Pratap Kr. Ray, J. - (1.) Heard the learned advocates appearing for the parties. In the writ application, the petitioner, second empanelled candidate, relating to the post of Class 4 staff of the concerned school has challenged the decision of according approval of the panel showing the respondent no. 8 as the first candidate of the panel and thereby prayed for reliefs in terms of prayer 'A' and '13' which reads as follows: "(a) A writ in the nature of Mandamus directing the respondents to take steps for appointment of the petitioner in the said post Group 'D' staff in the said school after recasting the panel by making the petitioner as 1st candidate in the panel and approving the same. (b) A writ or order or orders and/or direction in the nature of certiorari directing the respondents to produce and/or caused to be produced the said records of this case before this Hon'ble Court so that conscionable justice may be done." From the impugned approval order issued by the District Inspector of Schools, it appears which is annexed in the petition at page of the Affidavit-in- Opposition filed by the respondent No. 8 that the Panel was approved as per order of the Hon'ble ligh Court, Calcutta, F.M.A.T. 3963 of 1987. This Court directed the department to place the file of F.M.A.T. No. 39 of 1987. Perused the record of the Appeal Court, nowhere it appears that the Division Bench directed to accord approval of the panel. However, it is submitted by the learned abvocate appearing for the respondent no. 8 that with reference to one vacancy as earlier caused relating to Group-IV staff, the respondent No. 8 was selected as a first empanelled candidate but for some technical reason approval was not accorded when the writ application was moved in this Court being no. not produced whereby Hon'ble Justice Ajit Kumar Sengupta-J (as His Lordship then was) by the judgment and order dated 20th November, fresh interview of handicapped candidates including the present petitioner who was the writ petitioner therein and to complete the stage of selection process following the recruitment Rules. This order dated 20th November, 1987 was challenged in the appeal F.M.A.T. No. 3963 of 1987, subsequently, renumbered as F.M.A. No. 2102 of 2002. There was no slay order granted by the Appeal Court with reference to the impugned order passed by Ajit Kumar Sengupta, J. As a resultant effect, the respondent No. 8 was served with the interview letter to appear with reference to the said vacancy but he did not incline to appear in the interview by filing an application to stop the interview in view of pendency of the appeal. However, since there was no stay order granted by the Appeal Court, the School Authority completed the selection process and after finalisation of the same one gentleman Ajit Kumar Samanta, was appointed in the said post. Dissatisfied with, the respondent No. 8 filed an application in the said appeal as affirmed on 23rd September, 1996 praying necessary direction to the School Authority to allow him to appear in the interview with reference to another vacancy as caused due to sudden death of incumbent Santosh Kumar Mohanta, was holding the said post. This application was considered by the Division Bench on 14th July, 1997 as it appears from the order sheet. The said application filed by the petitioner before the Division Bench was registered as CAN 2121 of 1997. In that application the petitioner prayed for following order: "Under these circumstances your petitioner most humbly prays that your Lordships may be graciously pleased to issue a Rule calling upon the opposite-parties/respondents to show cause as to why the petitioner should not be called for an interview at the time of filing up the vacancy which was caused on the death of late Sri Santosh Kumar Mahanta and/or to pass such other or further order or orders as Your Lordships may deem fit and proper. And Your petitioner further prays for disposal of the application as well as the appeal which were tiled by the appellant/petitioner, on the basis of the order passed by this Hon'ble High Court. " On the basis the said application the Division Bench dispposed of the appeal and the application both by the order dated 14th July, 1997, by passing the following order: "Alter hearing the submissions of the learned Advocate for the petitioner and considering the order earlier passed by the learned Judge, we are of the view that a panel was prepared and kept pending for two years before the District Inspector of Schools (SE) Midnapore for approval and/or disapproval of the same. Thereafter the same was disapproved on the technical ground. Accordingly, we direct the respondents that while the post will be filed up on the basis of the fresh interview, the case of the appellant/petitioner after condoning the age bar, should be considered as the name of the appellant/ petitioner was at Serial No. 1 in the panel prepared and the said panel was set aside by the District Inspector of Schools (SE), Midnapore only on the technical ground and not on the fault of the candidates. In such circumstances, the appellant/petitioner case should be considered along with the Recruitment Rules after condoning the age bar of the appellant/petitioner. The application, is, accordingly, disposed of. No useful purpose will he served in keeping the appeal pending which is treated to be as on day's list and the same is also disposed of without any order as to costs.". Relating to the vacancy of Class-IV staff as caused due to demise of Santosh Kumar Mohanta, however the respondent No. 8 appeared along with other candidates and the panel was prepared wherein his name has placed as a first candidate of the panel. This panel was referred to by the Managing Committee for approval and the order of approval was accorded by the concerned District Inspector of School with a rider that the order of approval was issued in terms of the order of Division Bench passed in F.M.A.T. No. 3963 of 1987. It is submitted by the learned advocate for the petitioner that the order of approval was bad in law and thereby appointment of the respondent No. 8 in the post in question as already been made was illegal on the grounds, namely, that the respondent No. 8 crossed the maximum age to appear in the interview when such interview was held relating to this post, that though there was no order from the Division Bench directing to accord approval of the panel by the District Inspector of School concerned had approved the panel on the strength of the said Division Bench order which is non-existent. On the issue of appointment, it has been contended further that since the initial appearance of the respondent no. 8 in the interview was after crossing the maximum age of 35 years, the subsequent all actions became nullity. It is further contended that the respondent No. 8 was not eligible to be appointed in the post in question. It has been further submitted by the learned advocate for the petitioner that Division Bench by order dated 14th July, 1997 as has been claimed as the order supporting the respondent's appearance in the interview by the respondent No. 8 never passed, any order directing appearance in the present vacant post. It is further submitted that on perusal of the order of the Division Bench, it is clear that the Division Bench was of the impression that relating to the vacancy which was the subject matter of the appeal before the Division Bench, the interview would be held irrespective of the fact that in the application the respondent No. 8 disclosed everything that the post was tilled up and a new post was lying vacant. It is contended that Division Bench did not pass any order directing appearance in the interview in the present post in question as the same was not at all the subject matter of any writ proceeding and/or of the appeal. This writ application has been opposed by the learned advocate for the respondent No. 8 by filing affidavits containing inter ilia that the Division Bench allowed the respondent No. 8 to appear on the basis of the application as filed, wherein the respondent No. 8 disclosed everything about the appointment of one candidate and subsequent vacancy of another post. It is further contended that age bar was condoned for appearance in the interview and accordingly there was no illegality committed by the selection committee to empanel the respondent No. 8. It is further contended that the order of approval whereby the same was qualified with a ridder that the decision was taken as per order of the Division Bench of High Court was nothing but a reference to the order dated 14th July, 1997 whereby and whereunder the respondent no. 8 was allowed to appear in the interview. It is Further contended that the respondent No. 8 since has already been appointed on condoning the age bar in terms of the order of the Division Bench, the writ application is to be dismissed. The learned advocate for the State respondent appeared and submitted a written note, without filing any Affidavit-in-Opposition. A written note cannot be accepted by this Court as an authentic document for adjudication of the matter since the State respondents have not tiled any opposition. Learned Advocate for State respondents has been allowed to submit orally on the issue in question. The State respondents have supported thy respondent No. 8 and opposed the writ application. Having regard to the contention made by all the parties, the prints for decision in this writ application are to this effect: (a) Whether the Division Bench by order dated 14th July, 1987 in F.M.A.T. No. 3963 of 1987 allowed the respondent No. 8 to appear with reference to the present vacancy which happened during pendency of the appeal that is the vacancy caused due to demise of Santosh Kumar Mohanta by condoning the age bar. (b) Whether the order of according approval of the District Inspector of Schools concerned by referring that the same was passed in terms of the order of the Division Bench is legal and valid; (c) Whether the respondent No. 8's appointment in the post in question could be considered as valid appointment in terms of the Recruitment Rules. For adjudication Of this order, the relevant Recruitment Rules is to be dealt with, when vacancy was processed for selection, the Recruitment Rule issued by Director of School Education, West Bengal under Memo No. 2066-GA dated 27th October, 1995 was in vogue, which herein after referred to as Recruitment Rule, 1995. In terms of the Recruitment Rule, it appears that under Clause 4-G provision has been made for appointment of the candidates in the post in question. Clause 4G reads as follows: "(g) No person shall be selected for appointment unless he/she is a citizen of India and 18 years of age or above. Except for the post of Headmaster/Headmistress of High/Higher Secondary Schools and Superintendent of Senior Madrasas. The maximum age limit for appointment in aided institutions is 35 years and is relaxable upto 40 years in case of S.C./S.T. candidates as per existing Government Order. Maximum age limit as relaxed for certain categories by Government Orders from time to time shall be taken into account at the time of selection." On a bare reading of the particular provision, it appears that a minimum age limit was prescribed for selection of a candidate, prescribing 18 years of age, whereas maximum age limit was not prescribed for selection of a candidate. For appointment of a candidate maximum age bar has been prescribed as 35 years with a rider of relaxability of such age up to 40 years in case of SC and ST candidates as per existing Government order. It is now a settled legal position that the word selection and appointment are not synonymous. The word selection means empanelment, enlistment which is within the domain of 'recruitment' and the word appointment means actual posting in the particular post. Reliance may he placed to the judgments passed in the case Praffulla Kumar Swain v. Prakash Chandra Misra and Ors., reported in 1993 Supp. (3) SCC 181 : [1993(l ) SLR 565 (SC)] (3 Judges Bench), Para 29 of the said report reads as follows: "At this stage, we will proceed to decide as to the meaning and effect of the word "recruitment" and "appointment". The term "recruitment" connotes and clearly signifies enlistment, acceptance, selection or approval for appointment. Certainly, this is not actual appointment or posting in service. In contradistinction the word "appointment" means an actual act of posting a person to a particular office." In terms of Recruitment Rules of 1995, it appears that after the panel is finalised by the selection Committee, the same is referred to the District Inspector of School concerned for approval by the Managing Committee and after approval of the same, appointment letter is issued by the Managing Committee in terms of such order of approval. Hence it is clear that upto the order of approval there was no question of appointment. The appointment stage comes at the post-approval stage of the panel. Having regard to the said statutory provision since there is no maximum age bar for appearance of any candidate before the interview Board, irrespective of the dispute as raised so far as the impact and the purpose of the order of the Division Bench dated 14th July, 1997 whereby the age bar for appearance in interview was condoned, the respondent No. 8 got the right to appear in the interview as the question of age bar was not at all the subject matter of decision by the Selection Committee as statute never vested such power either to the Managing Committee or to the selection committee to refuse interview of a candidate on the ground of crossing of 35 years of age. At the time of appointment, of course, the age restriction under the statute is required to be fulfilled and satisfied. It is a vacancy for a general candidate, accordingly, as per the Recruitment Rule 4-6 there was no scope of relaxation of the age of 35 years because the relaxation Clause is applicable in respect of the SC/ST candidates as per the existing Government order. Admittedly, this post is not reserved for SC/ST candidates and the respondent No. 8 is not belonging to SC/ST candidate. Now the question so far as the appearance of the respondent No. 8 is concerned before the Selection Committee as per the High Court's order as earlier passed, there was no illegality on the issue of the age bar as raised, as under the statute that is the Recruitment Rules more precisely under Clause 4-G of said rule, there was no restriction for selection of a candidate even he crosses the age of 35 years. Having regard to such statutory provision, this Court is not going into the question of interpreting the order of the Division Bench dated 14th July, 1997 whereby the respondent no. 8 was allowed to appear in the interview. Beside, this Court is not inclined to interpret order of Division Bench, following the principle of 'judicial discipline'. The point No. (a) is answered accordingly. Now the question of according approval of panel which also have been as S.A.I.L. ed in the writ application, now to be answered. It appears on a bare perusal of the impugned approval order that the same was issued in terms of the order of the Division Bench in F.M.A.T. No. 3963 of 1987. On perusal of the records of the order of the Appeal Court it appears that no such order was passed by the Division Bench directing to accord approval of the panel. Even there was no prayer to that effect in the application filed by respondent No. 8. The respondent only prayed his appearance in the interview. In view of such, the reason as assigned for according to approval of the panel as solely based on reference of the order of the Division Bench which was non-existing, the decision of approval is nothing but non-application of mind by the Therefore District Inspector of Schools. Decision to accord approval as solely on the ground of order of Division Bench which was non-existing, decision making process, according approval, accordingly was vitiated with illegality. Hence, same was nullity in the eye of law and the order of approval impugned in this writ application is not legally sustainable. Hence it is set aside and quashed. Point No. (b) is answered accordingly. So tar as the appointment is concerned, as the order of approval has been set aside and quashed, it also goes automatically. Beside, the respondent No. 8 failed to satisfy this Court that the age bar for appointment was relaxed by the appropriate authorities though in the statute there is no such provision for age relaxation of a candidate belongs to general category. Further the respondent No. 8 failed to satisfy this Court even on referring the order dated 14th July 1987 passed in F.M.A.T. No. 3963 of 1987 that the Division Bench also condoned the age bar for appointment of respondent No. 8. From the order of the Division Bench, it appears that the age bar was condoned so far as the appearance of the petitioner in the interview. The appearance in the interview and condonation of the age bar for appointment are not the same thing. Since in Clause 4-G of Recruitment Rule, there is a specific provision providing the maximum age limit for appointment as 35 years, the respondent No. 8 was not eligible to be appointed. Hence, appointment letter as was issued by the Managing Committee was de-hors of the statutory Rule 4-G. Point No. (c) answered accordingly.
(2.) Having regard to this, now the question is whether any relief can be granted to the petitioner as prayed for in the writ application. In the writ application the petitioner has prayed for recasting of the panel in Prayer-A. Since the order of approval itself is the nullity in the eye of law as the same was processed as it appears from the order in terms of a non-existent order of the Division Bench of High Court, there is no question of recasting the panel. This Court has already set aside and quashed the order of approval. Once the order of approval is set aside and quashed, there is no question of recasting the panel by this Court. Further, it is not within the jurisdiction of the Writ Court to recast a panel as the same is required to be done by the appropriate authorities under the Statute. However, from the records, as it appears, that the District Inspector of Schools concerned without considering the order relevant points, namely, the age bar issue on appointment in terms of Clause 4-G of the Recruitment Rules as referred to and as well as relaxation issue, accorded approval of the panel only on the basis of the order of the High Court as referred to, which, in fact, is a non- existent order, the respondent, District Inspector of Schools concerned is directed to decide the matter de novo with reference to the panel as referred to by the Managing Committee of the school upon taking note of statutory provisions as laid down in the Recruitment Rules of 1995. A decision to be reached approval of the panel or recasting of the panel what ever it may be as per his decision upon giving hearing to the petitioner, the respondent No. 8 and the other empanelled candidates as well as the school authorities. Such decision to be reached within two months from the date of communication of this order and the reasoned decision to be communicated to all parties, i.e. the petitioner, the respondent No. 8 the school authorities and the other empanelled candidates, within two weeks from the date of taking such decision. The respondent No. 8 is directed to vacate the post forthwith and the Managing Committee is directed to take steps accordingly in the matter. The writ application is disposed of in the aforesaid terms. Stay as prayed for is refused.
(3.) Let urgent xerox certified copy of this order be made available to the learned advocates appearing for the parties. Order accordingly. ;