Calcutta High Court
Uttam Kumar Maiti vs State Of West Bengal And Ors. on 17 August, 2007
Equivalent citations: 2007(4)CHN499
JUDGMENT
1. The subject-matter of challenge in the present appeal is an order dated 20.12.06 passed by the learned Single Judge of this Court in W. P. No. 26838 (W) of 2006.
2. In the writ application, the only prayer made by the writ petitioner/ appellant was for a direction upon the respondent authorities to allow the writ petitioner to appear in the interview for appointment in the post of clerk. Since the name of the writ petitioner was not sponsored by employment exchange, he approached this Court by filing a writ application for such direction upon the respondent authorities to allow the petitioner to appear in the interview. The writ application was rejected by the learned Single Judge on the ground that there was no specific averment in the writ application stating that the name of the writ petitioner was not earlier sponsored by the employment exchange concerned.
3. It is the main contention of the learned Advocate of the appellant/writ petitioner that the recruitment procedure followed by the respondent authorities violated the principles of law laid down by the Hon'ble Apex Court in the case of Excise Superintendent, Malkapatnam, Krishna District, A.P. v. K.B.N. Visweshwara Rao and Ors. .
4. It is the contention of the learned Advocate of the appellant/writ petitioner that the concerned authority should have adopted the following procedure, namely inviting the names from the concerned employment exchange and also notifying the vacancies in the newspaper, as it was directed by the Hon'ble Apex Court in the judgement as referred to above. But in the present case, the concerned authority proceeded only on the basis of names sponsored by the employment exchange. Vacancies never notified in the newspaper. Accordingly, it is submitted by the learned Advocate of the appellant/writ petitioner that the matter may be sent back to the concerned authority to proceed afresh with the selection process by inviting the names from the employment exchange and also by notifying the vacancies in the newspaper.
5. The learned Advocate appearing for the State-respondents refers to West Bengal Schools (Recruitment of Non-teaching Staff) Rules, 2005. The learned Advocate appearing for the State-respondents refers to Rule 8(5)(a) and 8(5)(b), which is quoted below:
8(5)(a): On receipt of the sanction from the District Inspector of Schools, the school authority shall make a requisition to the employment exchange for sponsoring, within forty-five days, names of the candidates.
8(5)(b) : In case of receipt of a non-availability certificate from the employment exchange, the school authority shall, under intimation to the District Inspector of Schools, make an advertisement with complete postal address of the school and other relevant particulars in a daily newspaper having circulation throughout the State.
6. It is submitted by the learned Advocate appearing for the State-respondents that in view of the provisions of Rule 8(5)(a) and 8(5)(b), names were invited from the employment exchange and on the basis of such names, selection process started. It is submitted by the learned Advocate of the State respondents that in the writ application, there was no such prayer made by the writ petitioner that the post was required to be advertised so that non-sponsoring candidates could appear in the interview and the learned Single Judge was very much justified in rejecting the writ application.
7. We have heard the learned Advocate, of the respective parties and we have perused, the various judgement of the Hon'ble Apex Court referred to above. Principles of law laid down by the Supreme Court in the case of Excise Superintendent, Malkapatnam v. K.B.N. Visweshwara Rao (supra) are quoted below:
6. ...Better view appears to be that it should be mandatory for the requisitioning authority/establishment to intimate the employment exchange, and employment exchange should sponsor the names of the candidates to the requisitioning departments for selection strictly according to seniority and reservation, as per requisition. In addition, the appropriate department or undertaking or establishment should call for the names by publication in the newspapers having wider circulation and also display on their office notice boards or announce on radio, television and employment news bulletins; and then consider the cases of all the candidates who have applied. If this procedure is adopted, fair play would be subserved. The equality of opportunity in the matter of employment would be available to all eligible candidates.
8. In a Division Bench judgment of this Court, reported in 2007(2) CHN 761 (Manik Chandra Das v. State of West Bengal and Ors.), following the decision in the case of K.B.N. Visweshivara Rao (supra), it was held by the Division Bench of this Court that the appropriate authority of the department or undertaking or establishment should consider the cases of all the candidates who have applied for filling up any vacant post or posts along with the employment exchange sponsored candidates strictly in accordance with law in order to ensure equal opportunity in the matter of employment to all the eligible candidates and any executive order or circular issued by any authority in this regard has to be read and/or followed subject to the aforesaid law laid down by the Hon'ble Supreme Court.
9. It is an admitted position that in the present case, the concerned authority proceeded only on the basis of names of the candidates, which were sponsored by the employment exchange and no advertisement was made in any newspaper notifying such vacancy. On an application for stay, this Court passed an interim order restraining the school authority from holding any interview of the candidates of the concerned post, which is the subject-matter of the writ application.
10. Since the selection process is stayed by this Court, in our considered view, it will be proper for this Court to send back the matter again to the concerned authority to proceed afresh with the selection process keeping in view the principles of law laid down by the Hon'ble Supreme Court in the case of K. B. N. Visweshwara Rao (supra).
11. Accordingly, we direct the respondent authority as also the school authority to proceed with the recruitment process afresh. Such authority will requisition the names of eligible candidature from the concerned employment exchange and simultaneously, they will also notify the vacancies in Bengali newspaper having wide circulation throughout the State of West Bengal so that all the eligible candidates may offer their candidates and participate in the selection process. The respondent authority is also directed to act in strict compliance with this order.
12. The appeal is accordingly, allowed setting aside the order passed by the learned Single Judge. The application for necessary order being CAN No. 457/07 is accordingly, disposes of,
13. There will no order as to costs.
14. It is submitted by Mr. Banerjee, learned Advocate appearing for the State that in such cases, the cost of advertisement in the newspaper should be borne by the school authority from their Development Fund. But we are of the view that it will not be proper for this Court to pass any such direction. Such prayer is refused.
15. Urgent xerox certified copy of this order, if applied for, be given to the parties.