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High Court Of Calcutta
D. K. SETH, RAJENDRA NATH SINHA
NADIA DISTRICT PRIMARY SCHOOL COUNCIL - Appellant
Versus
SRISTIDHAR BISWAS - Respondent
F. M. A. 313 Of 2003
Decided On : 06/11/2004
APPOINTMENT - PRIMARY TEACHERS - PANEL PREPARATION - PREFERENCE TO TRAINED CANDIDATES - ILLEGALITY AND IRREGULARITY - RELIEF TO SIMILARLY SITUATED CANDIDATES - DENIAL ON GROUND OF DELAY, EXPIRY OF PANEL LIFE, AND ABSENCE OF PRECEDENT - COURT'S ANALYSIS AND DECISION.
Fact of the Case:
A panel for the appointment of primary teachers was prepared in 1980 for Nadia district, including 1965 candidates, with only 600 trained candidates. Rule 3(d) of the Recruitment Rules mandates preference to trained candidates for filling additional posts and 50% of normal vacancies. In 1971, the government recognized training as an additional qualification for appointment as assistant teachers. In 1973, a notification provided preference to trained candidates for all additional posts and 50% of normal vacancies, irrespective of their position in the panel. Sirazul Hague Mallick and 107 candidates challenged the panel's preparation, leading to a 1987 order in their favor. On appeal by the State, the order was modified in 1989, directing the appointment of petitioners to existing and immediate future vacancies. Dibakar Pal and 87 others filed a writ petition in 1989, seeking similar treatment, which was allowed in 1991. The present writ petitioners, Sristidhar Biswas and 54 others, filed their petition in 1989 but faced delays. The learned single judge granted relief to these 55 petitioners on the ground of their similar situation to the other two groups of petitioners.
Finding of the Court:
The court found that the petitioners in the present case were similarly situated to the petitioners in the other two writ petitions and were entitled to the same benefit. It rejected the arguments based on delay, expiry of the panel life, and the absence of a precedent. The court held that the panel preparation process was marred by illegality and irregularity, which the State had consistently tried to avoid scrutiny. It emphasized that the petitioners were not claiming any right based on the panel but were seeking relief due to the illegality and irregularity in its preparation.
Issues: 1. Whether the petitioners can be denied relief on the ground of delay? 2. Whether the relief can be denied on the ground of expiry of the life of the panel? 3. Whether the relief can be granted on the basis of the earlier orders not being precedents? 4. Whether the court can direct the perpetuation of illegality or irregularity?
Ratio Decidendi: 1. The court held that the petitioners could not be denied relief on the ground of delay as the State had consistently avoided scrutiny of the panel preparation process and had conceded to giving relief to similarly situated petitioners in earlier cases. 2. The court held that the relief could not be denied on the ground of the expiry of the panel life as the petitioners were not claiming any right based on the panel but were seeking relief due to the illegality and irregularity in its preparation. 3. The court held that the relief could be granted on the basis of the earlier orders, even though they were not precedents, as the State could not take two different stands in respect of persons identically situated in a case involving the same transaction and set of facts. 4. The court held that it could not direct the perpetuation of illegality or irregularity but that the present case involved the State's attempt to perpetuate the illegality and irregularity it had committed, which the court could not allow.
Final Decision: The court dismissed the appeal and affirmed the order of the learned single judge granting relief to the 55 writ petitioners. The respondents were directed to comply with the direction given by the learned single judge within three months.
( 1 ) A panel for appoint of primary teachers was prepared in 1980 for the District of Nadia in which 1965 candidates were included in the panel. Out of these candidates only 600 were trained candidates. Rule 3 (d)of the Recruitment Rules provides that while preparing the panel for appointment to the post of primary teachers, preference shall be given to the trained candidates in such a manner that all additional posts sanctioned by the Government from time to time due to enhancement in roll strength in existing schools and at least 50% of the normal vacancies in such schools are filled up by trained candidates only, if sufficient number of tranined candidates are available. By a notification dated 26th October, 1971 the government of West Bengal, Education Department, Primary Branch recognized the training as an additional qualification for appointment as assistant teacher. By another notification dated 5th September, 1973, it was provided that while giving appointment out of the panel already prepared, preference should be given to the trained candidates for appointment to all the additional posts and 50% of the normal vacancies irrespective of their position in the panel, provided sufficient number of trained candidates have been included in the panel. This preparation of panel omitting to include trained candidates was challenged by Sirazul Hague Mallick and 107 others candidates in C. R. No. 2522 (W) of 1982. By an order dated 17th September, 1987 the said writ petition was allowed. On appeal being F. M. A. T. No. 159 of 1988 by the State, this order was modified by an order dated 14th of February, 1989 by directing giving appointment to the petitioners in the existing vacancies and in vacancies arising in immediate future, and that appointment would not be offered to any one other than the petitioners. This order was passed on concession by the State. The appointment in terms of the said order having not been given, a contempt petition was moved. Pursuant to the order passed in the contempt petition on 30th June, 1989, the said Sirazul haque Mallick and 107 others were given appointment.
( 2 ) ON 16th July, 1989, one Dibakar Pal and 87 others moved a Writ petiton being C. O. No. 11154 (W) of 1989. This writ petition was allowed by an order dated 13th of March 1991 on the ground that Dibakar Pal and 87 others were similarly circumstanced with Sirazul Haque Mallick and 107 others and therefore, there cannot be a different kind of treatment. The appeal arising thereout was dismissed by the Division Bench. Upon a contempt application being moved, pursuant to an order dated 23rd of June 1999, the said Dibakar Pal and 87 others were given appointment.
( 3 ) THESE writ petitioners filed the present writ petition on 2nd of August 1989. For some reason or other, this matter could not be taken up for hearing. Ultimately, this writ petition was allowed by an order dated 17th January, 2001 since reported in 2001 (1) CHN 524. it may be noted that Sirazul Haque mallick and 107 others, Dibakar Pal and 87 others and these writ petitioners sristidhar Biswas and 54 others were admittedly trained candidates. The petitioners claimed that their names were borne on the roll of the Employment exchange under a separate Code number being 153. 10 with an endorsement that they would not get any interview calls elsewhere under the Government of West Bengal except for the post of primary teachers.
( 4 ) THE learned Single Judge had granted the relief to these 55 petitioners on the ground that the petitioners in the other two writ petitions were similarly situated with these 55 writ petitioners and, therefore, were entitled to the same benefit. No relief, however, was allowed by the learned single Judge to the parties added as petitioners between 1999 and 2000. Whether the petitioners can be denied relief for waiting on the fringe, delay and laches :
( 5 ) MR. Rabilal Maitra, Additional Advocate General, appearing on behalf of the appella
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