Pratap Kr.Ray, J. - (1.) .:- Heard the learned Advocates appearing for the parties.
(2.) In the instant case, the petitioner has challenged the prior permission dated 21st June, 2002 issued by the District Inspector of Schools (SE) Uttar Dinajpur. From the record, it appears that in terms of the said prior permission, the School Authority sent requisition to the Employment Exchange wherefrom the name of the petitioner was sent for appearance in the interview and petitioner accordingly appeared in the interview. The petitioner did not challenge the prior permission before his appearing in the interview but after the petitioner became unsuccessful in such interview, the petitioner has come up with this writ application challenging the prior permission decision of the District Inspector of Schools concerned. It is a settled law that unsuccessful candidate cannot challenge the legality and validity of constitution of the Selection Committee as well as the roles under which the entire selection process was completed. The principle applied that a person cannot blow hot and cold. Applying the doctrine of approbate and reprobate, the Apex Court has settled the law in addition to the ground of principle of estoppel. Reliance may be placed to the judgment passed in the case of Union of India & Anr. v. N. Chandrasekharan & Ors., reported in (1998) 3 SCC 694: [1998(l) SLR 612 (SC)] and the judgment passed in the case of Om Prakash Shukla v. Akhileswar Shukla, reported in AIR 1986 SC 1043 : [1986(l) SLR 699 (SC)]. The views expressed by the Apex Court in Om Prakash Shukla (supra) was reiterated in the case of Madanlal v. State of Jammu & Kashmir, reported in (1995) 3 SCC 486 : [1995(2) SLR 209 (SC)], which subsequently reached by the Apex Court, in the case Chandra Prasad Tewari, reported in (2003) 6 SCC 127 : [2002(7) SLR 241 (SC)] . In view of the settled legal position. this writ application is not maintainable only on that ground. However, the learned Advocate failed to satisfy this Court about the violation of the recruitment rule as has been made in the prior permission order to render it defective, which is the allegation in this writ application. However, on a bare perusal of the Recruitment Rules issued by the Director of School Education, West Bengal under Memo No. 2066-GA dated 27th October, 1995 and the Recruitment Rule in the form of direction issued by the said officer under Memo No. 1736 (21) G.A dated 1st November, 1999, it appears that in the pre-prior permission stage the jurisdiction of the District Inspector of Schools concerned in both the said directions has been made identical. In both the two circular letters being one of 1995 and another of 1999, it appears that in the event of any vacancy when the requisition is made by the School Authority, the District Inspector of Schools concerned after considering panel under died-in-harness category, has been allowed to accord prior permission. There is no difference in between the two Recruitment Rules and accordingly the prior permission order cannot be said as violative of any Recruitment Rule being of the year 1995 and/or 1999. From the records of this case, it further appears that the respondent No. 8, the present appointee in the said post in question moved a writ application being W.P. No. 316 (W) of 2003 praying for sponsorship of his name when by the judgment dated 17th March, 2003, Arun Kumar Mitra, J. allowed the writ application. In pursuance thereof, the respondent No. 8 ultimately appeared in the interview and was empanelled as a first candidate of the panel. Now the respondent no. 8 in terms of the approved panel is already an appointee in the said post. The present petitioner prayed for recalling of the order dated 17th March, 2003 passed by Arun Kumar Mitra, J. on diverse grounds contending, inter alia, that in the first interview he stood first and due to cancellation of the said panel and for holding interview for the second time a civil suit was moved praying declaration that the first panel was valid and legal. It was further contended that the name of the respondent No. 8 should not be forwarded. Having regard to such, ultimately Arun Kumar Mitra, J. by the judgment dated 2nd July, 2003 in the said writ petition rejected the recalling application on merit. No appeal has been filed against that order. Accordingly, the judgment of Arun Kumar Mitra, J. has reached its finality and rights of the parties have been crystalised. Having regard to such, the petitioner cannot reopen all points de novo in this writ application. So far as the allegation as made regarding appearance of the respondent No. 8 in the interview on account of the age bar issue, the same is not legally sustainable in terms of my earlier judgment passed, holding, inter alia, that the age bar of 37 years in terms of Clause 4(d) of the Recruitment Rules of 1st November, 1999 is not an embargo for appearance in the interview. In the said judgment, this Court distinguished the meaning of the two words 'appointment' and 'selection'. Clause 4(d) of the said new Rule reads thus: "4. (d)- No person shall be selected for appointment unless he/she is Citizen of India and 18 years of age or above. The maximum age limit for appointment in Aided Institution is 37 years and is relaxable in case of S.C./S.T./ O.B.C. candidates as per existing Government Orders." On a bare reading of the said rule, it appears that there is a minimum age limit of 18 years for selection of a candidate for appointment in the post. But there is no maximum age limit for such selection except on issue of appointment is concerned. The words 'selection' and 'appointment' are not synonymous. There is a gulf of difference in between the two words. The word 'selection' means empanelment/enlistment, but the word 'appointment' means actual posting. This point has been settled by the Apex Court passed in the case Pafulla Kumar Swain v. Prakash Chandra Misra & Ors., reported in (1993) (Supple.) 3 SCC 181 : [ 1993(1) SLR 565 (SC)] a judgment of three Bench. Having regard to such legal position that under Rule 4(d) the aforesaid maximum age limit for appointment has been mentioned as 37 years with relaxability condition in respect of some candidates belonging to reserve category, as already held by me that there is no maximum age bar for selection in the said rule, the appearance of the respondent No. 8 in the selection process even after crossing the age of 37 years has not made the selection void. Under the aforesaid rule, the respondent No. 8 got the eligibility to appear. Since the appointment of the respondent No. 8 has not been challenged in this writ application, the Court is not considering the issue as to whether the appointment after crossing of 37 years of age is bad in law or not and the other issue whether relaxability clause is applicable or not.
(3.) Having regard to all the legal issues accordingly the present writ application filed by the unsuccessful candidate stands dismissed with a cost of 500 Gms. to be paid to the respondent No. 8. Such cost to be paid within a month from this date. Petition dismissed. ;