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2024 DIGILAW 824 (CAL)

Sahara Parvin v. State of West Bengal

2024-04-16

PARTHA SARATHI CHATTERJEE

body2024
JUDGMENT : PARTHA SARATHI CHATTERJEE, J. 1. The present writ petition was instituted primarily to question the justifiability of a decision rendered by the District Project Officer, Malda on 16.12.2013 in deference to the order dated 20.09.2013 passed by a Hon’ble Division Bench of this Court in MAT 813 of 2012 (Annexure-P/17 to the writ petition), whereby the District Project Officer refused to accord approval to the panel, as re-casted in terms of the order dated 13.09.2011 passed in WPA no. 16735(W) of 2009 taking recourse to the ban imposed by the School Education Department, Government of West Bengal vide its memo no. 376-SE(P) dated 09.06.2010 in giving new engagement in the posts of Para Teacher with a further prayer for issue of writ of mandamus commanding the concerned respondents to engage the petitioner in the post of Additional Para Teacher (Social Science Group) in Nayatuli Mahanandapur High Madrasah (in shot, the Madrasah). 2. Before going to delve deep down the controversy, it would be apposite to advert to the facts, as frescoed in the writ petition and the documents appended thereto. In 2007, a selection process was undertaken by the managing committee of the Madrasha to engage one Additional Para Teacher in Social Science Group and as such, by a notification vide. no. 247(2400)/SSM dated 27.07.2007, applications were invited from the eligible and intending candidates. The essential educational qualification for the post was B.A. provided that the candidate passed the examination in the relevant subject having full marks of 300. The petitioner who graduated with History as a combination subject of 300 marks offered her candidature for the post. 3. An assessment of percentage of marks secured by the candidates in Madhyamik, Higher Secondary and graduation was the only mode of selection, as prescribed in the notification dated 27.07.2007. Accordingly, the Central Project Coordinator prepared a panel placing the petitioner, who secured 45.8% marks, at the top of the three men’s panel. The other two candidates namely, Ruma Thokdar and Susmita Das acquiring 38.7% and 38.5% marks found their births in the panel against serial nos. 2 and 3 respectively. 4. Accordingly, the Central Project Coordinator prepared a panel placing the petitioner, who secured 45.8% marks, at the top of the three men’s panel. The other two candidates namely, Ruma Thokdar and Susmita Das acquiring 38.7% and 38.5% marks found their births in the panel against serial nos. 2 and 3 respectively. 4. The managing committee in its meeting held on 20.02.2009, re-casted the panel placing Ruma Thokdar, the 2nd empanelled candidate at the top of the panel on the plea that in the notice issued by it, the candidates having English and History as combination subjects were only asked to offer their candidature for the post. However, the panel, so re-casted was sent to the District Project Officer seeking his approval thereof. After coming to learn about the fact of re-casting the panel, the petitioner by making representations to the competent authority prayed for her engagement in the post but despite receipt of such representations, the respondents maintained deceptive silence which prompted the petitioner to approach this court with a writ petition being W.P. No. 16735(W) of 2009, which was disposed of by an order dated 13.09.2011 whereby the managing committee was directed to prepare a fresh panel as per the merit list prepared by the concerned Coordinator and send the same before the District Project Officer who upon receipt of the panel was directed to accord his approval thereto. The operative part of the order 13.09.2011 is reproduced as hereunder: “.......The District Project Officer on receipt of the same will grant approval. The Managing Committee is directed to complete the process within a period of 10 days from the date of communication of this order by a letter to be issued by the learned Advocate on record for the petitioner and the District Project Officer is to grant approval within a period of fortnight from the date of submission of such panel.” 5. The order dated 13.09.2011 was carried in an appeal registered as MAT 813 of 2012, which was disposed of by an order dated 20.09.2013 whereby the afore-mentioned operative part of the order dated 13.09.2011 was substituted with the following order: “The District Project Officer on receipt of the fresh panel shall consider the same in accordance with law and pass an appropriate order.” 6. The managing committee re-casted the panel placing the petitioner at the top thereof. The managing committee re-casted the panel placing the petitioner at the top thereof. Then in obedience to the order dated 20.09.2013, the District Project Officer by his order dated 16.12.2013 held that the panel, as re-casted by the managing committee in terms of the order passed by the Hon’ble Division Bench in MAT No. 813 of 2012 read with the order passed in WPA No. 16735(w) of 2009, was justified but refused to accord approval to the panel with the following observation: “In the aforesaid circumstances, keeping in mind the observations of the Hon’ble High Court quoted above and also the ban imposed by School Education Department vide. Memo No. 376-SE(P) dated 09-06-2010, approval can not be accorded to the panel submitted by the Madrasah authority till the ban is in force. But the option of the engagement of the 1st empanelled candidate is kept open in the event of any change in the policy of the engagement of Para Teacher by the State Authority in future. In that event the Madrasah authority will remain bound to seek approval of the present panel and appoint the 1st empanelled candidate.” 7. Aggrieved by such decision of the District Project Officer and seeking a direction upon the concerned respondents to engage the petitioner in the post, the petitioner has knocked on the door of this Court with this present writ petition. 8. Mr. Bhattacharjee, learned senior advocate representing the petitioner contends that initially, the cause for which the dispute brewed up is that the managing committee for the reason best to known to it, notified the vacancy prescribing essential educational qualification being B.A. with English and History as combination subjects in deviation of the notification dated 27.07.2007. The petitioner, who offered her candidature for the post in terms of the notification, secured higher marks than all the participants and as such, she acquired 1st position in the panel duly prepared by the Central Coordinator concerned which resulted in total frustration of the evil designs of some members of the managing committee to give such engagement to its own men. Situated thus, the managing committee in a desperate attempt by adopting a resolution re-casted the panel placing Ruma Thokdar, 2nd empanelled candidate at the top of panel and sent it to District Project Officer seeking his approval thereto. 9. Situated thus, the managing committee in a desperate attempt by adopting a resolution re-casted the panel placing Ruma Thokdar, 2nd empanelled candidate at the top of panel and sent it to District Project Officer seeking his approval thereto. 9. He next contends that eventually, in compliance with the order dated 20.09.2013 passed by the Hon’ble Division Bench in MAT 813 of 2012 read with the order dated 13.09.2011 passed in WPA No. 16735(W) of 2009, the managing committee was forced to re-cast the panel placing the petitioner at the top of it and the panel was sent to the District Project Officer who in his turn was directed to consider the same in accordance with law and pass appropriate order. 10. He argues that in the guise of compliance of the aforesaid orders the District Project Officer held that panel, as re-casted by the managing committee is justified but he refused to accord his approval to the panel on the plea that by virtue of a Memo vide. dated 09.06.2010, there was a complete ban in giving engagement to any para- teacher in any educational institution of the State and drawing my attention to the averments of paragraph -3(g) of the affidavit-in-opposition, which was affirmed and filed by the District Project Officer, to this writ petition, he asserts that the District Project Officer has admitted that had there been no such ban, the petitioner deserved to be engaged in the post. 11. He claims that the decision of the District Project Officer was not mere a misinterpretation of the Memo dated 09.06.2010 but the same is motivated by ill-will. Inviting my attention to the memorandum of appeal (MAT 813 of 2012), presented to assail the order dated 13.09.2011 passed in WP no. 16735(w) of 2009, he submits that the District Project Officer is so interested in the matter, he had preferred the appeal in his personal capacity which itself speaks about his malice and/or ill-motive towards the petitioner. 12. Drawing my attention to page nos. 87 to 111 of the writ petition which contain the particulars of the candidates who were engaged in diverse schools of the State after the cut-off date being 9.6.2010, he asserts that even after 9.6.2010, many candidates have been engaged in the posts of para teachers in different schools and Madrasah of the State. 13. 87 to 111 of the writ petition which contain the particulars of the candidates who were engaged in diverse schools of the State after the cut-off date being 9.6.2010, he asserts that even after 9.6.2010, many candidates have been engaged in the posts of para teachers in different schools and Madrasah of the State. 13. Drawing inspiration from the propositions laid down in the decisions rendered in cases of Secretary, Managing Committee, Dayerbazar Vidyamandir vs. Madhusudan Samadder and Others, 2007 (3) CHN (Cal) 545 and Snehansu Jas and Others vs. State of West Bengal and Others, 2002 (1) WBLR 36 (Cal), he argues that the Memo dated 9.6.2010 can never be applied retrospectively. 14. Mr. Majumder, learned advocate for the Madrasah in his argument seeks to assert that the then managing committee acted illegally in re-casting the panel prepared by the Central Coordinator and subsequently, in terms of the order passed in MAT 813 of 2012 read with WP 16735(W) of 2009, the illegality was removed by way of preparation of a fresh panel and as such, the removal of illegality will relate back to initial date of preparation of panel i.e. 13.02.2009. In his view, the petitioner’s right to get the engagement vis a vis the right of Madrasah to get service of one Additional Para Teacher in Social Science Group were crystallised on the date of issue of preparation of the panel on 13.02.2009. He contends that administrative order if does not confer any substantial right, the same can never be retrospective. He cites an example saying that an upward revision of pay can be given retrospectively but a reduction of pay cannot be ordered retrospectively. He asserts that the Memo dated 09.06.2010 cannot be applied retrospectively. According to him, upon misreading of the Memo dated 9.6.2010, the District Project Officer has arrived at an erroneous conclusion to the extent that there was complete ban on engagement of para teacher in any educational institution of the State after 9.6.2010. 15. To refute the claim that after 9.6.2010, there was a complete ban on such engagement, he took me to the page nos. 87 to 110 of writ petition to point out the engagements of para teachers which have been given in diverse schools of the State after 9.6.2010 even without any intervention of any Court of law. 16. Mr. Roy Mukherjee, learned advocate for the added respondent no. 87 to 110 of writ petition to point out the engagements of para teachers which have been given in diverse schools of the State after 9.6.2010 even without any intervention of any Court of law. 16. Mr. Roy Mukherjee, learned advocate for the added respondent no. 10 (Paschimbanga Samagra Siksha Mission) narrates the background facts of introduction of the scheme, namely, Sarba Siksha Mission. He states that para teacher is engaged under this scheme and initially, the power to engage such para teacher was delegated to the school authority but being so empowered, the schools of the State have engaged para teachers indiscriminately creating a heavy financial burden on the public exchequer. He contends that after promulgation of Right of Children to Free and Compulsory Education Act, 2009, such power of managing committee was revoked yet there are many illegal engagements of para teachers in the State. Giving anxious consideration to such aspects, the State was constrained to impose a complete ban on such engagement w.e.f. 9.6.2010. He contends that selection process is a procedural law and as such, the same can be given retrospective effect. 17. He claims that legality cannot be endowed to the engagements, as cited in page nos. 87 of 110 of the writ petition. In his view, the petitioner is claiming negative equality but the concept of negative equality has not been recognised in Indian jurisprudence. He asserts that after expiry of almost 14 years, the State should not be asked to shoulder further financial burden to pay remuneration of any para teacher. It is sought to be urged by him that at a long distance of time, it is to be considered whether there is any further requirement of para teacher in Social Science Group of the school or not. In aid of his contention, he cites the judgments delivered in cases of Shandarsan Dash vs. Union of India, (1991) 3 SCC 47 , Union of India and Another vs. International Trading Co. and Another, (2003) 5 SCC 437 , State of Rajasthan and Others vs. Jagdish Chopra, (2007) 8 SCC 161 , Union of India and Others vs. M.K. Sarkar, (2010) 2 SCC 59 and Lt. CDR. M. Ramesh vs. Union of India and Others, (2018) 16 SCC 195 . 18. Mr. Chatterjee, learned advocate for State adopted the submission of the Mr. CDR. M. Ramesh vs. Union of India and Others, (2018) 16 SCC 195 . 18. Mr. Chatterjee, learned advocate for State adopted the submission of the Mr. Roy Mukherjee and asserts that there is a complete ban in giving any engagement of para teacher in any school of the State w.e.f. 9.6.2010. 19. Heard the learned advocates representing the respective parties. Perused the pleadings of the parties as well as the documents appended thereto. 20. For better perception of the issue, it would be profitable to have glance at the events date-wise. On 27.07.2007, by a notification the District Project Officer declared that the schools getting permission to engage three para-teachers would engage one para teacher each in three subject-wise groups. The Madrasah initiated a selection process to engage two para-teachers, one for science group and the other for social science group. The petitioner having History of 300 marks as one of the combination subjects in her graduation participated in the selection process initiated by the managing committee for the post of Additional Para Teacher in Social Science Group. The Central Project Coordinator prepared a panel in terms of the notification on 13.02.2009 placing the petitioner at the top of it. The managing committee re-casted the panel. On 09.06.2010, the Secretary, School Education Department, Government of West Bengal imposed ban on new engagement of para teacher after issue of that order. On 13.9.2011, a Coordinate Bench of this Court directed the Madrasah to prepare a fresh panel and send it to District Project Officer who in turn was directed to approve the same. On 20.09.2013, the Hon’ble Division Bench directed the District Project Officer to consider the fresh panel in accordance with law and pass appropriate order. On 16.12.2013, by an order, the District Project Officer has held that the fresh panel, as prepared by the Madrasah in terms of the orders dated 13.9.2011 and 20.09.2013 is justified but refused to approve the panel on the plea that there was a complete ban on such engagement w.e.f. 9.6.2010. 21. To avoid prolixity, it can be concluded that issue of placement of the petitioner at the top of the panel is set at rest and the order of District Project Officer suggests that had there been no ban, as imposed on 9.6.2010, there would not have been any impediment to engage the petitioner in the post. 22. 21. To avoid prolixity, it can be concluded that issue of placement of the petitioner at the top of the panel is set at rest and the order of District Project Officer suggests that had there been no ban, as imposed on 9.6.2010, there would not have been any impediment to engage the petitioner in the post. 22. Therefore, presently, the epicentre of the dispute brewed up in the lis is whether the order dated 9.6.2010 can be given retrospective effect or whether the same can be applied in a pending selection process or not. 23. Indisputably, sense or intended meaning and/or purport which a word intends to convey, is not always communicated to the mind of the receiver by its dictionary meaning but by its arrangement in sentence pattern also. The meaning of a word may vary with its setting or context and with the subject-matter to which it is applied. As such, it would not be out of context to say that in any legislation or administrative order, the words, phrases or group of words would be chosen and arranged or placed in sentence pattern with an objective to avoid any ambiguity or any confusion which may arise in implementation of such legislation and order. 24. In fixing a cut-off date or a date of commencement of a new act, rule, notification and/or order or any amendment or substitution in any rule which may have the effect of repealing or termination of an old act or old rule or which may have potential to interfere with any pending action or proceedings, the rule-maker or the authority passing such order should take note of the actions and/or proceedings initiated in terms of the earlier piece of legislation or order otherwise there may be an unrest in legal and administrative field. As such, in all such new legislations, either a saving clause or exception is incorporated. If the legislature intends to give retrospective operation of such legislation, express provision or necessary intendment is manifested in such subsequent enactment. 25. As such, in all such new legislations, either a saving clause or exception is incorporated. If the legislature intends to give retrospective operation of such legislation, express provision or necessary intendment is manifested in such subsequent enactment. 25. In the case at hand, it is a hard reality that the clause 2 of the order dated 09.06.2010 which mandated that “no new engagement of Para Teacher or any other category of employees can be made after issue of this order” has led to confusion in the minds of executives and even the clause plays a crucial role to lead to some conflicting decisions in the Court of law also. Mr. Majumder claims that misreading of the clause has given birth to such confusion. Mr. Bhattarcharjee claims that there was an ill-will in giving wrong interpretation to the clause whereas Mr. Roy Mukherjee and Mr. Chatterjee conjointly voiced that the clause affects the pending selection process and the clause indicates a complete ban on engagement of any para teacher w.e.f. 9.6.2010. In view of such claim and rival claim, let me enter into core area of controversy to ascertain whether use of words or arrangement of words in the clause adds fuel to the imbroglio or it is the misreading or misinterpretation of the clause which is responsible for the dispute in hand. 26. There is repetitive pronouncements on the proposition that a candidate on making an application for a post pursuant to an advertisement does not acquire any vested right for selection, yet if he/she is eligible and is otherwise qualified in accordance with the relevant rules as they existed on the date of advertisement, he/she does acquire a vested right for being considered for selection in accordance with the rules as they existed on the date of advertisement. (See the judgments of N.T.B. Kalla vs. Karnataka Public Service Commission, AIR 1990 SC 1233 ). Suffice it to observe that such selectee cannot be deprived of that limited right by way of introduction of any amendment in the rules during pendency of the selection process unless the power to apply such amendment retrospectively was reserved in the advertisement or in the relevant rules. In the judgment of LT. CDR. Suffice it to observe that such selectee cannot be deprived of that limited right by way of introduction of any amendment in the rules during pendency of the selection process unless the power to apply such amendment retrospectively was reserved in the advertisement or in the relevant rules. In the judgment of LT. CDR. M. Ramesh vs. Union of India and Others (supra), it was ruled that though a selectee has no indefeasible right to appointment and the State is also not under any obligation to fill up the post but the decision, not to fill up the vacancies pursuant to the selection process, must be taken bona fide and for justifiable and appropriate reasons. According to the settled norms, once the game is started, none can change the rule of the game. Basing upon this analogy, it can be inferred that once recruitment process is commenced, the rules and/or norms relating to such recruitment cannot be changed in the mid-way unless such power is reserved in the advertisement or in the rule governing the field. 27. It is well-ingrained rule of interpretation that merely because a notification substitutes and/or amends something in prior notification, the substitution and/or amendment cannot have any retrospective operation in absence of express provision. There is a presumption of prospective operation attached to every statute, notification or order and such presumption articulated in a legal maxim “nova constitutio futuris imponere debet non praeteritis” i.e. a new law ought to regulate what is to follow, not the past. The Court should always lean very strongly against the application of a new Act or any new amendment in the Act to a pending action unless the language in the statute compels to do so. 28. Law appears to be settled that a delegated legislation or an administrative order which touches a right in existence on the date it is enforced is not to be applied retrospectively in absence of express provision or necessary intendment. Normally, when an earlier notification or order is amended by a later notification and/or order, the words like ‘date of notification’ or ‘date of issue of the order’ etc. occurring in the substituted or amended notification will refer to the earlier date of notification and not the date of the later notification. 29. Normally, when an earlier notification or order is amended by a later notification and/or order, the words like ‘date of notification’ or ‘date of issue of the order’ etc. occurring in the substituted or amended notification will refer to the earlier date of notification and not the date of the later notification. 29. The classification of a statute as either substantive or procedural does not always determine whether the statute has retrospective operation or not. A procedural statute which creates new disabilities or impose new duties or impair any vested right cannot be applied retrospectively in mechanical way e.g. right of action or right of appeal may find its place in procedural law but such remedy is substantive in nature. A rule and/or order relating to a selection process may prescribe procedure in which a selection is to be conducted but it confer a limited substantive right upon the participants in the sense that his/her candidature would be considered in terms of the rules prevalent on the date of advertisement. 30. A selection process initiated to fill up any post which starts its journey from the date of issue of advertisement is ended with the joining of the selected candidate in the post unless the same is postponed and/or aborted in the mid-way. Like all other pending actions and/or proceedings, the general rule against retrospective operation applies to pending selection process also. If in a statute, legislature says that no suit shall be ‘instituted’ or ‘entertained’ on any particular issue, it will not affect the pending suit but position would be different if the legislature mandates that after commencement of an act, ‘no decree shall be passed’ or ‘no court shall exercise its jurisdiction’, it will affect the pending proceedings. Similarly, if the legislature uses the words like ‘ no decree shall be passed in a suit filed or pending’, it may cover pending suit or appeal but it is not wide enough to cover a special leave petition pending before the Hon’ble Apex Court after leave is granted. If the legislature fiat is that ‘no person shall be evicted in execution of a decree or otherwise’ it will affect the special leave petition also. As such, the language used in the statute or any sort of piece of legislation or notification or order etc. If the legislature fiat is that ‘no person shall be evicted in execution of a decree or otherwise’ it will affect the special leave petition also. As such, the language used in the statute or any sort of piece of legislation or notification or order etc. should be looked into and construed in its proper perspective to ascertain whether the same has retrospective operation or whether it would cover the pending action or not. 31. The clause 2 of the order dated 09.06.2010 has been worded in such manner, the same has eaten up many judicial and administrative hours in deciding whether it has retrospective operation or whether it can affect pending selection process or not. The word “new” and the group of words “after issue of this order” are the only indicative words wherefrom the resolution of the question raised in the lis is to be traced but without confining to literal meaning of those words, if mischief rule of interpretation is applied and the introductory words of the order dated 09.06.2010 are looked into, then it would be apparent that the order dated 09.06.2010 was used with an intent to partially modify two memoranda both dated 23.04.2010. I am informed that afore-mentioned two memoranda relate to hike of remuneration and re-engagement of existing para teacher or others up to the age of 60 years subject of their renewal and in those memoranda, new engagement of para teacher was prohibited without prior written approval from the Department. I am also informed that lately, para teacher is engaged by the District Project Officer only on the basis of recommendation of District Level Committee. Therefore, taking queue from the argument advanced by Mr. Roy Mukherjee, it can be discerned that the indiscriminate engagements of para teachers by the school authority and its consequential additional financial burden on the State were the possible reasons behind the issue of the order dated 9.6.2010 but the question is whether the words in the clause 2 of the order dated 9.6.2010 are sufficient to nullify the order or orders of the Hon’ble High Court passed while exercising the power of judicial review. I am afraid that if such analogy, as sought to be drawn by Mr. Roy Mukherjee and Mr. Chatterjee is accepted, then the order dated 13.09.2011 passed in WP no. I am afraid that if such analogy, as sought to be drawn by Mr. Roy Mukherjee and Mr. Chatterjee is accepted, then the order dated 13.09.2011 passed in WP no. 16735(W) of 2009 and the order dated 20.9.2013 in MAT 813 of 2013 and all the orders which have been passed on or after 9.6.2010 and yet to be passed in respect of the selection proceeding commenced prior to that date would be the orders having no force in law. It is noteworthy that the State and the Mission have not raised this point at the time of hearing of the above-referred writ petition and the intra-court appeal. 32. The subsequent conduct of the State, as reflected from page nos. 87 to 110 of the present writ petition speaks that the State has given engagement of para teacher in compliance of the orders passed by this Court in respect of the selection process which were initiated prior to the date being 9.6.2010 and even after the cut off being 9.6.2010, the State has engaged para teachers in normal course where there was no intervention of the Court. As such, it is apparent that State itself has accepted the reality that the order dated 9.6.2010 has no potential to nullify all the orders which were passed or to be passed by this Court in respect of the selection process which commenced prior to the date of issue of the order being 9.6.2010. The literal meaning of the word “new” is relative and it admits of existence of something old and hence, its meaning is to be traced in the context it is used and for the purpose it is applied. The construction of the word or words used in any piece of legislation or order should not be construed in such a manner which can lead to absurdity and which may have the effect of nullification of the lawful order or orders of the Court unless there is clear intendment to do so in the order itself. Therefore, as a logical corollary, it can be inferred that the State intended to prevent commencement of new selection process for the purpose of giving new engagement of para teacher. 33. Therefore, as a logical corollary, it can be inferred that the State intended to prevent commencement of new selection process for the purpose of giving new engagement of para teacher. 33. No order from any higher forum putting its seal of approval on the retrospective operation of the order dated 9.6.2010 or its potentiality to affect the pending selection process has been presented to prompt me to interpret the order dated 9.6.2010 in accordance therewith. 34. There is no scintilla of doubt regarding binding effect of the propositions laid down in the judgments relied upon by Mr. Roy Mukherjee but those are distinguishable on facts. 35. As a result, in view of foregoing analysis, it is held that the order dated 09.06.2010 cannot be applied retrospectively and in absence of express provision and necessary intendment, the same has no potential to affect the pending selection process. Therefore, the portion of the order containing the decision of the District Project Officer that though the petitioner deserved to be engaged in the post but due to ban imposed on 9.6.2010, the panel cannot be approved is quashed. 36. The District Project Officer is directed to approve the panel and send it back to the managing committee who upon receipt of the same, shall engage the petitioner in the post. The entire exercise shall be completed within a period of six weeks from the date of receipt of a copy of this order. 37. I find no material to hold that the then District Project Officer being motivated by any ill-will has passed the order impugned in the writ petition and in absence of any plausible evidence justifying the statements made in the last five lines of the page no. 29 and paragraph 24 of the writ petition, those statements are struck off. Office is directed to act accordingly. 38. With these observation and order, this writ petition is, thus, disposed of, however without any order as to the costs.