Calcutta High Court (Appellete Side)
Sachin Ghosh And Another vs Unknown on 17 May, 2016
Author: Tapabrata Chakraborty
Bench: Tapabrata Chakraborty
17.5.16
skd
73
W. P. 1692 (W) of 2016
In the matter of: Sachin Ghosh and another
... Petitioners
Mr. Amit Kumar Bhattacharyya ... For the Petitioners
Mr. Supriyo Chattopadhyay
Ms. Iti Dutta ... For the State
Respondents
Mr. Subir Sanyal Ms. Sumita Sen ... For the Council The instant writ application has been preferred challenging, inter alia, the inaction on the part of the respondents to appoint the petitioners as assistant teachers (primary) in schools under the North 24-Parganas District Primary School Council (hereinafter referred to as the said Council).
Mr. Bhattacharyya, learned advocate appearing for the petitioners submits that the petitioners' names were registered by the concerned employment exchange in the Exempted Category as ex-census workers and the name of the petitioner no.1 was sponsored by the concerned employment exchange as a general candidate under the Exempted Category and the petitioner no.2 was sponsored by the concerned employment exchange as a schedule caste candidate under the Exempted category for participation in the selection process conducted by the said Council for filling up posts of primary teacher and accordingly, they were allowed to fill up their bio-data proformas. Thereafter by memo dated 15th March, 2004, the respondent no.2 directed the respective petitioners to submit the documents as referred to in the memo. The petitioners duly submitted the said documents and upon scrutiny of the same they 2 were allowed to participate in the written test held on 22.03.04. The petitioners emerged to be successful in the written test and were accordingly empanelled and such fact was reported to the respondent no. 5 and such fact was also corroborated by the respondent no.2 vide memo dated 6th February, 2006 addressed to the respondent no.7 and it was reported that the petitioners have been appointed to the posts of assistant teacher (primary) respectively as a general candidate and as a schedule caste candidate in Exempted category reserved vacancies. Pursuant to the said memorandum the respondent no.7 recorded the petitioners as 'placed' though at that juncture the petitioners were merely empanelled and due to such recording as 'placed' the petitioners stood excluded from availing further call for other vacancies. Aggrieved thereby the petitioners along with other similarly situated candidates approached the competent authority under the Right to Information Act,2005 seeking information as to why they have been reported by the Council as 'placed' though they had not been appointed. In reply thereto, the Joint Director of Employment, West Bengal through a memorandum dated 2nd September, 2009 reported, inter alia, that "the names of the five petitioners, as mentioned in the said application, have not been struck off by the Chairman, D.P.S.C., North 24-Parganas, and as such they have been shown 'placed' at the E.C.Cell on April, 2006". Thereafter as no steps were taken by the authorities towards appointment, the petitioners along with others were constrained to approach this Court by a writ application, being W.P. 25479 (W) of 2006 but the same was dismissed by an order dated 7th May, 2010 with liberty to petitioners therein to file a fresh a writ application incorporating successive developments. Pursuant thereto, the said writ petitioners preferred a fresh writ application, 3 being W. P. 14145 (W) of 2010 and the same was disposed of by an order dated 11th April, 2011. Aggrieved by the said order, the petitioners therein preferred an appeal which was dismissed by an order dated 14th March, 2014. Subsequent thereto, a contempt application was filed in connection with the said writ application, being CPAN 2342 of 2014 and the same was disposed of by an order dated 27th March, 2015 observing that there was no wilful violation of the order, on the basis of the alleged contemnor's submission that he was not in the helm of affairs when the writ application was disposed of and that he was trying to trace out all the relevant records to ensure effective compliance of the order dated 11th April, 2011 passed in W. P. 14145 (W) of 2010. Even after the disposal of the contempt application, no explanation was forthcoming as to whether the records have been traced and as to whether any steps have been taken in compliance with the order dated 11th April, 2011 and as such the petitioners were constrained to prefer the instant writ application.
Mr. Bhattacharyya submits that in the backdrop of the admitted facts that the petitioners were empanelled and that they were shown to have been 'placed' and that their names were not struck off from the panel by the respondent no.2, the respondents could not have denied him appointment.
Drawing the attention of this Court to the averments made in the writ application and the affidavit-in-reply, he submits that one Sri Bangajit Sinha, empanelled below the petitioners was given appointment and one Subhrangshu Sekhar Joarder, who had ranked below the petitioners and against whose name the word 'underage' was incorporated, was also given appointment but similar benefit has not been extended to the petitioners and such discrimination as 4 practiced by the respondents is violative of the provisions of Article 14 of the Constitution of India.
He further submits that the earlier writ application was heard upon exchange of affidavits. The maintainability point raised by the respondents alleging delay on the part of the petitioners therein to approach the Court, was rejected and since the photocopies of record of information were not legible, the matter was relegated to the Council only for verification as to whether the petitioners therein were empanelled.
Per contra, Mr. Sanyal, learned senior counsel appearing for the respondent no.2 argues that the Council as the employer can certainly call for all relevant documents to consider the genuinity of the same prior to grant of any appointment to the petitioner and that as such the petitioner was asked to produce the documents as referred to in the memorandum dated 15th March, 2004 but the said documents were not furnished. The petitioners have not been able to produce any receipt towards submission of the said documents before the Council. In the absence of verification of the said documents question of grant of appointment to the petitioners does not occasion.
He further submits that it needs to be ascertained as to whether the petitioners did discharge the statutory period of service in census operation for securing registration in the exchange under Exempted category. The remark 'underage' has been incorporated against the name of the petitioners in the panel since they did not discharge the minimum period of service during census operation to avail registration under Exempted category. The petitioners have not been able to produce the relevant documents to answer such query 5 of the Council. The said remark 'underage' is not pertaining to the age of the petitioners.
According to Mr. Sanyal, permission to allow the petitioners to participate in the selection process is always subject to determination of the eligibility of the petitioners on the basis of appropriate documents and having been allowed to participate in the selection process, the Council is not estopped from arriving at a satisfaction as regards petitioners' eligibility for appointment. Reliance has also been placed upon para 7(iii) of the affidavit-in- opposition wherein it has, inter alia, been stated that the petitioner no.1 "passed in final Madhyamic Examination from the other Board of Secondary Education which is not equivalent qualification".
He further argues that the entire panel of 2004 has lost its life and no direction can be issued to grant appointment to the petitioners from a dead panel more so when admittedly all appointments pertaining to the said selection process have been made. The petitioners cannot also be considered in respect of the present vacancies for which the selection process has to be conducted as per the new rules and the provisions of the Right of Children to Free and Compulsory Education Act, 2009.
In reply, Mr. Bhattacharyya disputes the contention of Mr. Sanyal and submits that the respondents have illegally withheld the appointment of the petitioners. In support of his contention, Mr. Bhattacharyya has placed reliance upon the judgments delivered in W.P. No.11847 (W) of 2011, W.P. No.5029 (W) of 2009, W.P. No.18946 (W) of 2010 and W.P. No.21023 (W) of 2010.
I have heard the learned advocates appearing for the respective parties and I have considered the materials on record. 6
The undisputed facts are that the name of the petitioner no.1 was sponsored by the Employment Exchange as a general candidate under Exempted category and the name of the petitioner no.2 was sponsored as a schedule caste candidate under Exempted category. The petitioners were allowed to participate in the selection process. The petitioners were empanelled. The genuinity of the memoranda dated 6th of February, 2006 and 2nd September, 2009 have not been disputed by the respondents. Candidates below the petitioners' respective ranks in the concerned panel have been granted appointment. No appeal has been preferred by the Council against the order dated 11th April, 2011 passed in the earlier writ application (W.P. No.14145 (W) of 2010) preferred by the petitioners herein and others.
The fact that similarly situated persons, who were empanelled in the same selection process and who were ranked below the petitioners were appointed could not be disputed on behalf of the Council and as such similar benefits cannot be withheld in respect of the petitioners. It would be inequitable to mete out dissimilar treatment to similarly placed persons.
In the affidavit-in-opposition filed by the Council it has been stated that the petitioner no.1 secured 39.29 marks whereas the lowest cut off marks in EC/UR category was 38.51 and that the petitioner no.2 secured 40.69 marks whereas the lowest cut off marks in EC/SC category was 34.48 marks. No allegation of suppression of any material fact as regards qualification has been levelled against the petitioners in the said opposition.
Answering the argument of the Council to the effect that the appointing authority always has the jurisdiction to verify the fact as to whether the candidates registration under Exempted category in 7 the concerned employment exchange, a coordinate Bench, in an order passed in the case of one Rama Sengupta (Gupta) (W. P. 11847 (W) of 2011), similarly situated with the petitioners, observed, inter alia, that when the concerned employment exchange has registered the names of the candidates under the ex-census category, it is the concerned employment exchange alone which can doubt the eligibility of the petitioners of being so empanelled, for it is the concerned employment exchange which has empanelled the petitioners upon scrutiny of the candidates' particulars and it is not within the competence of the Council or for that matter any other authority of the State to doubt such competence of the concerned employment exchange. Not only common etiquette but also judicial propriety demands that the findings arrived at on the rudiments of similar facts by a coordinate Bench should be given respect and should be followed by another coordinate Bench.
A perusal of the order passed by this Court in the earlier writ application, being W. P. 14145 (W) of 2010, preferred by the petitioners herein and others would reveal that the writ petition was disposed of relegating the matter to the Council on a limited ground. The Council was only asked to verify the records of the selection process as the photocopies of the records produced before the Court were not properly legible. Such direction was binding upon the parties inter se. No argument was advanced on behalf of the said respondent no.2 as regards registration of the petitioners' name in the Exempted category and as regards the qualification of the petitioner no.1 herein. The said order was passed upon exchange of affidavits by the parties. Upon conscious consideration of the submissions made on behalf of the respondents, the Hon'ble Court passed the directives and in the backdrop of such factual scenario, 8 no fresh ground can be agitated at this stage by the Council for withholding the appointment of the petitioners.
The petitioners were allowed to participate in the selection process, the petitioners were empanelled and in the facts and circumstances of the case, their appointment cannot be denied on a purported plea that the panel has now lost its life. The point of delay was argued on behalf of the Council in the earlier writ application but such argument was negated as would be explicit from the order dated 11th April, 2011. Furthermore, the claim of the empanelled candidates cannot be defeated on the ground that the validity of the panel has expired during the pendency of the litigation.
A duly-selected person for being appointed cannot be illegally kept out of employment on account of untenable decision on the part of the employer and the right of the petitioners to be appointed against the posts to which they have been selected cannot be taken away on the pretext that the said panel has in the meantime expired. Usurpation of the post by somebody else is not on account of any defect on the part of the petitioners but on the erroneous decision of the employer himself.
Accordingly, this Court directs the Council and its Chairman to ascertain if vacancies are available pertaining to the selection process of the year 2004 within the jurisdiction of the Council and in the event such vacancies in the respective categories pertaining to the petitioners exist, then the petitioners should be offered appointment in the said vacant posts without disturbing the appointments of the last accommodated candidates in the respective categories. However, if it is found that no such vacancies are available, then the Council shall appoint the petitioners in any subsequent vacancies within its jurisdiction and such appointments 9 should be regularised by the Council and the State Government prospectively.
This exercise should be completed by the Council, its Chairman and the State Government within a period of twelve weeks from the date of communication of this order.
With the above observations and directions, the writ application is disposed of.
There shall, however, be no order as to costs.
Urgent certified photocopy of this order, if applied for, be supplied to parties as expeditiously as possible.
(Tapabrata Chakraborty, J.)