Calcutta High Court
Manik Chandra Das vs State Of West Bengal And Ors. on 18 May, 2007
Equivalent citations: 2007(2)CHN761
Author: Pranab Kumar Chattopadhyay
Bench: Pranab Kumar Chattopadhyay
JUDGMENT Pranab Kumar Chattopadhyay, J.
1. The appellant/writ petitioner herein has preferred this appeal challenging the order dated 20th December, 2006 passed by the learned Single Judge whereby and whereunder the said learned Single Judge dismissed the writ petition filed by the appellant herein. The appellant/writ petitioner filed the aforesaid writ petition praying for a direction upon the respondent authorities to allow the said writ petitioner to participate in the interview for appointment of Group 'D' staff (Sweeper) in Raja Narendra Lal Khan Women's College in the district of Paschin Medinipore.
2. The learned Single Judge while deciding the writ petition held that in view of the Government Order issued under Memo No. 830-Edn(CS) dated 31st October, 1995, the Group 'D' posts of the colleges affiliated by the University in the State of West Bengal are to be filled up from the candidates sponsored by the concerned Employment Exchange and since the aforesaid order was not challenged in the writ application, the learned Single Judge did not find any merit on the submissions made on behalf of the writ petitioner and therefore, dismissed the said writ petition.
3. The learned Advocate of the appellant submits that the learned Single Judge failed to appreciate that there is no statutory rule which authorises the respondent authorities to consider the candidatures of the candidates only sponsored by the Employment Exchange. It has also been submitted on behalf of the appellant that the executive instructions issued under Memo No. 830-Edn-CS) dated 31st October, 1995 cannot compel the respondent authorities to consider only the candidates sponsored by the Employment Exchange for appointment to the said post of Group 'D' staff in the concerned college in view of the law laid down by the Supreme Court in this regard. Mr. Sourav Mitra, learned Counsel of the appellant submits that the law in this field has already been settled by the Hon'ble Supreme Court. Mr. Mitra referred to and relied on the following decisions in support of his argument:
1) [Excise Superintendent, Malkapalnam, Krishna District v. K.B.N. Visweshwaria Rao]
2) 2005 (3) CHN 337 (FB) [Rabindra Nath Mahato v. State of West Bengal and Ors.
3) [Arun Kumar Nayek v. Union of India and Ors.]
4. It has also been submitted on behalf of the appellant that the restrictions imposed by the executive instructions issued under Memo dated 31st October, 1995 has been considerably diluted in view of declaration of law by the Hon'ble Supreme Court in the case of Excise Superintendent, Malkapatnam, v. K.B.N. Visweshwara Rao , which has also been followed by the Supreme Court in the subsequent decisions.
5. The learned Counsel of the respondents, however, submits that the appellant herein cannot challenge the aforesaid Government order dated 31st October, 1995 in the instant appeal instead of filing a fresh writ petition. Mr. Tapabrata Chakraborty, learned Counsel of the State-respondents further submits that the aforesaid executive order issued by the Government of West Bengal on 31st October, 1995 satisfies the test of Article 162 of the Constitution of India inasmuch as the Vidyasagar University statutes confers legislative competence. Mr. Chakraborty also submits that the said executive order dated 31st October. 1995 also stands authenticated in terms of the provisions of Article 166(2) of the Constitution of India. According to Mr. Chakraborty, recruitment policy as laid down by the said executive order dated 31st October, 1995 is operative in the field and the same is also binding upon the concerned authorities. Mr. Chakraborty also referred to and relied on the decision of the Supreme Court in the case of Ekta Shakti Foundation v. Govt. of NCT of Delhi wherein the Hon'ble Supreme Court observed:
10. While exercising the power of judicial review of administrative action, the Court is not the appellant authority and the Constitution does not permit the Court to direct or advise the executive in matter of policy or to sermonize any matter which under the Constitution lies within the sphere of the Legislature or the executive....
6. Mr. Chakraborty also submits that no law has been laid down by the Supreme Court in the case of K. B. N. Visweshwara Rao (Supra). Mr. Chakraborty referred to and relied on the decision of the Supreme Court in the case of Debasish Dutta v. State of West Bengal, in this regard. Mr. Chakraborty also submits that the decision of the Supreme Court in the case of K.B.N. Visweshwara Rao (Supra) is in effect a direction relaxing the application of law and cannot be construed as a binding precedent. The decision of the Supreme Court in the case of Indian Bank v. ABS Marine Products Pvt. Ltd. has been referred to and relied on by the learned Counsel of the respondents in this regard.
7. In the present appeal we are not going to decide the validity and/or legality of the executive order issued by the Government of West Bengal under Memo No. 830-Edn(CS) dated 31st October, 1995. It is to be decided whether the said executive order can put a total restriction on the respondents to consider the candidatures of the candidates including the appellant herein, whose names have not been sponsored by the Employment Exchange for filing up the Group 'D' posts in the concerned college in view of the law laid down by the Supreme Court in the case of K.B.N. Visweshwara Rao (Supra) and the subsequent decisions of the Supreme Court following the said decision.
8. The basic question involved in this matter is permissibility of extending the field of choice so as to cover persons offering the candidature to posts under public employment when rules whether Administrative or Statutory require considerations of the candidature of those persons only, who are sponsored by the concerned Employment Exchange.
9. It appears from the National Employment Service Manual published by the Central Institute for Research and Training in Employment Service, Directorate General of Employment and Training, Ministry of Labour, Government of India, that:
The Employment Service came into existence in India under the stress of post-war demobilisation. Towards the end of Second World War, the need for a machinery which could handle orderly reabsorption in civil life, or a large number of service personnel and war workers who were about to be released was keenly felt. Having regard to the complexity of the problem and in order to ensure uniformity in policies and effective co-ordination of efforts it was considered necessary that the proposed machinery be directed and controlled by the Central Government. In accordance with a Scheme that was agreed upon by the Central and State Governments, the Directorate General of Resettlement and Employment (D.G.R.& E.) was set up in July, 1945 and Employment Exchanges were gradually opened in several parts of country.
It is further stated in the Manual that:
Till the end of 1946, Employment Service facilities were restricted to demobilised service personnel and discharged war workers. In 1947, consequent upon the partition of the country, the Employment Exchanges were called upon to deal with resettlement of a large number of persons who were displaced as a result of partition. In response to popular demands, the scope of the service was gradually extended and by early 1948, Employment Exchanges were thrown open to all categories of applicants.
It is also stated in the said Manual that:
This transition of the Employment Service from a resettlement agency to an all India Placement organisation resulted in an enormous increase of work which called for long-term measures....
10. It appears that the Employment Exchanges were devised during the pre-independence days to deal with special problem of absorption and/or resettlement arising out of post war demobilisation of personnel and also resettlement of immigrants and persons displaced on account of partition of the country. The scheme of Employment Exchanges (originally devised for resettlement of special categories of affected persons are) is not being utilised inter alia to limit the zone of consideration primarily for appointments in public employment.
11. In the context of the Constitutional Provisions there was patently a need to harmonize the two streamsnames sponsored by the Employment Exchange can well be taken into consideration along with the persons who are not so sponsored but offer their candidatures. It seems that the Hon'ble Apex Court has brought about this kind of confluence. In Excise Superintendent, Malkapatnam v. K.B.N. Visweshwara Rao , the Hon'ble Apex Court was dealing with the case decided by the Andhra Pradesh Administrative Tribunal. The majority of the two members of the Tribunal held that sponsorship of candidates through the medium of Employment Exchange as followed was not violative of Articles 14 and 16 of the Constitution. But the minority view was that it was violative. Then the Hon'ble Apex Court proceeded to observe:
4. This Court in Union of India v. N. Hargopal noted the contention of Counsel appearing for respondents therein that excluding the candidates who were not sponsored through medium of employment exchange and restricting the choice of selection to the candidates sponsored through the medium of employment exchange, would offend the equality clause of Articles 14 and 16 and held that the contention was attractive and it was not open to the Government to impose restriction on the field of choice. But in view of the fact that even the paper publication would not reach may a handicapped who would be unable to have access to the newspaper, it was held that the sponsorship through the medium of employment exchange would not violate Articles 14 and 16. On the other hand, it would advance the rights to the handicapped. In that view, this Court upheld the restriction imposed by the State and Central Governments to consider the cases of the candidates through medium of employment exchange, while holding that such a restriction was not intended to be applicable to the private employment as held in para 6 of the Judgment.
5. Shri Ram Kumar, the learned Counsel for the State, contended that in view of the above decision, the direction issued by the Tribunal is not in accordance with law. On the other hand, S/Shri Shanti Swarup and L.R. Rao, the learned Counsel appearing for the respondents, contended that the restriction of the field of choice to the selected candidates sponsored through the medium of employment exchange prohibits the right to be considered for employment to a post under the State and many people cannot reach the employment exchange to get their names sponsored and the employment exchanges are not adopting fair means and procedure to send the names strictly according to seniority in their record. So, the better course would be to adopt both the mediums, viz. of employment exchange and publication in the newspaper as that would subserve the public purpose better.
6. Having regard to the respective contentions, we are of the view that contention of the respondents is more acceptable which would be consistent with the principles of fair play, justice and equal opportunity. It is common knowledge that many a candidate is unable to have the names sponsored, though their names are either registered or are waiting to be registered in the employment exchange, with the result that the choice of selection is restricted to only such of the candidates whose names come to be sponsored by the employment exchange. Under these circumstances, many a deserving candidate is deprived of the right to be considered for appointment to a post under the State. 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.
12. The view taken in KBN. Visweshwara Rao's case has been unanimously followed with approval by another Bench of Hon'ble three Judges of the Hon'ble Supreme Court in the case of Raj Kumar and Ors. v. Shakti Raj and Ors. . In the aforesaid later judgment, the Hon'ble Supreme Court after quoting paragraph 6 from the judgment in K.B.N. Visweshwara Rao's case has proceeded to hold:
15. In view of this legal position, the necessary requirement should be that they should necessarily not only notify but also call the names from employment exchange; in addition they should give wide publicity in the media inviting applications from qualified persons for selection. Instead, they have adopted the procedure under the 1955 rules. They did not call the names from the employment exchange and conducted the examinations for them. After the selection of the candidates, names of selected candidates were called from the employment exchange. Obviously, the successful candidates in the written examinations were asked to approach the employment exchange of the circle concerned and, accordingly, names came to be sponsored. The procedure adopted is clearly illegal denying equal opportunity to many a candidate waiting in the register of the employment exchange concerned. Therefore, the Government hereafter should strictly follow the procedure by not only calling their names from the employment exchange, but also by publishing in the local and national newspapers and giving wide publicity in the media as well as getting the written examination and the interview conducted by the SSSB; marks should be awarded strictly according to the procedure.
13. Subsequently, the same point again came up for consideration before the Hon'ble Supreme Court in the case of Arun Kumar Nayak v. Union of India and Ors. reported in 2006(8) SCC III. The two Hon'ble Judges of the Hon'ble Supreme Court were pleased to observe and hold as follows:
9. This Court in Visiveshwara Rao, therefore, held that intimation to the employment exchange about the vacancy and candidates sponsored from the employment exchange is mandatory. This Court also held that in addition and consistent with the principle of fair play, justice and equal opportunity, the appropriate department or establishment should also call for the names by publication in the newspapers having wider circulation, announcement on radio, television and employment news bulletins and consider all the candidates who have applied. This view was taken to afford equal opportunity to all the eligible candidates in the matter of employment. The rationale behind such direction is also consistent with the sound public policy that wider the opportunity of the notice of vacancy by wider publication in the newspapers, radio, television and employment news bulletin, the better candidates with better qualification are attracted, so that adequate choices arc made available and the best candidates would be selected and appointed to subserve the public interest better.
10. In Arun Tewari v. Zila Mansavi Shikshak Sangh where to fill about 7000 posts of Assistant Teachers under a time-bound scheme (Operation Blackboard), the statutory rules were amended and decision taken to fill up vacancies districtwise by calling candidates from district employment exchanges, without involving the Selection Board, the two-Judge Bench of this Court held that in view of the exigency the method adopted in the given facts was not unfair. Although a reference was made to Visweshwara Rao but it was not even distinguished in Arun Tewari. The decision of the two-Judge Bench of this Court after considering Hargopal, Delhi Development Horticulture Employees' Union and Visweshwara Rao held in para 20 as under: (Arun Tewari case, SCC p-339)
20. The next contention relates to inviting applications from employment exchanges instead of by advertisement. This procedure has been restored to looking to the requirements of a time bound scheme. The original applicants contended that if the posts had been advertised, many others like them could have applied. The original applicants who so complain, however, do not possess the requisite qualifications for the post. As far as we can see from the record, nobody who had the requisite qualifications, has complained that he was prevented from applying because advertisement was not issued. What is more important, in the special circumstances requiring a speedier process of selection and appointment, applications were invited through employment exchanges for 1993 only. In this context, the special procedure adopted is not unfair.
Therefore, the decision by this Court in Arun Tewari is based on the facts of that case, namely, a time-bound scheme and exigency of service. No law has been laid down thereunder. But in Visweshwara Rao a three-Judge Bench of this Court has laid down the law and that is still holding the field.
14. The submissions of the learned Counsel of the State respondents that the Supreme Court in the case of K.BN. Visweshwara Rao (supra) did not declare any law and the specific observations of the Supreme Court mentioned in Paragraph 10 of the judgment in Arun Kumar Nayak's case (supra) is nothing but a passing remark in view of the Judgment of this Court in the case of Debasish Duttaa v. State of West Bengal (supra) cannot be accepted as we find that in the case of Arun Kumar Nayak v. Union of India and Ors. Supreme Court has specifically held:
...But in Visweshwara Rao a three-Judge Bench of this Court has laid down the law and that is still holding the field.
15. We are, therefore, of the opinion that at this stage there is no scope for reconsidering the question on the basis of earlier pronouncements of the Hon'ble Supreme Court or any contrary views expressed by this Court. The point at least for the present, stands concluded and the effect due to the decisions under Article 141 have to be given without allowing any difference still to prevail.
16. It may also be mentioned herein that in Abu Taher v. Abdul Wahab and Ors. Civil Appeal No. 1203 of 2001 arising out of SLP [C] No. 227 of 2000, the Hon'ble Supreme Court was pleased to set aside a Division Bench judgment of this Court with the following observations:
Mr. Krishnamani, appearing for the appellant contended that the aforesaid conclusion of the Division Bench of Calcutta High Court is erroneous in view of the decisions of this Court in and . We find sufficient force in the aforesaid contention and as such the name of appellant cannot be excluded from consideration merely because his name had not been sponsored by the Employment Exchange....
17. Principles of law laid down by the Supreme Court in the case of Excise Superintendent, Malkapatnam, v. K.B.N. Visweshwara Rao (Supra) are set out hereunder:
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.
18. The Executive order issued by the Government of West Bengal under Memo No. 830-Edn(CS) dated 31st October, 1995 is not consistent with the law laid down by the Supreme Court in the aforesaid decision which has also been affirmed by the subsequent decisions of the Hon'ble Supreme Court where similar question was in issue. Therefore, the aforesaid executive order dated 31st October, 1995 has to be read subject to law laid down by the Supreme Court in the case of K.B.N. Visweshwara Rao (supra) which was reaffirmed by the Supreme Court in the subsequent decisions mentioned hereinbefore.
19. In the aforesaid circumstances, the executive order dated 31st October, 1995 is not required to be challenged by a separate writ petition for quashing the same since the said executive order can be followed subject to the law laid down by the Hon'ble Supreme Court as mentioned hereinabove.
20. Thus, the restriction put by the aforesaid executive order dated 31st October, 1995 to the effect that only Employment Exchange sponsored candidates are to be considered for employment cannot be sustained and the respondent authorities cannot prevent the appellant or anybody from participating in the interview for filling up the vacant posts on the basis of or pursuant to the aforesaid executive order issued by the Government of West Bengal dated 31st October, 1995.
21. Following the decisions of the Supreme Court as mentioned hereinabove and in view of the law laid down by the Supreme Court in the case of K.B.N. Visweshwara Rao (supra), we also hold that the appropriate authority of the department or undertaking or establishment shall 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 Honb'le Supreme Court.
22. For the aforementioned reasons, the impugned order under appeal passed by the learned Single Judge cannot be sustained and the same is, therefore, set aside.
23. The candidature of the appellant/writ petitioner should be considered by the concerned respondents along with other eligible candidates sponsored by the Employment Exchange, if the same has not already been done.
24. This appeal thus stands allowed. There will, however, be no order as to costs.
25. Let urgent xerox certified copy of this judgment and order, if applied for, be given to the learned Advocates of the parties on usual undertaking.
Arunabha Basu, J.
26. I agree.