Manjur Rahman Mondal vs Sibnath Ghosh

Satyabrata Sinha J.

With the consent of the parties both the application for stay as also the main appeal were taken up for hearing together and are being disposed of by this judgment.

The admitted fact of the matter is as; follows:

A vacancy having arisen in Sandeshkhali Radharani High School (hereinafter referred to for the sake of bravety as the ''said School''). A prior permission of the District Inspector of Schools (Secondary Education) was obtained, pursuant whereto the E-mployment Exchange was notified, which in turn sponsored the name of the writ-Petitioner-Respondent No. 1 as also the intervener-Appellant herein. Admittedly, the writ Petitioner at the relevant time was aged 36 years. On an application filed by the Appellant, the Employment Officer cancelled his order sponsoring the name of the writ Petitioner. The instant writ application was thereafter filed, whereupon Altamas Kabir, J. by an order dated November 17, 1994, upon taking into consideration the provisions of Rule 4(g) of the Recruitment Rules of the Secondary Rules, directed the concerned authorities of the school to allow the writ Petitioner to appear at the interview. Pursuant to the said order, the Petitioner appeared before the Selection Committee. The Appellant also appeared before the Selection Committee. A panel was prepared wherein the name of the writ Petitioner figured at serial No. 1, whereas the name of the Appellant figured at serial No. 2. The Appellant thereafter filed an application by impleading himself as a party in the writ application. The said application was allowed. S.K. Sen J. by reason of the impugned order dated September 4, 1995 allowed the said writ application directing the concerned school authorities to send the panel to the District Inspector of Schools (S.E.) North 24-Parganas'' and the District Inspector of Schools (S.E.) was directed to approve the same unless there is any specific bar in law. Such approval, it was further directed, will be given by the District Inspector of Schools (S.E.) within four weeks from date. It was, however, made clear that age bar will not stand in the way for giving appointment to the Petitioner. With the aforementioned directions, the writ application was disposed of without any order as to costs.

Mr. Yasin Ali, the learned Counsel appearing on behalf of the Appellant, has raised a short question in support of this application. The learned Counsel submits that the Rules framed by the Director of Schools Education being statutory in nature, the writ Petitioner-Respondent No. 1 could not have been appointed as an assistant teacher. The learned Counsel contends that the Employment Exchange Officer is bound by the terms of the said Rules and unless in the request sent to him the school authorities it was clearly stated asking him to sponsor the name of such candidates who had also crossed the age bar, the said authorities could not have sponsored the name of the writ Petitioner at all. It was also urged that in any event, the said authority having cancelled the order sponsoring the name of the writ Petitioner, his candidature could not have been considered by the Selection Committee nor any such direction could have been issued by this Court and consequently, the purported approval granted to the appointment of the writ Petitioner upon relaxation of his age, must be held to be wholly illegal and without jurisdiction and consequently, the Appellant should be directed to be appointed as assistant teacher.

Mr. Roy, learned Counsel appearing on behalf of the writ-Petitioner-Respondent No. 1, on the other hand, took me through various rules and submitted that a perusal thereof would demonstrate that there exists no bar in sponsoring the name of the candidate who has crossed the age of 35 years. The learned Counsel contends that in fact the writ-Petitioner had been working on deputation vacancy for a period of about six years for five terms and in terms of the said Rules, the said period were to be counted for the purpose of consideration of age bar, if any. According to the learned Counsel, in any event, in terms of several circulars issued by the State of West Bengal, clearly a direction has been made providing for the power to the concerned authorities to relax such age bar. Two of such notification are dated April 25, 1983 and October 7, 1985.

In view of the rival contentions as referred to hereinbefore, the only question which arises for consideration is (1) whether the Employment Exchange Officer acted beyond his jurisdiction in sponsoring the name of the writ-Petitioner and (2) whether the interim order dated November 17, 1994 passed by this Court which merged with the final judgment and order dated September 4, 1995, is justified.

It is admitted that the Director of School Education in exercise of his jurisdiction conferred upon him under Clauses (1)(i) and (ii) of Sub-rule 1 and by Clause 1 of Sub-rule 4 of Rule 28 of the Rules for Management of recognised non-Government Institution (Aided and Unaided) 1969 (hereinafter referred to for the sake of bravery as the ''said Rules''), issued certain directions for compliance by the recognised non-Government secondary schools in connection with the recruitment of teachers and non-teaching employees. Such direction having been issued by the Director of Secondary Education in exercise of his statutory power as noticed hereinbefore have the force of statute. It is not disputed at the bar that the District Inspector of Schools as also the Managing Committee and other authorities mentioned in the said Rules are bound to comply with the provisions thereof. The relevant provisions of the said Rules are as follows:

3(d):

For appointment in temporary vacancies of more than three months but less than one year advertisement shall be made in State level daily newspaper with complete address of the school and other relevant particulars ;

4(b):

Employment Exchange shall mention in the list, the qualification, date of birth, date of registration etc. of the candidates. Names shall be sponsored within 45 days, in case of general candidates and 60 days in case of S.C. and S.T. candidates. If names are not sponsored within the time limit mentioned above, the school authorities shall approach the D.I.S.(S.E.) for permission for advertisement in State level daily newspaper. No permission of D.I.S. (S.E.) for advertisement will be necessary in case of receipt of non-availability certificate from the Employment Exchange. In the advertisement, name and full address of the institution shall be mentioned irrespective of whether the vacancy is permanent or temporary ;

4(g):

No person shall be selected for appointment unless he/she is a citizen of India and 18 years of age or above. The maximum age limit for appointment in aided institutions is 35 years and is relaxable upto 40 years in case of experienced and highly qualified candidates as per existing Government order. Maximum age limit as relaxed for certain categories by Government orders from t me to time shall be taken into consideration at the time of selection.

It is how a well-known cannon of interpretation of statutes that statutory rules have to be read as a whole and effect should be given to all the provisions of a statute. It is not disputed that the writ-Petitioner-Respondent No. 1 holds requisites qualifications. It is also not disputed that prior to his appearance at the interview for the post in question pursuant to the aforementioned order of this Court, he had served in" different other schools for five terms on deputation vacancies i.e. for the period February 11, 1985 to May 5, 1985, i.e. for about 3 months, July 1, 1985 to May 15, 1986, i.e. for about 10 months, July 1, 1987 to May 15, 1988 i.e. for about 10 months, September 1, 1988 to May 15, 1989, i.e. for about 8 months and in the leave vacancy from August 18, 1990 to March 31, 1991, i.e. for about 7 months. He, therefore, had served in different schools for about 38 months. Such appointments were also approved by the District Inspector of Schools. From a mere perusal of Rule 3(d) of the said Rules, it would appear that for the purpose of appointment in temporary vacancies of more than three, months, but less than one year, advertisements are required to be made in the State level daily newspapers with complete address of the school and other relevant particulars. Such appointments on deputation vacancy and/or temporary vacancy are also, therefore, governed by the said rules. The writ Petitioner-Respondent No. 1, therefore, cannot be said to have been appointed by adopting back-door method. If that be so, in terms of Rule 5(p), such approved services in the institutions recognised by the West Bengal Board of Secondary Education, were to be taken into account for calculating the total period of service/experience. It is not disputed by Mr. AM that in that view of the matter the Petitioner''s appointment will not be invalid. More over, even assuming that the Petitioner''s appointment is treated to be a first entry into the service of the assistant teacher, his case is also governed by the two circular letters dated April 25, 1983 and October 7, 1985, in terms whereof the age limit is relaxable upto 40 years for experienced and highly qualified candidates and the candidates belonging to scheduled cast and scheduled tribe, disabled defence personnel and physically handicapped candidates. The submission of Mr. Ali that the Employment Exchange, therefore, had no authority to sponsor the name of the Petitioner as at the relevant time he had crossed the age of 35 years, cannot be accepted, Rule 4(b) of the said Rules merely sets out a time limit as also the procedure as to how and in what manner the school authorities are to notify the existing vacancies. The Employment Exchange, in our considered opinion, having regard to the scheme of the Rules as also the notifications issued by the State of West Bengal as referred to hereinbefore, could not have refused to sponsor the name of the writ Petitioner-Respondent No. 1 only because he was aged 36 years at the relevant time. The question as to whether the age of a candidate who has crossed the maximum age of appointment would be relaxed or not is not a matter which would fall for determination of the Employment Exchange Officer at the stage of sponsoring the names of the candidates, but would fall for determination of the District Inspector of Schools at the time of grant of approval. This view of ours finds ample support from Rule 4(g) of the said Rules, which merely provides that no person shall be selected for appointment unless he/she is a citizen of India and 18 years of age and above. Applying the doctrine of literal interpretation, a person, thus, must be considered for selection if he is a citizen of India and 18 years of age. The question of relaxation of age crops up only at the time of appointment and not prior there to. Such appointment has to be made by the Managing Committee only upon obtaining approval of the District Inspector of Schools in terms of CI. 4(g) of the said Rules read with the aforementioned circular letters dated April 25, 1983 and October 7, 1985. The process of selection and the process of appointment occurred at two different stages. The words, ''process of selection'' and ''appointment'' connote two different expressions although process of selection would ultimately lead to appointment of an eligible candidate. It is one thing to say that a person cannot be taken into consideration for selection or appointment if he lacks essential qualifications ; but it would be another thing to say that he cannot be appointed only because age bar, if any, may not be relaxed. The power to relax the age bar of a concerned candidates has been provided for in the statutory rules as also the circular letters issued by the State of West Bengal in exercise of its jurisdiction under Article 162. of the Constitution of India. It is for the authorities concerned, therefore to consider all aspects of the matter and to arrive at a finding as to whether a justifiable case has been made out for relaxation of the age of the writ Petitioner-Respondent No. 1. It has not been disputed before us that the District Inspector of Schools in fact, upon taking into consideration all relevant facts approved the panel upon relaxation of the age bar of the writ-Petitioner-Respondent No. 1. The legality and/or validity of the said order of the District Inspector of Schools was not questioned by the added Respondent-Appellant in the writ application.

In this view of the matter, the Employment Exchange Officer must be held to have acted illegally and without jurisdiction in cancelling the order whereby and where under the name of the writ-Petitioner Respondent No. 1 was sponsored. As a necessary corollary, the interim order dated November 17, 1994 passed by Altamas Kabir, J. can neither be said to be illegal nor unjustified. In fact the said interim order has merged with the final judgment and order dated September 4, 1995 passed by S.K. Sen, J. in any event, the Rules for selection as have been made by the Director of School Education must be construed so as to sub-serve justice and avoid injustice. A large number of decisions have been rendered by this Court as also by the Supreme Court of India where in similar matters, this Court directed the concerned authorities to consider the matter relating to the relaxation of the age bar of the candidates. Some of such orders have been referred to by Mr. Roy, which have been annexed to the affidavit-in-opposition filed by the writ Petitioner-Respondent No. 1 to the application for stay filed by the Appellant; but in our opinion, it is not necessary to refer to the said orders, as the power of this Court to pass such an order in our opinion, cannot be said to be either in doubt or in dispute.

We may, however, hasten to add that the Employment Exchange Officer could have refused to sponsor the name of the candidate whose age was admittedly beyond 40 years inasmuch as even the authorities concerned could not have relaxed the age of any candidate beyond 40 years, subject of course to the condition as to whether such appointment was considered to be first entry in the service by the concerned employee or not.

For the reasons aforementioned, we are of the view that the Employment Exchange Officer was not justified in cancelling his order sponsoring the name of the writ Petitioner-Respondent No. 1. We are, however, of the view that this Court in passing the interim order dated November 17, 1994 or by passing the impugned judgment and order dated September 4, 19915, did not commit any illegality. Moreover, admittedly the writ Petitioner Respondent No. 1 has the requisite qualifications and has necessary experience. In this view of the matter also in our opinion, the District Inspector of Schools cannot be said to have committed any illegality in passing an order relaxing the age bar of the writ Petitioner, if any.

For the reasons aforementioned, there is no merit in this appeal, which is accordingly, dismissed. There will, however, be no order as to costs.

Satyanarayan Chakraborty, J.

I agree.