SWAPAN KUMAR MAITY Vs. STATE OF WEST BENGAL
LAWS(CAL)-2011-12-64
HIGH COURT OF CALCUTTA
Decided on December 23,2011

SWAPAN KUMAR MAITY Appellant
VERSUS
STATE OF WEST BENGAL Respondents




JUDGEMENT

- (1.)This appeal has impugned the judgment and order of the learned Single Judge dated 8th April, 2010 passed in the writ petition being W.P. No. 13825 (W) of 2009, made by one Avik Chowdhury, respondent No. 9 herein by which the learned Trial Judge has been pleased to grant relief to the writ petitioner/respondent directing the D.I. concerned namely the respondent No. 3 herein to approve the panel sent to him by the School Authority within a period of two weeks from the date of communication of the order. Avoiding unnecessary details of the fact we record the factual score as follows:-
In or about 2006 the Managing Committee of the school namely Madanmohan Chak Chowdhury Institution initiated selection process for filling up of a post of Clerk in terms of the Recruitment Rules as prescribed by the Government of West Bengal. The appellant herein and the respondent No. 9 were among the eligible candidates. For the purpose of recruitment of Clerk under the rules eligible candidates are to take viva voce and typing test. In the selection process the Committee selected the respondent No. 9, Avik Chowdhury and the appellant herein as first and second successful candidate respectively, and another candidate was placed in third position who of course is not in the picture at the moment. The Selection Committee consists of several members namely Secretary, Headmaster of the School concerned, one of the Members of the Panchayat nominee and an outside Expert.

It appears that despite panel being prepared by the Managing Committee based on the assessment made by the Selection Committee, and having been sent to D.I., as no action was taken the respondent No. 9, herein, filed a writ petition being W.P. No. 20587 (W) of 2007 in this Court for a direction on the D.I. to take decision on the question of approval. By an order dated 5th March, 2007 Hon'ble Justice Debasish Kar Gupta was pleased to dispose of the said writ petition directing the District Inspector of Schools to decide the matter within certain time. The D.I., thereafter took decision, and refused to approve the panel on the ground that the panel was not prepared in a free and fair manner. The D.I. directed the School Authority to prepare a panel afresh with the same set of candidates on holding type test in accordance with the rules. D.I. passed the said order in terms of the order of this Hon'ble Court on 28th August, 2007. At that point of time it was noticed that the papers recording assessment of the typing test was not sent to D.I. Thereafter the respondent No. 9 filed second writ petition challenging the said order dated 28th August, 2007. The second writ petition was disposed of by an order dated 25th February, 2009 by Justice Indira Banerjee. Justice Banerjee was pleased to set aside the said order of the D.I. dated 28th August, 2007, and further directed the D.I. to take fresh decision on the panel in accordance with law. The D.I. again in terms of the order of Justice Banerjee reconsidered, hearing all the parties, and he reiterated his earlier decision holding impossibility to grant approval in absence of the papers recording evaluation of the typing test of the candidates.

The last order of D.I. dated 1st July, 2009 was challenged by a third writ petition by the respondent No. 9 on which the impugned judgment and order was passed. It is pertinent to record that in the third writ petition the appellant before us was not a party, thence on his application he was added as party respondent.

Learned counsel for the appellant submits that D.I. has rightly refused to approve the panel, as admittedly type test papers were not sent along with the panel. It was a fact that type test was taken and the reason behind not sending the type test papers along with the panel in view of the fact that writ petitioner/respondent was unsuccessful as he does not know how to type. He really did not secure any mark in the type testing and with the help of the local antisocial element on the date of interview compelled the member of the Selection Committee to allot desired marks. The incident of preparation of panel under extortionate situation at the instance of the respondent No. 9 was informed by making joint complaint by the Headmaster, the then Secretary and Panchayat nominee to the District Inspector of Schools and it was subsequently recorded by the D.I. (SE) in his two orders dated 28th August, 2007 and 1st July, 2009.

(2.)Learned counsel for the appellant submits that in terms of Rule 9 (7a) and (7b) of West Bengal Schools (Recruitment of Non-teaching Staff) Rules, 2005 the School Authority is required to submit a panel along with all relevant papers before the concerned D.I. for approval and therefore the type sheets are part and parcel of the panel in question.
(3.)He further contends that the appellant is not estopped from challenging the said selection process as well as the panel as because he participated and he has right to do so still as glaring illegalities has been detected in selection process. In such situation, he urges with support of the Supreme Court decision (Rajkumar vs. Shakti Raj, 1997 AIR(SC) 2110) that the principle of estoppel does not apply.


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