the guidelines that existed as on date the writ petitioner should have been appointed as well as the said G.O. 11. Having regard to Mr. He has, accordingly, prayed for dismissal of the appeal. 10. We have heard learned advocates for the parties and perused the materials on record together with the guidelines that existed as on date the writ petitioner should have been appointed as well as the said G.O. 11. Having regard to Mr. Gupta’s contention, it seems to be clear that much would depend on proper interpretation of the judgment and order dated 20th January, 2011 of the Division Bench, more particularly the portion where it observed that “necessary steps as known to law would be taken from the position which was very much there on 30th August, 2004”, and the effect that the said G.O. would have on the present proceedings. 12. What was the position on 30th August, 2004? If one looks at the judgment and order of the Division Bench, the interview of the aspiring candidates was conducted on that date whereupon the writ petitioner emerged as the successful candidate. A panel was prepared by the selectors wherein the writ petitioner obviously figured at the 1st position. But such panel, owing to the objection that was lodged, had not been approved for being worked out. The Division Bench after referring to various correspondence was of the view that the respondents ought to consider such correspondence and if the objection was found not to have been sustained, to take necessary steps from the position that was there on 30th August, 2004, meaning thereby that the writ petitioner had secured the 1st position in the panel prepared by the selectors on that date. Significantly, no mandatory direction was made by the Division Bench for appointing the writ petitioner; it was left to the discretion of the respondents. 13. Now that discretion was exercised in favour of the writ petitioner, could she be denied continuity in service simply because the respondents perceive her not to be entitled there for having joined on 5th April, 2011, and not prior to 9th June, 2010? The learned Judge answered the question in favour of the writ petitioner being of the view that 5th April, 2011 being her joining date, i.e. when the bar created by the said G.O. on fresh engagement of para-teachers was in force, she is entitled to the benefit of continuity in service till her attaining 60 years of age since the material date is her joining date. 14. 14. It is true that the said G.O. was in existence when the Division Bench passed its order. It is also not disputed before us that such G.O. has not been published in the official gazette. That being so, who between the writ petitioner and the respondents in the appeal before the Division Bench could have readily placed it before such Bench? This question need not detain us for long. No explanation has been furnished before us why the said G.O. was not placed before the Division Bench by the respondents. We are of the view that such G.O. having put on black and white the policy of the State Government that no new engagement of para-teachers would be made post 9th June, 2010, the same should have been advanced as a point of defence to persuade the Division Bench to uphold the order dismissing the writ petitioner’s earlier writ petition. Rather than operating as a bar against the writ petitioner to obtain relief before the learned judge, we are of the view that omission to place the said G.O. before the Division Bench attracts Explanation IV, Section 11 of the CPC and it is no longer open to the appellant before us to argue that based on the contents thereof, the writ petitioner is not entitled to relief. 15. The very fact of the writ petitioner being engaged without there being a mandatory direction of the Division Bench in that behalf speaks volumes of the injustice meted out to her. There could not have been any justification for the authorities not to appoint the writ petitioner post 30th August, 2004 or within a reasonable period of time thereafter. The writ petitioner was compelled to invoke the writ jurisdiction for the first time in 2010. Ultimately, her approach bore some fruit by reason of the decision of the Division Bench dated 20th January, 2011 referred to above. There was no observation that the writ petitioner was entitled to claim engagement only for a particular tenure. The vacancy for which the writ petitioner had offered her candidature must have been available to be filled up even on 5th April, 2011 (when, ultimately, the writ petitioner was engaged as para-teacher) or else she would not have been engaged at all. The vacancy for which the writ petitioner had offered her candidature must have been available to be filled up even on 5th April, 2011 (when, ultimately, the writ petitioner was engaged as para-teacher) or else she would not have been engaged at all. On that date, the said G.O. had seen the light of the day ordaining that para-teachers shall be entitled to continue in service till 60 years of age. In terms of the guidelines that were existing at or about the time the vacancy in question was advertised (available at pg. 77 onwards of the paper-book), a para-teacher duly appointed was entitled to continue on year to year basis on a contract, where for the relevant village education committee or the other authorities mentioned in the guidelines were required to review the situation, particularly, the eligibility of the school to have a para-teacher. If the answer was in the affirmative, a para-teacher in position would be eligible for renewal of contract. The right of renewal was not even dependent on satisfactory performance of the para-teacher. Had the writ petitioner been engaged then, she would have acquired the right of a renewal of the contract only on the basis of the school in question being found to be in requirement of a para-teacher. For an apparent mistake that was committed by the authorities resulting in late engagement of the writ petitioner as para-teacher on 5th April, 2011, in our opinion, cannot clothe the authorities with the power to terminate her service at the end of one year on the specious ground that she was required to serve only for a year in terms of the then existing guidelines. Incidentally, the writ petitioner after having joined on 5th April, 2011 continued to discharge service for little less than three years when ultimately the impugned order was issued on 13th May, 2014. Had there been no requirement of a para-teacher, the writ petitioner could have been asked to leave on completion of a year. There being no order of the authorities to that effect, there is no reason as to why the writ petitioner, in the special facts and circumstances of the case, would not be entitled to the benefit of the other part of the said G.O. ordaining that a para-teacher would be entitled to continue in service till 60 years of age. 16. 16. For the reasons aforesaid, we are in agreement with the view expressed in the judgment and order of the learned Judge holding that the writ petitioner is entitled to the benefit of the said G.O. whereby all existing para-teachers have been made entitled to serve till they attain the age of 60 years. The appeal stands dismissed. There shall, however, be no order as to costs. 17. Consequential benefits to which the writ petitioner is entitled, shall be released as early as possible but not later than a month from date of service of a copy of this judgment and order. 18. After the above order is dictated, Mr. Ray Mukherjee, learned advocate-on-record for the appellant prays for stay. The prayer is considered and refused. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.