BIJOY MUJUMDER Vs. SAMAR KUMAR MONDAL AND OTHERS

JUDGEMENT

(1.) In this case the petitioner had moved a writ petition alleging that the names of his juniors have been sponsored by the Employment Exchange for recruitment in the post of Clerk in a school while his name has not been sponsored. This Court disposed of the writ petition by directing the Administrator to treat the writ petition as a representation and consider the case of the petitioner. The Administrator of the School found that the names of some juniors to the petitioner were sponsored in respect of schools other than the concerned school on earlier occasion without sponsoring the name of the petitioner over a long period of time. Therefore, he had allowed the petitioner to appearing the interview along with the candidates sponsored by the Employment Exchange in the recruitment process. A panel was prepared. The petitioner's name was placed at serial number one while that of the respondent in this appeal was placed in the second position. The petitioner/appellant had been given appointment. But the appointment had not been approved. The petitioner moved another writ petition for approval of his appointment. That writ petition was also disposed of by directing the District Inspector of Schools to consider the question of grant of approval within the time stipulated. On the other hand, the respondent, being a candidate in the second position, moved a writ petition challenging the selection of the appellant. In that writ petition before any affidavit could be exchanged the writ petition was disposed of. It is this order against which the present appeal has been preferred. In the order appealed against, it was held that the appellant's name was not sponsored by the Employment Exchange and his name could not be considered by the committee for appointment in view of Special Bench decision of this Court in Debasis Dutta & Ors. Vs. State of West Bengal, 1998(1) CHN 544.

(2.) Mr. Mukherjee, learned Advocate for appellant, pointed out that this decision of the Special Bench was the subject matter of consideration in an appeal where relying on the decision of the Apex Court in Excise Superintendent Malkapatnam, Krishna, District, A.P. Vs. K.B.N. Visweshwar Rao & Ors., (1996)6 SCC 216 : [1996(3) SLR 649 (SC)], though not finally but tentatively it was held by the Apex Court that the interim order preventing the petitioner from appearing in the interview on the ground that his name was not sponsored by the Employment Exchange could not be upheld. However, this finding was subject to the decision of the pending appeal out of the interlocutory order whereof the matter went up to the Supreme Court. Mr. Mukherjee relied on the decision in Kishore K. Pati Vs. District Inspector of Schools, Midnapore & Ors., (2000)9 SCC 405, in order to contend that the decision directing the respondents to consider the petitioner's case in the interview having become final and having not been challenged, the same cannot be reopened. Secondly, he contended that the Recruitment Rules pursuant to which the learned Single Judge had proceeded applying the ratio decided in Debasis Dutta (supra) is ultra vires, in view of sub-delegation inconsistent with the Act. Sec. 45(1) of the West Bengal Board of Secondary Education Act, 1963 (the Act) provides for framing of rules by the State Government after previous publication. According to him, the rules could be framed by the State Government only and that too after previous publication in the manner prescribed in Sec. 24 of the General Clauses Act and not otherwise. This power cannot be delegated to the Director ir, the absence of any provision for delegation provided in the Act expressly or by implication. Therefore, the Recruitment Rules are ultra vires. If these Recruitment Rules have no force because the Rules were not been framed in consonance with Sec. 45(l), in that event, the ratio decided in Debasis Dutta (supra) cannot be attracted. His alternative submission was that if these Recruitment Rules are treated as directions, which the Director is empowered to issue under the Rules framed under Sec. 45(1) by the State Government being the Management of Recognised Non-Government Institutions (aided and unaided) Rules, 1969 (the Management Rules) as specified in Rule 28 thereof, in that event, the directions would not have a binding force on that rule nor attract the mischief of the ratio decided in Debasis Dutta (supra). According to him, in this case, the appellant after having been permitted to appear in the interview has been given appointment after selection and there has already been an order for consideration of approval of his appointment, which order is also not under challenge. Therefore, these Rules cannot have the force of invalidating the appointment given to the petitioner preventing appropriate authority from grant of approval thereto.

(3.) Mr. Maloy Basu, learned Advocate for the respondents, on the other hand, pointed out that so far as the directions for sponsoring the name of the appellant was concerned, his client could not have any scope to oppose the same since he was not a party to the said proceedings and it was a stage prior to the selection in which his client had participated. But his client could very well challenge the said process when he was challenging the entire process of selection, which included the pre-selection part as well. Therefore, the decision given by this Court was also the subject matter of challenge in the writ petition filed by his client and could be questioned even before the learned Single Judge. Mr. Basu secondly contended that the Recruitment Rules are not Rules within the meaning of Sec. 45(1) of the Act. These directions have been issued in terms of Rule 28(l) of the Management Rules. According to him, these directions are binding in view of he provisions contained in Rule 28 of the Management Rules. Therefore, these directions has a force of law sine recognised by the Rules itself, attracting the mischief of the ratio decided in the case of Debasis Dutta (supra). According to him, the order of the Apex Court with regard to the interim order cannot be a precedent within the meaning of Art. 141 of the Constitution of India since no issue was decided and since it was only an interlocutory matter without having the effect of final adjudication of any issue. Therefore, that would not bind this Court. This Court has to consider the question in the light of the ratio decided by the Special Bench in Debasis Dutta (supra). According to him, the decision in the Excise Superintendent Malkapatnam (supra) has not dealt with the question, which was specifically dealt with by the Special Bench in Debasis Dutta (supra). Therefore, those decisions would not affect the present question and would not be a bar to decide the question on the principle enunciated in Debasis Dutta (supra). In the facts and circumstances of this case, the appeal should be dismissed. He also contended that it was never a case before the learned Single Judge, made out by the appellant, that his junior's name had been sponsored in other schools and therefore why his name should not be sponsored in this School. He relied on paragraphs 4 and 7 of the writ petition on which the direction for consideration of the petitioner's case for being sponsored was given. Since, this question was not raised, now this question cannot be raised. Therefore, the decision to consider the petitioner's case for sponsoring his name would not have any effect on the present situation.