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Calcutta High Court
Utpal Das vs State Of West Bengal & Ors. on 11 November, 2000
Equivalent citations: (2001) 1 CALLT 49 HC
Author: A Banerjee
Bench: A K Banerjee


JUDGMENT

A.K. Banerjee, J.

1. The writ petitioner by way of this writ petition has challenged the order passed by the District Inspector of Schools, Midnapore appearing at page 64 of the writ petition. The writ petitioner was a sponsored candidate by the Employment Exchange for the post of science teacher in the concerned school. According to him he was possessing the qualification of B.Sc. (Pure Science) and B.Ed. degree. His B.Ed. qualification was not considered by the interview board when the eligibility was “B.Sc. (Pure Science) preferably B.Ed.” He made representation to the District Inspector of Schools. Being denied of any assistance from the District Inspector of Schools, writ petitioner moved an earlier writ petition which resulted in an order directing the District Inspector of Schools to consider his representation upon hearing the concerned parties. The impugned order is the result of such enquiry having been done by the District Inspector of Schools pursuant to the order of this Court in the said earlier writ petition.

2. Mr. Sanyal learned Advocate appearing for the writ petitioner has contended that it is the obligation of the Employment Exchange to send names along with the respective qualifications. He has relied upon his employment exchange card appearing at page 55 of the writ petition showing his B.Ed. qualification. According to Mr. Sanyal no other candidate appearing at the said interview did possess B.Ed. qualification. The factum of non-possession of B.Ed. qualification by the other candidates is not disputed by any of the appearing parties.

3. Mr. Das learned Advocate appearing for the school authority produced the original documents pertaining to the said interview including the attendence sheet, score sheets and a xerox copy of the list sponsored by the employment exchange. According to Mr. Das before the interview board neither in the employment exchange list any mention of the said qualification was there nor the candidate himself produced any document in support thereof. Hence, the question of consideration of the said qualification did not arise before the interview board. All the candidates having the qualification of Science graduate, were treated at par so far qualification is concerned and were interviewed by the board.

4. Mr. Biswas learned Advocate appearing for the successful candidate being the Respondent No. 9, submitted that whether the document pertaining to the additional qualification has been produced or not, is pure question of fact and once it is decided by the District Inspector of Schools pursuant to the order of the Court, this Court should not up-set such decision sitting in a writ jurisdiction. According to Mr. Biswas, the appropriate remedy should be by way of a regular Civil suit. Mr. Biswas also contended that in any event, since the B.Ed. qualification has been obtained by the petitioner from an University which is not recognised one, the question of non-consideration of such qualification is superfluous.

5. In support of his contentions Mr. Biswas relied on the decision (Head Notes ‘C’). The portion of the head note relied on by Mr. Biswas is quoted below :–

“The Appellate Authority is contemplated by the section to be the highest authority for deciding questions of settlement of liquor shops, as between rival claimants. The appeal or revision being undefined and unlimited in its scope the highest authority under the Act, could not be deprived of the plentitude of its powers by introducing considerations Which are not within the Act or the rules. It is true that the Appellate Authority should not lightly set aside the selection made by the primary authority, that is to say, a selection made by a sub-divisional officer or by a District Collector, should be given due weight in view of the fact that they have much greater opportunity to know local conditions and local business people than the appellate authority even as the appeal Courts are enjoined not to interfere lightly with findings of fact recorded by the original Courts which had the opportunity of seeing witnesses depose in Court, and their demeanour while deposing in Court. But it is not correct to hold that because the Appellate Authority has not observed that caution the choice made by it is in excess of its power or without jurisdiction.”

6. In the aforesaid case the Supreme Court was of the view that the Appellate authority should not up-set the findings of fact recorded by the original forum.

7. Mr. Biswas also relied on a decision of (Head Note ‘C’) which is quoted below :–

“Held that there were materials on the record on the basis of which the Industrial Tribunal could come to the conclusion that the agarias were not independent contractors but workmen. The High Court exercising its jurisdiction under Articles 226 and 227 of the Constitution, was not competent to set aside the finding of fact recorded by the Industrial Tribunal and the Supreme Court entertaining an appeal from the decision of the High Court, should also not interfere with that finding of fact.”

8. The aforesaid decisions are well settled principles of law and there cannot be any controversy with regard thereto.

9. Coming back to the subject-matter herein, on examination of the order impugned, I find that the authority concerned instead of deciding the issue
has merely recorded the respective contention of the parties and rejected the representation of the writ petitioner on the the ground that his case was not supported by any evidence given by any of the parties. In my opinion, that is not a correct approach to be made while deciding an issue in terms of the order of this Court. This Court while sending the matter to the authority concerned for consideration, obviously meant that the authority concerned would examine the veracity of the complaint and decide it accordingly. The very question that the mistake occured in the instant case at the employment exchange level, has not at all been considered by the authority. Hence, the above decisions of the apex Court do not in any way of any help to the respondents.

10. I have examined the documents produced by Mr. Das, it appears that the application made by the writ petitioner did not mention any qualification. In the attendance sheet, the signature was put by the candidates. The column of qualification has been filed up by someone else by the candidates. The individual score sheet prima facie smakes of irregularity. The figure 3 has been written in a manner by the Panchyat nominee indentical as the teacher-in-charge which is exfacie apparent. In an interview whether a particular document was produced or not, can be witnessed by the members of the interview board and the candidate himself and none else. Since both the sides are not ad idem, the question of proving or disproving the fact can only depend on the other substantial evidence.

11. Mr. Sanyal while arguing has relied on Bench decision of this Court reported in 1999 Volume I Calcutta Law Journal page 11 Shankar Roy v. Arup Kr. Das, where the Division Bench was of the view that under Rules 6(a), it is the obligation of the Exchange to send the name alongwith the qualifications. Omission on its part should not in any way prejudice the candidate because of such omission. Mr. Sanyal also relied on an unreported decision of S.B.Sinha, J. in the case of Monaj Kumar Roy v. State of West Bengal delivered on August 5, 1998, wherein His Lordship held that in case of a mistake which requires rectification, the panel prepared by the selection committee has to be changed and no exception thereto, can be taken.

12. Considering the aforesaid decision and taking into consideration the facts and circumstances, I feel that the District Inspector of School has not decided the issue in the manner in which he should decide in terms of the order of this Court. A man of prudence is expected to produce all the documents pertaining to his qualification and it is presumed that he would do so specially when that would benefit him.

13. Mr. Biswas has relied on clause 5 of the office memorandum dated 4.4.96 issued by the Director of School Education, Government of West Bengal which grants liberty to the candidate to produce his additional qualification irrespective of the fact whether the same is recorded or not or whether the same has been notified to the interview board by the concerned employment exchange. It is, therefore, presumed that a man of prudence who is entitled to produce document supporting his additional qualification, have definitely produced it at the relevant time. Non-production of the same is rather a suspicious circumstance. The District Inspector of Schools has not decided the issue from this angle and merely noted down the
submissions and counter-submissions of the parties which, in my view, was not the correct approach.

14. Hence, I set aside the order impugned dated 20th October, 1997 and direct the District Inspector of Schools, Midnapore to hear the parties afresh on the basis of the observations made by this Court in this order. The District Inspector of Schools will be at liberty to take the assistance of the Forensic and/or Handwriting expert to examine the score sheets and will consider the report of the Forensic/Handwriting expert in this regard while deciding the issue in question. Decision of the District Inspector of Schools should be communicated to all concerned within eight weeks from date. The District Inspector of Schools before taking any final decision will give ample opportunity to the parties concerned to produce documentary evidence and to make oral submissions before him. So long the issue is not decided by the District Inspector of Schools, the Respondent No. 9 will continue to act as teacher of the concerned school who, I am told, has been appointed by the school authority as a result of the subject interview. In case, the District Inspector of Schools finds that there has been irregularity in holding such interview, he will withdraw his approval to the panel and will give reasons therefor.

15. Mr. Biswas also submitted that even if the District Inspector of Schools is asked to consider the representation of the writ petitioner, the District Inspector of Schools should restrict himself to the scope of reference on the limited fact whether his B.Ed. qualification was produced before the Selection Committee and not considered by them despite production and nothing else. Such contentions of Mr. Biswas with due respect is not acceptable to this Court in view of the fact that sitting in writ Jurisdiction one has to take pragmatic approach to find out the wrong, if any, done to the writ petitioner. This Court earlier directed the District Inspector of Schools to examine the complaint. Hence the hearing authority should be at liberty to examine from all corners and is at liberty to examine all the documents pertaining to the said interview, as I have said, to come to a final conclusion as to the veracity of the complaint.

Hence, I dispose of the writ petition by directing the District Inspector of Schools to hear the parties afresh as directed above.

On the prayer of Mr. Biswas, the operation of this order is stayed for three weeks from date.

Xerox certified copy of this order, if applied for, will be delivered on priority basis.

Petition disposed of


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