Mandira Sen (Mandal) Vs. the State of West Bengal and ors. - Court Judgment

J.K. Biswas, J.

1. This appeal is against a judgment and order dated 20th November, 2001 passed by a learned single Judge of this Court on writ petition No. 8745 (W) of 2001. The appellant was respondent No. 8 in the said writ petition which was filed by the respondent No. 8 in this appeal.

2. The dispute is regarding the selection for appointment of the Assistant Teacher for English in 'Chatta Kalikapur Subid Ali Girls' High School' (hereinafter referred to as 'the school') situate at Post Office Chatta Kalikapur of South 24-Parganas District of the State of West Bengal. In the panel of the two interviewed candidates, the appellant was No. 1 in merit position. The writ petitioner, who was at No. 2, filed the writ petition so as to challenge the appellant's panel position. By the impugned judgment and order, the learned single Judge allowed the writ petition; and held that by awarding marks for training qualification, to which she was not entitled, the appellant had been wrongly placed at No. 1 position.

3. By an order dated 19th March, 1996 the West Bengal Board of Secondary Education upgraded the school from a 4-class Junior High School to a X-class High School. Due to such upgradation it became necessary, inter alia, to appoint one Assistant Teacher for English in the language group. Consequently, by an order dated 13th December 1996 the District Inspector of Schools (S.E.), South 24-Parganas, granted permission to the school to make the appointment according to the recruitment procedure prescribed by the Director of School Education, West Bengal, under Memo No. 2066-GA dated 27th October, 1995. The permission was granted for appointment of one Assistant Teacher, preferably trained; and the required qualification mentioned was: B.A. (Honours) in English.

4. In response to the requisition of the school, the local Employment Exchange sponsored names of four candidates for the post. The appellant and the writ petitioner were amongst the said four sponsored candidates. The only candidate having B. Ed. degree (the training qualification), amongst the four, was the writ petitioner. By letters dated 21st June, 1997 the Secretary of the school invited the said four candidates for interview to be held on 13th July, 1997. By the interview letters the candidates were further directed to submit their testimonials and statements of biodata to the Headmistress of the school on 10th July, 1997. The writ petitioner's case is that she was invited for interview on 10th July, 1997, and accordingly, she was interviewed by the selection committee on said 10th July, 1997. Her further case is that on 9th August, 1996 the Managing Committee of the school had accepted her application for absorption on temporary basis, and from the month of August, 1996 she had been working in the school; but after her interview on 10th July, 1997, by the Selection Committee, the Headmistress directed her not to attend the school anymore; and accordingly, on 13th July, 1997 she did not attend for the interview. The case of the school is that on 13th July 1997 only one candidate, that is, the writ petitioner appeared for interview; and as the performance of the single candidate was not up to mark, and sufficient number of candidates did not appear for interview, no panel was prepared consequent upon the said interview.

5. Admittedly, by a letter dated 2nd September, 1997 the District Inspector of Schools directed the school to take steps for fresh interview of the said sponsored candidates, and to prepare the panel by 30th September 1997. The case of the school is that as the letter was received by it on 24th September, 1997, a letter was written to the District Inspector of Schools stating that it would not be possible to prepare the panel by 30th September, 1997. While things were lying at such stage, alleging inaction on the part of the school in holding the postponed interview, the writ petitioner moved the first writ petition [W.P. No. 22555(W) of 1997]; it was rejected by a learned single Judge, by an order dated 5th December, 1997, holding that it was premature. The writ petitioner preferred an appeal [M.A.T. No. 4211 of 1997]. By an order dated 21st January, 1998 a Division Bench disposed of the said appeal with a direction upon the school to submit the panel before the appropriate authority as expeditiously as possible, after holding the fresh interview in accordance with law. The foregoing events, which kept the selection process incomplete, were followed by the appellant's passing the B.Ed. examination in July 1998 from the University of Calcutta. In such situation, by a letter dated 18th May, 1999 the District Inspector of Schools directed the school to hold the postponed interview in terms of the order dated 21st January, 1998 passed by the Division Bench. Consequently, by letters dated 4th August, 1999 the school again invited all the four sponsored candidates for interview on 29th August 1999. On the scheduled date, since the expert in the selection committee was absent, the candidates could not be interviewed. As required by the recruitment procedure, the school again applied to the District Inspector of Schools for approval to hold the postponed interview. The District Inspector of Schools, however, by a letter dated 30th December, 1999 wanted information from the school about the steps taken for preparation of the panel. In the circumstances, by letters dated 6th June, 2000 the school, for the third time, invited all the four candidates to attend for interview on 2nd July, 2000.

6. On 2nd July, 2000, only the appellant and the writ petitioner appeared before the selection committee. After interviewing both the candidates and examining their testimonials, the selection committee prepared the panel placing the appellant at the first position. While awarding marks according to the prescribed recruitment procedure, the selection committee awarded the appellant marks for the training qualification, i.e., the B.Ed. degree. This act of awarding marks for training qualification to the appellant was the subject matter to dispute in the writ petition [W.P. No. 8745(W) of 2001], out of which the present appeal arises.

7. In her writ petition, the writ petitioner raised the following contentions: the selection committee illegally awarded the appellant marks for the training qualification. The marks were awarded in violation of Rule 6(2) of the Management of Recognised Non-Government Institutions (Aided and Unaided) Rules, 1969 (in short 'the 1969 Rules'); for, the appellant was not entitled to such marks, as her training qualification had not been mentioned by the Employment Exchange while sponsoring her name for the post. The school authority, in collusion with the appellant, delayed the preparation of the panel with a view to absorbing the appellant.

8. The Headmistress of the school and the appellant (respondents Nos. 5 and 8 respectively in the writ petition) contested the writ petition by filing affidavits-in-opposition. The said respondents, apart from denying the allegation of collusion, contended that the selection committee had lawfully awarded the appellant marks for the training qualification. The Headmistress in her affidavit explained the reasons for delay in preparing the panel.

9. Before we proceed further, we think it appropriate to deal, briefly, with the relevant provisions which were to govern the selection in question. The 1969 Rules were framed by the State Government in terms of Section 45 of the West Bengal Board of Secondary Education Act, 1963. Rule 6 of the 1969 Rules (violation whereof has been alleged in the writ petition) has no manner of application to the dispute involved in the present case. Said Rule 6 deals with composition of the committee of an institution other than one sponsored by the State Government; and there is no Sub-rule 2 to said Rule 6. Rule 28 of the 1969 Rules empowers the Managing Committee of an aided institution to appoint teachers and other employees, inter alia, subject to the guidelines issued, for the purpose, by the Director of School Education. In exercise of power conferred on him by said Rule 28, the Director of School Education issued the necessary guidelines-- (which are known as recruitment procedure) under Memo No. 2066-G.A. dated 27th October, 1995. In terms of said guidelines, the aided institutions were required to obtain prior permission from the concerned District Inspector of Schools (S.E.) for making any appointment. In the instant case, the prior permission was granted by the District Inspector of Schools, by order dated 13th December, 1996, directing the school authority to make the recruitment following the said guidelines dated 27th October, 1995.

10. In terms of paragraph 3(e) of the said guidelines, in the prior permission order, the District Inspector of Schools was required to indicate, inter alia, the required and preferential qualifications for the post. The said paragraph 3(e) reads as follows:--

'(e) In the prior permission, the D.I.S. (SE) shall indicate the group/ subject to which the post/posts, scale of pay to be admitted, the specific academic, training/professional qualifications to be required and preferable for the particular post/posts in accordance with prevailing Government Orders. For recruitment to any teaching and non-teaching post other than the post of H.M. and A.H.M. specific academic qualification (i.e., not indicating and alternative) shall be mentioned by the D.I.S. (SE) in the prior permission.'

11. According to the procedure prescribed by the said guidelines, on receipt of prior permission the school authority was required:- (a) to obtain names of the eligible candidates from the concerned Employment Exchange, (b) to constitute a selection committee, and (c) to invite all the sponsored candidates for interview. Paragraph 6(p) of the said guidelines provided that in case the candidates were not interviewed on the date fixed for the same, for holding the postponed interview on any other date, the school authority would be required to obtain approval of the District Inspector of Schools (SE).

12. Paragraph 6 of the said guidelines contained the procedure for allotment of marks. The relevant portions of said paragraph 6 of the guidelines are quoted below:--

'6. Allotment of marks: No marks shall be awarded to the candidate for any academic or training/professional qualification above the qualification mentioned by the D.I. of Schools (SE) in the Prior Permission. No claim or evidence regarding qualification/age of any candidate shall be accepted after the interview.

(b) The Selection Committee shall assess those recognised qualifications which are relevant to the post from school level and awarded marks accordingly. Marks shall be awarded in different aspects of the candidate's achievement in the following manner:--

(i) Academic and Training/Professional qualification (except for the post of Class IV staff).

(ii) Demonstration lesson in Class room and/or oral interview (viva voce)/Typing/Written Test/Reading and Writing (as the case may be).

(iii) Teaching experience-

(For the posts of Headmaster/Headmistress/Asstt. Headmaster/Asstt. Headmistress/Superintendent).

(c) Chart showing the allotment of full marks for academic and training/Professional qualification:--

(i) School final*/High Madrasaha/Alim' 10Or its equivalent

(ii) Higher Secondary (XII Class)/P.U.*/U.E./Intermediate 10

(iii) Old Higher Secondary (XI Class) 20 w

(iv) Degree Pass 10

(v) Special Hons./Condensed Hons. Approved by the State Govt. 15

(vi) Regular Honours degree 20

(vii) Post Graduate Degree 20

(viii) Training (B.T., B.Ed., P.G.B.T.) 20

(ix) Lady Brabourne Diploma 20

..............................................................................................'

13. After interviewing the candidates, the selection committee was required to prepare the panel; and on approval of such panel by the District Inspector of Schools, the appointment was to be given by the school authority; it was again required to be approved by the District Inspector of Schools.

14. By a subsequent Office Memo No. 485-GA dated 4th April, 1996, the Director of School Education clarified certain points raised in connection with his previous Memo No. 2066-GA dated 27th October, 1995. The point raised in question No. 5 and clarification thereto in the form of reply are relevant for the present case; and accordingly, the same are quoted below:--

'Questionnaire

Reply

******************************* (5) Whether anyparticular qulification or degree including training professionalqualification of sponsored candidates not mentioned against the name ofcandidates of the list sponsored by the Employment Exchange, but if it isproduced on the date of Interview, will it be taken into consideration?

***************************** Yes, but no such marks tobe awarded for the qualification notmentioned by the District Inspector inthe prior permission.

********************************

*****************************'

15. In the aforesaid factual and legal background the learned single Judge allowed the writ petition for the reasons which we sum up: In view of the Supreme Court decision in the case of Rekha Chaturuedi v. University of Rajasthan and Ors., 1993 Supp(3) SCC 168, the selection committee acted illegally by taking into consideration the appellant's requisite qualification obtained by her after the last date for making application for the post in question. As held by a Division Bench of this Court in the case of Sri Pintu Acharyya v. The State of West Bengal and Ors.. 1997(2) CLJ 428, for the purpose of selection, the selection committee was required to consider only the qualification mentioned by the Employment Exchange while sponsoring the name for appointment of teacher. The qualification acquired by a candidate after sponsoring the name by the Employment Exchange, cannot be taken into consideration, as held by a Division Bench of this Court in the case of Md. Ainar Rahaman Khan v. State and Ors., 1998 WBLR (Cal) 2001. He held that the judicial view taken by the Supreme Court and the Division Benches could not be negated by the administrative order dated 4th April, 1996 issued by the Director of School Education. He further held that the school authority wanted to accommodate the appellant by allowing her time to get the B.Ed. degree.

16. We have heard the learned counsel for the parties. On behalf of the appellant it has been contended that the learned single Judge wrongly applied the ratios of the cases of Rekha Chaturvedi, Pintu Acharyya and Md. Ainur Rahaman Khan (supra). By referring to paragraph 3(e) of the guidelines, and the subsequent Memo dated 4th April, 1996, it has been submitted by her learned counsel that the selection committee lawfully awarded the appellant marks for the training qualification. He has placed reliance on the Supreme Court decision in the case of Bibhudatta Mohanty v. Union of India and Ors., : [2002]2SCR613 . On the other hand, the learned counsel for the writ petitioner has contended that both the essential (i.e., academic) and preferential (i.e. training) qualifications were nothing but basic eligibility qualifications. Therefore, since the appellant did not have the training qualification at the time when her name was sponsored by the Employment Exchange, she was not even eligible to be considered for the post. He contended that only because of the clarificatory Memo dated 4th April, 1996, by acquiring the B.Ed. degree during progress of the selection process, the appellant at last satisfied the eligibility criteria for the post; but, as mentioned in it by the Director of School Education himself, she did not become entitled to the marks for such training qualification. According to him, because of the clarificatory memorandum the selection committee was only empowered to consider the appellant's training qualification, but it had no power to award the appellant marks for such training qualification. For contending that a person who acquires the prescribed qualification subsequent to the prescribed date cannot be considered at all, he has placed strong reliance on the Supreme Court decision given in the case of Ashok Kumar Sharma and Ors. v. Chander Shekhar and Anr., : (1997)ILLJ1160SC . Both the learned counsel for the respondent No. 5 and the State respondents have adopted the submissions made by the learned counsel for the appellant.

17. We are first taking up for consideration the question whether in collusion with the appellant the school delayed the preparation of the panel, so as to allow her time to obtain the training qualification. The first date for interviewing the candidates was fixed for 13th July, 1997. It is the writ petitioner's own case that on 13th July, 1997 she did not appear before the selection committee for interview. From the letter inviting her for interview (as annexed to the writ petition) it is apparent that the writ petitioner was asked to appear for interview on 13th July, 1997, and not on 10th July, 1997 as claimed by her in the writ petition. The Headmistress came up with an uncontroverted case that on 13th July, 1997 only the writ petitioner had appeared for interview, and her performance being not upto mark, no consequent panel had been prepared. Therefore, it is clear that the writ petitioner had not been interviewed by the selection committee on 10th July, 1997, butwas interviewed on 13th July, 1997. Admittedly, the school did not act upon the interview held on 13th July, 1997; it was rather treated as cancelled. In terms of provisions contained in paragraph 6(p) of the recruitment procedure, another date for interviewing the candidates could be fixed by the school only after obtaining approval of the District Inspector of Schools. The case of the school is that such approval given by the District Inspector of Schools by his letter dated 2nd September, 1997, having reached the school as late as 24th September, 1997, had created on unworkable situation, as it was not possible to complete the process of preparation of the panel by 30th September 1997. The further case of the school that on 24th September 1997 itself it applied for extension of time, has not been disputed by the District Inspector of Schools by filing any affidavit. It appears, from this point of time the selection process stood stagnated for want of approval of the District Inspector of Schools for holding the postponed interview. Even after order passed by a Division Bench of this Court on 21st January, 1998 the District Inspector of Schools did not accord his approval till 18th May, 1999. There is no dispute that after the letter dated 18th May, 1999, whereby the District Inspector of Schools directed the school to hold the postponed interview, the school took the steps for interviewing the candidates, which ultimately took place on 2nd July, 2000. The disputed panel was prepared by the selection committee on said 2nd July, 2000. We have already seen that the appellant passed the B.Ed. examination in July, 1998. If the school authority and the appellant were in collusion, as alleged by the writ petitioner, then in all probability the school authority would have tried to fructify the arrangement immediately after July 1998. There is no dispute that during the period from 24th September, 1997 to 18th May, 1999 the school did not get the required approval from the District Inspector of Schools for holding the postponed interview. It is not the writ petitioner's case that the District Inspector of Schools had malafide delayed his decision to accord approval to the school to hold the postponed interview. There is no doubt that the lack of co-ordination between the District Inspector of Schools and the school authority was wholly responsible for the delay caused in preparation of the panel. But the delay, in our considered view, cannot be viewed as one deliberately caused by the school authority or the Headmistress so as to give undue advantage to the appellant. The writ petitioner's allegation of collusion between the Headmistress and the appellant does not stand to any reason, also for the admitted position that the writ petitioner appeared before the selection committee for interview on 2nd July, 2000 without raising any objection whatsoever; she raised the allegation of collusion only after finding that her chance of being appointed was bleak. Therefore, we are unable to agree with the learned single Judge that the school authority intentionally delayed the preparation of the panel so as to accommodate the appellant by allowing her time to obtain the training qualification.

18. Now we take up the question regarding the candidates' qualifications and eligibility. In terms of provisions made in paragraph 3(e) of the recruitment procedure dated 27th October, 1995, the District Inspector of Schools was required to indicate in the prior permission order the specific academic, training/professional qualifications to be required and preferable for the particular post/posts in accordance with prevailing Government Orders. In the prior permission order dated 13th December, 1996 the District Inspector of Schools indicated 'B.A. (Honours) in English' as the specific academic qualification required for the post, that is, 'an Assistant Teacher, preferably trained' for the language group. In addition to the specific academic qualification, he did not indicate and specific training/professional qualification as the required qualification for the post. Therefore, an untrained candidate possessing the academic qualification of B.A. (Honours) in English' was clearly eligible for the post. We find no substance in the submission of the learned counsel for the writ petitioner that candidates having the degree of 'B.A. (Honours) in English' together with the 'B.Ed.' degree were only eligible for the post. The District Inspector of Schools indicated the requirement of training only for giving preference. Because of such indication the training qualification did not become a required qualification for the post. The selection committee was empowered to select the best candidate, even if, such candidate was an untrained one. There is no dispute that when the recruitment process was put into motion, the appellant was an untrained B.A. (Honours) in English; and during progress of the recruitment process she obtained the training qualification. According to the learned counsel for the writ petitioner such acquisition helped the appellant, an ineligible sponsored candidate, become eligible for the post, but not for the marks mentioned in paragraph 6 of the procedure. We find no merit in the submission. We find that the appellant had the required academic qualification, that is, B.A. (Honours) in English, at the time her name had been sponsored by the Employment Exchange. Therefore, even without the training qualification she was quite eligible for the post. It is not a case where the appellant acquired the required qualification either after the last date of making the application (as per recruitment procedure there was no scope for applying) or subsequent to the Employment Exchange sponsoring her candidature for the post.

19. The proposition of law laid down by the Supreme Court in Rekha Chaturvedi's case (supra)-- relied on by the learned single Judge-- does not apply in the present case. That was a case where the question had arisen regarding fixation of the relevant date for acquiring the requisite qualifications, touching the basic of eligibility of a candidate; and in that context it was held that it is the last date for filing the applications. For the same reason. Ashok Sharma's case (supra),-- relied on by the writ petitioner's learned counsel-- wherein the Supreme Court restated the proposition, does not help the writ petitioner. Similarly, Bibhudatta's case (supra)--relied on by the appellant's learned counsel-- is also of little help in the present case. There the aggrieved candidate, having higher qualification, contended that in terms of guidelines he was entitled to preference; and in that context the Supreme Court held that question of giving preference to one arises only when on all requirements the competing candidates stand on equal footing. The case before us does not involve such a question. In view of the above discussion we hold that the appellant who had been sponsored by the Employment Exchange showing her recorded academic qualification as 'B.A. (Honours) in English' was eligible for the post.

20. The last question that remains to be answered is:-- was the selection committee right in awarding the appellant marks for training qualification? By relying on two Division Bench judgments-- Pintu Acharyya and Ainur Rahaman Khan (supra)-- the learned single Judge has answered the question in the negative. With respect, we are unable to agree with the learned Judge.

21. In Pintu Acharyya's case the recruitment process was governed by the recruitment procedure prescribed by the Director of School Education, and issued under his Memo No. 1049/1(19) G.A. dated 20th May 1993.Provisions contained in paragraph 6(a) of said 1993 recruitment procedure were as follows:--

'6. Allotment of Marks:

(a) No credit shall be given to the qualification other than the qualification mentioned by the D.I.S. (SE) in the prior permission and mentioned by the Employment Exchange.'

In that case, marks for the subsequently acquired training qualification were not given to the aggrieved candidate, because of the unambiguous stipulation in the procedure that no marks should be given for any qualification not mentioned by the Employment Exchange while sponsoring the name. But the present case is governed by the recruitment procedure dated 27th October, 1995, which took effect specifically cancelling all previous recruitment procedures. We have already seen that the 1995 procedure contains a different provision under its paragraph 6(a) read with the clarificatory Memo dated 4th April, 1996. The 1995 procedure specifically provides that marks for qualification, not mentioned against the candidate's name by the Employment Exchange while sponsoring the name, should be awarded to the candidate on two conditions:-- (1) it is mentioned by the District Inspector of Schools in the prior permission, and (2) it is produced on the date of interview. Therefore, the ratio of Pintu Acharyya's case has no manner of application to the present case.

22. The case of Ainur Rahaman Khan was also decided on the basis of the aforementioned 1993 recruitment procedure. Without bringing the 1995 procedure to the Court's notice, only its clarificatory Memo dated 4th April, 1996 was relied on, in isolation, for diluting the rigour of provisions contained in paragraph 6(a) of the 1993 procedure. The clarificatory memorandum had no connection at all with the 1993 procedure. It is worth mentioning here that the 1993 procedure, the 1995 procedure, and the clarificatory Memo dated 4th April, 1996-- all were issued by the Director of School Education in exercise of his power available under Rule 28 of the 1969 Rules. Therefore, the ratio of Ainur Rahaman Khan's case also has no manner of application to the present case.

23. As we have already seen, in terms of the 1995 recruitment procedure (read with its clarificatory Memo), in the instant case the appellant could be lawfully awarded marks for her training qualification on satisfaction of two conditions. By producing the training qualification on 2nd July, 2000, i.e., the date of interview, the appellant had satisfied one condition. For the other, we have to look at the prior permission order of the District Inspector of Schools. As already mentioned, the prior permission was for selecting a candidate-- 'preferably trained'. From the language employed by the District Inspector of Schools in the prior permission, it cannot be said that he had not mentioned the training qualification therein. Once we read the prior permission in such manner-- the learned counsel for the State, who also represented the District Inspector of Schools and the Director of School Education, having read in the same line-- we must hold that the training qualification had been mentioned by the District Inspector of Schools in the prior permission as the preferential qualification. Such factual foundation leaves us with no choice, but to hold that, in the facts and circumstances of this case, the appellant was definitely entitled to marks for her training qualification; and the selection committee was fully justified in awarding her marks for the same.

24. Having answered all the questions raised and involved in this appeal, we are now required to turn our attention to an observation made by the learned single Judge in the impugned judgment and order; it is regarding the effect of the relied on judicial pronouncements on the Memo dated 4th April, 1996. The learned single Judge held that the administrative decision contained in said memorandum could not make the binding judicial precedents nugatory. In our considered view, the proposition has no role to play in this particular case. Law laid down by the Supreme Court in Rekha Chaturvedi's case regarding the cut off date for acquiring eligibility qualification by a candidate, has no relevance whatsoever with the underlying purpose of issuing the Memo dated 4th April, 1996 by the Director of School Education. Again, it being issued in the year 1996, by no reasoning it can be said that it had been issued as a pre-emptive measure to render future judicial pronouncements nugatory; decisions of the Division Benches were rendered only on 30th September, 1996 and 15th December, 1997 respectively. That apart, validity of the recruitment procedure dated 27th October, 1995, read with clarificatory Memo dated 4th April, 1996, was never challenged; and they were not issued with the intention or requirement of neutralizing any previous judicial pronouncement. Therefore, in our opinion, the observation made by the learned single Judge was not warranted.

25. For the foregoing reasons we allow this appeal. The impugned judgment and order of the learned single Judge dated 20th November, 2001 is set aside; and the writ petition No. 8745(W) of 2001 is dismissed. The District Inspector of Schools and the school authority are directed to take all steps upto the stage of approval of appellant's appointment within two months from the date of receipt of copy of this judgment and order.

26. In the facts and circumstances of the case, there will be no order as to costs.