JUDGMENT
Soumitra Pal, J.
1. Instant appeal arises out of an order dated 4.10.1999 passed by the learned Trial Judge dismissing the writ petition.
2. The said order is as set out hereunder :
“In the writ petition the panel prepared by the Managing Committee of the School in question for the purpose of appointment in the post of Assistant Teacher in language group has been challenged. The learned Advocates appearing on behalf of the respondents submitted that the panel has long been approved by the concerned D.I. of Schools and the concerned candidates were also appointed pursuant to such approval and again such appointment has also been approved by the concerned respondent authority.
3. In such circumstances, this writ petition has become infructuous. The same is accordingly dismissed”.
4. The reliefs as prayed for by the appellant/petitioner in the writ petition which are relevant are as follows :
(a) To issue a Writ in the nature of Mandamus commanding the respondents to forbear from giving effect to the panel prepared by the Selection Committee of Chandmari Janakalyan High School, Police Station Kalyani, District Nadia submitted in the office of the District Inspector of Schools, Secondary Education, Nadia on September 30, 1997 for which interview was held on July 30, 1997 and the appointment issued in favour of the respondent No. 6 by the Managing Committee of Chandmari Janakalyan High School, Police Station Kalyani, District Nadia and the approval to the panel given by the District Inspector of Schools, Secondary Education, Nadia to the impugned panel submitted in the office of the District Inspector of Schools, Secondary Education, Nadia by the Headmaster of the School on September 30, 1997 and the appointment given in favour of the respondent No. 6 by the Managing Committee of the School on the basis of the impugned panel and the approval given by the office of the District Inspector of Schools, Secondary Education, Nadia on the said panel and all orders and/or proceedings made and/or adopted in connection therewith.
(b) To issue a Writ in the nature of Mandamus commanding the Director of School Education, West Bengal to hold fresh interview in between the petitioner and the respondent No. 6 after calling for the individual score sheets of the members of the Selection Committee for which interview was held by the outgoing Managing Committee of the School on July 30, 1997 and the panel prepared by the members of the Selection Committee and the decision of the Managing Committee of the School accepting the panel and the order of the District Inspector of Schools, Secondary Education, Nadia approving the panel and the appointment given in favour of the respondent No. 6 by the Managing Committee of the School and all orders and/or proceedings made and/or adopted in connection therewith and hold fresh interview in between the petitioner and the respondent No. 6 and direct the Director of School Education, West Bengal to prepare the panel and issue appointment on the basis of the fresh panel.
5. Mr. Roy, learned Advocate for the appellant assailed the said judgment on the ground, first that the writ petition should have been heard on the merits. Secondly, referring to the order dated 15.6.1998 issued by the District Inspector of Schools (S.E.) at page 85 of the paper book, it was contended that the interview for the post of the Assistant Teacher in Bengali, preparation of the panel by the Selection Committee, the approval by the Managing Committee were done hurriedly and was on the same date that is 30.7.1997. The panel was submitted to the office of the D.I. of Schools (S.E.), Nadia on 30.9.1997 which was in violation of the Clause 6(n) of the new Recruitment Rules. The relevant clause of the said Recruitment Rules is set out hereunder :
Clause – 6(n):
The Selection Committee after preparing the panel on the date of interview shall submit the same to the Managing Committee/Ad hoc Committee/ Administrator. On being examined by the Managing Committee/Ad hoc Committee/Administrator the panel shall be forwarded to the D.I.S., (S.E.) for approval with all relevant papers within 15 days from the date of interview. D.I.S. (S.E.) shall convey his decision within one month from the date of the receipt of the panel.
6. Mr. Roy submitted that it was apparent from Clause 6(n) that the preparation, submission and approval of the panel were in violation of the provisions of the Recruitment Rules which are mandatory in nature and the writ petition should have been allowed.
7. The learned Counsel appearing on behalf of the respondent authority submitted that the clause stipulating forwarding of the panel to the D.I. of Schools (S.E.) for approval with all relevant papers within 15 days from the date of interview as contained in Clause 6(n) is directory and not mandatory in nature, since no penal consequences have been attached for deviation of the said rules. Reliance was placed on the judgment of the Apex Court in the case of State of Punjab v. Balbir Singh, . Emphasis was laid on paragraph 17 of the said judgment which is set out hereunder :
“As discussed above, in considering whether a provision in a statute is mandatory, and the effect of non-compliance of the same, the Courts should keep in mind the real intention of the legislature keeping in view the whole scope of the Act and the particular provisions to be construed in the context.”
8. Reliance was also placed on paragraph 24 of the judgment which is as under :
“Sections 52 and 57 come into operation after the arrest and seizure under the Act. Somewhat similar provisions are also there in the Cr.P.C. If there is any violation of these provisions, then the Court has to examine the effect of the same. In that context while determining whether the provisions of the Act to be followed after the arrest or search are directory or mandatory, it will have to be kept in mind that the provisions of a statute creating public duties are generally speaking directory. The provisions of these two sections contain certain procedural instructions for strict compliance by the officers. But if there is no strict compliance of any of these instructions that by itself cannot render the acts done by these officers null and void and at the most it may affect the probative value of the evidence regarding arrest or search and in some cases it may invalidate such arrest or search. But such violation by itself does not invalidate the trial or the conviction if otherwise there is sufficient material. Therefore, it has to be shown that such non-compliance has caused prejudice and resulted in failure of justice. The officers, however, cannot totally ignore these provisions and if there is no proper explanation for non-compliance or where the officers totally ignore the provisions then that will definitely have an adverse effect on the prosecution case and the Courts have to appreciate the evidence and the merits of the case bearing these aspects in view. However, a mere non-compliance or failure to strictly comply by itself will not vitiate the prosecution.”
9. Further the learned Advocate for the respondent relied on a judgment of the Division Bench of this High Court in the case of Ashok Kumar Jana v. District Inspector of Schools and Ors., reported in 1995(11) CHN 1.
10. It was submitted on behalf of the respondents that mere non-compliance or failure to strictly comply with the provisions of the Clause (supra) shall not vitiate the selection process. The learned Advocate for the respondent further contended that the selection process–preparation, forwarding and approval of the period of the panel had not been assailed by the appellant in the writ petition. Further the order dated 15.6.1998 of the District Inspector of Schools (S.E.), Nadia was not questioned.
11. The learned Advocate for the respondents submitted that the said prayers as prayed for in the writ petition are not available since the panel in question was duly approved by the D.I. of Schools (S.E.), Nadia on 20.10.1997 and the respondent No. 6, the first man of the approved panel joined the School on 27.11.1997. It was accordingly submitted that the reliefs as prayed for in the writ petition are not available and no case is made out for interference with the judgment under appeal.
12. We find there is considerable force in the arguments put forward by the learned Advocate for the respondents. Though the appellant/petitioner inter alia, prayed for a Writ in the nature of Mandamus commanding the respondents to forbear from giving effect to the panel prepared by the Selection Committee, to forbear from giving appointment to the respondent No. 6 and to hold fresh interview between the petitioner and the respondent No. 6, the petitioner neither questioned the selection process nor the order of the District Inspector of Schools (S.E.), Nadia. Further, admittedly D.I. of Schools (S.E.), Nadia gave the approval and the respondent No. 6 joined the post in the said school. The contentions urged before us by the learned Counsel for the petitioner though find place in the pleadings in the writ petition no relief was claimed based upon the said contentions. It is for these reasons that we have extracted the reliefs as prayed for in the writ petition by the appellant/petitioner in the earlier part of our judgment. For the said reasons we are of the view that the judgment under appeal does not warrant any interference.
13. In that view of the matter, the appeal fails. However in the facts and circumstances of the case, there shall be no order as to costs.
14. Let xerox certified copies of this judgment, if applied for, be furnished to the appearing parties within seven days from the date of application.
M.H.S. Ansari, J.
15. I agree.