Narayan Chandra Das vs Sunil Chandra Mondal

Ashok Kumar Mathur, C.J.—This is an appeal directed against the order dated May 15, 2000 passed by the Learned single Judge whereby the Learned Single Judge has allowed the writ petition and held that Respondent Nos. 9 and 10, not sponsored by the Employment Exchange should not have been called for interview for selection to the post of Group ''D'' in Chhoto Naldaha high school, Tehatta, District Nadia.

Brief facts which are necessary for disposal of the present appeal are that the Petitioner was one of the candidates sponsored by the Employment Exchange for the post of Group ''D'' in the aforesaid school. He appeared at the interview for the post along with Respondent Nos. 9 and 10. The Respondent No. 9 stood first in the panel, The Respondent No. 10 stood second in the panel and the writ petition stood third in the panel. Therefore he filed the present writ petition before this Court contending that Respondent Nos. 9 and 10 who were not sponsored by the Employment Exchange have been illegally permitted by the school authorities to appear for the interview for the post. He sought a writ of mandamus directing the Selection Committee to revoke rescind and/or set aside the impugned panel in view of the Special Bench judgment of this Court in the case of W.P. No. 1933 of 1997 - Debasis Dutta v. State of West Bengal 1998(2) C.L.J. 1 and W.P. No. 1934 of 1997 - Chandan Kumar Biswas (analogously heard and disposed). This judgment provides that Rule 28 of Management of Recognised Non-Government Institution (Aided and Unaided) Rules, 1969 is mandatory and binding on the school authorities. According to this Management Rules it is incumbent for the Management of the School to approach the Employment Exchange for sponsoring candidates to be selected for the post. In the present case the Management Rules of 1969 were not followed and these two candidates, Respondent Nos. 9 and 10, were called for interview in utter violation of the statutory provisions of the Rules. Therefore, the Learned Single Judge allowed the writ petition and passed the aforesaid order directing not to consider the candidature of Respondent Nos. 9 and 10. Aggrieved against this order dated May 15, 2000 the present appeal has been filed by the Respondent No. 9. It was inter alia, submitted that the Respondent Nos. 9 did not get opportunity to file affidavit in opposition to the writ petition when the matter was decided.

The Learned single Judge at the outset has mentioned that notice of the writ petition was sent to the secretary of the School in terms of his direction and service was effected on all the Respondent before the matter appeared before the learned single judge. It was further recorded by the Learned Single Judge that the said direction was communicated to the Respondents by the letter dated April 4, 2000, but no one appeared on behalf of the Respondents nor filed any affidavit in opposition. Therefore, in view of this categorical finding given by the Learned Single Judge, argument of the learned Counsels for the Respondent No. 9/appellant that he did not get sufficient opportunity to contest the writ petition cannot be countenanced. It is not in dispute that they were served.

However the learned Counsels for the Appellant has submitted the both these candidates, i.e. Respondent Nos. 9 and 10 in the writ petition were called for interview in view of the order dated November 23, 1998 passed by this Court in W.P. No. 20788 of 1988, which reads has under:

In spite of service notice nobody excepting the State Respondents appears to oppose this application.

After hearing the learned Advocate appearing for the parties. I disposed of the writ application by passing the following order.

The Petitioner would be at liberty to make representation to the School authorities/selection committee for allowing him to appear at the interview for preparation of the panel for the post of Group ''D'' in the school concerned. The School Authority and/or the Selection Committee shall receive and entertain the representation of the Petitioner provided the Petitioner fulfils all the requisite qualification and age. The said authority shall allow the Petitioner for appearing at the interview along with other candidates if there is no express legal bar.

It is alleged by the Appellant that in terms of the aforesaid order the Respondent Nos. 9 and 10 were called for interview. On perusal of the aforesaid order it makes it clear that the Learned Single Judge has qualified the order that the school authority shall consider their representation provided that they fulfill all requisite qualification and there is no legal bar. As already mentioned above the selection was governed by Rule 28 of the Management Rules, 1969, the validity of which has already been upheld by the Special Bench by the judgment dated May 13, 1998. It was held in the said judgment that these rules are mandatory and therefore after passing of the aforesaid judgment by the Special Bench the Learned Single Judge should not have passed the aforesaid order in derogation of the Rule 28 of the Management Rules, 1969. Recruitment to any post in the school has to be through employment exchange. The Special Bench judgment was passed on May 13, 1998 and the order by which Respondent Nos. 9 and 10 were permitted to appear for the interview was passed by the Learned Single Judge on November 23, 1998 much after the decision of the Special Bench. Therefore, at the relevant date when the order was passed Rules of 1969 were in operation and the validity thereof was upheld by the Special Bench Judgment. This judgment was binding on the Learned Single Judge. Therefore, on both counts, i.e. in terms of the order passed by the Learned Single Judge requiring the candidates to fulfill all the requisite qualifications, that is, the name should be sponsored by employment exchange, that was not done and secondly this judgment of the Learned Single Judge was per incuriam as it was against the decision of the Special Bench. Therefore, the Learned Single Judge has rightly approached the matter correctly held that in view of the Special Bench judgment both the candidates could not have been called for interview. More so, the judgment of the judgment of the Learned Single Judge cannot hold water as it is a judgment in per incuriam.

Learned Counsel for the Appellant has invited our attention to an Apex Court decision in the case of Abani Mahato Vs. Kanchan K. Sinha and Others, . In this case it was held that the impugned judgment was not challenged and became final and the Appellant was interviewed and placed at serial No. 1 of the panel, in such circumstance, selection of the Appellant could not be quashed by the High Court on the ground that the Appellant''s name was not sponsored by the employment exchange. It seems that attention of the Hon''ble Court was not drawn to the decision of the Special Bench Judgment. More so, the decision of the Single Judge came much after the decision of the Special Bench and it is per incuriam because the Special Bench has already laid own that no recruitment shall be made in violation of the 1969 Management Rules. The Special Bench judgment was delivered on May 13, 1998. Therefore, on November 23, 1998 when the Learned Single Judge delivered the judgment was in complete ignorance of the decision of the Special Bench. Therefore, the order passed by the Learned Single Judge on November 23, 1998 in W.P. No. 20788 of 1998 (filed at the behest of Respondent Nos. 9 and 10) is per incuriam because the decision of the Learned Single Judge was in complete derogation of the judgment passed by the Special Bench as well as the Management Rules, 1969. In this background, the view taken by the Learned Single Judge relying on the decision of the Special Bench is justified and calling the Respondent Nos. 9 and 10 to the interview by the school authorities without being sponsored by the employment exchange was not correct. Hence we do not find any merit in the appeal and the same is dismissed.

Later on:

Stay, as prayed by the learned Advocate for the Appellant is rejected.

Jayanta Kumar Biswas, J.

I agree.