Calcutta High Court (Appellete Side)
Gourab Bhattacharyya vs State Of West Bengal & Ors on 23 December, 2024
14
23.12.2024
Court No.
25
Tudu (p.a)
WPA 18822 of 2018
Gourab Bhattacharyya
Vs.
State of West Bengal & Ors.
Mr. Ekramul Bari,
Mr. Sk. Imtiaj Uddin,
Mr. Alamuddin Ahmed.
... for the petitioner
Dr. Sutanu Kumar Patra,
Ms. Supriya Dubey.
... for the WBCSSC.
(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
2
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. 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, 1st 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
3is 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
4
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) (2012) 1 CHN 60 (DB) [Soumik Dandapath vs. State
of West Bengal]
(ii) (2011) 3 CHN 334 (DB) [Satyagopal Mishra vs.
State of West Bengal](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. 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
5appropriate 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. 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
6District 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.
(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
7meant 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.
(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;
8
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 (2007) 2 Cal.L.J. 483 [The Secretary, West
Bengal Regional School Service Commission
(Southern Region) vs Debapriya Bose & Others], 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 :
9
“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 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
10
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) 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,
11
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 petitioner‟s 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. In this regard reliance may be placed on
the judgments reported in 40 CWN 17 [Moniruddin
Bepari vs The Chairman, Municipal Commission,
Dacca] and (2003) 2 SCC 111 [Bhabnagar University
vs Palitana Sugar Mills (P) Ltd].
(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,
12
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.
(Rai Chattopadhyay, J.)