Abu Ahammad Ali vs Md. Mahasin and Others

Ashim Kumar Banerjee, J.—Above three appeals involved identical questions of fact and law and as such are disposed of by this common judgment and order. In the foregoing judgment the pages referred to hereinafter would, however, relate to F.M.A. 126 of 2004, if otherwise not specified.

Mahalandi G.C. High School in the District of Murshidabad appointed one Abu Ahammad Ali (hereinafter referred as Abu) as Assistant Teacher in History when the post fell vacant on the retirement of one Amalendu Ghosh in 1991. Such appointment was purely on voluntary basis. The Recruitment Rule was not followed at all. The school thereafter obtained necessary permission from the District Inspector for filling up the said post. The school upon getting prior permission, approached the Employment Exchange for sponsoring names of eligible candidates. Abu did have the requisite qualification. He was a post-graduate in History from Calcutta University. He had also training qualification being B.Ed, from University of Calcutta.

He approached the learned single Judge by filing writ petition being C.O. No. 3570(W] of 1993, inter alia, praying for permission to participate in the selection process as he was not sponsored by the Employment Exchange although having requisite qualification. The learned single Judge not only permitted him to participate at the interview but also directed the school authority to give him extra weightage for his service rendered to the school.

The school held interview on October 16, 1993 when Abu participated along with other sponsored candidates including one Md. Mahasin (hereinafter referred to as Mahasin). Panel was prepared. Abu was placed at the top of the panel having extra ten marks awarded by the selection committee reckoning his past service. Mahasin claimed that he was placed at the second position.

Immediately, after holding of the interview, Abu filed his second writ petition and obtained an order from the learned single Judge directing District Inspector to approve the panel within seven days. Pertinent to note, other candidates including Md. Mahasin were not made parties.

Mahasin came to know of the said order passed on November 8, 1993 and preferred appeal. The Division Bench allowed Mahasin''s appeal being F.M.A.T. No. 3813 of 1993 and disposed of the same by judgment and order dated February 28, 1994 appearing at pages 81-86 of the Paper Book. The Division Bench observed that Abu was not entitled to any extra weightage. The Division Bench took note of the fact that the earlier direction allowing Abu to take part in the interview with extra weightage did not have the legal support. The Division Bench also noted the fact that as per the Recruitment Rule the District Inspector was entitled to convey his decision ordinarily within a month from the date of receipt of the panel. After noting those infirmities, Their Lordships directed the District Inspector to consider the panel in accordance with law and take his decision within fifteen days. The Division Bench, however, observed that they did not adjudicate any of the points on merits regarding the panel.

The District Inspector decided the issue by passing his reasoned order appearing at pages 88-89 of the Paper Book. The District Inspector observed that there was no scope for awarding extra mark. The school was asked to recast the panel after deleting the extra marks awarded to Abu. The said communication was made by the District Inspector on April 25, 1994. In the mean time, the Managing Committee was reconstituted. The District Inspector sent reminder to the school on June 22, 1994. A second reminder was sent on August 11, 1994. It later on transpired that on August 6, 1994 the new Managing Committee refused to recast the panel as asked by the District Inspector and decided to hold fresh interview. Pertinent to note, although the new Managing Committee took such resolution, the school was represented by Shri Ananda Prasad Ghosh, the Secretary of the said School who continued to remain the Secretary of the School all throughout.

On November 8, 2000 Mahasin filed a contempt application alleging violation of the Division Bench order passed on February 28, 1994. The contempt application was heard by the Division Bench on November 8, 2000 when the Division Bench, by its order appearing at pages 95-96 of the Paper Book recorded that the District Inspector had already taken appropriate action by passing his order dated April 25, 1994: Hence, the contempt proceeding could not lie against the District Inspector. The Division Bench observed that if the school authority had not complied with the said order it would be open to the District Inspector to take appropriate steps.

In 2001 the Managing Committee filed a writ petition being W.P. No. 3926 (W) of 2001 for a direction upon the District Inspector to allow the school to act upon the resolution which they had taken for preparation of a new panel through fresh interview. The learned single Judge disposed of the said writ petition vide order dated March 29, 2001 by directing the District Inspector to consider their representation.

Mahasin also filed a writ petition being W.P. No. 3906 (W) of 2001 inter alia praying for implementation of the decision of the District Inspector dated April 25, 1994 for recasting of the panel by the school authority. The said application was opposed by the school authority by filing affidavit-in-opposition.

In the mean time, in terms of the order dated March 29, 2001 passed in W.P. No. 3926 (W) of 2001 District Inspector granted liberty to the school authority to conduct a fresh interview. Such decision was had only upon hearing Ananda Prasad Ghosh and the teacher in-charge of the concerned school. Neither Abu nor Mahasin or any other candidate who participated at the interview was heard by the District Inspector.

The reason for refusal to recast the earlier panel by the new Managing Committee so highlighted at the hearing were as follows:

i) The Selection Committee was formed with an external expert from Lalbagh Sub-division and not from Kandhi Sub-division.

ii) Marks were awarded beyond the Recruitment Rules in favour of the first and second candidates.

iii) Five members of the Selection committee awarded same marks to each candidate in class demonstration and viva-voice.

The District Inspector by a cryptic order directed preparation of a fresh panel by holding a fresh interview. Significant to note, he did not call back his earlier order passed on April 25, 1994. On a plain reading of the said order it appears that the concerned District Inspector was possibly not aware of the earlier direction of his office issued on April 25, 1994.

The school authority invited all the candidates who participated earlier including Abu and Mahasin. Mahasin did not appear at the interview. Abu was placed at the top of the panel. The panel was placed before the District Inspector and it was approved. He joined his post and obtained salary after getting his appointment approved.

In this backdrop W.P. No. 3906(W) of 2001 came up for hearing before the learned single Judge. The learned single Judge by His Lordship''s judgment and order dated October 29, 2003 allowed the writ petition filed by Mahasin and set aside the appointment of Abu. His Lordship''s judgment is appearing at page 5 to 16 of the Paper Book. His Lordship, after recording the relevant facts and after discussing the rival contentions came to the conclusion that Abu and the Managing Committee had been hand in glove all throughout right from 1991 when he had been appointed in the said school. His Lordship observed that when the District Inspector had pointed out that the Abu had not been entitled to concession or weightage and asked the school to recast the panel the Managing Committee promptly turned around and castigated the selectors appointed by them. The said resolution was, however, not implemented. It was never disclosed until November 8, 2000 when the contempt application was decided by the Division Bench. His Lordship observed that everything done in derogation to what had bee reflected in the order of the Division Bench dated 8th November, 2000 i.e. the direction of the Division Bench dated 28th November, 1994 implemented by the order of the District Inspector dated April 25, 1994, was par se illegal being contrary to the order of the Court. His Lordship quashed the said resolution. His Lordship quashed the appointment given in favour of Abu and awarded cost in favour of State assessed at Rs. 10,000.00 payable by each of the members of the Managing Committee.

Being aggrieved, Abu preferred the appeal being F.M.A. No. 126 of 2004. The Managing Committee members also filed appeal being F.M.A. No. 127 of 2004.

The Division Bench stayed the cost part of the order and observed that the appointments, if any, made in terms of the order of the learned single Judge would abide by the result of the appeal. The Division Bench did not stay the operation of the order directing recasting of the panel.

The school authority did not comply with the direction of the learned Judge. Mahasin filed a contempt application. Learned single Judge directed the authority to comply with His Lordship''s direction.

Mahasin filed another writ petition being W.P. No. 21212 (W) of 2004 for implementation of the decision of the District Inspector dated April 25, 2004. The learned single Judge disposed of the writ petition by directing the school authority to issue appointment letter to Mahasin within a period of one week from date.

The Managing Committee filed an appeal through the Secretary and Head Master of the concerned school. The Division Bench while hearing the application for stay observed that the writ petition was not maintainable as members of the Managing Committee were not made parties to the writ petition. The Division Bench granted liberty to Mahasin to file an application for amendment of the writ petition for bringing the members of the Managing Committee on record. The order passed by the learned single Judge was set aside and the matter was remanded back to the learned single Judge for being heard afresh after addition of the Managing Committee members.

Mahasin filed a special leave petition. The Apex Court passed an order to the effect, "In our opinion it would be appropriate if the matter is remanded back to the High Court as per the order dated July 15, 2005 referred to above."

Earlier the Apex Court passed an order on May 14, 2007 to the effect that it would be appropriate if Mahasin was appointed subject to the final outcome. Such interim order was made absolute by the subsequent order of the Apex Court and was directed to continue till the appeal was heard and disposed of by the Division Bench.

In terms of the order of the Apex Court Mahasin was given appointment and since then he is serving the post.

We heard both the appeals being F.M.A. No. 126 and 127 of 2004 referred '' to above as well as F.M.A. No. 1743 of 2005 which was remanded back to this Court by the Apex Court vide order dated January 25, 2008.

Appearing for the Managing Committee Sardar Amjad Ali, learned senior counsel contended as follows:

i) The new Managing Committee, upon considering the entire record, unanimously resolved that they should go for a fresh selection as the earlier selection was vitiated by illegality and such illegality could not be cured by recasting the panel.

ii) The Managing Committee filed a writ petition before the learned single Judge, inter alia, praying for permission to hold a fresh interview. In terms of the direction of His Lordship the District Inspector permitted the school authority to hold fresh interview. The school gave opportunity to all candidates including Mahasin who refused to appear at the interview. Hence, there was no illegality committed by the school.

iii) Assuming the school authority committed illegality by not carrying out the earlier direction of the District Inspector such direction stood cancelled by the subsequent decision of the District Inspector directing the school authority to conduct a fresh selection.

iv) Assuming the school or the State committed illegality, the learned single Judge while disposing the writ petition filed by Mahasin could not have travelled beyond the prayers of the writ petition.

Elaborating his submission Mr. Ali referred to the prayers of W.P. No. 3906 of 2000 to show that there was no challenge to the decision of the Managing Committee to hold fresh interview or to upset the direction of the District Inspector permitting the school authority to hold fresh interview. In absence of such challenge the learned single Judge was not competent to quash the entire process including the resolution of the Managing committee and the order of the District Inspector permitting the school to go for a fresh interview.

While adopting the submissions made by Mr. Ali, Mr. Milan Bhattacharyay, learned counsel appearing for Abu contended as follows:

i) In the first writ petition the learned single Judge permitted Abu to participate at the interview. Such order attained finality. Hence, Abu was entitled to participate in the selection process.

ii) When Mahasin filed his second writ petition being W.P. No. 21212 (W) of 2004 Abu was not made a party. Hence, order passed in W.P. No. 21212 (W) of 2004 and the subsequent orders in such proceeding were not binding upon Abu.

iii) In terms of the direction of the District Inspector (he school held a fresh interview upon giving opportunity to all. Abu was selected. His appointment was approved. He also enjoyed the post and obtained his salary. In absence of cancellation of the order of approval the subsequent order passed by the learned single Judge asking the school to recast the panel, was of no consequence. In support of his contention that since Abu was not a party the order passed in second writ petition filed by Mahasin was not binding upon him Mr. Bhattacharyay cited the Apex Court decision in the case of Sadananda Halo & Ors. v. Momtaz Ali Sheikh & Ors., With Civil Appeal No. 1614 of 2008, Khagen Hazarika & Ors. v. State of Assam & Ors., With Civil Appeal No. 1615 of 2008, Ananda Das & Ors. v. Md. Mainul Haque Chowdhury & Ors., reported in 2008, Volume - IV, Supreme Court Cases, Page 619.

To support his contention that there had been no pleading for cancellation of the subsequent panel Mr. Bhattacharyay relied upon two Apex Court decisions i.e. Reference Under Article 317(1) Of The Constitution Re H.B. Mirdha (Dr.), Reference under Article 317(1) of the Constitution of India, for inquiry and report on the charges leveled against Dr. H.B. Mirdha, Chairman, Orissa Public Service Commission, and Union of India (UOI) and Others Vs. Jai Prakash Singh and Another,

Mr. Bhattacharyay also relied upon the decision in the case of Union of India (UOI) Vs. R. Bhusal, . Opposing the appeals, Mr. Kashi Kanta Moitra, learned senior counsel appearing for Mahasin contended that the learned Judge was right in holding that since 1991 the school was bent upon to regularize the appointment of Abu. He contended that although the Managing Committee was reconstituted periodically, Ananda Prasad Ghosh remained the Secretary at all relevant times. Hence, he was instrumental in taking the subsequent resolution so that their purpose was achieved. Mr. Moitra further contended that the facts so recorded by His Lordship were based upon relevant records and could not be assailed by any of the parties. The facts would clearly demonstrate the illegalities committed by the Managing Committee.

In support of his contention Mr. Moitra relied upon the Apex Court decision in the case of Madan Mohan Pathak and Another Vs. Union of India (UOI) and Others,

The facts recorded by His Lordship were verified by us from the records so annexed to the pleadings and incorporated in the Paper Books filed by the parties in the above three appeals. On analysis of such facts, despite best efforts we could not come to a different conclusion than what was observed by His Lordship in both the writ petitions being W.P. No. 3906 of 2001 and W.P. No. 21212 of 2004. Illegality so highlighted by the Managing Committee was technical with regard to selection of expert. It would be hard to believe that Ananda Prasad Ghosh being the Secretary of the Managing Committee was not instrumental in selecting the external expert. If he was right in such selection why he became a party to another resolution deprecating such selection? This question was not properly answered by the Managing Committee or their counsel before us.

As per the Recruitment Rule of 1987 the school asked the Employment Exchange to sponsor names of the eligible candidates. If Abu enrolled himself as an unemployed youth with the Employment Exchange he should have been sponsored, if not otherwise disqualified or not within the zone of consideration by the Employment Exchange. Be that as it may, he approached the learned single Judge and obtained an order for participation in the selection process. The Rules categorically do not permit extra weightage to be given. Hence, the District Inspector was right in asking the school to recast the panel by deleting the extra marks awarded to Abu. The District Inspector was otherwise satisfied with the selection process. Pertinent to note, the school forwarded the panel after accepting the recommendation of the selection committee constituted by the Managing Committee. Once the panel was approved by the Managing Committee and was sent for approval of District Inspector the school was bound by the decision of the District Inspector. We are unable to find out any logic as to how the school authority could ignore such decision of the District Inspector and go for a fresh selection. We are sure that the earlier order of the District Inspector was neither drawn attention of the learned Judge when His Lordship directed the District Inspector to consider the representation of the Managing Committee nor the District Inspector was aware of his earlier decision. He also should have called, back his earlier decision after assigning reasons before permitting the school to go for a fresh interview. He did not do so possibly without knowing that in the past he had asked the school authority to recast the panel.

Lot of emphasis was put on the issue of insufficient pleading or prayer. The learned single Judge heard the writ petition sitting in an equitable jurisdiction. The writ Court being the Court of Equity must pass appropriate orders to redress the grievance of the petitioner, if found justified. On analysis of the facts the learned judge was satisfied that Abu was given appointment illegally and in violation of the direction of the District Inspector dated April 25, 2994. Hence, His Lordship quashed the entire process. It is the duty of the Court to mould the relief for a complete justice. Once the Court is satisfied with the grievance of the litigant it is a bounden duty of the Court to redress such grievance. The Court cannot refuse relief after being satisfied with the grievance on a mere technical plea of insufficient pleading or prayer, more particularly while sitting in writ jurisdiction. It is true that the Court cannot go beyond the lis pending before it. It is also true that the Court is well within its power to mould the prayers to do complete justice in a lis. We do not find any illegality being committed by His Lordship in granting the relief to Mahasin.

In case the school committee was so aggrieved by the order dated April 25, 1994 they could have approached this Court inter alia against the said decision contemporaneously. Having not done so, they were not entitled to implement the purported resolution taken in 1994 in 2001 only to favour Abu. The Apex Court already by way of interim order granted appointment to Mahasin. We do not wish to unsettle such appointment. We only resolve the issue finally through our foregoing judgment by confirming such appointment.

Appeals fail and are, hereby, dismissed.

The appointment given in favour of Mahasin in terms of the Apex Court order dated May 14, 2007 is confirmed.

There would be, however, no order as to costs.

Urgent xerox certified copy would be given to the parties, if applied for.

Prasenjit Mandal, J.

I agree.