Bidhan Chandra Mandal vs Subhas Chandra Das and Ors.

The instant appeal is directed against the judgment and order dated 18th November, 2016, passed in W.P. no. 22560(W) of 2015, inter alia, on the ground that the learned Judge failed to appreciate that the order of the Hon''ble Court passed in W.P. no. 3464(W) of 2010 (Bidhan Chandra Mandal -vs- State of West Bengal and Ors.), having directed the District Nodal Officer, SSK and MSK Cell, District-Bankura to consider the representation of the appellant dated 4th August, 2009 by granting opportunity of hearing to the appellant, the authorities of the MSK and other interested parties and to pass a reasoned order and to communicate the decision to the appellant herein, the respondent no. 1/ writ petitioner being not an eligible candidate for the post of Siksha Samprasarak in Life Science at K.R. Kisku Smrity Madhyamik Siksha Kendra for making application for the said post in the context of the bar/embargo stipulated in Clause 21(ii) of the guideline issued by the respondent no. 2 herein as contained in Memo. No. 2417-PN/O/1/4P-2/2001 dated 10th July, 2003 stating, inter alia, that the Managing Committee shall engage a person as Siksha Samprasarak who would be resident of the same Gram Panchayat where the Madhyamik Siksha Kendra is located and if qualified persons are not available in the same Gram Panchayat for engagement as Siksha Samprasarak, then any person residing in the adjoining Gram Panchayats/Municipalities having required qualification may also be engaged and in the context of such specific stipulation, the appellant being a resident of Sonagara Gram Panchayat where the Madhyamik Siksha Kendra is located and in view of availability of the appellant for the post of Siksha Samprasarak in Life Science for K.R. Kisku Smrity Madhyamik Simsha Kendra, the respondent no. 1/ writ petitioner, being a resident of the adjoining Gram Panchayat namely Matgoda Gram Panchayat, cannot be an eligible candidate for such post of Siksha Samprasarak under Sonagara Madhyamik Siksha Kendra, in view of availability of the appellant being resident of Sonagara Gram Panchayat for such post of Siksha Samprasarak in Sonagara Madhyamik Siksha Kendra. It is submitted on behalf of the appellant that in view of interpretation of the words "interested parties", as contained in the penultimate paragraph of the order of the Hon''ble Court dated 10th February, 2014, the same cannot be stretched to a candidate like the respondent no. 1/writ petitioner as an interested person who is not even eligible for making application for the post of Siksha Samprasarak in Sonagara Madhyamik Siksha Kendra in view of the bar/embargo stipulated regarding the eligibility criteria of the candidate as embodied in the Government guidelines and accordingly, it is submitted that the impugned order is wholly illegal and is liable to be set aside.

It is submitted that in response to an advertisement dated 2nd February, 2009, issued by the respondent no. 3, for filling up the post of Samprasarak/Samrasarikas in K.R. Kisku Smriti Madhyamik Shiksha Kendra for the subjects History and Life Science, the petitioner submitted application on 15th February, 2009 for the post of Shiksha Samprasarak in Life Science having requisite qualifications. On 30th July, 2009, the petitioner submitted representation before the Block Development Officer, Raipur, praying for appointment in the post of Siksha Samprasarak in Life Science in KR. Kisku Smrity Madhyamik Shiksha Kendra, contending that according to the Government circular, the person concerned would not be beyond 40 years and should be resident within Sonagara Gram Panchayat and the petitioner being the only eligible candidate from the village where the Madhyamik Siksha Kendis situates, was entitled to be given appointment.

On 20th August, 2009, the petitioner submitted further representation praying for appointment in the post of Shiksha Samprasarak in Life Science in K.R. Kisku Smrity Madhyamik Shiksha Kendra on the ground that he being the only candidate who has fulfilled the criteria should be given appointment, but of no effect and on 29th October, 2009, the petitioner received a communication from the respondent no. 7 that the grievance of the petitioner had been directed to be enquired into and the respondent no. 3 had been directed accordingly and with a further direction that the action taken report may be informed to the respondent no. 7 towards necessary onward transmission.

Instead of giving employment to the petitioner in the post of Shiksha Samprasarak in Life Science in K.R. Kisku Smrity Madhyamik Shiksha Kendra in terms of advertisement dated 2nd February, 2009, the respondent no. 3 published the second advertisement inviting applications for the post of Shiksha Samprasarak/ Shiksha Samprasarika in Bengali, Geography and Life Science. It was provided in Clause (g) of the said advertisement as follows: "If the candidates as per our requisition as stated in the advertisement are not available on Sonagara Gram Panchayat, then any persons of the adjacent Gram Panchayat will be engaged for the posts in question of the MSK."

The petitioner without prejudice to his rights and contentions, submitted application for the post of Shiksha Samprasarak in Life Science in terms of the second advertisement. Challenging the second advertisement, the petitioner filed a writ petition, being W.P. 3464(W) of 2010 in which an interim order was passed restraining the respondents from giving appointment in the post of Siksha Samprasarak in Life Science in K.R. Kisku Smrity Madhyamik Shiksha Kendra till 16th July, 2010 with a direction upon the petitioner to communicate the order to the non-appearing respondents and the matter was directed to be listed on 15th July, 2010. The interim order, so passed, was extended from time to time. On 10th February, 2014, the said writ petition was finally disposed of by the Writ Court directing the District Nodal Officer, SSK and MSK Cell, District- Bankura to call for the action taken report from the Block Development Officer, Raipur and to consider the petitioner''s claim towards appointment in the post of Shiksha Samprasarak in Life Science in K.R. Kisku Smrity Madhyamik Shiksha Kendra pursuant to the selection process initiated vide Memorandum dated 2nd February, 2009 and the petitioner''s representation dated 4th August, 2009, granting opportunity of hearing to the petitioner, the authorities of the MSK and other interested parties and to pass a reasoned order and to communicate the same to the petitioner.

The District Nodal Officer, SSK and MSK Cell, District-Bankura passed a reasoned order on 23rd April, 2015 in compliance of the Hon''ble Court''s order dated 10th February, 2014 passed in W.P. 3464(W) of 2010 relating to recruitment of Shiksha Samprasarak in the subject of Life Science of K.R. Kisku Smrity Madhyamik Shiksha Kendra under Sonagara Gram Panchayat.

The recruitment process was initiated as per advertisement of the managing committee dated 2nd February, 2009 with the corrigendum dated 22nd February, 2009 and interview was conducted by the managing committee and a panel was prepared where the appellant stood second who belongs to the said village Sonagara where the Madhyamik Siksha Kendra is situated. The said panel was sent by the managing committee to the Executive Officer, Raipur Gram Panchayat, the respondent no. 4 for approval. It is revealed from the said panel that the present petitioner is the second candidate who actually belongs to Sonagara, whereas the candidates in the first and third position namely Subhas Chandra Das and Biswajit Singha belong to Village Kelepara, P.O. Matgoda, Matgoda G.P. and Village Kalapathar, P.O. Dundar, Dundar G.P. respectively.

Upon consideration of the factual scenario of the matter and in consideration of the Government guideline vide Memo. no. 1569 dated 3rd February, 2009, the District Nodal Officer, SSK and MSK Cell, Bankura passed a reasoned order, relevant portion of which is reproduced hereunder: "Now considering the above mentioned acts & deeds and as per direction of the Hon''ble Justice Sri Tapabrata Chakraborty the following order is hereby passed. The panel that was submitted by the Managing Committee of K.R. Kisku Smrity MSK was in violation of existing Govt. guideline related to the recruitment of Madhyamik Shiksha Karmasuchi of rule (ii) where it is clearly mentioned that IF QUALIFIED PERSONS ARE NOT AVAILABLE IN THE SAME GRAM PANCHAYAT FOR ENGAGEMENT AS SHIKSHA SAMPRASARAKS/ SAMPRASARIKAS THEN ANY PERSON RESIDING IN THE ADJOINING GRAM PANCHAYATS/MUNICIPALITIES HAVING REQUIRED QUALIFICATION ALSO BE ENGAGED.

Hence, by considering this guide lines as the MSK is locaed in Sonagara G.P., the candidature of the petitioner i.e. Sri Bidhan Chandra Mondal, being the qualified candidate of the same Gram Panchayat should have been selected for the post of Shiksha Samprasarak, whereas, the Managing Committee considered the candidature of Sri Subhas Das, resident of Matgoda G.P., the adjoining Gram Panchayat of Sonagara GP that clearly violates the Govt. guidelines.

And it is also taken into account that the respsondent NO. 4 i.e. the Executive Officer Raipur Panchayat Samity has returned the proposed Panel of the MC to the Secretary of the said MSK vide Memo No. 1569 Dated: 03-02-2009 with a direction to follow the Govt. Guidelines strictly but the concerned Managing Committee of the said MSK did not take any initiative or further course of action to rectify the panel.

Now considering all the facts above the petitioner Sri Bidhan Chandra Mondal may be appointed for the post of Shiksha Samprasarak of Life Science at K.R. Kisku Smriti MSK subject to the approval of the Panchayat & Rural Development Department, the Govt. of West Bengal.

The copies of this order may be circulated to all concerned."

Learned counsel for the private respondent has submitted that the appellant participated in the selection process initiated pursuant to the second advertisement and ranked second and invites our attention to condition no. 4 of the said advertisement which provides that the applicants are to be residents of Sonagara Gram Panchayat or from the resident of adjoining Gram Panchayat and in that context, it is submitted that though the private respondent belongs to different village but he had participated in response to the said second advertisement in which he stood first and, therefore, he claims priority over the appellant herein.

The core issue before this Court is as to who would be appointed in terms of the Government guideline regarding qualification of Samprasarak/Samprasarika as provided in Memo. No. 2417-PN/O/14P-2/2001 dated 10th July, 2003 of the Department of Panchayat and Rural Development, Government of West Bengal which provides that the foremost qualification for the said post is that he/she should be a resident of the same village where the Madhyamik Shiksha Kendra is located. If qualified person is not available in the same Gram Panchayat for appointment to the post of Samprasarak/ Samprasarika, then any person residing in adjoining Gram Panchayats/Municipalities may be engaged.

We are of the considered view that the second advertisement was published pursuant to the Government guideline relating to qualification of Samprasarak/Samprasarika as embodied in the Government guideline so as to explain that if any candidate is not found qualified from the same Gram Panchayat, then candidate having qualification of adjoining Gram Panchayats/Municipalities may be considered for appointment, but that does not vest the power to the managing committee to recommend the name of private respondent no. 1 for appointment for the reason that Government guidelines would prevail and the advertisement has to be read in consonance with the Government guideline. Therefore, the reasoned order of the District Nodal Officer, SSK and MSK Cell, Bankura dated 23rd April, 2015, passed pursuant to the direction of the Writ court recommending the name of Bidhan Chandra Mondal for appointment to the post of Shiksha Samprasarak of Life Science at K.R. Kisku Smrity Madhyamik Shiksha Kendra situated in Village Sonagara, P.S. Raipur, District-Bankura cannot be faulted with as it was passed after hearing the interested parties.

In the context of discussion above, we find grounds in the appeal and the impugned judgment dated 18th November, 2016 passed in W.P. 22560(W) of 2015 suffers from merit not sustainable in law, ergo, set aside.

In the result, the appeal is allowed, however, without any order as to costs.

Consequently, the application for stay, being CAN 11706 of 2016 stands disposed of.

Urgent photostat certified copy of this order, if applied for, be furnished on priority basis.