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Judgment
Biswanath Somadder, J.—This writ petition has been filed pursuant to leave granted to the writ petitioner by an order passed by the Court on 3rd July, 2003 in W.P. 19441 (W)of 1999.
The principal prayers in the instant writ application are as follows:
(a) A Rule do issue out and under the Seal of this Honb''le Court asking the Respondents and each one of them to show cause as to why a writ in the nature of mandamus shall not be issued commending they thereby to recommend the name of the petitioner for appointment as an Assistant Teacher in Philosophy within the jurisdiction of School Service Commission (Southern Region) in any Schools by complying the regulation 9(3) of the regulation No. 1.
(b) A Rule do issue out and under the Seal of this Hon''ble Court asking the Respondents and each one of them to show cause as to why a writ in the nature of certiorari shall not be issued commending them thereby to produce all relevant records including the panel of 1998 vacancy position of that particular period and thereby quashed the panel of the year 1998 and published a fresh panel according to the merit position of the panel and thereby pass an order directing the Respondents to recommend the name of the petitioner for appointment as an Assistant Teacher in Philosophy under following regulation 9(3).
(c) A Rule in the nature of mandamus commending the Respondents to prepare the fresh panel for the year 1998 according to the merit position of the candidates without discriminating male and female and thereby recommend the name of the petitioner for appointment as an Assistant Teacher in Philosophy, according to the preference given by the petitioner under rule 9(3).
At the interim stage, the writ petitioner had filed an application, being CAN 1594 of 2006, for amendment of the writ petition. By an order date 8th September, 2006, the Court granted leave to the learned advocate of record appearing on behalf of the petitioner to amend paragraph Nos. 1, 2 and 3 of the writ application inserting the word "stated" in lieu of the word "submitted" in the said paragraphs. In so far as incorporation of paragraph Nos. 2, 3 and 4 of the amendment application as paragraphs 28 (a), 28 (b) and 28 (c) to the writ application was concerned, the Court did not pass any order on that day, save and except directing listing of the writ application in the Monthly Combined List of cases for the month of November, 2006, along with the amendment application, being CAN 1594 of 2006.
Briefly stated, the facts of the present case are as follows:
The writ petitioner passed her M.A in Philosophy and B. Ed. and upon obtaining the requisite qualifications as per advertisement of the School Service Commission applied for selection test as an assistant teacher in Philosophy.
Upon a panel being prepared by the School Service Commission, the writ petitioner came to know that a different male category in Philosophy was recommended for appointment by superseding her. The principal contention of the writ petitioner is that those who were recommended for appointment had obtained less marks than her, thereby she being discriminated against, by keeping her in a separate panel under the female category, which is not sustainable in the eye of law, being violative of the constitutional provisions as well as Rule 8 under Regulation (1) of the West Bengal (Procedure for 1 Selection of Persons for Appointment to the Posts of Teachers including 1 Headmasters/Headmistress/Superintendents of Senior Madrasahs in recognised Non-Government Aided Schools and Procedure for conduct of 1 Business of the Commission) Regulations, 1998.
In order to substantiate her point with regard to such discrimination, the writ petitioner has set out a chart derived from the records of the School Service Commission and has contended that upon perusing the chart it would reveal that the authorities have violated the aforementioned regulation by not following the order of merit strictly and, therefore, such action is arbitrary, illegal and discriminatory. The petitioner has also stated that though she obtained 71.33% marks and her panel position was 16, according to merit; the respondent authorities did not recommend her name. It has been specifically contended that the respondent authorities recommended 18 male and 9 female candidates, i.e. total 27 number of candidates for general category in Philosophy without, however, taking into consideration her position in the merit list. It has also been contended by the writ petitioner that there is no bar for appointment of a female candidate in a Boys'' school and there is no strict rule regarding such appointment. However, it has been stated that male candidates cannot be appointed in a Girls'' school by referring to a Circular dated 8th November, 1975, issued by the Director of Public Instruction. The petitioner has also cited an instance, of the authorities recommending a candidate belonging to a female General Category in photography for appointment in a Boys'' school. She has stated that so far as she is concerned, the authorities never recommended her to a Boys'' school as they had done in the case of the female candidate referred to in the writ petition.
Although not formally allowed by the interim order passed by the Court on 8th September, 2006, paragraph Nos. 2, 3, 4 and 5 of the amendment application sought to be introduced as paragraphs 28(a), 28(b), 28(c) and 28(d) to the writ application says as follows:
(2) It is stated by the petitioner that in advertisement No. 1 of 1998 which has been published in newspaper ''Ananda Bazar'' dated 16.2.1998 wherein the vacancy position for the post of Assistant Teacher in Philosophy was declared male - 12 and female - 8 but under regulation 8(1) it has been specifically enumerated that merit is the first criteria for preparation of the panel so according to merit the panel should be prepared including both male and female candidates but in the instant advertisement the separate vacancy position has been shown for male and female which is arbitrary and illegal and require to be set aside and quashed.
(3) It is stated by the petitioner that under regulation 8(1) it has been stated that the panel should be prepared subject wise on final merit list and there may be different/separate subject wise, language wise, sex wise has been stipulated for appointment of the female candidates in a Boys'' School or a male candidate in a Girls'' School or not that as advertisement No. 1 of 1998 which has been published by the Central School Service Commission by declaring vacancy position separately for male and female which is contrary, to the regulation 8(1) and such portion of the advertisement is otherwise bad and illegal and require to be set aside and quashed.
(4) It is stated by the petitioner that the regulation 8(1) of the West Bengal School Service Commission Regulation read with regulation 4 it is clear that under regulation 4 nowhere it has been mentioned that the vacancy position to be declared separately for male and female under regulation 8(1) the panel should be prepared in accordance with merit and the vacancy may be different/separate/subject wise, language wise, sex wise, category wise may be decided by the Central Commission and as such the Central Commission has not decided the issue and thereby the advertisement No. 1 of 1998 declaring the vacancy position for male and female candidates is contrary to the regulation 8(1).
(5) It is submitted by the petitioner that after paragraph 28 of the writ application the aforesaid paragraphs 2, 3, 4 and 5 to be added as paragraph Nos. 28(a), 28(b), 28(c), 28(d) and in the grounds those 4(four) paragraph Nos. 2 (except sub-paragraph) 3, 4, 5 to be added as grounds No. XI), XII), XIII) respectively.
. The prayer in the amendment application was, inter alia, for incorporation of the above-quoted paragraphs in the writ application and also for introducing the following prayer to the writ application:
6) It is submitted by the petitioner that in the prayer a) and b) it should be incorporated that "and upon quashing/setting aside the advertisement No. 1 of 1998 in respect of the vacancy position being annexure - p/7 of the writ application."
The learned senior advocate appearing on behalf of the writ petitioner has strenuously contended that the advertisement published by the West Bengal Central School Service Commission in the year 1998 was not in accordance with the Rules and Regulations of the West Bengal School Service Commission. While referring specifically to Regulation 4 of the West Bengal Central School Service Commission (Procedure for Selection of Persons for Appointment to the Posts of Teachers including Headmasters/Headmistress/ Superintendents of Senior Madrasahs in recognised Non-Government Aided Schools and Procedure for conduct of Business of the Commission), he 1 submitted that the Commission has or had no power to earmark vacancies separately for male and female categories and the only power which was given to the Commission was to advertise vacancy for relevant posts.
The relevant Regulation, being regulation No.4 relating to advertisement in newspapers is quoted hereinbelow:
Advertisement in newspapers - The Central Commission shall, on receipt of the information about such vacancies either from the Regional Commission or from the Director of School Education for the purpose of selecting persons for appointment to the posts of teachers, advertise vacancies in such posts in leading newspapers of the State, in English and Bengali and in any other languages, if necessary, specifying the qualifications, age as on the 1st January of the year of advertisement, scale of pay (if possible), and other necessary information relating to such posts.
Referring to Regulation 8 of the same Regulations, learned senior advocate appearing for the petitioner contended that the said Regulation gives a mandate upon the Commission to prepare a final merit list, strictly in order of merit. He submitted that merit being the sine qua non for preparation of panel, the petitioner would have definitely got a chance to be selected, if only the total number of vacancies would have specified in the 1998 advertisement.
For convenience, Regulation 8 is also reproduced hereinbelow:
Preparation of panel for candidates - (1) On the basis of the written examination, academic scoring and personality test, all added together, ; each Regional Commission shall, for each subject, prepare final merit list, that is to say, a panel of candidates found fit for appointment, strictly in order of merit. Each such panel shall include names one and half times the number of the vacancies referred to in regulation 3. There may be different/separate/Subject wise/ language wise/sex wise/category wise sets of panels as may be necessary, based on academic qualifications, for the Higher Secondary Secondary and Madrasah as my be decided by the Central Commission.
(2) Each panel prepared shall remain valid for one year from the date of approval of the panel by the Regional Commission for the posts which have already been reported and which will be reported up to one year next from the date of publication of the list of interviews. If the Central Commission thinks it expedient to extend the validity of the panel beyond its normal period for any reasonable cause, the validity of any, such panel shall be extended for a further period of one Year, that is to say, the time of validity of the panel shall, in no circumstances, be more than two years.
He further submitted that the respondents who were added by an earlier order dated 10th June, 2004, have been appointed by the School Service Commission in breach of the above-quoted Regulations and the Commission has purposely and/or wrongly appointed less meritorious male teachers, disregarding the bona fide claim of the meritorious female candidate. He submitted that the advertisement dated 16th February, 1998, issued by the West Bengal Central School Service Commission, is liable to be quashed and all appointments made by the Commission in favour of the added respondents be cancelled.
Learned senior advocate appearing on behalf of the petitioner relied, on the judgment rendered by the Supreme Court in the case of Madhu Kishwar and others Vs. State of Bihar and others, and submitted that gender-based discrimination ought not to exit within the framework of the Rules and Regulations of the West Bengal Central School Service Commission.
He also relied on the judgment of the Supreme Court in the case of Raghunath Rai Bareja and Another Vs. Punjab National Bank and Others, and submitted that when the plain language of the Regulations are clear, explicit and unambiguous, the Court cannot depart from a literal or strict construction thereof and in the facts of the instance case, the Regulation applicable clearly states that the panel had to be prepared strictly in order of merit.
Relying on another judgment of the Supreme Court in the case of State of U.P. Vs. Ram Sawrup Saroj, he submitted that merely because the life span of the panel in question has expired, the Court is not powerless to grant relief to the writ petitioner even otherwise.
He also relied on a judgment rendered in the case of Shankarsan Dash Vs. Union of India, and submitted that the State has no authority to act in any arbitrary manner and it is bound to respect the comparative merit of the candidates and no discrimination can be permitted.
Finally he relied on a judgment of the Supreme Court in the case of R.S. Mittal Vs. Union of India (UOI), and submitted that keeping in view the merit position of the writ petitioner, there was no justification on the part of the School Service Commission to ignore her for appointment and there ought to have been a justifiable reason to decline her appointment, as he had been a successful candidate, based on the merit list prepared by the Commission.
Learned advocate appearing on behalf of the respondent Nos. 2 and 3, being the authorities of the West Bengal Central School Service Commission, submitted that the instant writ petition has been filed long after the life of the panel expired. He also submitted that although liberty was given to the writ petitioner to file a separate writ application in the order dated 3rd July, 2003 passed in the earlier writ petition, being W.P. 19441 (W) of 1999, even that earlier writ petition of 1999 had been filed on 24th November, 1999 which was after the life of the panel, in which the writ petitioner''s name was present, had expired. In this context, learned advocate invited this Court''s attention to a judgment of the Supreme Court rendered in the case of State of Bihar & Ors. v. Md. Kalimuddin & Ors., reported in (19963) 2 SCC 7. Relying on this Judgment, he submitted that the life or duration of the panel having expired, continuance of the panel beyond its life-span would be a violation of the applicable statutory, rule and even the Court could not stop it from lapsing in exercise of judicial discretion, unless its constitutional validity was questioned. He submitted that the earlier writ petition was filed after expiry of the period of one year and, therefore, notwithstanding the liberty given by the Court on 31st July, 2003, the petitioner cannot possibly ventilate her grievance in respect of a panel, which has already expired by efflux of time J
He also relied on a Division Bench judgment of this Court in the case of The The Secretary, Vivekanandapally Kishore Bharati High School Vs. Munshi Mohammad Mansur and Others, . Relying on the said judgment, he submitted that since the panel had already expired and the Commission did not extend the panel within the validity period, even if, -J grave injustice has been caused to the writ petitioner, the Court ought to refuse grant of any relief, in absence of proper legal provision. He further submitted that the writ petitioner''s selection and being brought on panel by the Commission cannot be construed by her so as to contend that a legal " right had accrued in her favour.
Finally, relying on a recent judgment of the Supreme Court, rendered in the case of Dhananjay Malik &. Ors. v. State of Uttaranchal & Ors., reported in 2008 (2) Supra 328, he submitted that the writ petitioner, having participated in the selection process without any demur and having been unsuccessful, is now estopped from challenging the selection criteria.
After considering the submissions made by the learned advocates appearing on behalf of the parties, it appears to me that before going into the merits of the case of the writ petitioner as contended in the writ petition as '' also in the, amendment sought to be introduced in the writ petition, it requires '' to be examined as to whether the writ petitioner can be allowed to ventilate any grievance with regard to the panel wherein her name appeared after the life of the said panel expired.
From the uncontroverted records of the case, it appears that members of the School Service Commission (Southern Region) recommended the panel-in-question that prepared by the Commission on 1st November, 1998, which was valid upto 2nd November, 1999. This fact appears from the writ, petitioner''s own statement made in paragraph 24 of the compiled copy of the pended writ application. It is, therefore, clear from the writ petitioner''s own statements that the first writ petition was filed after the validity period of the (sic) in question had expired. More specifically, the first writ petition was dated on 24th November, 1999. The present writ petition which has been filed pursuant to the leave granted by the Court on 3rd July, 2003 in W.P. 19441 (W) of 1999'' is, therefore, much after the expiry of the panel on 2nd November, 1999. Even if the date of filing of the first writ petition is deemed to be the date of filing of the present writ petition, there cannot be any manner of doubt whatsoever that the first writ petition having been instituted after validity of the panel expired on 2nd November, 1999, the present writ petition cannot be entertained by this Court.
The Division Bench of this Court, in the case of The Secretary, Vivekanandapally Kishore Bharati High School v. Munshi Mohammad Mansur & Ors. (supra), in paragraph 17 made the following observations:
From the analysis of the relevant rules and regulations as quoted (supra) and discussed above we are of the view that the Regional Commission should not have initiated the recruitment process at all without ascertaining the vacancy position from the concerned authority. It the Regional Commission decided to exercise their power conferred under Rule 7(2) of the School Service Rules, 1997 the School Service Commission should have completed the process by sending the recommendation to the concerned school before expiry of the panel. Now that the panel had expired and the Central Commission did not extend the panel within the validity period for another one year although we satisfied on the facts that grave injustice had been caused to the writ petitioner/respondent No. 1 we are compelled to refuse to grant relief to the writ petitioner/respondent No. 1 in absence of proper legal provision. The writ petitioner was selected and was brought on panel of the commission. No legal right had accrued in favour of the writ petitioner. The writ petitioner approached this Court after the expiry of the life of the panel. Hence, no relief can be granted to the writ petitioner.
From the above-quoted portion of the judgment there remains no uncertainty or ambiguity that even if the Court is satisfied that grave injustice has been caused to the writ petitioner, in the absence of proper legal provision, it is compelled to refuse grant of relief as prayed for by the writ petitioner. In the facts of the instant case, it is not in dispute that the writ petitioner was selected and brought on the panel of the Commission. However, merely by virtue of her selection, no legal right accrued in her favour. Moreover, the writ petitioner approached this Court after expiry of the life of the panel.
The observations made in the judgment of the Supreme Court, rendered in the case of State of Bihar & Ors. v. Md. Kalimuddin & Ors. (supra), in the present context may also be taken notice of. A portion paragraph 6 of the said judgment, is reproduced herein below:
...The life or duration of the panel or list was, therefore, of one year. It, therefore, expired on 18.1.1992 by the force of the above-quoted rule. The Rule having been framed under Article 309 of the Constitution, therefore had statutory force. The appellant-State was, therefore, right in contending that continuance of the panel or list beyond one year would be a violation of the statutory rule and, therefore, illegal. Even the Court could not (sic) it from lapsing in exercise of judicial discretion unless its constitution validity was questioned. There is no doubt that the petition was filed after the damage was done, i.e. after expiry of the period of one year. This contention of the State is unexceptionable.
The position in law, as enumerated above leaves no doubt in this Court''s mind, having regards to the facts and circumstances of the instant case that no relief can be granted in favour of the writ petitioner.
The writ application is liable to be dismissed and is hereby dismissed. Consequently, the application, being C.A.N. 1594 of 2006, also stands dismissed.
There shall be however, no order as to costs.
Urgent xerox certified copy of this order, if applied for, be given to the learned advocates for the parties.