Arabinda Ghosh vs Tapas Ghosh

Satya Narayan Chakraborty, J.—F.M.A.T. No. 228 of 1996 has been filed against the order dated January 9, 1996 passed by a learned Single Judge of this Court in CO, No. 13010 (W) of 1991 whereby the learned Judge disposed of the writ petition filed by Respondent No. 1 directing the D.I. of Schools, (S.E.) to issue appointment letter to the writ Petitioner in respect of the post of Assistant Teacher in Social Science group at Kinkarbati Agricultural Institution after placing him in the 1st position in the panel in place of Respondent No. 9 who shall be deemed to vacate the post.

The facts of the case may thus be stated:

Against vacancy in the post of Assistant Teacher in Social Science group in the aforesaid school interview was held on April 1, 1990 wherein the Appellant Ara-binda Ghosh, Respondent No. 1, Tapas Kumar Ghosh and other candidates participated.

The Petitioner''s case is that he is Honours Graduate in History and M.A., B. Ed., whereas the Appellant/Respondent No. 9 is simple B.A. and M.A., B. Ed., when the Petitioner came to know that the school authority did not send his extra-curricular certificates to the District Inspector of Schools which he submitted before the interview board along with other testimonials, he made a representation before the District Inspector of Schools and inspection was held on January 16, 1991 by the Sub-Divisional Assistant Inspector of Schools and the Petitioner gave a written statement before the Enquiry Officer. His further case is that he submitted his certificates of extra-curricular activities along with other testimonials to the interview board but no receipt was granted to him.

The Petitioner moved a writ petition in CO. No. 1032 (W) of 1991 on February 1, 1991 before Mohitosh Mazumder, J. challenging the legality of the panel prepared by the school authority and the learned Judge asked the Respondent No. 9 to file an appeal before District Inspector of Schools and also directed the District Inspector to pass a reasoned order in the matter within a particular period after hearing the Petitioner, the Respondent No. 9 and the . school authority. However, in the meantime the District Inspector of Schools issued Memo No. 5380 dated January 31, 1991 approving the panel sent by the school authority in which the Respondent No. 9 was placed in the first position. The appointment letter was also issued in favour of Appellant by the Secretary of the Managing Committee on that date viz. January 31, 1991 and the Appellant joined on the next day.

The Respondent filed another writ petition before Mohitosh Mazumder, J. who by his order dated March 20, 1991 stated that the approval of the panel by the District Inspector of Schools which was the foundation of the appointment of the Appellant would not confer any right upon him and his appointment shall abide by the result of the appeal. On August 20, 1991 the District Inspector of Schools (S.E.), Hooghiy passed the impugned order stating that the earlier District Inspector of Schools considering the report of the Enquiry Officer and the communication made between the school and District Inspector''s Office approved the panel with a note in the file that ''there is no other way but to accept the panel when the members of the Selection Committee unanimously awarded the marks and when it was accepted by the Managing Committee''.

It was further stated in the order that the school authority denied receipt of the certificates for extracurricular activities. The District Inspector of Schools in the impugned order further stated:

On verification of the copies of certificates of extracurricular activities it is found that the Petitioner Sri Tapas Kumar Ghosh entitled to get 2 (two) marks for extra-curricular activities and that the first candidate Sri Arabinda Ghosh is not entitled to get any such marks in respect of extra-curricuiar activities.

He further stated in the order that as there was a dispute regarding submission of the certificates he had nothing but to agree with the decision of the previous District Inspector of Schools to approve the concerned panel. The Respondent No. 1''s case that he was unduly deprived of the marks to which he was entitled to in view of his extra-curricular activities and the final panel position would have changed and he would have occupied the first position instead of the Appellant. In connection with the approval of the panel, by memo No. 2105 dated July 5, 1990 the District Inspector of Schools wrote to the Secretary of the School that 2 (two) marks awarded for extra-curricular activities in favour of the first empanelled candidate viz., Appellant was not justified and if two marks were deducted from the total marks of the Appellant, the panel position would be changed.

The District Inspector of Schools asked the school authorities to rectify the defect In the parse! in terms of the recruitment rules and submit the revised assessment sheet along with other papers, By memo No. 3440 dated September 24, 1990 the District Inspector of Schools write to the Secretary of School in item No. 30 of the memo that the school authority should explain how the marks of viva of the Appellant Arabinda Ghosh, the first empanelled candidate, had been changed in the revised assessment sheet.

Inspite of direction of the learned Trial Judge the original assessment sheet was not produced before him. The learned Judge having regard to the facts and circumstances found that the decision making-process was vitiated by exercise of arbitrariness and manipulation for giving position in the panel and he passed the order accordingly.

We have gone through the materials on record carefully. The learned Trial Judge directed the District Inspector of Schools to produce the original records prepared by the Selection Committee at the time of selection but he was informed by the District Inspector of Schools by letter dated November 29, 1995 that the records relating to the matter are not traceable in his office. The revised assessment sheet is; not also forthcoming and the same goes untraced. Memo No. 2105 dated July 5, 1990 from the District Inspector of Schools to the Secretary of the school (Annexure-A to the writ petition) stating that the marks awarded for extra-curricular activities to Arabinda Ghosh not being justified and if two marks are deducted from the total marks of Shri Ghosh, the panel position would be changed and asking the school authority to rectify the defect of the panel in terms of the recruitment rules and submit the revised assessment sheet along with other papers is not challenged by the Managing Committee.

However, the Enquiry Officer (Sub-Divisional Assistant Inspector of Schools) having reported that he was not in a position to ascertain whether the certificates for extra-curricular activities were submitted by Tapas Ghosh, the District Inspector of Schools stated that the matter of submission of the certificates being a disputed one he had nothing but to agree with the decision of the previous District Inspector of Schools who approved the panel considering all matters. This is most unfortunate. The D.I. of Schools cannot be allowed to shirk his responsibility as he is the authority to approve the panel. As alleged by Respondent No. 1, he produced his extra-curricular certificates before the interview board but he was hot granted any receipt.

The D.I. of Schools was required to ascertain whether the certificates in question were filed. He will also have to see whether there is any rule for granting receipt for production of certificates and whether the allegation of the Respondent No. 1 was proved. The question of production of certificates of extra-curricular activities by the Respondent No. 1 being a disputed question of fact, we are not inclined to go into the same. By deducting the two marks unjustly awarded to the Appellant on account of extra-curricular activities the position of Respondent No. 1 will not go to the top of the panel.

Accordingly, it is to be considered as to whether the Respondent No. 1 in view of his extra-curricular activities and in the facts and circumstances of the case was to be at serial No. 1 of the panel. To our considered mind, the Director of School Education should scrutinize and examine the matter in details and see whether the certificates had been actually produced by the Respondent. He will come to an independent decision by his own in this regard and if he finds that the Respondent No. 1 produced the certificates before the Interview Board he will change the panel. If he so chooses he may examine the parties as well as the outside expert who was in the interview board. After such investigation he may also scrap the panel if he thinks fit and take interview afresh and pass necessary orders in accordance with rules.

One cannot forget that the original records of the case missing and the revised assessment sheet is not also forthcoming. One cannot also overlook the clear indications of manipulation in favour of the Appellant as disclosed from the materials on record. The so called original assessment sheet now produced by school authorities shows a difference of 3 marks between the total scores of these two candidates and deduction of 2 marks from the score of the Appellant will not change the panel position but the D.I. of schools in his letter dated July 5, 1990 says otherwise. In this case the Appellant was given the appointment with indecent haste and the entire exercise of the Managing Committee being suspect the explanation given by it regarding change of viva marks of the Appellant does not inspire confidence and we strongly condemn the conduct of the managing committee. The Director of School Education should take appropriate! action against the conduct of the school authorities.

In the result, the appeal succeeds. The impugned order is set aside and the matter is sent to the Director of School Education with the aforesaid observations and directions.

In the facts and circumstances of the case there will be no order as to cost.

Satyabrata Sinha J.: I agree with the order of my learned brother. There cannot be any doubt that the writ Petitioner would have been entitled to two additional marks towards his co-curricular activities, had he filed the requisite certificates in respect thereof. If he did not produce the same, evidently he would not be entitled to any marks in that regard although he might have produced the same before the District Inspector of Schools. It is not uncommon that the requisite certificates sometimes are not produced. See Rajmqni Harijan v. Bihar Public Service Commission 1996 Lab.L.C. 780.

As the jurisdiction of this Court under Article 226 of the Constitution is limited, then court normally cannot go into such a disputed question of fact.

However, if the assertions of the Petitioner are correct, there cannot be any doubt that the Selection Committee had acted most arbitrarily. Selection of a candidate is a solemn process. It is the duty of the Selection Committee to select the best candidate. In the instant case, the Selection Committee apparently acted callously as it now stands admitted that the Appellant was not entitled to two marks which had been allotted in his favour towards co-curricular activities, to which he was not entitled to. It is because of such malpractices, a statutory duty has been cast upon the District Inspectors of Schools to scrutinise the records very carefully. He should see to it that blatant use of nepotism and corruption on the part of the members of the Selection Committee be viewed and dealt with strictly.

We would request the Director of School Education to consider the matter with all sincerety and if necessary amend the rules so that selection of teaching and non-teaching staff may be done by some independent agency.