Calcutta High Court (Appellete Side)
Chanchal Kumar Patra vs State Of West Bengal & Ors on 26 August, 2008
Author: Pranab Kumar Chattopadhyay
Bench: Pranab Kumar Chattopadhyay
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Pranab Kumar Chattopadhyay
And
The Hon'ble Justice Tapan Mukherjee
M.A.T. 1194 of 2003
Chanchal Kumar Patra
Versus
State of West Bengal & Ors.
For the Appellant : Mr. Milan Chandra Bhattacharyya
Mr. Golam Mustafa
Mr. Subir Sabud
For the Added Respondent : Mr. Kalyan Bandyopadhyay
Mr. Ekramul Bari
Mr. Syed Mansur Ali
For the State : Mr. Bhudeb Bhattacharyya
Ms. Nilima Das
Heard On: 11.07.2008 & 07.08.2008.
Judgment On: 26.08.2008.
PRANAB KUMAR CHATTOPADHYAY, J.
The instant appeal has been preferred at the instance of the writ petitioner assailing the judgment and order passed by the learned Single Judge whereby and whereunder the said learned Single Judge dismissed the writ petition on merits.
From the records we find that there was a vacancy in the post of Clerk at the Jujersa Prannath Manna Institution, Jujersa, Howrah and for the purpose of filling up the said vacant post, District Employment Exchange, Howrah sponsored the names of several candidates. The appellant herein filed the writ petition alleging that the Employment Exchange concerned sponsored the names of several candidates who had registered their names with the Employment Exchange even after registration of the name of the said appellant/writ petitioner.
Initially, an ex-parte interim order was passed by a learned Single Judge of this court to the following effect:
" Let this matter appear as Listed Motion after three weeks. Affidavit-in-
opposition be filed by the respondents within a fortnight from date and reply thereto, if any, be filed within a week thereafter.
In the meantime, the respondent authority will permit the petitioner to appear before the interview for the post of Clerk in Jujersa Prannath Manna Institution, Jujersa, Howrah.
If after such interview the petitioner comes within the zone of consideration the respondent authority will not appoint him but the appointment will be subject to the final decision of this writ application. If the petitioner does not come within the zone of consideration, the respondent authority will be entitled to appoint the person who will be selected on the basis of such interview."
Pursuant to the aforesaid interim order appellant/writ petitioner herein appeared at the interview before the Selection Committee. From the records we also find that another candidate, not sponsored by the Employment Exchange, namely, Sri Ranjit Karmakar filed another writ petition being W.P. No. 20927 (W) of 2004 and pursuant to the order passed in the said writ petition, appeared at the said interview along with the writ petitioner and other Employment Exchange sponsored candidates. In course of hearing of the writ petition it was submitted before the learned Single Judge that in the selection process appellant/writ petitioner secured the first position in the panel prepared by the concerned authority upon holding the interview of the candidates.
The writ petition filed at the instance of the appellant herein was ultimately dismissed by the judgment and order under appeal on the ground that the said appellant in order to persuade the Court to pass an interim order made vague allegations against the Employment Exchange authorities.
The learned Single Judge while dismissing the writ petition observed that the appellant herein did not furnish any particulars in the writ petition in respect of the candidates who were sponsored by the Employment Exchange. The learned Single Judge also observed that the appellant herein did not disclose a single registration number with the year of registration in the writ petition in order to establish that the said appellant herein was registered with the Employment Exchange earlier to any candidate who had been sponsored by the concerned Employment Exchange for recruitment to the said post of Clerk in the concerned school.
The learned Single Judge refused to grant any relief to the appellant/writ petitioner, even though he was included in the panel of selected candidates at Serial No. 1 on the ground that the writ petitioner did not approach this court with correct facts. While dismissing the aforesaid writ petition, learned Single Judge also observed that the school authority would be entitled to recast the panel by excluding the writ petitioner.
Pursuant to the aforesaid direction of the learned Single Judge, subsequently, the school authority submitted the recast panel excluding the name of the appellant/writ petitioner herein and the panel was also approved by the District Inspector of Schools concerned. In the recast panel, the name of the added respondent, Sri Ranjit Karmakar was at the top and, therefore, said Sri Ranjit Karmakar was appointed by the school authority in the vacant post of Clerk. After being appointed by the school authority Sri Ranjit Karmakar joined his duty in the post of clerk in the said school.
Going through the judgment and order under appeal we find that the State-respondents filed affidavit-in-opposition in relation to the writ petition filed by the appellant herein and in the said affidavit-in-opposition, list of the candidates as sponsored by the Employment Exchange concerned was disclosed. The learned Single Judge on examination of the aforesaid list found that not a single candidate who was registered after the appellant herein with the Employment Exchange was sponsored for the post in question. The learned Single Judge specifically observed that the Employment Exchange sponsored candidates for the post in question were registered in the year 1979 whereas the appellant/writ petitioner herein was registered with the concerned Employment Exchange in the year 1991. In view of the aforesaid findings, the learned Single Judge had no other option but to hold that the writ petitioner did not approach this court with correctly stated facts and the said writ petitioner was not entitled to be sponsored for the purpose of recruitment in the post in question.
It has been argued on behalf of the appellant that the writ petitioner was not required to approach this Hon'ble court for granting an opportunity to appear at the interview before the Selection Committee in the event, the school authority would not have restricted the zone of consideration for filling up the post in question only for the Employment Exchange sponsored candidates. Mr. Milan Ch. Bhattacharyya, learned Counsel of the appellant referred to and relied on a Division Bench judgment of this court in the case of Manik Chandra Das vs. State of West Bengal & Ors.
reported in 2007 (2) CHN 761.
We fail to understand how the aforesaid decision can be of any help to the appellant herein.
In the aforesaid decision, this Court specifically held that the zone of consideration for employment cannot be restricted only in respect of the Employment Exchange sponsored candidates in view of the law laid down by the Hon'ble Supreme Court in the case of Excise Superintendent, Malkapatnam, Krishna District, A.P. vs. K.B.N. Visweshwara Rao & Ors. reported in (1996) 6 SCC 216.
In the present case, the appellant did not file the writ petition challenging the decision of the school authorities to confine the selection process only in respect of the Employment Exchange sponsored candidates. As a matter of fact, the appellant herein categorically mentioned in the writ petition that the Employment Exchange authorities sponsored the candidates who registered their names after the said writ petitioner. The appellant herein never prayed in the writ petition for issuance of a direction upon the school authorities to give wide publicity to fill up the vacant post of Clerk. The said appellant chose to file the writ petition only on the ground that the Employment Exchange authorities wrongfully and illegally did not sponsor his name ignoring the fact that the said appellant registered his name with the Employment Exchange concerned before the other candidates sponsored by the said Employment Exchange which subsequently proved to be wrong. The appellant herein undisputedly, claimed in the writ petition that his name should have been sponsored by the Employment Exchange so that the Selection Committee could consider his candidature as a candidate sponsored by the Employment Exchange.
In any event, pursuant to the order under appeal passed by the learned Single Judge panel in question was recast excluding the name of the appellant herein by the school authority and in the said recast panel, name of the added respondent, Sri Ranjit Karmakar was placed at the top. It is also not in dispute that pursuant to an earlier order passed in another writ petition filed by the said Sri Ranjit Karmakar, the added respondent herein, another learned Single Judge of this court permitted Sri Ranjit Karmakar to appear at the interview before the Selection Committee and ultimately, said Sri Ranjit Karmakar secured first position in the recast panel. It has been argued on behalf of the added respondent that the appellant herein did not challenge the appointment of the said added respondent on the basis of the recast panel in the writ petition wherefrom the present appeal has arisen and, therefore, the appointment already given to the added respondent should not be disturbed.
Going through the writ petition filed by the appellant herein we find that the appellant did not furnish relevant particulars in support of his claims that the candidates sponsored by the Employment Exchange for the purpose of recruitment to the said post of Clerk in the concerned school were registered with the concerned Employment Exchange later than the appellant herein. Therefore, it cannot be said that the appellant herein wilfully and deliberately tried to mislead this court by furnishing any wrong particulars. May be, on the basis of wrong information derived from unreliable sources, aforesaid claim was made in the writ petition by the appellant herein that the Employment Exchange forwarded the names of the candidates who were registered with the concerned Employment Exchange after the appellant.
In the case of Excise Superintendent, Malkapatnam vs. K.B.N. Visweshwara Rao (Supra), Hon'ble Supreme Court specifically held that the equality of opportunity in the matter of employment should be available to all eligible candidates. In Paragraph 6 of the aforesaid judgment, Hon'ble Supreme Court specifically held:
"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."
Subsequently, in the case of Arun Kumar Nayak vs. Union of India & Ors. reported in (2006) 8 SCC 111, Hon'ble Supreme Court specifically approved the aforesaid view taken in the case of Excise Superintendent, Malkapatnam vs. K.B.N. Visweshwara Rao (Supra) in order to afford equal opportunity to all the eligible candidates in the matter of employment. Paragraph 9 of the aforesaid judgment is set out hereunder:
"9 This Court in Visweshwara 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 qualifications are attracted, so that adequate choices are made available and the best candidates would be selected and appointed to subserve the public interest better."
The appellant herein appeared at the interview before the Selection Committee for recruitment to the said post of Clerk in the concerned school pursuant to the interim order granted by a learned Single Judge of this court and ultimately came out to be the best candidate. The name of the said appellant was, therefore, placed at the top of the panel. In the aforesaid circumstances, it cannot be said that the appellant herein was otherwise not an eligible candidate for the said vacant post of Clerk. In the event, the school authorities, following the procedures mentioned in the aforesaid decisions of the Hon'ble Supreme Court, would call for the names of the candidates by publication in the newspapers having wider circulation or announcement on radio, television and Employment News bulletin, the appellant herein could also apply and participate along with other eligible candidates at the interview before the Selection Committee.
It is true that the appointment of the added respondent was not challenged in the writ petition filed by the appellant herein as the said added respondent was neither appointed nor there had been any scope to be appointed on the basis of the original panel prepared by the Selection Committee. The added respondent got the appointment on the basis of the recast panel which was prepared pursuant to the order passed by the learned Single Judge while finally disposing of the writ petition wherefrom the present appeal has been preferred.
In the aforesaid circumstances, we are to consider whether the learned Single Judge was right in directing the school authorities to recast the panel after excluding the name of the writ petitioner without appreciating the procedures approved by the Hon'ble Supreme Court in the cases of Excise Superintendent, Malkapatnam vs. K.B.N. Visweshwara Rao (Supra) and Arun Kumar Nayak vs. Union of India & Ors. (Supra) for filling up the vacancy by selecting the best candidate to subserve the public interest better.
Mr. Bhudeb Bhattacharyya, learned Counsel representing the State-respondents submits that the procedures to be adopted by the school authorities while conducting the selection process for filling up the vacant posts have been elaborately discussed and decided by this Hon'ble Court in the following decisions:
1) 2008 (2) CHN 661 [Radha Giri (Pradhan) vs. State of West Bengal & Ors.]
2) 2008 (2) CHN 879 [Gaya Nath Rajbanshi vs. State of West Bengal & Ors.] In the present case, admittedly, the school authorities did not call for the names by publishing advertisements in the newspapers having wider circulation or displaying on the office notice boards as a result whereof many deserving candidates including the appellant herein were denied the right to be considered for appointment to the said vacant post of Clerk in the concerned school. Therefore, the selection process followed by the respondent authorities in the instant case for filling up the vacant post of Clerk in the concerned school has been vitiated due to non-observance of the procedures approved by the Hon'ble Supreme Court in the cases of Excise Superintendent, Malkapatnam vs. K.B.N. Visweshwara Rao (Supra) and Arun Kumar Nayak vs. Union of India & Ors. (Supra).
This Hon'ble Court in the case of Radha Giri (Pradhan) vs. State of West Bengal & Ors. (Supra) held:
"6...........................................................................Admittedly, the vacancies were never advertised. Therefore, neither the petitioner nor the respondents had any legal right to be either considered or appointed on the aforesaid posts. Any appointments made are clearly violative of Articles 14 and 16 of the Constitution of India. The appointments would also be contrary to the law laid down by the Supreme Court in the cases of Visweshwara Rao (supra) and Arun Kumar Nayek (supra)."
For the aforementioned reasons, the entire selection process is liable to be quashed and the same is, therefore, quashed.
As we have already held that the entire selection process has been vitiated in the instant case due to non-observance of the procedures approved by the Hon'ble Supreme Court in the aforesaid two decisions and quashed the same, neither the original panel prepared by the Selection Committee nor even the recast panel prepared pursuant to the order under appeal can survive. Therefore, the appointment of the added respondent to the said vacant post of Clerk in the concerned school cannot be overlooked only on the ground that the same is not a subject matter of the present appeal.
In view of quashing of the selection process for the reasons mentioned hereinbefore, the outcome of the same cannot survive. The appointment of the added respondent is admittedly, the outcome of the aforesaid illegal and irregular selection process. So, the said appointment of the added respondent to the post of Clerk on the basis of the aforesaid illegal selection process followed by the respondent authorities cannot be sustained in law and the same is accordingly, quashed.
The respondent authorities herein particularly the school authorities are directed to initiate the selection process de novo in the manner directed by the Hon'ble Supreme court in the cases of Excise Superintendent, Malkapatnam vs. K.B.N. Visweshwara Rao (Supra) and Arun Kumar Nayak vs. Union of India & Ors. (Supra).
Since a considerable time has already elapsed, the respondent authorities are directed to initiate the selection process in order to fill up the post of Clerk in the concerned school immediately and complete the entire selection process as early as possible but positively within 31st October, 2008.
Although we have quashed the appointment of the added respondent in view of the illegalities and/or irregularities in the selection process as specifically mentioned hereinbefore, the same would not prevent the respondent authorities from retaining the service of the said added respondent in the school in question on purely ad-hoc basis till the properly selected candidate in terms of this order is appointed to the said post in question.
With the aforesaid observations and directions, this appeal stands disposed of.
In the facts and circumstances of the present case, there will be, however, no order as to costs.
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.
[PRANAB KUMAR CHATTOPADHYAY, J.] TAPAN MUKHERJEE, J.
I agree.
[TAPAN MUKHERJEE, J.]