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2025 DIGILAW 745 (CAL)

Sudhir Khamaru v. State of West Bengal

2025-10-28

RAI CHATTOPADHYAY

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JUDGMENT : Rai Chattopadhyay, J. 1) The writ petitioner is the second empaneled candidate, who seeks recast of the panel, by deleting the name of the first empaneled candidate, due to the alleged motivated, biased and illegal manner of inclusion of his name in the panel and also a relief that as the second person therein, he may be directed to be appointed, after deletion of name of the first empaneled candidate. He has also sought for the relief that the respondent/ District Inspector of Schools (Secondary Education) 24Parghanas South [hereinafter referred to as the 'DI'] be directed to submit a compliance report in terms of the order of this Court dated April 3, 2009, in W.P.No. 31566 (w) of 2009 (Gautam Mridha vs State of West Bengal & Others), pertaining to the objections raised by the writ petitioner. 2) Let the background facts of the case be discussed in a nutshell, as follows. The writ petitioner belongs to the reserved category candidate, whose name was sponsored by the District Employment Exchange, 24 Parganas South, on September 10, 1996, to take part in the selection process to fill up vacancy for the post of a Clerk, in the school namely, South Kumirmari Nagendranath Junior High School (hereinafter referred to as the “said school”). The petitioner has taken part in the interview, held by the selection committee of the school, on October 12, 2008. On the said date itself, that is on October12, 2008 the selection committee as above prepared the panel of the selected candidates, in which the petitioner has been placed in the 2nd position. 3) The writ petitioner mentions about another case filed by one Sri Gautam Mridha, being W.P.No. 31566 (w) of 2009, in which the said petitioner had challenged the recruitment procedure as well as formation of the selection committee in the said procedure. According to the petitioner there, the first impaneled candidate being the son of the teacher in charge of the said school at the relevant point of time, the formation of the selection committee to include the said teacher in charge was impermissible in law. Hence, the panel is also vitiated, the petitioner has stated. That is so also for the reason that the other two members of the selection committee were also closely related to the said 1 st empanelled candidate. Hence, the panel is also vitiated, the petitioner has stated. That is so also for the reason that the other two members of the selection committee were also closely related to the said 1 st empanelled candidate. 4) He has further stated that vide an order dated April 3, 2009, in W.P.No. 31566 (w) of 2009, the respondent/DI was directed to take a decision by passing a reasoned order, regarding the representation and the grievance put forth therein by the petitioner there. Subsequently the writ petitioner has also sent two written representations to the school as well as the DI, dated January 19, 2011 and January 24, 2011 respectively. There the petitioner has also prayed for recast of the panel and appointing him, he being the 2nd empaneled candidate. The first writ petition by the instant petitioner followed thereafter being W.P.No. 5938 (w) of 2011, in which the Court has directed the respondent authorities, to consider the petitioner's representations and pass reasoned order thereupon. The respondent/DI has passed an order thereafter dated August 17, 2017 in which he could not come to a decision due to unavailability of copy of the advertisement, attendance sheet of the candidates and the marksheets of type writing test. Before the said documents were supplied by the school to the respondent/DI, the present writ petition was provided with the answer to his queries made under the provisions of Right to Information Act, disclosing the names of the four members of the selection committee. The petitioner has stated that names of members of the selection committee as disclosed would show that very near relations of the teacher in charge of the school as well as the first empanelled candidate were incorporated as the members of the selection committee. According to him incorporation of the father and other near relations of the 1 st empaneled candidate in the selection committee, by itself, makes selection of the said person as invalid. Hence, he has sought for the relief of recast of the panel and thereby placing his name at the first place and giving him appointment as the 1st empaneled candidate. The petitioner' other grievance is that the respondent/DI has neither taken any decision yet as regards his representation dated January 24, 2011 nor as regards the representation of the petitioner in the other writ petition vide the Court's order dated April 3, 2009. 5) Mr. The petitioner' other grievance is that the respondent/DI has neither taken any decision yet as regards his representation dated January 24, 2011 nor as regards the representation of the petitioner in the other writ petition vide the Court's order dated April 3, 2009. 5) Mr. Sadananda Ganguly, learned advocate for the petitioner has submitted that selection of the first candidate in the panel is only biased and unfair. He has further submitted that endeavour by the authority not to disclose material particulars as regards the selection process before the DI as well as in response to his application under the Right to Information Act, are parts of the gross unfairness in the process of selection undertaken by the school authority on filling up the vacant post of Clerk, in the said school. Therefore, according to Mr. Ganguly, learned advocate, the name of the first impaneled candidate should be deleted from the panel, the panel should be recast and the petitioner should be appointed as the successful candidate in the first place, in the said panel. 6) Mr. Sadananda Ganguly for the writ petitioner has submitted that after being empanelled, the petitioner's right is created for being considered for the post in accordance with the terms and conditions of the advertisement and the existing recruitment rule as were prevalent on the date of initiation of the process. He has referred to the Supreme Court judgments in this regard in Arjun Singh Rathore & Others vs B.N.Chaturvedi & Others reported in (2007) 11 SCC 605 and B.L.Gupta & Another vs M.C.D in (1998) 9 SCC 223 . He has also referred to the Division Bench judgments of this Court in Asoke Sawoo vs The State of West Bengal & Others reported in (2012) 4 CAL LT 393 (HC) , in which the Court has relied on a Supreme Court decision in P.Mahendran & Others vs State of Karnataka & Others [ AIR 1990 sc 405 ] and The Secretary of the Managing Committee, Kalinagar Girls High School Nadia vs Archana Ghosh (Saha) & Others in (2010) 3 CAL LT 192 (HC) 7) It has been argued further that once the co-ordinate Bench has intervened in the first writ petition filed by the present petitioner, this Court may follow the course only to refer the matter to the Larger Bench, in case of any difference in the verdict. Learned advocate for the petitioner mentions and refers to a judgment of Supreme Court, on the point, that is in Vijay Laxmi Sadho (Dr.) vs Jagdish (2001) 2 SCC 247 . 8) The respondent's stand in the instant writ petition is that with the coming into force of the West Bengal School Service Commission (Selection of Persons for Appointment to the Post of Non-teaching Staff), 2009 [hereinafter referred to as the “Rules 2009”], from June 9, 2009, any and all selections of non- teaching staff in a school as to be made through the West Bengal School Service Commission. It has been submitted for that that the teacher in charge had ultimately recused himself from the selection committee and did not participate in any of its functioning in the entire process of recruitment. Hence therefore according to the respondent, there is no substance in the allegations made by the writ petitioner regarding buyers and unfairness in the process of recruitment. Furthermore, the respondent has contended that the Assistant Inspector of Schools (Secondary Education) 24 Parganas South has conducted an enquiry on December 11, 2008 into the matter and has submitted a report suggesting for fresh interview process to be held. Mr. Gourav Das, learned advocate for the said respondent has contended that the panel in question has died its natural death, with the efflux of time. Hence, this writ petition is infructuous also, apart from being not maintainable. 9) So far as the Rules 2009 is concerned admittedly the same has got no retrospective operation. Also, there is no dispute as regards the fact that the process of recruitment and the panel, both pertain to the dates prior to coming into force of the Rules, 2009. Hence, in view of the settled law and the ratio already decided in the judgments as referred to on behalf of the writ petitioner and mentioned above, the Court finds that the Rules, 2009, shall have no manner of application in case of the instant writ petitioner. The Courts have categorically held that the posts are to be filled up as per the Rules existing on the date of vacancy and not as per any provision enacted subsequent to the date of initiation of the process of recruitment. The Rules of 2009, not having any specifically provided effect or applicability retrospectively, shall have to be considered applicable only prospectively. The Rules of 2009, not having any specifically provided effect or applicability retrospectively, shall have to be considered applicable only prospectively. 10) According to the respondent, there is a proposal/suggestion given by the Assistant Inspector of Schools (Secondary Education) 24 Parganas South, that interview process may be undergone afresh. As a matter of fact, the respondents have not specifically denied that two members of the selection committee were the near relations of the teacher in charge of the school and his son, that is the 1 st empaneled person, though it has been contended that the teacher in charge of the school had recused himself from the functioning of the selection committee. Given the composition of the selection committee in the way as it was, the strong probability of bias and unfair process, cannot be brushed aside. 11) Admittedly the panel has been prepared on October 12, 2008. The writ petitioner has filed his representation challenging the validity of the same, before the respondent authority on January 24, 2011 and his first writ petition followed the same. In the same the Court has passed an order directing the respondent to consider the petitioner's representation, but to no avail till date. Therefore, already the Court has entertained the writ petitioner's prayer challenging the validity of the panel dated October 20, 2008, in the year 2011, that is after expiry of the one year stipulated validity period of the panel. In the writ petition as mentioned above, earlier filed by the present petitioner, the respondent authority duly appeared and contested. In such circumstances the argument on behalf of the said respondent that the validity period of the panel being already exhausted, the petitioner's prayer is actually infructuous, does not inspire much confidence in the mind of this Court. Rather, the earlier order passed by the Court has virtually extended the life of the panel, at least till the date the respondent authority/DI disposes of and decides finally about the petitioner's representation with a reasoned order. 12) For all the reasons as mentioned above, this Court finds it proper to dispose of the instant writ petition with the direction that the respondent No. 3/DI shall consider and decide about the representation of the writ petitioner dated January 24, 2011, by dint of a reasoned order and after giving the writ petitioner a reasonable opportunity of hearing. 12) For all the reasons as mentioned above, this Court finds it proper to dispose of the instant writ petition with the direction that the respondent No. 3/DI shall consider and decide about the representation of the writ petitioner dated January 24, 2011, by dint of a reasoned order and after giving the writ petitioner a reasonable opportunity of hearing. The exercise as above should be concluded by the said respondent within a period of 3 weeks from the date of communication of copy of this judgment, and his order shall be served upon the petitioner within 7 days from its date. 13) With the directions as above, the instant writ petition is disposed of. 14) Urgent certified copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.