Sri Dhiraj Kumar Pathak vs The State of West Bengal & Ors.

In compliance with the order dated December 15, 2017, the respondent no.10 has filed a supplementary affidavit. Such affidavit shall be retained with the records. It is recorded that all the parties appearing before us have been provided with copies of such supplementary affidavit.

We have heard learned advocates for the parties at length and are of the view that the appeal deserves to be allowed based on the contents of such supplementary affidavit although, in course of previous hearing, we were minded to dismiss the appeal.

The facts giving rise to this appeal may be noted first.

The Managing Committee of Gobindapur Madhyamik Siksha Kendra (hereafter the ''MSK'') intended to fill up a post of Siksha Samprasarak in Geography. The appointment was to be made for a contractual period of a year for the academic session 2006-2007. The guidelines issued by the relevant department, inter alia, provided that the advertisement must indicate the qualifications required to be possessed by the aspirants as well as their places of residence. It is to be noted at this juncture that other provisions of the guidelines provided that subject to satisfactory performance during the first year of contractual service, the services of the incumbents ultimately appointed as Siksha Samprasark are to be extended for further periods. Subsequent guidelines issued by the relevant department have ordained that such incumbents would continue to remain in service till 60 years of age.

It is not disputed that pursuant to an advertisement issued in the year 2006, several aspirants had offered their candidature. A panel was prepared by the Managing Committee wherein one Ashok Mondal (hereafter Ashok) figured at the first position and Ranjit Kumar Bez (hereafter Ranjit) followed him at the second position. Pertinently, Ashok was a B.Com. graduate whereas Ranjit was an Arts graduate. Ashok had written an examination of 100 marks in one paper of Geography whereas Ranjit had written three papers of Geography of 100 marks each while obtaining his graduation.

The guidelines provided that should there be any candidate having passed Geography writing three papers with 100 marks, he would be given priority over other candidates. When the panel was placed before the District Nodal Officer, Sishu Siksha Kendra and Madhyamik Siksha Kendra, Bankura (hereafter the ''Nodal Officer''), he informed the Executive Officer of Patrasayer Panchayat Samity vide memo dated November 14, 2006 as follows: "In the subject of Geography, Ashok Kumar Mondal, B.Com. is placed in the panel list though another applicant namely Ranjit Kumar Bej, Honours in Geography has the higher qualification. As per the Guide Line higher qualification should get the priority, this case needs the justification from the end of MC of MSK."

The memo dated November 14, 2006, in due course, reached the Managing Committee of the MSK. In a meeting held on February 07, 2007, the Managing Committee discussed the contents of the said memo dated November 14, 2006. Surprisingly, instead of offering justification as to why Ashok was placed in the first position of the panel in preference to Ranjit departing from the guidelines, the Managing Committee proceeded to re-advertise, as if the Nodal Officer had asked it to do so. In terms of such resolution, an advertisement was once again published in a Bengali daily dated February 16, 2007. The advertisement invited candidates interested in appointment on the post of Siksha Samprasark in Geography to participate in a walk-in interview to be conducted on March 03, 2007. Such candidates were required to bring with them originals and photocopies of their testimonials. It was, however, mentioned that the candidates should be in excess of 40 years of age.

By a corrigendum dated February 19, 2007, the date of interview was preponed to March 01, 2007.

The appellant before us, i.e. Dhiraj Kumar Pathak (hereafter ''Dhiraj''), along with others participated in the walk-in interview and was selected for appointment. The panel was forwarded by the Managing Committee of the MSK to the panchayat samity and on approval of such panel by the panchayat samity, appointment letter dated July 28, 2007 was issued in favour of Dhiraj asking him to join by August 02, 2007. Upon acceptance of such offer, Dhiraj joined on August 02, 2007 and started discharging duty of a Siksha Samprasarak. He was in service when Ranjit presented this writ petition, in January, 2012, out of which this appeal arises.

Ranjit had submitted a representation dated November 4, 2011 before the Block Development Officer, Patrasayer (hereafter the BDO) as to why he was not offered appointment. The BDO considering the same to be an application for information under the Right to Information Act, 2005 issued a memo dated November 8, 2011. The response of the Managing Committee of the MSK to such memo dated November 8, 2011 reveals that because of the objection raised by the Nodal Officer in his letter dated November 14, 2006, a fresh selection process was initiated pursuant to resolution dated February 15, 2007 and in such process Ranjit did not participate. Since Dhiraj emerged as the first empanelled candidate, he was given appointment.

We were labouring under a misconception that Ranjit did not have knowledge that a fresh selection process had been initiated by issuance of an advertisement in the year 2007 and was, therefore, deprived of an appointment, which he could have legitimately claimed based on the position on facts that he was the sole candidate having written three papers of 100 marks each of Geography while obtaining his graduation in the process that had been conducted in 2006. However, the document at page 17 of the supplementary affidavit has changed the entire scenario and persuaded us to hold against Ranjit.

It appears from Ranjit''s representation dated November 4, 2011 that not only did he have knowledge of advertisement which was issued in 2007 but he had also sought to participate in the process. It was his contention that despite being the sole candidate who had written three papers of Geography of 100 marks each, he was deliberately excluded from the zone of consideration by marking him absent. A prayer was, accordingly, made to the BDO to conduct an inquiry as to how in preference to him, Dhiraj could be appointed.

The BDO does not appear to have come to the aid of Ranjit, except referring the representation to the Secretary of the MSK for his response. It was upon receipt thereof that Ranjit presented W.P. No.852 (W) of 2012 some time in January, 2012 seeking an order on the respondents to appoint him as Samprasarak upon setting aside the appointment made in favour of Dhiraj who, according to Ranjit, was not eligible for the post as per the extant guidelines. Pertinently, Ranjit did not disclose in his writ petition that he was aware of the advertisement which was issued in the year 2007 as well as the fact that despite his willingness to offer himself as a candidate for the post of Samprasarak, he was deliberately excluded and marked absent. Ranjit had also not explained the long delay in presenting the writ petition in January, 2012, given the circumstances that Dhiraj was appointed in August, 2007. Obviously, he could not have feigned ignorance.

Be that as it may, the writ petition was not contested by any of the respondents and without there being any affidavit controverting the allegations levelled in the writ petition, the learned Single Judge perhaps was left with no other option but to treat such allegations as correct. His Lordship, accordingly, passed the order dated January 24, 2017, thereby allowing the writ petition. The appointment of Dhiraj was quashed and the respondents were directed to offer Ranjit appointment on the post of Samprasarak.

We are sure that if appropriate assistance had been extended from the side of the respondents to the learned Single Judge by filing counter affidavits, the decision could have been otherwise.

There was none before the learned Single Judge to point out to His Lordship that Ranjit had suppressed a very material fact in his writ petition i.e. his willingness to participate in the selection process initiated by the advertisement issued in 2007 and the subsequent action of the school authorities in excluding him from the zone of consideration by marking him absent. The question as to whether the school authorities at all did so or were justified in doing so, if at all, could have been subjected to inquiry if Ranjit had approached the Court at the appropriate point of time. It is seen from the records that Dhiraj came to be appointed on August 2, 2007 and has been continuing in service since then. For in excess of four years, Ranjit remained silent and took no action to undo the wrong to which he was subjected. He activated himself by writing the representation dated November 4, 2011 to the BDO and within a couple of months thereafter, the writ petition was presented.

Learned advocate representing Ranjit could not satisfy us why Ranjit slept over his right and also as to why he approached the writ court without disclosing full facts.

We are of the considered view that the long delay in approaching the BDO for redress as well as the writ court coupled with suppression of a material fact, disentitled Ranjit to any relief from the writ court. Unfortunately there was none on behalf of the respondents to bring these facts to the notice of the learned Single Judge, as a result whereof an erroneous decision was rendered. We are in agreement with Mr. Bhattacharya, learned senior advocate appearing for Dhiraj that he having rendered unblemished service for the last eleven years, it would be inequitous to disturb his appointment at such distance of time bearing in mind the decision of the Supreme Court reported in 1993 Suppl. (3) SCC 268 [Babita Prasad & Ors. -vs.- State of Bihar & Ors.] ].

For the reasons aforesaid, the order of the learned Single Judge under challenge is set aside. The appeal stands allowed without there being any order as to costs.

If by reason of the order of stay passed in the appeal or otherwise the honourarium of Dhiraj has not been paid for any particular period, the respondents shall take steps to release such honourarium as early as possible but not later than two months from date of receipt of a copy of this order. He shall, however, be entitled to receive his current honourarium as and when the same falls due.

In view of the aforesaid order, the application being CAN 5049 of 2017 accordingly stands disposed of.

There shall be no order for costs.

Photostat certified copy of this order, if applied for, be furnished expeditiously.