Soumen Mondal vs State and Others

Debasish Kar Gupta, J.—Let the affidavit of service be kept on record. This writ application is directed against an order dated April 12, 2013 passed by the respondent No. 3. By virtue of the order impugned, the respondent No. 3 rejected the panel prepared by the Nityanandapur High School, District Bankura for the post of non-teaching staff (Clerk) under Scheduled Caste category. For proper adjudication of the decision making process of the respondent No. 3 in passing the impugned order, the ground referred to the above order is quoted below:

1) that the school authority did not submit the panel to this office within fifteen days from the date of interview. In G.O. No. 1594-SE(S) dated. 26.2.2005, it has been vividly mentioned panel should be furnished to the office of the District Inspector of Schools (SE) concerned within fifteen days from the date of interview. It Is observed that the Interview will be held on 2.9.08 and selection committee approved the panel on the same date. But the managing committee accepted the panel on 4.3.2009 vide managing committee meeting No. 9/2008-9 dated 4.3.2009 which is later than six months from the date of holding interview.

2) that two members of the managing committee on the meeting dated 4.3.09 could not be agreed to the panel and foot note of dissent which Indirectly meaning lack of transparency regarding preparation of the panel of the said post. In the matter of acceptance of the panel, 9 members of the managing committee were In favour of the panel, whereas two members were in opposite pole.

For the reasons stated above, the undersigned was unable to accord approval to the panel which the school authority placed after expiry of a long period and It Is not admissible as per rule.

So far as the first ground is concerned, the preparation of a panel for appointment of a non-teaching staff in a Non Government Aided Educational Institution is governed by the provisions of Recruitment of Non Teaching Staff Rules, 2005. For proper adjudication of the issue involved in this matter, the provisions of Clauses (a) and (b) of sub-rule 7 of Rule 9 are relevant and those provisions are quoted below:

7 (a) The selection committee shall within, fifteen days from the date of Interview, prepare a panel and submit the same to the appointing authority.

(b) The appointing authority shall, within fifteen days from the date of submission of the panel by the selection committee, examine the panel and, alongwith all relevant papers, submit the same to the District Inspector of Schools for his approval.

In view of the above provisions, the school was under obligation to send the panel prepared for the approval of the respondent No. 3 within 15 days from the date of interview but the same was sent beyond the above period. After perusing the above provisions of the West Bengal School Recruitment of Non Teaching Staff Rules, 2005, I find that it is a procedural law. In the event, it is interpreted as a mandatory provisions then the eligible candidate whose names appeared in the panel may be prejudiced due to whims and caprice on the part of the managing committee of the concerned school by sending the panel beyond the above period. On the other hand, if it is interpreted as directory provisions, in that event, the managing committee of the concerned school may withhold the panel for an indefinite period and the consequence will be uncertainty of the fate of the selected, candidates. Therefore, the intention of the framer of the rule was that the above provision is mandatory for its substantial compliance and directory so far as its strict compliance is concern.

In view of the above, the first ground shown by the respondent No. 3 for rejecting the proposal of an approved panel cannot be sustained in law.

So far as the second ground is concerned, after perusing the provisions of West Bengal School Recruitment of Non Teaching Staff Rules, 2005 as quoted hereinabove, I find that the managing committee of the school under reference was under obligation not only to adopt a resolution with regard to the panel in question but to send the same with the resolution and other relevant documents to the respondent No. 3. It was the statutory duty of the respondent No. 3 to arrive at a decision after consideration of all the documents sent by the managing committee. It does not lie on the mouth of the respondent No. 3 that since there was no unanimous resolution by the managing committee, there was lack of transparency in the decision making process to arrive at a conclusion that the respondent No. 3 was under obligation to mention the specific reasons which was the basis of the conclusion that the selection process was suffering from lack of transparency.

In view of the above, the second ground also cannot be sustained in law.

Therefore, the decision making process of the respondent No. 3 in passing the impugned order suffered from procedural impropriety and the same is quashed and set aside.

The respondent No. 3 is directed to approve the panel under reference within a period of two months from the date of communication of this order, provided the above panel is otherwise prepared in accordance with law at the material point of time. In the event, the respondent No. 3 is of the opinion that the panel is not otherwise prepared in accordance with law, he shall communicate the reasons therefor to all concerned within the period mentioned hereinabove.

With the observations and directions, this writ petition stands disposed of.

There will be, however, no order as to costs. Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.