Calcutta High Court (Appellete Side)
Tulsi Roy vs Sri Krishanu Roy & Ors on 29 April, 2011
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
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Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
Appellate/Revisional/Civil Jurisdiction
Present:
The Hon'ble Mr. Justice Bhaskar Bhattacharya
And
The Hon'ble Mr. Justice Aniruddha Bose
And
The Hon'ble Mr. Justice Sambuddha Chakrabarti
F.M.A. No.768 of 2007
Tulsi Roy
Versus
Sri Krishanu Roy & Ors.
with
W.P. No.30027 (W) of 2008
Shyamal Kumar Jana
Versus
The State of West Bengal & Ors.
with
W.P. No.27411 (W) of 2007
Rabindra Nath Pradhan
Vs.
The State of West Bengal & Ors.
For the Appellants: Mr. Ekramul Bari,
Mr. Biswaroop Biswas,
Mr. Shamim-Ul-Bari,
Ms. Tanuja Basak,
Mr. S. M. Ali.
For the Writ-Petitioners: Mr. N. K. Das,
(in W.P. 30027(w)/08) Mr. Zia-Ul-Haque,
Mrs. Namrata Das.
For the Respondents: Mr. Amalesh Roy,
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Mr. Abhisek Guha,
Mrs. Suman Sehanabis,
Mr. Ratheswar De Sarkar.
For the Private Respondents: Mr. Milan Chandra Bhattacharya,
& Writ-Petitioners Mr. Manoranjan Jana,
(in W.P. 27411(w)/07 Mr. Pranab Kumar Jana.
& W.P. 30027 (w)/08)
For the State: Mr. Saikat Banerjee,
Mr. Jasojeet Mukherjee,
Ms. Juin Chakraborty,
Mr. Atarup Banerjee.
Heard on: 3.12.10, 25.3.11, 1.4.11 & 8.4.11.
Judgment on: 29th April, 2011.
Bhaskar Bhattacharya, J.:
These three matters have been assigned to this Bench by the Hon'ble Chief Justice of which the first one has been assigned as a consequence of reference by a Division Bench of this Court dated 17th March, 2008 passed in F.M.A. No.768 of 2007 and the other two matters have been referred to by another Division Bench before whom these two writ-applications were assigned on the request of two learned Single Judge of this Court because of importance of the question involved. The said Division Bench was, however, of the view that since the other one, namely, the case of Tulsi Roy, has already referred to a larger bench, these two writ-applications should also be heard along with the same. Consequently, these two writ-applications have also been assigned before us.
We have heard all these three matters together as the points involved in all these three matters are substantially the same.
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In the case of Tulsi Roy (Supra), for the purpose of appointment of a clerical staff, the concerned school took prior permission of the District Inspector of Schools and asked the employment exchange to sponsor the names of the eligible candidate. Accordingly, the names of 20 candidates were sponsored by the employment exchange including that of the appellant. The name of the respondent No.1, however, was not sponsored by the employment exchange. He came up with a writ-application before a learned Single Judge of this Court and prayed for permission to participate at the process of selection. The learned Single Judge by order dated October 13, 2006 allowed such writ-application and directed the school authority to permit the writ-petitioner to participate in the process of selection.
The writ-petitioner, accordingly, appeared at the interview and became successful as he was placed at the first position in the panel whereas the appellant, one of the sponsored candidates by the employment exchange, was placed in the second position.
The appellant, the second empanelled person in the panel, thus, preferred an appeal before the Division Bench against the order allowing the writ- application of the respondent No.1 with the leave to prefer an appeal and the learned Division Bench after taking into consideration various decisions was of the view that the order passed by the learned Single Judge should be set aside and the writ-application should be dismissed. However, in view of the fact that 4 there were conflicting views on the subject and in the case of Uttam Kumar Maity vs. State of West Bengal & Ors., reported in (2007) 4 CHN page 499, a Division Bench of this Court having directed that an advertisement should be published before making any such selection, and at the same time, Their Lordships having some doubts as to whether the principle laid down by the Hon'ble Supreme Court in various decisions as regards the necessity of advertisement for recruitment applies to the Government sponsored schools, Their Lordships referred the matter for a decision by a Larger Bench.
In the other two applications which were referred to a Division Bench, the question was whether a person who was not been sponsored by employment exchange can straightway file a writ-application praying for permitting him to appear at the interview for the post of Group-D staff of a Government sponsored school.
As pointed out earlier, those two matters were referred to a Division Bench and the said Division Bench in view of pendency of a reference before the Larger Bench, requested the learned Chief Justice to place the matters along with the case of Tulsi Roy, the first matter before us, for decision.
Therefore, in all these three matters which are now placed before us, although in the reference no specific point has been formulated, after hearing the learned counsel appearing on behalf of the parties and after taking into 5 consideration the materials on record, we have, however, formulated the following questions for decision in these three writ-applications:
1. Whether the principle laid down in the aforesaid case of Excise Superintendent Malkapatnam, Krishna District, A.P. Vs. K.B.N. Visweshwara Rao & Ors., reported in (1996) 6 SCC 216 is applicable also to a case of a Government sponsored school.
2. Whether for the post of non-teaching staff of a Government sponsored school, a person whose name has not been sponsored by the employment exchange, can file a writ-application thereby praying for allowing him to participate in the process of selection without praying for a direction for advertisement for that post in the newspaper as held by the Supreme Court in the case of Excise Superintendent (Supra).
3. Whether the West Bengal School Service Commission (Selection of person for Appointment to the post of Non-teaching Staff) Rules, 2009 is applicable in respect of vacancy where the selection of the selected candidate has been set aside by a writ-Court for non-compliance of the formalities mentioned by the Supreme Court in the case of Excise Superintendent (Supra), notwithstanding the fact that the process of the initial selection for the post concerned started at a point of time, when the aforesaid Rules of 2009 had not come into operation.
So far the first question mentioned above is concerned, we find that in the case of Excise Superintendent Malkapatnam, Krishna District, A.P. vs. K.B.N. Visweshwara Rao & Ors (supra), the Supreme Court made the following observations:
"Having regard to the respective contentions, we are of the view that contention of the respondents is more acceptable which would be 6 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.
(Emphasis supplied by us).
From the aforesaid decision, we find that the Supreme Court passed such direction principally on the ground that for not giving wide circulation, the principles of equality among the citizen and the equal opportunity in the matter of employment were violated and thus, those directions were passed in aid of the rights of a citizen guaranteed under Articles 14 and 16 of the Constitution of 7 India. The said observations were made while disposing of an appeal by Special Leave against the order of the State Administrative Tribunal and in paragraph 3 of the judgement, Their Lordships also specifically referred to Articles 14 and 16 of the Constitution as would appear from the following observations:
"There is a difference of opinion in this behalf. Whereas the majority of two members held that it is not violative of Articles 14 and 16 of the Constitution, the minority view was that it was violative. Thus, these appeals by special leave."
The Division Bench in the case of Tulsi Roy, one of the matters before us, expressed doubt as to the applicability of the said direction to a case of appointment in a Government sponsored educational institution as the said observations were made in dealing with the case of appointment to a post under the Government.
In our opinion, a citizen having right to complain before the High Court against a "State" within the meaning of Article 12 of the Constitution of India alleging violation of fundamental right guaranteed under the Constitution, and the Supreme Court in the abovementioned case having branded the absence of wide publication of the advertisement of employment at the instance of the "State" as an act violative of Articles 14 and 16 of the Constitution, a writ- application filed by a citizen complaining such violation against an employer, duty bound to comply with the statutory rules for the selection, is definitely entitled to get the benefit of those directions which are applicable not only to the 8 Government but also to a "State" within the extended meaning of Article 12 of the Constitution against whom a writ-application is otherwise maintainable. In this connection, we may profitably refer to the decision of the Supreme Court in the case of B. S. Minhas vs. Indian Statistical Institute and others, reported in AIR 1984 SC 362 where the Statistical Institute, a society registered under the Societies Registration Act and governed by the Statistical Institute Act, the Respondent No.2 before the Supreme Court, was held to be an 'authority' within the meaning of Article 12 of Constitution and, therefore, a writ petition against the Institute, challenging the appointment of Director of the Institute in breach of Articles 14 and 16 of the Constitution was found to be maintainable.
In the said case, it was pointed out that having regard to the provisions of the Act and the Memorandum of Association, the composition of the Institute was dominated by the representatives appointed by the Central Government. The money required for running the Institute was provided entirely by the Central Government and even if any other moneys were to be received by the Institute it could be done only with the approval of the Central Government and the accounts of the Institute had also to be submitted to the Central Government for its scrutiny and satisfaction. The Society had to comply with all such directions as might be issued by the Central Government. The control of the Central Government was held to be deep and pervasive and, therefore, to all intents and purposes, it was held to be an instrumentality of the Central Government and as such was an 'authority' within the meaning of Article 12 of the Constitution and 9 was, therefore, subject to the constitutional obligations under Articles 14 and 16 of the Constitution. In the case before us, all the government-sponsored schools in the West Bengal are bound by the Statute governing their activity and the control of the State Government is deep and pervasive and thus, writ- applications are maintainable challenging the process of selection of the employee of such institution. Once, the selection-authorities are held to be a "State" within the meaning of Article 12 of the Constitution, there cannot be any trace of doubt that the benefit of Articles 14 and 16 of the Constitution is available to a citizen who wants to avail of the opportunity of employment in such institution although the benefits of Articles 309-311 of the Constitution would not be available to the employees of such schools.
We, therefore, answer the first question formulated by us by holding that the observations of the Supreme Court in the case of Excise Superintendent Malkapatnam, Krishna District, A.P. vs. K.B.N. Visweshwara Rao & Ors (supra), will be equally applicable to the employment in any educational institutions sponsored by the Government.
As regards the second question formulated by us, it is now a settled law that a person can successfully approach a High Court under Article 226 of the Constitution of India if any of his legal or fundamental rights has been infringed by the inaction or the illegal action on the part of a State within the meaning of Article 12 of the Constitution.
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From the decision of the Supreme Court in the case of Excise Superintendent Malkapatnam, Krishna District, A.P. vs. K.B.N. Visweshwara Rao & Ors (supra), quoted by us while dealing with first question, it is clear that the aforesaid direction of the Supreme Court to advertise, being a law declared by it, a valuable legal right accrued in favour of a person having the requisite qualifications for the post concerned to apply for being considered for appointment even if such a person is not sponsored by the Employment Exchange pursuant to the statutory Rules framed by the State in that behalf and the selection without such advertisement has been held to be violative of the fundamental rights conferred under Articles 14 and 16 of the Constitution. Therefore, if the school authority proceeds to fill up the vacancy without complying with the direction of the Supreme Court, a person not sponsored by the Employment Exchange having requisite qualification can approach the High Court for a direction upon the employer to follow the said direction so that pursuant to an advertisement so given, he can apply for being considered for the post along with other applicants.
A person by taking aid of the said decision can most certainly come to a High Court for enforcing the aforesaid direction. But he cannot approach the Court for permitting him to appear at the selection process on the strength of the said decision of the Supreme Court if he simply prays for permitting him to appear at the process of selection but without praying for direction for giving advertisement with the object of avoiding contest with the others, similarly placed 11 with him, who would also apply pursuant to such advertisement. In our opinion, the High Court in such circumstances should reject his prayer. In the cases before us, all the petitioners prayed for direction for giving advertisement but in the case of Tulsi Roy, the learned Single Judge did not pass such direction and disposed of the writ-application on the very first day of moving the same. Thus, in this type of a writ-application, it is the first duty of the Court is to see whether the allegations of the writ-petitioner that he has the requisite qualification for the post concerned. If the Court is satisfied on that aspect then it should verify whether the allegation of the writ-petitioner that no advertisement was given was correct or not. After being so satisfied from the materials on record and after giving an opportunity to contest the allegation, the writ-petition should be disposed of by directing the authority to give advertisement for the post with liberty to the writ-petitioner to apply pursuant to such advertisement.
We, thus, answer the second question formulated by us in the negative. Now we propose to deal with the third point as to whether the West Bengal School Service Commission (Selection of person for Appointment to the post of Non-teaching Staff) Rules, 2009 are applicable in respect of vacancy where the selection of the selected candidate has been set aside by a writ-Court for non-compliance of the formalities mentioned by the Supreme Court in the case of Excise Superintendent (Supra), notwithstanding the fact that the process of the initial selection for the post concerned started at a point of time, when the aforesaid Rules of 2009 had not come into operation.
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Mr. Bhattacharya, Mr. Roy and Mr. Bari, the learned counsel appearing on behalf of the different parties in these proceedings strenuously contended before us that the process of selection having been initiated at a point of time when the new Rules did not come into force, the fresh process of selection should be in accordance with the old Rule.
We do not for a moment dispute with the broad proposition of law that if the process of selection has already been initiated, it should be finished in accordance with law that it stood at the time of initiation of process even if a new law has come into force in the meantime. However, such principle cannot have any application to a case where the process of selection was complete, an appointment was given, the appointed candidate joined service but subsequently, such appointment was found to be vitiated and the appointment given based on such selection has been set aside by an order of the Court. In such a case, on setting aside the appointment given to the appointed candidate, a new vacancy will arise in view of the order setting aside the appointment with effect from the date of such order. In such a situation, in our opinion, a fresh vacancy should be declared in accordance with the Rules of 2009 as if such vacancy has occurred on the date, the earlier appointment has been set aside and the post concerned should not be treated to have been lying vacant during the period when the person found to be illegally appointed by the court worked. It is needless to mention that such a person illegally appointed whose appointment is set aside by the Court will be entitled to the remuneration for the said period so long his 13 service was not terminated by the virtue of the order passed by Court. On termination of the service by the order of the court, a fresh vacancy should accrue.
At this stage, we may refer to the provisions contained in Rules 7 and 8 of the new Rules which are relevant and quoted below:
"7. Manner of selection by direct recruitment. - (1) Selection to the post of -
(a) .....................................
(b) the Clerk shall be made on the basis of the results of the written examination conducted by the Central Commission, evaluation of qualifications and personality tests of the candidates in the manner as specified in Schedule II;
(c) .......................................
Explanation.- For removal of doubt, it is hereby declared that while determining the merit list, the marks obtained in the Preliminary screening examination shall not be added to the marks obtained in the written examination or personality test.
(2) The Central Commission may, in its discretion, fix qualifying marks, which a candidate is required score for qualifying in Preliminary screening examination under clause (a) or clause (c) of sub-rule (1) or in the written examination or in aggregate or in both:
Provided that the Central Commission may relax the qualifying marks on reasonable grounds for reasons to be recorded in writing.
8. Information regarding vacancies.- (1) The District Inspectors of Schools (Secondary Education) shall prepare a report regarding the number of vacancies in approved posts to be filled up on the basis of direct recruitment, which exists or is expected to occur within the 1st 14 January next ensuing, and shall furnish the same to the concerned Regional Commission at least fifteen days before the date of publication of the advertisement.
(2) On receipt of report under sub-rule (1), every Regional Commission shall send the complied districtwise vacancy report postwise, mediumwise, categorywise and genderwise to the Central Commission in two stages:-
(a) first, seven days, before the date of publication of the advertisement inviting application; and
(b) finally, within the 1st day of January next ensuing or seven days before the date of publication of the result of the written examination, whichever is earlier.
Note.-The Central Commission shall intimate in writing to each Regional Commission the date of publication of advertisement inviting application and also the date of publication of result of written examination at least three weeks before such publication and a similar intimation shall also be made through website of the Commission.
(3) For removal of doubt, it is hereby declared that only the vacancy reported within the time specified in sub-rule (2) shall be included in the final vacancy statement to be published by the Central Commission and any vacancy reported subsequently after that time shall be taken into account in the next Regional Level Selection Test." After the coming into operation of the new Rules, if any illegal appointment earlier made is set aside by a court, a duty is cast under the new Rule 8 to report such vacancy and to fill it up in accordance with the Rules. However, in a given situation, where due to pendency of the Court proceedings challenging the process of selection as illegal, for any reason, no appointment was made but the proceedings for selection remain stayed and the Court 15 ultimately passes direction for selection after advertising, the process should restart from that stage and should be completed in accordance with the old Rule and in those cases, the process of selection having already been commenced, there is no scope of including those vacancies while preparing the report of vacancy in terms of Rule 8 simply because the vacancy has not been filled up yet.
We, consequently, answer the third point formulated by us in the affirmative.
In view of our aforesaid findings, we set aside the appointment of the selected person in the case of Tulsi Roy and direct the school authority to proceed to start afresh in accordance with the new Rules of 2009 as if the post has stood vacant today. Similar direction is given in the two other matters by setting aside the selection if any. If the selected persons have not yet joined, the process of selection should be completed in accordance with the Rules which stood effective at the time of initiating the process of selection; otherwise, fresh selection should commence in accordance with the new Rules after complying with the formalities prescribed in the new Rules.
All the three writ-applications are thus disposed of.
In the facts and circumstances, there will be, however, no order as to costs.
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(Bhaskar Bhattacharya, J.) We agree.
(Aniruddha Bose, J.) (Sambuddha Chakrabarti, J.)