Shyamal Sen vs State of West Bengal

Debasish Kar Gupta, J.—This writ application is directed against an order passed by the respondent No. 2 under Memo No. 961-GA/4G-53/2007, dated April 13, 2012. By virtue of the impugned order/the respondent No. 2 rejected the proposal for approval of the panel prepared for appointment of a librarian and a clerk in Vidyashram Divyajyoti Vidyaniketan High School (XII), P.O. Vidyashram, District Jalpaiguri.

Having heard the learned counsel appearing for the respective parties as also after considering the facts and circumstances, I find that the only ground to reject the above proposal was submission of the panel beyond the period prescribed in clause (c) of sub-rule (7) of rule 8 of the Recruitment Rules for appointment of West Bengal Schools (Recruitment of Non-teaching Staff) Rules, 2005. For adjudication of the issue involved in this writ application, the above provision is set put below:-

....

(7)(a) ....

(b) ....

(c) The District Inspector of Schools shall, within one month from the date of receipt of the panel, convey his decision thereon.

After perusing the aforesaid provision, I find that in the event this provision is interpreted as mandatory under the provisions of the Recruitment Rules under reference, the intention of the framers of the above Rules may be frustrated at the instance of the Managing Committee by sending the panel prepared for recruitment of non-teaching staff to the State authority after expiry of the period mentioned in the aforesaid Rules. On the other hand if it is interpreted as directory, the ulterior motive of the school authority may be served in an appropriate case by not forwarding the panel to the State authority for uncertain period.

In such a situation SIR WILLIAM WADE observed in his ADMINISTRATIVE LAW", 8th EDITION (at page 227) as follows:

Acts of Parliament conferring power on public authorities very commonly impose conditions about procedure, for example by requiring that a notice shall be served or that action shall be taken within a specified time or that the decision shall state reasons. If the authority fails to observe such a condition, is held to be mandatory or directory. Non-observance of a mandatory condition is fatal to the validity of the action. But if the condition is held to be merely directory, its non-observance will not matter for this purpose. In other words, it is not every omission or defect which entails the drastic penalty of invalidity.

The distinction is not quite so clear-cut as this suggests, since the same condition may be both mandatory and directory; mandatory as to substantial compliance, but director as to precise compliance....

The Hon''ble Supreme Court observed in the matter of May George Vs. Special Tahsildar and Others, as follows:-

In Raza Buland Sugar Co. Ltd. v. Municipal Board, Rampur and State of Mysore v. V.K. Kangan, this Court held that as to whether a provision is mandatory or directory, would, in the ultimate analysis, depend upon the intent of the lawmaker and that has to be gathered not only from the phraseology of the provision but also by considering its nature, its design and the consequence which would follow from construing it in one way or the other.

In Sharif-ud-Din v. Abdul Gani Lone this Court held that the difference between a mandatory and directory rule is that the former requires strict observance while in the case of latter, substantial compliance with the rule may be enough and where the statute provides that failure to make observance of a particular rule would lead to a specific consequence, the provisions has to be construed as mandatory.

In view of the above, I find that the correct interpretation shall be that the above provision is mandatory for his substantial compliance and directory for its strict compliance. On the basis of the above interpretation of the provision under reference, I find that the submission of the panel beyond the period of one month was permissible.

Therefore, the impugned order is quashed and set aside referring the matter back to the respondent authority to take a decision in respect of the above panel in the light of the observations made hereinabove within a period of six weeks from the date of communication of this order and to communicate the decision to the school concern within two weeks thereafter.

This writ application is, thus, disposed of.

There will, however, be no order as to costs. Urgent photostat certified copies of this order, if applied for, be given to the parties on priority basis.