AI Structured Summary
Not yet generated for this judgment
Judgment
M.H.S. Ansari, J.—For the post of primary teacher under the North, 24-Parganas District Primary School Council, the Petitioner''s name was sponsored by the Employment Exchange and the Petitioner being short listed as per the selection process was called for interview. The grievance of the Petitioner was that despite the Petitioner having the requisite qualifications, the Petitioner was not selected and empanelled for appointment as primary teacher whereas persons less meritorious than the Petitioner were empanelled.
Assailing the said selection process, the Petitioner preferred the writ petition which was marked as W.P. No. 5693(W) of 1999 and was disposed of by an order dated April 19, 1999 whereby the directions were issued to the West Bengal Board of Primary Education to consider the matter and dispose of the same in accordance with the law.
In pursuance of the said order, the matter was taken up for hearing on June 18, 1999. Since the Respondent Chairman, District Inspector of Schools (PE) or their representatives did not appear for hearing, the matter was adjourned to July 27, 1999. The matter was heard and the claim of the Petitioner was rejected by the impugned order which was communicated by the Secretary of the Board in Memo. No. 1209(3)/BPE/99 dated August 31, 1999.
The aforesaid order has been assailed in the instant writ application. It must be stated here that the sole ground on which the Petitioner''s case was not considered for empanelment and appointment as primary teacher is as under:
After considering the submissions of the Petitioner and the Chairman of the North 24-pgs. District Primary School Council, and after examining the relevant records and papers submitted by them, I observe:
I. That it is observed from the photo copies of the documents submitted by the Chairman of the Council as also from the signature of attendance sheet for appearing for the hearing that the Petitioner has put her signature in a definite and similar pattern which are, not in capital letters.
II. That the Petitioner has admitted that she wrote her name in capital letters in the space indicated for signature in her bio-data form.
III. That it appears from photocopy of the said prescribed from her bio-data that it has clearly been instructed at Serial No. 2(iii) of the Eligibility/ Instructions given on the reverse of the prescribed form that:
2(iii) sign the Application From at the place indicated.........
Thus in my opinion the Petitioner did not put her signature on the prescribed form for bio-data in the space provided for. I also opine that the said prescribed form for bio-data which was submitted by the Petitioner cannot be considered as duly filled in, and the decision of the District Primary School Council concerned for not considering the said bio-data form of the Petitioner is valid.
The aforesaid conclusion is based inter alia, on the following submissions:
II) The Chairman of the Council further submitted that Sm. Halder was called for interview as per provisions of Rule 9(c) of the Recruitment Rules, 1991. He also submitted that at the time of interview it was detected that in the prescribed form for bio-data, supplied by the Council to the candidates, the Petitioner had written her name in capital letters in the place allotted for signature.
A photocopy of her bio-data was shown to the President of the Board. The said bio-data form was shown to the Petitioner by the President of the Board and she was asked whether she wrote her name in capital letters in the space specified for signature of putting her signature.
The Petitioner admitted that she wrote her name in capital letters in the space for signature and asserted that nowhere in the bio-data form any such instruction was given to the effect that signature cannot be put in capital letters.
I) The Chairman of the Council showed that in the bio-data form specified boxes have been provided where capital letters were to be used. In the space specified for signature, no such boxes have been provided.
II) The Chairman further submitted that the North 24-Pgs. District Primary School Council accordingly treated her bio-data form as unsigned and thereby could not consider it valid.
The Petitioner claimed that her bio-data form cannot be considered as cancelled on the ground that she used capital letters in the space for signature.
The Chairman of the concerned District Primary School Council submitted that signature signifies the identity of the person. So the characteristic pattern of signature is needed on the bio-data form for identity of the candidate.
The above position has been reiterated in the affidavit-in-opposition filed by Respondents No. 1 and 2. The copy of the bio-data form has been annexed thereto. In addition, it has been stated that the panel was placed before the District Committee in its meeting held on August 3, 1998, and was approved thereafter, it was forwarded to the Director of School Education who approved the same on December 10, 1998, as per his No. 1920-S.C./P. Pursuant thereto, the Chairman filled up the notified vacancies by giving appointments to the empanelled candidates. The more significant averment made in the affidavit-in-opposition is to the effect:
........... the Petitioner''s application having been treated by the Selection Committee as unsigned could not be considered for empanelment along with Smt. Aparna Ghose and other candidates belonging to unreserved category.
It is thus not in dispute that the candidature of the Petitioner was excluded by the statutory authorities on the sole ground that the bio-data form had not been signed by the Petitioner instead the name of the Petitioner was written in capital letters at the place intended for signature. According to the Respondents, the application was unsigned and, therefore, could not be considered.
The short point for consideration is whether the action of the Respondents authorities is sustainable in law.
It is not in dispute and cannot be disputed that the Petitioner fulfilled the eligibility criteria and was called for interview. It is also not in dispute that the particulars furnished in the bio-data form are correct.
Mr. Basu, Id. counsel for the Respondents did not dispute that the Petitioner was entitled to be empanelled and selected for the post of primary teacher. Mr. Basu urged that the selection process having been completed and letters of appointment having been issued, the case of the Petitioner will be considered positively and she will be empanelled in the next panel which is under preparation.
Under Articles 14 and 16 of the Constitution of India, every eligible person is entitled to be considered for the post applied for. Unless, the Petitioner''s eligibility is in doubt or dispute, the case of the Petitioner could not have been excluded from consideration. To entitle a statutory authority to exclude any person from consideration for the post to which he/she is otherwise eligible and fulfils the prescribed criteria, it must be shown that such power to exclude the person is traceable to some statutory provision, rule or notification having the force of law. If a decision is taken without principle or without any rule to sustain the same, it is unpredictable and such a decision is antithesis of a decision taken according to rule of law. Even in the case of discretion conferred upon a statutory authority, it is settled that when something is to be done within the direction of any authority that something should be done according to rules of reason and justice but not according to the personal opinion of the officer concerned.
Mr. P.K. Basu, learned Counsel appearing with Ms. Gouri Mukherjee for the Respondent Primary Council contended that the Petitioner not having signed the bio-data form in the place intended for signature instead wrote in capital letters her name, there has been a violation of the eligibility instructions. Reference has been made to instruction No. 2, printed on the bio-data form submitted by her in response to the call letter to the Petitioner and which reads as under:
(i) Fill in the application form using capital letters.
(ii) Use one box for each letter/digit otherwise give tick (sic) or as instructed at the appropriate places.
(iii) Sign the application form at the place indicated and send it along with duly attested copies of mark sheet/certificates etc. in support of times 4, 5, 6, 7 and 8.
To sustain the action of the Respondents in rejecting the Petitioner''s application form consideration, Mr. Basu urged that the prescribed form was not signed by the Petitioner. Mr. Basu has not been able to place any provision of law, rule or notification which prescribes the said application.
A perusal of the said form would show that at items 1, 2, and 3 what is required to be filled in is the name, father''s/husband''s name and address for mail purposes. Items No. 4 to 8 deal with the date of birth, educational qualifications, whether the candidate belongs to general/exempted category and whether the candidate is trained or having equivalent qualification and co-curricula activities. Item No. 9 deals with medium in which the candidate can teach. Items No. 10 and 11 deal with the name of the employment exchange and the registration number of the candidate with the said employment exchange. For the items 4 to 8, the certificates in support thereof are required to be enclosed with the said form.
The said form has not been prescribed either under the Act, Rules or Notification having the force of law. The said form cannot, therefore, be said to be a prescribed form. The rule as to putting the signature is also not a statutory rule nor does not same have the force of law. Where the application is not one prescribed by the rules non-compliance with the conditions thereby would be at best an irregularity and not an illegality. The irregularity is one which can be cured and the same could have been cured when the Petitioner was called for the interview before the Selection Committee along with the original documents. The Petitioner could have been asked to cure that irregularity by affixing her signature. It was not an illegality which could not be cured.
In Ziaul Islam and 202 Ors. v. State of West Bengal and Ors. C.L.T. 1999 (1) H.C. 509 Division Bench considered the rules and the manner of selection to be made thereby. Though the said judgment was in a different context, the observations to the extent relevant for the purpose of present enquiry need to be noticed and are extracted herein for ready reference.
Articles 14 and 16 of the Constitution of India in no uncertain terms provide for equality before law and equal protection of law in the matter of appointment or conditions of service. However, the matter relating to recruitment of primary teachers is governed by a legislative Act. The legislative history as also the rules prevailing in the field and the impact of various litigations filed before this Court had been noticed by a Division Bench of which one of us (S.B. Sinha, J.), was a member in West Bengal Board of Primary Education v. State of West Bengal and Ors., reported in 1997(1) CLJ 165. It now, however, stands admitted that the matter of recruitment after the said decision would be governed by the West Bengal Primary Education Act, 1973 which came into force with effect from 20th September, 1974 and Rules regulating the Recruitment and Leave of Teachers in primary Schools in West Bengal Published in the Calcutta Gazette on 26.11.1991.
Section 60 of the 1973 Act provides for the duties of the Primary School Council. Section 60(K) reads thus:
subject to the prescribed conditions, to appoint teachers and other staff in Primary Schools, to transfer any such Teachers or other staff from one Primary School to another Primary School within the jurisdiction of the same Primary School Council and to pay to teachers and other staff salaries and allowances, if any, at such rates as may be fixed by the State Government;
Section 106 of the said Act provides for powers of State Government to make rules for carrying out the purposes of this Act.
Sub-clause (v) of Sub-section (2) 106 empowers the State in particular and without prejudice to the generality of the foregoing power to make rules in any other matter which may or is required to be prescribed.
As noticed hereinbefore, Section 60(K) provides for appointment of teachers and other staff subject to the prescribed conditions. The word ''prescribed'' has been defined in Section 2(xx) as meaning prescribed by rules made by the State Government under the Act. Teacher has been defined in Section 2(xxia) to main Act. a person who holds a teaching post in a primary School or in a Junior Basic Training Institution on a regular and whole time basis and is paid either wholly or in part from the funds under the control of the State Government in the Education Department ;
The State Government in exercise of its power conferred upon it under Sub-section (1) of Section 106 of the Act made rules relating to Recruitment and Leave of Teachers in Primary Schools in West Bengal. Rules 8 and 9 which are relevant or the purpose of these matters are as follows:
Calling for the names from the Employment Exchange.-
a) The number of vacancies as determined under Rule 4, except in case the vacancies mentioned in Sub-rule (a) and Sub-rule (b) of Rule 14 and the vacancies to be filed by inter-council transfer under the provisions of Sub-section (k) of Section 19 of the Act, shall be intimated by the Council to the concerned Employment Exchange. For the purpose of preparation of panel for eligible candidates, both trained and untrained, who have requisite qualifications and in order of seniority of registration, and the list of candidates so prepared shall comprise of at least 50% of trained candidates unless the number of registered trained candidates at the concerned Employment Exchange is sufficient to comprise of the 50% of the names in the list:
Provide that in case of non-availability of sufficient number of candidates belonging to the Scheduled Castes and the Scheduled Tribes in the Employment Exchange of the concerned revenue district, a reference shall be made by the Council to the Special Employment Exchange for the Scheduled Castes/Scheduled Tribes at the State Level for sending further names.
b) The letter to the employment exchange mentioned in Sub-rule (a) shall contain, among other matters:
i) the required minimum qualifications of candidates ;
ii) the reservation quota for Scheduled Castes and Scheduled Tribes candidates and physically handicapped candidates ; and
iii) the number of vacancies to be filled up.
c) The total number of vacancies existing on the 31st December of a calender year shall be treated as the number of vacancies for that year.
Selection procedure-(a) on or after the names of candidates for the posts of teachers are obtained from the employment exchange, all candidates shall be communicated in writing to produce testimonials/ certificates for computation of their marks in the score sheets prepared for the purpose of such selection.
In the said judgment at paragraphs 10 and 11 the Division Bench observed as under ;
Rule 8 of the 1991 Rules aforementioned provides for the manner in which the Primary School Council would fill up the number of vacancies. The said procedures provide that a panel for eligible candidates be prepared and for the said purpose the Employment Exchange would be requested to sent the names of the candidates (trained or untrained) who have requisite qualification and in order of seniority of registration.
Rule 9 provided for the selection process in great details. The said Act and the Rules provide for a complete code in the matter of recruitment of teachers. It is now a well settled principle of law that if some matters are included by reason of a statute, other matters by necessary implication are excluded. No other procedure for selection having been prescribed, the District Primary School Council who are creature of the statute, have no other option but to follow the provisions of the said rules in the matter of recruitment of teacher. They cannot deviate there from. We are conscious of the fact that although seemingly they appear to be mandatory in nature but in certain circumstances they may be held to be directory.
From a perusal of Rule 9 (extracted supra), it will be seen that after the names of candidates are obtained from the employment exchange, the Respondent authorities are required to communicate to the candidates in writing to produce testimonials/certificates. There is no requirement of submitting a ''prescribed application form'' for the post. All the Rule 9, extracted supra, envisages is the production of testimonials/certificates for computation of the marks of the candidates.
As already noticed, the Petitioners was eligible and fulfilled in all respects the eligibility criteria for the post of primary teacher, her name having been sponsored by the employment exchange and based upon the educational qualifications, the Petitioner was considered eligible by the Selection Committee to be called for interview and her name finds place in the list of candidates called for interview prepared in terms of the Rule 9(c)(ii) of the Rules Regulating Recruitment of Leave of Teachers in Primary Schools of West Bengal. The Petitioner was called for the interview in terms of Rule 9(c)(iii). Thereafter in terms of Rule 9(d)(e) and (f) the scores of the interview were required to be added up and the names of candidates were required to be arranged according to marks obtained in a descending order and a panel was required to be prepared. The Petitioner could not, therefore, have been excluded from consideration after she had been called for and having appeared at the interview.
In the light of the above, I am of the considered view that the action of the Respondent authority in excluding from consideration the case of the Petitioner was arbitrary. The Petitioner has been illegally denied the equal opportunity of being considered for selection and empanelment for the post she was otherwise eligible and fulfilled in all respects the eligibility criteria prescribed therefore.
The impugned order, for the reasons aforestated, upholding the contention of the Respondents, it must be held, suffers from error of law warranting interference by this Court.
Adverting to the contention of Mr. P.K. Basu with regard to the non-availability of any relief in this proceedings to the writ Petitioner on the ground that the life of the panel has expired, Mr. Jamini Banerjee, learned Counsel for the Petitioner submitted that the said contention is misconceived besides being untenable on the facts and circumstances of the case.
Mr. Jamini Banerjee referring to The affidavit filed on behalf of the Chairman submitted that the panel was approved on December 10, 1998, by the Director as can be seen from the averments in para. ''C'' at page ''8'', the life of the panel is one year therefrom. There is no provision under the rules for publication of the panel even according to the Respondent Nos. 1 and 2. The Petitioner preferred an appeal in terms of r. 31 and there-after moved a writ application being W.P. No. 5693 (W) of 1999 which was disposed of by an order dated April 19, 1999, with directions as under:
Let affidavit-of-service filed before this Court be kept with the records.
It appears that an appeal was preferred by the writ Petitioner before the Secretary, West Bengal Board of Primary Education. Therefore, the writ petition is disposed of by directing the authority concerned to hear out the appeal within a period of four weeks from the date of communication of the order by giving an opportunity of hearing, by allowing to produce the records and by passing a reasoned order. For the sake of equity, a post can be kept vacant, if not all the posts are filled up, till one week after the disposal of the appeal by the authority.
The impugned order was passed and communicated to the Petitioner on August 31, 1999, by Memo dated August 31, 1999. The instant writ application was moved on September 16, 1999. The. writ petition was thus filed within the life of the panel and the period of one year reckoned from December 10, 1998, being the life of the panel elapsed on December 9, 1999, during the pendency of the instant writ petition.
As can be seen from the order extracted supra, in the writ petition filed earlier by the writ Petitioner a seat was directed to be kept for the writ Petitioner.. It must, therefore, be held that the life of the panel expired during the pendency of the litigation.
In Purushottam v. Chairman M.S.E.B. and am. 1999(6) S.C.C. 49 the Supreme Court considered a similar contention as regards the legal right of the candidate when there was no vacancy on account of somebody else having been appointed and the panel of selected persons having expired.
In that case, the Appellant before the Supreme Court was selected in the category of Scheduled Tribe and when the certificate produced by him was referred to the Caste Scrutiny Committee for verification, it opined that the Appellant did not belong to Scheduled Tribe based thereon the Appellant was denied the right to be employed notwithstanding his selection in the said post. On a writ petition moved by the Appellant, the High Court held that the Petitioner belongs to the said community and was illegally kept out of employment. The Respondents therein were directed to consider the case of the Appellant for appointment. However, the Respondents therein not having given the appointment in question, the Appellant moved the High Court once again. In the second writ petition which was the subject matter of appeal before the Supreme Court, the High Court was persuaded to accept the contention of the Respondents therein that in the. meantime somebody else has been appointed to the post and as such there is no vacancy and that the panel of selected persons in which the Appellant was included has expired. The Supreme Court held as under:
...... The right of the Appellant to be appointed against the post to which he has been selected cannot be taken away on the pretext that the said panel has in the meantime expired and the post has already been filled up by somebody else. Usurpation of the post by somebody else is not on account of any defect on the part of the Appellant, but on the erroneous decision of the employer himself. In that view of the matter, the Appellant''s right to be appointed to the post has been illegally taken away by the employer. We, therefore, set aside the impugned order and judgment of the High Court and direct the Maharashtra State Electricity Board to appoint the Appellant to the post for which he was duly selected with two months from today. We make it clear that appointment would be prospective nature.
In State of Uttar Pradesh v. Ram Swarup Saroj 2000 Lab. I.C. 1019, a similar contention was raised before the Supreme Court although the same had not been raised before the High Court. The Supreme Court observed that the plea was one depending on facts and had not been raised before the High Court. However, on merits it held as follows:
Similarly, the plea that a list of selected candidates for appointment to the State services remains valid for a period of one year only is primarily a question depending on facts and yet the plea was not raised before the High Court. Secondly, we find that the select list was finalized in the month of October, 1997, i.e. before the expiry of one year from the date of the list. Merely because a period of one year has elapsed during the pendency of litigation, we cannot decline to grant the relief of to which the Respondent has been found entitled to by the High Court. We may place on record that during the course of hearing of SLP before this Court, on 29.9.1999 we had directed the learned Additional Advocate General for the State of U.P. to bring on record on affidavit the status of present recruitment of the judicial officers and the present vacancy position in the subordinate judiciary. In the affidavit of Joint Secretary, Department of Appointment, State Government, Uttar Pradesh sworn in on 4.11.1999 and filed before this Court it is stated that as on 14.10.1999 there were 231 vacancies existing in the cadre of Munsif Magistrates (now Civil Judge, Junior Division/Judicial Magistrates). That being the factual position we see no reason why the direction made by the High Court should be upset in an appeal preferred by the State of Uttar Pradesh.
In the light of the above judgments of the Supreme Court, it has to be held that merely because the period of one year has lapsed during the pendency of the litigation, the Court cannot decline to grant the relief to which the Petitioner is entitled to.
Lastly, it was sought to be contended that the affected empanelled candidates to whom appointment has been given not having been impleaded, the writ petition itself is not maintainable and no relief was prayed for can be granted. Mr. Basu submitted that the case of the Petitioner will be considered positively and she will be empanelled in the next panel which is under preparation.
The instant case is one where the candidature of the Petitioner has been illegally and arbitrarily excluded from consideration. The case is not one where the Petitioner has sought empanelment against any other candidate. The Petitioner has questioned the action of the Respondent authority in the matter of preparation of the panel and excluding the Petitioner from consideration arbitrarily. In such view of the matter, it was not necessary for the Petitioner to implead any rival candidate for the post. The contention of Mr. Basu has, therefore, to be rejected.
In the result, the writ petition is allowed and a direction shall issue to the Chairman, North, 24-Parganas, District Primary School Council being the Respondent No. 3 and the Director of School Education being Respondent No. 6 herein to consider the case of the Petitioner for appointment to the post of assistant teacher within a period of four (4) weeks from the date of communication of a copy of this judgment and order. The Petitioner shall also be entitled to costs estimated at Rs. 1,000.00 (Rupees one thousand only) payable by the Respondents No. 3 and 4.