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2024 DAILYLAW 2465 (CAL)

Gourab Bhattacharyya v. State of West Bengal

2024-12-23

Rai Chattopadhyay

body2024
JUDGMENT : RAI CHATTOPADHYAY, J. 1. The present writ petition is directed against an order of the Chairperson, West Bengal Regional School Service Commission (South Eastern Region), Barasat, [hereinafter referred to as “RSSC”], dated December 22 of 2017 , thereby relegating the issue of appointment of the present petitioner in the died in harness category, with certain queries, touching the merits of his application and justifiability of recommending his name for appointment, to the District Inspector of Schools (Secondary Education), North 24 Parganas [hereinafter referred to as the “DI”]. The legality and propriety of the said order has been challenged in the present writ petition on the subject as to whether the RSSC, being a recommending body has the power and jurisdiction under the law and commit itself to consider the merits of the recommendation for appointment of the petitioner, by the recommending body (in this case the DI) or the application of the petitioner. 2. Before delving on the impugned order, it is required that the factual background of the case being narrated in a nutshell, for the benefit of discussion. The petitioner's father has been working as an Assistant Teacher in the respondent school, who has breathed his last on December 20, 2007. Immediately thereafter the writ petitioner has made his application praying for compassionate appointment in place of his deceased father, being his application dated February 19, 2008 The school has forwarded its recommendation with all the requisite documents, to the office of the DI, vide letters dated November 12, 2008 and November 14, 2009 respectively. An order of this Court dated November 23, 2016, in WPA 1314(w) of 2016, has ultimately motivated the DI, to pass an order vide its office memorandum dated April 24, 2017 , thereby allowing the petitioner for grant of compassionate appointment and recommending his name before the RSSC, for appointment, vide letter dated July 6, 2017 . Thereafter a letter of the learned advocate of the writ petitioner dated February 15, 2018 has intervened in between and ultimately the respondent WBRSSC has passed the impugned order dated December 22, 2017, to raise further questions regarding recommendation and grant of compassionate appointment, to the writ petitioner. 3. The impugned order dated December 22, 2017, is on the subject matter regarding consideration of the proposal of the petitioner, for appointment on compassionate ground under died in harness category. 3. The impugned order dated December 22, 2017, is on the subject matter regarding consideration of the proposal of the petitioner, for appointment on compassionate ground under died in harness category. The following points have been envisaged therein: “1. Heirship Certificate has not been issued by the competent authority. In this regard he is requested to follow our earlier communication made under Ref. No. – 2. 2. A photo copy of Court Affidavit in respect of “No Objection Declaration” of the other member(s) of the deceased staff has been given. But the same to be given in original. 3. Applicants “Declaration for maintaining the family” of the deceased staff has not been given. But the same to be given in original through Affidavit and should be affirmed by the Ld. Judicial Magistrate, 1 st Class. 4. Income Certificate duly issued by the competent authority to be given in original. 5. Format-A for determination of Financial hardship is not properly filled up. A good nos. of points having SI. Nos. from (3) to (7) have been found left blank. Format – A to be filled up properly and completely. In this regard he is requested to please opine whether interest on G.P.F. money deposited in “Fixed Deposit Schemes” will be taken into account for calculation of total family income of the deceased staff, as have been shown in the enclosed papers such as 1) Family Composition statement as well as in the 2) Financial Statement Format as per G.O. No. -1173 – SE(Pry) dated 11-11-2005 and total income of the family from all other source has been shown Rs. 1861/- per month (Interest money from G.P.F.) 6. Proposal has been made for appointment in the post of Gr-"C" but no computer knowing certificate is found. A certificate of knowledge of computer proficiency to be given.” 4. The petitioner challenges the very authority of the RSSC to raise any question or query, as regards his appointment on compassionate ground. Mr. Bari has represented the petitioner in this case. He would submit that after the fact-finding authority (in this case the DI), having enquired into the matter and having approved the name of the writ petitioner for grant of compassionate appointment, there could not have been any scope for the RSSC, to further go into the fact-finding exercises, raising questions as to the findings of the said fact- finding authority. He would further submit that the RSSC, is the statutory body having been bestowed with the duties thereunder, for recommending the names of the successful candidates before the school authorities for appointment. In case of appointment in died in harness category, similar function is to be discharged by the RSSC, by recommending the name of the dependent legal heir of the deceased school teacher for appointment. Mr. Bari would refer to the impugned order, copy of which has been annexed in this writ petition, to indicate that the 6 points of query raised by the respondent RSSC would be impermissible and not maintainable in the eye of law , in so far as after the decision of the fact-finding authority approving grant of appointment to the writ petitioner on compassionate ground, the RSSC which is the recommending statutory body, shall have no authority under the statute, excepting recommending the name of the petitioner, as per the decision of the said fact-finding authority (that is, the DI). 5. The two judgments of this Hon'ble Court have been referred to by Mr. Bari in support of his contentions, as follows: (i) Soumik Dandapath vs. State of West Bengal, (2012) 1 CHN 60 (DB) (ii) Satyagopal Mishra vs. State of West Bengal, (2011) 3 CHN 334 (DB) 6. By referring to those, Mr. Bari would say that the impugned order has rendered the same fact-finding authority to go into its previous decision again which, however could not take a contrary view, in absence of any supervening reasons. He would submit that there would not be any useful purpose served by directing the said respondent to proceed further expeditiously or reconsider the petitioner's prayer, in so far as that would amount to shifting it from Caesar to Caesar’s wife, as envisaged by the Court in Satyagopal Mishra's judgment (supra) . Hence, on behalf of the writ petitioner Mr. Bari would seek necessary directions to be passed against the respondent authorities directing them to immediately grant appointment to the writ petitioner. 7. Dr. Patra represents the respondent RSSC. He would rather raise strong objection to the contentions and prayer of the writ petitioner, in this case. Hence, on behalf of the writ petitioner Mr. Bari would seek necessary directions to be passed against the respondent authorities directing them to immediately grant appointment to the writ petitioner. 7. Dr. Patra represents the respondent RSSC. He would rather raise strong objection to the contentions and prayer of the writ petitioner, in this case. He would say that the respondent being a statutory body entrusted with the power for recommending the names of the eligible persons to be appointed as the Assistant Teachers in the schools, cannot act as the post-office only between the DI and the petitioner in case of recommending the name of the petitioner for being appointed on the compassionate ground. Instead, he would say that the respondent RSSC has the duty to recommend names of the eligible persons on the basis of the objective considerations by it as to the eligibility of the said person, on the basis of the adequate and appropriate documents. Thus, he would say that submission of relevant documents by the petitioner, as sought for by the said respondent vide the impugned order dated December 22, 2017, may enable the said respondent to proceed further duly in this case. So far as the challenge as to the authority and power of the respondent, as raised by the petitioner in this case, according to Dr. Patra the same is baseless and not maintainable. He would seek that the present writ petition be dismissed. 8. According to rule 2(m)(iii) of the West Bengal School Service Commission (Selection of Persons for Appointment to the Post of Non-Teaching Staff) Rules, 2009, (hereinafter referred to as the “Rules of 2009”), a vacancy caused by death of a non-teaching staff, is a vacancy created as regards the said post, within the meaning of the said Rules of 2009. The RSSC would be the competent authority for recommendation of candidates in death-in-harness catagories, in terms of rule 20 of the said Rules of 2009 , which provision is extracted below: “20. The RSSC would be the competent authority for recommendation of candidates in death-in-harness catagories, in terms of rule 20 of the said Rules of 2009 , which provision is extracted below: “20. Manner of selection on compassionate ground: (1) Notwithstanding anything contained in these rules, the concerned District Inspector of Schools (Secondary Education) shall maintain a roster of the candidates seeking appointment on compassionate ground as per the procedure laid down in Schedule V and forward the names to the respective Regional Commission in the manner as mentioned in that Schedule from time to time for recommendation of his name against suitable post of Clerk or Group D staff, as the case may be. (2) The Regional Commission shall thereafter prepare a panel for the candidates to be appointed on compassionate ground – (a) in the post of Clerk on the basis of aggregate of marks obtained in the Madhyamik Examination or its equivalent; (b) in the post of Group D on the basis of date of receipt of the application by the respective District Inspector of Schools (Secondary Education). (3) the panel shall be prepared on medium-wise, category-wise and gender- wise as per the procedure laid down in Schedule V and recommend the name of a suitable candidate for appointment on compassionate ground to the concerned School through district-wise counselling, on the basis of availability of district- wise vacancy, medium-wise, category-wise and gender-wise and a copy of the letter recommending the name shall be sent to the candidate as well as the School, where the vacancy exists, through Registered Post or Speed Post with Acknowledgement Due: Provided that such vacancies for the appointment on compassionate ground shall not include the vacancies of a particular Regional Level Selection Test and such recommendation of the candidates in on compassionate ground by the Regional Commission shall take place after publication of a panel of a particular Regional Level Selection Test and before advertisement of next Regional Level Selection Test for the post of non-teaching staff. (3) On receipt of the recommendation under sub-rule (2), the concerned School authority shall issue the letter of appointment to the candidate by Registered Post with Acknowledgement Due and upon receipt of appointment letter from the concerned School authority the candidate shall join the post within stipulated period as mentioned in the appointment letter. (3) On receipt of the recommendation under sub-rule (2), the concerned School authority shall issue the letter of appointment to the candidate by Registered Post with Acknowledgement Due and upon receipt of appointment letter from the concerned School authority the candidate shall join the post within stipulated period as mentioned in the appointment letter. (4) The conditions laid down in sub-rules (1), (2), (4), (5), (6) and (7) of rule 18 shall be applicable mutatis mutandis in the case of recommendation of candidates for appointment on compassionate ground for the post of Clerk or Group D Staff, as the case may be. (5) For removal of any doubt it is hereby declared that the employment on compassionate ground is not confined to the School in which deceased or incapacitated Teacher or non-teaching staff had been working and it shall be given anywhere within a district or region, as the case may be, depending upon availability of a suitable vacancy meant for the purpose of appointment on compassionate ground.” (9) Let the sub-rules (1), (2), (4), (5), (6) and (7) of rule 18 of the Rules of 2009 also be quoted herein below: “18. Recommendation of candidates for appointment to post of non-teaching staff: (1) The Regional Commission shall hold counselling with a view to recommending the name of the candidate from the panel for appointment against each vacancy in the manner mentioned in Schedule IV. (2) On the basis of the counselling the Regional Commission shall recommend the name of only one candidate against each vacancy depending on his position in the panel and a copy of the letter recommending the name shall be sent through Speed Post or Registered Post with Acknowledgement Due to the candidate as well as to the concerned authority of the School, where the particular vacancy exists. (3) ******* (4) The concerned School authority shall, on the basis of the recommendation of the Regional Commission, issue the letter of appointment to the candidate by Registered Post with Acknowledgement Due and upon receipt of appointment letter from the concerned School authority the candidate shall join the post within the stipulated period as mentioned in the appointment letter. (3) ******* (4) The concerned School authority shall, on the basis of the recommendation of the Regional Commission, issue the letter of appointment to the candidate by Registered Post with Acknowledgement Due and upon receipt of appointment letter from the concerned School authority the candidate shall join the post within the stipulated period as mentioned in the appointment letter. (5) If- (a) a candidate refuses to exercise option for a post for which he is a candidate in the counselling for the post of non-teaching staff, or (b) the Regional Commission gets information from any school, or from the District Inspector of Schools (Secondary Education), or otherwise, that a candidate recommended for appointment has not accepted the offer of appointment within the stipulated period, or (c) such a candidate refuses to accept appointment, or (d) on further scrutiny by the Commission it appears that the candidate has misrepresented facts relating to his selection; the Regional Commission may do away with his name from the panel and recommend the name of a candidate from the waiting list strictly in order of merit within the validity period of the panel and waiting list. (6) If a candidate, whose name has been recommended by the Regional Commission for appointment, cannot be appointed to the vacancy for which he was recommended for the reason that such vacancy ceased to exist, the Managing Committee, by whatever name it is called, or the Ad-hoc Committee or the Administrator or the concerned District Inspector of Schools (Secondary Education), as the case may be, shall send an information in this regard to the concerned Regional Commission and such Regional Commission may, on receipt of such information, recommend his name for any other appropriate vacancy in the post on non-teaching staff. (7) If the Managing Committee, by whatever name it is called, or Ad-hoc Committee or the Administrator, if any, of any School does not appoint the candidate on the recommendation of Regional Commission having jurisdiction, the Regional Commission shall take shall in accordance with the section 9A of the Act and the Regional Commission shall not recommend any other name to the post of any non- teaching staff in that School till the clearance from the State Government with respect to that post shall be obtained.” 10. Hence, duty is bestowed upon the DI to maintain the roster as per the prescribed procedure and forward the names to the Regional Commission from time to time, for recommendation against suitable post of clerk or group-D staff. According to rule 20(2) of the Rules of 2009, the Regional Commission shall prepare the panel and recommend the name of a suitable candidate. 11. A judgment of the Hon'ble Division Bench of this Court reported in The Secretary, West Bengal Regional School Service Commission (Southern Region) vs. Debapriya Bose & Others, (2007) 2 Cal. L.J. 483 , may be mentioned in this regard. Though on different factual background, the Court has held the following principles, which are applicable in the present case too : “11. ***** the School Service Commission never was vested with any power and jurisdiction to identify the legality and validity of registration of the names of the candidates under death-in-harness category. The action of the School Service Commission starts as soon as the name is referred to by the District Inspector of Schools concerned from such death-in-harness category. Hence, we are of the view that the School Service Commission only got a limited right to adjudicate the respective merits of the candidates on the basis of academic qualification only and statute did not vest the Regional School Service Commission with any power beyond the statutory power vested under the law namely, the consideration of suitability of the candidates in respect of the merit is concerned. 12. So far as the present petitioner is concerned, his candidature for appointment as against the death-in harness category has been approved by the DI, in its order dated April 24, 2017 . The DI, in his order as stated above, has taken into consideration submissions of parties, information and records. The findings of the DI, is as under: “It appears that application praying for appointment on compassionate ground by the ward of the deceased teacher was submitted to the District Inspector of Schools (S.E) within two years from the date of death of the concerned teacher. The petitioner was above 21 years of age (his date of birth is 06/02/1987) on 14/11/2009 & he passed B. Sc (Hons) in Chemistry in 2008. The petitioner was above 21 years of age (his date of birth is 06/02/1987) on 14/11/2009 & he passed B. Sc (Hons) in Chemistry in 2008. The mother of the petitioner Tapa Bhattacharyya prayed & also affirmed on 08/01/2008 to the effect that she had no objection if her son, Gourab Bhatacharyya would get an appointment on compassionate ground. It was also certified by the Chairman, Basirhat Municipality on 26/07/08 that the family of the deceased teacher Ranajit Bhattacharyya had no other source of income except pensioner benefits. Hence the petitioner is found to pocess the requisite minimum educational & other qualification for appointment in the post of a clerk or non-teaching staff in a secondary school on the date on which he submitted application praying appointment on compassionate ground. Considering the facts & records as noted above it is decided that the prayer of the petitioner which was forwarded by the school authority to the District Inspector of Schools (S.E), North 24 Parganas on 14/11/2009 be forwarded from this end to the Regional School Service Commission (South Eastern Region), West Bengal for consideration and taking further necessary action.” 13. Hence, the suitability of the writ petitioner for grant of compassionate appointment has already been decided by the DI, in its order dated April 24, 2017, after consideration of records and submissions and in his favour. Hence to call the said Authority again to go into its own decision, without any reference to any supervening reasons, would not only be a redundant exercise but also that is not to be maintainable in the eye of law. On a bare reading of the provisions of rule 20 (2) of the Rules of 2009, it appears that the RSSC has only been vested with the limited power to consider the merits of the respective candidates for their empanelment on the basis of their marks in Madhyamik Examination (in case for appointment as a clerk) and on the basis of date of receipt of the application (in case for appointment as a Group-D staff) and thereby to recommend the names from the panel. However, in the impugned order dated December 22 of 2017, the respondent RSSC has not made any ground as regards the merits of the petitioner, in terms of his qualification, on the basis of the evaluation of marks. 14. However, in the impugned order dated December 22 of 2017, the respondent RSSC has not made any ground as regards the merits of the petitioner, in terms of his qualification, on the basis of the evaluation of marks. 14. There is no doubt in the legal proposition that when a body is vested with the power of doing something, there is an inherent incidental power of it to refrain from doing the same and/or to further taking any steps on the matters which are incidental or consequential action thereof. The decisive factor of identifying merit of a candidate on the basis of the factual domain thereof, namely, academic qualification or date of the application, as the case may be, since has been vested upon the RSSC, as a consequential or incidental power, the same has a right to identify whether the academic qualification of the petitioner or his application was genuine or not and in the event of any fraud detected, surely the RSSC has the power to raise questions and refrain to exercise its duties under the statute. However, the RSSC is not empowered to probe into the jurisdictional and the relevant factual matrix which have been the decisive factors before the fact-finding authority, to identify the eligibility of the candidate to be appointed on the compassionate ground. If the same is considered to be an ancillary power of the RSSC, then there would not be escaping a situation, when the RSSC would sit as an appellate authority, over the decision of the DI, which the statute has never intended. Let it be mentioned that the order of the DI dated April 24, 2017 and July 26, 2017, are not to be considered as the “proposal” for appointment of the writ petitioner on compassionate ground – as it is mentioned in the subject matter of the impugned letter, but the decision of the fact-finding authority, regarding the petitioners eligibility for such appointment. 15. Also, that it is settled principle of law that the statutory body is entitled to perform only on those acts as are prescribed under a statute, whereas an individual can do excepting as are prohibited by the law. A statutory body is bound to perform those actions as are stipulated under a statute. 15. Also, that it is settled principle of law that the statutory body is entitled to perform only on those acts as are prescribed under a statute, whereas an individual can do excepting as are prohibited by the law. A statutory body is bound to perform those actions as are stipulated under a statute. In this regard reliance may be placed on the judgments reported in Moniruddin Bepari vs The Chairman, Municipal Commission, Dacca,  40 CWN 17 and Bhabnagar University vs Palitana Sugar Mills (P) Ltd. (2003) 2 SCC 111 . 16. It appears that the respondent RSSC has referred the matter back to the DI, raising queries as regards "heirship certificate", "no objection certificate", "income certificate", "declaration by the petitioner for maintaining the family", "financial statement to determine the financial hardship", and "lack of documents as regards the technical knowledge of the petitioner". None of these would come within the purview of the provisions under the rule 20(2) of the Rules of 2009, falling within the consequential and incidental power of the RSSC, not to recommend the writ petitioner for appointment. Hence, vide the impugned letter dated December 22 of 2017, the respondent RSSC has intended to exercise such power which is not vested in it by dint of the statute of which it is a creature and has acted beyond its power. Therefore, such an action of the said respondent is a nullity being without jurisdiction and would not be sustainable in the eye of law. 17. On the discussions made above, the present writ petition should succeed. 18. Hence, the present writ petition being WPA No. 18822 of 2018 is allowed with the following directions: (i) The respondent RSSC shall immediately recommend the petitioner's name for appointment “in a post of a clerk or non-teaching staff” on compassionate ground as against a suitable vacancy in a school, in terms of the prescribed Rules; (ii) The respondent RSSC shall take all consequent steps, as per law, upon recommending the petitioner's name for appointment in a school so that school authority may issue the appointment letter to the petitioner immediately thereafter, in accordance with law. 19. Urgent certified website copy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.