Calcutta High Court (Appellete Side)
Dipankar Roy vs State Of West Bengal & Ors on 17 April, 2012
Author: Ashoke Kumar Dasadhikari
Bench: Ashoke Kumar Dasadhikari
1
17.04.2012
ss W.P. 12254(W) of 2010
with
C.A.N. 587 of 2012
Dipankar Roy
Vs.
State of West Bengal & ors.
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Mr. Ekramul Bari
Mr. S.M. Ali
Mr. K.M. Hossain
Mr. S. Bari
Ms. Tanuza Basak
... For the petitioner
Mr. Amales Roy
Ms. Mousumi Bhowal
... For the respondent no.3
Mr. Mahendra Prasad Gupta ... For the State The grievance of the writ petitioner in this writ petition is that he was a scheduled caste exempted category candidate and enrolled with National Employment Exchange, 76, Bentinck Street, Kolkata.
After having information about vacancies in the District Primary School Council, Cooch Bihar, the writ petitioner applied for selection as assistant teacher. His name was sponsored by Mekhliganj employment exchange under general category. The writ petitioner filled up the application form giving all details and the 2 form was filed by the writ petitioner on 2nd November, 2006 when he has already got his name registered with the National Employment Exchange under exempted category (Scheduled Caste).
The concerned respondent authorities issued interview letters under Scheduled Caste exempted category to which the writ petitioner belongs. The writ petitioner subsequently appeared at the written test and other test held by the concerned District Primary School Council, Cooch Bihar. He was selected and his name was placed in the panel prepared by the District School Council disclosing the serial No. 77. After preparation of the panel under exempted category (General) the panel was forwarded by the Chairman, District Primary School Council to the Director of School Education, Bikash Bhavan, Salt Lake City for approval. From a scrutiny of the office of the Director it revealed that although the petitioner's name was empanelled under exempted category, his name was not sponsored by the National Employment Exchange, Bentinck Street. Therefore the case of the writ petitioner was not approved by the Director of School Education.
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Mr. Bari, learned Counsel appearing for the writ petitioner submits that there is no suppression on the part of the writ petitioner. He has disclosed in his application true and correct facts to the effect that he is a scheduled caste (exempted category) candidate. The petitioner was sponsored by Mekhliganj employment exchange and in the application the writ petitioner also mentioned the Mekhliganj employment exchange card number.
Mr. Bari submitted there is no laches on the part of the writ petitioner. He has disclosed everything before the authority very fairly and the authority after proper scrutiny issued the letter of interview and/or written test to the petitioner and he was selected by securing 32.80 marks under exempted category.
Mr. Bari submitted that although the writ petitioner was empanelled as exempted category under National Employment Exchange before filing the application, the concerned respondent authorities did not disallow the writ petitioner to appear and contest in the test and/or selection process under exempted 4 category. The petitioner with bonafide belief appeared at the test and is selected by the respondent authorities. Therefore, being an exempted category candidate he is in advantageous position for being considered for selection and approval by the concerned Director. He submitted that the petitioner having knowledge of such selection is waiting for appointment and he is about to reach 45 years of age after which there is no scope of getting any government employment.
Mr. Bari claimed equity in his client's favour and submitted that all through he was called for interview and he duly appeared and contested. He was selected and the Chairman of the school council referred the case of the writ petitioner for approval. Just at the stage of such approval it was found that the National employment exchange has not sponsored. Mr. Bari submits for that reason the writ petitioner cannot be held responsible. He states that the writ petitioner is empanelled in National Employment Exchange.
Mr. Amales Roy, learned Counsel representing District Primary School Council submits that the requirement of Rule is that the candidates should be 5 sponsored by the National Employment Exchange but in the instant case the writ petitioner was not sponsored by the National Employment Exchange under exempted category and the mistake was committed by the officers of the School Council which he admitted and he has also admitted that at the time of submission of application of the writ petitioner the writ petitioner got his name enrolled with the National Employment Exchange.
He submitted that since the candidate's name was not properly sponsored as per the required rules the writ petitioner is not at all entitled to get approval and appointment. He further submits as per settled principle of law the mere empanellment of a candidate does not entitle him to get the appointment.
Mr. Roy submits that there are mistakes on the officers' part but that cannot create any right in favour of the writ petitioner.
Mr. Bari in reply submits that the exercise started in June, 2006 and ended on 1st April, 2010. For these long 4 years the writ petitioner had knowledge and belief that he is an exempted category candidate and on the 6 basis of his application the concerned respondents have responded and allowed him to appear and contest in the test and/or selection process and only at the time of approval a plea is taken which, according to him, is not at all a relevant factor just before approval.
He submitted that the concerned officers of the respondent authorities acted on the basis of the rules and he pointed out that as per the Director's memo it is merely an irregularity, but not an illegality.
Mr. Bari submitted that the writ petitioner is waiting for the employment for about last four years and on earlier occasion he came before this Court and this Hon'ble Court being satisfied about the case of the writ petitioner directed to keep one post vacant till the final disposal of the writ petition.
Mr. Bari submitted the exempted category of eligible persons hailing from the families who have been uprooted from their place of residence or whose main source of income has been affected due to loss of agricultural land acquired by the Government on or after 17th October, 1977. He submits that the petitioner who 7 is categorised as exempted category candidate has lost their land because of acquisition by the Government and they have got a special status and special right under the scheme formulated by the Government.
He submitted that the case of the writ petitioner is to be treated as an exception in comparison with the general or other candidates and the writ petitioner is entitled to get a privilege under the scheme framed by the Government itself.
I have heard the learned Counsel appearing for the parties. I have considered the materials available on record. It is true that the rule says that the candidates should be sponsored by the National Employment Exchange but in the instant case although the petitioner's name was sponsored by the general employment exchange, the writ petitioner belongs to scheduled caste (exempted category) having a special status under the Government scheme and enrolled under National Employment Exchange at the time submitting his application.
I find from the application filed by the writ 8 petitioner that the writ petitioner has stated all correct facts in his application and there is no dispute that he is a scheduled caste exempted category candidate. As soon as an application is filed it is obligation on the part of the concerned officers to scrutinize the applicant's details and to find out if the concerned candidate is eligible and can contest the selection process.
In the instant case the concerned officers after scrutinizing the relevant materials took a decision that the writ petitioner is eligible to appear and contest as a scheduled caste (exempted category) candidate. They have issued the interview letters on the basis of which the selection was held and the writ petitioner was empanelled in the selected candidates' list or panel under Serial No. 77 which was forwarded to the Director for approval.
I do not find any illegality on the part of the writ petitioner. If there is any mistake, the mistake on the part of the concerned respondents who are responsible for it and for about last 4 years this mistake was never detected and this was detected only before giving approval by the office of the Director.
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In my view, if it is found after holding selection process that the candidate concerned is an exempted category candidate, although his name was not sponsored by the National employment exchange, the respondent authorities cannot remove his name from the panel on a plea that the National employment exchange has not sponsored his name. There is Special Bench judgement of this Hon'ble Court wherein it was held that a non-sponsored candidate can appear and contest in an interview if he is otherwise eligible. The ratio of the judgement is squarely applies here.
In my view, when the writ petitioner is enrolled with the employment exchange under the exempted category, the wit petitioner is entitled to get opportunity to contest under the exempted category even though his name was not sponsored by the employment exchange. This sponsorship lies with the employment exchange but the petitioner has no mechanism to get the employment exchange activated and got his name sponsored. It is the obligation on the part of the employment exchange to sponsor the name as exempted category candidates but in the instant case in the year 2006 some candidates 10 were sponsored but the interview and test was held in 2009. Therefore, it was the obligation of the employment exchange to sponsor the names which have enrolled the candidates under the aforementioned category and it was obligation on the part of the school council to call for further names from the employment exchange but I find there was no effort on their part to call for further names from the employment exchange.
In my view, the negligence on the part of the school council or on the part of the National employment exchange could not create any impediment when the writ petitioner in his application disclosed the true and correct facts that he is a scheduled caste (exempted category) candidate which was considered and the respondents have allowed him to appear in the interview and contest the selection process. He has become successful and got his name empanelled in the panel prepared by them.
In my view, the impugned memo and/or decision issued by the council dated May 7, 2010 cancelling the candidature of the writ petitioner should be struck down and the decision of the Director concerned as disclosed 11 in the affidavit-in-opposition is also set aside. I do hereby strike out the same and the Director of the School Education is directed to grant approval in favour of the wit petitioner and the petitioner be issued appointment letter without any further delay.
The writ petition is, thus, disposed of. There would be no order as to costs.
In view of disposal of the writ application the connected application has become infructuous and the same is disposed of accordingly.
(Ashoke Kumar Dasadhikari, J.)