Calcutta High Court (Appellete Side)
Mithun Thandar vs State Of West Bengal & Ors on 1 August, 2018
Author: Protik Prakash Banerjee
Bench: Protik Prakash Banerjee
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1st August,
2018
(SKB)
W.P. 9486 (W) of 2018
Mithun Thandar
Versus
State of West Bengal & Ors.
Mr. Shamim Ahmed,
Mr. Nepesh Majhi
... for the petitioner.
Mr. Kanak Kiran Bandyopadhyay
... for respondent nos. 3, 4 to 6.
Mr. Suman Dey ... for the State.
The writ petition is moved on service. Affidavit of service is taken on record. Mr. Samim Ahmed led by Mr. Bikash Ranjan Bhattacharyya, learned senior advocate have appeared.
The impugned final vacancy list at page 36 of the writ petition is illegal in so many ways even prima facie, that to recount all of them would require me to writ a new epic.
For the purpose of the present order, I only note two things. Even though this is a case where the 100-point roster applies (Annexure P/6) and even though the vacancy list advertised by the respondent no.3/Commission showed initially on the basis of prior permission three vacancies (OH) pertaining to cerebral palsy locomotor disability, the final vacancy list shows that the respondent no.3/Commission has reduced the vacancy under that category to only one. 2
The other ground Mr. Ahmed has taken is that according to the provisions of the Rights of Persons with Disabilities Act, 2016 as also Persons with Disabilities (Equal Opportunities, protection of Rights and Full Participation) Act, 1995, there could not be a different number of posts for each physically disabled category though vacancies could be different in number. It was not possible for so much of disparity between the number of vacancies declared in the respective categories of physically handicapped persons.
Learned advocate appearing for the Commission Mr. Kanak Kiran Bandopadhyay submits that the vacancies are declared on the basis of the prior permission and therefore, the respondent no.3 had nothing to do with this. Unfortunately, this does not answer the question how the prior permission for three posts in that category would suddenly have been changed to a prior permission for one post and thereby the number of vacancies advertised for the selection/recommendation for selection to employment under the State could have been reduced in violation of the then statute in force relating to reservation for those with physical disability. This Mr. Bandopadhyay cannot explain without further instructions.
I find prima facie case in favour of the writ petitioner that there has been such illegality as would vitiate the process of selection. However, it is also correct that the present writ petitioner has participated in the process of selection before filing the writ petition. Therefore, his rights are limited to whatever illegality he has allegedly discovered after the selection had commenced and not something which he could have taken exception to before the process started. The process 3 started with an advertisement. So far as the writ petitioner is concerned, that advertisement notified the vacancies. Therefore, prima facie, the writ petitioner is not entitled to challenge the vacancies notified at page 30 of the writ petition. That does not, however, cure the fatal defects at page 36. From the number of vacancies mentioned in page 36, it is clear that in case of physically handicapped categories across the board, there has been a reduction and not just in case of Physically Handicapped (OH) category; in fact, the writ petitioner has pointed out that even in the earlier selection process, there was a failure on the part of the Commission to follow the statutory provisions under the 1995 Act and at paragraphs 12, 13, 14 and 15 of the writ petition there is specific pleading that respondent no.3/Commission and/or the respondents in collusion with each other will try to illegally dereserve the vacancies, which the statute under the Roster earmarks for the physically disabled as a welfare measure. Naturally if such dereservation is made contrary to or on perpetrating fraud on the statute, the writ court cannot be silent. It is trite that after advertisement of the vacancies, which is tentative, the number of vacancies may increase because of retirement, death or other cuases but it is very difficult to see how the vacancies for which prior permission has been obtained can decrease.
Of course, Mr. Bandopadhyay submits "if the prior permission sent earlier is found to be wrong, then the vacancies could be decreased" but that if "is such a far fetched hypothesis that unless there is an affidavit showing that there is indeed something of that sort, it would be difficult to accept it as a plausible reason.
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Accordingly, there shall be an interim order restraining the respondent authorities including the respondent no.3/Commission from completing the process of its selection and recommendation in respect of 86 vacancies, initially earmarked for different categories of physically handicapped persons as at page 30 of the writ petition regardless of whatever these vacancies have been shown to be reduced to at page 36, till the disposal of the writ petition or until further orders whichever is earlier.
I clarify that the operation of the vacancy list at page 36 to the extent that it is contrary to page 30 shall remain stayed and no effect or further effect can be given to the said Annexure P/7 to the extent it differs from Annexure P/4 at page 30 till disposal of the writ petition and/or further orders whichever is earlier.
On the prayer of Mr. Bandopadhyay leave is granted to the respondent no.3/Commission to cause an affidavit-in-opposition to be filed bringing on record his instructions as also any relevant fact which would show how the vacancies could have been reduced along with all material documents within a period of four weeks from date, reply; if any, be filed within a week thereafter.
Let this matter appear after completion of affidavits with liberty to mention to both the sides.
In case Mr. Bandopadhyay's client can bring any cogent material to show how such reduction was lawfully done, his clients shall have the liberty of applying for vacating or modifying the interim order even before the returnable date. The question of maintainability of the writ petition on the ground that the writ petitioner had waived his rights is left open.
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As prayed for by Mr. Ahmed, supplementary affidavit may be filed bringing on record any further allegation he has in respect of any subsequent event. In the event, any such supplementary affidavit to be used, advance copy of the said affidavit shall be made available to Mr. Bandopadhyay at least one week before it is affirmed.
Mr. Bandopadhyay's client will be entitled to file a combined affidavit-in- opposition to the writ petition and supplementary affidavit. This order shall not prevent the petitioner from publishing the panel.
(Protik Prakash Banerjee, J.)