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2023 DIGILAW 1018 (CAL)

Swapan Kumar Hazra v. Sabitri Mahata

2023-06-28

SUBRATA TALUKDAR, SUPRATIM BHATTACHARYA

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JUDGMENT : SUPRATIM BHATTACHARYA, J. 1. The instant appeal has been preferred by the appellant challenging the Judgment and Order dated 24.03.2023 passed in writ petition being WPA 29065 of 2013 and WPA 18303 of 2015. 2. Through the impugned Judgment, the Hon’ble Single Bench has cancelled the appointment issued in favour of Swapan Kr. Hazra and has directed to issue a fresh appointment in favour of Sabitri Mahata: (I) The fact which has given rise to the instant appeal is that the appellant herein namely Swapan Kr. Hazra along with two others had initially filed a writ petition being WP 24339(W) of 2013 seeking regularization of their service stating that they have been providing continuous service in the Goaltore High School (HS) but the school had not regularized their service against the vacant post. They had further claimed themselves to be eligible for the post of non-teaching staff. The allegations of the writ petitioner were that the school-in-question was trying to fill up the vacant post through direct recruitment without considering them. The contention of the writ petitioners in the said writ petition was that the writ petitioners have been engaged as non-teaching staff in the vacant post and the appellant namely Swapan was appointed as Gruop-C employee. The writ petitioners had also stated that their performance is satisfactory and the school authority is paying monthly honorarium to the writ petitioners. It was their further contention that in spite of several requests the Managing Committee had not issued appointment letter in favour of them but they have been able to obtain a written declaration from the school that the writ petitioners are serving in the school. (II) An advertisement was published by the school authority on 14.09.2013 seeking application for recruitment in one post of Group-C and two posts of Group-D. (III) Being aggrieved by the publication of the advertisement by the school authority to fill up the vacant post without considering them, the appellant Swapan and two others filed another writ petition being WPA No. 29065 (W) of 2013. (IV) The Hon’ble Court was pleased to direct the parties to file affidavits and the point of maintainability of the writ petition was kept open. (IV) The Hon’ble Court was pleased to direct the parties to file affidavits and the point of maintainability of the writ petition was kept open. The interim order prayed for by the writ petitioners had been refused but the Court had directed that the steps taken by the respondents on the basis of the impugned advertisement shall abide by the result of the writ petitioners. (V) The writ petition being WP No. 24339 (W) of 2013 seeking regularization was taken up for consideration and the Hon’ble Court observed that the writ petitioners have failed to produce any document in support of their appointment adhering to the provisions of the West Bengal Schools (Recruitment of Non-Teaching Staff) Rules, 2005. The Court had also observed that it is settled principle of law that the recruitment rules have to be followed strictly and should not be breached. The Court had opined that the prayer of the writ petitioners to regularize or to give approval of appointment cannot be allowed as the writ petitioners do not have any legally enforceable right and thus had dismissed the said writ petition. (VI) Challenging the order of dismissal the writ petitioners preferred an appeal before the Hon’ble Division Bench being MAT 1622 of 2013. The Court allowed the appellant namely Swapan to participate in the interview to be held, subject to the result of the appeal. In the said order it has been mentioned that the said Swapan has crossed the age bar and would otherwise not be eligible for the post but as he has been allowed to continue in service temporarily, not allowing him to participate in the interview would be to deprive him forever to a permanent post. The aforementioned order was passed in view of the decision reported in 2013 (1) CHN (Cal) 9 in the case between Gobindo Chandra Mondal vs. Principal, Rabindra Mahavidyalaya. (VII) The appellant namely Swapan participated in the recruitment process and stood first in the merit list. (VIII) The respondent namely Sabitri Mahata participated for the post of Group-C in response to the advertisement published by the school. She stood second in the merit list. (IX) The respondent Sabitri apprehended that if the panel is approved then she may lose her chance for being appointed in the single vacant post, as such she filed a writ petition being WP 36555 (W) of 2013. She stood second in the merit list. (IX) The respondent Sabitri apprehended that if the panel is approved then she may lose her chance for being appointed in the single vacant post, as such she filed a writ petition being WP 36555 (W) of 2013. In the said case the court observed that the appeal preferred by the appellant Swapan was pending and the Hon’ble Division Bench was in seisin of the matter. (X) During the pendency of the appeal (MAT 1622 of 2013) and the writ petition filed by Swapan (WPA 29065(W) of 2013) and Sabitri (WPA 18303 of 2015) the District Inspector of Schools, Secondary Education in January 2015 approved the panel forwarded by the school authority with a condition that it will abide by the final result of MAT 1622 of 2013. The said panel reflects that Swapan stood first while Sabitri stood second. (XI) That after the approval of the panel the appellants that is Swapan and two others once again approached the Hon’ble Division Bench and placed that in view of the subsequent appointment of the the said appellant Swapan through regular selection process having been taken place, the appeal has become infructuous and as such the said appeal was not pressed. The appeal being not pressed the Hon’ble Single Bench vide order dated 30.6.2015 recorded the submissions of the Ld. Senior Counsel representing Swapan and others and dismissed the appeal as ‘not pressed’. The Hon’ble Division Bench also recorded that the Court has not decided any issue raised in the appeal on merit. (XII) in consequence of the order passed by the Hon’ble Division Bench, the DI of Schools on 12.8.2015 withdrew the condition imposed in the letter of approval of appointment issued in favour of Swapan and confirmed his appointment and as such Swapan is serving till date. (XIII) According to Sabitri, Swapan was ineligible to appear in the recruitment process being over aged so his appointment is bad in law. It has been stated that there is no order relaxing the age bar in respect of Swapan and as there is no formal order passed condoning the over age Swapan cannot be appointed in the said post. Formal appointment letter was never issued by the School authority in favour of Swapan. As such Swapan is not entitled to get the benefit of the Judgment passed in Gobinda Chandra Mondal (supra). Formal appointment letter was never issued by the School authority in favour of Swapan. As such Swapan is not entitled to get the benefit of the Judgment passed in Gobinda Chandra Mondal (supra). (XIV) it has been contended that Swapan was permitted to appear in the recruitment process which was through an interim order but the Court did not decide the eligibility of Swapan to participate in the said process. (XV) it has been further contended that on dismissal of the appeal , the interim order passed therein merged with the final order and as the Hon’ble Division Bench had dismissed the appeal being not pressed and had not decided any issue on merit, as such there remains no order so Swapan cannot be permitted to remain in service any further. (XVI) As the first empanelled candidate is set aside the second empanelled candidate, that is Sabitri, qualifies for the appointment and as such she is ought to be appointed in the said vacancy 3. The Ld. Counsel appearing on behalf of the appellant has submitted that the appellant has been serving the school in issue satisfactorily for more than a decade and there is no adverse remark against him. He has further submitted that the appellant had appeared in the selection process and after overcoming all the hurdles has stood first in the merit list. The Ld. Counsel has further submitted that after appearing in an open contest that is the recruitment process and being empanelled as the top most person he cannot be thrown out of his position. It is also submitted that as per the direction of the Hon’ble Court the appellant had appeared for the examination and has passed the same successfully. As such there cannot be any question as regards to his dismissal. Banking upon the aforesaid facts and circumstances, the Learned Counsel has prayed for allowing the instant appeal by setting aside the Judgment and order of the Hon’ble Single Bench. 4. The Ld. Counsel appearing on behalf of the respondent has submitted that the appellant was allowed to appear in the recruitment process by an interim order of an Hon’ble Division Bench passed in an appeal and the appeal being dismissed for being not pressed the interim order does not remain alive since it merges with the final order. Ld. 4. The Ld. Counsel appearing on behalf of the respondent has submitted that the appellant was allowed to appear in the recruitment process by an interim order of an Hon’ble Division Bench passed in an appeal and the appeal being dismissed for being not pressed the interim order does not remain alive since it merges with the final order. Ld. Counsel has further submitted that the Hon’ble Division Bench had not decided the said appeal and had not gone into the merits of the case in respect of any issue. The Ld Counsel has also submitted that the age of the appellant had crossed the maximum limit which was available for a candidate to appear in an examination and the said appellant is also not to be favoured with any relaxation of age and the appellant does not fall under any of the exempted specialized categories. The Ld. Counsel has further submitted that foul play has been adopted by the appellant and the appellant taking advantage of the interim order has ensured his service but has not gone through the entire legal process which does not give the benefit to the appellant. Considering the aforesaid facts and circumstances, the Ld. Counsel has prayed for cancellation/rejection of the appointment of the appellant. 5. The Ld. Counsel appearing on behalf of the District Inspector of Schools, Paschim Medinipur has adopted the contentions of the Ld. Counsel appearing on behalf of the other respondents and in addition has submitted that the District Inspector of Schools (S.E.) Paschim Medinipur issued the approval letter of the appellant from the Secretary, Goaltore High School (HS) with the condition that the approval of appointment is accorded on condition that it will abide by the final result of MAT 1662 of 2013. He has further submitted that the Hon’ble Single Bench vide its order dated 24.03.2023 and 29.03.2023 passed in WPA No. 29065 of 2013 has been pleased to direct, inter-alia, that the appointment letter issued in favour of Swapan is liable to be revoked and cancelled and fresh appointment letter is required to be issued in favour of Sabitri. He has further submitted that the school authority has been directed to act accordingly to comply with the direction of the Hon’ble Court. 6. The crux of this lis is as to whether the Judgment and order passed by the Hon’ble Single Bench is in accordance with law. He has further submitted that the school authority has been directed to act accordingly to comply with the direction of the Hon’ble Court. 6. The crux of this lis is as to whether the Judgment and order passed by the Hon’ble Single Bench is in accordance with law. 7. From the aforementioned discussion it is evident that the said appellant, namely Swapan, was allowed to appear in the selection process by an interim order of a coordinate Division Bench of this Court passed in MAT 1622 of 2013. It is also evident that the said appellant after getting appointment having stood first in the panel prayed for dismissal of the appeal by not pressing the said appeal. 8. The said appeal being not pressed was dismissed and the coordinate Division Bench had also stated that the said Bench had not gone into the merit of any issue concerned in the said appeal. The interim order passed in the appeal being dismissed for being not pressed does not remain enforceable and becomes ineffective along with the final order of dismissal. 9. In the instant lis the appellant cannot take benefit of the interim order and pray for dismissal of the appeal without going into the merit of the appeal. Once the appeal gets dismissed all the interim orders passed in the said appeal also loses its effectiveness. As such the appointment of the appellant to the said post does not remain operative and eventually gets inoperative. The appointment of the appellant stands rejected/cancelled. As the appointment of the first empanelled candidate gets rejected /cancelled so the second empanelled candidate is to be appointed. Accordingly, the Judgment and Order of the Hon’ble Single Bench deserves no intervention. 10. MAT 599 of 2023 with IA No. CAN 1 of 2021 stands accordingly dismissed. 11. Parties shall be entitled to act on the basis of the server copy of the judgment and order placed on the official website of the Court. 12. Urgent Xerox certified photo copies of this judgment, if applied for, be given to the parties upon compliance of the requisite formalities. I Agree - Subrata Talukdar, J.