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2021 DIGILAW 16 (CAL)

Nihar Biswas v. State Of West Bengal

2021-01-08

TAPABRATA CHAKRABORTY

body2021
JUDGMENT Tapabrata Chakraborty, J. - The dispute involved in the present writ petitions, pertains to appointment to the post of primary school teachers in the districts of North 24 Parganas and Malda. The petitioners in W.P. No. 15128 of 2017 (in short, WP-I) and W.P No. 1686 of 2017 (in short, WP-II), participated in the recruitment process of 2009 conducted by the North 24 Parganas, District Primary School Council (in short, DPSC) in terms of the West Bengal Primary School Teachers Recruitment Rules, 2001 (in short, the 2001 Rules). The petitioners in W.P. No. 21997 of 2017 (in short, WPIII) and W.P No. 21533 of 2017 (in short, WP-IV), participated in the same recruitment process conducted by the Malda, DPSC. As identical legal and factual issues are involved in all the writ petitions, the same are taken up for hearing together. 2. Shorn of unnecessary details the facts are that in the year 2009, a recruitment process was initiated for filling up the posts of teacher in primary schools under several DPSCs across the State guided by the 2001 Rules. The petitioners applied for participation and as they fulfilled the eligibility criteria under the 2001 Rules, they were allowed to appear in the written examinations. By a Government Order dated 21st June, 2012 (in short, the said GO), the said written examinations were cancelled and the respective Councils were directed to conduct the written examinations de novo indicating that "no other candidates except those who were allowed to appear in the earlier recruitment examination conducted for the same purpose will be allowed to appear in the de novo examination". The said GO was, however, challenged in several writ petitions. Against the interim orders passed in the same, appeals were preferred in which an order was passed on 18th September, 2013 granting liberty to the Councils to conduct the de novo examinations. It was also observed that the Councils shall also be entitled to prepare the panel but the panel shall not be given effect to during the pendency of the writ petitions without leave of Court. Pursuant to the said order, the de novo examinations were held and the petitioners duly participated in the same. They emerged to be successful and were also called for interview, in which they appeared. Pursuant to the said order, the de novo examinations were held and the petitioners duly participated in the same. They emerged to be successful and were also called for interview, in which they appeared. Subsequently, they came to learn that the panels prepared have been sent to the Directorate by the respective Councils for approval. Vide memoranda dated 11th June, 2015 and 17th June, 2015, the Deputy Director of School Education provisionally approved the panels prepared by Malda DPSC and North 24 Parganas, DPSC respectively for one year with an observation that such approval shall abide by the result of the matters referred to in the said memoranda. Even thereafter the authorities did not take any step towards appointment of the empanelled candidates. The representations submitted were also not attended to. Aggrieved thereby, the petitioners preferred the present writ petitions. The WP-I and WP-II were disposed of by a common order dated 19th July, 2017 observing that "the life of a panel does not commence until its publication" and that "provisional approval of the panel by the memo dated 17th June, 2015 would not mean that the life of the panel started on 17th June, 2015". Since it was reported to His Lordship that the writ petitions referred to in the panel approving order of the Deputy Director were dismissed and there was no order restraining effect being given to the panel, the North 24 Parganas DPSC and its Chairman were directed to take necessary steps for issuing appointment letters to the empanelled candidates, in accordance with law. The WP-III and WP-IV were also disposed of by a common order dated 7th September, 2017, the contents whereof bear close resemblance to the order dated 19th July, 2017. Aggrieved by the said orders, appeals were preferred by the State, its functionaries and the Malda, DPSC. The Appeal Court by a judgment dated 12th October, 2018 decided to remand the said writ petitions upon setting aside the orders impugned. Challenging the judgment dated 12th October, 2018, the writ petitioners in WP-I preferred a Special Leave Petition. The same was disposed of by a judgment dated 22nd July, 2019 remitting the matter to this Court with a direction to decide the same within the contour of the limited defence raised by the State in its counter affidavit. Challenging the judgment dated 12th October, 2018, the writ petitioners in WP-I preferred a Special Leave Petition. The same was disposed of by a judgment dated 22nd July, 2019 remitting the matter to this Court with a direction to decide the same within the contour of the limited defence raised by the State in its counter affidavit. The State thereafter preferred an application for modification/clarification of the order dated 22nd July, 2019 but the same was also dismissed. Though no appeal has been preferred by the petitioners in the district of Malda against the judgment dated 12th October, 2018, their claim would also be governed by the order passed in the Special Leave Petition. 3. Mr. Gupta, learned senior advocate appearing for the petitioners in W.P. No. 15128 (W) of 2017 submits that in view of serious irregularities in the recruitment examinations, the same were cancelled vide Government Order dated 21st June, 2012, with a direction upon the Chairmen of the DPSCs to conduct the recruitment examinations de novo. The petitioners participated in the de novo examinations and interview. Panels for different categories were prepared and sent by the respective Councils to the Directorate of School Education but the said panels were never published. Claiming publication of panel and appointment, the petitioners approached the authorities repeatedly but in vain. Ultimately the petitioners obtained copies of memoranda dated 11th June, 2015/17th June, 2015 issued by Deputy Director of Education. By the said memoranda the panels prepared pursuant to the recruitment process of 2009 were provisionally approved for a period of one year and it was also indicated that such approval shall abide by the pending writ proceedings referred to in the same. The word "provisional" has been defined in Black's Law dictionary (8th edition) as "temporary, conditional". It is only after the pending Court cases, as referred to in the said memoranda, were finally decided by orders dated 17th May, 2017 and 23rd June, 2017, life stood infused in the panels and the present writ petitions have been preferred within a period of one year from the dates of disposal of the pending proceedings. 4. He submits that keeping the recruitment process of 2009 in abeyance, the respondents illegally initiated a fresh recruitment process and filled up the existing vacancies in terms of the amended rules. 4. He submits that keeping the recruitment process of 2009 in abeyance, the respondents illegally initiated a fresh recruitment process and filled up the existing vacancies in terms of the amended rules. The amended rules being prospective in nature had no manner of application in respect of the recruitment process which had been initiated prior to such amendment. In support of such contention, reliance has been placed upon the judgments delivered in the case of Tulsi Roy versus Sri Krishanu Roy & Others, (2011) 2 CalHN 1021 and Asoke Sawoo versus State of West Bengal & Others, (2011) 2 CalHN 82 . 5. He argues that once the recruitment process is set into motion, the same is required to be brought to its logical conclusion in terms of the rules existing at the time of its initiation. In the instant case, without concluding the said recruitment process of 2009, the respondents have illegally replaced the same by a new recruitment process in terms of amended rules upon clubbing the vacancies. Such action is ex facie illegal and arbitrary, more so when, the authorities have concluded the recruitment process of 2009 and have given appointment to similarly situated candidates in the district of Howrah. 6. According to him, the right of the petitioners to be considered for appointment is not solely based on empanelment. Having participated in the recruitment process of 2009 and having emerged to be successful in the de novo examination and the interview, the petitioners have earned a right to be considered for appointment. Such right, as crystallized in favour of the petitioners, cannot be defeated on a purported plea that the life of the panel had expired. Having taken a conscious decision to keep the recruitment process of 2009 alive, as would be explicit from the GO dated 12th June, 2012, the respondents could not have filled up the notified vacancies through the subsequent recruitment process conducted in terms of the amended rules. In support of such argument, reliance has been placed upon the judgments delivered in the cases of Richa Mishra versus State of Chhattisgarh & Others, (2016) 4 SCC 179 , Puroshottam versus Chairman, M.S.E.B. and Another,1996 6 SCC 49 and State of U.P. versus Ram Swarup Saroj, (2000) 3 SCC 699 . 7. In support of such argument, reliance has been placed upon the judgments delivered in the cases of Richa Mishra versus State of Chhattisgarh & Others, (2016) 4 SCC 179 , Puroshottam versus Chairman, M.S.E.B. and Another,1996 6 SCC 49 and State of U.P. versus Ram Swarup Saroj, (2000) 3 SCC 699 . 7. He argues that even in case there is no provision towards publication of panel in the recruitment rules, it is imperative for the employer to publish the same and to bring it to the knowledge of the persons who participated in the recruitment process. The panels prepared and as submitted vide memoranda dated 11th June, 2015/17th June, 2015 do not disclose the names of the empanelled candidates. Such denial of publication of panel and non-disclosure of the names of the empanelled candidates have left the petitioners unaware about their position in the respective panels. Natural justice requires publication of the panels. Reliance has been placed upon the judgment delivered in the case of T. Narasimhulu & Others versus State of Andhra Pradesh & Others, 2010 SCC 545 . 8. Mr. Gupta submits that the final publication of the panel was withheld due to the interdict of the Court. For such act of the Court, the petitioners cannot suffer and their right cannot be defeated simply on a purported plea that the panel has lost its life. In support of such contention reliance has been placed upon the principle of "actus curiae neminem gravabit". There are existing vacancies and the petitioners, who had been empanelled, should be considered for appointment in the same. 9. Mr. Dhar, learned senior advocate appearing for the petitioners in WP-IV adopts the submissions of Mr. Gupta and submits that the publication of the panels was interdicted by orders of this Court, as would be explicit from the order of the Appeal Court dated 18th September, 2013. Upon empanelment, right stood vested upon the petitioners to be considered for appointment. Life was not infused in the panels so long the writ petitions, referred to in the memoranda dated 11th June, 2015/17th June, 2015, were pending and as such the employer cannot reject the petitioners' claim on a purported plea of expiry of the life of the panels. Upon empanelment, right stood vested upon the petitioners to be considered for appointment. Life was not infused in the panels so long the writ petitions, referred to in the memoranda dated 11th June, 2015/17th June, 2015, were pending and as such the employer cannot reject the petitioners' claim on a purported plea of expiry of the life of the panels. Having illegally clubbed the vacancies pertaining to the recruitment process of the year 2009 with the recruitment process initiated under the amended rules, the respondents cannot now deny the petitioners' claim on a purported plea of lack of vacancies. In support of such contention, reliance has been placed upon the judgments delivered in the cases of Dinesh Kumar Kashyap & Others versus South East Central Railway & Others, (2019) 12 SCC 798 , Satish Kumar Pal Kumar Pal versus State of U.P. & Others,2008 SCCOnLineAll 1459 , Rajender Bansal & Others versus Bhuru (Dead) Through Legal Representatives & Others, (2017) 4 SCC 202 , East Coast Railway & Another versus Mahadev Appa Rao & Others, 2010 SCC 678 and Prabir Kumar Sinha Roy & Others versus The Honble The Chief Justice, High Court, Calcutta & Others, (1996) 2 CalHN 497 . 10. Mr. Soumen Karati, learned advocate appearing for the petitioners in WP-II and Mr. Biswarup Bhattacharya, learned advocate appearing for the petitioners in WP-III adopt the submissions of Mr. Gupta and Mr. Dhar. 11. Mr. Kishore Dutta, learned Advocate General appearing for the State respondents submits that the matter has been sent on remand for a decision within the contour of the limited defence raised by the State. It is, thus, a case of limited remand. Such remand is contemplated under Order 41 Rule 25 of the Civil Procedure Code (in short, CPC). The trial court cannot travel beyond the domain of the order of remand. In view of the order passed by the Hon'ble Supreme Court, this Court cannot decide the issues of publication of panel and appointment, as prayed for in the writ petitions. In support of such contention reliance has been placed upon the judgments delivered in the case of P. Purushottam Reddy & Anr. -Vs- M/s. Pratap Steels LTD., (2002) 2 SCC 686 and Mal Singh -Vs- Mohinder Singh,2009 SCCOnLineP&H 951 . 12. In support of such contention reliance has been placed upon the judgments delivered in the case of P. Purushottam Reddy & Anr. -Vs- M/s. Pratap Steels LTD., (2002) 2 SCC 686 and Mal Singh -Vs- Mohinder Singh,2009 SCCOnLineP&H 951 . 12. He contends that even if such argument is not acceptable to this Court, no direction can be issued towards publication of the panels inasmuch as there is no provision to that effect in the 2001 Rules. In the absence of any provision under the relevant rules towards publication of the panel, no mandamus can be issued. 13. Drawing the attention of this Court to Rules 10 and 13 of the 2001 Rules, he submits that an approved panel can remain valid for one year from the date of approval and the validity of such panel may be extended by six months at a time but the total period of such extension shall not exceed one year. No decision was taken by the competent authority towards extension of life of the panels and as such it expired on and from the date of completion of a year after provisional approval on 11th June, 2015/17th June, 2015. Subsequent thereto, the writ petitions have been filed. The petitioners have admittedly approached this Court belatedly and the Court cannot come to the rescue of the persons who are not vigilant of their rights. In support of such contention reliance has been placed upon the judgment delivered in the case of Nadia Dist. Primary School -Vs Sristidhar Biswas and Others, (2007) 12 SCC 779 . 14. Placing reliance upon a judgment delivered in the case of State of Bihar and Others -Vs- Md. Kalimuddin and Others, (1996) 2 SCC 7 , Mr. Dutta submits that State has every right to discontinue a recruitment process considering a change in the rules and the State is under no legal duty to fill up all or any of the vacancies. Any direction towards continuance of the panel beyond the period of one year would be in violation of the statutory rule and even the Court, in exercise of judicial discretion, cannot stop the panel from lapsing. Such panel cannot be a perennial source of appointment. 15. Any direction towards continuance of the panel beyond the period of one year would be in violation of the statutory rule and even the Court, in exercise of judicial discretion, cannot stop the panel from lapsing. Such panel cannot be a perennial source of appointment. 15. Answering a query of this Court as to whether the State could have discontinued the recruitment process initiated under the said Rules of 2009 and could have filled up the vacancies earmarked for the said recruitment process upon initiating a fresh recruitment process under the amended rules, Mr. Dutta contends that with the enactment of the Right of Children to Free and Compulsory Education Act, 2009 and the National Council for Teacher Education (Determination of Minimum Qualifications for Recruitment of Teachers in Schools) Regulations, 2001 leading to amendment of qualifications in the 2001 Rules, there has been a sea change in the qualifications which candidates aspiring to be primary teachers are required to possess and to give effect to the right of education to the younger generation who should have the right to receive education from duly qualified teachers, fresh recruitment process under the amended rules was initiated. The rules were amended in view of the enactment of new laws and for the benefits of the class of students. The said class is not a party to the proceedings and any direction to fill up the post of primary teachers through the petitioners, who have much less qualification compared to the qualifications required under the amended rules, would be affecting the interest of the students at large. Such reasoning cannot be stated to be unacceptable in view of the stand taken by the State respondents while defending the decision contained in the GO dated 21st June, 2012 in the earlier proceedings. 16. In answer to a further query of this Court as to how the authorities have filled up the vacancies in Howrah through the candidates empanelled on the basis of the recruitment process of 2009, Mr. Dutta submits that the authorities were compelled to proceed with the recruitment process in the district of Howrah in view of the orders passed by this Court and thus, it cannot argued on behalf of the petitioners that the State has practised discrimination. 17. Dutta submits that the authorities were compelled to proceed with the recruitment process in the district of Howrah in view of the orders passed by this Court and thus, it cannot argued on behalf of the petitioners that the State has practised discrimination. 17. According to him, there is no quarrel with the proposition of law as discussed in the judgments upon which reliance has been placed by Mr. Gupta and Mr. Dhar. However, it is well-known that a decision is an authority for what it decides and not what can logically be deduced therefrom. Even a slight difference in fact or an additional fact may make a lot of differences in the decision making process. In the case of Ram Swarup Saroj (supra) the writ petition was filed prior to expiry of the panel. The judgments delivered in the cases of Tulsi Roy (supra), Ashok Sahu (supra) and Richa Mishra (supra) are distinguishable on facts. In the case of T. Narasimhulu (supra), the Court was considering an issue as regards publication of Acts and Rules. The ratio has no manner of application in case of publication of panel. The change in the rules was not a change simpliciter. In view of the enactment of new laws, the rules were amended and a new recruitment process was initiated and the posts were filled up through qualified candidates. Such action cannot be termed as arbitrary. It is not a case that certain candidates from the recruitment process of 2009 have been appointed and others have been left out and as such the judgments delivered in the cases of P. Purushottam Reddy (supra), Dinesh Kumar Kashyap (supra), Satish Kumar Pal (supra), Prabir Sinha (supra), East Coast Railway (supra) and Rajender Bansal (supra) are distinguishable on facts. 18. Mr. Chatterjee, learned advocate appearing for North DPSC in WP-1 and WP-II submits that the period of validity of panel has been specified in the Rules itself. When the statute lays down such period of validity, the same cannot stand extended on a purported plea of pendency of proceedings. The approval of the panel vide memo dated 17th June, 2015 was consciously restricted to one year and the same having expired on 16th June, 2016, the petitioners cannot claim appointment by filing writ petitions thereafter. The vacancies have already been filled up and there is no scope to accommodate the petitioners. The approval of the panel vide memo dated 17th June, 2015 was consciously restricted to one year and the same having expired on 16th June, 2016, the petitioners cannot claim appointment by filing writ petitions thereafter. The vacancies have already been filled up and there is no scope to accommodate the petitioners. Reliance has been placed upon a judgment delivered in the case of Vijoy Kumar Pandey versus Arvind Kumar Rai & Others, (2013) 11 SCC 611 . 19. He argues that the subject-matter of challenge in the writ petitions W.P. No.30510 (W) of 2014 (Rafikul Mondal vs. State of West Bengal and others) and W.P. No.30744 (W) of 2014 (Mithun Aich & Others vs. State of West Bengal and Others) was restricted to the validity of the GO dated 21st June, 2012. There had been no adjudication of the issues as regards provisional approval and extension of life of panel. A decision cannot be relied upon in support of a proposition that it did not decide. 20. He submits that upon amendment of the rules, the procedure of Teacher Eligibility Test (in short, TET) was introduced and the West Bengal Board of Primary Education (in short, the said Board) was empowered to recruit the primary teachers and as such the said Board is a necessary party and the writ petitions cannot be decided in its absence. 21. Mr. Bari, learned advocate appearing for Malda, DPSC in WP-III and WP-IV adopts the submissions of the learned Advocate General. 22. In reply, Mr. Gupta denies and disputes the contention of Mr. Dutta and Mr. Chatterjee and submits that the order passed by the Hon'ble Supreme Court cannot be strictly described to be an order under Order 41 Rule 25 of CPC and that in exceptional cases the Court may exercise the power of remand dehors Rule 23 -23A of order 41. In the event this Court holds that the life of the panel had continued till the disposal of the pending proceedings, it cannot be said that the order dated 22nd July, 2019 restricts this Court from issuing consequential directions. An issue is framed and decided by the Court to come to a conclusion as to whether the relief can be granted. The judgment dated 22nd July, 2019 cannot be interpreted as to have relegated an issue only for academic purpose. An issue is framed and decided by the Court to come to a conclusion as to whether the relief can be granted. The judgment dated 22nd July, 2019 cannot be interpreted as to have relegated an issue only for academic purpose. In view thereof, the judgments delivered in the cases of P. Purushottam Reddy (Supra) and Mal Singh (Supra) have no manner of application in the present cases. 23. He argues that the judgment in the case of Kalimuddin (supra) has dealt with a situation where a panel had admittedly lost its life. The same has no application when the Court is yet to decide the issue as to whether the life of a panel continues during pendency of Court proceedings. It is also not a case that the petitioners are praying for any direction from the Court towards extension of the life of a panel which has expired. 24. Mr. Dhar, in reply agrees that the judgment of the Hon'ble Supreme Court is an order of limited remand. However, the direction had been to consider the petitioners' claim within the contour of the limited defence taken by the State. In view thereof, the State cannot agitate any further issue save and except its limited defence. Thus, the petitioners' claim cannot be frustrated on a purported plea of lack of vacancies. 25. By the judgment dated 12th October, 2018, the Appeal Court allowed all applications connected with the appeals including the application for addition of parties being CAN 3206 of 2018 filed in connection with the appeal arising out of the order passed in WP-I and the applications for addition of parties being CAN 4579 of 2018 and CAN 6073 of 2018 filed in connection with the appeal arising out of the order passed in WPIV. Office is directed to incorporate the names of the said applicants in the respective writ petitions being WP-I and WP-IV. Office is directed to incorporate the names of the said applicants in the respective writ petitions being WP-I and WP-IV. The applications for addition of parties, filed after the order passed by the Appeal Court, being CAN 5135 of 2019, CAN 6812 of 2019, CAN 7981 of 2019, CAN 12566 of 2019, CAN 12567 of 2019 in connection with WP-I and applications being CAN 1256 of 2019, CAN 10542 of 2019, CAN 12237 of 2019, CAN 4411 of 2020, CAN 4412 of 2020, CAN 06 of 2020 and CAN 07 of 2020 in connection with WP-II and applications being CAN 615 of 2020, CAN 2941 of 2020 in connection with WP-IV, cannot be entertained at this stage after the matter has been remitted to this Court by the Hon'ble Supreme Court. The mere fact that a fresh litigation can be avoided is no ground to invoke the power under the rule. They are neither necessary nor proper parties and their presence is not required for adjudication of the present matter and accordingly the said applications are dismissed. The other applications filed in connection with the writ petitions inter alia praying for early hearing, are also disposed of. 26. A supplementary affidavit has been filed by the petitioners in WP-IV annexing a letter dated 27th August, 2018 issued on behalf of the Malda, DPSC in reply to an application filed under the Right to Information Act, 2005 wherefrom it appears that 530 posts of primary teachers, as on 24th July, 2018 are vacant. Reliance has also been placed upon a memo dated 1st December, 2020 issued on behalf of the Malda, DPSC reporting to the Deputy Director (Rural Primary) that existing vacancies in the said district, as on 1st November, 2020, is 1492. The number of existing vacancies in the year 2019 in the district of North 24 Parganas has been reported to be approximately 1100 vide memo dated 21st May, 2019. 27. Affidavits-In-Opposition have been filed on behalf of the State in WP-II and WP-IV. North 24 Parganas, DPSC has filed affidavits- in -opposition in WP-I and WP-II and Malda, DPSC has filed affidavit-in-opposition in WP-III. The petitioners have replied to all the affidavits-in-opposition. At page 64 of the Council's affidavit-in-opposition in WP-I, a letter dated 7th August, 2017 issued by the respondent no. North 24 Parganas, DPSC has filed affidavits- in -opposition in WP-I and WP-II and Malda, DPSC has filed affidavit-in-opposition in WP-III. The petitioners have replied to all the affidavits-in-opposition. At page 64 of the Council's affidavit-in-opposition in WP-I, a letter dated 7th August, 2017 issued by the respondent no. 6 therein to the respondent no.3 has been annexed wherefrom it appears that the Council itself was surprised as to how the West Bengal Board Primary Education had published the advertisement notification dated 26th September, 2016 clubbing the vacancies earmarked for the primary teacher recruitment of 2009. The memo dated 27th September, 2016 issued by the respondent no.7 to the respondent no.2 in WP-IV, as annexed at page 19 of the reply clearly reveals that the vacancies in the district of Malda pertaining to the primary teacher recruitment of 2009 were also clubbed and advertised in the subsequent recruitment process. No reason is forthcoming as to why the new recruitment process, clubbing the vacancies pertaining to the recruitment process of 2009, was initiated without completing the recruitment process of 2009, in accordance with the recruitment rules operating at the time of initiation of said process. 28. The operative part of the judgment dated 22nd July, 2019 delivered by the Hon'ble Supreme Court runs as follows: "On a perusal of the impugned order, we find that the Division Bench in an elaborate judgment while remitting the matter to the learned Single Judge has sought to raise 12 questions of law in para 30, which in our view, were not called for. We are thus enable to even sustain the impugned order. We are of the view that the matter ought to be remitted to the learned Single Judge within the contour of the limited defence raised by the respondents before us i.e. whether the life of the panel continues, specially as there were earlier interdict of the court which was subsequently dissolved. We may also note that the respondents in their wisdom decided to hold the examination pending those proceedings and are now seeking to contend as if the life of the panel elapsed by reason of the time span in view of the matters pending in the court. We however, say no more. We thus remit the matter to the learned Single Judge to decide it on merits within the aforesaid contour. We however, say no more. We thus remit the matter to the learned Single Judge to decide it on merits within the aforesaid contour. The matter has been pending for many years and while we would loathe to either direct or request the High Court for early disposal of the matter, we do believe that this is an exceptional case where we can request the learned single judge of the High Court to consider the matter as expeditiously as possible to put an end to this long drawn litigation where the appellants are waiting for their jobs. The appeal is allowed in the aforesaid terms. Parties to bear their own costs." 29. The contents of the judgment dated 22nd July, 2019 need to be considered together and not in isolation. A particular clause cannot be taken up and highlighted. This Court has been directed to decide the matter on merits within the contour of the limited defence raised by the State. A decision on merits is a decision which conclusively settles the dispute among the parties. Such a decision does not merely mean the conclusion - it embraces within its fold the reasons which form the basis for arriving at the conclusions. Thus, the contention of Mr. Dutta that in view of the judgment dated 22nd July, 2019, this Court cannot decide the issues of publication of panel and appointment, as prayed for in the writ petitions, is not acceptable and the judgments delivered in the cases of P. Purushottam Reddy (supra) and Mal Singh (supra) have no manner of application. 30. Indisputably, the recruitment process of 2009 was not cancelled. Only the written examination, initially held under the said recruitment process, was cancelled and a de novo examination was directed to be held and the final panel was also directed to be published vide GO dated 21st June, 2012. The petitioners succeeded in such de novo examination and were called for interview. Panels were prepared and submitted by the Councils in terms of the GO dated 21st June, 2012. The petitioners succeeded in such de novo examination and were called for interview. Panels were prepared and submitted by the Councils in terms of the GO dated 21st June, 2012. By the memo dated 11th June, 2015 the panel in the district of Malda was approved provisionally for one year and it was also indicated that such approval shall abide by the result of the final judgment of the Hon'ble Division Bench, High Court, Calcutta in W.P. No. 31563 (W) of 2014 (Himangshu Mondal & Others versus State of West Bengal & Others). The said writ petition was pertaining to the district of Howrah and the interim order passed in the same restraining the Howrah DPSC from making any appointment was set aside in appeal and the writ petition was dismissed on 23rd June, 2017. The panel prepared in the district of North 24 Parganas was approved provisionally for one year vide memo dated 17th June, 2015 and it was also indicated that such approval shall abide by the leave and result of the final order and judgment of the Hon'ble Division Bench, High Court, Calcutta in the Court cases W.P. No.30510(W) of 2014 (Rafikul Mondal -VsState of West Bengal and Others) and W.P. No.30744 (W) of 2014 (Mithun Aich & Others -Vs- State of West Bengal and Others). The said writ petitions were dismissed on 17th May, 2017 and 23rd June, 2017 respectively. It is only thereafter life stood infused into the panels. The present writ petitions have been preferred within a period of one year from the date of disposal of earlier pending proceedings and that as such it cannot be said that the writ petitions have been preferred after expiry of the life of the panel. 31. No doubt, it is true, that mere selection does not give any vested right to the selected candidates to be appointed. However, the employer must satisfy the Court as to why it did not resort to appoint the empanelled candidates. Just because discretion is vested in the authority, it does not mean that such discretion can be exercised arbitrarily. The Appeal Court passed the interim direction on 18th September, 2013 intercepting the recruitment process of 2009. The connected writ petitions were dismissed on 17th May, 2017 and 23rd June, 2017. Just because discretion is vested in the authority, it does not mean that such discretion can be exercised arbitrarily. The Appeal Court passed the interim direction on 18th September, 2013 intercepting the recruitment process of 2009. The connected writ petitions were dismissed on 17th May, 2017 and 23rd June, 2017. In the midst thereof, the recruitment rules were amended in the year 2012 and an advertisement under the amended rules was published on 26th September, 2016 for the vacancies including the vacancies earmarked for the recruitment process of 2009 though at that juncture as per the memoranda dated 11th June, 2015 and 17th June, 2015 the panels prepared as per recruitment process of 2009 stood provisionally approved. From the averments made in WP-IV it would appear that a writ petition was even preferred by some candidates who participated in the recruitment process of 2009 being W.P. No.2620 (W) of 2017 (Tapan Singha & Others versus State of West Bengal & Others) seeking a declaration that upon issuing the notification dated 26th September, 2016, the said Board has not merged/eclipsed the quantum of existing vacancies in the district of Malda with the quantum of vacancies as notified on 5th August, 2009. The said writ petition was admitted with a direction towards exchange of affidavits. In WPIV, three letters dated 22nd June, 2017, 28th June, 2017 and 29th June, 2017 issued by the Chairman, Malda DPSC to the Directorate of School Education have been annexed at pages 58, 59 and 60 wherefrom it appears that the Chairman of the Council was repeatedly seeking permission for publishing the panel of 2009-10. 32. The amendment of the rules was brought into effect on 13th August, 2012, i.e., even prior to conclusion of the de novo written examinations conducted in terms of the said GO. It is only after the de novo examinations were held, the authorities decided to initiate a new recruitment process upon clubbing the vacancies with the sole intent to frustrate the right of the candidates to be considered for appointment. The petitioners cannot be deprived of that limited right due to prospective amendment of rules. They would be permanently debarred from participating in any selection process for appointment to the post of primary teacher in view of their age. 33. The petitioners cannot be deprived of that limited right due to prospective amendment of rules. They would be permanently debarred from participating in any selection process for appointment to the post of primary teacher in view of their age. 33. It was never disclosed by the authorities that they have clubbed such vacancies and it was a blow below the belt to the petitioners herein and similarly placed candidates. Thus, in a clandestine manner, the authorities have ousted the said candidates from the zone of consideration for appointment. Fairness and reasonableness are paramount issues for administrative action. As a model employer the State Government must conduct itself with high probity and candour and ensure that its employees do not succumb to any discriminatory practice in the procedural rigmarole. The infirmities and illegalities perpetrated by the respondents cannot be allowed to earn immunity and the wrong committed has to be redressed by the State and the statutory authorities. 34. Even after amendment of the rules, the Council remained the authority to determine the vacancies. Its authority to appoint primary teachers has also not been taken away upon amendment of the rules. The West Bengal Board of Primary Education had no role to play in respect of the recruitment process of 2009 and as such for deciding the lis, the Board's presence is not a necessary. 35. Rules 10 and 13 of the 2001 Rules do not speak of any provisional approval and the said phrase has not been defined under the said rules. The rigors of the said rules are applicable in normal circumstances and not in the present cases, where due to detection of serious irregularities, State took a conscious decision vide GO dated 21st June, 2012 to cancel the first written examinations and to conduct de novo written examinations. After conclusion of such written examination followed by interview and preparation of panel, the recruitment process was discontinued in the districts of North 24 Parganas and Malda, without any reason. However, in terms of the said GO, fresh written examinations were conducted by the Howrah, DPSC and the selected candidates have been offered appointment. Pertinently, the candidates so appointed do not necessarily belong to the category of trained candidates because training qualification was not an essential qualification in terms of the 2001 Rules as it existed in 2009 when the process for recruitment commenced initially. Pertinently, the candidates so appointed do not necessarily belong to the category of trained candidates because training qualification was not an essential qualification in terms of the 2001 Rules as it existed in 2009 when the process for recruitment commenced initially. Such shifting of stands by the State in elbowing out the empanelled candidates of the recruitment process of 2009 in the districts of North 24 Parganas and Malda lacks bona fide and smacks of arbitrariness. 36. The decision in Md. Kalimuddin (supra) is distinguishable because in the present case, the recruitment process of 2009 as per the said Rules of 2001 was completed and appointments were given by the Howrah, DPSC whereas a different stand was taken by the respondents in the districts of North 24 Parganas and Malda. Viewed in the light of the same and on the touchstone of Article 14 such action is arbitrary and unreasonable. In the case of Nadia District Primary School Council (supra), the petitioners approached the Court nine years after expiry of the panel and is thus clearly distinguishable on facts. 37. Exceptional circumstances persuaded the Government to take a decision to conduct de novo examination. From the memoranda dated 11th June, 2015/17th June, 2015, the petitioners came to learn that panels were submitted by the Councils. However, no panel, as defined under the amended rules, was published. Litigation pertaining to the recruitment process of 2009 has commenced in the year 2012 and is yet to attain finality. In the midst thereof, a period of eight years has elapsed. In such exceptional circumstances, Court is required to step in and issue necessary direction towards disclosure of the names of the candidates who have been empanelled otherwise the said names would continue to remain in the secrete recesses of a chamber to which the candidates have no access. The principle of natural justice implies a duty to act fairly and such rule cannot be sacrificed at the altar of administrative convenience and celerity. Publication of the panels is, thus, essential in the interest of transparency and probity. 38. The shackles towards final approval of the panels stood obliterated only after the Court proceedings, as referred to in the memoranda dated 11th June, 2015 and 17th June, 2015, were brought to an end on 17th May, 2017 and 23rd June, 2017. Publication of the panels is, thus, essential in the interest of transparency and probity. 38. The shackles towards final approval of the panels stood obliterated only after the Court proceedings, as referred to in the memoranda dated 11th June, 2015 and 17th June, 2015, were brought to an end on 17th May, 2017 and 23rd June, 2017. The life of the panels continued in view of the interdict of the Court which stood subsequently dissolved. The said period during which the panels could not be worked out owing to pendency of the writ petitions should be excluded for computing the life of the panels. 39. In the GO dated 21st June, 2012 there was a categoric direction towards publication of the panel, after conducting the de novo examination, within 90 days from the date of issuance of the said GO. The validity of the said GO having been upheld by this Court, the respondents cannot evade their obligation to publish the panels. 40. Accordingly, this Court directs the North 24 Parganas, DPSC and the Malda, DPSC to publish the panels, as provisionally approved vide memoranda dated 11th June, 2015/17th June, 2015, in their respective websites within a period of two weeks from the date of communication of this order. 41. Vacancies arise every year due to retirement/ resignation/ removal or dismissal/ death of appointees. The 2001 Rules also provide for sanction of additional posts of primary teachers due to increase in roll strength in primary schools of the district or the sub-division. Having regard to the peculiar facts and circumstances that have emerged and as the respondents are to be blamed for having denied appointment to the candidates empanelled, they must take necessary steps and ensure that the empanelled candidates are appointed in the existing vacancies and in the vacancies arising in immediate future. The respondents including the State respondents shall also take steps towards creation of new posts to accommodate and appoint the empanelled candidates. 42. The above exercise towards determination and creation of vacancies shall be completed by the respondents including the State respondents within a period of two weeks from the date of publication of panels. 43. Within a period of two weeks thereafter the authorities of the North 24 Parganas, DPSC and Malda, DPSC shall take necessary steps for issuing appointment letters to the empanelled candidates, in accordance with law. 44. 43. Within a period of two weeks thereafter the authorities of the North 24 Parganas, DPSC and Malda, DPSC shall take necessary steps for issuing appointment letters to the empanelled candidates, in accordance with law. 44. With the above observations and directions, the writ petitions are disposed of. 45. There shall, however, be no order as to costs. 46. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.