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2018 DIGILAW 407 (CAL)

Kamakshya Narayan Pandey v. State of West Bengal

2018-06-08

SHEKHAR B.SARAF

body2018
JUDGMENT : Shekhar B. Saraf, J. 1. This is an application under Article 226 of the Constitution of India wherein the writ petitioner has challenged an order passed by the Commissioner of School Education, West Bengal (respondent No. 2) dated January 10, 2018 with respect to acceptance of the selection panel that had been sent by the Managing Committee of Pakurgoria B.N. Vidyapith being the respondent No. 4 herein. The facts leading to the present writ petition are as follows:- (a) It is to be noted that this is the third round of litigation before this High Court. On the first occasion by an order dated October 21, 2009 the District Inspector of Schools (SE), Purulia being the respondent No. 3, had declined to approve the panel prepared by the Managing Committee for recruitment of the post of Librarian. (b) By an order dated February 12, 2015, this Court had set aside the said order and directed the respondent authorities to consider the same after obtaining an explanation for the delayed submission of the panel from the Managing Committee. Subsequently, by an order dated August 17, 2015 the Commissioner of School Education examined the explanation of the Managing Committee for the delay in submission of the panel and came to the conclusion that a delay of four months not only violates the rules but also indicates some unethical and unfair practice involved in finalisation of the panel that should have been prepared on the very next date of interview. The Commissioner further held that supposed prevailing tension after the interview indicated that the recruitment process was not fair. (c) This Court once again had the occasion to look into the above order dated August 17, 2015 and by an order dated December 16, 2016 the said order was set aside by this High Court. The relevant portion of the order is provided below: "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. 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. 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 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. 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. 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." (d) The present writ petition is the result of an order dated January 10, 2018, passed by the Commissioner of School Education, once again rejecting the selection process for the reason that the explanation of delay provided by the Managing Committee was not acceptable. The relevant portion of the same is provided below:- "Considering the facts and explanation of delay in submitting the panel for Librarian, it appears that Managing Committee did not finalize and sent the panel for approval to the District Inspector of Schools (SE), Purulia in spite of the fact that Managing Committee had its meeting on different four dates and the panel of Group D was approved in one of its meeting. I am of the opinion that the Managing Committee members are only entitled to attend the meeting and may take part in the discussion as per agenda. Approval of a panel in a meeting depends on quorum as well as consequences of majority members. There is no role of outsiders in decision making process of the managing committee in approval of the panel for Librarian as prepared by the concerned selection committee. Hence, the explanation that the delay in submitting the panel of Librarian has occurred due to outsiders is not acceptable. Therefore, the panel in question cannot be approved under such facts and circumstances in accordance with law in the light of sub-rule 7 of Rule 9, stipulated in G.O. No. 1594-SE(S) dated 26/12/2005. Thus, the matter is disposed of from this end. All concerned be informed accordingly." (e) That, in spite of direction for affidavit having been given on May 4, 2018, no affidavit has been filed by the respondents. 2. Mr. Bari, appearing on behalf of the writ petitioner, has placed reliance on two judgments of this Court to submit that the time frame under the Rule 9, sub rule 7 of the West Bengal School (Recruitment of Non-Teaching Staff) Rules (hereinafter referred to as "said Rules"), 2005 for seeking grant of approval is only directory and not mandatory. In support of such a contention he has relied upon Asok Kumar Malik v. State of West Bengal & Ors. reported in 2013 (1) Calcutta Law Journal 70 and an unreported judgment and order dated June 15, 2012 in Rebati Raman Koley v. State of West Bengal (W.P. No. 19450(W) of 2010). 3. Mr. Bari further submitted that there are no consequences provided in the said Rules, 2005, in the event the time frame is not strictly observed. reported in 2013 (1) Calcutta Law Journal 70 and an unreported judgment and order dated June 15, 2012 in Rebati Raman Koley v. State of West Bengal (W.P. No. 19450(W) of 2010). 3. Mr. Bari further submitted that there are no consequences provided in the said Rules, 2005, in the event the time frame is not strictly observed. He submitted that the legislative intent behind the time frame of 15 days is for the purpose of speedy appointment of staff as unnecessary delay would result in the hampering of the functioning of the School. He submitted that the object behind such time frame cannot be penal in nature, and non-compliance thereof would not vitiate the entire process. He further submitted that the order dated January 10, 2018 has once again missed the wood for the trees and supporting its argument on irrelevant material, the authority has rejected the explanation provided by the Managing Committee. The finding of the Commissioner of School Education that there is no role of outsiders in the decision making process of the Managing Committee in the approval of the panel for the post of librarian, as prepared by the concerned selection committee, cannot obliterate the fact that there was local pressure and tension existing subsequent to the selection process. 4. He further submitted that it is not in dispute that the writ petitioner was the first empanelled candidate. He submits that the right of the petitioner should not be washed away simply because the Managing Committee delayed in sending the panel, as selected by the selection committee, to the District Inspector of Schools. His last submission was that this Court should finally decide the matter as this is the third round of litigation and the writ petitioner has suffered enough and more. 5. Mr. Supriyo Chattopadhyay, appearing for the State, submitted that the Commissioner of School Education had rejected the explanation of the Managing Committee based on relevant material. He submitted that four meetings were held by the subsequent Managing Committee. He submitted that in none of these four meetings was the selection of the Librarian discussed, and furthermore, the same was not even in the agenda for discussion. He submitted that four meetings were held by the subsequent Managing Committee. He submitted that in none of these four meetings was the selection of the Librarian discussed, and furthermore, the same was not even in the agenda for discussion. He defended the action of the Commissioner of School Education on the ground that the Managing Committee was a body that was required to function independently and not be influenced by outsiders or by tension prevailing in the locality. It was his submission that the excuse of tension in the locality is not a believable story. 6. I have considered the arguments placed by the counsels appearing on behalf of the parties and also perused the materials on record. 7. The issue that is required to be answered in this writ petition is whether non-compliance of a directory provision can vitiate the entire process of selection. 8. In my opinion, it is relevant to cite the disputed provision, being Rule 9, sub-rule 7 of the West Bengal Schools (Recruitment of Non-Teaching Staff) Rules, 2005. The relevant portion is given below: "(7)(a) The selection committee shall, within fifteen days from the date of the interview, prepare a panel and submit the same to the appointing authority. (b) The appointing authority shall, within fifteen days from the date of submission of the panel by the selection committee, examine the panel and, along with all relevant papers, submit the same to the District Inspector of Schools for his approval. (c) The District Inspector of Schools shall, within one month from the date of receipt of the panel, convey his decision thereon." 9. At this juncture, it would be appropriate to cite the ratio in Rebati Raman Koley (supra). The relevant portion is provided below:- "The last point which is vital and apt in the present case is whether the rejection of the panel on the ground that it does not confirm the provision contained under Rule 9 sub-Rule 7(a) of the West Bengal Schools (Recruitment of Non-Teaching Staff) Rules 2005 is proper. The relevant portion is provided below:- "The last point which is vital and apt in the present case is whether the rejection of the panel on the ground that it does not confirm the provision contained under Rule 9 sub-Rule 7(a) of the West Bengal Schools (Recruitment of Non-Teaching Staff) Rules 2005 is proper. In exercise of the power conferred under sub-section 1 of section 22 and sub-section 2 of section 5 of the West Bengal School (Control of Expenditure) Act, 2005, the Government framed West Bengal Schools (Recruitment of Non-Teaching Staff) Rules 2005 which regulates the appointment of the Non-Teaching Staff) Rules 2005 which regulates the appointment of the Non-Teaching Staff in the Secondary Schools within the State of West Bengal. Rule 9 of the said rules contains the procedure and the method of selection of the Non-Teaching Staffs. Sub-rule 7 of Rule 9 prescribes the period within which the different authorities are required to take steps. Although the use of expression "shall or may" is not decisive as to whether the provision is directory or mandatory, the intention of the legislature should be found out from the scheme of the Act. If the language employed in the statute is plain and unambiguous, the legislative intends could be gathered therefrom. It has been held by the Supreme Court in the case Nasiruddin (supra) that if an Act is required to be performed by a private person within the prescribed period, same would ordinarily be mandatory but in case of Public Functionary, it would be directory unless the consequences are provided therein, in these words: "39. Yet there is another aspect of the matter which cannot be lost sight of. It is a well-settled principle that if an act is required to be performed by a private person within a specified time, the same would ordinarily be mandatory but when a public functionary is required to perform a public function within a time frame, the same will be held to be directory unless the consequences therefor are specified. In Sutherland, Statutory Construction, 3rd Edition, Vol. In Sutherland, Statutory Construction, 3rd Edition, Vol. 3 at P. 107 it is pointed out that a statutory direction to private individuals should generally be considered as mandatory and that the rules is just the opposite to that which obtains with respect to public officers." The selection committee is the creature of the said statutory rules and consist of the Headmaster and the Secretary of the School Authority in case of a selection of a Clerk or Group-D Staff. There is no consequences provided in the said rule if the time-frame is not strictly observed with. The legislative intend behind the time frame is obviously for speedy appointments of the Staff as unnecessary delay would result in proper functioning of the School. The object behind such time frame cannot be said to be penal in nature so that noncompliance thereof would vitiate the entire process. Even it is imperative on D.I. Schools to convey his decision within one month from the date of the receipt of panel, the delay in taking a decision cannot render the entire selection process liable to be cancelled. Therefore, in my opinion, the provision contained under Rule 9(7) is not mandatory but directory in nature." 10. On the issue of whether a provision is directory or mandatory, it would be appropriate to consider the ratio laid down by the Apex Court in the case of Dalchand v. Municipal Corporation, Bhopal reported in (1984) 2 SCC 486 . The relevant paragraph is cited below. "There are no ready tests or invariable formulae to determine whether a provision is mandatory or directory. The broad purpose of the statute is important. The object of the particular provision must be considered. The link between the two is most important. The weighing of the consequence of holding a provision to be mandatory or directory is vital and, more often than not, determinative of the very question whether the provision is mandatory or directory. Where the design of the statute is the avoidance or prevention of public mischief, but the enforcement of a particular provision literally to its letter will tend to defeat that design, the provision must be held to be directory, so that proof of prejudice in addition to non-compliance of the provision is necessary to invalidate the act complained of. Where the design of the statute is the avoidance or prevention of public mischief, but the enforcement of a particular provision literally to its letter will tend to defeat that design, the provision must be held to be directory, so that proof of prejudice in addition to non-compliance of the provision is necessary to invalidate the act complained of. It is well to remember that quite often many rules, though couched in language which appears to be imperative, are no more than mere instructions to those entrusted with the task of discharging statutory duties for public benefit. The negligence of those to whom public duties are entrusted cannot by statutory interpretation be allowed to promote public mischief and cause public inconvenience and defeat the main object of the statute. It is as well to realise that every prescription of a period within which an act must be done is not the prescription of a period of limitation with painful consequences if the act is not done within that period." 11. Furthermore, in Chandrika Prasad Yadav v. State of Bihar and Others reported in (2004) 6 SCC 331 , the Apex Court held: "31. The question as to whether a statute is directory or mandatory would not depend upon the phraseology used therein. The principle as regards the nature of the statute must be determined having regard to the purpose and object the statute seeks to achieve." 12. On perusal of the above judgments of the Supreme Court and Calcutta High Court, the following principles emerge that are enumerated below: (a) Where the design of the statute is the avoidance or prevention of public mischief, but the enforcement of a particular provision literally to its letter will tend to defeat that design, the provision must be held to be directory, so that proof of prejudice in addition to non-compliance of the provision is necessary to invalidate the act complained of. (b) A direction made to public authorities to carry out an act within a specified time is usually directory in nature but is mandatory when it is accompanied with penal consequences of some kind. (c) A direction made to public authorities to carry out an act within a specified time is usually directory in nature when no consequences are provided in the statute on the non-compliance of such time frame. (c) A direction made to public authorities to carry out an act within a specified time is usually directory in nature when no consequences are provided in the statute on the non-compliance of such time frame. (d) A direction made to private authorities to perform a specific act within a specified time period is generally mandatory in nature. (e) A provision must be construed with the object of the legislation in mind. The provision cannot be construed to be mandatory when its implementation in such a manner would defeat the purpose of the legislation and therefore, must be considered as directory in nature. 13. On examination of the present provision in issue in this writ petition, it is crystal clear that no consequences have been provided in the said Rules, 2005, for non-compliance of the provisions of sub rule 7 of Rule 9. Accordingly, the non-compliance of the directory provision of sub Rule 7 of Rule 9 cannot vitiate and automatically annul the entire process of selection unless there are other grounds to support the same. 14. The undisputed facts in the present case are as follows:- (a) The petitioner came first in the selection process and was accordingly, the first choice; (b) There was prevailing tension in the locality. This fact has not been specifically controverted by the respondent authorities; (c) The Managing Committee sent the selection panel after a period of four months. 15. The reasoning provided by the Commissioner of School Education for yet again rejecting the selection panel, on the basis that there is no role of outsiders in the decision-making process of the Managing Committee, is very flimsy and cannot hold water. 16. By the order dated December 16, 2016 the question that the Court had directed the Commissioner of School Education to consider was as to why the tension at the premises would ipso facto render the selection process unfair. This has not been answered in a cogent manner by the Commissioner of School Education. 17. It has to be noted that this is the third round of litigation before this High Court and therefore, the issue needs to be decided by this Court itself and any remand would only delay the process, proliferate the suffering of the writ petitioner, who had been selected in the panel fair and square, and therefore, result in miscarriage of justice. 18. 18. In light of the above discussions, I am of the view that the panel prepared by the selection committee is required to be accepted and approved by the District Inspector of Schools and therefore, the order dated January 10, 2018 is set aside with a specific direction to the District Inspector of Schools to approve the panel and appoint the writ petitioner in accordance with law. The District Inspector of Schools is directed to accord approval to the panel and thereafter the school authority should issue the appointment letter. The entire process should be concluded within four weeks from the date of communication of this order. Urgent xerox certified copy of this order, if applied for, be given to the learned advocates for the parties on the usual undertaking.