Kali Charan Nag vs The State Of West Bengal & Ors.

Rai Chattopadhyay, J. :-

The present writ petition deals with the issue of approval of appointment of Group-D staff of the school. An order of the respondent No.3/District Inspector of Schools (Secondary Education) Purulia (herein after referred to as “the DI”), dated 17.4.2017, has been challenged in the instant writ petition. In the same the DI has refused to approve the panel for appointment of Group-D staff, in the school.

The background of the case is that vide Memo dated 2.4.2008, the DI granted prior permission for filling up of the post of Group-D staff by the school authority. Hence, a selection process was initiated by the school by constituting a Selection Committee. Through an open advertisement, the intended candidates including the writ petitioner took part in interview dated 11.8.2009. The Selection Committee has prepared a panel of successful candidates on the same date that is , 11.8.2009 , in which the present writ petitioner has been placed as a successful candidate. The panel for appointment of Group-D staff of the school, so prepared by the Selection Committee and approved by the Managing Committee of the school has been forwarded to the office of the respondent No.3/4, on 26.8.2009, for its approval.

Since thereafter the said panel has never been approved by the said respondent. In the interregnum this Court has intervened to expedite consideration of the panel for approval by the respondent DI. Ultimately the DI has issued the impugned order dated 17.4.2017, refusing approval of panel dated 11.8.2009, which the petitioner has challenged in the instant writ petition.

In the said impugned order dated 17.4.2017, the respondent DI has cited inter alia the following reasons for refusal of the prayer for approval of appointment and panel.

 Prior permission was granted on 2.8.2008 and the recruitment process was required to be conducted by following provisions under the West Bengal Schools (Recruitment of Non-Teaching Staff) Rules, 2005 (vide the notification No. 159-Edn(SE)/4S-26/2005);

 The School Authority requisitioned candidates from the District Employment Exchange on 30.06.2008, and 20 candidates were sponsored on 01.09.2008. An advertisement was subsequently published inviting applications;

 The crucial intervening event was the coming into force of the 2009 Rules [The West Bengal School Service Commission (Selection of persons for Appointment to the Post of Non-Teaching Staff) Rules, 2009, vide the Notification No. 697-ES/S dated 09.07.2009], which has superseded all the earlier Rules;

 Calling of candidates for interview and the interview itself occurred after 09.07.2009, that is after coming into force of 2009 Rules and when the 2005 Rules had already been superseded;

 The authority considered it a material illegality that the recruitment process, particularly the interview and preparation of the panel, was conducted by applying the 2005 Rules even though those Rules had ceased to operate by the time the relevant selection process took place;

 The School Authority had acted contrary to the prescribed time requirement under the 2005 Rules; the order records that the requisition to the Employment Exchange was made on 30.06.2008, i.e. 88 days after the permission dated 02.04.2008, and treats this as a violation of paragraph 5(a) of Clause 8 of the 2005 Rules;

 By letter dated 25.06.2010, the Director of School Education, Government of West Bengal has directed the DI not to entertain any panel prepared by schools after 9.7.2009, since the 2009 Rules had come into force and superseded the earlier recruitment regime;

 For the reasons as above, the DI concluded in the said impugned order, that the panel could not be approved and expressly held that the petitioner's prayer "cannot be considered."

The principal question which falls for consideration is whether the panel prepared pursuant to the prior permission granted on 2.4.2008 could be refused approval on the ground that, in the interregnum, the West Bengal School Service Commission (Selection of persons for Appointment to the Post of Non-Teaching Staff) Rules, 2009 came into force on 9.7.2009. The chronology of events is of considerable significance. The permission to fill up the Group-D post was granted on 2.4.2008; the requisition was made before the Employment Exchange on 30.6.2008; candidates were sponsored; an advertisement was published on 21.11.2008; and the subsequent stages of the selection process culminated in the interview held on 11.8.2009. Thus, the recruitment exercise was evidently initiated before the 2009 Rules have come into force and not after its coming into force. The governing principle in this regard is now firmly settled. The Constitution Bench of the Hon'ble Supreme Court in Tej Prakash Pathak v. Rajasthan High Court, reported at 2024 INSC 847, has authoritatively considered the doctrine commonly described as that the “rules of the game” cannot be changed midway. The Court held that the recruitment process commences with the issuance of the advertisement calling for applications and ordinarily continues until the vacancies are filled. It further held that the eligibility criteria notified at the commencement of the recruitment process cannot be changed midway unless the extant Rules so permit or the advertisement, consistent with the Rules, itself permits such alteration. Even where such alteration is permissible, it remains subject to the constitutional requirements of Article 14 and the test of non-arbitrariness. The Court says that the doctrine is not founded upon the creation of any vested right in favour of a candidate to appointment. Its foundation is more elementary and constitutional. A candidate entering a public recruitment process is entitled to know, at the commencement of the process, the legal framework under which his candidature is to be considered. Articles 14 and 16 of the Constitution require the recruiting authority to act fairly, transparently and without arbitrariness. A subsequent alteration of the governing criteria, to the prejudice of those who have already entered the field of competition, permits the authority to alter the conditions of the contest after the contestants have committed themselves to it. That is precisely what the doctrine prohibits. The Constitution Bench has expressly recognised that candidates have a legitimate expectation that the selection process will be conducted according to the criteria prevailing when the process commenced. The principle was earlier articulated in K. Manjusree v. State of Andhra Pradesh, reported at (2008) 3 SCC 512, where the Hon'ble Supreme Court held that the criteria for selection cannot be altered after the selection process has commenced. The Constitution Bench in Tej Prakash Pathak (supra) has since affirmed that K. Manjusree (supra) correctly lays down the law. It is important to notice that the principle is not confined to a particular form of examination. Its underlying rationale is that the State or its instrumentality cannot invite persons to participate under one set of conditions and thereafter, after the process has progressed, subject them to another set of conditions.

Applying the aforesaid principle to the facts of the present case, the 2005 Rules constituted the governing framework when the recruitment process commenced. The permission to fill up the post had already been granted under those Rules, the requisition had already been made, candidates had been sponsored and the advertisement had already been published. The subsequent notification dated 9.7.2009 could undoubtedly govern recruitment processes commenced thereafter; but, in the absence of any transitional provision or other express authority permitting the pending recruitment to be shifted to the newly introduced regime, it could not retrospectively alter the rules governing a recruitment process which had already commenced. The mere fact that some subsequent stages of the process remained to be completed on 9.7.2009 cannot have the effect of retrospectively rewriting the conditions under which the candidates had entered the selection process.

In other words, the fact that the interview was actually held on 11.8.2009 does not make the 2009 Rules applicable. The relevant question is not merely when one particular stage of the selection took place, but under which regulatory regime the recruitment process had commenced. The advertisement itself had preceded the 2009 Rules by several months. The candidates had accordingly entered the field of selection under the 2005 regime. To require them, after the process had commenced, to be governed by a subsequent regulatory regime would amount to changing the rules of the game in the middle of the game, which the constitutional guarantee of fairness in public employment does not permit.

The Director's subsequent letter dated 25.6.2010, directing the District Inspector and Additional District Inspector not to entertain panels prepared after 9.7.2009, therefore cannot alter the legal position in the present case. The said instruction may operate in relation to a panel which was in fact initiated and prepared after the coming into force of the 2009 Rules. It cannot, however, retrospectively transform a recruitment process commenced under the 2005 Rules into a recruitment process commenced under the 2009 Rules. The panel in the present case was the culmination of a recruitment process which had already commenced before 9.7.2009. An executive instruction issued on 25.6.2010 cannot have the effect of retrospectively imposing upon that process a regulatory regime which was not applicable when the candidates entered the selection process. Nor can an executive instruction override the governing statutory rules or defeat a right to have a pending selection process brought to its logical conclusion in accordance with the Rules under which it was commenced. The said letter, therefore, has no operative consequence in deciding the validity of the panel in the present case.

The other ground relied upon by the authority is that the requisition was made on 30.6.2008, i.e. 88 days after the permission dated 2.4.2008, and that such delay constituted a violation of paragraph 5(a) of Clause 8 of the relevant order governing recruitment under the 2005 Rules. Even assuming that the said period prescribed a time-frame which the School Authority ought to have followed, the mere lapse of 88 days cannot, without more, be treated as rendering the entire subsequent recruitment process void or incapable of approval. There is no such specific provision in the 2005 Rules or in the order referred to in the impugned decision, which declares that failure to adhere to the stipulated period automatically extinguishes the prior permission, nullifies all subsequent steps, or visits the candidates with disqualification. The consequence of non-compliance must ordinarily be gathered from the statutory or regulatory scheme. Unless the provision expressly or by necessary implication attaches the consequence of nullity, the Court ought not to introduce such a drastic consequence by implication, particularly where the recruitment process has thereafter proceeded, the candidates have been sponsored, the advertisement has been issued, the candidates have participated in the selection and a panel has ultimately been prepared.

More importantly, the alleged delay of 88 days is wholly anterior to the subsequent stages of the selection process and has not been shown to have caused any prejudice either to the State, to the Employment Exchange process, or to any competing candidate. The authority has not found that the School Authority had acted fraudulently, had manipulated the zone of consideration, had obtained sponsorship of ineligible persons, or had otherwise frustrated the object of the recruitment Rules. Nor has the authority demonstrated that the delay altered the eligibility, merit or inter se position of the candidates. In such circumstances, to treat the lapse of the stipulated period as fatal to the entire process would be to impose a consequence far in excess of the mischief sought to be prevented by the procedural requirement.

There is another aspect which cannot be overlooked. The very authority which granted permission on 2.4.2008 did not thereafter revoke or withdraw that permission on account of the alleged delay or for any other reason whatsoever. The recruitment process was permitted to proceed; the Employment Exchange furnished sponsored candidates; the School Authority issued the advertisement; and the candidates were ultimately subjected to the selection process. As the authority has permitted the recruitment to be proceeded without rescinding its permission granted for the same, therefore is inconsistent with the proposition, that the permission had automatically lapsed or that every subsequent act had become non-est, merely by reason of the intervening period of 88 days or any reason other than that. The Constitution Bench in Tej Prakash Pathak (supra) has recognised that recruiting bodies may devise appropriate procedures for bringing a recruitment process to its logical end, but such procedure must remain transparent, non-arbitrary and consistent with the extant Rules.

In view of the discussion as made above, the instant writ petition No. WPA 14174 of 2017 is allowed with the following directions: -

ii) The petitioner is found to be eligible for approval of appointment as a Group-D staff of the school. Let the respondent No. 3 grant approval of appointment to the petitioner, with notional effect from 26.08.2009 that is the date of forwarding panel for approval by the Managing Committee to the respondent No. 3 /4.

iii) The respondent No. 3 shall immediately take steps for fixation of pay scale of the petitioner granting effect to the benefits of increment, promotion and/or other service benefits as allowable, since after the date as above.

Writ petition No. WPA 14174 of 2017 is allowed and disposed of.

Urgent certified copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.