Calcutta High Court (Appellete Side)
Tamal Mondal vs The State Of West Bengal & Ors on 6 February, 2017
Author: Dipankar Datta
Bench: Dipankar Datta
1 06.02.2017
AJ. 5.
F.M.A. 901 of 2011 Tamal Mondal
-Vs-
The State of West Bengal & Ors.
Mr. Partha Sarathi Bhattacharya, Mr. Biswaroop Biswas, Mr. Sandipal Pal.
.......for the appellant.
Mr. Bhaskar Prasad Vaisya, Mr. Gourav Das.
.......for the Council.
Aggrieved by dismissal of his writ petition [W.P. 14247(W) of 2010] by the judgement and order dated 10th November, 2010 passed by a learned Judge of this Court, the writ petitioner as appellant has preferred this writ appeal.
The facts leading to presentation of the writ petition may be noted first.
The District Primary School Council, South 24- Parganas (hereafter the D.P.S.C.) had initiated a process of recruitment of assistant teachers in primary schools within its jurisdiction. Names of eligible candidates were requisitioned by the Chairman of the D.P.S.C. (vide Memo dated 9th January, 2006) from the office of the Deputy Director of Employment, South 24-Parganas, with copies to the Employment Officers-in- Charge, Sonarpur, Diamond Harbour, Budge Budge, Canning and Kakdwip Regional Employment Exchanges. Such requisition did not refer to any cut-off date of registration of candidates aspiring for public employment; all that it required was that the regional employment exchanges ought to sponsor names in the ratio of 1:10 with promptitude so as to facilitate filling up the vacant posts at the earliest.
The deputy director by his Memo dated 22nd December, 2006 had informed the Chairman of the D.P.S.C. that names of candidates have been sponsored according to seniority of registration and that only those candidates may be considered 2 for recruitment categorywise, who registered their names within the particular month of the year as indicated therein against each regional employment exchange.
Insofar as the candidates belonging to Schedule Caste category registered with Kakdwip Regional Employment Exchange are concerned, the cut-off date was mentioned as December, 1995. The appellant, despite being a Schedule Caste candidate and registered with the employment exchange after December, 1995, was accorded sponsorship pursuant whereto he was called upon to participate in the recruitment process.
It is, however, not in dispute that by a Memo dated 18th November, 2009 issued by the Joint Secretary, Labour Department, Government of West Bengal, it was notified for general information as follows :
"WHEREAS, the recruitment process of Primary Teachers in the State is underway;
AND WHEREAS, a number of candidates were sponsored by the Employment Exchanges several years back for the purpose;
AND WHEREAS, registrations of some Sponsored Registrants", which were otherwise valid at the time of sponsoring, have become invalid in the meantime;
NOW THEREFORE, it is hereby ordered that the Employment Exchange Registrations of all enrolled candidates whose names were sponsored by the Employment Exchanges for vacancies of Primary Teachers under different District Primary School Councils of this State till the date of issue of this order may be deemed to be considered valid for the purpose of State-wide recruitment to the posts of Primary Teachers now being undertaken."
This memo, thus, paved the way for all the candidates sponsored till 18th November, 2009 to have their respective candidature considered for recruitment.
The name of the appellant having been sponsored, he participated in the recruitment process and obtained 45.194 marks. His name, however, was not included in the panel. 3 Having found that three candidates, viz. Abdul Sattar Seikh, Satyajit Naskar and Kishalaya Gayen had been offered appointment despite obtaining 32.97, 42.82 and 43.41 marks respectively, the appellant had presented the writ petition, out of which the impugned judgement and order arises, seeking ameliorative relief.
Before the learned Judge, it was contended on behalf of the D.P.S.C. that appointment letter had been erroneously issued in favour of the said Abdul Sattar Seikh and that on detection of the illegality in offering him appointment, a decision was promptly taken and the appointment revoked. In view of revocation of the appointment offered to the said Abdul Sattar Seikh, the learned Judge observed that an erroneous action cannot give rise to a legal right in favour of the appellant for being appointed despite being an unsuccessful candidate. Taking the view that the writ petition did not merit any order, the learned Judge dismissed the same.
The learned Judge, however, was not appraised by the Council as to why the said Satyajit Naskar and the said Kishalaya Gayen were offered appointment in preference to the appellant, despite they having obtained lesser marks than him. This is precisely the point that has been argued before us i.e. the grievance of the appellant qua the said lessor meritorious candidates was not considered at all.
In course of hearing the appeal, by order dated 9th January, 2017 we had called upon the Chairman of the D.P.S.C. to submit a report dealing with the contents of paragraphs 9 and 10 of the writ petition where the appellant by giving particulars had pleaded discrimination to which he had been subjected.
In compliance with such direction, the Chairman of the D.P.S.C. submitted a report through Mr. Vaisya, learned advocate, which reads as follows:-
4
"In respect of para-9 of the stay application it is stated that the petitioner Tamal Mondal was not appointed because his date of registration in employment exchange was 9.12.05. The employment exchange, Kakdwip forwarded the names of the candidates whose candidature was cancelled from this office by the then chairman as the cut of date of registration in employment exchange December, 1995 was over. The panel was expired on 15.02.2013. There is no vacancy in the panel-2006 It may mentioned here that the calculation of score in respect of Madhyamik examination of the petitioner was made on the basis of full marks 800.
The calculation is shown as under
Name - Tamal Mondal Council No - 8742 Score - MP 507 X 65 = 41.194 800 Written Test - 4.00 Total - 45.194"
Having regard to the Government Order dated 18th November, 2009, whereby sponsoring of names of all the candidates by the respective employment exchanges for filling up vacancies of assistant teachers in the different schools under the control of the district primary school councils of the State till the date of issue of such order were deemed to be valid, the decision taken by the D.P.S.C. to exclude the appellant from the zone of consideration only on the ground that his name was registered with Kakdwip Regional Employment Exchange after December, 1995, is untenable to say the least. The appellant could not have been deprived of the opportunity of public employment based on the marks obtained by him in the process of recruitment on the specious ground that his name was not registered before December, 1995.
Mr. Vaisya has contended that all the vacancies, which were sought to be filled up by initiation of the process of recruitment in the year 2006, have been filled up and the panel is no longer valid. It is submitted by him that without the approval of the Commissioner of School Education, the appellant cannot be considered for appointment by the Chairman of the D.P.S.C. 5 From the extract of the report of the Chairman, quoted above, it would be clear that the panel that was prepared by the D.P.S.C. was valid till 15th February, 2013. It is not in dispute that the appellant had presented the writ petition on 2nd July, 2010, i.e. at a point of time when the panel was alive. It is not a case where the appellant had approached the Court seeking ameliorative relief after expiry of the panel. To our mind, the mere fact of expiry of the panel during the pendency of the writ appeal would not defeat the appellant's claim for being considered for recruitment as an assistant teacher in a primary school, considering that candidates obtaining lesser marks than him have been appointed. If any authority is required, one may usefully refer to the decision of the Supreme Court reported in (2000) 3 SCC 699 (State of U.P. V. Ram Swarup Saroj).
The other plea that all the vacancies for which the process was initiated have been filled up does not also stand in the way of the appellant being extended relief by this Court.
We could have directed the Council to revoke the appointment made in favour of a candidate who had obtained lesser marks than the appellant, but since such candidate must have been in employment for the last 3/4 years and more particularly is not a party before us, it would not be fair on our part to disturb his appointment. However, we can take judicial notice of the fact that vacancies arise every year due to retirement/resignation/death of appointees and having regard to the peculiar facts and circumstances that have emerged and it is the D.P.S.C. which is to be blamed for the appellant being deprived of appointment, it must consider the appellant for appointment in the next available vacancy that occurs or in any vacancy that has already occurred. For such purpose, the D.P.S.C. shall verify the credentials submitted by the appellant and if the same are found to be in order, it shall forward the name of the appellant to the Commissioner seeking his approval 6 for appointment; once the Commissioner approves the proposal of the D.P.S.C., the appellant shall be appointed in an appropriate vacancy bearing in mind the category to which he belongs. Let this order be complied with by the D.P.S.C. within 4 weeks of receipt of its certified copy. The Commissioner, in his turn, shall pass appropriate order of approval within 4 weeks of receipt of the proposal from the D.P.S.C. It is made clear that benefits in terms of this order, extended to the appellant, shall be prospective. Should the appellant be not offered appointment for any reason, a reasoned order shall be passed by the relevant authority and the same must be served on him immediately thereafter.
In the result, the judgement and order under challenge stands set aside. The writ appeal stands allowed. There shall, however, be no order as to costs.
Urgent photostat certified copy of this Order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
( Dipankar Datta, J. ) ( Sahidullah Munshi, J. )