- (1.) The instant Rule was issued on 4.3.1985 at the instance of the petitioner for a writ of Mandamus commanding the respondents to appoint the petitioner in the post of Assistant Teacher of Banamali Chatt High School, Midnapore on the ground that Rule 28(1) (i) of the West Bengal Board of sEcondary Education Act of 1963 lays down that in an aided institution the committee shall, subject to the approval of the Director, have the power the appoint a teacher in accordance with the directions given on that behalf. It is further submitted that the present petitioner has got the requisite qualification and he was duly called in an interview and the Selection Committee prepared a panel of three candidates placing the present petitioner at the second place. The opposite party-respondent No. 17 was placed at the first place. But the said respondent crossed the limit of normal age of appointment as laid down by the Notification No. 454-Edn (S) dated 25.4.1983 modifying G.O. No. 530-Edn. (S) dated 2.9.82. But that Notification empowered the Director of School Education (Secondary) to relax that age limit upto 40 years. It appears from the letter of the District Inspector of Schools that the District Inspector recommended for relaxation of the age of respondent No. 17 as it appeared from the attested copy of the Madhyamik Certificate, that the said respondent was only 38 years of age at that time. The Director of School Education (Secondary) relaxed the age limit of respondent No. 17 and as such the respondent No. 17 was appointed. The present petitioner in the meantime could know that actual age of respondent No. 17 at the time of interview and appointment was more than 41 years i.e. beyond the upper age limit of 40 years. It is the submission of the petitioner that this act of fraud was brought to the notice of the District Inspector of Schools and the Director of School Education (Secondary), but to no effect. Accordingly, he filed this writ petition and obtained a stay order for a limited period, but subsequently, on the expiry of that limited period, the Hon'ble Court was not pleased to extend that stay order and the respondent No. 17 was thus appointed by the School Authority as an Assistant Teacher in 1984. Since then he has been working as an Assistant Teacher. But it is submitted that the entire procedure of his appointment was bad-in-law as he crossed the maximum age prescribed for the appointment of an Assistant Teacher even after relaxation by the Authority.
(2.) It is admitted by the respondent No. 17 in bis affidavit-in-opposition, that his date of birth was 29.3.43 and not 29.3.46 and that he produced all the original Certificates at the time of interview. But the then Headmaster of the institution attested the true copy of the Madhyamik Certificate showing bis date of birth as 29.3.46. That apart, it also appears from a duplicate Certificate issued by the Beard of Secondary Education, West Bengal that the date of birth of the respondent No. 17 was recorded as 29.3.43. This fact is further corroborated by the School Leaving Certificate issued by the School where the said respondent used to study. Now, admittedly, a fraud was committed in respect of the year of birth of the respondent No. 17. According to the said respondent, it was deliberately dene by the Headmaster, but within his knowledge and the entire defect in the procedure had its root in such fraud. Therefore, the Director of School Education bad the power under the Rules to relax the normal upper age limit upto 40 years but not in case of a candidate who has already crossed 40 years at the time of appointment. Such an act of relaxation of age limit is an act beyond the Authority conferred by the Rules on the Director of School Education and accordingly, such an act of relaxation of upper age limit is bad-in law and without jurisdiction on the part of the Director of School Education I have already mentioned that the entire illegality and defects in the matter of appointment had its root in the fraud committed by the Headmaster of the institution as alleged, but within the knowledge of the respondent No 17. Therefore, the respondent No. 17 being a party to that fraud, according to the principles of equity he should not be allowed to reap the benefit of his own fraud and that also at the cost of a fair chance of appointment of the second candidate in the panel i.e. the present petitioner. In other words, the Court of Justice should not be a party to an act, to perpetuate a fraud committed by one of the parties to the litigation.
(3.) It would not be out of place to mention, that this particular Writ Matter has got a very chequered career. From the record it appears that Hon'ble Mr. Justice Susanta Chatter in since transferred to the Orissa High Court, dictated an order on 11.12.90 thereby dismissing the Writ Petition. But unfortunately, that order was not signed or delivered by the Hon'ble Judge and naturally the matter remained undecided On 17.4.97 the Hon'ble Acting Chief Justice assigned the matter to my Bench.;