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Ajit Sanyal and Anr Versus Basiruddin Mondal and Anr.

1982 (2) TMI 319 - CALCUTTA HIGH COURT

Dated:- 10-2-1982 - M.M. Dutt and M.K. Mukherjee, JJ. For Appellant: A.P. Chatterjee and Rabilal Maitra For Respondents: D. Pal and H.N. Mukherjee JUDGMENT 1. In these three appeals, the facts and most of the points involved are the same as in two other appeals being F. M. A. T. No. 1380 and F. M. A. T. No. 1499 of 1981, both of which were disposed of by this Court by the Judgment dated January 11, 1982. These appeals have been preferred by the District School Board of Nadia against the judgment .....

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ey were appointed in deputation vacancies arising out of deputation of teachers of Primary Schools for undergoing training in the Junior Basic Training Institute. But they were no appointed in the permanent vacancies in the posts of primary teachers. It is not disputed that the respondents-writ petitioners had been working in deputation vacancies from time to time since 1973 or 1974. The Director of Public Instructions, West Bengal, by his memo. No. 6932(67) dated December 19, 1974 issued the fo .....

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erm even if the validity of the panel where their names occur expires or a fresh panel is prepared in the meantime. S. N. Das. For D.P.I. West Bengal. 3. The said circular dated December 19, 1974 was, from time to time. Suspended and such suspensions were also relaxed, but ultimately, by an order dated November 3,1978, the Government of West Bengal issued an order which has been impugned in the Writ petitions. The said order is set out below :- Government of West Bengal. Education Department. Pr .....

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nment's full examination of the entire policy regarding ultimate absorption of deputation vacancy teachers on the mode and practice of such absorption, the final absorption of candidates who worked as primary teachers for one or more terms in deputation vacancies should be kept suspended until further orders. It is also requested that information wanted in para 2 of this department Memo No. 1653 Edn.(P) dated 7.10.78 may be furnished in order to examine the issue. Meanwhile this Deptt. G.O.N .....

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resh panel. It is not disputed that if the circular of the Director of Public Instructions had not been so suspended, the respondents-writ petitioners would have been absorbed in permanent vacancies on the strength of the said circular. In the circumstances, the respondents-writ petitioners moved this court challenging the validity of the impugned order dated November 3, 1978. 5. The learned Judge, after considering the facts and circumstances of the case and the submissions made on behalf of th .....

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further directed that the appointments should be given in schools nearer to the residence of the respondents-writ petitioners as far as possible. Hence, these appeals by the District School Board of Nadia. 6. It has been stated already that the facts and most of the points involved in these appeals are the same as in F. M.A.T. No. 1380 of 1981 and F. M. A. T. No. 1499 of 1981. The subject matter of those appeals also was the validity of the impugned order dated November 3, 1978. On behalf of th .....

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judgment, he has not made any argument on the same. In other words, the learned Senior Standing Counsel does not give up the said contentions, but he reiterates the same. It is not necessary for us to refer to the said contentions, for they are already covered by the said judgment. 7. Besides the said contentions, the learned Senior Standing Counsel has, in these appeals, raised three other points. The first of such points relates to the question as to the maintainability of the writ petition ou .....

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ification or advertisement dated November 27, 1978. Out of the said fifteen writ petitioner, seven have been already appointed and two others have been included in the panel. It is contended on behalf of the appellants that, as the said seven writ petitioners who have been already appointed to the posts of primary teachers under the District School Board, Nadia are disentitled to relief, the entire writ petition should fail and should be dismissed on the ground. In support of the said contention .....

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isition. They were not jointly interested in any land or structure. They had independent causes of action. It was held by Sinha J. that they could not combine themselves and make one single application under Article 226 of the Constitution. Further, the learned Judge observed that if, however, it was permissible for the said persons to join in one application, the application was not maintainable at least with regard to four applicants who had made applications under section 18 of the Lad Acquis .....

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writ proceedings. If the right to relief of more than one person arises out of an act or transaction or series of acts or transactions involving common questions of law and fact such persons may join in one application. The Code of Civil procedure does not contain any provision providing for the dismissal of a suit or proceeding on the ground that it has failed in respect of one of the joint plaintiffs or petitioners. If the filing of a suit or proceeding jointly by two or more persons is in acc .....

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sh Nayak's case (Supra) held that if the claim for relief made by the petitioners be joint and it is not possible to make any severance of the claims of each petitioner, in such case if one petitioner is disentitled to the claim. The entire petition would fail. But where the claim of the petitioners for relief is joint and arises out of the same act or transaction or involves common questions of fact or law and the relief claimed by one petitioner is severable from the other petitioners' .....

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s contention is without any substance. Even though the procedure regarding suit is not applicable to writ proceedings, there is no bar to the Court adopting such procedure, if thought necessary in the discretion of the Court. The grant of relief under Article 226 of the Constitution is discretionary and in exercise of such discretion the Court will act in accordance with the principles of justice, equity and good conscience. The Court, in our opinion, should not be guided by technicalities, but .....

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.....Where the Legislature has provided no procedure to be followed in cases which must and do arise, the Courts must be taken to have inherent power to decide the question of procedure, and, if necessary, to invent a procedure for themselves. It is not to be supposed that a Court in the administration of justice will refuse an application, which on the merits it ought to grant, simply because the applicant asks the Court to exercise its admitted powers under a wrong section. Judicial procedure .....

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prayed for. If the contention of the learned Senior Standing Counsel is accepted, the State Government or any other authority may be granting relief to one of the several joint writ petitioners to get the entire writ petition dismissed. In the instant case also, the District School Board concerned has appointed some of the respondents writ petitioner in F.M.A.T. No. 1544 of 1981 during the pendency of the Rule Nisi. In our opinion, it does not lie in the mouth of the District School Board, that .....

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Public Instruction had no authority to prepare an additional panel. Further, the respondents-Writ petitioners were not selected by the Advisory-cum-selection Committee before their names were included in the additional panel. In the circumstances, it is contended that the respondents-writ petitioners cannot have any claim to be absorbed in permanent vacancies by virtue of the said circular dated December 19, 1974 of the Director of Public Instruction. 13. The learned Senior Standing Counsel has .....

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of 18 circles for appointment of primary teachers as prepared by the Advisory-cum-selection Committee of the District School Board, Nadia. It is apparent from the letter of the Director of Public Instructions that one panel was prepared and not a panel and an additional panel. It is urged on behalf of the appellants that as the names of 199 candidates were included in a separate list two days after the preparation of the first list, it would be treated as an additional panel. We are unable to ac .....

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ict after adequate publicity and in the manner provided in rule 3B. 3B. (1) The Director of Public Instruction, West Bengal may with the approval of the State Government, set up a selection Committee in each district to assist him in selecting suitable persons from amongst the candidates for inclusion in the panel of qualified teachers for the district. (2) The selection Committee may hold such tests including interviews as they may deem proper. It is open to selection Committee to call only tho .....

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e included in the panel for the district. (4) The panel may show separately the names of qualified (1) women teachers (2) Scheduled Tribe teachers. (3) Scheduled Caste teachers and (4) other teachers. (5) The Director of Public Instruction West Bengal, may remove at any time the name of any person from the panel for failure of the person to accept or join in time an appointment offered to him by the Board or on other good and adequate reasons. 15. Much reliance has been placed on behalf of the a .....

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to one panel consisting of the names of 2231 candidates which are admittedly included in two lists - one dated July 27, 1973 and the other July 29, 1973. 16. It is next contended that the candidates including the respondents-writ petitioners whose names have been included in the list dated July 29, 1973 were not selected by the Advisory committee and as such, they are not entitled to be appointed to the posts of primary teachers. This contention is also devoid of any merit. Even assuming that t .....

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e Director of Public Instructions. In the absence of any proof or even any allegation of malafide or bias on the part of the Director of Public Instruction, we are of the view that the District School Board cannot challenge the validity of the panel prepared by the Director of Public Instructions Apart from that, there is nothing on record to show that the Advisory Committee had not selected the 199 candidates including the respondents writ petitioners for inclusion in the panel. The learned sen .....

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