When there was no guideline as to who would be appointed as the Mukhya Samprasarak In-charge in MSK, it is the seniority which should be taken into account and not any other living thing: Calcutta High Court

 For the petitioner : Mr. Prosenjit Mukherjee Form No. J(2) IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction Appellate Side Present : The Hon’ble Justice Abhijit Gangopadhyay WPA 230318 Samsul Haque Versus The State of West Bengal & Ors. : Mr. Saptarshi Chakraborty : Mr. Arghya Kamal Das : Ms. Poulami Dutta For the State : Mr. Himadri Sikhar Chakraborty : Ms. Debdooti Dutta For the Respondent No.7 : Md. Sarwar Jahan : Mr. Debanshu Ghorai Heard On: 30.06.2021 22.07.2021 29.07.2021 13.08.2021 & Judgment On: 23.08.2021 Abhijit Gangopadhyay J. The matter relates to selection and appointment of Mukhya Samprasarak In charge in Madhyamik Siksha Kendra was appointed as Mukhya Saprasarak by the Administrative Committee of the said MSK. Such decision was taken on 14.12.2018 but there was no guideline or circular or order of the Government of West Bengal as to appointment of Mukhya Samprasarak In charge at the material point of time as has been disclosed in Annexure ‘R 7’ at page 17 of the Report which is an order dated 27th May 2019. In the said order dated 27th May 2019 it has been stated that the new Mukhya Shiksha Samprasarak Samprasarika In charge or Samprasarak Samprasarika In charge will be selected by the Administrative Committee out of the working Samprasarak etc. on the basis of seniority in service and preference would be given to the person who has a B.Ed. Degree. 2. Learned advocate for the petitioner submits that when Mukhya Samprasarak In charge was selected by the Administrative Committee of the Maliadanga MSK this order dated 27th May 2019 of the Government of West Bengal was not there and therefore in absence of any restropectivity of this order dated 27.05.2019 this cannot be made applicable to the petitioner. In any event he has made a submission that even in this order it is a question of giving preference but on the basis of ‘seniority in service’ in MSK is also mentioned in the order meaning thereby that if there are two similarly situated Samprasaraks in one MSK then the one of B. Ed. Degree would be considered. The emphasis of this order dated 27.05.2019 also is on the seniority. 3. Learned advocate for the State has submitted that at that point of time when the private respondent being the respondent no.6 was selected as the Mukhya Samprasarak In charge there was no guideline as to who could be appointed as Mukhya Samprasarak In charge and therefore as per direction of the concerned Block Development Officer the Administrative Committee selected the private respondent being the respondent no.6 as the Mukhya Samprasarak In charge of the concerned MSK. 4. In this respect I hold that when there was no guideline as to who would be appointed as the Mukhya Samprasarak In charge in MSK it is the seniority which should be taken into account and not any other thing. From the resolution taken by the Administrative Committee dated 14.12.2018 as found from page 15 of the Report submitted before this court today it appears that why the respondent no.6 as Samprasarak junior to the petitioner in the said MSK was appointed as the Mukhya Saprasarak In charge of the said MSK is not clarified. The resolution only says the cooperating attitude and acceptability had been carefully considered and the said person namely Rafikul Islam was appointed as the Mukhya Saprasarak In charge of the said MSK. This resolution is actually non speaking and does not disclose the shortcomings of the petitioner or the specific cooperating attitude and acceptability of the private respondent being the respondent no.6. Therefore the appointment of the private respondent I find is not in accordance with the policy of the State relating to appointment in such posts when a question of selection comes to similarly placed persons the principle of the State is that the seniority is to be followed and in every known field of service if there is no other conditions laid down in selection of persons for a post wherein a selection is to be made from equally placed candidates seniority is given preference. 5. For the reasons as aforesaid I set aside the appointment of respondent no.6 as the Mukhya Samprasarak In charge of the said MSK and I direct the concerned authority i.e. B. D. O. of Sagardighi Block to cancel the appointment of Rafikul Islam as Mukhya Samprasarak In charge forthwith and to appoint the petitioner namely Samsul Haque as the Mukhya Samprasarak In charge of the MSK forthwith. passed today. 6. This writ application is allowed and under no circumstances the BDO shall delay the matter more than two days after receiving a copy of this order 7. The Report filed by the concerned BDO be kept with the record. 8. All the parties are directed to act on the basis of a website copy server copy of the order passed today by this court. 9. No costs. 

Summary: “…The principle of the State is that the seniority is to be followed and in every known field of service if there is no other conditions laid down in selection of persons for a post wherein a selection is to be made from equally placed candidates, seniority is given preference”, held the Hon’ble High Court at Calcutta in the matter of Samsul Haque vs. The State of West Bengal [W.P.A. 23034 of 2018]. The facts of the case relate to the selection and appointment of Mukhya Samprasarak In-charge in Madhyamik Siksha Kendra (MSK). The petitioner, Samsul Haque, alleged that he should have been given the responsibility of the Mukhya Samprasarak In-charge after the retirement of the Mukhya Samprasarak of the MSK on 2nd June 2018, since he was the senior-most Siksha Samprasarak. However, the Block Development Officer (BDO) of the Sagardighi Block submitted a report before the Hon’ble Court stating that a person junior to the petitioner namely Rafikul Islam, was appointed as the Mukhya Samprasarak by the Administrative Committee of the said MSK. Such a decision was taken on 14.12.2018 without any available guideline or circular or order of the Government of West Bengal as to the appointment of Mukhya Samprasarak In-charge at the material point of time, which had been stated by a Report in an order dated 27th May 2019. It was also stated in such order that the new Mukhya Siksha Samprasarak/Samprasarika In-charge or Samprasarak/Samprasarika In-charge would be selected by the Administrative Committee out of the working Samprasarak based on seniority in service and preference would be given to the person who carried a B.Ed. Degree. The Learned Advocate for the petitioner submitted that when the Mukhya Samprasarak In-charge was selected by the Administrative Committee of the Maliadange MSK, the order of 27th May 2019, was not yet published, hence, in absence of any such retrospective order, it would not apply to the petitioner and in case of any event of any submission, preference would be given to ‘seniority of service’ in MSK and if there happen to be two similarly situated Samprasaraks in one MSK, then, the B.Ed. Degree would be considered. The Learned Advocate for the State stated that when Rafikul Islam was selected as the Mukhya Samprasarak In-charge, there was no guideline concerning the fact that who could be appointed as the Mukhya Samprasarak In-charge, and hence, on the director of the BDO, the Administrative Committee selected the Rafikul Islam as the Mukhya Samprasarak In-charge of the concerned MSK. The Hon’ble Court adhered to the fact as to when there was no guideline of who could be appointed the Mukhya Samprasarak In-charge in MSK, the seniority should be taken into account and not anything else. Based on the resolution taken by the Administrative Committee dated 14.12.2018, it was still unclear as to why Rafikul Islam, being junior to the petitioner, was still considered as the Mukhya Samprasarak In-charge and not the junior. The said resolution solely focused on the cooperating attitude and acceptability and hence, Rafikul Islam was considered as the Mukhya Samprasarak In-charge in the MSK and not the petitioner.