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2018 DIGILAW 829 (CAL)

Bablu Kumar Das v. Subrata Kumar Rajak

2018-11-26

I.P.MUKERJI, SUBHASIS DASGUPTA

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JUDGMENT : SUBHASIS DASGUPTA, J. 1. This Mandamus Appeal is directed against the judgment and order dated 23rd March, 2006 passed by the learned Single Judge of this Court in W.P No. 6469 (W) of 2002 (Subrata Kumar Rajak versus State of West Bengal and others) setting aside the subject re-casted panel of candidates for the post of clerk. The order of appointment also given in favour of appellant/respondent in the writ petition was also set aside. 2. The factual matrix has been elaborately dealt with by the learned Single Judge while disposing of the Writ Petition No. 6469 (W) of 2002. However, we feel it necessary in the interest of adjudication of this Appeal to make reference of some important facts. The facts simplicitor involved in this case are that the appellant/respondent participated in the selection process for the post of clerk in Dakshin Khanda Mahatmaji Vidyapith, Vill. & P.O. Dakshin Khanda, District Murshidabad along with many other suitable candidates. The Selection Committee was constituted by the Managing Committee of the school concerned taking prior approval of the District Inspector of Schools for filling up such post. 3. A panel was prepared showing one Shri Subrata Kumar Rajak, respondent no.1, as topper, while the position of appellant/respondent in the writ petition was shown as second in the same panel. The panel, as prepared by the Selection Committee of the school, was forwarded to the Managing Committee of School, which in turn forwarded the same with all relevant papers to the District Inspector of schools soliciting approval for the purpose. The appellant/respondent in the writ petition claimed to have performed well in the selection process and being dissatisfied with the selection process, proceeded to make a representation to District Administration for redressal of his grievance. District Magistrate, Murshidabad caused an inquiry deputing one subordinate Magistrate working under him and submitted a report. 4. The appellant/respondent in writ petition then proceeded to invoke the writ jurisdiction of this Court by filing a writ petition bearing No. 14551(W) of 2001, wherein the learned Judge of this Court disposed of the writ with a direction upon the Inspector of School (SE) Murshidabad to consider the representation giving fullest opportunity of hearing to the parties involved, and also for passing a reasoned order. In obedience to the direction recorded in W.P. No. 14551(W) of 2001, the District Inspector of Schools Murshidabad (SE) proceeded to hear-out the case giving opportunity to the parties involved. In course of hearing before the District Inspector of Schools, the teacher in-charge of the concerned institution candidly submitted that the panel was defective for a calculation mistake. The District Inspector of schools thus complied with the direction of the Court directing the school authority to re-cast the panel for the inherent mistake appearing therein, and referred back the same to the school authority for resubmission of the same. School authority got the panel re-casted for this admitted mistake in the panel, and forwarded the same to the Managing Committee/Administrator figuring appellant/respondent in writ petition in position no.1, while the position of writ petitioner/respondent was shown as 2nd in the same panel, and the Managing Committee in turn caused further onward transmission to District Inspector of Schools, enclosing all relevant papers for approval. The appellant/respondent joined the school in the post of clerk on 18th December, 2001, and since then has been drawing his salary month by month. 5. The re-casted panel and the selection process giving rise to the appointment of appellant/respondent in writ petition was the subject-matter of challenge in the writ filed by writ petitioner/respondent in appeal in W.P. No. 6469(W) of 2002. The learned Judge set aside the re-casted panel for the post under reference after quashing the selection process and accordingly appointment given to the appellant/respondent was declared illegal. 6. The points requiring adjudication in this appeal are very short, which may be formulated as follows:- (i) Whether the panel, which was re-casted, was within the ambit of the guidelines framed for the purpose? (ii) Whether the learned Single Judge was justified in setting aside the re-casted panel and the appointment made thereafter to the appellant on the basis of alleged interference caused by the District Administration in the selection process of the post. 7. Admittedly, the appellant/respondent joined the post as clerk on 18th December, 2001 and since then he has been drawing salary without any interruption. He is now 47 years old. The respondent/writ petitioner did not pursue this appeal after having lost his interest over this case. The affidavit-of-service revealed the same, and nothing contrary could be otherwise demonstrated from the materials on record. 8. He is now 47 years old. The respondent/writ petitioner did not pursue this appeal after having lost his interest over this case. The affidavit-of-service revealed the same, and nothing contrary could be otherwise demonstrated from the materials on record. 8. The learned advocate for the State respondent participated in the hearing of this appeal and rendered support to the stand of the appellant/respondent in writ petition stating to the effect that there had been mathematical error/omission in the panel, which was corrected further to the order in the earlier writ. 9. Upon perusal of the order of the District Inspector of schools directing the relevant panel to be re-casted, it appears that the teacher in-charge of the institution in course of hearing before District Inspector of Schools, Murshidabad admitted the defect arising out of summation of the marks, awarded to the candidates. The mistake thus, occurred was described to be inadvertently made. 10. We need to visualize the relevant administrative guidelines for arriving our satisfaction in the interest of adjudication of this appeal as to whether the order directing panel to be re-casted by the District Inspector of Schools was made in consonance with the guidelines framed and in turn the re-casted panel by the Selection Committee of the school authority was made within the contour of the guidelines framed for the purpose. 11. The relevant guidelines may be mentioned here for ready reference the Selection Committee after preparing the panel on the date of interview shall submit the same to the Organizing/Managing Committee/Ad-hoc Committee/Administrator. On being examined by the Managing Committee/Ad-hoc Committee/Administrator the panel shall be forwarded to the District Inspector of School (S.E.), for approval with all relevant papers within 15 days from the date of interview, Dist. Inspector of Schools (S.E.) shall convey his decision within one month from the date of receipt of the panel. 12. The guidelines framed and operating in the field, particularly in the case in hand manifestly revealed that the Selection Committee after preparing the panel on the date of interview shall submit the same to the Managing Committee/Administrator of school. On being examined by the Managing Committee/Administrator, the panel shall be forwarded to the District Inspector of School (SE) for approval with relevant papers. On being examined by the Managing Committee/Administrator, the panel shall be forwarded to the District Inspector of School (SE) for approval with relevant papers. The intent behind framing these rules is very apparent, which are basically intended to ensure more transparency in the selection process putting a check and guard at every stage so that fair selection could be made possible. And as a result of which, the Managing Committee was left with the power to examine/verify the panel based on the papers enclosed including the tabulation sheet, while forwarding the panel to the District Inspector of Schools for approval with all relevant papers. According to the learned Single Judge in W.P No. 6469 (W) of 2002 the panel prepared reached the finality up to the stage of preparation of panel, which was made by the Selection Committee, constituted basically for the purpose. Since there were two stages, left to be complied with subsequent to the preparation of panel, and those two stages were provided with power to do necessary verification/examination upon detecting of mistake/omission, i.e. one at the stage of Managing Committee/Administrator while forwarding a panel to District Inspector of Schools by selection Committee of the school authority, and the other at the stage when transmitted the panel from Managing Committee/Administrator to District Inspector of Schools (SE) with all relevant papers. It is, therefore, clear that the panel prepared by the Selection Committee, according to the guidelines is subject to verification not only once by the Managing Committee/Administrator, but also by the District Inspect of Schools while according approval to the selection. The mere preparation of panel of a selection process by the selectors cannot be said to have reached the finality which was rightly canvassed by Mr. Bikash Ranjan Bhattacharyya, learned Senior Advocate for the appellant and we would prefer to accept the same for the reasons shown above. 13. The situation would not have been different, had the Managing Committee/Administrator of the school authority suo motu submitted the recasted panel through the selectors of panel of candidates immediately on detecting inadvertent mistake/omission in the calculation of the marks awarded to the candidates. District Magistrate Murshidabad upon receipt of a complaint from the Member of Parliament simply conducted independent inquiry to ascertain the authenticity of the complaint and submitted inquiry report. District Magistrate Murshidabad upon receipt of a complaint from the Member of Parliament simply conducted independent inquiry to ascertain the authenticity of the complaint and submitted inquiry report. At best the inquiry report could be regarded as nothing but simply suggesting some steps to be taken, if there be any by the appropriate authority vested with the power to correct modify the mistake/omission, within the guidelines framed for the purpose. 14. More so the District Inspector of Schools in the process of according approval to the selection process cannot be expected to discharge his function as a post office simply for putting the seal of approval over it. It is incumbent upon District Inspector of Schools while according approval of the selection process, to apply his mind with due perusal of the documents submitted before it. Non-exercise of the supposed duties and obligation casted upon the District Inspector of Schools, as referred to hereinabove, would render the exercise a doubtful one on the part of the District Inspector of Schools. It is very much within the power of District Inspector of Schools to verify the marks awarded including mathematical calculation of the marks awarded in the selection process to ascertain mathematical precision in the calculation in a particular case, while according approval to the selection process. There is nothing in the order of the District Inspector of Schools while referring back to school authority for getting the panel re-casted, to reveal that the same was an outcome of the influence exercised by the District Administration by reason of the inquiry report submitted to that effect following receipt of the said complaint from a Member of a Parliament. 15. The argument advanced by Mr. Bikash Ranjan Bhattacharyya, the learned Senior Advocate for the appellant/respondent in the writ petition that the basis of referring the panel for its re-casting was not the interference alleged to be caused by the District Administration but, the order of the learned Single Judge, passed in W.P. No. 14551(W) of 2001, whereby the District Inspector of Schools was entrusted with the task of hearing the case after extending opportunities of hearing to the parties involved in the case. This exercise cannot be thrown aside in the absence of an exercise of undue influence, bias or malice on the part of the District Administration. This exercise cannot be thrown aside in the absence of an exercise of undue influence, bias or malice on the part of the District Administration. Neither there was ambiguity, nor any obscurity in the order of the District Inspector of Schools (SE) Murshidabad, while referring back the panel to Managing Committing/Administrator for rectifying its admitted mistake in the mathematical calculation therein. It could not be said that the recasted panel was a product of extraneous consideration. Mathematical error/omission is always rectifiable. Therefore, setting aside the panel after the panel was re-casted by the Selection Committee pursuant to the direction of the learned Judge passed in W.P. 14551(W) 2001 appears to be without the sanction of the law. The order of appointment of the appellant thus cannot be set aside. 16. When a person has been rendering service for the last 17 years uninterruptedly and drawing salary month by month by getting his name incorporated in the pay role, and writ petitioner/respondent shows no interest, we are of the view that the justice could only be rendered by allowing appeal. 17. The order of the learned Judge dated 23rd March, 2006 passed in W.P. No. 6469 (W) of 2002 is not sustainable and liable to be set aside. 18. The appeal is allowed. 19. No order as to costs. 20. Urgent certified photo copy of this judgment and order, if applied for, be furnished to the appearing parties on priority basis upon compliance of necessary formalities. I.P. Mukerji, J. : I agree.