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2025 DAILYLAW 3226 (CAL)

Sunil Kumar Ghosh v. State Bank of India

2025-03-19

Harish Tandon, Om Narayan Rai

body2025
JUDGMENT : Om Narayan Rai, J. 1.A piquant situation has arisen on the interpretation of the various provisions contained in the West Bengal Schools (Recruitment of Non-Teaching Staff) Rules, 2005 (in short 'said Rules') enacted by virtue of a notification dated 26 th December 2005. 2. A prelude to the litigation is required to be recapitulated before we embark the journey on the peripheral of the interpretation of the various provisions of the said Rules. Indubitably, the selection process was initiated in the year 2007-2008 for appointment of the non-teaching employees in the said school. Several litigations came to be filed at the behest of the appellant and diverse orders were passed from time to time. Ultimately, the last writ petition, which is dismissed by the impugned order, was taken out to quash and set aside the order of the District Inspector of Schools (SE), Nadia dated 20 th December 2011 whereby and whereunder the proposal for approval of the panel was rejected primarily on the ground that the Selection Committee constituted for initiation of the recruitment process to fill up the post of non-teaching staff is not in conformity with Rule 6(1)(b) of the said Rules. The said order was assailed in the said writ petition and the Single Bench dismissed the writ petition with a categorical finding that there is a fundamental flaw in constituting a Selection Committee under the said Rules, which is incurable and, therefore, such Selection Committee is non est in the eye of law. 3. We invited the Counsels to address on the nuances of those provisions in pursuit of deciding as to whether such provisions are inflexible to the extent that the decision of the District Inspector of Schools (SE), Nadia and the Single Bench does not warrant any interference. 4. It would be apposite to quote the relevant provisions before we proceed to interpret the applicability thereof in a given situation. “ 6. Selection Committee .-(1)(a) ………. 4. It would be apposite to quote the relevant provisions before we proceed to interpret the applicability thereof in a given situation. “ 6. Selection Committee .-(1)(a) ………. (b) for the selection of a Clerk or a Group-D staff in a school, the selection committee shall consist of the following :- (i) Headmaster, (ii) Secretary of the school authority: Provided that if the Headmaster and the Secretary of the school authority are one and same person, the President of the school authority shall be the member of the selection committee: Provided further that nothing in the last preceding provision shall be applicable in case there is an Administrator of the school. (iii) Headmaster of a school in the same sub-division as the school for which the Clerk of the Group-D staff is to be selected is situated, and (iv) a nominee of the Panchayat Samity or Municipal Corporation or Municipality or Notified Area Authority as the case may be: Provided that no person who is a staff of a school shall be nominated as the nominee. Explanation: For the purposes of this sub-rule, “recognised” means recognised or established by or under law. **********************************************************************( (5)(a) No person who is related, by blood, marriage or adoption, to a candidate to be interviewed by a selection committee shall act as a member of the selection committee. (b) the selection committee shall along with every panel, submit to the District Inspector of Schools a certificate indicating the actual position to that effect.” 5. On manifest reading of the aforesaid provisions, we do not find any incongruity in understanding the constitution of the Selection Committee, which comprised of Headmaster, Secretary of the School Authority, Headmaster of a school in the same sub-division of a school for which the selection process is initiated, and nominee of the Panchayat Samity or Municipal Corporation or Municipality or Notify Area Authority, as the case may be. 6. The first proviso to Rule 5(1)(b)(ii) postulates that in the event the Headmaster and the Secretary of the School are one and the same person, the President of the School Authority shall be the Member of the Selection Committee. 6. The first proviso to Rule 5(1)(b)(ii) postulates that in the event the Headmaster and the Secretary of the School are one and the same person, the President of the School Authority shall be the Member of the Selection Committee. The reason is obvious that if the Secretary and the Headmaster is the same person, he cannot act in such dual capacity as a constituent of the Selection Committee and, therefore, the President of the Managing Committee would replace the Secretary, which is evident from the insertion of the said proviso in clause (ii) thereof. The position becomes difficult by incorporation of Sub-rule (5) of Rule 6 of the said Rules, wherein an absolute embargo is created that no person, who is related by blood, marriage or adoption to a candidate to be interviewed by the Selection Committee, shall act as a Member of the Selection Committee. For the purpose of clarity in this regard, it is undisputed that one of the candidates to be interviewed by the Selection Committee was related to the Secretary of the School Authority and the said Secretary, in its fairness, recused to be a part of Selection Committee. 7. A Selection Committee was constituted by incorporating the President of the School Authority with a view to complete the quorum contemplated in the said Rules, which is held by the authority as well as the Single Bench to be an incurable flaw/defect and, therefore, the entire process is required to be canceled and/or set aside. 8. The seminal point involved in the instant appeal is whether the inclusion of the President of the School Authority into the Selection Committee in such situation would render the constitution illegal, bad and in gross contravention to the aforesaid provisions. We do not find any absolute embargo in including the President of the School Authority as constituent of the Selection Committee, but in view of the proviso as aforesaid, such inclusion can only be made in a situation where the Secretary and the Headmaster is one and the same person. Both the authorities as well as the Single Bench were of the view that once the eventuality is expressly provided in the statute, it ruled out any other eventualities and, therefore, the inclusion of the President of the School Authority in a given situation is per se illegal. 9. Both the authorities as well as the Single Bench were of the view that once the eventuality is expressly provided in the statute, it ruled out any other eventualities and, therefore, the inclusion of the President of the School Authority in a given situation is per se illegal. 9. The Single Bench has proceeded to interpret the said provision by adopting a tool of literal interpretation, as no flexibility can be adhered to, which led the aforesaid seminal point to be considered because of competing circumstances not contemplated in the proviso nor conceived of at the time of promulgating the Rules. The synergy between the said proviso and an absolute embargo created in Sub-rule (5) of Rule 6 is required for the purpose of making the provision workable and not to render the same otiose. 10. It is a cardinal principle of Rule of interpretation that the Court must interpret the statutory provisions in a manner, which would make it workable unless the same appears to be ambiguous and incapable to reconcile. The object and purpose underlying the incorporation of statutory Rules is to be kept in mind while interpreting the various provisions, which apparently renders the provision unworkable and there is no fetter on the part of the Court in applying the tool of interpretation in this regard. Reliance in this regard can be placed upon the judgment rendered by the Apex Court in MSR Leathers vs. S. Palaniappan and another , reported in (2013) 1 SCC 177 in the following: “It is trite that the object underlying Section 138 of the Act is to promote and inculcate faith in the efficacy of banking system and its operations, giving credibility to negotiable instruments in business transactions and to create an atmosphere of faith and reliance by discouraging people from dishonouring their commitments which are implicit when they pay their dues through cheques. The provision was intended to punish those unscrupulous persons who issued cheques for discharging their liabilities without really intending to honour the promise that goes with the drawing u p of such a negotiable instrument. It was intended to enhance the acceptability of cheques in settlement of liabilities by making the drawer liable for penalties in case the cheque was dishonoured and to safeguard and prevent harassment of honest drawers. (see Mosaraf Hossain khan v. Bhagheeratha Eng. It was intended to enhance the acceptability of cheques in settlement of liabilities by making the drawer liable for penalties in case the cheque was dishonoured and to safeguard and prevent harassment of honest drawers. (see Mosaraf Hossain khan v. Bhagheeratha Eng. Ltd, C.C. Alavi Haji v, Palapetty Muhammed and and Demodar S, Prabhu v. Sayed Babalal H., SCC pp 665-66, para-3) Having said that, we must add that one of the salutary principles of interpretation of statutes is to adopt an interpretation which promotes and advances the object sought to be achieved by the legislation, in preference to an interpretation which defeats such objects. This Court has in a long line of decisions recognized purposive interpretation as a sound principle for the courts to adopt while interpreting statutory provisions. We may only refer to the decision of this Court in new India Sugar Mills Ltd. v. CST, wherein this Court observed: (AIR p 1213, para 8) “8. …..It is a recognized rule of interpretation of statutes that the expressions used therein should ordinarily be understood in a sense in whgich they best harmonise with the object of the statute, and which effectuate the object of the legislature. If an expression is susceptible of a narrow or technical meaning, as well as a popular meaning the court would be justified in assuming that the legislature used the expression in the sense which would carry out its object and reject that which renders the exercise of its power invalid”.” 11. The Rule creates an embargo on a person to be a part of the Selection Committee in the event the candidate to be interviewed is related by blood, marriage or adoption. The legislatures were conscious that a candidate may be related in such manner to any of the Members of the Selection Committee and put further embargo on the said person to be a part of the Selection Committee. In absence of any express provision replacing and/or substituting such person, as fetter is put upon him to be a part of the Selection Committee, whether the President can be taken as a Member of the Selection Committee giving a wider meaning of the said proviso, which evidently indicates its applicability in a particular situation? 12. In absence of any express provision replacing and/or substituting such person, as fetter is put upon him to be a part of the Selection Committee, whether the President can be taken as a Member of the Selection Committee giving a wider meaning of the said proviso, which evidently indicates its applicability in a particular situation? 12. The adoption of the literal interpretation as held by the authority as well as the Single Bench would create an anomalous situation in constituting the Selection Committee in the event any of the candidates, who is related with blood, marriage or adoption to such Member contemplated under Rule 6(1)(b) thereof. The right to offer the candidature in public employment is a fundamental right, which is recognized under Article 16 of the Constitution of India. The strict interpretation of constitution of a Selection Committee would deprive the candidate to offer his candidature despite the conferment of the fundamental rights under Part-III of the Constitution of India so long the said person, who ought to be the Member of the Selection Committee, remained in office. The moment the literal interpretation is pitted against the purposive interpretation, the Court should avoid a construction, which would reduce the legislation to futility and must embosses the broader interpretation with an avowed object of bringing an effective result, which the legislature authorities conceived at the time of its promulgation. The support can be lend to a judgment of the Apex Court in case of Commissioner of Income Tax vs. Hindustan Bulk Carriers reported in (2003) 3 SCC 57 in the following: “16. The courts will have to reject that construction which will defeat the plain intention of the legislature even though there may be some inexactitude in the language used. (See Salmon v. Duncombe AC at p. 634, Curtis vs. Stovin referred to in S. Teja Singh case.) 17. If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility, and should rather accept the bolder construction, based on the view that Parliament would legislate only for the purpose of bringing about an effective result. If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility, and should rather accept the bolder construction, based on the view that Parliament would legislate only for the purpose of bringing about an effective result. (See Nokes v. Doncaster Amalgamated Collieries referred to in Pye v. Minister for Lands for NSW.) The principles indicated in the said cases were reiterated by this Court in Mohan Kumar Singhania v. Union of India.” 13. It is a cardinal principle of interpretation that the Court should ascertain the legislative intention not only from the language used in a particular provision of the statute but upon reading the statute in its entirety. The Court must compare the clauses with the others being a part of the same statute in order to avoid any inconsistency and/or repugnancy either within the same clause or between the different clauses of the statutory enactment. Any strict view, which would lead to an absurdity or rendering non-workability of the Act itself should be eschewed and the Court must promote such interpretation, which would render the different provisions of the statute to operate in tandem with each other. 14. The way the authority and the Single Bench have interpreted the provisions relating to the constitution of the Selection Committee, in our view, would somewhat makes the provision unworkable in a situation, which has arisen in the present case. 14. The way the authority and the Single Bench have interpreted the provisions relating to the constitution of the Selection Committee, in our view, would somewhat makes the provision unworkable in a situation, which has arisen in the present case. There are three possible views, which this Court conceived during the submissions advanced by the respective Counsels; firstly, the proviso inserted to Clause 6(5)(b)(ii) of the said Rules has to be read in a more broader sense to imbibe the President as a part of the Selection Committee for the simple reason that there is no bar having created in bringing the President as a part of the Selection Committee; Secondly, the embargo created under Sub-rule (5) of Rule 6 can be interpreted in just and reasonable manner that the quorum of four Members formiung the Selection Committee is not mandatory and if three of such Members are included and a decision is taken, it cannot be said to be perverse or illegal and, thirdly, if the majority Members of the Selection Committee have taken a decision and prepared the panel for approval to the authority, the same shall be within the purview of the aforesaid provision. 15. Without adieu to the first proposition as sought to be projected before us, we hasten to add that the interpretation of a proviso to a provision is always regarded to somewhat control the enabling provision and, therefore, a broader interpretation should be given to the languages used therein and the stricter view in this regard is to be avoided. Though the said proviso is applicable to a situation where the Secretary and the Headmaster is one and the same person but it does not in absolute term rule out the inclusion of the President as a Member of the Selection Committee. The moment the legislatures have not put an absolute fetter on the President to be a part of the Selection Committee, the broader interpretation is to be adopted to interpret such provision in other given situation in view of a complete embargo having created in a subsequent sub-rule incorporated within the same Rule. 16. The rule of interpretation is not rigid but flexible on the broader aspect of the object and the purpose behind the incorporation thereof and to make all the provisions to operate conjointly to achieve the destination for which it is so enacted. 16. The rule of interpretation is not rigid but flexible on the broader aspect of the object and the purpose behind the incorporation thereof and to make all the provisions to operate conjointly to achieve the destination for which it is so enacted. Though the said proviso is only applicable in a situation given therein, but the absolute bar, which is created in sub-rule (5), would somewhat render the applicability thereof to a situation, which has arisen in the instant case and, therefore, we do not agree with the view of the Single Bench in adopting the literal interpretation. It would be apposite to refer the observations of the Apex Court in N. Kannadasan vs. Ajoy Khose and others , reported in (2009) 7 SCC 1 , wherein it is held: “Construction of a statute, as is well known, must sub-pserve the tests of justice and reason. It is a well-settled principle of law that in a given case with a view to give complete and effective meaning to a statutory provision, some words can be read into; some words can be subtracted. Provisions of a statute can be read down (although sparingly and rarely).” 17. There may be a possibility of a second and third limb of interpretation, as indicated above, which, in our opinion, is intertwined with each other. The moment sub-rule (5) of Rule 6 creates an absolute bar in a person to be a Member of the Selection Committee as one or more candidates are related by blood, marriage or adoption, the notion of “coram non judice” is diluted to some extent and the other Members of the Selection Committee may continue to hold the selection process and bring the desired result as envisaged in the said Rules. 18. The conjoint reading of the provisions as aforesaid leaves no ambiguity in our mind that neither the inclusion of the President as a Member of the Selection Committee nor the exclusion of one of the Members of the Selection Committee would make the Selection Committee invalid and, therefore, the decision taken by the Selection Committee cannot be said to be in firm and/or illegal. 19. It would be pertinent to recapitulate the enlightening observation of the Constitution Bench decision of the Apex Court rendered in case of Tej Prakash Pathak & Ors. Vs. Rajasthan High Court & Ors. 19. It would be pertinent to recapitulate the enlightening observation of the Constitution Bench decision of the Apex Court rendered in case of Tej Prakash Pathak & Ors. Vs. Rajasthan High Court & Ors. , reported in (2025) 2 SCC 1 wherein it is held: “Recruiting bodies, subject to the extent Rules, may devise appropriate procedure for bringing the recruitment process to its logical end provided the procedure so adopted is transparent, non-discriminatory/non-arbitrary and has a rational nexus to the object sought to be achieved.” 20. It brings us to an interesting destination when our attention is drawn to a Division Bench judgment of this Court in case of The District Inspector of Schools, Murshidabad & Ors. vs. Samsul Huda and Ors. , reported in 1987 (2) CLJ 144 where somewhat identical situation arose in constitution of the Selection Committee, which would not be in conformity with the Rules. It is held by the Division Bench that when 50 percent of the Selection Committee were present and taken a decision, such decision cannot be impinged on the ground of “coram non judice” in the following words: “In our view, the very purpose of the Rule will be frustrated if such selection is not made by at least 50% of the members of selection committee. In our view, although such rules may not be mandatory in nature, the very purpose of the recommendatory rules will be frustrated if such selection is not made by at least 50% of the members of the selection committee thereby putting collective wisdom of the members of the Managing Committee. There may be occasions when one or two of the members of the selection committee, for some reason or other, despite notice being served on such members may fail to appear on the date of the interview, if taken by 50% or more members of the Selection Committee, should not be held invalid. Otherwise, the selection will not only be delayed, but it may cause hardship to the candidates appearing in the interview from outside stations. But if the selection committee is not represented even by the 50% of the members, we do not think that such selection had taken place in the true spirit of the rules in question. Otherwise, the selection will not only be delayed, but it may cause hardship to the candidates appearing in the interview from outside stations. But if the selection committee is not represented even by the 50% of the members, we do not think that such selection had taken place in the true spirit of the rules in question. In the instant case, unfortunately, out of five members only two members were present in the selection committee and before the interview had taken place it was made known that the other three members would not be coming. In the aforesaid circumstances, the interviews ought to have been postponed to that such interview could have been held in the presence of more members of the selection committee representing at least 50%.” 21. It takes us to an interesting point raised by Mr. Tapan Kumar Mukherjee, Ld. AGP, that since the selection process was initiated in the year 2009 by calling the candidates for interview, it shall be governed by 2009 Rules and not by the Rules of 2005, which was under scrutiny, both before the authority, the Single Bench and in the instant appeal. 22. Though the aforesaid argument does not deserve any scrutiny, far to speak of, minute scrutiny yet once the point is taken it is an ardent duty of the Court to deal with the same. The said point does not hold water for the simple reason that in earlier writ petition being WP 20026(W) of 2009, decided on 11th December 2009, the said plea was taken by the State respondents. It was contended that since the interview was held on 16th July 2009, the Rules of 2005, as aforesaid, has no manner of applicability and the entire selection of the teaching and non-teaching staff should be done on the recommendation of the School Service Commission constituted under the West Bengal School Service Commission Act, 1997. Such plea was repelled and/or discarded by the Single Bench with a categorical finding that selection process was initiated and/or commenced in 2007-2008 and the prior permission to initiate a selection process was also granted to the school in the year 2007. 23. Apropos the aforesaid observation, the Single Bench held that the Rules prevailing at the time of commencement of the recruitment process will govern the appointment. Such order was not assailed before the Appellate Court and, therefore, has reached finality. 23. Apropos the aforesaid observation, the Single Bench held that the Rules prevailing at the time of commencement of the recruitment process will govern the appointment. Such order was not assailed before the Appellate Court and, therefore, has reached finality. We, therefore, do not find any substance in the stand of Mr. Mukherjee in this regard and the same is hereby rejected. 24. So far as the call letters of the second interview is concerned, we find that there has been a substantial compliance in this regard and does not offend any specific provision of the Rules and, therefore, the finding of the Trial Court that it is inflexible and/or incurable does not appear to be a correct view. 25. The judgment of the Division Bench of this Court in somewhat similar circumstances delivered in case of Asok Kumar Malik vs. State of West Bengal & Ors. , reported in (2013) 1 CHN 538 , can be gainfully applied. The Rule, which was the subject matter of interpretation in the said case, clearly postulates that the candidate shall be called for interview by registered letter with acknowledgement due. The Division Bench was of the view that the word 'shall' is a word of slippery semantic and is interchangeable depending upon the facts and situation. It is further held that the processual law should not be used as tyrant but subservient in aid of a justice. Instead of registered post with acknowledgement due, the call letters were sent by certificate of posting and the same was interpreted in a more pragmatic manner and the inflexibility Rule was ruled out. It was further observed that though it does not stand as a bar yet the candidate who could not receive the call letter for interview may lawfully raise such grievance to seek an opportunity but not that the entire selection process is defective and liable to be struck down. 26. In view of the discussions made herein above, we do not concur with the decision of the Single Bench in adopting the strict literal interpretation. The impugned judgment and order is hereby set aside. As a consequence whereof, the decision of the District Inspector of Schools (SE), Nadia is also quashed and set aside. 27. 26. In view of the discussions made herein above, we do not concur with the decision of the Single Bench in adopting the strict literal interpretation. The impugned judgment and order is hereby set aside. As a consequence whereof, the decision of the District Inspector of Schools (SE), Nadia is also quashed and set aside. 27. The District Inspector of Schools (SE), Nadia is directed to take a decision on the approval of the panel within four weeks from the date of communication of this order in the light of the observations made herein above. 28. The appeal and the connected application being CAN 1 of 2018 (Old No. CAN 1438 of 2018) are disposed of. 29. There shall, however, be no order as to costs.