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1996 Supreme(Cal) 116
HIGH COURT OF CALCUTTA
Satyabrata Sinha & Satya Narayan Chakrabarty, JJ.
Managing Committee, Dinhata High School
vs.
Sri Ram Chandra Saha & Ors.
F.M.A.T. No. 542, 957 & 3342 of 1992
Decided on : March 19, 1996
Advocate Appeared:
S. N. Bhattacharya & Sundarananda Pal for the appellant;
Dipak Banerjee for the added respondents;
Tapan Kumar Banerjee for the Members of the Managing Committee;
Lakshmi Kanta Pal for the respondent No.1;
Amal Baran Chatterjee for the State.
Kashikanta Moitra, Mahananda Roy, Ms. Seba Roy for the appellant;
Amal Baran Chatterjee, Dipak Banerjee for the respondent.
Recruitment Rules have a statutory force. This Court in exercise of its jurisdiction under Art. 226 of the Constitution of India cannot issue any direction which would be contrary to and inconsistent with the statutory rules.
Headnote:
RECRUITMENT RULES - SCHOOL - HEAD MASTER - APPOINTMENT - ABSORPTION - REGULARISATION - SELECTION COMMITTEE - JURISDICTION - PRIOR PERMISSION - QUALIFICATION - APPROVAL - PANEL - WRIT PETITION - INTERIM ORDER - STATUS QUO - ESTOPPEL - JUDICIAL REVIEW - STATUTORY RULES - INTEREST OF JUSTICE - DEPARTMENTAL PROCEEDINGS.
Fact of the Case:
The writ petitioner was appointed as Head Clerk of Dinhata High School on a temporary basis and then as an Assistant Teacher on the basis of his application alone. He was directed to act as an Assistant Head Master on a purely temporary basis. Subsequently, he was appointed as an Assistant Head Master of the school subject to the approval of the Director of Public Instruction. The District Inspector of Schools approved his appointment subject to certain conditions. The approval was withdrawn upon obtaining a clarification from the D.P.I. that the petitioner did not hold the requisite qualification. The petitioner filed a writ petition challenging the order of withdrawal of approval. The writ petition was dismissed. The petitioner then obtained a degree in M.Sc. Education and applied for the post of Head Master. He was given charge of the post of Head Master but his approval was not granted. A selection committee was constituted for filling up the post of Head Master and an advertisement was issued. The petitioner filed a writ petition questioning the order of suspension and charge-sheet. The writ petition was disposed of with liberty to the petitioner to prefer an appeal before the appeal committee of the Board. The petitioner filed another writ petition questioning the order of the appeal committee. The learned Judge directed the Managing Committee of the school to complete the disciplinary proceedings within three months. The petitioner filed a contempt proceeding alleging that the disciplinary proceedings were not completed within the period as indicated in the order. An affidavit-in-opposition was filed wherein the order passed by this Court dated 12th September, 1991 was brought to the notice of the learned Judge. By an order dated 11th December, 1991, it was directed that the petitioner's subsistence allowance be paid at the admissible rate for the period he has not been paid within 2 weeks from the date without prejudice to the rights and contention of the parties. On 14th November, 1991, the writ petition was disposed of directing the Managing Committee of the said School to complete the disciplinary proceedings within three months upon supplying the copies and documents asked for enabling the petitioner to show cause against the charges levelled against him. Interview for selection was held by the Selection Committee in terms of the Recruitment Rules and a panel was prepared. The petitioner's name did not find place in the said panel. The District Inspector of Schools issued a Memorandum to the Secretary of the Managing Committee of the School asking for clarification before approval of the panel was granted in terms of his letter dated 4th November, 1993. The petitioner again filed a writ application before this Court and obtained an ex parte order staying operation of the order dated 4th February, 1993 issued by the District Inspector of Schools for recasting of the panel in terms of the interview dated 15th November, 1992. Thereafter, an application for further order and/or appropriate direction from this Court was made by the School authority for the purpose of the issuing appointment letter to the candidates selected for appointment to the post of Head Master of the school pursuant to the interview dated 15th November, 1992. A Bench comprising of U.C. Banerjee and S. P. Rajkhowa, JJ, allowed the said application upon direction to the District Inspector of Schools to consider the panel and if he is otherwise satisfied that the panel was prepared in accordance with the law he would approve the same and appointment be made on the basis thereof. The District Inspector of Schools in terms of the said order approved the panel holding that Sri Anil Kumar Debnath would be the first empanelled candidate, inter alia, on the ground that the first empanelled candidate did not fulfil the requisite qualification. He, however, directed that in the event Sri Anil Kumar Debnath failed to join the school, the second empanelled candidate will join to the post. Sri Anil Kumar Debnath was appointed as Head Master and he has been functioning in the said post since then. The petitioner filed an application for recalling the order dated 11th March, 1994 and by an order dated 14th July, 1994 a Bench comprising of U.C. Banerjee and S.N. Mallick, JJ., recalled the order dated 11th March, 1994 directing the maintenance of the status quo as on date as regards the functioning of the Head Master of the school. The petitioner filed a special leave petition in the Supreme Court of India against the said order which was dismissed with the observation that it is open to the petitioner to pursue any application, already filed, or to file any fresh application which is relevant for the purpose for which the matter has been ordered by the High Court to be placed before an appropriate Bench.
Finding of the Court:
1. The post of Head Master is not a promotion post but a selection post. 2. The writ petitioner cannot be directed to be absorbed without following the Recruitment Rules. 3. The selection committee constituted by the learned trial Judge was not in accordance with the Recruitment Rules and is, therefore, bad in law.
Issues: 1. Whether the writ petitioner was entitled to be absorbed in the post of Head Master in terms of the circular letter dated 10.7.1980 as he had continued in the post of officiating Head Master for a period of more than 2 years? 2. Whether in view of the subsequent orders passed by this Court the appointment of Sri Anil Kumar Debnath is illegal?
Ratio Decidendi: 1. The petitioner was not entitled to be absorbed in the post of Head Master in terms of the circular letter dated 10.7.1980 as he had continued in the post of officiating Head Master for a period of more than 2 years, as the said circular letter speaks of appointment against permanent post and not appointment as an In-charge and in any event the said circular letter lost its force after coming into force of the statutory rules. 2. The appointment of Sri Anil Kumar Debnath was not illegal as the petitioner was not entitled to be absorbed in the post of Head Master and the petitioner is estopped and precluded from questioning the said order as he had submitted himself to the jurisdiction of the Selection Committee pursuant to the advertisement.
Final Decision: FMAT 957 of 1992 dismissed. FMAT 542 of 1992 allowed.
Satyabrata Sinha, J.
1. The aforementioned 3 appeals being inter related were taken up for hearing together and are being disposed of by this common Judgement.
2. F.M.A.T. No. 542 of 1992 and F.M.A.T No. 957 of 1992 arise out of a judgement and order dated 27th and 28th January, 1992 passed by a learned single Judge of this Court in Civil Rule No. 1333(W)/95 whereby and whereunder the said learned Court allowed in part a writ petition filed by Sri Ram Chandra Saha, appellant (hereinafter referred to as the writ petitioner) in F.M.A.T. No. 957 of 1992.
3. F.M.A.T. No. 3342 of 1992 arises out of an order dated 15.9.92 passed by Paritosh Mukherjee, J. in Civil Order No. 17044(W) of 1992.
4. The Managing Committee of Dinhata High School has filed F.M.A.T. No. 542/92 against a portion of the said judgement.
5. The fact of the matter is as follows on 6th June, 1986 the writ petitioner was appointed as Head Clerk of Dinhata High School (hereinafter referred to as the said School) on a temporary basis. On the basis of his application alone on 1st January, 1967 he was appointed as an Assistant Teacher. The offer of appointment is contained in Annexure 'A' to the writ application. At the relevant time the qualification of the writ petitioner was only B.Com.
6. The writ petitioner was directed to act as an Assistant Head Master on purely a temporary basis till a permanent Head Master is appointed. However, on 2nd August, 1975 the Secretary, Ad-hoc Committee of the school appointed the writ petitioner as an Assistant Head Master of the school in terms of the resolution of the Ad-hoc Committee subject to approval of the Director of the Public Instruction. The District Inspector of Schools, Secondary Education, Cooch Behar, by an order dated 9th August, 1975 approved his appointment as Head Master subject to the following conditions:(i) The approval is given subject to the issuance of clarification by the Director of Public Instruction, West Bengal in regard to the eligibility of selection by the Ad-hoc Committee.
(ii) The approval shall be withdrawn if the same is not found justified by the education directorate:
(iii) The appointee should furnish the written undertaking on the following :"I know that my approval as Assistant Head Master, Dinhata High School has been given by the District Inspector of Schools (Secondary Education), Cooch Behar on a temporary basis subject to issuing of clarification by the Education Directorate and in case if the same is not found justified, I shall be liable to be reverted to my original post of Assistant Teacher of the School without raising any objection."
7. Allegedly, however, the District Inspector of Schools withdrew the said approval upon obtaining a clarification from the D.P.I. allegedly on the ground that the writ petitioner did not hold requisite qualification and thus was not entitled to the scale of pay admissible to the Honours graduate.
8. On 10th June, 1976 the writ petitioner filed a writ application which was marked as Civil Rule No. 6215(W) of 1976 questioning the said order dated 28th February, 1976. The said writ petition was dismissed by an order dated 13th February, 1980. The writ petitioner, however, thereafter took admission in the Kalyani University in M.Sc. Education allegedly without obtaining permission from the school and obtaining leave on medical ground and continued his studies therein and obtained a degree in M.Sc. Education in 1978. On 31st July, 1982 the permanent Head Master of the said school Sri K. P. Saha retired. A question arose as to whether the petitioner can be allowed to take charge of the post of the Head Master. The petitioner, however, ultimately was given charge of the post of Head Master.
9. The writ petitioner applied for grant of his approval to the post of Head Master but no such approval was granted. Thereafter steps were taken up for filling up of the post of the Head Master and pursuant thereto an advertisement was issued.
10. The writ petitioner file
