Ujjal Kr. Halder vs The State Of West Bengal & Ors.

Rai Chattopadhyay, J. :-

The writ petitioner’s grievance is with respect to refusal by the respondent District Inspector of Schools (Primary Education), South 24 Parghanas, [hereinafter referred to as the ‘DI’], to approve the panel for appointment of the assistant teacher and cancellation of the panel, in the respondent/Christian minority institution. He has challenged the order of refusal by the DI dated December 13, 2017, in the instant writ petition.

Let the facts of the case be stated here in a nutshell. The respondent No.4 institution is recognised as a Christian minority institution, which is covered under Article 30 of the Constitution of India and governed by the Special Rules vide the notification dated May 23, 1974. Vide the letter dated July 4, 2017; the DI has permitted the school to recruit 4 assistant teachers in the said school as per G.O. No. 198-SE/EE/10R-1/2015 dated March 3, 2016 [hereinafter referred to as ‘GO No 198’]. Accordingly, advertisement was published on August 2, 2017. The petitioner submitted his application on August 14, 2017. Written test and interview were held on September 24, 2017 and October 7, 2017, respectively. The rich petitioner having succeeded in the process of recruitment, was empanelled and appointed by the school authority, vide the appointment letter dated November 13, 2017. He has joined in the school on November 17, 2017. The petitioner has stated that since thereafter petitioner has been continuously serving in the respondent school, without any break and unto the fullest satisfaction of the school authority. The panel for appointment was sent by the school authority to the respondent No.3/DI, for approval, in terms of notification No.198. The DI has first raised certain queries and sought clarification in his letter dated December 6, 2017, which was on the following 5 specific points;

The school authority has submitted its explanation in reply to the queries made by the DI, inter alia accepting the fault made particularly in formation of the selection committee and preparation of the panel, which they themselves submit to be a ‘defective panel’.

Finally, the DI has passed the impugned order dated December 13, 2017, thereby refusing to approve the panel and cancelling the same. Let relevant portion of the said order of respondent DI be quoted here;

On careful perusal of the said impugned order dated December 13, 2017, it transpires that the DI has cited reason that due to violation of the terms and conditions of notification No.198, the panel dated November 20, 2017, has been cancelled. The DI, in the said impugned order has also issued directions to take fresh interview as per the said notification and submit a fresh panel before it, for approval.

Learned advocate for the petitioner, Mr. Acharyay has vehemently challenged the legality and propriety of the impugned order dated December 13, 2017, addressing that to be arbitrary, improper and illegal.

Mr. Acharyay says that the petitioner has been appointed only after a full-fledged recruitment procedure, which started with publication of advertisement by the school authority, in widely circulated newspapers. He further states that the respondent/District Inspector of Schools (Primary Education), South 24 Paraganas has accorded prior permission vide letter dated July 04, 2017 for appointment of 4 Assistant Teachers in the school. The advertisement was published to initiate the recruitment procedure by the school authority only after grant of such permission by the respondent/DI.

Further, he refers to the notification No. 198 to submit that the entire recruitment process was conducted in terms of the guidelines as mentioned in the said notification and finally, the panel has been prepared.

With reference to the same, Mr. Acharyay has further stated that in case of a religious minority institution like the instant school, the scope of DI to exercise power with regard to appointment of the teachers and their approval is really limited as the same is largely and principally vested with the school authority itself. He has stated about the petitioner having possessed requisite qualification in terms of education as well as experience to be appointed as the teacher of the school, apart from he having duly participated and succeeded in the recruitment procedure. In his argument, he has raised doubt about if the DI enjoys any extensive power under the Rules to interfere into the selection process of the teacher of the school and submits that it is the sole discretion, power and authority of the school itself to appoint its teacher, keeping in mind the special status of the institution.

The school authority by filing its affidavit has stated that as a consequence of disapproval of panel vide order of the DI dated December 13, 2017, the petitioner’s joining in school was invalidated and the petitioner should be considered to have no enforceable right to remain in post any further, consequent upon cancellation of panel. It is further stated that the school authority that in view of dearth of teachers in school and as per direction of the authority in the said impugned order to initiate fresh appointment selection process, the school has published advertisement afresh inviting candidates for being appointed as teachers in the school with requisite qualification. According to the school authority, in spite of having knowledge the petitioner did not participate in the fresh round of recruitment process. The school says that after selection a fresh panel was prepared and forwarded to the respondent No. 3/DI for approval. After some rounds of litigation in the meantime, finally, the respondent/DI has approved new and subsequent panel for appointment vide order dated November 29, 2022. This way, the school says that all sanctioned posts of 5 teachers have been filled up now and there is no vacancy for any sanctioned permanent post of teacher in the school. According to the school, in such view of the fact, the present writ petition has now become infructuous.

On behalf of the State, it is submitted inter alia that the 5 posts of Assistant Teachers in the school has now been filled up through a subsequent recruitment process initiated by the school authority in terms of notification No. 198 and the panel prepared after selection in the said process has been approved by the DI. According to the State, after approval of appointment of the 5 Assistant Teachers, there is no vacant sanctioned post in the respondent school and, therefore, the prayer of the writ petitioner is non-est in the eye of law.

At the outset, it requires to be mentioned that mere inclusion of the petitioner's name in a select panel or even issuance of an appointment letter pursuant thereto, would not confer upon him any indefeasible or vested right to hold the post. It is too well settled to require elaborate discussion that, empanelment only creates a limited expectation of appointment, subject always to fulfilment of the statutory conditions governing the recruitment process and approval by the competent statutory authority. Such expectation cannot override the mandate of the governing Rules. The doctrine that no vested right accrues merely by selection, is an integral facet of public employment jurisprudence and necessarily yields to the supremacy of the statutory scheme regulating recruitment.

Notification No.198-SE/EE/10R-1/2015 dated March 3, 2016 itself provides a complete statutory mechanism governing approval of the panel by the District Inspector. The notification not only prescribes the time within which the District Inspector is expected to take a decision regarding approval but also specifically contemplates a situation where, upon expiry of thirty days, the school authority may remind the District Inspector to communicate his decision. The legislative intent underlying such provision is unmistakable. Until the expiry of the prescribed statutory period and until a conscious decision regarding approval is taken by the District Inspector, the recruitment process remains incomplete and inchoate. Consequently, neither the school authority nor any empanelled candidate acquires any legal entitlement to act upon the panel by effecting appointment before such approval. In the present case, however, the petitioner was issued appointment on November 13, 2017 and allowed to join on November 17, 2017, much before expiry of the statutory period available to the District Inspector to scrutinise the legality of the recruitment process. Such action of the school authority was plainly inconsistent with the statutory framework itself. Equally significant is the fact that the Rules do not envisage any independent remedy either for the school authority or for an empanelled candidate against a decision of the District Inspector refusing approval upon finding non-compliance with the prescribed procedure. Once the competent authority, acting within the sphere of statutory discretion, records reasons demonstrating procedural violations affecting the selection process, the panel cannot survive merely because appointments had been hurriedly issued before expiry of the period reserved for statutory scrutiny.

The subsequent events further demolish the petitioner's claim. Pursuant to cancellation of the earlier panel, a fresh recruitment process was undertaken strictly in terms of Notification No.198 and, ultimately, all the sanctioned posts of Assistant Teachers have been filled upon approval of the subsequent panel. Admittedly, no interim order of restraint had ever been passed by this Court preventing either cancellation of the earlier panel or continuation of the fresh recruitment process. Consequently, with cancellation of the earlier panel, the petitioner's relationship with the recruitment process stood completely severed. He thereafter ceased to possess even the limited or inchoate right flowing from empanelment and assumed the position of an outsider to the subsequent recruitment. The doctrine that a candidate possesses only a limited expectation until completion of the statutory process leaves no room for sustaining a challenge by a person whose very source of claim, namely the panel itself, has ceased to exist. The grievance sought to be projected by the petitioner has, therefore, become non-existent in the eye of law.

There is yet another significant aspect. The District Inspector, before passing the impugned order, had specifically pointed out several infirmities in the recruitment process by his communication dated December 6, 2017, including defects relating to constitution of the Selection Committee, preparation of individual score sheets, preparation of the panel and the panel vis-à-vis the notified vacancies. Significantly, neither in its contemporaneous conduct nor in the pleadings before this Court has the school authority effectively justified or satisfactorily explained those deficiencies. On the contrary, after cancellation of the panel the school accepted the decision of the District Inspector, proceeded to initiate an entirely fresh recruitment process and ultimately secured approval of a fresh panel. Such conduct unmistakably amounts to acceptance of the procedural infirmities noticed by the statutory authority. Once those foundational defects remain substantially undisputed, the inevitable conclusion is that the earlier recruitment process suffered from gross violation of the mandatory procedural requirements contained in Notification No.198. The principle of law that where the statute prescribes a particular manner of doing an act, it must be done in that manner or not at all, squarely governs the present case. The impugned exercise of statutory power by the District Inspector, therefore, cannot be considered either as arbitrary or without jurisdiction.

For all the aforesaid reasons, namely, that empanelment conferred no vested right upon the petitioner; that Notification No.198 reserved to the District Inspector the statutory period and authority to scrutinise and approve the panel before any valid appointment could fructify; that the petitioner's appointment was made prematurely in derogation of the statutory scheme; that refusal of approval was founded upon procedural violations noticed by the competent authority; that the school authority itself accepted those infirmities by undertaking a fresh recruitment without effectively disputing the objections of the District Inspector; and that all sanctioned vacancies have since been lawfully filled through a subsequent approved recruitment process without any restraining order of this Court, this Court finds no legal infirmity in the impugned order warranting interference under Article 226 of the Constitution. The writ petition is, accordingly, dismissed. There shall, however, be no order as to costs.

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