Calcutta High Court (Appellete Side)
Mousumi Pal vs The West Bengal College Service ... on 16 July, 2013
Author: Ashoke Kumar Dasadhikari
Bench: Ashoke Kumar Dasadhikari
1
16st July,
2013.
(SM)
W. P. 10417 (W) of 2007
Mousumi Pal.
Versus
The West Bengal College Service Commission & Ors.
Mr.Asok Kumar Chakraborty
Mr.Pinaki Ranjan Chakraborti.
.....For the petitioner.
Mr. Puluk Ranjan Mandal.
.....For W.B. College Service Commission.
The petitioner is aggrieved by and dissatisfied against the action of the
West Bengal College Service Commission for not recommending her name in spite
of the fact that she stood second in the selected list and/or panel prepared for
giving appointment as a lecturer of Music.
Mr. Asok Kr. Chakraborty, learned counsel appearing for the petitioner
submits that the respondents/College Service Commission publishing notice in
one English News Daily, one in Bengali News Daily and also at its own Website declaring vacancies for which the panel was prepared.
Mr. Chakraborty pointed out that there were four vacancies one is in Calcutta University and one is in Burdwan University and two others in Bidyasagar University.
Mr. Chakraborty pointed out that the College Service Commission in its own Website published a similar notice wherein it was captioned that the vacancies were lying vacant in different subjects under different Universities as on 31st August, 2005. He submitted that for those vacancies as informed and requisitioned by the authorities, West Bengal College Service Commission invited applications for preparing panel and for giving recommendation in favour of the candidates in order of merit. Mr. Chakraborty submitted that it is admitted position that after proper selection process held by the College Service 2 commission a panel was prepared wherein the first empanelled candidate was Bisakha Goswami, the second empanelled candidate was Mausumi Pal for Vidyasagar college and for general category Mausumi Pal was again empanelled and according to him, Mausumi Pal was the sole candidate in the General category.
Mr. Chakraborty submitted that first empanelled candidate was recommended and she was given appointment. So far the petitioner is concerned, she was not recommended during the lifetime of the panel although there are vacancies and proper requisition was sent to West Bengal College Service Commission for such recommendation before making such advertisement.
Mr. Chakraborty submitted that it was an obligation on the part of the College Service Commission to recommend the petitioner's name for giving appointment in the existing vacancies within the lifetime of the panel however, the College Service Commission deliberately did not recommend the name of the petitioner. Although vacancies are there. The College Service Commission without recommending the name of the petitioner published another notification for preparing a second panel most illegally and unfairly.
Mr. Chakraborty submitted that the petitioner made a representation before the College Service Commission. In that representation she specifically mentioned that only on the basis of proper requisition of the concerned college under Vidyasagar University, the College Service Commission had undergone process of recruitment of proper candidates on the provisional merit panel comprising eligible candidates was officially announced on 9th June 2006. Under such circumstances, it was expected that College Service Commission would take all necessary steps to obviate the snags, if any and would be pleased to expedite releasing recommendation in favour of giving appointment to the post of lecturer of Music under the concerned college of Vidyasagar University. The petitioner with great anxiety pointed out that after publication of merit panel about six and a-half months have already elapsed but College Service Commission did not recommend the name of the petitioner for giving appointment in the concerned college.
3Mr. Chakraborty submitted that in stead of recommending the name of the petitioner, College Service Commission in 2007 again published a notification inviting applications for selecting candidates on the same subject.
Mr. Chakraborty submitted that purpose of preparation of the panel is frustrated when the College Service Commission do not act legally and in terms of requisition made by the College authorities. He emphatically submitted that unless and until requisitions are made there is no question of preparation of panel. He also pointed out that it is evident from the provisional merit panel disclosed by the College Service Commission that preparation of merit panel has been done with due consideration of number of anticipated vacancies in the subject/discipline also. According to him, in case anticipation of vacancies, it is obligation on the part of the College Service Commission to recommend the name of the meritorious candidates who were selected and empanelled for those anticipated vacancies. However, in the instant case that was not done by the College Service Commission, but most arbitrarily they have published another advertisement for preparation of another panel for the vacancies not filled up.
Mr. Chakraborty also submitted that from the affidavit-in-opposition filed by the College Service Commission, it is not clear that when the College authorities or the University authorities made requisition and gave information about the vacancies for which a new panel is to be prepared. According to him, if it is a case of anticipated vacancy then also the petitioner is entitled to recommend by the College Service Commission as per their notification.
Mr. Chakraborty submitted that the respondent authorities did not disclose the facts involved in this matter and they have not also disclosed when such requisition for preparation of second panel was given and the vacancy position and moreover, at which date the notification was published.
Mr. Chakraborty submits that the petitioner is a highly qualified candidate. She is M.A. having Ph.D in Rabindra Sangeet and also selected for general category and at the same time having B.Ed degree but she was not recommend against general category or against any B.Ed colleges.
4Mr. Chakraborty submitted that the action of the College Service is arbitrary and contrary to all norms and procedures and also unfair and discriminatory. He also submitted that the efforts on the side of the College Service Commission to make a distinction between information and requisition is nothing to a plea to escape the duty casts upon them to recommend the selected candidates for giving appointment in the vacancy which was declared in the advertisement as well as for any anticipated vacancies.
He also submitted that College Service Commission did not answer to the petitioner's representation. The petitioner did not find any other suitable alternative than to file this writ petition before expiry of the lifetime of the panel i.e, on 18th May 2007. On 17th September 2007 the writ petition was heard before the Hon'ble Single Judge. Mr. Mondal appearing for the College Service Commission submitted that for want of requisition petitioner's name could not be recommended. However, the Hon'ble Judge was prima facie satisfied that since petitioner's right which accrued upon being empanelled cannot be extinguished at this stage for lapse of time, just because the requisition was not sent by the College. He also submitted that none of the colleges bearing respondent No.4, Belda College appeared and explained why requisition was not sent, although they were duly served with notice.
At the time of moving the learned counsel appearing for Belda College submitted that Belda College has one vacancy for the post and so far as the other four colleges are concerned no particulars are available. Upon consideration of the submissions the Hon'ble Judge passed the following interim order on 17th September, 2007 which reads as follows:-
"In the meantime, the seats which have fallen vacant on the strength of which the advertisement was issued shall not be filled up without leave of this Court. Mr. Mondal, learned advocate appearing of the Commission had submitted that the term of the panel has lapsed but that aspect has to be examined also on affidavits, as the writ petition was admittedly filed during the subsistence of the panel and 5 no reason has been given as to why during the normal term of the panel no requisition was sent."
It was submitted by Mr. Chakraborty that in view of the interim order the post which advertisement was published in 2007 has not yet been filled up since no such leave was granted. Mr. Chakraborty submits that the colleges did not appear at the time of hearing they had not filed any affidavit and they had also not disclosed any reason before this court. Thus, it is evident that the vacancy are there and they recommendation was not deliberately but unfortunately a second advertisement was published for those vacancies in the same year that is 2007. Therefore, the College Service Commission should be directed to recommend the petitioner's name in any of the vacancies for which advertisement was made but no appointment given in view of the interim order of this Court.
Mr. Chakraborty referred one decision of this Hon'ble Court reported in 2007 Vol.4 Calcutta High Court Notes 228 (Tapasi Ghosh -vs-West Bengal College Service Commission & Ors.) wherein it was held that: -
"When published norms in one way has reasonably created an impression and/or expectation in the mind of the respective candidate, I should say, which is a reasonable one, that such norms throughout is to be followed without any departure. It is settled position of the law once a norm is published the same cannot be allowed to e deviated without any change in policy decision with the sufficient notice and information to the public at large."
"This element of transparency in the action of the State or statutory body does, in my view, eliminate chance of arbitrariness. This has not been followed by the Commission."
It was further submitted by Mr. Chakraborty that although the validity period of the approval expired during the pendency of the petition the period during which the petition is pending should be included while publishing the validity period as the petitioner filed the writ petition before expiry of the approval. The Court can also grant relief even on subsequent event and can direct in any appropriate case when it is found that there is an arbitrary and illegal action and the conclusion and/or decision. Mr. Chakraborty cited two 6 decisions one is reported in AIR 1987 page 537 and the other is reported in AIR 1985 page 941. In those cases the concerned Commission was directed to send recommendation for appointment in favour of the petitioner to the post of lecturer in Music at the first available opportunity.
On the basis of the aforesaid decision, Mr. Chakraborty submitted that during the lifetime of the panel the petitioner moved this petition and this petition is pending since 2007 during which another advertisement was published inviting applications for preparation of panel. Therefore, in view of the aforesaid principles of law as decided by this Hon'ble as well as Hon'ble Apex Court in the aforementioned decisions in view of the facts and circumstances of this case the Commission should be directed to recommend the name of the writ petitioner for the vacancy for which second advertisement was made.
Mr. Chakraborty preferred another judgement of the Hon'ble Supreme Court reported in (2003) 3 Supreme Court, 699 (State of U.P. Vs. Ram Swarup Saroj) which is a Bench of three Hon'ble Judges. In that Judgement the Hon'ble Apex Court held that the selected list was finalized in the moth of November 1996 and the petition was filed by the respondent in the month of October, 1997 i.e., before the expiry of one year from the date of the list merely because a period of one year has elapsed during the pendency of litigation, we cannot decline to grant relief to which the respondent has been found entitled by the Hon'ble Court. In that case Hon'ble Court directed the Additional Advocate General for the State of U.P. to bring on record on affidavit the status of vacancy position at the relevant point of time and on the basis of the affidavit it was found that there were vacancy and the Hon'ble Supreme Court coming to know about the factual position ordered that they did not find any reason to opposite the order of the Hon'ble High Court giving a direction of issuing recommendation for such.
Mr. P.R.Mondal appearing on behalf of the respondents submitted that the panel was prepared on the basis of requisition of Mahisadal Girls College, the name of first empanelled candidate was recommended and she was given appointment and there was no other requisition by any of the colleges. Therefore, there is no question of recommending the name of the petitioner. He submits 7 that the College Service Commission is not obliged to recommend the name of the petitioner when no requisition is made. According to him, as per Rule 3 of the regulations, on the basis of Information College Service Commission prepare the panel and as per requisition made according to Rule 9 of that regulation, by Mahisadal Girls College first empanelled candidate was recommended for giving appointment. Mr. Mondal tried to justify the action of the Respondent College Service Commission by showing Rule 3 and Rule 9 of the regulations. According to him, Rule 3 is information and Rule 9 is requisition. Mr. Mondal emphatically submitted that unless requisitions are made, there is no question of recommending the name of the petitioner. He cited reported decision of this Hon'ble Court wherein it was decided that empanelled candidates have no right to seek a writ of mandamus for recommending her when there is no requisition made by any of the colleges or the universities.
Mr. Mondal cited unreported decision delivered by the Hon'ble Division Bench of this Court delivered in MAT No. 3940 of 1999 and another judgment reported in W.P.12172 (W) of 2007 and some other judgements in support of his contention. According to him the Commission has published another advertisement in 2007 during the pendency of this writ application and the writ petitioner have submitted that she has appeared at the test without prejudice to her rights and contentions. According to him, Therefore, he submits that the writ petitioner have abandoned her right over the said panel which has lots its life during pendency of the panel. He also submitted that the writ petition should be dismissed and the writ petitioner is not entitled to have writ of mandamus in the facts and circumstances of this case.
Heard both learned counsel very carefully and considered the materials disclosed in the writ petition as well as in the affidavits used by the respective parties. It is admitted fact that three publications were made by the College Service Commission, one in English News Daily, another in Bengali News Daily and also one in Commission's own Website. It is evident from those notices that there are four existing vacancies. Two is under Vidyasagar University and two is under Burdwan University. It is clear that for those four posts, applications were 8 invited and applications were made by the candidates who are interested to appear before the selection test. It appears from the panel disclosed by the Commission that the selection list contains three form numbers. One 4045 which is of Bishaka Goswami who stood first in the panel and second 4043 is of Mousumi Pal, the writ petitioner herein empanelled as second in general category and also number 4044 of the writ petitioner who was again empanelled for B.Ed. category. It appears from the foot note II of the panel that preparation of merit panel has been done with due consideration of anticipated vacancy in the subject/discipline. The panel was prepared on 8th June, 2006 which remain valid till 7th June, 2007. The writ petitioner waited six and a half-month but her name was not recommended. She made a representation before the Commission stating, on the basis of appropriate requisition of the concerned colleges under Vidyasagar University, College Service Commission had undergone the process of recruitment of appropriate candidates on the provisional merit panel comprising eligible candidates announced on June, 2006. Unfortunately she has waited for six and a half-month but her name was not sponsored. Failing to get any response the writ petitioner came before this Hon'ble Court and filed this writ application on 18th May, 2007 during the lifetime of the panel and there was direction for filing affidavits and interim order was passed to the effect that posts which have fallen vacant, on the strength of which advertisement was published in 2007 should not be filled up without leave of the Hon'ble Court and said interim order is still in force.
In this case ratio of the Hon'ble Apex Court decision rendered in case of U.P. Vs. Ram Sarwop Saroj (supra) is applicable. The relevant paragraph of the judgment reads as follows-
"Similarly, the plea that a list of selected candidates for appointment to the State services remains valid for a period of one year only is primarily a question depending on facts and yet the plea was not raised before the High Court. Secondly, we find that the select list was finalized in the month of November 1996 and the writ petition was filed by the respondent in the month of 9 October 1997, i.e., before the expiry of one year from the date of the list. Merely because a period of one year has elapsed during the pendency of litigation, we cannot decline to grant the relief to which the respondent has been found entitled by the High Court. We may place on record that during the course of hearing of the SLP before this Court. On 29.4.1999 we had directed the learned Additional Advocate General for the State of U.P. to being on record on affidavit the status of present recruitment of the judicial officers and the present vacancy position in the subordinate judiciary. In the affidavit of the Joint Secretary, Department of Appointment, State Government, Uttar Pradesh sworn in on 4.11.1999 and filed before this Court it is stated that as on 14.10.1999 there were 231 vacancies existing in the cadre of Munsif Magistrats (now Civil Judge, Junior Division/Judicial Magistrates). That being the factual position we see no reason why the direction made by the High Court should be upset in an appeal preferred by the State of Uttar Pradesh".
According to the aforementioned judgment, even if lifetime of panel expired during pendency of this writ petition, the petitioner cannot be denied relief specially when writ petition moved this Court before expiry of lifetime of the panel.
In my view the respondent/College Service Commission when published the merit list with a note that the panel prepared with due consideration of number of anticipated vacancies in the subject/discipline, then any vacancy which was due to occur and in fact occurred for which advertisement was published in 2007, the College Service Commission should have recommended the name of the petitioner. There is an obligation to recommend the name of the writ petitioner for which vacancy for College Service Commission prepared the panel.
10Therefore, the College Service Commission is directed to recommend the name of the petitioner in any vacancy of which panel was prepared or from the vacancy has occurred subsequently and for which second advertisement was published during lifetime of the panel.
The other issue which was raised by Mr. Mondal is that Rule 3 and Rule 9 are separate and those are to be read separately i.e., one is intimation and the other is requisition. Mr. Mondal wanted to draw a distinction between intimation and requisition but it appears from a plain reading of the regulations that mere intimation without any vacancy and without any requisition there would be no necessity for preparation of any panel and/ or selected list when the College Service Commission was not informed such requisition. It would be futile exercise and/or wasting time, energy and money for inviting applications for holding selection test and preparation of panel for no good manner.
Accordingly, this court is of the view that unless information and requisition is made there would be reason for preparation of panel after holding a selection process. The legislature the Rule making authority do conceive of such situation for holding such an activity which is of no use unless there is no definite information and requisition the concerned authority by employing its office and machinery at the cost of public exchequer would not do such exercise. Accordingly, the argument made by Mr. Mondal, learned counsel appearing on behalf of the College Service Commission is of no substance and as such rejected.
However, the College Service Commission is to complete the entire exercise within a fortnight from the date of communication of this order through the letter of the learned advocate on record of the petitioner without wasting any further time.
Accordingly, this writ petition is thus allowed.
Prayer for stay of operation of the order made by Mr. Mondal is rejected. If the writ petitioner have crossed the age bar, this court direct the respondents to give relaxation in favour of the petitioner since the matter is pending before this court from 2007 and there is no fault on the part of the petitioner.
11There would be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.
(Ashoke Kumar Dasadhikari, J.)