Calcutta High Court (Appellete Side)
Kartick Sur & Ors vs The State Of West Bengal & Ors on 20 February, 2012
Author: Harish Tandon
Bench: Harish Tandon
1
Form No.J. (2)
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present :
THE HON'BLE JUSTICE HARISH TANDON
WP No. 5077 (W) of 2004
With
F.M.A. 94 of 2005
Kartick Sur & Ors
Versus
The State of West Bengal & Ors.
For the petitioner : Mr. Jayanta Banerjee
: Mr. Arunava Banerjee
For the Council : Mr. Kallol Basu
: Mr. K.M. Siddique
: Mr. Subhodip Bhattacharya
Heard On: 10.3.11, 15.3.11, 24.3.11, 4.4.11, 8.9.11 & 01.11.2011
Judgment on : 20.02.2012
HARISH TANDON, J.:
Challenge is made to the decision of the Chairman, District Primary School Council, South 24 Parganas vide Memo No. 1582/1 dated 11.12.2003 whereby and whereunder the prayers made by the petitioners for their appointments were rejected.
2
The names of the petitioners were sponsored by the concerned Employment Exchange to the District Primary School Council, South 24 Parganas (Council) for consideration of their candidature in the selection process initiated for filling up the post of the Primary Teacher in the year 1995. Pursuant to the sponsorship by the concerned Employment Exchange, the petitioners were called for submission of their testimonials/bio-data and thereafter were allowed to appear before the written test/interview. Admittedly none of the petitioners were given appointment by the said council. Having found that their names were not included in the panel of the successful candidates, several representations were made citing various discrepancies and anomalies in conducting the said selection process including an allegation that some candidates who secured less mark have been favoured by inclusion of their names in the panel.
Being unsuccessful at the administrative level as the representations were not considered, the petitioners moved a writ petition before this court which was registered as W.P. No. 1990 (w) of 1999 which was disposed of with a direction upon the Chairman of the Council to consider the said representation and to pass reasoned order upon giving full opportunity of hearing to the petitioner.
Pursuant to the said order, the order is passed by the impugned memo by which the prayer of the petitioners are rejected.
3
Mr. Jayanta Banerjee, the learned Advocate appearing for the petitioner submits that although the names of the petitioners were included in the panel but they have not been offered an appointment by the council. He further submits that the candidates who have secured less mark have been given an appointment. He strenuously submits that the total number of vacancies notified by the council was 3300 whereas according to the council, the appointment to other category than the appointment on compassionate ground is made for 2745 vacancies. Lastly it is submitted that out of the petitioners two of them have been employed by the council whereas the petitioner No.1 have got a better employment elsewhere and is not interested to pursue the instant writ petition.
It is submitted on behalf of the District Primary School Council, South 24 Parganas that the candidature of the petitioners were considered and they were found eligible for written test/interview but they did not secure the requisite marks fixed for offering appointments. It is further submitted that the number of vacancies excluding the vacancy for appointment on compassionate ground was determined at 2745 which was duly notified to the concerned Employment Exchange for sponsorship and the vacancy was never assessed at 3300 as alleged by the petitioner. It is further submitted that only one panel was prepared which was approved by the Director of the School Education and the allegation that the first panel was scrapped by the council and a subsequent panel was approved is not tenable. It is contended that the petitioner could not secure the minimum cut off marks fixed for the purpose of giving appointment in each 4 category. Lastly it is contended that two petitioners namely petitioner No.5 and 6 are given appointment in a subsequent selection process conducted for subsequent vacancies and as such the rest of the petitioners cannot claim parity in this regard.
Having considered the respective submissions, the challenged is thrown to the selection process which commenced in the year 1995. In exercise of the power conferred under Section 106 and Section 60 of the West Bengal Primary Education Act, 1973 the rules regulating the Recruitment and Leave of the teachers in Primary Schools in West Bengal was promulgated by the State. The council being a statutory body are bound to act within the precincts of the statutory rules and cannot make departure therefrom. The rules relating to the Recruitment and Leave of the teachers in Primary Schools in West Bengal came into effect on and from 25.11.1991 (for sake of brevity referred to as statutory rules).
Rule 3 of the said statutory rules provides that there shall be one teacher for every 40 pupils and part thereof. However, a second teacher may be admissible if the roll strength exceeds 60 but the additional post cannot be created without the recommendation and approval of the District Inspector of School and Director of the School Education respectively. Rule 4 of the said statutory rule conferred power upon the council to determine from time to time the number of vacancies in the primary schools within its jurisdiction for the purpose of filling up the said vacancies. Rule 5 makes the Chairman of the 5 Council as appointing authority whereas Rule 6 enshrined the eligible qualification for being considered to the post of a Primary Teacher.
Rule 8 (a) of the said statutory rules provides that after determining the number of vacancies, the council shall intimate to the concerned Employment Exchange for sponsorship of the names of the eligible candidates, both trained and untrained candidates in equal ratio upon maintaining the order of seniority of registration. Sub-rule (c) of Rule 8 postulates that the total number of vacancies as on 31st December of the calendar year shall be treated as the number of vacancies for that year. The procedure for selection is made in Rule 9 of the said statutory rule where the candidature would be judged on 100 points roster out of which 65 marks are allotted for academic qualification, 20 marks for training, 10 marks for written test/interview and 5 marks for co-curricular activity. After calculating marks excluding the marks for written test/interview, the names of the candidates shall be prepared in a descending order of the total marks obtained by them and shall be called for an interview in a ratio of 1:5 with prior intimation of the date, time and place. After the marks obtained in the interview, the total marks so secured would be arranged in a descending order again and the panel for successful candidate would be prepared which would be sent to the Director of the School Education for due approval and after the approval is granted by the Director, the appointment letter be issued according to the vacancies available.
6
Admittedly when the selection process was initiated, the said statutory rules was in vogue and was adhered by the council while filling up the post. Initially the petitioners took stand of filling up of less vacant post as the vacancy reported in the newspaper was 3300 whereas the vacancies are filled to 2745 post, but not a single scrap of paper could be produced by the petitioner excepting the report made in the newspaper.
In affidavit-in-opposition the council has categorically denied to have determine the number of vacancies at 3300 but took a stand of determination of the vacancy at 2745 excluding the vacancies which are required to be filled under the compassionate ground.
In terms of the said statutory rules, the vacancies which arose before December 31 of the calendar year shall form the subject matter of the selection process, but any vacancy subsequent thereto or during the continuance of the selection process could not be included as the vacancies required to be filled up in the said selection process.
Therefore, any subsequent vacancies for which another selection process is undertaken, pending the selection process initiated in earlier point of time, cannot be mingled and the candidate who have sponsored by the concerned Employment Exchange for respective selection process cannot offer their candidature in both the selection process.
7
Although much has been said regarding the number of vacancies determined by the council and notified to the Employment Exchange but have not actually been filled but the same could not be substantiated by the petitioner by any cogent documents. As already indicated above, excepting the report made in the newspaper that there is no iota of peace of paper produced by the petitioner in support of the said allegation. However, during the argument the petitioner tried to impress upon this court relating to the inconsistency in the statement of the council relating to the number of vacancies and to build an argument that the number of vacancies as stated by the council is not corrected. The petitioner has to proceed on the basis of his own case and cannot deviate from his original stand by taking advantage of the weakness of the adversary. The process of selection was initiated way back in 1995. The life span of the panel as enshrined under the statutory rule has also elapsed.
The statutory rule provides for computation of the marks under Rule 9 thereof. Upon perusal of the said provision out of 100.roster 90 marks are to be computed on the basis of the academic qualification, co-curricular activities and training certificate where it does not left any discretion upon the selecting authorities. However, some discretion is left upon the selection committee for awarding the marks in the interview out of 10 marks only. Such discretion should be hardly interfere under the judicial review unless it is demonstrated beyond any reasonable doubt that the same is done in bias manner. The council have specifically contended that the marks obtained by the petitioners are much 8 less than the cut off marks fixed for giving appointment. No case of such discrepancies is made out in the original petition and for such reason the entire selection process should not be cancelled.
Furthermore, the petitioners voluntarily appeared before the selection committee and took a chance but having failed to achieve the desire result cannot turn round and question the selection process itself.
In Union of India & ors. vs. S. Vinodh Kumar & ors. reported in (2007) 8 SCC 100 it is held that the candidates who had taken part in the selection process knowing fully well the procedure laid down therein is not entitled to question the same.
Recently the Supreme Court in case of Vijendra Kumar Verma vs. Public Service Commission, Uttarakhand & ors. reported in (2011) 1 SCC 150 held that after participation in the selection process the unsuccessful candidate cannot take a rebound and challenge the procedure of the selection process.
The last weapon in the armoury of the petitioner which has been triggered at the argument, though not originally pleaded in the writ petition that out of the several writ petitioners two of them namely the petitioner No.5 and 6 are favoured with the appointment by the council. According to the petitioners if two of them are appointed leaving the others, such discriminatory act offends Article 9 14 and 16 of the Constitution. It has come out from the council that those petitioners were subsequently sponsored by the concerned Employment Exchange in a subsequent selection process and were found a successful therein and as such their appointments are made if those petitioners are subsequently considered in another selection process. The rest of the petitioners cannot claim parity of treatment on the anvil of discrimination. It is a settled principle of law that the equality clause enshrined the equality amongst the equal and not equality amongst unequal. Although the allegation as to discrimination must be specifically pleaded which is admittedly not done here but such fact has been brought by way of a supplementary affidavit which is otherwise not found tenable in view of the facts stated above. On the entire conspectus of the findings made above this court does not find any merit in the instant writ petition.
The same is hereby dismissed.
There shall be no order as to costs.
Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.
(Harish Tandon, J.)