2018 Supreme(Cal) 993

IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
DIPANKAR DATTA, ASHA ARORA, JJ.
State of West Bengal and Others – Appellants
Versus
Nihar Biswas and Others – Respondents
CAN Nos. 10110 of 2017, 3206 of 2018, FMA No. 1615 of 2018
Decided On : 12-10-2018

A learned Judge of the High Court sitting singly and learned Judges sitting in a Division Bench hearing an intra-court appeal from the order of the learned Judge exercise the same jurisdiction, i.e., the jurisdiction under Article 226 of the Constitution; only to avoid inconvenience to the litigants, another tier of screening by the Division Bench is provided in terms of the power of the High Court but that does not mean that a single Judge is subordinate to the Judges of the Division Bench.

Headnote:

WRIT PETITION - [KEYWORD] - SUBJECT - ACT SECTION LIST - SUMMARY

Fact of the Case:

In 2009, the District Primary Schools Councils (DPSCs) of Howrah, Malda, 24-Parganas (South), and 24-Parganas (North) intended to fill vacant posts of Assistant Teachers in primary schools within their respective jurisdictions. Advertisements were published inviting applications from eligible candidates. The West Bengal Primary Teachers Recruitment Rules, 2001 (2001 Rules) governed the selection process. Several candidates applied and written examinations were conducted. However, the panels were not approved due to irregularities. An order dated January 21, 2012, issued by the School Education Department, Government of West Bengal (G.O.), cancelled the selection process and directed the DPSCs to restart the process by holding written examinations. Only those who had taken the earlier written examinations were allowed to take the fresh examinations. This led to a spate of litigation challenging the G.O. and the authority of the State Government to issue it. Interim orders were passed by learned single Judges restraining the DPSCs from holding the written examinations. Appeals were carried to the appellate court, which disposed of the appeals with directions. Fresh written examinations were conducted by the Howrah DPSC and the South DPSC in compliance with the G.O., and the selected candidates were offered appointments. However, no appointments were made by the Malda DPSC and the North DPSC due to pendency of writ petitions challenging the G.O. These writ petitions were disposed of by a learned Judge with directions to the North DPSC and the Malda DPSC to offer appointments to the empanelled candidates. The State, the Commissioner of School Education, West Bengal, the District Inspector of Schools (P.E.), North 24- Parganas, the North DPSC, and its chairman challenged this order by filing appeals. The Malda DPSC and its chairman also challenged the order by filing appeals. The appeals concerning the recruitment process initiated by the North DPSC were FMA 1615 of 2018 and MAT 1412 of 2017. The appeals concerning the recruitment process initiated by the Malda DPSC were MAT 1889 of 2017, MAT 1906 of 2017, and MAT 1999 of 2017.

Finding of the Court:

The court held that the orders under challenge were passed without affidavits and without giving an opportunity to the State to contest the writ petitions. The court found that the issues involved in the writ petitions were complex and required affidavits to be filed. The court also noted that the learned Judge had refused to grant a short passover requested by the State on the ground that the order proposed to be passed would not prejudice the State, which was not the case. The court set aside the orders impugned and remanded the writ petitions to the writ court for fresh consideration after filing of affidavits by the parties.

Issues: 1. Whether the writ petitions were maintainable in law. 2. Whether the writ petitioners had any legal right to claim that the panels prepared by the Malda DPSC and the North DPSC be worked out, on the date the writ petitions were presented. 3. What would be the effect of the order of the appellate court dated 18th September, 2013 qua the objection relating to maintainability of the writ petitions? 4. Was there sufficient justification for the Malda DPSC and the North DPSC not to make appointments from the panels prepared by them, which were approved (albeit provisionally) by the Deputy Director in June, 2015? 5. Are the writ petitioners not entitled to claim that the period, during which the panels could not be worked out owing to pendency of certain writ petitions (referred to in the panel approving orders of the Deputy Director), should be excluded for the purpose of computing the life of the panels? 6. Was the State, having expressed serious concern about the future interests of the candidates who had participated in the process for recruitment initiated by the Councils initially in 2009 and again by conducting written examinations pursuant to the said G.O., justified in abruptly changing its policy in 2016? 7. Was the Board justified in filling up the vacancies in respect whereof the writ petitioners were aspiring for appointment, without even putting them on notice? 8. Could the writ petitions be held to be defective for not impleading the Board as a respondent on the face of omission on the part of the Board to indicate in the advertisement dated 26th September, 2016 that the process initiated thereby would also include the vacancies for which advertisements had been issued in 2009? 9. Does the action of the Board amount to fraud on the aspiring candidates as well as the Court, particularly when litigation was pending in this Court concerning such vacancies? 10. How far is the change of policy of the State justified after having allowed the panels prepared by the Howrah, DPSC and the South DPSC to be worked out, despite the 2001 Rules having been amended and training qualification made an essential qualification for appointment as an Assistant Teacher in a Primary School prior to making appointments in such districts? 11. Having regard to the terms and scope of the said G.O., do the appointments made by the Howrah DPSC and the South DPSC from the panels prepared pursuant to the written examinations conducted on the basis of the said G.O. on the one hand and refusal to allow appointments to be made from the panels prepared by the Malda DPSC and the North DPSC based on the said G.O. on the other, not amount to invidious discrimination offending Articles 14 and 16 of the Constitution? 12. Can the State be allowed to approbate and reprobate, and is there valid reason not to operate the panels that were prepared by the Malda DPSC and the North DPSC?

Ratio Decidendi: The court held that the learned Judge erred in disposing of the writ petitions without affidavits and without giving an opportunity to the State to contest the writ petitions. The court also held that the issues involved in the writ petitions were complex and required affidavits to be filed. The court further held that the learned Judge erred in refusing to grant a short passover requested by the State on the ground that the order proposed to be passed would not prejudice the State, which was not the case.

Final Decision: The court set aside the orders impugned and remanded the writ petitions to the writ court for fresh consideration after filing of affidavits by the parties.