SHEKHAR B.SARAF,J. - (1.) This is an application under Article 226 of the Constitution of India wherein the writ petitioner has challenged an order passed by the Commissioner of School Education, West Bengal (respondent no.2) dated January 10, 2018 with respect to acceptance of the selection panel that had been sent by the Managing Committee of Pakurgoria B. N. Vidyapith being the respondent no.4 herein.
(2.) The facts leading to the present writ petition are as follows:- (a) It is to be noted that this is the third round of litigation before this High Court. On the first occasion by an order dated October 21, 2009 the District Inspector of Schools (SE), Purulia being the respondent no.3, had declined to approve the panel prepared by the Managing Committee for recruitment of the post of Librarian. (b) By an order dated February 12, 2015, this Court had set aside the said order and directed the respondent authorities to consider the same after obtaining an explanation for the delayed submission of the panel from the Managing Committee. Subsequently, by an order dated August 17, 2015 the Commissioner of School Education examined the explanation of the Managing Committee for the delay in submission of the panel and came to the conclusion that a delay of four months only violates the rules but also indicates some unethical and unfair practice involved in finalisation of the panel that should have been prepared on the very next date of interview. The Commissioner further held that supposed prevailing tension after the interview indicated that the recruitment process was fair. (c) This Court once again had the occasion to look into the above order dated August 17, 2015 and by an order dated December 16, 2016 the said order was set aside by this High Court. The relevant portion of the order is provided below: "Asok Kumar Malik (supra) and Rebati Raman Koley (supra) are of the view that the time frame stipulated in the Government Order dated December 26, 2005 is directory and mandatory. They have held, in a given situation, it is open to the School authorities to explain the delay and it is for the State authorities to accept or reject the explanation for delay in submitting the panel for approval. In the present case, the earlier writ petition filed at the instance of the School authorities was disposed of by the judgement and order dated February 12, 2015. Such order allowed to the School Authorities to explain the delay and the State Authorities to consider the explanation in accordance with law. The Commissioner of School Education was required to hear the parties and to decide on the issue. The Commissioner of School Education has heard the parties and has decided the issue by negating the request for grant of approval of the panel. However, the impugned order does take into consideration the explanation for the delay as advanced by the School Authorities. The impugned order does deal with the explanation as to why the explanation for the delay advanced by the School Authorities is acceptable to the Commissioner of School Education. The Commissioner of School Education notes the delay. He is of the view that the delay of four months occasioned in submitting the panel violates the Rules prescribed under the Government Order dated December 26, 2005. He infers from statement made on behalf of the School Authorities, that there was some tension prevailing at that material point of time, that the selection process was unfair. He has explained as to why a tension at the school premises would ipso facto render a selection process unfair. In such circumstances, the impugned order is set aside. The Commissioner of School Education is requested to adhere to the judgement and order dated February 12, 2015 passed in W.P. 19030(W) of 2009 (Managing Committee, Pukurgoria B. N. Vidyapith and Anr. v. State of West Bengal and Ors.). The Commissioner of School Education will complete the exercise within a period of six weeks from the date of communication of this order." (d) The present writ petition is the result of an order dated January 10, 2018, passed by the Commissioner of School Education, once again rejecting the selection process for the reason that the explanation of delay provided by the Managing Committee was acceptable. The relevant portion of the same is provided below:- "Considering the facts and explanation of delay in submitting the panel for Librarian, it appears that Managing Committee did finalize and sent the panel for approval to the District Inspector of Schools (SE), Purulia in spite of the fact that Managing Committee had its meeting on different four dates and the panel of Group D was approved in one of its meeting. I am of the opinion that the Managing Committee members are only entitled to attend the meeting and may take part in the discussion as per agenda. Approval of a panel in a meeting depends on quorum as well as consequences of majority members. There is no role of outsiders in decision making process of the managing committee in approval of the panel for Librarian as prepared by the concerned selection committee. Hence, the explanation that the delay in submitting the panel of Librarian has occurred due to outsiders is acceptable. Therefore, the panel in question cannot be approved under such facts and circumstances in accordance with law in the light of sub-rule 7 of Rule 9, stipulated in G.O. No.1594-SE(S) dated 26/12/2005. Thus, the matter is disposed of from this end. All concerned be informed accordingly." (e) That, in spite of direction for affidavit having been given on May 4, 2018, no affidavit has been filed by the respondents.
(3.) Mr. Bari, appearing on behalf of the writ petitioner, has placed reliance on two judgements of this Court to submit that the time frame under the Rule 9, Sub rule 7 of the West Bengal School (Recruitment of Non-Teaching Staff) Rules (hereinafter referred to as "said Rules"), 2005 for seeking grant of approval is only directory and mandatory. In support of such a contention he has relied upon Asok Kumar Malik v. State of West Bengal and Ors. reported in 2013(1) Calcutta Law Journal 70 and an unreported judgement and order dated June 15, 2012 in Rebati Raman Koley v. State of West Bengal (W.P. No.19450(W) of 2010).;