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TMI Blog2007 (4) TMI 730X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent whether other parties are going to be prejudiced if the relief is granted. In the present case, if the respondents would have challenged their retirement being violative of the provisions of the Act, perhaps the Nigam could have taken appropriate steps to raise funds so as to meet the liability but by not asserting their rights the respondents have allowed time to pass and after a lapse of couple of years, they have filed writ petitions claiming the benefit for two years. That will definitely require the Nigam to raise funds which is going to have serious financial repercussion on the financial management of the Nigam. Why the Court should come to the rescue of such persons when they themselves are guilty of waiver and acquiescence. In the present case, the panel was prepared in 1980 and the petitioners approached the court in 1989 after the decision in Dibakar Pal's case. Such persons should not be given any benefit by the Court when they allowed more than nine years to elapse. Delay is very significant in matters of granting relief and Courts cannot come to the rescue of the persons who are not vigilant of their rights. Therefore, the view taken by the High Court con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uted by the directions issued in the following terms 1. That writ petitioners will be offered employment in the order in which their names appeared in the cause title of the writ petition in the posts of trained primary teachers in Nadia District in the existing vacancies and in the existing vacancies arising in immediate future, none other that the writ petitioners shall be offered employment in those vacancies until the petitioners have been first offered such appointment. 2. In order to give effect to this direction, relaxation in the Rules/Orders will be pace it necessary and none of such Rules/Orders shall be pleaded as a bar to the giving of the offer of appointment to any of the writ petitioners pursuant hereto. 3. Those of the writ petitioners who accept the offer shall be actually appointed within leave days of such acceptance. As undertaking to given to the Court by the first respondent (State of West Bengal) and the fourth respondent (Director of School Primary Education, West Bengal) through their counsel Mr. Sankar Mukherjee, which undertaking is duly accepted, that the aforesaid directions shall be punctually implemented. The Secretary to the Government of We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of Sirazul Haque Mallick's case following the observations made in K.I. Shephard Ors. etc. v. Union of India [AIR 1988 SC 686] and the writ petition was allowed in the following terms : This writ petition in my view is an instance of multiplicity of proceedings and the State respondents and the Council should have allowed the petitioners the came benefits as are made applicable to those petitioners in the aforesaid Civil Rule. In view of the pronouncement by this Court in the aforesaid appeal on the basis of the judgment of the Single Judge, I grant similar benefits to the petitioners by directing the respondents to appoint the petitioners as primary teachers against the available vacancies within a period of three months from date. Aggrieved by the order of the learned Single Judge dated 13th March, 1991, an appeal was preferred before the Division Bench and the Division Bench by order dated 26th June, 1997 dismissed the appeal on the preliminary objection regarding maintainability of the appeal, i.e., that the appeal was preferred by Primary School Council or by the Chairman, Ad hoc Committee, Nadia District Primary School Council was held to be not maintainable due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the order is passed on concession. Such order on concession followed with clarification that it shall not be treated as precedent, can be taken as binding precedent to be followed. We do not want to comment further, but we must make it very clear that any order passed on concession does not lay down the law and it cannot be followed as a precedent. But regretfully the Single Judge and the Division Bench subsequently have taken it to be a law and followed the precedent giving relief to the persons leaving behind large number of persons who were on the panel and who were not parties before the Court. The Court should keep restrain before passing order saddling State Government with financial burden. A panel of 1980 was kept alive up to 2004 without realizing that by this time many more aspirants are waiting in queue. That was not the correct approach and we cannot countenance such action. This Court in the case of Mittal Engineering Works (P) Ltd. v. Collector of Central Excise, Meerut reported in (1997) 1 SCC 203 has observed as follows: A decision cannot be relied upon in support of a proposition that it did not decide. Likewise, in the case of Arnit Das v. State ..... X X X X Extracts X X X X X X X X Extracts X X X X
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