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2017 DIGILAW 561 (CAL)

Ramesh Soren v. State of West Bengal

2017-06-22

RAKESH TIWARI, SHIVAKANT PRASAD

body2017
JUDGMENT : Shivakant Prasad, J. The appellant/writ petitioner challenges the order dated 5th July, 2013 passed in W.P. No.25575(W) of 2012 (Ramesh Soren v. State of West Bengal & ors.) inter alia, on the grounds that the learned Writ Court erred in law and in fact in holding that the G.O. No.1594-SE(S) dated 26th December, 2005 as amended by the G.O. No.904-SE(S) dated 18th July, 2007 and further G.O. No.1314-SE(S) dated 17th December, 2002 does not apply in the case and F.M.A. 1014 of 2016 further should have held that the panel for the post of Laboratory Attendant was prepared by the school authority strictly in accordance with law and such panel should have been approved by the concerned respondents. 2. It is submitted on behalf of the appellant that the selection procedure was conducted by the school authorities strictly in accordance with law and the Government orders as referred in the Memo dated 24th January, 2011 passed by the District Inspector of Schools (SE), Hooghly having no manner of application and should have directed the respondents to grant approval of such panel and thus, the learned Trial Court was not justified in passing the order to fill up the post conducting the selection process afresh after complying with the Recruitment Rules/Guidelines issued under Memo no.1314(5)-SE(S)/4A-35/2002 dated 17th September, 2002. 3. The writ petitioner/appellant had moved the writ application before the Writ Court for direction upon the respondent no.3 and the respondent authorities to approve the panel for the post of Laboratory Attendant (Scheduled Tribe Category) under the Chinsurah Duff High School by setting aside the Memo No.15(4)/Law/S.E., dated 24.01.2011 pursuant to an advertisement for filling up the post of Laboratory Attendant, the writ petitioner/appellant applied for the post and participated in the selection process. He also faced the interview held on 17.11.2009 and the Selection Committee prepared a panel which was submitted before the Managing Committee and the Managing Committee by its resolution duly examined the panel and forwarded the same to the concerned District Inspector of Schools F.M.A. 1014 of 2016 (SE) for his necessary approval. The said panel was kept in abeyance by the respondent authority and by memo dated 19.07.2010 the concerned District Inspector of Schools(SE) forwarded the papers relating the panel of the said post of Laboratory Attendant before the Director of School Education for necessary instruction. The said panel was kept in abeyance by the respondent authority and by memo dated 19.07.2010 the concerned District Inspector of Schools(SE) forwarded the papers relating the panel of the said post of Laboratory Attendant before the Director of School Education for necessary instruction. In spite of submission of the panel for appointment of Laboratory Attendant for approval by the respondent authority, the competent authority did not approve the same. 4. It is also the contention of the appellant that the said school is governed under the Special Rules run by the Christian Religious Society as per Government Order dated 17.09.2002. The recruitment of the said school does not come under the purview of the West Bengal School Service Commission Act. Director of School Education also did not make any communication of his decision in response of the request of the concerned District Inspector of Schools (SE) for approval of the panel and it was kept in abeyance for indefinite period. Therefore, on being aggrieved, the petitioner moved the writ petition before the Writ Court and the Writ Court by the impugned order was pleased to hold that there was no impropriety or illegality in the impugned order dated September 17, 2002 bearing No.1314(5)- SE(S)/4A-35/2002. It was in the opinion of the learned Trial Court that the first ground of refusing the proposal of approval of the panel is not sustainable in law which related to the constitution of Selection Committee as because in terms of G.O. No.1594-SE(S) dated December 26, 2005 as amended in terms of G.O. No.904-SE(S) dated 18.07.2007 the Selection F.M.A. 1014 of 2016 Committee has to constitute with (1) Headmaster, (2) Secretary, (3) One Headmaster of a school in the same sub-division, (4) A nominee of Panchayet Samity or Municipal Corporation or Municipality or Notified Area authority as the case may be. 5. The learned Judge on the second ground for not approving the panel, observed as follows :- "Before parting with, the attention of this Court is drawn towards the prior permission given to the school in question. For point out one error in the order of granting prior permission dated January 29, 2009 the authority of the school was directed to follow the procedure mentioned in G.O. No.1594-SE(S) dated December 26, 2005. But the statutory guideline applicable in this case has been mentioned here in above. For point out one error in the order of granting prior permission dated January 29, 2009 the authority of the school was directed to follow the procedure mentioned in G.O. No.1594-SE(S) dated December 26, 2005. But the statutory guideline applicable in this case has been mentioned here in above. In view of the above, the respondent No.3 is directed to allow the school under reference to fill up the above post conducting selection process afresh adhering to the Recruitment Rules which were applicable at the material point of time, i.e. statutory guideline issued under Memo No.1314(5)-SE(S)/4A- 35/2002 dated September 17, 2002 expeditiously. The writ application is, thus, disposed of." 6. Being aggrieved by the judgment and order of the learned Trial Court for having turned down the prayer of the writ petitioner/appellant herein by directing the school authorities to fill up the said post of Laboratory Attendant by conducting selection process afresh adhering to the Recruitment Rules applicable at the material point of time being the statutory guideline under Memo No.1314(5)-Se(S)/4A-35/2002 dated 17th September, 2002, the instant appeal has been preferred. The direction so made, which according to the appellant/writ petitioner has been passed without any justification. Admittedly, the post of Laboratory Attendant falls within the category of Group 'D" staff. The said Government Order provides for appointment to the Group 'D' staff as under:- "In terms of G.O. No.1594-SE(S) dated 26.12.2005 as amended in terms of G.O. No.994-SE(S) dated 18.07.2007 the selection committee will consist of (1) H.M., (2) Secretary, (3) One Headmaster of a school in the same Sub-Division (4) A nominee of Panchayat Samity or Municipal Corporation or Municipality or Notified area authority as the case may be. Moreover the school authority violated the provisions of allotment of marks prescribed for appointment to the Class IV staff in terms of G.O. No.1314- SE(S) dated 17.9.2002 which is stated below : (i) Viva Voce (Full marks) : 5 (ii) Reading (Full marks) : 5 (iii) Writing (Full marks ) : 5 The Selection Committee awarded marks in the following manner: (i) Writing (Full marks ) - 3 (ii) Spelling (Full marks) - 3 (iii) Viva Voce (Full marks) -3 In view of the above facts and circumstances a panel prepared by an illegal selection committee and awarding marks violating the rule cannot be approved. Thus, the matter is disposed of. All concerned are being informed accordingly." 7. Thus, the matter is disposed of. All concerned are being informed accordingly." 7. The District Inspector of Schools (SE) while approving the panel considered that it has prepared illegally by Selection Committee who have awarded the marks to the petitioner/appellant by violating the Rules which cannot be approved. 8. It was observed by the District Inspector of Schools (SE) that the Selection Committee had awarded marks in the manner following : (i) Writing (Full marks ) - 3 (ii) Spelling (Full marks) - 3 (iii) Viva Voce (Full marks) -3 Whereas as per Government Order the marks prescribed as under: (i) Viva Voce (Full marks) : 5 (ii) Reading (Full marks) : 5 (iii) Writing (Full marks ) : 5 It would not be out of context to take note of our observation provided in order dated 22.3.2017 when we have observed that insofar as constitution of the panel by the selection committee there remains no dispute that it was constituted in accordance with law. There is no dispute as such on this score advanced by the learned Counsel for the State-respondent. However, the moot question and the issue remained for consideration before this Court is whether 3 marks awarded by the Selection Committee to the appellant, Ramesh Soren is in violation of Rules under Government Order. 9. We have observed that the relevant Memo dated 17.09.2002 wherein the procedure for recruitment of non-teaching staff, Librarian, Clerk, Group 'D' staff, has been provided for and the procedure provides that the marks for academic and professional qualification shall be awarded in the manner upto the qualification mentioned in the prior permission in accordance with the prevailing Government Orders. Clause (c) which is relevant for appointment to the Class IV staff, which we have reproduced here in above. 10. We have also observed in our earlier order that the approval for panel for the appointment of Library Attendant was not accorded by the District Inspector of Schools (SE) on the ground that instead of 5 full marks the selection has been made taking 3 marks as full marks. It would appear in the notification the full marks provided 5 against each of the items being viva voce, reading and writing, whereas the panel which has prepared by the Selection Committee and the same having been approved by the Managing Committee on 21.11.2009 awarded 3 marks against each of the items. It would appear in the notification the full marks provided 5 against each of the items being viva voce, reading and writing, whereas the panel which has prepared by the Selection Committee and the same having been approved by the Managing Committee on 21.11.2009 awarded 3 marks against each of the items. F.M.A. 1014 of 2016 Obviously, it was out of total marks of 5 which was awarded by the Selection Committee. We do not find any illegality in such selection. 11. Learned Counsel for the State-respondent has submitted affidavit-in-opposition. It has been averred that while preparing the panel for the post of Laboratory Attendant under S.T. category the school authority did not follow the procedure as laid down in the relevant Circular and/or Notifications issued by the School Department, Government of West Bengal and as such the District Inspector of Schools (SE), Hooghly has rightly disapproved the said panel in question. 12. It has been further averred that it appears from the score-sheet that there are so many illegalities and/or irregularities in awarding marks which is apparent on the face of the record and considering the same learned Single Judge also refused to pass any order to that effect. Copy of some of those documents which are annexed as Annexure 'A' to the affidavit-in-opposition does not contain any score-sheet to show that there was irregularity in awarding marks. On the other hand, if we take into consideration the Annexure 'A' being the resolution of the Selection Committee, we find that Ramesh Soren, the appellant herein, appeared in the selection process for the said post and he was positioned as first rank having secured 8 marks. There is a mistake of resolution of the Managing Committee held on 21.11.2009 at page 8 whereby the Managing Committee have resolved to approve the panel submitted by the Interview Committee for filling of the post of Library Attendant from S.T. category as the District Inspector of Schools (SE) vide memo no.114/SE dated 29.01.2009 wherein the marks given to the petitioner/appellant is 11 and ranked first. This extract of the resolution as attested by the Headmaster and Joint Secretary dated 23.11.2009 but it does not bear signature of the President and the Secretary. However, at page 9 the resolution of the Selection Committee shows that total 18 candidates have been called for interview and out of that 14 candidates appeared at interview. This extract of the resolution as attested by the Headmaster and Joint Secretary dated 23.11.2009 but it does not bear signature of the President and the Secretary. However, at page 9 the resolution of the Selection Committee shows that total 18 candidates have been called for interview and out of that 14 candidates appeared at interview. It provides that Ramesh Soren, the petitioner/appellant herein had secured 11 marks and ranked first. 13. But the learned Counsel for the State-respondent has pressed in service before us photocopy of the documents which are not annexed to the affidavit-in-opposition. 14. We are unable to accept such submission and rely on those photocopies which are said to be score-sheet, as they have not made part of the said affidavit-in-opposition and cannot be accepted at this stage in view of the provisions of Order 41, Rule 27 of the Code of Civil Procedure. 15. In reply, learned Counsel for the appellant invited our attention to the averments and contended that the school authorities strictly followed procedure as laid down in the relevant circulars and notifications by the School Education Department, Government of West Bengal and the formation of the Section Committee was done in strict compliance with the clear direction made by the District Inspector of Schools (SE), and the learned Judge on perusal of the said circular was of the view that the Selection Committed was constituted in accordance with circular in vogue. 16. Therefore, admittedly permission of the Selection Committee was not bad in law. We have considered with regard to award of marks since we find that marks 3 were awarded out of total marks of 5 in accordance with the notification as aforesaid, ergo, it cannot be said that the Selection Committee had awarded the marks illegally de hors the rule or the circular of the Government. 17. On perusal of the said notification/Government order dated 17.09.2002 it would appear that Selection Committee has not committed any mistake in awarding marks to candidates who had appeared before the Selection Committee. 18. 17. On perusal of the said notification/Government order dated 17.09.2002 it would appear that Selection Committee has not committed any mistake in awarding marks to candidates who had appeared before the Selection Committee. 18. For the reasons stated above, we find that the order of the learned Writ Court directing the school authorities to conduct selection afresh is not tenable in law and in fact at this distant point of time since selection and preparation of the panel was by a validly constituted Selection Committee who have awarded the marks in terms of the Government Order dated 17.9.2002. We accordingly, direct the concerned District Inspector of Schools (SE), to approve the panel as forwarded to his authority within a period of six weeks from the date hereof. 19. In the context above, the appeal is allowed. However, there shall be no order as to costs. 20. Urgent photostat copy of this order, if applied for, be given to the learned Counsel for the appearing parties on usual undertaking.