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2018 DIGILAW 55 (CAL)

Gour Das v. State of West Bengal

2018-01-09

PROTIK PRAKASH BANERJEE

body2018
JUDGMENT : 1. Affidavit of service filed in Court today be kept with the records. 2. The writ petition has come after it had been placed in the warning list. Since the matter had been enlisted in the warning list on the Appellate Side of this Court, that constitutes sufficient notice to the parties. Besides the writ petition was moved after the writ petitioner had effected service on the learned Government Pleader’s office since State of West Bengal and its authorities were parties to the writ petition, an affidavit was filed which shows that copies of the writ petition along with forwarding list was sent to each of the respondents including the Secretary, the Headmaster and the Managing Committee, service through Secretary of the concerned school being Katwa Bharati Bhavan (H.S.) School by registered post with acknowledgement due. The addresses in the postal slips are those which also appeared in the cause titled in the respective addressees. Therefore, the articles were sent by registered post with acknowledgement due to the proper addresses of the addressees on September 24, 2013. In fact, more than four years have expired from that date. Therefore, in view of the provisions of the General Clauses Act, this Court is entitled to draw the inference that the said articles were sent under registered cover which have not been rejected and have been delivered to the said addressees. Hence I hold the writ petition is ready as regards service. 3. Today Mr. Biswajit De, learned advocate appearing on behalf of the State respondents has submitted his written instruction. 4. It appears from the said instructions that an interview was held on June 13, 2009 and August 2, 2009 for the post of Group ‘D’ staff reserved for Scheduled Tribes and two posts of Librarian Attendant respectively. The school authorities submitted a panel for approval based on the said interview on December 10, 2012. Before this by a resolution no.9 dated December 17, 2010 why the panel could not be submitted immediately had been explained. 5. None appears today to oppose the application on behalf of the school authorities. The school authorities submitted a panel for approval based on the said interview on December 10, 2012. Before this by a resolution no.9 dated December 17, 2010 why the panel could not be submitted immediately had been explained. 5. None appears today to oppose the application on behalf of the school authorities. From the instructions relied upon by the learned advocate appearing on behalf of the State of West Bengal, it appears that the only objection is the panel was submitted to the District Inspector of Schools (SE), Burdwan three years after the interview for the post of Group ‘D’ was held. The petitioner herein is interested in the Group ‘D’ post where it is an admitted position that he was the first empanelled candidate. I say admitted because the same has been confirmed by the learned advocate appearing on behalf of the State of West Bengal (on the basis of the submitted panel) including the District Inspector of Schools (SE), Burdwan, aforesaid. 6. Mr. Rabi Shankar Chatterjee learned advocate appearing on behalf of the writ petitioner instructed by Sumon Shankar Chatterjee drew my attention to Rule 10 of the West Bengal Schools (Recruitment of Non-Teaching Staffs) Rules, 2005, as they stood at the time of the recruitment process, and submitted that the validity of the panel is two years (at the relevant time) from the date of approval of the panel by the District Inspector of Schools (SE). Therefore, the time begins to run only from the approval of the panel and not from the date of selection or preparation of panel by the Selection Committee. Accordingly, the said objection made on behalf of the State of West Bengal is over-ruled as misconceived. 7. So far as the duty of the State and the District Inspector of Schools (SE), Burdwan to take action on the panel is concerned, the same is provided in Rule 9 sub-rule (7) of the Rule, which reads as follows: 9. (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. (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.” 8. In any view of the matter the State of West Bengal has no jurisdiction of sitting over the matter for a period of six years from the date when the said panel was sent to its officer. Even if I consider the period taken by the State of West Bengal to have started from the date of submission of the panel for approval and the date of filing of the writ petition, it would appear that the writ petition is of March 26, 2013 and the State of West Bengal was supposed to take a decision on the said panel within fifteen days from the date of submission of the panel, which was on December 10, 2012, which is more than one month from the date of receipt of the panel. State of West Bengal is clearly at fault. 9. Since the facts in the case are admitted, no useful purpose will be served by calling for affidavits. On the basis of the instructions as aforesaid, which were disclosed to this Court by the learned advocate for the State of West Bengal, I have no hesitation in holding that the State is under a duty to take a decision. The Managing Committee or the school authorities has not come before this Court to dispute the contention of the writ petitioner. Under normal course since the District Inspector of Schools (SE), Burdwan has not yet taken a decision in the matter, the proper course of action for me would have been, as a prudent Judge to pass a usual order asking the concerned District Inspector of Schools (SE), Burdwan to consider and take a decision about the panel within a certain time. Yet I cannot shut my eyes to the fact that six years have passed from the date when the panel was submitted to the District Inspector of Schools (SE), Burdwan during which time a member of the scheduled tribes who is unemployed and entitled to constitutional protection from this Court, has been dangling like a participle, and has been without employment for no fault of his own. 10. I have either the option of penalising the State of West Bengal with exemplary costs for delay or to prevent injustice in the facts of the case by applying the ratio of AIR 1937 SC 587 (Controller and Auditor General of India, Gan Prakash and Another Vs. K. S. Jagannathan and Another) and pass an order that the authority ought to have passed. The principle survives the judgment being overruled on another point by the judgment the case of Indra Sa…… and Others Vs. Union of India and Others reported in 1992 Supp(3) SCC 217. 11. I, therefore, direct the respondent no. 2 to consider the panel submitted to him on December 10, 2012 in respect of Group D and Librarian Attendant and take a decision on the same within a period of six weeks from date of communication of this order. In case the panel is approved, he will communicate his decision on acceptance of the panel and its approval within a period of 7 days thereafter. In case the respondent no.2 does not approve the panel, he shall pass a reasoned order and communicate the same within a period of three weeks from the date of taking the decision to the petitioner. in that case the status quo granted by this Court earlier shall continue for a period of further two weeks from the date of communication of the refusal. 12. However, I make it clear that the stand of the State of West Bengal whose learned advocate is fairer than the State Authorities who have waited for six years and have not taken any decision unless forced by the Court. 13. The writ petition is disposed of as above. 12. However, I make it clear that the stand of the State of West Bengal whose learned advocate is fairer than the State Authorities who have waited for six years and have not taken any decision unless forced by the Court. 13. The writ petition is disposed of as above. In view of the fair stand taken by the learned advocate for the State of West Bengal and since the order has been passed in the peculiar circumstances of the case by exercising the discretion under the Article 226 of the Constitution of India, I make no order as to costs.