Calcutta High Court (Appellete Side)
Ac vs State Of West Bengal & Ors on 17 May, 2012
Author: Harish Tandon
Bench: Harish Tandon
1
Court 17.5.2012 W.P. 10563 (W) of 2010
No.3
Sl.
1 Joydeb Das & Anr
ac -vs-
State of West Bengal & Ors
Mr. S.N. Sanyal
Ms. Lovely Ghosh
Mr. Sourav Sen ... For Petitioners
Mr. Partha Sarathi Bhattacharya ... For Council
Petitioners enrolled their names with the concerned
Employment Exchange under the 'Exempted' Category, being Ex-
Census workers.
District Magistrate, Dakshin Dinajpur issued a
certificate certifying that the petitioners worked as Ex-Census
Workers in the Census conducted in the year 1991. The identity card
issued by the Employment Exchange corroborates the aforesaid fact.
Pursuant to the notification dated 24th July 2009, the
petitioners purchased applications from the authorized bank upon
payment of requisite fee and submitted the applications offering their
candidature under the 'Exempted' Category as Ex-Census Workers.
By a subsequent notification dated 23rd April 2010, the
candidates, who applied for the said post, were notified to collect their
admit cards. On the notified date, the authorities refused to hand
over the admit cards to the petitioners as they did not produce the
recommendation of the concerned District Magistrate certifying that
the petitioners are Ex-Census Workers as their candidature was
required to be considered under the 'Exempted' Category.
The petitioners insisted that the Employment
Exchange has issued the identity cards showing the status of the
petitioners as Ex-Census Workers and there cannot be any insistence
upon production of a certificate by the District Magistrate in this
regard.
In fact, the Block Development Officer-cum-Charge
Officer, Census recommended and forwarded the applications
received by them from different aspirants for issuance of certificate as
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Ex-Census Workers to the District Magistrate, which was turned
down by the Authority in contending that he should not be
embarrassed as he has been instructed not to issue such type of
certificates.
Though the publication, made for inviting
applications, makes it imperative on the part of the
candidates to submit a certificate issued by the District
Magistrate if the candidate offered under the 'Exempted'
Category, the same should not be insisted in view of the
decision of the District Magistrate and the identity cards,
issued by the concerned Employment Exchange, should
be taken as sufficient compliance of the said condition.
It is relevant to note that the petitioners annexed a
certificate issued by the District Magistrate, vide Memo No. 1239
dated 18th December 2001 evidencing that they worked as Ex-Census
Workers during the Census conducted in the year 1991 under the
Balurghat Municipality.
In the affidavit-in-opposition, a serious dispute has
been raised by the District Primary School Council relating to the
status of the petitioners as 'Ex-Census Workers'. The Chairman of
the Council issued a letter on 28th November 2003 to the District
Magistrate for ascertaining the genuineness of the candidature
certain candidates whose names are shown in the list appended
thereto on the pretext that the person who worked as Ex-Census
Workers during the Census of 1981 could not be engaged in the
Census of 1991.
The District Magistrate enquired into the matter and
reverted to the Chairman of the Council on 8th February 2004
annexing the list containing the names of certain candidates who
worked during the 1991 Census or did not work in the said Census.
The names of the petitioners are appearing in the said
list at serial no. 7 and 20 and it has been certified that they did not
work during the 1981 Census.
It further appears that some of the candidates moved
before this Court by filing a writ petition, being W.P. 171949 (W) of
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2005 which was disposed of on 5th June 2007 with a direction upon
the District Magistrate to conduct a fresh enquiry and to see whether
the candidates, under the 'Exempted' Category, have, in fact, worked
as Ex-Census Workers or not.
The enquiry report reveals that the petitioner
no. 1 has been shown to be under-age at the relevant time
when the Census work of 1981 was conducted; whereas
the petitioner no. 2 has been shown that she did not work
at all.
The petitioners contend that the order passed by the
learned Single Judge was subsequently set aside by the Division
Bench and as such, no credential to the enquiry report, conducted on
the basis of an order which ultimately was quashed and set aside by
an Appellate Court, should be given.
It is really interesting to note that subsequent to the
said enquiry, the District Magistrate, Dakshin Dinajpur, through the
Additional District Magistrate, issued a Memo dated 21st September
2006 certifying that the petitioners did, in fact, work during the
Census of 1991.
The petitioners as well as the respondents have argued
much on the enquiry conducted by the District Magistrate at different point of time.
In support of their contention that the petitioners did work as ex-census workers, the petitioners relied upon an unreported judgment delivered on 21st April 2004 in the case of Joydeb Sarkar & Others -vs- State of West Bengal & Others (W.P. 6339 (W) of 2004).
It is further contended that if the Employment Exchange has registered their names under the 'Exempted' Category as Ex-Census Workers, the Council cannot dispute the competence of the Employment Exchange. Similar view is expressed by another Single Bench in an unreported judgment in the case of Subrata Chatterjee -vs- State of West Bengal & Others (W.P. 18946 (W) of 2010).
Admittedly, the petitioners are enrolled with the Employment Exchange under the 'Exempted' Category as Ex-Census 4 Workers. Identity cards issued by the Employment Exchange bears a rubber seal on the top thereof as 'EX CENSUS-91'.
There is no dispute that the genesis of both District Primary School Council as well as the Employment Exchange is West Bengal Primary Education Act, 1973 and the National Employment Exchange Act respectively. Both are statutory authorities and are entrusted with defined duties and functions.
Registration of names in the register, maintained by the Employment Exchange, is done upon proper verification of the certificates issued by the competent authority. If the Employment Exchange, on being satisfied about the status of a person as Ex- Census Worker, registers his/her name under the 'Exempted' Category, the District Primary School Council, in my opinion, cannot over-reach the domain of another statutory authority. It can very well raise issue as to the genuineness of the identity card issued by the Employment Exchange.
The aforesaid proposition is further fortified by the decision of the Co-ordinating Bench of this Court in the case of Joydeb Sarkar (Supra), where it is held:
"X X X X It goes without saying that if by misrepresentation a person gets a benefit in the matter of
employment, even after his employment is such misrepresentation is detected, on that ground alone he may be removed from his appointment. When the National Employment Exchange has registered the petitioners as exempted category candidates, it is the National Employment Exchange alone which can doubt the eligibility of the petitioners on being so empanelled, for it is the National Employment Exchange which has empanelled the petitioners only upon scrutiny of their particulars and it is not within the competence of the respondent-council to doubt such competence of the National Employment Exchange."
Similar view is expressed by another Co-ordinating Bench of this Court in the case of Subrata Chatterjee (supra).
Therefore, the respondents cannot raise doubt whether 5 the petitioners worked in a Census if the identity cards issued by the Employment Exchange shows that they have worked as Ex-Census Workers.
Reverting back to the fact of the present case, this Court finds that the respondents are proceeding on a wrong premise.
It is never the case of the petitioners that they worked as Census Workers during the Census conducted in the year 1981. The entire enquiry, conducted by the District Magistrate on the request of the Chairman of the District Primary School Council, rests upon whether the petitioners worked as Ex-Census Workers during the Census of 1981. Petitioners never claimed that they worked during the Census of 1981 rather the identity cards issued by the Employment Exchange bears rubber seal evidencing that the petitioners are Ex-Census Workers of the Census conducted in the year 1991. Enquiry reports relied upon by the respondents does not reveal that the petitioners did not work in the Census conducted in the year 1991.
There is another aspect which has been highlighted by the respondents that the age, disclosed by the petitioners in the year 1991, goes to show that at the relevant time, they were minor.
The petitioners annexed an information received under the Right To Information Act, 2005, in which the Joint Secretary to the Government of West Bengal disclosed that there is no age bar in the Census Act for appointment of Enumerators/Supervisors relating to Census operation. There is no bar in engaging minors as enumerators under the Census Act, the candidature cannot be rejected on the ground that they were under-age at the time when they worked as Ex-Census Workers.
Enquiry report issued by the District Magistrate, in terms of the enquiry conducted in the year 2006 discloses the status of the petitioners who worked during the 1991 Census, which cannot be disbelieved as the other reports relied upon by the respondents were founded on the enquiry whether the petitioners worked under the Census conducted in the 1981 or not.
The Council, therefore, is not justified in doubting the status of the petitioners as Ex-Census Workers/Enumerators and 6 could not insist for filing of certificate issued by the District Magistrate if the identity cards, issued by the Employment Exchange, are produced and annexed to their applications. The same should be sufficient compliance of the condition laid down in the said advertisement.
Petitioners contend that there are still vacancies in the slot in which they offered their candidature.
As a special case, this Court feels that the Council should fix a date for conducting written test for the petitioners and shall evaluate their candidature for the purpose of appointment to the post of Primary Teacher. The date for such examination shall be communicated to the petitioners at least a week before the same is scheduled to be held.
It is expected that the authorities would take prompt steps in fixing the date of written examination which, in no case, shall exceed eight weeks from the date of communication of this order.
The writ petition is disposed of. However, there will be no order as to costs.
Urgent photostat certified copy, if applied for, be supplied to the parties on priority basis.
(Harish Tandon, J.)