Madhab Biswas vs State of West Bengal

Pratap Kumar Ray, J.—Heard the learned Advocates appearing for the parties''. In the writ application, the Petitioner prayed for the following relief�s:

(a) Writ in the nature of Mandamus not give effect or further effect to the impugned panel prepared out of the interview held on 24.9.2000 ;

(b) Writ in the nature of Mandamus to delete the name of the private Respondent from the panel and to reshuffle the panel by placing the name of the Petitioner in the first position and direct the school authority to send the said panel to the D.I. of School (S.E.) Nadia for approval;

(c) Writ in the nature of prohibition prohibiting the Respondents from giving effect or further effect to the impugned panel prepared out of the interview dated 24.9.2000 ;

(d) Writ in the nature of centenary calling upon the Respondents to produce and/or to transmit all the relevant papers and documents before this Court so that consignable justice may be done.

Writ application was moved on November 23, 2000 when Bhaskar Bhattacharya, J. granted interim order in terms of prayer (f) till three weeks after the reopening of the Court. Prayer (f) reads as follows:

(f) An interim order be passed restraining the Respondents particularly the school authority to act upon the said impugned panel prepared out of the interview dated 24.9.2000 and further directing the D.I. of School (S.E.) Nadia, not to act upon the said panel in any manner, if the same is send by the school authority to him till the disposal of this application.

An application for vacating the said interim order was filed on June 15, 2001, registered as C.A.N, No. 509/2001. By my order dated December 19, 2001 said vacating application was disposed of directing to hear the same with main matter. Vacating application was treated as Affidavit-in''-Opposition and the Reply of. said vacating application as a reply of the main writ application. Matter was heard at length on several dates. The facts leading to the writ application are as follows:

Petitioner has challenged the panel of Group ''D'' staff of the concerned school as was prepared by the Selection Committee upon holding interview of the Petitioner and the other candidates on September 24, 2000. The challenge is centered round to the selection of private Respondent No. 6 Tulsi Banerjee (Biswas). The grounds of challenge are of three folds namely (i) Respondent No. 6 though was a member of Scheduled Caste community by birth but since she got married with a member of higher caste community, she had lost her status as a member of Schedule Caste community and thereby was not legally entitled to have sponsorship of name from Employment Exchange; (ii) that said Respondent''s date of birth as recorded in the Employment Exchange register is January 11,1959 and as such she was not even eligible to be selected as a first empanelled candidate and to be appointed in the post in question as she crossed the age bar namely 40 years in terms of the Recruitment Rule issued under Memo No. 2066 G.A. dated October 27, 1995 as effective from December 1, 1995 by Director of School Education, West Bengal, which provides that maximum age limit for appointment in case of Scheduled Caste and Scheduled Tribe candidate is 40 years; (iii) Selection Committee committed an illegality by selecting the Respondent No. 6 as a first candidate.

At the final hearing of the writ, however, the point of change of status of Respondent No. 6 due to marriage to a member of higher caste community was not urged in view of the settled legal position of Apex Court and of this Court whereby it is held'' that by marriage, no person can be included as a member of Scheduled Caste community due to marriage with a member of Schedule Caste community and/or membership of a member of a Scheduled Caste community also would not be ceased by marriage to a member of higher caste community. Only point urged on age bar regarding selection of Respondent No. 6. It is contended by the Petitioner that selection process started when prior permission was accorded by the District Inspector of Schools concerned and the school invited the names from Employment Exchange by the letter dated October 21, 1999. It is the contention of the learned advocate of the Petitioner that since the selection process started prior to coming into effect of new recruitment rules for selection of Group ''D'' staffs as applicable to the secondary and higher secondary schools in terms of Memo No. 1736(21) G.A. dated Calcutta November 1, 1999 hereinafter refer to as for brevity Recruitment Rules, 1999, the old recruitment rule as was applicable for such selection in terms of Memo No. 2066/G.A. dated October 27, 1995 as effective from December 1, 1995 hereinafter refer to for brevity as Recruitment Rules of 1995 would be the guiding rule. It is submitted that in terms of the said rule of 1995, the Respondent No. 6 had no scope to be selected due to age bar. Rule 4(g) of the said Recruitment Rule of 1995 as relied upon reads as follows:

4(g). No person shall be selected for appointment unless he/she is a citizen of India and 18 years of age or above. Except for the post of Headmaster/ Headmistress of High/Higher Secondary Schools and Superintendent of Senior Madrasahs, the maximum age limit for appointment in aided institutions is 35 years and is relaxable upto 40 years in case of S.C./ S.T. candidates as per existing Government order. Maximum age limit as relaxed for certain categories by Government Orders from time to time shall be taken into account at the time of selection.

It is submitted that date of birth of said Respondent admittedly is January 11, 1959 as recorded in the Employment Exchange Card, hence, on the date of sponsorship of the name that is on January 21, 2000 as well as on the date of interview that is on September 24, 2000, the Respondent No. 6 already crossed the age of 40 years and accordingly her selection as a first empanelled candidate is required to be cancelled.

To substantiate the argument, learned Advocate of the Petitioner had submitted the following judgments namely N.T. Bevin Katti, etc., Vs. Karnataka public Service Commission and others, , judgment passed in the case B.L. Gupta and Another Vs. M.C.D., to hold that the eligibility of the candidate would be considered on the date when advertisement was issued and in the instant case since name was sponsored from Employment Exchange, the eligibility condition would be considered and be fulfilled on the date when such names were sponsored. For process of selection and its meaning, reliance has-been placed to the judgment in the case A.P. Public Service Commission, Hyderabad and Another Vs. B. Sarat Chandra and Others, and in the case Bhupinderpal Sing and Ors. v. State of Punjab and Ors. AIR 2000 S.C. 2011.

It has been further argued that Division Bench judgment passed in the case Snehansu Jas v. State of West Bengal and Ors. 2002 W.B.L.R. (Cal.) 36, whereby the Division Bench of this Court held that in respect of the selection process wherein names are referred to by the Employment Exchange Authority, the selection process would start from the date when a candidate receives the interview letter and the relevant rule existing as on that date when interview letter is served would be applicable to complete selection process, is a judgment per incurium and same cannot be considered as a ratio decendi. Reliance has been placed to several judgments on issue of principle of theory of per incurium namely unreported judgment passed by me in W.P. No. 18158 (W) of 1997 on December 23 2001 N.T. Bevin Katti, etc. v. Karnataka Public Service Commission and Ors. (Supra), B.L. Gupta and Anr. v. M.C.D. (Supra).

As a counter to the argument as advanced by the learned Advocate of the Petitioner, learned Advocate for the private Respondent had submitted that the judgment passed in Snehansu Jas (Supra) has decided the issue about applicability of recruitment rule in the matter of selection of teaching and non-teaching staff of schools in question. It is submitted that Senhansu Jas{5) is a judgment, which has settled the legal position. The Respondent No. 6 name was sponsored on January 21, 2000 and she received the interview letter directing her appearance before the Selection Committee on September 1, 2000 whereas interview was held on September 24, 2000. It is submitted that selection process was started when the Respondent No. 6 got the interview letter that is in the month of September, 2000. At that time, the new recruitment rule came into effect being the Recruitment Rule, 1999 with effect from November 1, 1999.

It is contended by the learned Advocate of the Respondent No. 6 that in terms of Clause 4(b) of the said Recruitment Rule of 1999 Respondent No. 6 was eligible to be interviewed as the maximum age limit for appointment was prescribed as 37 years plus 5 years relaxable as a Scheduled Caste candidate that is total 42 years. It is submitted that on the date of sponsorship of name the Respondent No. 6 was below 42 years. It is further argued that as per the Government Order, age is relaxable for Scheduled Caste, Scheduled Tribe and OBC candidates'' upto 5 years. Hence, taking into account of the maximum age limit of 42 years for appointment, Respondent No. 6 was eligible candidate for being sponsored from Employment Exchange and was also eligible to be selected. It is submitted that in view of such position, there was no illegality committed by the Selection Committee empanelling the Respondent No. 6 as a first candidate of the panel. Hence, the writ application is to be dismissed.

Having regard to the rival contentions of the parties, now the following questions emerge for decision:

(a) Whether Recruitment Rule of 1995 issued by Director of School Education, West Bengal or the Recruitment Rule of 1999 issued by the said authority would be applicable in respect of the present selection process ;

(b) What is the date of starting point of selection process ;

(c) Whether the selection of the Respondent No. 6 is illegal and Petitioner is entitled to get any relief.

So far as the starting point for selection process for the candidates sponsored from Employment Exchange, the point is not at all res-integra in view of the judgment passed by the Division Bench of this Court passed in the case Snehansu Jasi (Supra) whereby the Division Bench on consideration of several judgments held that in respect of the candidates sponsored from Employment Exchange, the selection process would start when the interview letter would be served upon the candidate and relevant rule as was existing on that date would be the guiding rule to determine the issue. It has been further held in the said case that issuance of prior permission letter by the District Inspector of Schools concerned is a ministerial action and that cannot be the date as to hold starting point of selection process. The para. 22 of the said judgment being profitable for adjudication of this case is quoted in extenso herein-below:

In view of the law laid down by the Apex Court and Division Bench of this Court, we are of the opinion that the selection process will commence only when . the candidates are invited to appear on the basis of names, sent by the Employment Exchange on requisition by the managing Committee for recruitment of the teachers and if that stage has not reached then it will not amount to commencement of the selection, process. The selection process is deemed to have commenced if the posts have been advertised and candidates have been called for interview and meanwhile if the rules are amended then that selection process should be allowed to continue without being affected by the amendment of the Rules unless the Acts or Rules have been amended with a retrospective effect. Thus, in this view of the matter, the view taken by the learned Single Judge in the case of Kanaidighi Deshapran Vidyapith v. State of West Bengal; and Salauddin Miah v. State of West Bengal, are not more good law.

This Court is of the same view on the question of the law as decided by the Division Bench. Judgments of Apex Court as relied upon by the Petitioner, therein the names were not sponsored by Employment Exchange but names were submitted in terms of the advertisement published in the Newspaper. In that view of the fact, it has been held by the Apex Court that the eligibility condition to be fulfilled on the last date of submission of such application in terms of the advertisement including the age, qualification etc. Hence, the Judgments as referred to by the learned Advocate of the Petitioner N.T. Bevin Katt and B.L. Gupta{Supra) have no applicability in this case. Similarly on the issue of process of selection as relied upon being the judgments A.P. Public Service Commission (Supra) and Bhupinder Singh also have no applicability. The judgment passed by the Snehansu Jas (Supra) is not only a ratio decendi on the question of law as involved therein but the said judgment is binding to a Single Bench. In view of such binding effect of judgment to me, said judgment passed in Snehansu Jas {Supra) is accepted. Reliance may be placed to the judgment passed by the Apex Court on issue of binding effect of a Division Bench judgment before a Single Bench passed in the case State of U.P. and oters Vs. Sheo Nandan and others, . Having regard to the principle of judicial discipline and the dictum of the Apex Court, the judgment of Snehansu Jas {Supra) is squarely applicable in this case.

Hence, having regard to such position, it is he�d that in the instant case, the selection process was started when the candidates received the interview letters that is sometimes in the month of September, 2000 when already the new rule of 1999 came into effect. Hence, selection in respect of the present post in question by the Selection Committee was required to be made in terms of the Recruitment Rules issued by the Director of School Education as effective from November 1, 1999 that is the Recruitment Rule of 1999. Point No. (a) is answered against the Petitioner holding that in the instant case Recruitment Rule of 1999 would be applicable so far as the selection of the candidates re concerned.

Point No. (b) is also answered'' relying upon the judgment Snehansu Jas{ Supra) upon "holding that selection process started when the candidates got the interview letter which in the instant case is September, 2000. Having regard to such legal position, now point No. (c) is to be decided.

In terms of the Recruitment Rule 1999 more particularly under Clause 4(d) it is clear that maximum age limit for appointment is 37 years plus 5 years as relaxable in the case of candidates under categories S.C., S.T. and O.B.C. In the instant case, the maximum age limit for such appointment is 42 years as the post is reserved for S.C. candidates. From the records, it appears that the Petitioner''s date of birth though was differently mentioned one in the Employment Exchange Card as January 11, 1959 and another in the Certificate of Secondary Examination issued by West Bengal Board of Secondary Education, as January 19, 1966, but age of the Respondent No. 6 to be considered herein as January 11, 1959 as recorded in the Employment Exchange Card when she was qualified with Class VIII pass, as it is her first declaration of age.

It is submitted by the learned Advocate for the Respondent No. 6 that the date of birth as recorded in the Certificate of Secondary Examination issued by the concerned Board was wrongly made and application for correction of the same has already been filed. However, since in the post in question, the minimum eligibility qualification was Class VIII pass and Respondent No. 6 name was sponsored in view of her such qualification and registration in the Employment Exchange, for adjudication of this case, the age of the Respondent No. 6 would be considered as January 11, 1959. Having regard to such age, it appears from the record that the Respondent No. 6 received interview letter on September 1, 2000 when she was below 42 years of age and accordingly there was no embargo for her appearance in the interview for selection. In that view of the matter, selection of Respondent No. 6 was not illegal and she did not cross the age bar of appointment to the post in question 42 years. Furthermore, from the very language as used in the Recruitment Rule 1999 it appears that maximum age limit for appointment has been prescribed. There is no maximum age limit prescribed for selection of a candidate though minimum age limit has been prescribed for such selection being 18 years or above.

It is a settled law that ''selection'' and ''appointment'' both words are not synonymous. ''Selection'' means enlistment, empanelment whereas ''appointment'' means actual posting. Reliance may be placed to the judgment in the case Prafulla Kumar Swain Vs. Prakash Chandra Misra and Others, and in the case Jagdish Ch. Patnaik and Others Vs. State of Orissa and Others, Having regard to the word ''maximum age limit for appointment'' and in absence of any maximum age limit for selection in the Recruitment Rule, the consideration of the candidature of Respondent No. 6 by the selection committee was not illegal. Having regard to all the legal position, I do not find any illegality in the matter of selection of Respondent No. 6 with reference to the age bar as contended by the Petitioner.

The writ application accordingly fails and is dismissed but no order as to costs. It is made clear that since the matter was pending in this High Court and the panel could not be approved, the concerned District Inspector of Schools is directed to accord approval of the panel within 4 weeks from the date of communication of the order and Managing Committee of the School is directed to issue appointment letter in favour of the Respondent No. 6 within a week from the date of receipt of such approval order of panel. Since the matter is pending in the High Court for a considerable time and in the mean time the Respondent No. 6 has crossed 42 years of age, there will be no embargo for appointment of the Respondent No. 6 in the post in question irrespective of crossing of 42 years of age.

Leave is given to take down the gist of this order for communication to the concerned Respondents and the Respondents are directed to act on the basis of the communication made by the learned Advocate.