- (1.) Heard the learned Counsel for the parties.
(2.) At the outset, when the matter is taken up for consideration, the learned Advocate representing the State of West Bengal, raises a preliminary point with regard to non-service of notice together with a copy of the instant application upon the State respondents. According to him, service only upon the State Government Pleader is inadequate, since the Rules of this Court relating to applications under Article 226 of the Constitution of India does not dispense with service of notice together with copies of the writ petition upon the State respondents, as stated in the cause-title, namely, the respondent No. 1, being the State of West Bengal, service through the Secretary, Secondary Education Department, Bikash Bhawan, Salt Lake City, Kolkata - 700 091; the respondent No.2, being the Director of School Education, West Bengal, Bikash Bhavan, Salt Lake City, Kolkata - 700 091 and the respondent No. 3, being the District Inspector of Schools (SE), Uttar Dinajpur, P.O. Karnojora, District Uttar Dinajpur, all of whom, admittedly, have not been served. The learned Advocate for the petitioner, however, submits that separate or individual service of notice upon the aforementioned respondents is a mere technicality, since the State of West Bengal is represented through the Government Pleader, who is authorised to represent the aforementioned respondents. Learned Advocate for the petitioner further submits that the subject-matter of challenge in the instant writ petition is a memo dated 24th September, 2009, issued by the District Inspector of Schools (SE), Uttar Dinajpur, being the respondent No. 3 herein, and putting him to notice cannot bestow any additional benefit, since the impugned decision dated 24th September, 2009, is a matter of record and the said respondent No. 3 cannot improve his defence by stating any additional fact or bringing forward any additional material, which is not already on record. Learned Advocate for the petitioner further submits that if the writ petitioner has to effect independent service upon each of the State respondents, then the importance and urgency of filing of writ petitions would be lost and that the Rules of this Court itself provide service upon the Government Pleader who represents all the State respondents and such service is sufficient service in accordance with the said Rules. On the other hand, learned Advocate appearing on behalf of the State invites this Court's attention to Rule 26 of the Rules of the High Court at Calcutta relating to application under Article 226 of the Constitution of India (as amended till date). He submits that the provisions of the aforementioned Rule framed by the High Court with regard to service of notice upon the State respondents has been considered by a Division Bench of this Court in the case of State of West Bengal and Ors. v. Arjun Kumar Izaddar and Ors., 2005 3 CalHN 603. Referring to the said judgment, he submits that the Division Bench of this Court has specifically observed that service of a copy of the writ petition intended to be moved against the State upon the Government Pleader attached to the High Court does not dispense with service of copies of the writ petition as well as notice of moving the same upon the other State respondents.
(3.) In this connection, he has also referred to a judgment rendered by a Single Bench of this Court in the case of Chandraprabhu INternational Ltd. v. Commissioner of Customs, Kolkata and Ors., 2001 2 CalLJ 360. Referring to the said judgment he submits that 48 working hours time is given to enable the concerned and affected respondent to seek instruction or to take proper step. The concerned respondent, according to the learned Advocate, would mean a respondent who is likely to be directly affected by any interim order that may be passed by this Court while hearing the writ petition. According to him, the scheme of Rule 26, as framed by this Court, in respect of applications under Article 226 of the Constitution of INdia read with the two aforementioned judgments would clearly go to show that service upon the Government Pleader by a writ petitioner is in the nature of an additional service and does not dispense with service of notice together with a copy of the writ petition upon the other State respondents who have been made parties to a writ proceeding. After considering the respective submissions, it appears to me that the preliminary point raised by the learned Advocate for the State of West Bengal with regard to service of notice together with copy of the writ petition upon the State respondents, apart from service upon the Government Pleader, is no more res nova. This issue has been considered and squarely answered by this Court in the two judgments referred above. However, before applying the ratio of those decisions in the facts of the instant case, it is perhaps necessary to have a close look into Rule 26 of the High Court Rules relating to applications under Article 226 of the Constitution of India (as amended till date), which reads as under: "Save and except as provided in these rules, all applications for a Rule Nisi shall be made in the first instance before the Court on such day or days and at such time or times as may be fixed by the Court. An application under Article 226 shall not be moved and no prayer for interim order shall be entertained in a writ petition under Article 226 of the Constitution without serving copy of such petition along with all annexures upon the respondents to be bound by or affected by such interim order and without giving such party a reasonable opportunity to contest the same, without serving 48 hours' prior notice along with a copy of the application under Article 226 of the Constitution, proposed to be moved, on the concerned respondent. Provided where the State Government is a party, service on the Legal Remembrancer/Government Pleader, as appropriate, will be sufficient; where the Central Government/ Local Authority/Body/Corporation or any of its officers is a party service may also be made on the Standing Counsel for the Central Government/ Local Authority or Body or Corporation notified to the Registrar in this behalf: Provided that the Court may for reasons recorded allow the moving of the application and entertain the prayer for such interim order without such notice, in which case, a copy of the application along with all annexures in support thereof,'shall forthwith be served by the petitioner, upon the respondents against whom the interim order has been obtained: Provided that the provisions of Section 148A of the Code of Civil Procedure, 1908 shall mutatis mutandis apply to proceedings under Article 226. Such caveats must be filed before an Officer nominated in this behalf by the Chief Justice: Provided further that an affidavit of service shall be filed showing compliance with these rules before the matter is taken up for hearing. The Court hearing such an application may issue a Rule Nisi or summarily reject the application or issue notice or give direction/ directions or make such order thereon as it thinks fit. A Judge, for the reasons recorded, at the hearing or at any subsequent stage of the proceeding may make it returnable before a Division Bench or may while hearing the Rule, refer the same to the Division Bench for hearing. Explanation.The Judge hearing such application may dispose of the same by issuing notice and without issuing formal Rule.";