Sadhan Biswas vs District Inspector of Schools (S.E.) Nadia

Pratap Kumar Ray, J.—Heard the learned Advocates appearing for the parties.

In this writ application, the Petitioner has prayed for the following reliefs:

(a) A Writ of and/or in the nature of Mandamus commanding the Respondent Nos. 3 and 4 to prepare the panel as per inverview dated 23.1.92 for recruitment of a Geography teacher as Sahebnagar High School, Nadia within 7 days;

(b) A Writ of and/or in the nature of Mandams commanding the Respondent No. 1 to issue approval of the panel as per interview held on 23.1.92 for the recruitment of a Geography Teacher of Sahebnagar High School within 7 days from the date of receiving the panel;

(c) A writ of and/or in the nature of Certiorari commanding the Respondents to transmit all the papers and documents to this Hon''ble Court within the specified time;

(d) A Rule Nisi in terms of prayers (a), (b) and (c) above;

(e) Mandatory order directing the Respondent Nos. 3 and 4 to prepare the panel as per interview held on 23.1.92 for recruitment of a Geography Teacher for appointment in Sahebnagar High School within 7 days from the date of order and the Respondent No. 1 will issue approval of the above panel within 7 days from the date of receipt of the panel;

(f) Interim order of injunction restraining the Respondents to cancel the above prior permission of memo No. 2632/SE dated 15.10.87 issued by the Respondent No. 1;

(g) Ad-Interim order in terms of prayer (a) and (f) above;

(h) To pass any other Writ or Writs and/or order or orders and/or direction or directions as to Your Lordship may seem fit and proper.

Originally the writ application was filed within certain prayers and subsequently in view of the disclosure of doucuments as per leave of the Court, the writ application was amended. Amended writ application was filed and the same was allowed by the Court.

It is the case of the writ Petitioner in this writ application that in terms of the interview held on January 23, 1992 relating to the post of Assistant Teacher in Geography, no panel was prepared by the Selection Committee and direction for preparation of the panel to be passed by this Court on the basis of the marks on academic qualification, the marks as obtained in the oral interview and the class demonstration. It has been further submitted in the writ application that since there was no panel prepared by the Selection Committee, there was no question of according any approval of the panel and as a consequence therefore there was no question of giving appointment to Respondent No. 7 Shri Tapas Biswas. Accordingly, it is prayed by the learned Advocate for the Petitioner that the appointment of the Respondent No. 7 to be. cancelled. This writ application has been opposed by filing affidavit-in-opposition by the Respondent No. 7. The writ application has been supported by the Managing Committee of the school by filing affidavit. The State Respondents have not filed any affidavit but suported the views of the District Inspector of Schools concerned according approval of the panel and appointment of Respondent No. 7. The Court directed the District Inspector of Schools concerned to produce the records of this case. The records were placed before this Court, which have been kept as a part of the record by the order dated August 9, 2002. Form the rival contentions of the parties and the documents as placed before this Court, and from the file of the appeal Court as has been brought before this Court for perusal, it appears before this Court that the Respondent No. 7 not only had misled the Appeal Court by not disclosing the real state of affairs while he moved the Appeal being F.M..A.T. No. 2493 of 1996 that there was no panel prepared by the Selection Committee, which was the settled judicial view by adjudication in a contempt proceeding by Altamas Kabir J. but also influenced illegally by distorting the order of appeal Court to the D.I. of Schools who accorded approval of panel. From the record it further appears that the order of the Division Bench dated August 27, 1996 also was wrongly interpreted to accord the approval of a panel, which was non-existence as per law. For effective adjudication of the entire issue, the summary of the earlier views and the different Court''s orders in different Court''s proceedings are required to be considered first.

It is an admitted position that in terms of the prior permission to fill up the vacancy for the post of Assistant Teacher in the concerned school, the School Authority requested the Employment Exchange to refer the names who in turn by their communication dated Feburary 27 1990 sponsored names of ten candidates and the interview date was fixed on January 23, 1992 by serving letter of interview sometimes in the month of January, 1992. Having regard to the judgment of this Court passed by the Division bench in the case of Shehanshu Jas v. State of West Bengal and Ors. 2001 W.B.L.R. (Cal.) 36 a judgment of the Division Bench, the Recuritment Rules (1) 2001 W.B.L.R. (Cal.) 36 as. was prevalent on the date when the interview letter was served in January, 1992, that is the Recruitment rules issued by the Director of School Education, West Bengal under memo No. 2816 (17) G.A. dated December 4, 1989 (hereinafter referred to as the Recruitment Rules of 1989 for brevity) is the realevant Recruitment Rules, applicable in respect of the preparation of the panel and issuance of the appointment letter.

The relevant Rule, which is required to be considered in this case namely cls. (5) and (6) are quoted in extenso:

5(a) The Selection Committee after holding interview of the candidates shall prepare a panel of three candidates eligible for appointment for each post in order of merit. However, for the post reserved for Scheduled Castes or Schedule Tribes or for the subject Physics, Chemistry, English, Geography panel or less than three may be prepared if three candidates are not available in spite of ail possible efforts.

(b) For selection and preparations of panel of candidates the Selection Committee shall assess only those qualifications of the candidates which are relevant to the post(s) and award marks to each candidate in the manner in the chart given below. Marks will also be awarded separately for experience, extra-curricular activities and performances in the interview in the manner prescribed in the chart below and submit the same to the Managing Committee of the School with their definite recommendations

(c) The panel will be framed with average of marks awarded by each of the members of the Selection Committee. If any member of the Selection Committee wants to keep his opinion reserved the average will be calculated on the basis of marks awarded by other members.

(d) The Managing Committee after due consideration and approval shall forward the panel so prepared by the Selection Committee with all relevant papers to the District Inspector of Schools (SE) of the district for approval. The Secretary after being authorized by the Managing Committee or the Administrator will issue intimation for appointment in order of position in the panel though Registered Post Card after receiving the panel duly approved by the District Inspector of Schools(SE). The District Inspector of Schools (SE) will convey his decision ordinarily within a month from the date of the receipt of the panel.

The panel will remain valid for one year with effect from the date of approval of the District Inspector of Schools(SE) despite any of the empanelled candidates either not joining or leaving the post within life time of the panel. Names of such candidates who do not join within 3 months from the receipt of the appointment letter will be removed from the panel.

6 Mode of Selection:

Preliminary screening:

In case of candidates sponsored by the Employment Exchange(s) all the candidates should be invited for interview without screening. When the total number of application received through open advertisement for one particular post "is more" than ten a list of candidates to be interviewed will be prepared after preliminary screening of all applications. This list will be prepared on the basis of marks obtained by the candidates in different examinations as given in the chart in sl. No. 8 of this order. The preliminary screening will be done by a team consisting of the Secretary, Headmaster/Headmistress and Teachers'' representative in the Selection Committee in case of a school having properly constituted Managing Committee, Ad Hoc Committee In case of school under Administrator, he in place of Secretary will be one of the members. In case of selection to be made by a Selection Committee constituted as under 4(b) above the team mentioned above will be constituted with the Secretary of the organizing committee, one member of the organizing committee and one Headmaster/Headmistress of a neighbouring High/Higher Secondary School both selected by the organizing committee.

A record of preliminary screening should also be preserved and shall remain open to inspection by the District Inspector of School (SE) or any officer authorized by him.

From the aforesaid provisions it appears that there was a mandatory provision that the panel would be prepared by the members of the Selection Committee on the basis of the average of marks awarded by each of the member of the Selection Committee. Further it appears that the said panel was required to be placed before the Managing Committee for their due consideration and approval in terms of Clause 5(d) of the said rules of 1989. After approval of the panel the same was required to be forwarded to the District Inspector of Schools concerned for his necessary approval and thereafter the question of appointment comes in respect of the empanelled candidates, In terms of CI. (6) of the said Recruitment Rules of 1989, under the mode of selection, it is provided that marks in respect of academic qualification would be added with the marks as would be allotted by the members of the Selection Committee in oral interview and class demonstration and thereafter the panel would be prepared in the manner as already mentioned. From the records, it appears that though on January 23, 1992 the interview was held in respect of four candidates, who appeard which includes the present Petitioner and the Respondent No. 7, the Selection Committee could not prepare any panel as they faced a problem to allot marks in respect of the academic qualification of two candidates whose qualifications were different than the qualification mentioned in the prior permission order issued by D.l. of schools. The Headmaster of the school by his letter dated January 25, 1992 under Reference No. 95/91-92 sought for clarification from the District Inspector of Schools concerned regarding eligiblity of the said two candidates as well as the mode of allotment of the marks as would be followed to that effect. In this letter it was pointed out about the qulification of those candidates in respect of whom the problem cropped up for allotment of marks, which reads as follows:

(1) one candidate first Graduated in Science (B. Sc.) having Physics, Chemistry & Math. Under Calcutta University in 1979 and then passed B.A. with one Geography as and Additional subject from Nagpur University in 1987. Then he passed B.T. examination.

(2) the other candidate first Graduate in commerce (B. Com.) from the Calcutta University in 1986 and then Graduated B.A. (all subject including Geography) from Ranchi University in 1987 and in 1988 obtained Honours Degree in Geography from Ranchi University.

The District Inspector of Schools concerned in response to the letter of Headmaster dated January 25, 1992 by his letter dated March 7, 1992 instructed the Headmaster to take necessary steps for correction of the prior permission order as issued under Memo No. 2832 (S.E.) dated October 15, 1987 holding, inter alia, that none of the said two candidates whose names were referred to for clarification in respect of mode of allotment of marks for academic qualification, was not eligible according to the prior permission order as issued. The letter of District Inspector or School concerned dated March 7, 1992, the draft copy which is available in the records reads thus -

Government of West Bengal

Memo No. Dated:

From: The D.I. of Schools(SE), Nadia To: The Secretary,

Sahebnagar High School

P.O. Sahebnagar, Dt. Nadia

Sub.:Clarification reg.eligibility of candidates.

Ref.: H.M''s letter No. 95/1991-92 dt.25.1.92.

In response to his letter, cited above, he is requested to take up the issue with this office for correction of Prior Permission issued vide this Office Memo No. 2632/SE, dt.15.10.87 to the necessary extent before selection of the candidate against the said vancancy as name of the two candidates according to, the particulars furnished is not eligible for the post.

D.I. of Schools(SE), Nadia.

However, from the records it appears that in view of basic defect that out of four candidates who appeared in the interview, two candidates were not even eligible to appear the interview due to lack of proper academic qualification as was prescribed in the prior permission order namely garduates with Geography as combination subject in terms of the prior permission Memo dated October 15, 1981 which clearly provides that the candidate must be qualified in the degree course wherein Geography would be a combination subject and the Managing Committee of the school thereafter did not take any steps to have revised prior permission order and to start the selection process de novo and/or to complete the selection process by allotting marks for such academic qualification for the respective candidates. Hence, from the fact it is crystal clear that selection committee members by allotting marks for academic qualification did not complete the selection process and no panel was accordingly prepared. As per Recruitment Rules for preparation of the panel, the marks allotted for academic qualification and the marks allotted in the interview are required to be added and thereafter a panel is prepared by all the members of the Selection Committee. Even from the resolution of the Managing Committee dated April 25, 1992, the record of which has been placed by the state Respondents, it appears that the Selection Committee could not complete the preparation of panel due to the fact that a problem cropped up for allotment of marks for academic qualifications in respect of two candidates. Though there was no panel in terms of Clause 5(a), 5(b) and 5(c) of the Recruitment Rules and such panel never was placed before the Managing Committee under Clause 5(d) for their necessary approval, the Respondent No. 7, however, moved a writ application before this High Court registered as Company No. 6307 (W) of 1992 contending, inter alia, that a panel was prepared wherein he stood first. This writ application was disposed of by the order dated April 27, 1992 by K.M. Yusuf, J. (as His Lordship then was) by passing the following order:

The Secretary of the Managing Committee of Sahebnagar High School in the district of Nadia, is directed to submit the panel prepared in the interview held on 23 January, 1992 for Assistant Teacher in Geography to the District Inspector of Schools(SE) Nadia within 15 days from the date of communication of this order. In case the panel is not submitted within 15 days, the D.I.S. is directed to take appropriate action against the Managing Committee. From the date of submission of the panel within 30 days the D.I.S. concerned shall consider the panel in accordance with law and take a decision.

The writ application is accordingly disposed of. There will be no order as to costs.

The Respondent No. 7, however, thereafter moved the Contempt application alleging that the order of K.M. Yusuf J. (as His Lordship then was) was not complied with by concerned Authority. This contempt application was heard and disposed of by Altamas Kabir J. on September 17, 1993. Altamas Kabir J. upon discussing all the relevant facts as proved from the respective affidavits, held that the selection Committee could not prepare the panel in view of a problem cropped up for allotment of the marks on academic qualification of said two candidates, that the Managing Committee wanted clarification in respect of allotment of marks of said two candidates, that the District Inspector of Schools concerned instructed them to sought for correction of the prior permission order. After hearing the entire matter in the Contempt proceeding filed by the Respondent No. 7, accordingly Altamas Kabir J. dropped the Contempt proceeding upon holding to this effect:

On consideration of the submissions made on behalf of the respective parties, it appears that there was no deliberate and wilful) violation of the order passed by K.M. Yusuf, J. on 27 April 1992. Since no panel had been prepared pursuant to the interview held on 23 January, 1992'', the question of forwarding the same to the district Inspector of Schools(SE) Nadia, becomes redundant.

The judgment dated September 17,1993 passed by Altamas Kabir J. in the Special Civil Jurisdiction while deciding the Contempt Application since is relevant for adjudication of this case is quoted herein-below:

Judgment on: 17.9.93

This Application for contempt arises out of an order dated 27 April, 1992, passed by K.M. Yusuf J. (as His Lordhip then was) on 27 April, 1992. When the application was initially moved, directions were given for notice to issue on the alleged Contemners/Opposite Parties Nos. 1 and 2 to show cause as to why they should not be committed to prison or otherwise suitably punished for alleged violation of the said order.

Pursuant to such notice, the alleged Contemners Opposite Parties No. 1 and 2 appeared in Court on 2 July, 1993. Shanti Das appearing for the District Inspector of Schools (SE), Nadia, the Contemner/Opposite Party No. 1, submitted on that day that since no panel had been prepared and forwarded to the alleged Contemner/Opposite party No. 1, he could not take any action in terms of the order passed on 27 April, 1992. Accordingly, the contempt proceedings against Shri Ranjit Kumar Ghosh, the District Inspector of Schools (SE), Nadia, at the relevant point of time, was dropped.

The Secretary of the Managing Committee of the school was, however, directed to produce the records of the case on the next date of hearing.

The contempt application was ultimately taken up for hearing on 27 August, 1993, when it was submitted on behalf of the Petitioner, that the alleged Contemner/Opposite Party No. 2 had willfully and deliverately violated the order passed by K.M. Ysuf.J. on 27 April, 1992, by not forwarding the panel prepared in the interview held on 23 January, 1992, for appointment of an Assistant Teacher in Geography in the school in question, to the District Inspector of Schools (SE), Nadia, within 15 days from the date of communication of the said order.

Mr. Bikash Ranjan, Bhattacharyya appearing on behalf of the Petitioner submitted that, although, the order had been duly communicated to the school authorities, they had taken no steps to comply with the same.

Appearing on behalf of Shri Sadhan Kumar Biswas, the alleged Contemner/Opposite Party No. 2, Mr. Hari Narayan Mukherjee submitted that the allegations made by the Petitioner in the contempt application were baseless since no pnel had at all been prepared on the basis of the interview held on 23 January, 1992. According to Mr. Mukherjee, the question of forwarding the said panel to the District Inspector of Schools(SE), Nadia, did not, therefore, arise. In the Affidavit-in-Opposition filed on behalf of the Secretary of the School, it has been averred that the Selection Committee faced certain difficulties in awarding marks for academic aqualifications at the time when the interview was held and, accordingly, the District Inspector of Schools(SE), Nadia, was requested the to send suitable instructions so that the Selection Committee could take proper action for the purpose of awarding marks for academic qualifications and for preparation of the panel. It appears that the District Inspector of Schools (S.E.), Nadia, by his Memo dated 17 March 1992, requaested the Selection Committee to take up the issue with reference to a Memo dated 15 October, 1987, since none of the candidates were ellgible for the post.

Mr. Mukherjee''s main defence was that it had been withheld from the Court when the order of 27 April, 1992 was passed, that no panel,had been prepared pursuant to the interview held on 23 January, 1993, for appointment of an Assistant Teacher in Geography for school in question. Accordingly to Mr. Mukherjee, said order passed on 27 April, 1992, could not be implemented since it had been obtained without full disclosure of the facts, namely, that no panel had been prepared by the Selection Committee as mentioned hereinabove.

On consideration of the submission made on behalf of the respective parties, it appears that there was no deliberate and willful violation of the order passed by K.M. Yusuf J. on 27 April, 1992. Since no panel had been prepared pursuant to the interview held on 23 January, 1992, the question of forwarding the same to the District Inspector of School (SE), Nadia, becomes redundant.

The contempt proceeding must therefore, fail and is accordingly, dropped.

There will, however, be no order as to costs.

Let a xerox copy of this judgment be handed over to the learned Advocates for the parties on usual undertaking.

From the aforesaid judgment and order of Altamas Kabir J. it appears that in the contempt proceeding, complete adjudication was made holding that no panel was prepared pursuant to the interviev held on January 23, 1992. Respondent No. 7 of the writ application Sri Tapas Kr. Biswas moved another writ application in the High Court at Calcutta in the year 1994, the number of which has not been supplied by anybodies, contending, inter alia, that since the interview on January 23, 1992 was completed, a panel should be prepared on the basis of the academic marks and the marks on interview of the candidates concerned who appeared therein. In this writ application, the Respondent No. 7 lodged a grievance that his representation dated January 15, 1993 to that effect was not disposed of. In his representation dated November 15, 1993 it was contended by Respondent No. 7 that no panel was prepared and since he would cross 35 years of age, a panel should be prepared by the Selection committee. Ashok Kumar Ganguly J. by the order dated March 8, 1994 disposed of the said writ application, which reads thus:

This writ application is disposed of by directing the District Inspector of Schools(SE) Krishnanagore, Nadia to disclose of the Petitioner''s application dated 15.11.93 within a period of six weeks from date after giving the Petitioner an opportunity of having heared in support his representation. The said District Inspector of Schools, is, however, directed to pass a speaking order, it is further directed that till the representation of the writ Petitioner is disposed of by a speaking order, there should not be any order of appointment to the post of Assistant Teacher in Geography in Sahebnagore High School, P.O. Saheb-nagore, District Nadia.

There will be no order as to costs.

Let xerox copy of this be made available to the parties on usual undertaking."

The District Inspector of Schools (SE) Nadia in pursuance of the direction passed by Ashok Kumar Ganguly J. Passed a decision on April 22,1994 which reads thus (quotd from the records of the Appeal Court, page 20 of the stay application):

Government of West Bengal

Office of the District Inspector of Schools Secondary education.

Nadia.

OFFICE MEMORANDUM

In the matter of:

Tapash Kumar Biswas

-v-

The State of West Bengal and Ors.

Company no. (W) of 1994.

Ashok Kumar Ganguly in disposing of the above matter in an order dated 8:3.94 directed the District Inspector of Schools(SE), Nadia to dispose of the respresentation dated 15.11.93 of the Petitioner after giving an opportunity of being heard.

A per above solemn direction the Petitioner, the Secretary, the Headmaster of Sahebnagar High School were served notice under this Office Memo no,74(3)/Law/SE, dt. 13.4.94 for hearing on 22.4.94.

Accordingly all concern came up on this day, 22.4.94 and represented their matter. The Petitioner Sri. Tapash Kr. Biswas through his application dated 15.11.93 and this date also represented that a prior Permission for Assistant Teacher of one Graduate with Geography as one combination subject preferably trained was accorded by the District Inspector of Schools(SE), Nadia with memo No. 2632/SE/G, dt. 15.10.87 and he appeared at the Interview Board on 23.1.92 along with other candidates being sponsored by the Employment Exchange and being asked by the school Authority under momo No. 84/81 dated 10.1.93. Her further represented that he was going to cross the age of 35 years stipulated for fresh recruitment. He desired that the panel would be prepared from amongst the interviewed candidates as per recruitment rules. The Headmaster of the Institution accepted the aforesaid representation of the Petitioner. He further stated that out of 10 candidates whose names were sponsored by the Employment Exchange and who were called for interview, only 4 candidates appeared. The Selection Committee awarded marks to all the 4 candidates but could not prepare the panel as qualification of two candidates appeared not in-confirmity with the prior Permission. For this Headmaster requested the District Inspector of Schools (SE), Nadia under memo No. 941991-92, dt.25.1.92 to intimate whether the candidature of the candidates as noted below would be considered:

a) One candidate first Graduate in Science (B. Sc.) having Physics, chemistry and Math under Calcutta University in 1979 and then passed B.A. with one subject Geography as an Additional subject from Nagpur University in 1987 then he passed B.T. Examination.

(b) The other candidate first Graduate in Commerce (B. Com.) from Calcutta University in 1986 and then Graduate in B.A. (all subject including Geography) from Ranchi Univesity in 1987 and in 1988 obtained Honours Degree in Geography from Rachi University.

To this quairy the District Inspector of Schools (SE), Nadia under memo No. 471/Gen/Se, dt. 17.3.92 intimated the School Authority that the above two candidates were unsuitable. The Hon''ble Mr. Justice Altamas Kabir also observed in his judgment dt.17.3.93 the same as per report of the District Inspector of Schools(SE), Nadia. The Headmaster also reported at the time of hearing that one candidate named Sri Sadhan Biswas B. Sc. B.T and B.A. in one subject in Geography from Nagpur University filed a suit being Company No. 3752(W) of 1993 in the Hon''ble High Court. Accordingly, the School Authority could not take any step for preparation of the panel as the matter is still subjudice. The Secretary of the school shared the same opinion with the Headmaster of the School.

Office records speak that Hon''ble Mr. Justice Dilip Kumar Basu in His Order dated 15.4.93 in the matter of Sadhan Biswas v. District Inspector of Schools (SE), Nadia (3) ordered that any appointment against the concern Prior Permission would be abide by the result of the writ petition. Considering the above state of facts the undersigned is to order that the School Authority be requested to prepare the panel from amongst the eligible interviewed candidates following the recuritment rules as existed on the date of inter view subject the recruitment rules as existed on the date of interview subject to the result of the matter under Company No. 3752(W) of 1993. The representation dated 15.11.93 of the Petitioner is thus disposed of.

Let all concern be communicated to all concern.

District Inspector of Schools(SE), Nadia.

This decision was communicated to Respondent No. 7 and the school Authority under Memo No. 109(4)/Law/SC dated May 31, 1994. From the aforesaid decision, it appears, that the School Authority was directed to prepare a panel amongst the eligible candidates following the Recruitment rules, subject to the result of the writ application Company 3752 (W) of 1993 that is the present writ application wherein D.K. Basu J. passed an order that the panel would be subject to the result of the writ application.

Sometime in the year 1996, however, the Managing Committee was superseded by the West Bengal Board of Secondary Education namely, on the grounds-first that the Managing Committee made irregularity regarding submission of the panel prepared by the school relating to the Assistant Teacher of Geography before the authority concerned and secondly that the statutory term of the Managing Commitee expired. This order superseding the Managing Committee was challenged in Company No. 18824 (W) of 1995. After hearing N.K. Mitra J. (as His Lordship then was) by the order dated June 10, 1996 allowed the writ application by quashing the impugned order appointing an Administrator in the School after supersession of the Managing Committee. While adjudicating the matter N.K. Mitra J. (as His Lordship then was) held, that both the two grounds whicfh were taken as the grounds to supersede the Managing Committee were not at all legally sustainable and both the two grounds were vague. So far as the ground No. 1 ''on irregularity regarding submission of the panel of the Assistant Teacher of Geography, it was held by N.K. Mitra J. (as His Lordship then was) that no panel was prepared at alt. On issue of the panel as was adjudicated by N.K. Mitra J. (as His Lordship then was) is relevant for adjudication of this writ application, which is quoted in extenso:

Going through the Annexure ''P'' to the writ petition, I find that there is much substance in the contention of Mr. Maiti. I appears that the Board was of the view that there were some irregularities regarding the submission of the Panel prepared by the School before the authority concerned and that the statutory term of the Managing Committee had also come to an end and as such, the Board felt that an emergent situation had appeared in the school and the board appointed an administrator.

However, from Annexure ''H'' to the writ petiton, it appears that the question of sending panel by the school to the District Inspector of Schools concerned did not arise at all, since it was found that no panel was prepared by the School Authorities as the Interview Board was found it difficult to award marks, and hence the matter was referred to the District Inspector of Schools (SE), Nadia requesting him to send suitable instruction in the matter and the said authority by its Memo dated 17 March, 1992 asked the Selection Committee to take up the issue with reference to the memo dated 15 October, 1987 since none of the candidates appeared before the Selection Committee, were eligible for the post in question. Accordingly it is quite clear that if no panel was prepared at all, there would not be any anomaly or irregularity in sending the panel for approval before the authority concerned. Secondly, the continuation of the Managing Committee has been extended till 30 November, 1996 as would appear from the Government circular dated 26 March, 1996 being annexure ''Y'' to the supplementary affidavit filed by the writ Petitioner today in Court. Hence, it is quite clear that the Board while supersiding the Managing Committee did not adhere to the statutory provisions at all and merely acted on whims and caprices. Accordingly, Annexure ''P'' to the writ petition cannot be sustained in law and stands quashed.

The Respondent No. 7 who was not a party in the said proceeding wherein N.K. Mitra J. (as His Lordship then was) quashed the decision for appointment of Administrator, moved an appeal being F.M.A.T. No. 2493 of 1996. In the Appeal Court the records of which has been brought before this Court, it appears that the Respondent No. 7.in their application praying leave to appeal and the stay application very purposely did not disclose the judgment of the contempt proceeding as passed by Altarnas Kabir J. being a contempt proceeding as was initiated by the Respondent No. 7 himself, wherein the Court held on persual of the record that there was no existence any panel. In the stay application also there was no wishper that the finding ''panel was not Dreparaed'' reached its finality in view of the decision of Altarnas Kabir J. in a contempt proceeding by the judgment dated September 7, 1993. From the records of the Appeal court it appears that there was a total nondiscloser of the material fact before the Appeal Court by the Respondent No. 7 in respect of the judgment passed in the contempt proceeding by Altarnas Kabir J. it appear from the record of the Appeal Court that in the application for stay despite of the finding of the Court passed by Altarnas Kabir J. that no panel was prepared, '' the Respondent No. 7 being the Appellant submitted falsely that the panel was preparaed and he stood first. However, on such misrepresentation which is nothing but exercise of fraud upon the Court, the Appeal Court by the order dated August 27, 1996 passed the order to this effect:

Heard Mr. Bhattacharya, Nobody appears on behalf of the writ Petitioner to oppose his prayer for stay. In the facts and circumstances of this case, operation of that portion of the impugned order whereby and whereunder the panel in which the Petitioner figured as number 1, has been set aside, shall remain stayed.

Hearing of the appeal is expedited. Requisite number of informal books be filed in Court within 4 weeks from date. Liberty is given to mention for early hearing after filing of paper books.

In the Appeal Court, the order passed by N.K. Mitra J. was not annexed. From the order of N.K. Mitra J. it appears that on consideration of the documents admitted by the parties even the Court held that there was no panel prepared. Even in the Apeal Court raespondent No. 7 annexed some documents namely his representation on which Asoke Kumar Ganguly J. passed the order in his writ application which reveals that the Respondent No. 7 prayed for preparation of the panel after the judgment was delivered by Altamas Kabir J. in the contempt proceeding holding, inter alia, that there was no panel prepared. Even from the annexures of the said application of the Appeal court it appears that no panel was prepred and direction was given by the District Inspector of Schools, concerned to prepared the panel of eligible candidates as per the Recruitment Rules upon holding, inter alia, that the two candidates who appeared in the interview were not eligible. Hence, from the order of N.K. Mitra J. it appears that though there was no order passed by N.K. Mitra J, quashing and/or setting aside any panel wherein Respondent No. 7 alleged as a first candidate but the Appeal Court passed order staying the operation of that portion of the order whereby the panel wherein the Appellant stood first was set aside by the Trial Court. On comparison of the order dated August 27, 1996 of the division Bench and the impugned order in the said said Division Bench passed by N.K. Mitra J. it appears that there was a prima facie conflict in the order of the Division Bench. N.K. Mitra J. in the writ application of the Managing Committee assailing their supersession held that ground of supersession was not legally tenable as Managing Committee did not commit any irregularity in the matter of submission of the panel since there was no existence of any panel.N.K. Mitra J. by the order never cancelled or set aside any panel wherin Respondent No. 7 allegedly stood first. Since the order was passed by the Division Bench, this Court is not making any interpretation of the said order while adjudicating this writ application as the writ application could be disposed of even having regard to the said order of the division Bench, from the records as placed by the District Inspector of Schools concerned as per direction of this Court. In pursuance of the direction of this Court the District Inspector of Schools concerned appeared personally and placed records. Copy of such records were directed to be served by the officers of this Court to all the parties and leave granted to file necessary affidavits, if any, on that issue. On perusal of the records, it appears before this Court that upon giving a go by of all the statutory provisions and without existence of any panel, the District Inspector of Schools concerned accorded approval in respect of the names of three candidates whose names appeared in a letter of one memer of the Selection Committee. On perusal of the record, as would be discussed later on, it appears that the statutory authority that is the District Inspector of Schools, concerned willfully did not discharge his duties and deliberately misdirected himself. Without existence of any panel prepared by the Selection Committee and approved by the Managing Committee., the concerned officer accorded approval of a panel which was not at all a panel as per recruitment rules and on that basis the Respondent No. 7 was appointed. From the records as placed by the District Inspector of Schools concerned it appears that on July 1, 1998 the District Inspector of Schools concerned issued a memo to the Administrator directing him to submit the relevant papers in regard to the panel for appointment in the post of Geography with reference to the interview held on January 23, 1992. The letter reads thus:

To Administrator

Sahebnagar High School

P.O. Sahebnagar, Nadia.

Sub.: To submit relevant papers in regard to panel prepared for appH. In Geography of the School, interview held 23.1.92.

In connection with the subject noted above the under has to state that the Teacher-in-Charge of the school states that there found no papers in connection with the subject stated above.

The papers are required immediately so the Ex-H/M be requested to kindly submit the papers related to preparation of panel which was madae for appH. of A.T. in Geography in the year 23.1.92 of the school. The papers be collected within 7 days and also be submitted to this office personally.

This may please be treated as extremely urgent.

The Administrator of the School answered the said Memo by his letter dated 23 July, 1998 in the following terms:

The Administrator

Sahebnagar High School

P.O. Sahebnagar Dist. Nadia.

To: The District Inspector of Schools(SE)

Nadia.

Ref.: His No. 190/Law/SE dt. 21.7.98

Sir,

With reference to the above, I beg to state that on receipt of your memo dt.1.7.98 bearing No. 173/Law/SE I instantly communicated copies of the same to the Ex-Headmaster and existing Teacher-in-Charge requesting the Ex-Headmaster to submit relevant papers and panel for apptt. Of all A.T. in Geography on the basis of interview held on 23.1.92 you at his earliest convenience. Besides, the Teacher-in-Charge was requested for his cooperation to make the papers available to you. This was reported to you on 8.7.98.

Any information regarding submission of the said papers to you has not been received by me till date.

Yours faithfully,

Dt.23.7.98.

23.7.98

Administrator

Sahebnagar High School.

On 23 July, 1998 the office of District Inspector of Schools made the following note which was signed by the said Authority. Note is as follows:

Non-availability of panel and relevant papers, the letter of the President of the M.G. and Chairman of the Selection Committee may be taken into account.

On 30 July, 1998 the matter was placed before the District Inspector of Schools concerned and from the note sheet it appears'' that an observation has been made which is contrary to the said order of the Division Bench dated 27 August, 1996, which reads thus:

In this circumstances, the school authority may be directed to give appointment to Shri Tapas Kumar Biswas (B.A.), the Petitioner and first empanelled candidate immediately as per order of the high Court in F.M.A.T 2493 of 1996 in the post of Assistant Teacher in Geography at Sahebnagar High School.

From the note sheet it further appears that in the ultimate paragraph of such not sheet for according approval of the alleged panel, a note was made to this effect which reads thus: non-availability of the panel and relevant papers the letter of the then President of the Managing Committee and the Chairman of the Selection Committee may be taken into account.

With those observations as made in the note sheet it appears that the concerned District Inspector of Schools approved the panel in the following language ''panel as above be approved subject to confirmation of plain certified copy of the order''. On August 13, 1998 accordingly the District Inspector of Schools concerned accorded approval of the panel by showing Shri Tapas Kumar Biswas, as first candidate, Sri Sasti Charan Chattopadhyay, as second candidate and Shri Asoke Pal, as third candidate. In the panel as approved on August 13, 1998 at the bottom a note was made to this effect:

Shri Sasti Charan Chattapadhyay is not eligible in the post vide memo No. 83/1(1)/Law/SE dated 5 April 1995.

Another note was also mentioned to this effect: this is as per direction of the Director of School Education, West Bengal vide his Memo No. 1041/LS dated Cal. 26.5.97 in compliance with the solemn order dated 27 August, 1996 passed by the Hon''ble Justice S.B. Sinha.J. (as His Lordship then was) and the Hon''ble Justice S.N. Chakraborty J. (as His Lordship then was) in F.M.A.T. No. 2493 of 1996. Shri Tapas Kumar Biswas as figured No. 1.

The letter as has been referred to by the District Inspector of Schools concerned as a letter directing to accord approval of the panel issued by the Director of SchooI Education, West Bengal under memo No. 1041/LS dated Cal. May 26, 1997 also has been produced before this Court which never suggested that despite nonexistence of a valid panel, the same to be approved. On the contrary from the letter of the Director of School Education, West Bengal dated May 26, 1997 it appears that the direction was given to the District Inspector of Schools concerned to this effect that the said Officer should impress upon the concerned school Authority to comply with the order of the Hon''ble Division Bench. As already noted earlier, in the order of the Hon''ble Division Bench dated August 27, 1996 there was no direction to accord approval of the panel but on the averment as made in the stay application claming that the present Respondent No. 7 was the first empanelled candidate of the panel, the Court passed an order of stay of the impugned order passed by N.K. Mitra J. (as His Losdrd-ship then was). In the impugned order of N.K. Mitra J. (as His Lordship then was) it was observed that there was no panel existing upon having discussion of all the material facts. Hence, it is clear that the District Inspector of School concerned misdirected himself knowing very well that ther was no existence of any panel as the concerned officer himself earlier directed the School Authority who sought for clarification in respect of allotment of marks on academic matters of two candidates by directing that the prior permission require to be clarified and thereafter the panel could be prepared. In the decision making process regarding the impugned decision on approval of panel by the District Inspector of Schools concerned it has been held that due to non-availability of panel which means a panel prepared under Clause 5(a), 5(b) and 5(c) by the Selection Committee and under Clause 5(d) approved by the Managing Committee, the letter of the President of the Managing Committee dated April 28, 1992 was considered as a panel. The letter dated April 28, 1992 of the President of the Managing Committee and the Chairman of the Selection Committee reads thus:

Dear Sir,

With due respect I beg to state that I am the Chairman of the Selection Committee of Sahebnagar High School. You know that the Selection Committee constituted for the purpose of preparing a penal for the post of Asst. Teacher in Geography in Sahebnagar High School is no more in existence. However, as a Chairman of the aforesaid Selection Committee, then in force, I inform you as follows:

An interview for the post of an Asst. Teacher in Geogrpahy in Sahebnagar High School, P.O. Sahebnagar, Dist. Nadia was held on 23 January, 1992.

The Selection Committee assessed all the appeared candidates (four) at the interview board and there were selected for the panel duly. And one Sri Sadhan Biswas was cancelled as per norms.

The Secretary and the Headmaster of Sahebnagar High School, P.O. Sahebnagar, Dist. Nadia were given responsibility for taking approval of the panel.

The selected candidates names were as follows:

Tapas Kr. Biswas..... First.

Sasti Charan Chattopadhyay.... Second.

Ashoke Pal.... Third.

Naba Kumar Biswas

28.4.92.

President of Sahebnagar High School and Chairman, Selection Committee on 23.01.1992 P.O. Sahaebnagar, Dist. Nadia. Dated: Radhanagar 28 April, 1992.

As already discussed that Altamas Kabir J by his judgment in the contempt proceeding as was initiated by the Respondent No. 7, on September 17, 1993 dropped the Contempt proceeding upon holding that there was no panel prepared in the interview held on January 23, 1992 and thereby held that there was no question of forwarding the same to the District Inspector of Schools concerned, that N.K. Mitra J. (as His Lordship then was) held and observed that there was no panel, that the District Inspector of Schools himself by his letter as signed on March 7,1992 while answering the letter of the managing Committee seeking clarification about the eligibility of some candidates himself held that the prior permission order would require to be corrected on issue as some of the candidates were not eligible for the post. Hence, it is clear that there was no panel. Respondent No. 7 himself also admitted in his representation dated November 15, 1993 that is a representation after the judgment dated September 17, 1993 passed by Altamas Kabir J. in the contempt proceeding, by contending that panel should be prepared immediately as he was about to cross the age of 35 years. As per direction of Ashoke Kumar Ganguly J in the writ application filed by Respondent No. 7 dated March 8, 1994, District Inspector of Schools concerned heard the matter and passed a decision on April 22, 1994 as communicated on May 30, 1994 directing the Managing Committee of the schol to prepare a panel from the eligible candidates in terms of the Recuritment Rule. Despite such, the Respondent No. 7 concealing all the material facts submitted in the said application before the Division Bench that he stood first in a panel prepared by the Selection Committee and very purposely did not disclose before the Division Bench about finding of Altamas Kabir J. as passed in the contempt application wherein he was the application. However, from the order of Division Bench, it appears that the Division Bench never directed to accord approval of any panel save and except the stay of the impugned order of N.K. Mitra J. But very surprisngly the District Inspector of schools concerned while according approval of a so called panel as submitted by one member of the Selection Committee and not signed by all members of Selection Committee in terms of the Clause 5(a) of the Recruitment Rules and as was not appoved by Managing Committee under Clause 5(d) of rule, took a ground to approve the names as appeared in the letter of one member of Selection Committee by referring order of Division Bench. Under the Recuritment Rules of 1989, the District Inspector of Schools concerned got the power to consider the panel for necessary approval when such panel is prepared by the members of the Selection Committee in terms of Clause 5(a) read with 5(b) and 5(c) of the Recruitment Rules of 1989 and the same is approved by the Managing Committee and/or a Selection Committee cannot be considered as a panel in terms of Clause 5 of the Recruitment Rules of 1989. In that view of the matter, there was a total breach of statutory provision by the District Inspector of School concerned despite the fact that said District Inspector of Schools concerned had the knowledge that the panel was not possible to be prepared as a problem was cropped up in respect of allotment of marks on academic qualification in respect of the two candidates amongst the four candidtes who appeared before the Selection Committee. However, despite his own letter that the said two persons were not at all eligible to appear in view of their qualification, from the decision of the approval dated August 1.3, 1998, it appears that the District Inspector of Schools concerned placed the name of one such ineligible candidate with a note that the second candidate of the panel Sasti Charan Chattopadhyay was not eligible for the post in terms terms of the earlier decision where he held that out of four candidates who appeared in the interview, two candidates were not eligible. It further leads to a decision about violation of another Clause 5(a) that a paneal shall be prepared with three eligible candidates. In the instant case it appears from the records that out of four candidates who appeared in the interview in respect of the post available to the general candidates even under the statutory law under Clause 5(a), there was no scope to preparae a panel as only two candidates appeared in the interview were eligible to appear. Having regard to such, there was no scope before the Selection Committee to prepare the panel. Having regard to all the aforesaid observations and the records, it is clear that there was no panel prepared by the Selection Committee with reference to the interview held on January 23 1992. the decision according approval of the panel is accord-ingly being de hors of the statutory Rule of cls. 5(a), 5(b) and 5(d) of the Recruitment Rules of 1989, is hereby set aside and quashed. Once the decision of the approval is quashed, as a consequence thereof, the appointment letter as issued in favour of the Respondent No. 7 and his joining in the school, all become nullity and those are accordingly being cancelled, set aside and quashed. Relience may be placed to the judgment of Apex Court passed in the case AIR 2000 SC 3638 (3 Judges) wherein it is held that High Court must quash the wrong/illegal appointment. High Court cannot decline to pass such order on the ground that already many years have been passed after such appointment. Same view was made in another case Manohar v. Sanjay Education Society, (1999) 9 SCC 118 . Before parting with the matter, however, the contention of the learned Advocate of the Respondent No. 7 in respect of submission that since there is already an order of the Division Bench, this Court will not now interfere with the panel in this writ application by quashing, the decision of approval as well as the appointment, is required to be dealt with. As already held by me that all through in the records it was eastablish that no panel was prepared by signature of all the members of the Selection Committee upon allotment of academic marks and interview marks in terms of Clause 5(a), 5(b) and 5(c) of the Recruitment rules and there was no approval of such panel by the managing Committee of the school in terms of Clause 5(d) of Recruitment Rule and no panel as duly prepared by the Selection Committee members and approved by the Managing Committee was submitted before the District Inspector of Schools concerned. It is also the case of the Respondent No. 7 as admitted from the documents that Respondent No. 7 suffered a judgment in a contempt proceeding decided by Altamas Kabir J. Wherein it was held that there was no panel prepared on the date of interview by members of the Selection Committee. From the representation dated November 15, 1993 of Respondent No. 7 this fact is also proved that there was no panel prepared and accordingly he wanted preparation of such panel. From the decision of District Inspector of Schools concerned as passed on dated April 22, 1994 communicated to the Respondent No. 6 by Memo dated May 31, 1994, it appears that District Inspector of Schools directed to prepare a panel from the eligible interviewed candidates as per Recruitment Rules. From the records it appears that only four candidates appeared in the interview and out of that, two candidates were not eligible to appear as per qualification prescribed in the Recruitment Rules. Hence, there was only two eligible candidates. There is a total embargo for preparing a panel under Clause 5(a) of the Recruitment Rule by two candidates. In that view of the matter, since, it is proved that no panel at all was prepared and no panel was possible to be prepared, there was no question of according approval of the panel which I have already discussed in the earlier paragraph. The Division bench of this High Court in the appeal filed by the Respondent No. 7 was dealing with the observation and findings of N.K. Mitra J. wherein it was held that Managing Committee did not commit any irregularity in the matter of submission of the panel as the panel was not at all prepared by the Selection Committee. Before the Division Bench, judgments and finding of Altamas Kabir J. was not the subject matter, Respondent No. 7 did not prefer any appeal. Challenging the judgment dated September 17, 1993 passed by Altamas Kabir J. holding that no penal was prepared by the Selection Committee and accordingly there was no violation of the order of K.M. Yusuf J. dated April 27, 1992 which was passed in the writ application filed by the Respondent No. 7. Furthermore Division bench by the order dated August 27, 1996 never directed that the panel would be approved. Furthermore, by the said order, the Division Bench never sanctioned the legality and validity of the panel. In that view of the matter, in this writ application with due respect to the order of the Division Bench, I am of the view that the said order of the Division Bench has no impact in adjudicating the present writ application. Hence, the submission of the learned Advocate of the Respondent No. 7 is not legally sustainable. It is, however, made clear that even before the Division Bench, Respondent No. 7 did not approach in clear hands. He deliberately concealed the judgment dated September 17, 1993 passed by Altamas Kabir J. Wherein there was a judicial adjudication on the issue by holding that panel was not prepared. The Respondent No. 7 as it appears prima facie from the records of the Appeal Court, had exercised fraud upon the Appeal Court by not submitting, all the material facts. It is a settled law that fraud vitiates everything,reliance may be placed to the judgment passed in the case S.P. Chenagalvaraya Naidu (Dead) by S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, wherein in para. 1, Apex Court held:

Fraud avoids all judicial acts, ecclesiastical or temporal'' observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree-by the first court or by the highest court has to be treated as a nullity by every court, whether superior or inferior It can be challenged in any court even in collateral proceedings.

Be that as it may, this Court is not considering the issue as to whether the Respondent No. 7 exercised fraud upon Division Bench or not. In adjudicating this writ application, the records of the case is sufficient to declare the judgment. The Divisional Bench order is not an embargo in pronouncing the judgment in this case. In that view of the matter, the Respondent No. 7 is not entitled to get any sympathy even though he was already appointed and working in the post in question. Having regard to such position, the Respondent No. 7 cannot hold the post. His appointment is hereby cancelled. He is directed to vacate the post forthwith. Respondent No. 7 is directed to refund within two months from the date, all the salaries, allowances and service benefits as enjoyed by him with effect from the date of joining in the school till today to the State Exchequer. Since it appears that there is no chance of preparation of any panel as out of four candidates who appeard, two persons were not eligible, the submission of the learned Advocate for the Respondent No. 7 that a direction to be given in terms of the order of the Division Bench dated March 18, 1997 passed in F.M.A.T. No. 1451 of 1996 by directing the School Authorities to prepare a panel on the basis of the marks as allotted by the members of the Selection Committee in the oral and class demonstration and to forward the same to the District Inspector of Schools concerned, cannot be accepted. In the instant case, it appears that due to non-eligibility of two candidates there were only two eligible candidates, who appeared in the interview. Under Clause 5(a) of the Recruitment Rules of 1989 for preparation of a valid panel at least names of three eligible candidates are required. In that view of the matter, the interview dated January 23, 1992 is hereby cancelled. Since the Selection process has already started in terms of the Recruitment Rules issued by the Director of School Education, West Bengal by issuing interview letter to the candidates long back in January, 1992, in terms of the judgment of Snehangsu Jas (supra) the selection process will be finalized de novo by asking all the sponsored candidates to appear in the interview afresh by constituting a Selection Committee in terms of the Recruitment Rules of 1989 and to complete such selection process following the Recruitment Rules of 1989. It is made clear that in the interview as to be held as per order of this Court, the eligibility of the candidates to be scruitinized first in terms of the prior permission order and in the event it appears that there was less than three candidates eligible to appear in the interview, no inverview to be held and post would be declared as vacant for selection through School Service Commission in terms of the Recruitment Rules under School Service Commission Act. Writ application is accordingly disposed of.

The Managing Committee of the school is directed to complete the selection process within two months from this date.

Prayers as made in the prayers (a), (b) and (e) cannot be allowed in view of the finding as made that there was no existence of panel on January 23, 1992 and further that the panel cannot be made again in view of the statutory provision of Clause 5(a) which requires at least appearance of three candidates. Prayer (e-1) is, however, allowed.

Stay as prayed for by the Respondent No. 7 is refused.

Let Xerox certified copy of this order be given to the learned Advocates appearing for the parties within a week from the date of filing of requisite fees after making such application.