Monsur Alam Azad vs Md. Rahimul Hoque And Ors.

Re: CAN 3269 of 2017 and CAN 3270 of 2017.

M.A.T. 397 of 2017 is an intra-court writ appeal challenging the judgment and order dated 9th September, 2016 passed by a learned Judge of this

Court on W.P. 10499(W) of 2009 (Md. Rahimul Hoque â€"vs- The State of West Bengal and Ors.), at the instance of one Monsur Alam Azad

(hereafter Monsur). Upon hearing the writ petitioner i.e. Rahimul, the respondent no. 7 i.e. Asgar Ali (hereafter Asgar) and the State, theÂ

learned Judge disposed of the writ petition directing that Rahimul and Asgar should be appointed as para-teachers in History in Balijole High School

(hereafter the school).

Monsur was not a party to the proceedings before the writ court. He has, accordingly, sought for leave to present the appeal by filing CAN 3269 of

2017. He has also applied for condonation of 166 days’ delay in presentation of the memorandum of appeal, by filing CAN 3270 of 2017. It is

Monsur’s contention that he was not aware of the judgment and order dated 9th September, 2016 and immediately after coming to learn of the

same, the appeal has been presented before this Court.

We have heard Mr. Kamalesh Bhattacharya, learned advocate for Monsur, Ms. Samajpaty, learned advocate for Rahimul and Ms. Dutta, learned

advocate for the State. None has appeared on behalf of Asgar despite service. Affidavit of service, filed today, shall be retained with the records. For

the purpose of deciding whether leave should be granted to Monsur, we are required to examine as to whether the judgment and order dated 9th

September, 2016 adversely affects his interest or not. Monsur, Rahimul, Asgar and 13 others were aspirants for appointment on two posts of para-

teachers in History in the school. A panel was prepared on 6th September, 2006 by the relevant selection committee wherein Rahimul, Monsur and

Asgar figured at the 1st, 2nd and 3rd positions, respectively.

Asgar had initiated a litigation before the writ court contending that despite having a degree in Bachelor in Education, he had not been allotted marks

therefor. The writ petition was disposed of with a direction upon the relevant authority to look into the grievance of Asgar and to pass an appropriate

order. The State Project Director, Paschim Banga Sarva Siksha Mission (hereafter the Director) passed an order dated 20th March, 2009 holding that

the entire selection process was vitiated. Reference was made to the absence of any column in the panel for marks to be awarded for B.Ed.

qualifications possessed by the aspirants. Exception was also taken to the residential certificate produced by Asgar. On an overall consideration of

all the points, the Director concluded as follows :

“It transpires that the selection committee has not applied its mind while allotting marks and as such it is ordered that the panel will stand cancelled

and the process of recruitment will be started de novo.â€​

Aggrieved by the aforesaid order of the Director, two writ petitions were filed before the writ court (one by Monsur and the other by Rahimul). The

writ petition of Rahimul was allowed by a learned Judge of this Court solely on the ground that Rahimul was not given an opportunity of hearing prior

to the order being passed. The matter was, thus, remitted to the Director once again with a direction to hear the interested parties and render an

appropriate decision within ten days from date. The Director, in compliance with the order of the learned Judge, passed a fresh order dated 3rd June,

2009 reiterating that the selection committee had not applied its mind while allotting marks and proceeded to cancel the panel with a direction to start

the process of recruitment de novo.

The order of the Director dated 3rd June, 2009 was challenged in the writ petition presented by Rahimul, out of which this appeal arises. The learned

Judge upon hearing learned advocates for Rahimul and Asgar came to the conclusion that Asgar was erroneously deprived of any marks for his B.

Ed. qualification and if indeed marks were awarded to him for such qualification, he would figure at the 1st position of the panel and the initial 1st

and 2nd position holders, i.e. Rahimul and Monsur would be relegated to the 2nd and 3rd positions, respectively. In view of availability of two

vacancies, it was accordingly directed that Asgar and Rahimul should be appointed.

In the application for leave to appeal (CAN 3269 of 2017), Monsur has raised an objection in regard to the B. Ed. Qualification of Asgar. According

to him, Asgar had obtained the B. Ed. qualification from B.N. Mondal University and a vigilance case is on for the forged degrees obtained by several

candidates from such university. It is also the contention of Monsur that the residential status of Asgar is suspect and, therefore, no order could have

been passed directing his appointment.

It is clear from the above discussion of facts that had Asgar not been elevated to the 1st position because of the order dated 9th September, 2016, it

would be Rahimul and Monsur who could have laid valid claims for appointment on the two vacant posts of para-teacher in History in the school.

Considering the above situation, we are convinced that the judgment and order dated 9th September, 2016 does, in fact, affect the interest of Monsur

and, therefore, leave ought to be granted to him to prefer the appeal.

Since Monsur was kept in the dark and had no knowledge of the proceedings giving rise to the judgment and order impugned herein, there was

considerable delay in presentation of the appeal; but sufficient cause having been shown, we are of the considered opinion that delay in presentation of

the appeal should be condoned.We, accordingly, allow CAN 3269 of 2017 and CAN 3270 of 2017.

Re: CAN 3190 of 2017.

CAN 3190 of 2017 is an application for stay in this appeal. It is treated as on day's list. We are informed that the order under challenge is yet to be

implemented, meaning thereby that Rahimul and Asgar have not yet been appointed. In that view of the matter, status quo as on date shall be

maintained by the parties regarding filling up of the said two posts till such time further orders are passed on the stay application. List the stay

application together with the appeal in the monthly list of July, 2018 under the heading “For Ordersâ€.A further notice shall be served on Asgar by

the learned advocate for Monsur informing him that if he chooses to stay away from the proceedings, we are likely to dispose of the appeal in his

absence.