Calcutta High Court (Appellete Side)
(Bd) vs State Of West Bengal & Ors on 25 July, 2019
Author: Moushumi Bhattacharya
Bench: Moushumi Bhattacharya
1
25th July
2019 W.P. 19544 (W) of 2018
(14) Sarafraj Hasan Kazim & Ors.
(BD) -vs-
State of West Bengal & Ors.
Ms. Mousumi Mitra
Mr. Sarwar Jahan
... for the Petitioners.
Mr. Bhaskar Prasad Vaisya
Mr.Suman Dey
... for the State.
Dr. Sutunu Kumar Patra
.... For the SSC.
All the 12 writ petitioners belong to the Backward Muslim community
recognized as Other Backward Class (OBC) and possess valid OBC-A certificates
issued by the competent authority. The petitioners participated in the selection
process for appointment of teachers for Classes IX and X in Secondary and
Higher Secondary schools in the 1st SLST. The petitioners responded to the
concerned advertisement for applying for the concerned posts.
The case of the petitioners, as stated in the writ petition, is that after being
successful in the written test, the petitioners were called for verification and
thereafter appeared for the personality test in their respective scheduled dates.
The final result was published on 12th March, 2018 and all the petitioners were
placed as wait-listed candidates.
The immediate grievance urged by learned counsel for the petitioners are
two lists published by the West Bengal School Service Commission. The first list
showed the total number of vacancies as 2769 for the OBC-A "Male/Female" at
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242 and for "Female" at 43. The subject applied for in these two categories is
Physical Science. Counsel submits that on a comparison of these two lists
published by the Commission it is found that although the total number of
vacancies have increased from 2769 to 3163, the vacancies for OBC-A
Male/Female has decreased from 242 to 213 and for Female from 43 to 33.
Counsel questions the decrease in the number of vacancies in the aforesaid two
categories since the total number of vacancies have admittedly increased.
Counsel relies on Rule 7 of The West Bengal School Service Commission
Rules, 1997, which provides the route of communicating the number of
vacancies for recruitment to various categories of teaching staff. The procedure
for recruitment has been given to the School Education Department of the State
Government. Under Rule 7(2), with regard to the route to be followed for the
reporting of vacancies by the school, the Regional Commission and the District
Inspectors of schools (SE). Under Rule 7(3), the school would have to follow the
100-point Roster as prescribed for direct recruitment of Scheduled Caste etc., in
reporting the vacancies and shall also indicate the position of each vacancy in
the 100-point Roster. Counsel also relies on Rule 2(o) of The West Bengal School
Service Commission (Selection of Appointment to the Posts of Teachers for
Classes IX and X in Secondary and Higher Secondary Schools) Rules, 2016
brought into effect by a Notification of the School Education Department on 20th
September, 2016. Under Rule 2(o), "Vacancy" means a vacancy in the posts of
Teacher for Classes IX and X caused by the following categories. These are :
(i) Creation of a new posts.
(ii) Superannuation.
(iii) Death
(iv) Resignation.
(v) Transfer.
(vi) Removal or dismissal.
(vii) Any other reason appear from the above categories, as the State Government made by order
determine.
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Counsel further relies on Rule 8 ("Information Regarding Vacancies") which
provides that the District Inspector of Schools, on being asked by the Director of
School Education, shall prepare a report regarding the number of vacancies for
posts, Subject-wise, Medium wise, Gender Wise, for the posts of such teachers
and shall send it to the Directorate of School Education (Rule 8(1)). Under Rule
8(2), on receipt of such report, the Directorate of School Education shall with due
approval of the State Government, send the vacancy report under the categories
mentioned under Rule 8(1) to the Central Commission. Rule 8(3) provides that
this report shall be sent to the Central Commission in two stages; (a) before the
date of publication of the advertisement inviting applications, and (b) 15 days
before the date of publication of the result of the written examination. Counsel
urges that there cannot be any basis for the number of vacancies in the OBC-A
Male/Female and OBC-A Female being reduced in the final list when the total
number of vacancies had increased. Counsel prays for an appropriate direction
on the respondent No. 2, being the Principal Secretary, School Education
Department (SE), Government of West Bengal, to disclose the reason for such decrease.
Learned counsel for the State relies on the Report affirmed on 3rd July, 2019 which attempts to explain the discrepancy/decrease in the number of vacancies available for OBC-A in the categories stated above which would appear from the relevant paragraphs in the said Report which are set out below.
"(b) In order to expedite selection procedure for appointing requisite number of teachers in schools, the reporting of vacancies was initially made by the District Inspector of Schools (Secondary Education) concerned tentatively based on assumption. On the basis of the tentative vacancies report made by District Inspector of Schools (Secondary Education), the office of the Commissioner of School Education prepared State-wise consolidated tentative vacancy table. Thus, grand total of tentative vacancies stood 2769 in the referred category.4
(c) After advertisement of the Selection Test made by the West Bengal School Service Commission, District Inspectors of Schools (Secondary Education) prepared actual vacancy report upon receipt of the accurate vacancy information from respective schools and sent the same to the office of the Commissioner of School Education. Then the Commissioner of School Education consolidated the actual vacancies State-wise which stood as 3163 in the referred category.
(d) The grand total of final vacancies counts more than the tentative vacancies.
However, upon receipt of the actual vacancy in the manner aforesaid for the categories of OBC-A Male/Female & OBC-A Female the final vacancies stood less than the tentative vacancies.
(e) The decrease of final vacancies for the categories of OBC-A Male/Female & OBC-A Female caused due to mismatch of assumption in the tentative vacancies made by the District Inspectors of Schools (Secondary Education). Thus, some categories of vacancies decreased and at the same time some categories of vacancies increased in the Final Report.
It is evident from the above that the only reason given by the learned Counsel for the State is that the decrease in the final vacancies in the specified categories was caused due to an inconsistency in view of an assumption on the part of the District Inspectors.
Learned counsel for the Commission relies on Rule 8(3) of the 2016 Rules which has already been referred to above and which provides essentially for two reports which are prepared by the Directorate of School Education with the approval of the State Government (upon receipt of the report from the District Inspectors). The timing of the first report to be sent to the Central Commission is before the date of publication of the advertisement under Rule 9 and the second Report 15 days before the date of publication of the result of the written examination (under Rules 12(3) and (4). Counsel refers to Rule 9(3) which provides that while specifying the vacancies in the advertisement (under Rule 8(3)(a), the Central Commission shall publish the tentative number of vacancies at the time of inviting applications for the SLST on the basis of Rule 8(3)(a) and or final vacancy list at the time of publication of the result of the written examination which would declare the actual vacancies on the basis of the report 5 under Rule 8(3)(b). Counsel submits that Rule 9(3) would have to be in consonance with Rule 12(6) under which final vacancies will have to be maintained in the ratio of 1.1:4. Counsel however submits that the onus of preparing the vacancy list under Rule 8 rests with the District Inspectors and then the Directorate of School Education and that the Commission only receives the two vacancy lists under Rule 8(3) as prepared by the District Inspector's and then the Directorate of School Education.
Having heard learned counsel for the parties, this Court is of the view that the District Inspector and the Director of School Education, being the two authorities named under Rule 8 for preparation of the two vacancies lists, are under a strict obligation to comply with the mandate of the 2016 Rules. Rule 2(o), which enumerates the various events under which a vacancy may occur, is clear in its scope. In this case, there is no document on record to show that under Rule 2(o)(7), the State has determined any order of vacancies by any order or otherwise. If this be the case then the number of vacancies as would appear in the tentative list before the advertisement and subsequently in the final list before the publication of result in the written examination, would have to necessarily be limited to the events specified under Rule 2(o). On a comparison of the two lists annexed to the writ petition, it is evident that the total number of vacancies has increased by almost 394 while the vacancies for the specified OBC- A categories has decreased by 39. To explain the difference in the decrease in the number of vacancies pertaining to the OBC-A candidates merely to "mismatch of assumption" in the tentative vacancies is not a satisfactory explanation in view of the substantial increase in the total number of vacancies. This assumes significance since under Rule 8(2), the report received by the Directorate of School Education from the District Inspectors will be sent under the various categories to the Central Commission only after "due approval of the State Government" (under Rule 8(2). The assessment of the Court would have been different had with the decrease in the number of vacancies available for OBC-A candidates there had also been a corresponding decrease in the total number of 6 vacancies available to all candidates. But this is not the case. The other significant factor is that by reason of the decrease in the number of vacancies in the final list for OBC-A candidates in the Male/Female and Female categories, the writ petitioners (who are all from the OBC-A categories) being waitlisted candidates have 39 vacancies less which is bound to affect the writ petitioners.
Since Rule 8(2) mentions the intervention of the Directorate of School Education and the approval of the State Government, it is only proper that the respondent no. 2, being the Principal Secretary, School Education Department, (SE), Government of West Bengal, is directed to explain with sufficient details and with particular reference to Rules 2(o), 8 and 9 of the 2016 Rules as to the basis of the decrease in the number of vacancies of OBC-A Male/Female categories for the subject Physical Science from 285 to 246, i.e, 39 vacancies less. The respondent no. 2, is directed to refer to and make available all relevant information in disclosing the basis of the decrease pertaining to the difference in the number of vacancies from the tentative to the final list i.e., 39 vacancies within a fortnight from the date of communication of this order. The information directed will be furnished by way a Report a copy of which will be handed over to the parties before this Court at least a week before the returnable date.
List this matter after three weeks.
( Moushumi Bhattacharya, J.) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57