PRANAB KUMAR CHATTOPADHYAY,J. - (1.) IN view of dismissal of the writ petition by the learned Single Judge, appellant herein has preferred an appeal and also filed an application in connection therewith. It appears from the records that the District Inspector of Schools (SE), Hooghly refused to approve the panel prepared by the School Authority for filling up the vacant Group-D post. The validity and legality of the aforesaid order was challenged by the appellant herein before this Court by filing a writ petition which was dismissed by the impugned judgment and order under appeal passed by the learned Single Judge. While dismissing the aforesaid writ petition, learned Single Judge held that the District Inspector of Schools (SE), Hooghly has rightly refused to accord approval to the panel in question. The District Inspector of Schools concerned refused to accord approval to the said panel mainly on the following grounds :- a) The prior permission for filling up the post in question was granted by the Additional District Inspector of Schools (SE), Arambagh who was not authorised to grant the said prior permission for filling up the vacancy under the West Bengal Schools (Recruitment of Non-Teaching Staff) Rules, 2005 (hereinafter referred to as "Recruitment Rules of 2005) ". b) The interview letter was dispatched to the candidates under Certificate of Posting and not by Registered Post with Acknowledgement Due and thus the specific provision of Sub-Rule 7 ( c ) of Rule 8 of the Recruitment Rules of 2005 was not followed. 2. The learned Single Judge upheld the aforesaid objections raised by the District Inspector of Schools concerned and observed that under the Recruitment Rules of 2005 only District Inspector of Schools (SE) is authorised to grant prior permission for filling up the vacant post of non-teaching staff. The learned Single Judge also held that in the present case Recruitment Rules of 2005 has not been followed by the School Authority since the interview letters were dispatched to the candidates concerned by Certificate of Posting and not by Registered Letters with Acknowledgement Due in terms of Sub-Rule 7 ( c ) of Rule 8 of the West Bengal Schools (Recruitment of Non-Teaching Staff) Rules, 2005. With regard to the validity and/or legality of the prior permission granted by the Additional District Inspector of Schools concerned, the learned advocate of the State Respondents however, fairly admitted before this Court at the time of hearing of the matter that the Additional District Inspector of Schools (SE) is authorised to grant prior permission for filling up the vacant post of non-teaching staff in a School. As a matter of fact, the Secretary, School Education Department, Govt. of West Bengal by an Office Order issued under Memo No. 1360-SE (Law)/SL/5s198/12 dated 27th August, 2012 made it clear that the Additional District Inspector of schools (SE) was duly authorised to independently dispose of the matters with regard to grant of prior permission, approval of the panel and approval of appointment of teaching and non-teaching staff. In the aforesaid Memo, Secretary has also made it clear that the Additional District Inspector of schools (SE) and the District Inspector of Schools (SE) are officers of equal rank, having independent power to regulate the affairs of the establishment. In view of the aforesaid order issued by the Secretary, Govt. of West Bengal, it cannot be said that the Additional District Inspector of Schools (SE) was not authorised to grant prior permission for filling up the post in question and therefore on that ground, District Inspector of Schools cannot refuse to approve the panel submitted by the School Authority. 3. The other objection raised by the District Inspector of Schools regarding approval of the panel in question is that the provisions of Sub-Rule 7(c) of Rule 8 of the West Bengal Schools (Recruitment of Non-Teaching Staff) Rules, 2005 were not followed since the interview letters were not dispatched by Registered Post with Acknowledgement Due. As a matter of fact, the interview letters were dispatched under Certificate of Posting. Mr. L. K. Gupta, learned senior advocate representing the appellant/petitioner herein submits that the aforesaid Sub-Rule 7 ( c ) is not at all mandatory provision. The aforesaid Sub-Rule 7 of Rule 8 is set out hereunder :- "8 (7) (a). In case of the candidates sponsored by the employment exchange, all the candidates shall be called for interview. (b). In case of the applications received following the notice or advertisement, if the number of applications received by the selection committee is more than ten, a preliminary screening and a short list may be made by the selection committee on the basis of the marks obtained in the relevant examination or examinations and all the short-listed candidates shall be called for interview. (c). The candidates shall be called for interview by registered letters with acknowledgement due. (d). A record of the receipt of names through employment exchange or of applications following the notice or advertisement shall be preserved by the school authority. "
(2.) MR . Gupta submitted that Rule 8 (7) ( c ) provides for the mode and manner of calling for interview which enables the authority to keep a record of the candidates who have received interview letters. Mr. Gupta also submitted that in providing for this requirement, the Rule uses the word 'shall ' and the use of the word 'shall ' does not always mean that the provision is mandatory. According to Mr. Gupta, whether the word 'shall ' is directory or mandatory is to be ascertained having regard to the purpose and object the provision seeks to achieve. Mr. Gupta submitted that Rule 8 (7) (a) and (b) are substantive provisions creating right in favour of the candidates whereas Rule 8(7) ( c ) is procedural. In a procedural provision, 'shall ' is not mandatory where no prejudice is caused. Mr. Manoranjan Jana, learned advocate representing the State Respondents however, disputed the aforesaid contentions made on behalf of the appellant and submitted that the use of the word "shall " has made Sub-Rule 7 ( c ) of Rule 8 mandatory in nature. Mr. Jana further submitted that the School Authority has violated the mandatory requirements of the Recruitment Rules of 2005 as a result whereof the panel in question became invalid. Mr. Jana also submitted that the District Inspector of Schools has rightly refused to approve the panel in question since the said panel was prepared in violation of the mandatory provisions of Rule 8 (7) ( c ) of Recruitment Rules of 2005. In the case in hand, the interview letters were sent under Certificate of Posting instead of by Registered Post with Acknowledgement Due. However, a substantial number of candidates appeared at the interview and none of the candidates who did not appear at the interview also ever raised any objection alleging non-receipt of the interview letter. Thus, the Court can safely proceed on the basis that all the candidates received the interview letter and none felt any prejudice.
(3.) MR . Gupta submitted that the Sub-Rule 7 ( c ) of Rule 8 provides the mode and manner of dispatching the interview letter to the candidates and the same is only directory in nature. Mr. Gupta further submitted that the provision of Sub-Rule 7 (a) and (b) are substantive and mandatory in nature since in terms of Sub-Rule 7(a), all the employment exchange sponsored candidates are entitled to be called for interview and in terms of SubRule 7 (b), all the short-listed candidates who applied in response to the advertisement are also entitled to be called for interview. Therefore, it cannot be disputed that Sub-Rule 7(a) and (b) are substantive provisions and mandatory in nature conferring right in favour of the candidates whereas Sub-Rule 7 ( c ) of Rule 8 is procedural and directory in nature since it prescribes mode and manner of dispatching interview letters. Mr. Gupta referred to a decision of the Supreme Court in the case of P. T. Rajan Vs. T. P. M. Sahir & Ors., reported in (2003) 8 SCC 498 and relied upon Paragraphs 45 and 49 which are set out hereunder :- "45. A statute as is well known must be read in the text and context thereof. Whether a statute is directory or mandatory would not be dependent on the user of the words "shall " or "may ". Such a question must be posed and answered having regard to the purpose and object it seeks to achieve. " "49. Furthermore, a provision in a statute which is procedural in nature although employs the word "shall " may not be held to be mandatory if thereby no prejudice is caused. (See Raza Buland Sugar Co. Ltd. V. Municiapl Board, Rampur, State Bank of Patiala v. S. K. Sharma, Venkataswamappa v. Special Dy. Commr. (Revenue) and Rai Vimal Krishna v. State of Bihar). " Mr. Gupta also referred to and relied on the following decisions of the Supreme Court :- i) Rai Vimal Krishna and Ors. Vs. State of Bihar and Ors., reported in (2003) 6 SCC 401 Para-29. ii) Jamal Uddin Ahmad Vs. Abu Saleh Najmuddin and Anr., reported in (2003) 4 SCC 257 Para-25. iii) The State of Punjab and Anr. Vs. Shamlal Murari and Anr., reported in (1976) 1 SCC 719 Para �8. Mr. Gupta further submitted that Sub-Rule 7 (c ) of Rule 8 is not conferring any power upon the authority and it simply casts a duty regarding mode and manner of calling the candidates for interview. Therefore, according to Mr. Gupta, the aforesaid provision is directory and not mandatory. The ratio of the judgment in the case of Raja Buland Sugar Co. Ltd., Rampur Vs. The Municipal Board, Rampur, reported in AIR 1965 SC 895 as quoted in (2003) 6 SCC 401 has been relied upon by Mr. Gupta which is very much relevant in this regard. Para-29 of the aforesaid judgment is set out hereunder. "29. This in fact was the exact question which had been decided by a Bench of five Judges in the case of Raza Buland Sugar Co. Ltd. v. Municipal Board, Rampur. In that case municipal water tax was sought to be levied under Section 131 of the U.P. Municipalities Act, 1916. In terms of Section 131(3), the Municipal Board was required to publish its proposal relating to the tax and the draft rules in connection therewith along with the notice in the specified format. Section 94(3) provided for the manner of publication of the resolution of the Municipal Board. The method of publication prescribed was "in a local paper published in Hindi and where there is no such local paper, in such manner as the State Government may, by general or special order, direct ". The publication was made in a local paper published in Urdu. Wanchoo, J., speaking for the majority held that the provision for publication contained in Section 131 (3) was mandatory but the mode of publication provided in Section 94(3) was not. Therefore, the publication in an Urdu newspaper was held to be sufficient and in substantial compliance with Section 94(3). This conclusion was arrived at despite the use of the word "shall " in Section 94(3). This is what the Court said : (AIR pp. 899 and 901, paras 7 and 10) "The question whether a particular provision of a statute which on the face of it appears mandatory � inasmuch as it uses the word 'shall ' as in the present case � or is merely directory cannot be resolved by laying down any general rule and depends upon the facts of each case and for that purpose the object of the statute in making the provision is the determining fact. The purpose for which the provision has been made and its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory. ... ..... As we have said already the essence of Section 131(3) is that there should be publication of the proposals and draft rules so that the taxpayers have an opportunity of objecting to them, and that is provided in what we have called the first part of Section 131(3); that is mandatory. But the manner of publication provided by Section 94(3) which we have called the second part of Section 131(3), appears to be directory and so long as it is substantially complied with that would be enough for the purpose of providing the taxpayers a reasonable opportunity of making their objections. We are therefore of opinion that the manner of publication provided in Section 131(3) is directory. " In view of the aforesaid decision of the Supreme Court it can be safely said that substantial compliance of a directory provision is sufficient. Rule 8 (7) ( c ) is not a provision conferring power, but prescribes a procedure. This distinction is of great importance in finding out whether the word "shall " mentioned in the Rule is mandatory or not. A power given by a statute is to be used in the manner directed and other modes of performance is impliedly forbidden as has been clearly held in Ramchandra Keshav Adke (Dead) By Lrs. and Ors. Vs. Govind Joti Chavare and Ors., reported in 1975 (1) SCC 559 Para 25 referring to Taylor Vs. Taylor. But a procedural provision, as in Rule 8 (7) ( c ), does not contain any implied prohibition so as to bar other modes of performance. Rule 8 (7) ( c ) does not confer a power so as to attract the doctrine of implied prohibition. A statutory duty of doing something within a time-frame, as opposed to an exercise of statutory power, has been held to be directory. The decision of the Supreme Court in the case of P. T. Rajan Vs. T. P. M. Sahir and Ors. (supra) is very much relevant in this regard. The matter can be looked at from another angle. A candidate who has not received the interview letter may lawfully raise a grievance. His grievance in such a case will be for non-compliance of Rule 8 (7) (a) or (b), but definitely not for non-compliance of clause ( c ), since a candidate is concerned with the receipt of interview letter and not with the mode in which it was sent. From this point of view, having regard to the aim of the Rule, Clause ( c ) of Rule 8 (7) though uses the word "shall ", is to be held as a directory and not a mandatory provision. In the present case, there is no dispute that altogether 134 candidates were called for interview held on 13th June, 2009 under Certificate of Posting. Out of the aforesaid 134 candidates, 114 candidates applied in response to the advertisement issued by the School Authority and rest 20 candidates were sponsored by the employment exchange. It has been specifically admitted in course of hearing by the learned advocate of the respective parties that more than 100 candidates appeared at the interview held on 13th January, 2009. It has also been admitted by the learned advocate of the respective parties that no complaint was made by any candidate that the interview letter was not received by him/her. So in absence of any complaint regarding non-receipt of interview letter it can be said without any fear contradiction that the interview letters were not only dispatched but the same were duly received by the candidates concerned and thus the requirements of Sub-Rule 7 ( c ) of Rule 8 have been substantially complied with which is required to be done in respect of a directory provision. Observations of the Supreme Court in the case of The State of Punjab and Anr. Vs. Shamlal Murari and Anr. (supra) are very much relevant. The relevant extracts from the aforesaid decision of the Supreme Court are set out hereunder :- "7.. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ....The use of 'shall ' � a word of slippery semantics � in a rule is not decisive and the context of the statute, the purpose of the prescription, the public injury in the event of neglect of the rule and the conspectus of circumstances bearing on the importance of the condition have all to be considered before condemning a violation as fatal. " "8 ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .... We must always remember that processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. It has been wisely observed that procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. Where the non-compliance, tho ' procedural, will thwart fair hearing or prejudice doing of justice to parties, the rule is mandatory. But, grammar apart, if the breach can be corrected without injury to a just disposal of the case, we should not enthrone a regulatory requirement into a dominant desideratum. After all, courts are to do justice, not to wreck this end product on technicalities ... ... ... ... ... ... ...... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... " ;