Calcutta High Court (Appellete Side)
Dr. Sutapa Sarangi vs State Of West Bengal & Others on 20 December, 2019
Author: Tapabrata Chakraborty
Bench: Tapabrata Chakraborty
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20.12.19
rpan / 16
Court No.15
W.P. No. 16891 (W) of 2019
Dr. Sutapa Sarangi
- Versus -
State of West Bengal & Others
Mr. N. C. Bihani,
Ms. Papiya Banerjee Bihani
... for the petitioner.
Mr. Swapan Kumar Datta,
... for the State respondents.
Mr. Subhranshu Panda, Mr. Anindya Sundar Chatterjee ... for the W. B. College Service Commission.
Mr. Amitava Chaudhuri, Mr. N. Roy, Ms. Ranjaboti Roy ... for the University.
Ms. Mahua Banerjee ... for the College.
The present writ petition has been preferred primarily praying for the following relief:
"a) A writ in the nature of Mandamus commanding the respondents and each one of them to forthwith effect pay fixation of the petitioner to the post of Assistant Professor from the date of her joining in the respondent No.9 college that is to say with effect from May 16, 2017 and release all her payment;"
Mr. Bihani, learned advocate appearing for the petitioner submits that on the basis of recommendation of the West Bengal College Service Commission (in short, the said Commission), the petitioner was appointed to the post of Assistant Professor in Bengali in Rani Dhanya Kumari College (in short, the said college) by a letter dated 2nd May, 2017 issued by the respondent no. 10. She is discharging her services in the said post till date but her pay fixation has been withheld on a purported ground that she has been appointed in a post at roster point no.12 which stands earmarked for Unreserved 2 (Persons With Disabilities). By a letter dated 13th November, 2017 the respondent no.4 directed the respondent no.10 to regularize the roster with Backward Classes Welfare Department (in short, BCWD) and the Women & Child Development and Social Welfare Department (in short, WCDSWD). Accordingly, the college authorities adopted a resolution on 25th November, 2017 to reserve the vacancy pertaining to roster point no.20 for Persons With Disabilities (in short, PwD) (Visually Impaired) and forwarded the said resolution to the WCDSWD. In response thereto, the Deputy Secretary of WCDSWD by a letter dated 14th June, 2018 directed the respondent no.10 to dispose of the issue in the light of Sections 33 and 36 of PwD Act, 1995 read with Section 34(2) of the Right of the Persons with Disabilities Act, 2016. The respondent no.10 thereafter issued a letter to the Secretary, WCDSWD on 18th June, 2018 to resolve the issue since BCWD had already accepted and ratified the proposal towards de-reservation of roster point no.12 as Unreserved and for reservation of the vacancy at roster point no.20 for PwD. Thereafter the respondent no.4 issued a memo dated 2nd May, 2019 to the respondent no.8 seeking approval of the process towards de-reservation so that pay fixation can be effected in favour of the petitioner but in vain.
Mr. Bihani submits that in similar circumstances de-reservation has been approved in respect of a teaching post in Agarpara Balika Vidyalaya. A similar dispute which was agitated before this Court was also settled by a judgment delivered in the case of Barnana Bhattacharjee Vs. The State of West Bengal & Others. Let a copy of the said judgment and the supplementary affidavit filed by the petitioner be kept on record.
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Mr. Panda, learned advocate appearing for the said Commission submits that the petitioner emerged to be successful in the selection process and was duly recommended by the said Commission for appointment and no allegation has been levelled in the writ petition against the said Commission.
Mr. Datta, learned Additional Government Pleader appearing for the State respondents submits that the college authorities ought to have scrutinized the roster position prior to issuance of the letter of appointment. Appropriate permission ought to have been availed from BCWD and WCDSWD prior to issuance of the letter of appointment in favour of the petitioner.
Mr. Datta, in his usual fairness, has drawn the attention of this Court to a memo dated 17th April, 2019 issued by the Joint Secretary to the Government of West Bengal, WCDSWD from which it appears that in similar circumstances and in consonance with the provisions of the RPwD Act, 2016 approval towards de-reservation has been granted in respect of a post in Alipurduar College.
As the dispute involved in the present writ petition does not involve disputed question of facts, there is no necessity to call for affidavits from the respondents.
Indisputably, the petitioner emerged to be successful in the selection process and was recommended by the said Commission for appointment in a vacancy under General/Unreserved category. Accepting such recommendation, the respondent no. 10 issued a letter of appointment in favour of the petitioner on 2nd May, 2017 and she joined the said post on 16th May, 2017 and is working in the same till date. However, the petitioner's pay fixation was withheld since it was subsequently found that the post under roster point no.12, in which she was appointed, stands earmarked for 4 General/Unreserved (PwD) candidates. But from the memo dated 18th June, 2018 issued by the respondent no.10 and the memo dated 2nd May, 2019 issued by the respondent no.4, it appears that in the roster of appointment, as authenticated by BCWD on 4th August, 2011, on 18th March, 2015 and on 22nd August, 2017, the vacancy at roster point no.12 was earmarked for General category.
In the said conspectus, the proposal towards de-reservation of the said vacancy at roster point no.12 from Unreserved (PwD) category to General/ Unreserved category and reservation of the vacancy at roster point no.20 for PwD category, as had already been approved by BCWD, needs to be approved by WCDSWD since there had been no fault on the part of the petitioner and undoubtedly she cannot be made to suffer for the laches on the part of the authorities. Such interchanging is also permissible under the provisions of the RPwD Act, 2016 and in view thereof, there can be no hurdle towards approval of such proposal by WCDSWD.
Accordingly, this Court directs the State authorities particularly the respondent no.8 to approve the proposal towards de-reservation of the vacancy at roster point no.12 from Unreserved (PwD) category to Unreserved category and for reservation of the vacancy at roster point no.20 for PwD category and communicate such decision to the respondent no.10 within a period of four weeks from the date of communication of this order.
Within a period of four weeks thereafter follow up steps shall be taken by all the respondents towards approval of the petitioner's appointment to the post of Assistant Professor in Bengali in Rani Dhanya Kumari College and fixation of her pay and disbursement of her monthly salary along with all arrears. 5
With the above observations and directions the writ petition is disposed of. There shall, however, be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties upon compliance of all necessary formalities.
(Tapabrata Chakraborty, J.)