Calcutta High Court (Appellete Side)
Present : Hon'Ble Justice Dipankar ... vs Hon'Ble Justice Protik Prakash ... on 30 November, 2018
Author: Protik Prakash Banerjee
Bench: Protik Prakash Banerjee
IN THE HIGH COURT AT CALCUTTA
CONSTITUIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT : Hon'ble Justice Dipankar Datta
and
Hon'ble Justice Protik Prakash Banerjee
FMA No.2377 of 2011
[Prashanta Mahato--v--State of West Bengal and Others]
With
FMA No. 2376 of 2011
[Mahadev Mahato and Others--v--State of West Bengal and Others]
With
FMA No. 2378 of 2011
[Ram Sankar Mahato--v--State of West Bengal and Others]
With
CAN 2452 of 2018
For appellant in FMA No.2377 of 2011 : Mr. Rudranil De, Adv.
Mr. Manoranjan Mahata, Adv.
For the appellants FMA No.2376 of 2011 and FMA
No.2378 of 2011 : Mr. P.S. Debbarman, Adv.
Mr. Ritzu Ghoshal, Adv.
Mr. Rajarshee Datta, Adv.
Ms. Debleena Sanyal, Adv.
Mr. Sayantan Bose, Adv.
For the District Primary School Council (Purulia)
: Mr. Bhaskar Prasad Vaisya,
Ld. Additional Govt. Pleader.
Mr. Gourav Das, Adv.
Mr. Nilay Baran Mandal, Adv.
For the applicant in CAN 2452 of 2018 (interveners)
: Mr. K. Bhattacharya, Adv.
Mr. K. Ghoshal, Adv.
For the Added Respondents No. 1, 2, 3, 9, 11, 35, 45, 50,
52, 62, 65, 67 and 70.
: Mr. Himadri Kumar Mahata, Adv.
Heard on : February 9, 2018, February 16,
2018, and May 4, 2018.
Judgment on : November 30, 2018
PROTIK PRAKASH BANERJEE, J:
1. Other backward class candidates are aggrieved with a selection
process for public employment. They complain that when the
Constitution of India has guaranteed affirmative action in their favour,
the State, while implementing the statutory rules for such selection, has
done exactly the opposite. That is why, they say, that for candidates
from the "general' better called "unreserved" category, the cut-off marks
for being called to sit for the written test is 60% while for them it is 68%.
2. Three sets of writ petitioners are appellants in these three appeals.
These appeals are directed against three several judgments and orders,
all dated May 13, 2010 passed by the learned single Judge.
3. The first of these judgements was passed in WP No. 9524 (W) of
2010 [Prashanta Mahato and Others--v--The State of West Bengal and
Others], dismissing the writ petition, without calling for affidavits. WP
No.9038 (W) of 2010 [Mahadev Mahato and Others--v--The State of West
Bengal and Others] and WP No.9037 (W) of 2010 [Ram Shankar Mahato
and Others--v--The State of West Bengal Others] were also listed on the
same day. They were dismissed by separate orders on May 13, 2010
itself, following the ratio of the judgment passed in WP No.9524 (W) of
2010. The learned single Judge held that the issue sought to be raised
in these other writ petitions were more or less identical to the first writ
petition dismissed by His Lordship.
4. These were all appealed against, by way of FMA 2376 of 2011, AST
405 of 2010 (Mahadev Mahato, supra), FMA 2377 of 2011, AST 411 of
2010 (Prashanta Mahato, supra) and FMA 2378 of 2011, AST 168 of
2010 [Ram Shankar Mahato, supra]. In the first round of litigation, a
coordinate bench by a judgment dated December 16, 2010 was pleased
to reverse the decisions, allow the appeals and pass orders on the basis
of proposals made on behalf of the respondent no. 1 and on a concession
made by the learned Advocate General of the respondent no. 1. The
matters were carried to the Hon'ble Supreme Court by way of special
leave to appeal, which was granted. The Hon'ble Supreme Court by a
common order dated July 18, 2014 was pleased to set aside the
judgments under appeal finding substance in the contention that the
appellate judgments were passed on concession affecting the valuable
rights of non-parties, and to restore "to the file of the High Court for fresh
disposal in accordance with law. Appeals are allowed to the above
extent." Some of those affected non-parties had applied for intervention
before the Hon'ble Supreme Court. These were allowed by the Hon'ble
Supreme Court itself, to the extent that they were directed to be
impleaded in the restored appeals before this court. Some others
claiming to stand on a similar footing also applied for intervention before
this court after such order, which this court allowed by an order dated
May 4, 2018.
5. As I see it, the effect of the above journey to the Hon'ble Supreme
Court is that nothing remains of the order dated December 16, 2010.
Even the reasoning recorded by the coordinate bench prior to recording
the concession made on behalf of the respondent no. 1, is no longer there
as a ratio which binds this court, since the Hon'ble Supreme Court has
clearly been pleased to record that the judgment was based on
concession of the learned Advocate General, and set aside the order and
direct this court to decide the matter a fresh in accordance with law.
That "freshness" cannot come if this court revives and continues the
stale reasoning which too was set aside. This court has already held, in
the case of Pradip Kumar Karak and Others--v--State of West Bengal
and Others, reported in (2018) 4 CHN (Cal) 131, that when the Hon'ble
Supreme Court passes such a direction, all the questions remain open to
be decided by the High Court in the appeal as restored to file. This court
is also bound by its own decision. This court decided to hear all three
appeals together, since common questions of law and fact are required to
be decided.
6. Now, to the facts of the case which are material. All the appellants
and the interveners are from "other backward classes", for whom a
separate reservation is made in respect of public employment. This
includes public employment as primary school teachers. They are
aggrieved by a decision of the District Primary School Council, Purulia
which refused to allow them to compete in the selection test. They say
that the said Council advertised that admit cards for the selection test for
recruitment to the concerned posts would be available to only those
people who had obtained the minimum marks in their Madhyamik
(secondary) or equivalent examination, pertaining to each category as
mentioned in the advertisement. Their specific case is that for unreserved
Bengali, the minimum marks would be 60%, for unreserved Hindi it
would be 76.13%, for unreserved Santhali, all (no minimum marks) for
unreserved Urdu, it would be 56.13%; for scheduled caste Bengali it
would be 50.38%, for scheduled caste Hindi, it would be 66.60%, for
scheduled caste Santhali and scheduled caste Urdu, it would be all
(without minimum marks); for scheduled tribe Bengali, it would be
54.13%, for scheduled tribe Santhali, it would be all (no minimum
marks); for other backward classes, for Bengali, it would be 68.00%, for
other backward classes Santhali, it would be all that is to say, no
minimum marks and other backward classes Urdu, 59%; lastly for
differently abled/physically disabled category the cut off for visually
impaired and hearing impaired, it was all (no minimum marks) , while for
orthopedic/osteopathic disablement it was 48% for Bengali.
7. The appellants are interested only in the cut-off marks fixed for the
other backward classes. They say they belong to this category. Their
grievance, very briefly, is that the purpose of reservation is defeated if
someone from the "general", id est, "unreserved category" can be allowed
to compete in a selection process on the basis of only 60% marks in
his/her secondary examination, when those from other backward
classes, are asked to bring a minimum of 68% marks in their secondary
examinations even to compete with the general category candidates.
They submit that the benefits of vertical reservation and affirmative
action are negated by this fixation of cut-off marks. Those who are from
the weaker sections of the society are being asked to do better than those
who are from the stronger sections, just to be given a level playing field,
which is already tilted in favour of the said stronger sections. They have
of course relied upon the same statutory rules, as amended, as relied
upon by the respondents, asking this court to interpret the rules so that
the benefit of the affirmative action is granted to them.
8. The prayers have been badly drafted and the appellants sought
that they be given call-letters and allowed to compete as general category
candidates, even though they applied as "other backward class"
candidates. This court called for the records and found that the Council
had clearly advertised that an aspirant was entitled to get the application
form free of cost, and could therefore have applied both under
the"general/unreserved category" as also "other backward class category"
except that if he/she wanted any exemption on ground of age, or the
benefit of a reservation, he/she had to indicate that category in the
application form and provide sufficient documentation to substantiate it.
This is despite the relevant rule, as amended, requiring that non-
refundable application fee of Rs.200/- is to be paid by a candidate who is
not from a scheduled tribe or scheduled caste and is not exempted by the
said Rule from its operation. It is not their case that they were prevented
from applying under the "general/unreserved" category as well. The
appellants have not challenged the vires of the rules or their
constitutionality though they have alleged at paragraph 10 of the writ
petition that the said amendments are against the law laid down by the
Hon'ble Supreme Court so far as the marks awarded for interview are
concerned. They have not prayed for amending the prayers in the writ
petition, even at this stage.
9. The statutory rules, as amended, on the basis of which this
selection process and fixation of cut-off marks was made, and as averred
by the appellants in their respective writ petitions, have to be noted. At
paragraph 5 of the writ petition in the case of WP No.9524 (W) of 2010
the appellants have accepted that the recruitment process was under the
provisions of the West Bengal Primary School Teacher Recruitment
Rules, 2001 as amended by the Notifications dated May 20, 2009 and
May 27, 2009. These are actually the dates of publications of the said
two notifications in the Kolkata Gazette, Extraordinary. The said Rules
were made under the provisions of the West Bengal Primary Education
Act, 1973. The said notifications are Annexure "P/3" to the writ petition.
For better appreciation of the contentions, the provisions of the
Notification published on May 20, 2009 - pertaining to the making of a
list after the application procedure - are set out hereinbelow:
Government of West Bengal
School Education Department
Primary Branch
NOTIFICATION
No. 263-SE(P)/10M-06/2009 dated 19.05.2009 in exercise of the
power conferred by sub-section (1) and clause (k) of sub-section (2)
of section 106, read with clause (k) of sub-section (1) of section 60,
of the West Bengal Primary Education Act, 1973 (West Ben. Act
XLIII of 1973) (hereinafter referred to as the said Act), the Governor
is pleased hereby to make, after previous publication as required
by sub-section (1) of the said section, the following amendments in
the West Bengal Primary School Recruitment Rules, 2001 as
subsequently amended (hereinafter referred to as the said rules):-
Amendments
In the said rules-
(1) In rule 2-
(a) Omit clause (f)
(b) Omit clause (p)
(2) For rule 6, substitute the following rule:-
"6. Qualification.- (1) No person shall be appointed by the Council
as a teacher unless he-
(a) Is a citizen of India;
(b) Has completed the age of 18 years and has not completed the
age of 40 years on the 1st January of the year of publication of
employment notification;
Provided that the maximum age limit of the candidates ,
whose name have been sponsored by the employment
exchanges between the periods of 1st January, 2003 to 31st
December 2008 by virtue of the requisition made by the
respective Councils against the vacancies notified during that
period but could not be considered for the reason of non
completion of the recruitment by the Councils due to pendency
of court cases with respect to such recruitment, shall be relaxed
for such period by which such recruitment process have been
kept pending.
(c) Possess the pass certificate in the School Final/ Madhyamik
examination, or erstwhile Higher Secondary Pass (XI class)
examination, under the West Bengal Board of Secondary
Education or its equivalent qualification.
(2) The Government shall have power to decide the equivalence of
the qualification referred to in clause (c) of sub-rule (1) and its
decision thereon shall be final.
(3) For removal of doubt it is hereby declared that no extra marks
shall be given for higher academic qualification at the time of
selection of a teacher.
(3) Omit sub-rule (6) of Rule 7;
(4) For rule 8, substitute the following rule:-
"8. Publication of employment notification.- (1) The Council shall
publish the number of vacancies as determined under rule 4,
except the vacancies mentioned in rule 14 and the vacancies to be
filled up by inter-council transfer under the provisions of sub-
section (k) of Section 19 of the Act, together with other particulars
with respect to such vacancies in the Employment Exchange and
publish the notice in two leading daily newspapers, one of which in
the local language and other in English and may also publish in
one local weekly newspaper having adequate circulation in the
district in which vacancies have occurred.
Provided that the candidates, as referred to in the proviso to
clause (b) of sub-rule (1) of rule 6, need not apply again, but such
candidate shall requires all particulars as may be called for by the
Council:
Provided further that the Government may, if it considers
necessary to do so, notify the vacancies through such electronic
media as it may considers necessary:
Provided also that the Government may direct to notify the
vacancies centrally taking together all the vacancies in such
manner as it may considers necessary.
(2) The Council, with the prior approval of the Government,
shall, while notifying the vacancies under sub-rule (1), also
notify the detail particulars which may inter alia consist of
the following:-
(a) the date, place and time for collection of application form;
(b) the manner of submission of application form;
(c) date and time of written examination;
(d) quota for reservation with due consideration of the
reservation policy of the Government of West Bengal;
(e) the manner of payment of application fee;
(f) any other particulars as may be approved by the state
Government.
(3) The Board shall have power to-
(a) lay down, with the prior approval of the Government, the
modalities, procedure or guidelines, as
(b) the case may be, for selection of candidates for
appointment;
(c) co-ordinate the entire procedural formalities relating to
the recruitment;
(d) engage any specialised agencies for the purpose of written
examination.
8A. Fee for application.- (1) A candidate shall require to pay
non-refundable application fee of rupees two hundred in the
manner as may be notified under sub-rule (2) of rule 8;
Provided that the candidates belonging to Scheduled Castes
and Scheduled Tribes require to pay the application fee rupees fifty
only:
(2) Notwithstanding anything contained in sub-rule (1), the
candidates referred to in the proviso to clause (b) of sub-rule
(1) of rule 6, need not required to pay any fee specified in
sub-rule (1)."
(5) for rule 9, substitute the following sub-rule:-
'9. Selection Procedure. (1) The Selection Committee shall, on
completion of the application procedure, prepare a categorywise
list of the candidates in descending order on the basis of the total
marks scored by them in academic results as mentioned in item (i)
of sub-rule (2) according to merit.
Explanation.- For the purpose of this sub-rule, "categorywise list"
means the list of the candidates belonging to General, Scheduled
Castes, Scheduled Tribes, Other Backward Castes, Ex-Serviceman,
Physically Handicapped and other exempted category as may be
specified."
(2) Total marks for assessment of the candidates shall be of 50
marks as under:-
(i) Academic results ...25 marks
(ii) Extra Curricular activity ...03 marks
(iii) Written Examination ...11 marks
(iv) aptitude test/interview ...11 marks.
Explanation I.- The percentage of marks to the total full marks
obtained by a candidate in School Final/Madhyamik Pariksha/
Higher Secondary (XI class) shall be computed as percentage of 25
marks.
Explanation II.- In awarding marks for Extra Curricular activity
under item (i) of sub-rule (2).-
(a) One mark shall be credited for a certificate issued by the
West Bengal School Sports Association specifying that he
has represented the district in State level games or
sports;
(b) One mark shall be credited for "A" level certificate, and
maximum of two marks shall be awarded for "B" and "C"
level certificate, issued by the National Cadet Corps.
Explanation III- All the marks obtained under this rules shall be
recorded in score sheet
(3) The Selection Committee shall thereafter prepare a merit list
of the candidates to be called for the written test in the ratio
of 1:15 of the total number of vacancies to be filled up.
(4) The candidates selected for written examination shall be
intimated the date, time and place for such examination.
(5) If the candidate called for written examination as per
provision of the sub-rule (4) does not appear at the written
examination or does not comply with the instructions issued
by the respective Council, his candidature may be cancelled
by the Selection Committee.
(6) The candidate shall be eligible for aptitude test/ interview on
the basis of merit, which shall be determined on the basis of
adding of the marks obtained by him in the written
examination and academic results:
Provided that the number of candidates called for
aptitude test/ interview shall be restricted to five times the
number of vacancies to be filled up:
Provided further that if no sufficient numbers of
candidates are available for the aptitude test/ interview, the
Selection Committee may vary the number of candidates
called for aptitude test/ interview, but in no case such
number exceeds five times the number of vacancies.
(7) Thereafter, the marks obtained by a candidate in aptitude
test/ interview shall be added to the marks of academic
results and written examination; and a category wise list
shall be prepared on the basis of merit in descending order
in the ratio of (1 ½) per vacancy.
(8) After completion of the procedure mentioned in sub-rule (7),
marks obtained by a candidate in extra curricular activities
shall be added with the marks already obtained in academic
results and aptitude test/interview and the final category
wise list shall be prepared on the basis of merit.
(9) (a) After the process as laid down in sub-rule (8) is
completed, the Selection Committee shall at first prepare a
panel; of candidates under General Category only comprising
of the names of the candidate of General, Scheduled Castes,
Scheduled Tribes and Other Backward Classes candidates
qualifying on merit for appointment against unreserved
vacancy and shall be arranged serially according to their
merit.
(b) Thereafter, the Selection Committee shall prepare
separate panels for Scheduled Castes, Scheduled Tribes and
Other Backwards Classes candidates in the respective
category as per statutory reservation rules, from amongst the
remaining candidates of such categories.
(c) In case of candidates belonging to Exempted Category,
Ex-Servicemen and Physically handicapped category, a
separate panel shall be prepared for vacancies reserved for
the respective category:
Provided that an additional panel of 5% of General,
Scheduled Castes, Scheduled Tribes and Other Backward
Classes, Exempted Category, Ex-Servicemen and Physically
Handicapped candidates shall be prepared in the same
manner as referred to in sub-rule 8;
Provided further that additional panel of General
Category shall not include the candidates belonging
Scheduled Castes, Scheduled Tribes and Other Backward
Classes category;
Provided also that in case of non-availability of
suitable qualified Exempted Category candidate belonging to
General, Scheduled Castes, Scheduled Tribes and Other
Backward Classes and Physically Handicapped, the said
vacancy shall be filled up be a non-exempted category of
General, Scheduled Castes, Scheduled Tribes, Other
Backward Classes and Physically Handicapped, as the case
may be:
Provided also that in case of non-availability of
suitable qualified Ex-Servicemen candidate belonging to
general, Scheduled Castes, Scheduled Tribes and Other
Backward Classes, the said vacancy shall be filled up by non
Ex-Servicemen candidate belonging to General, Scheduled
Castes, Scheduled Tribes and Other Backward Classes, as
the case may be.
(10) All the panels thus prepared shall be placed in the meeting
of the Council for passing and the total number of eligible
candidates included in the panel shall be the same as the
number of vacancies plus 5% of such existing vacancies."
(6) for sub-rule (1) of rule 11, substitute the following sub-rule:-
"(1) On approval of the panel by the Director under rule 10,
the Council shall, after verifying the antecedents and original
documents of the candidates selected for the appointment,
issue the appointment letter under the signature of the
Chairman or by an officer, not below the rank of the
Secretary of the Council, duly authorised in this behalf and
any appointment made otherwise shall be invalid:
Provided that in case of non-joining of a candidates within
stipulated time from out of the normal panel, the council may
issue appointment letter from the additional panel of 5% referred
to in sub-rule (10) of rule 9."
(7) After rule 16, insert the following rule:-
"16A. Training on deputation.- (1) The Government may, by
order, identify any training necessary for a teacher.
(2) The Council, may, by an order, send a teacher for such,
training on deputation basis."
By Order of the Governor
K John Koshy
Additional Chief Secretary to the Govt. Of West Bengal
10. The notification for amendment of the Rules published on May 27,
2009 inter alia substitutes the erstwhile rules providing for assessment
by a new sub-rule and makes certain changes to existing sub rules of
Rule 9. Briefly, they envisage that the total marks for assessment of a
candidate shall be 50 marks of which the written examination shall
comprise 30 marks, aptitude interview 17 marks, and extracurricular
activities 3 marks. It further adds as an explanation the awarding of
specified mark(s) or maximum permissible marks, each for extra-
curricular activities based on certificates issued by two specified
organizations. In sub-rule 6 of Rule 9, the existing sub rule was
substituted. Earlier, as appears from paragraph 6, it read, inter alia "on
the basis of merit, which shall be determined on the basis of adding of
the marks obtained by him in the written examination and academic
results". Now, it stood amended to read "on the basis of merit, which
shall be determined on the basis of adding of the marks obtained by him
in the written examination".
11. However, at paragraph 7 of the writ petition the appellants have
relied upon a Memo, No.1262-BEW/MR-177/09(1) dated April 12, 2010,
which they submit, on its face, shows that the Joint Commissioner for
Reservation, Government of West Bengal, Backward Class Welfare
Department has specified the reservation norm for the purpose of making
a list even in case of other backward classes. It is Annexure "P/5" to the
writ petition. It is addressed to the Chairman of the District Primary
School Council. It reads as follows: -
"Sub: Observance of reservation norms in recruitment of teachers.
Sir,
It has been brought to the notice of this Department that the
District Primary School Councils have been preparing separate
lists of SC/ST/OBC and General applicants, who have been prima-
facie selected for written test. While preparing search list no
SC/ST/OBC candidates have been included in the general list,
though they are qualified as general also in terms of merit. It may
be mentioned here that general includes SC, ST and OBC and
while preparing a list of general candidates on merit, all the SC, ST
and OBC applicants who are qualified on their merit should also
be included in that list. Thus, for short-listing applicants for
inviting for written test, first a list of general candidates on the
basis of criteria fixed for such general candidates should be
prepared where all SC, ST and OBC candidates fulfilling the
selection criteria invariably be included. After that, separate lists of
SC, ST and OBC, who are not included in the general list should
be included in the list to be prepared for posts reserved for SC, ST
and OBC. Again, when final selection is made, as per provisions of
the West Bengal Scheduled Castes and Scheduled Tribes
(Reservation of vacancies in Services and Posts) Act, 1976 as
amended up to date, "The members of any Scheduled Caste and
the Scheduled Tribe candidate qualifying on merit for appointment
to any unreserved vacancy in a service or post in any
establishment to be filled up by direct recruitment shall not be
deducted from the quota reserved in such service or post for such
candidate..."Similar norms are applicable in case of OBCs also. For
this, a general merit list is to be prepared where those SC St and
OBC candidates selected on merit as against general quota should
be appointed against general quota. And only after that separate
merit lists for SC, ST and OBC should be prepared separately and
appointed accordingly.
In view of the above, you are requested to kindly see that the
SC, ST and OBC candidates who qualify as general in terms of
criteria fixed, are not deprived of their opportunities to compete for
the posts under general category, as well as for reserved posts.
Yours faithfully,
Joint Commissioner for Reservation
Date: 12-04-2010
Memo No. 1262/1(4)-BCW"
The appellants rely upon the aforesaid memo dated April 12, 2010 for
two reasons, which are in the alternative.
12. First, to urge that the formation of the separate lists for each
category after completion of the application procedure is illegal, and has
been held to be so by the State of West Bengal.
13. In the alternative, to urge that the Rules of 2001 as amended by
the notifications referred to in paragraph 9 of this judgment, particularly
Rule 9, and its sub-rules, should be so construed as to mean that at the
stage of framing of a list of eligible candidates after the application
process was over, all eligible candidates should be enlisted in a single
list, in descending order of marks based on their academic qualifications
with the category in which each such candidate applied, indicated
against his name in that single merit list in descending order; thereafter,
based on the said marks, candidates from each category would be called
to compete in or write the written examination in the ratio of 1:15 of the
total number of vacancies to be filled up.
14. The said alternative submission, as I understand it in simpler
terms, is that from the single merit list, fifteen times the number of
vacancies according to the roster should be called from each applicable
category, based on the seriality in the said single list in the descending
order. The category-wise separate lists should be made only after the
aptitude test/interview, and only after the total marks of 50 are available
for assessment for each candidate, according to the notification in
paragraph 7 of this judgment. The cut-off marks per se for the other
backward classes are not under challenge. The making of separate
category-wise list after completion of the application procedure, rather
than a single list, resulting in such a higher cut-off mark, is.
15. Coming to the first submission as summarized in paragraph 12
above, what the appellants are suggesting is that a procedure prescribed
under statutory rules as amended as in paragraph 9 can be overridden
and another procedure substituted in its stead by what is a letter from
the Joint Commissioner of Reservation, and which does not appear to be
a rule framed by the respondent no. 1. It is not in dispute that the
statutory rules being the West Bengal Primary Teachers Recruitment
Rules, 2001 as amended in 2009, by the notifications published on May
20, 2009 and May 27, 2009, are delegated legislation. The statute being
the West Bengal Primary Education Act, 1973 has delegated the power to
the State of West Bengal to make these rules. It has not delegated the
power to a Joint Commissioner. Amendments to these rules are to be
published in the Official Gazette to take effect. Even an amendment of a
statutory rule cannot be done by a letter from one functionary in a
department of the respondent no. 1 to some other functionaries or the
Council established under the Act of 1973. It is nobody's case that the
said letter has the effect of a statutory rule or it was published in the
Gazette as aforesaid. I do not think, therefore, that the statutory rules or
the procedure prescribed thereby can be held to be illegal on the basis of
the said letter dated April 12, 2010 or that the Joint Commissioner of
Reservation had the jurisdiction to override the said statutory rules as
amended. Therefore, I hold that the letter dated April 12, 2010 does not
override or substitute the procedure prescribed by the statutory rules
aforesaid. The first submission of the appellants as in paragraph 9
above, is therefore considered and rejected and fails for the above
reasons.
16. The second and alternative submission as summarized in
paragraphs 13 and 14 of this judgment, is apparently more attractive.
The appellants say Rule 9(1) as amended on May 20, 2009 speaks of "a
category wise list" and at Rule 9(3) speaks of "a merit list" and not
several lists according to the separate category of applicants, after
completion of the application procedure. They submit that even Rules
9(7) and 9(8) as amended speak of "a final category-wise list" which is to
be prepared on the basis of merit in descending order after the
interview/aptitude test. It is only in Rule 9(9)(b) that the respondent no.
1 provided for preparation of separate panels, but first under Rule
9(9)(a), a panel is to be prepared, containing "candidates under General
Category only comprising of the names of the candidate of General,
Scheduled Castes, Scheduled Tribes and Other Backward Classes
candidates qualifying on merit for appointment against unreserved
vacancy and shall be arranged serially according to their merit".
17. Therefore, they submit, the intention of the respondent no.1, which
framed the rules and their amendments, is clear. There may be several
panels, according to the respective categories, but only one category-wise
list of candidates in descending order of merit, showing the categories
under which, they had applied. This, they say, is to be done at both the
stage after completion of the application procedure and also after the
completion of the evaluation after the written test, the interview/aptitude
test, and the awarding of the marks under the various categories as in
Rule 9(2) as amended.
18. If there was a single merit list, in descending order of marks based
on the academic qualification reduced to a percentage of 25, then a
person who had applied for an unreserved category and a person from
the other backward classes will be in the same list, with only two
differences - the category under which each had applied would be
indicated in the single list and their position in the list would depend
upon the objective criterion of how many marks, rationalized as a
percentage of 25 in their Higher Secondary or Madhyamik examination,
each had got. If a member of the OBC got 68% under that criterion, his
name would be above that of the candidate who was applying for
unreserved seats, and was from the general category, who had got 60%
according to that criterion. So, when the time came for a call to sit for
the written test, he who had got 60% would not be given a preference
over he who had got 68%. Since the appellants are interested only in
being called to participate in the written test, in the ratio of 1:15
considering the number of vacancies in each category, the anomaly
created by having separate category wise lists at the stage before such
chance to sit for the written test, would be thus resolved.
19. The appellants submit that the letter dated April 12, 2010 written
by the said Joint Commissioner, should be thus used to interpret Rule 9
and its sub-rules as amended as in paragraph 9 of this judgment, and to
find the true intention of the authority which made the rules since it also
speaks of the said single-list with different categories where all
candidates were enlisted in descending order of merit, for being called to
sit in the written test.
20. As I said, this second and alternative submission has an
undeniable attraction and it appears to be most reasonable. It also
explains the reason why the Joint Commissioner sent the letter dated
April 12, 2010 before the advertisement dated April 25, 2010 was issued
by the concerned District Primary School Council, so that the said
Council did not interpret the statutory rules in a manner whereby several
category-wise lists were compiled after the completion of the application
process.
21. I have, however, always found, that where two interpretations are
possible of statutes or statutory rules, the best way to find out which one
is more reasonable and purposive, is to take an example where the worst
possible scenario, which is also likely, is considered. The worst possible
scenario is where after a lawful selection process, no one who is from a
reserved category makes it to the selection test, on merit, from a single
"general" list where all categories are enlisted. If I accept the alternative
submission in paragraphs 13 and 14 of this judgment, can that happen?
If it can happen, obviously, it would be contrary to the very purpose of
having reservations for scheduled castes, scheduled tribes and other
backward classes. Then, obviously, this alternative submission as to
how Rule 9 and its sub-rules are to be interpreted, would have to be
abandoned. So, this court formulated such an example and placed it
before the learned advocates for the appellants for their reaction.
22. This example is as follows: - We all know that one of the enduring
complaints has been the privilege, of class, money, culture and
educational background, which the candidates from general category are
reputed to have; that is why we needed affirmative action to bring those
from scheduled castes, scheduled tribes and other backward classes
"up", vertically, so that they could compete on even terms. Let us
suppose that in a particular year, the candidates who apply for being
considered for the process of recruitment, for hundred vacancies, have 5
lakh candidates, of whom three lakhs are from the general category. Let
us also suppose, that the lowest applicant in the general category
obtained 60% marks in the Madhyamik Pariksha (Secondary) or
Ucchyamadhyamik Pariksha (Higher Secondary) or its equivalent, as it
has happened in the present case, and the highest marks obtained by a
candidate from the other backward class category (or for that matter,
scheduled caste or scheduled tribe category) obtained fifty nine percent
marks. If there was a single list in the descending order at the stage
where the Council was to send call-letters to candidates for sitting in the
selection test, in the ratio of 1:15, according to seriality of that list, as in
the example proposed by the appellants as in paragraph 18 of this
judgment, naturally, no one who did not belong to the general category
would get a call. Therefore, in effect, if there was a single list as
proposed by the appellants in paragraph 18 above, the effect would be
that the statutory rules providing for reservation as aforesaid, would be
defeated since none of those who had applied for recruitment from the
reserved category would be eligible to receive the call letter and instead of
reservation for affirmative action, the process of public employment
would be based merely on merit, even at the threshold.
23. On the other hand, the existing system which the Council has
followed, where different cut-off percentage marks were fixed for the
different categories of applicant, and the lowest cut-off mark varied
according to the separate category-wise lists prepared, ensured that
there would be an opportunity for every category of candidates to
participate in the process for selection and the selection test and receive
a call letter. It is unfortunate that in the present process under
challenge, candidates from the other backward classes who applied had
done so well in their Madhyamik or Ucchyamadhyamik examinations, as
the case may be, that when separate category-wise lists were prepared, it
was found that the total number of candidates from that category who
could be called to sit for the selection test in the ratio of 1:15 for the
available vacant posts as reserved for them, worked out to have as the
lowest eligible candidate someone who had 68% percent marks. Those
who had applied as general candidates on the other hand, were not as
meritorious in their Higher Secondary or Secondary Examinations
(Ucchya Madhyamik or Madhyamik or their equivalent) and so in their
case, using the same arithmetic and the ratio of 1:15, the lowest marks
obtained by a candidate who could be given the call letter was 60%.
However, at least this ensured that each category of reservation had
candidates who would be called to sit for the selection tests and
therefore, when such separate category-wise lists were prepared by the
Council whether at the stage just after the application procedure was
over or at the stage after the total marks were available after the selection
test, the purpose of the statutory rules for reservation was fulfilled. The
appellants had to accept from the Bar that in case of this example, their
interpretation of the statutory rules will fail, and no benefit will accrue to
any reserved category of candidates.
24. In such view of the matter, I am afraid that I cannot give in to the
attraction of the alternative argument which was advanced by the
appellants as summarized by me in paragraphs 13 and 14 of this
judgment. The example given in paragraph 18 of the judgment as a
result of the interpretation of the rules in the manner in which the
appellants want, fails in view of the example as in paragraph 22 of this
judgment. The statutory rules are the same. If, however, an
interpretation which I make for application to one fact-situation defeats
the purposes of the rules if applied to in another case, then it cannot be
a correct interpretation. The interpretation which I propose - based on
what the Council has done as in paragraph 23 of this judgment - will
maximize the chance of candidates from other backward classes, and for
that matter, from the scheduled castes and tribes, of getting public
employment, both in the general category and the reserved category.
25. This is because, the interpretation of Rule 9 as amended as in
paragraph 9 of this judgment, as I see it, is that there would be separate
category wise lists after the application procedure is over and also after
the total marks after the selection test is available, and from there first a
single panel will be prepared including all the candidates who have done
well on merit, which would include the most meritorious
"unreserved/general", "scheduled caste/scheduled tribe" and "other
backward class" candidates, and the most meritorious of them would be
offered employment in the general/unreserved category, regardless of
whether they came from a different category, and then separate panels
will be prepared, where the remaining candidates from each category will
be empaneled in their separate panels, when they would be offered
employment in the vacancy reserved for their particular category in the
roster. This will increase the chance of meritorious candidates even from
the other backward classes to be appointed in vacancy shown to be a
general category vacancy in the roster while also ensuring that that they
continue to be appointed in the vacancies which are reserved for the
other backward classes in the roster, from their separate panels. This
would give full and proper effect to the purpose of reservation, affirmative
action and the statutory rules for the same. However, for this, as I have
demonstrated in paragraph 23 above, it is imperative that there
continues to be separate category-wise lists both after the completion of
the application procedure, as in Rule 9(1) and its Explanation, Rule 9(7)
and Rule 9(8) as amended and referred to in paragraph 9 of this
judgment, and the said Rules and all its sub-rules are interpreted
accordingly.
26. Because, as I have already held in paragraph 8 of this judgment,
the appellants chose never to pray for quashing of the notification
published on May 27, 2009 referred to in paragraph 10 of this judgment,
nor even challenge it in any prayer made in the writ petition, even on the
ground that it violated the law laid down by the Hon'ble Supreme Court
regarding the maximum marks permissible to be allotted for a viva voce
test/interview, nor sought for amendment of the writ petition even at the
appellate stage, or even argued this point, though it was taken as a
ground of appeal, inter alia in Ground VII of only the memoranda of
appeal in FMA 2377 of 2011, AST 411 of 2010 (Prashanta Mahato,
supra) and FMA 2378 of 2011, AST 168 of 2010 [Ram Shankar Mahato,
supra], and not in FMA 2376 of 2011, AST 405 of 2010 (Mahadev
Mahato, supra), I am afraid that I do not find anything on the basis of
which to interfere with the orders under appeal.
27. In such view of the matter, the appeals stand dismissed without,
however, any order as to costs. The original of this order shall be placed
in the records of FMA 2377 of 2011, AST 411 of 2010 (Prashanta
Mahato, supra) and photocopies hereof shall be placed in the records of
FMA 2378 of 2011, AST 168 of 2010 [Ram Shankar Mahato, supra], and
FMA 2376 of 2011, AST 405 of 2010 (Mahadev Mahato, supra) and form
part of their records respectively.
(PROTIK PRAKASH BANERJEE, J.)
DIPANKAR DATTA, J.:
I entirely agree with my learned brother that the appeals, for the reasons assigned in the opinion rendered by His Lordship, deserve dismissal.
(DIPANKAR DATTA, J.)