Protik Prakash Banerjee, J. - (1.)This application under Article 226 of the Constitution of India sought the cancellation of the letter dated March 1, 2013 being Annexure P/7 to the writ petition on a short point that the same was issued by the Director, Mass Education Extension Directorate on the ground that a reason given for the Directorate s inability to approve the said panel was not supported by any statutory rules. In this matter two affidavits in opposition were filed. The first affidavit in opposition which was filed was in respect of the writ petition as it had been filed and was affirmed by one Dilip Kumar Das on September 20, 2013. Subsequently, the writ petitioner filed a supplementary affidavit and an opposition was filed thereto by the District Mass Education Extension Officer, Kolkata under the same directorate and this was affirmed on August 5, 2019 by one Subhojit Mondal. I shall refer to these two as the first affidavit in opposition and the second affidavit in opposition. Replies have been filed thereto and I have considered all these materials before proceeding to judgment.
(2.)It appears that the deponent in the said affidavit in opposition was himself a part of the selection committee which recommended the panel of candidates to the Director of Mass Education Extension at a time when the said person was the Deputy Director. In the said panel as initially framed the writ petitioner as also two other persons who were named after a due selection process figured as the three candidates. In the first affidavit in opposition it was alleged that none of the candidates had the appropriate qualifications of eligibility for the post of Principal of the Calcutta Blind School. In the supplementary affidavit Ms. Sengupta has shown that there is a judgment passed by the coordinate Bench in W.P. no. 20013 (W) of 2010 of July 30, 2015 after remand by the Hon ble Division Bench. Page 75 of the supplementary affidavit shows that on the basis of the finding of the Hon ble coordinate Bench intra partes it cannot be said that the petitioner being the first candidate empanelled was not eligible. I am setting out a portion of the order of the coordinate Bench which supports the contentions of the writ petitioner.
Mr. Gupta, learned Additional Advocate General and senior advocate has appeared on behalf of the State. He drew attention to a scheme for aid to recognized institutions for handicapped dated 21st December, 1998 with reference to Government Order no. 2839-Edn (MEE)/3 S 57/98 that had been disclosed by the State in a supplementary affidavit filed on its behalf in the appeal preferred. He points out from that scheme that in the case of schools for the blind consisting of 100 students, staff pattern to be followed had been specified. Under the category of academic staff there were three sub-categories made, the first being the principal, the second teachers and the third supporting staff to include music teacher. Mr. Gupta submitted this distinction may have caused the State to act as it did but, in fairness he submitted, since the petitioner had been appointed as Assistant Teacher no such distinction could possibly be made in law. With reference to the said memo 33-Edn.(B) dated 7th March, 1990 in particular paragraph 16(3). Mr. Gupta submitted that since the distinction made by the scheme dated 21st December, 1998 was subsequent to the petitioner having been appointed as Assistant Teacher on 4th April, 1997, such could not be made or applied to her case. She was entitled to her claims under the sub-paragraph (3) of paragraph 16 of the said notification. He further submitted that there was a discrepancy in the matter of her obtaining higher qualification without prior grant of permission on her undertaking not to claim consequent enhancement in pay but such would not stand in the way of her being granted enhanced pay for improving her qualification as that was the policy of the Government. This discrepancy though disputed by Ms. Sengupta need not detain this Court as the petitioner appears to be entitled to her claims arising out of the said memo dated 7th March, 1990.

The distinction sought to be made on behalf of the State in disputing the claims of the petitioner on the basis of there being a sub-category of supporting staff in cases of schools for the blind while the same scheme did not make such distinction between music teacher and assistant teachers in cases for schools for mentally retarded handicapped children appears to be a distinction without a difference on basis of which the claims cannot be resisted. Any other stand of the State would have been unfair. This Court finds the petitioner is entitled to graduate scale of pay from the time she was appointed, i.e., 4th April, 1997 and, thereafter, enhanced scale of pay on her having obtained post-graduate degree on 16th December, 2004. The respondent no.2 is directed to assess the arrear salaries payable as a consequence of this order and disburse the same to the petitioner within a period of eight weeks from the date of communication of a copy of this order obtained from the website of this Court to be made by the petitioner on the said respondent. The amount assessed as found payable in arrears to the petitioner will have adjusted to it the balance of the amount paid to the petitioner under orders in appeal. The deductions heretofore made are no longer to be made and the disbursement of the aggregate amount found payable to the petitioner after making the said adjustment be made to the petitioner expeditiously.

Learned advocate for the respondents accepted this position.

(3.)As such, the original objection taken by the respondents that none of the candidates was eligible is no longer available to the respondents. That is why they filed the second affidavit in opposition where they alleged as follows:
iii) That panel of 9 candidate was short listed and accordingly they were asked for appear in an interview. Out of them, I candidates 6 appeared in the said interview. The said Selection Committee, in their meeting dated 19.07.2012, prepared a panel of three candidates, the names of those said 3 candidates are mentioned below:

1. Lisa Banerjee

2. Arun Kumar Manna

3. Gouri Sankar Bera

The copy of the said notice of panel list of 3 candidates is annexed hereto and marked with letter R-2.

iv) That it was found the candidate No.2 of the abovementioned panel, possessed 7 years 1 months experience as a lecture in Teaches Training Centre for the blind. The candidate, at the sl. No.3 of the above panel, possessed 6 years 11 months experience as a lecturer in Teachers Training Centre for the blind.

v) That it is stated and submitted the experience require for the said course clearly state that the candidates should have 5 years teaching experience in a school for the blind vide G.O. No.552-Edn(MEE) dated 20.04.1995.

The copy of G.O. is annexed hereto and marked with the letter R-3 .

vi) Thus as per the abovestated facts two candidates, as mentioned above, do not have the requisite qualification, as requird by the Recruitment Rules because they had the experience of teaching the teachers, not teaching the blind students. In this state of affairs if the Directorate would have vitiated the extant of the Recruitment Rules.

vii) In view of above, this Directorate did not approve the said panel and communicated its decision vide number DMEE/G-53 dated 01.03.2013 and instructed to start the process of filling up the vacant post of Principal strictly in accordance with the procedure and extant rules. But the authorities of the school did not abide by the said instruction of this Directorate and the post of Principal is still lying vacant, the worst suffers being the blind students of the school.