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IN THE HIGH COURT OF CALCUTTA
Jyotirmay Bhattacharya, Tapash Mookherjee, JJ.
The District Primary School Council, Howrah & Anr. - Appellants
Versus
Himanshu Mondal & Ors. - Respondents
A.S.T. 419 of 2014. A.S.T.A. 305 & 306 of 2014
Decided On : 02-12-2014
For the Appellants :L.K. Gupta, Subir Sanyal, Bhaskar Vaishya, Ratul Biswas, Advocates
For the Respondents:Bikash Ranjan Bhattacharya, Soumen Kumar Dutta, Subhs Jana, Advocates
For the State :Abhratosh Majumdar, T.M. Siddiqui, Advocates
Filing of a separate writ petition before the Writ Court should be discouraged when the Division Bench has approved a Government Order and the said order is in operation. In such circumstances, the aggrieved party should either approach the same Division Bench for review of its earlier order or prefer an appeal before the higher Forum.
Headnote:
MANDAMUS APPEAL - APPROVAL OF GOVERNMENT ORDER BY DIVISION BENCH - SUBSEQUENT WRIT PETITION CHALLENGING SAME ORDER - MAINTAINABILITY - REVIEW/APPEAL BEFORE HIGHER FORUM PREFERRED - FILING SEPARATE WRIT PETITION DISCOURAGED - INTERIM ORDER PASSED BY SINGLE JUDGE SET ASIDE.
Fact of the Case:
The District Primary School Council, Howrah, was not a party to a writ petition challenging the Government Order dated 21st June, 2012, which was approved by the Division Bench of the Calcutta High Court in a mandamus appeal. However, the Chairman of the Council was represented by his lawyers in the writ petition. The Council filed an application for leave to appeal against an interim order passed by the Single Judge in the writ petition, arguing that the order was contrary to the spirit of the Division Bench order and would delay the selection process.
Finding of the Court:
The Court held that the writ petition was maintainable as none of the present writ petitioners were party to the earlier writ proceedings and/or in the appeal arising therefrom, and the issues raised in the present writ petition were neither raised in the earlier writ petition and/or in the appeal arising therefrom nor those issues were finally decided in the appeal. However, the Court found that the Single Judge should not have passed an interim order in the writ petition as the Government Order dated 21st June, 2012, which was under challenge in the writ petition, was approved by the Division Bench of the High Court while disposing of the appeal.
Issues: 1. Whether the writ petition was maintainable in light of the earlier writ proceedings and the Division Bench order approving the Government Order? 2. Whether the Single Judge should have passed an interim order in the writ petition challenging the Government Order which was approved by the Division Bench?
Ratio Decidendi: 1. The Court held that the writ petition was maintainable as the present writ petitioners were not parties to the earlier writ proceedings and/or the appeal arising therefrom, and the issues raised in the present writ petition were neither raised in the earlier writ petition and/or in the appeal arising therefrom nor those issues were finally decided in the appeal. 2. The Court held that the Single Judge should not have passed an interim order in the writ petition as the Government Order dated 21st June, 2012, which was under challenge in the writ petition, was approved by the Division Bench of the High Court while disposing of the appeal. The Court observed that filing of a separate writ petition before the Writ Court should be discouraged as in case a different conclusion is arrived at by the Writ Court, a question will arise as to which one of those two decisions will be implemented.
Final Decision: The Court allowed the appeal and set aside the interim order passed by the Single Judge on 28th November, 2014.
Jyotirmay Bhattacharya, J.
This mandamus appeal is directed against an interim order passed by a learned Single Judge of this Court on 28th November, 2014 in W.P. No. 31563(W) of 2014. By the said order, liberty was given to the District Primary School Council to prepare a panel, with this rider that necessary approval thereof may also be obtained, but no appointment shall be made from the panel without obtaining the leave of the Court till 12th December, 2014 or until further order whichever is earlier.
2. The said interim order was passed in a writ petition wherein the District Primary School Council, Howrah, was not a party. However, the Chairman of the District Primary School Council was impleaded as a respondent in the said writ petition and the Chairman of the District Primary School Council, Howrah, was represented by his lawyers, before the Learned Single Judge in course of hearing of the writ petition.
3. Since the District Primary School Council, Howrah, was not a party to the said proceeding, an application has been taken out by the said Council seeking leave of this Court to prefer an appeal for challenging the order passed by the learned Trial Judge of this Court on 28th November, 2014 as a party adversely affected by the interim order passed by the learned Single Judge.
4. We find that in the impugned order some directions were issued upon the District Primary School Council for not giving any appointment from the panel prepared on the basis of de novo recruitment process without the leave of the Court. Such directions, according to the said Council are contrary to the spirit of the order passed by the Division Bench of this Hon'ble Court on 9th June, 2014 in a mandamus appeal being F.M.A. 3116 of 2013. Our attention has been drawn to the order passed by the Division Bench of this Hon'ble Court on 9th June, 2014 in F.M.A. 3116 of 2013 whereby the said Council was directed to complete the entire selection process in terms of the order passed by the Principal Secretary to the Government of West Bengal on 21st June, 2012 as early as possible and positively within a period of three months from the date of communication of the said order so that the selection process can be completed without any further delay.
5. Considering the said order passed by the Division Bench of this Court, we find substance in the contention of the applicants that implementation of the order passed by the Division Bench of this Court may ultimately be delayed in case the order passed by the learned Single Judge of this Court is allowed to operate.
6. Under such circumstances, we grant leave to the applicants to file this appeal. The application for leave to appeal being ASTA 305 of 2014 is, thus, allowed.
7. Let the appeal now be registered.
Re: AST 419 of 2014
8. Immediately after the application for leave to appeal was allowed, we were requested by the learned Counsel appearing for the parties to consider the appeal itself on merit. Accordingly, we have heard the learned Advocate of the parties on the merit of the appeal.
9. Let us now consider the merit of the instant appeal in the facts of the present case.
10. The selection process was initiated in the year 2009 for filling up several vacant posts of Assistant Teachers in primary schools under various Districts Primary School Councils including Howrah District Primary School Council. However since presently we are concerned with the selection process relating to the concerned posts under Howrah District Primary School Council, we will deal with the present dispute relating to the selection process under Howrah District Primary School Council. Serious irregularities in the recruitment examination were detected and ultimately the recruitment examination conducted by the District Primary School Council, Howrah was cancelled and the Chairman of the concerned District Primary School Council was directed to conduct the recruitment examination de novo with a rider that only the eligible candida
