Nadia Distt. Primary School Council & ... vs Sristidhar Biswas & Ors

This appeal is directed against order dated 11th June, 2004 passed by the Division Bench of Calcutta High Court whereby the Division Bench affirmed the order of learned Single Judge directing that all the 55 writ petitioners be appointed as teachers within a period of six weeks. Aggrieved against this order, the Nadia District School Council filed an appeal before the Division Bench. The Division Bench affirmed the order of learned Single Judge by order dated 11th June, 2004 and hence the present appeal. In order to dispose of this appeal, few facts may be recapitulated. A panel for appointment of primary teachers was prepared in 1980 for the District of Nadia in which 1965 candidates were included in the panel. Out of this panel, only 600 were trained candidates. Rule 3(d) of the Recruitment Rules provided that while preparing the panel for appointment to the post of primary teachers, preference shall be given to the trained candidates in such a manner that all additional posts sanctioned by the Government from time to time due to enhancement in roll strength in existing schools and at least 5- per cent of the normal vacancies in such schools are filled up by trained candidates only, if sufficient number of trained candidates are available. By Notification dated 26th October, 1971, the Government of West Bengal recognized the training as an additional qualification for appointment as Assistant Teacher. Then again by Notification dated 5th September, 1973, it was provided that while giving appointment out of the panel already prepared, preference should be given to the trained candidates for appointment to all the additional posts. The preparation of panel omitting to include trained candidates was challenged by Sirazul Haque Mallick and 107 other candidates in C.R. No.2522(W) of 1981. That writ petition was allowed on 17th September, 1987. Aggrieved by that order, an appeal was preferred being F.M.A.T. No.159 of 1988 by the State. The order passed in the writ petition was modified by the Division Bench by its order dated 14th February 1989 directing to give appointment to the petitioners in the existing vacancies and in vacancies arising in immediate future and that appointment would not be offered to any one other than the petitioners. This order was passed on concession given by the State. This order was not complied with. Therefore, a contempt petition was filed and on 30th June, 1989 in the Contempt Petition in case of Sirazul Haque Mallick and 107 others, they were given appointment. Thereafter on 16th July, 1989, one Dibakar Pal and 87 others moved a writ petition being C.O. No.11154(W) of 1989. This writ petition was also allowed by the order dated 13th March, 1991 on the ground that the petitioners are similarly circumstanced as in the case Sirazul Haque Mallick and 107 others. Therefore, no different treatment can be given and they were also given benefit of appointment. Against this order, an appeal was preferred before the Division Bench which was dismissed. Thereafter, a contempt petition was filed, in pursuance to that, an order dated 23rd June, 1999 was passed and Dibakar Pal and 87 others were given appointment. Thereafter the present writ petition was filed on 2nd August, 1989. This writ petition was also allowed by order dated 17th January 2001 on the basis of the judgments in Sirazul Haque Mallick and Dibakar Pal's cases. The petitioners in this petition, i.e., petitioner and 54 others were trained candidates. Therefore, the learned Single Judge directed appointment of these 55 persons on the same rationale as in the case of Sirazul Haque Mallick and Dibakar Pal. However, the learned Single Judge did not allow similar relief to other persons who were added as parties between 1999 and 2000. Aggrieved by this order, an appeal was filed before the Division Bench and an objection of delay was raised. However, the Division Bench overruled the objection of delay but declined to give any benefit to the persons who were added in this writ petition in 1999 and 2000 and held that no relief to these persons can be given as they approached belatedly but gave benefit to 55 persons on the ground that the State did not want to expose irregularity and illegality committed in selection in Sirazul Haque Mallick'case and on similar reasoning Dibakar Pal's petition was also allowed and soon after Dibakar Pal's case, the present petition was filed in 1989. Therefore, the Court held that the petitioners approached on 2nd August, 1989 soon after the disposal of Dibakar Pal's writ petition dated 16th July, 1989. Hence, there is no delay in the appeal. Secondly, it was also contended that since the life of panel has been exhausted, the appointment cannot be made. This was also overruled. It was contended that Sirazul Haque Mallick's case and Dibakar Pal's case also cannot be treated as a precedent because in Sirazul Haque Mallick, the order was passed by concession. But this objection was overruled by the Division Bench. Next, it was contended on the basis of principle of sub-silentio that a decision which has not been given on consideration of merits and issues involved therein, that cannot be law declared by the Court and cannot have binding effect. This objection was also overruled by the High Court. Lastly, it was contended that even if any irregularity or illegality has been committed, that cannot be perpetuated. But this submission was also overruled by the Division Bench. Hence the Division Bench dismissed the appeal filed by the State affirming the order of learned Single Judge to give appointment to 55 persons. Justice Sinha, another member of the Division Bench, agreed with the view taken by the senior Judge, but observed that though the order passed in Sirazul Haque Mallick's case in 1982 and the series of litigation, these persons did not approach the court because they might be engaged in other avocations and the Court further observed that law and equality help the vigilant and not the indolent. However, the learned Judge agreed with the senior Judge and directed that only those 55 persons would be given the relief. Aggrieved by this order, present appeal was filed by the State.

As a result of our above discussion, we are of the opinion that the view taken in the present case (Sristidhar Biswas's case), relying on the judgments of Sirazul Haque Mallick and Dibakar Pal, cannot be upheld as the judgment given in Sirazul Haque Mallick's case was on concession and it was clearly mentioned that it shall not be treated as a precedent. Hence, we set aside the impugned order of the Division Bench dated 11.6.2004.

The appeal filed by the appellants is allowed. There shall be no orders as to costs.