Calcutta High Court (Appellete Side)
The State Of West Bengal & Ors vs Bharati Ghorai & Ors on 18 June, 2015
Author: Ishan Chandra Das
Bench: Pranab Kumar Chattopadhyay, Ishan Chandra Das
1
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Present :
The Hon'ble Justice Pranab Kumar Chattopadhyay
And
The Hon'ble Justice Ishan Chandra Das
F.M.A. 288 OF 2015
THE STATE OF WEST BENGAL & ORS.
......... Appellants
-VERSUS -
BHARATI GHORAI & ORS.
.......Resp
ondents
For the Appellants : Mr. Sadhan Halder
Mr. Abdus Salam
For the respondents : Mr. Emramul Bari
Mr. Gaurav Das Heard on: 18.06.2015.
Judgment on: June 18, 2015 The State of West Bengal and other officers of the State Government preferred the instant appeal assailing the judgement and order dated 4th April, 2014 passed by a Learned Judge of this Court in the writ petition filed by the respondents herein whereby the said Learned Judge disposed of the writ petition on merits by directing the appellants herein to allow the writ petitioners to resume their duties immediately.
The respondents herein filed the writ petition challenging the order of termination dated 24th June, 2003 issued by the appellant No. 6 herein. The services of the 2 respondents-writ petitioners were terminated by the aforesaid order dated 24th June, 2003 on the ground that the said respondents-writ petitioners were graduate and therefore, were disqualified for participating in the selection process in respect of the post in question namely, Anganwari Workers.
The learned Advocate representing the appellants submits that the services of the respondents-writ petitioners were terminated for suppression of the information with regard to the qualifications of the said respondents-writ petitioners.
Mr. Halder representing the appellants submits that in the advertisement itself it was specifically mentioned that the graduate female candidates have no scope to apply for the said post of Anganwari Workers and the appointment of the graduate female candidates are liable to be cancelled. Mr. Halder also submits that the Learned Single Judge without appreciating the aforesaid condition allowed the writ petition upon quashing the order of termination and directed the appellants herein to allow the respondents-writ petitioners to resume their duties. Mr. Halder while supporting the order of termination issued by the appellant No. 6 herein in respect of the respondents-writ petitioners on the ground of suppression of qualification relies on the following decisions ;
(1) MONOJ KUMAR VS. GOVERNMENT OF NCT OF DELHI & Anr. reported in (2010) 11 Supreme Court Cases, 702.
(2) UNION OF INDIA AND OTHERS VS. SUKHEN CHANDRA DAS reported in (2008) 17 Supreme Court Cases,125.
Mr. Ekramul Bari, learned Advocate representing the respondents-writ petitioners however, submits that the Learned Single Judge has properly considered the submissions of the respective parties and decided the issues raised in the said writ petition strictly in accordance with law.
Undisputedly, the respondents-writ petitioners were duly selected as Anganwadi Workers on the basis of their disclosed qualifications i.e. Madhyamik qualifications and 3 therefore, no extra weightage and preference were granted to the said respondents-writ petitioners for their higher qualifications specially when the respondents-writ petitioners admittedly did not mention about their higher qualifications in the application form.
Mr. Bari also submits that higher qualification of the candidates cannot be a ground of taking any penal action against them.
Mr. Bari further submits that the appellant No. 6 herein terminated the services of the respondents-writ petitioners without initiating any disciplinary proceedings. Mr. Bari also submits that the appellant No. 6 herein did not issue any show-cause notice to the respondents-writ petitioners before imposing the penalty by the impugned order of termination. Mr. Bari relies on the Special Bench Judgement of this Court in the case of Rina Dutta & others vs. Anjali Mahato & others reported in 2010 (3) Calcutta Law Times 232 wherein the Special Bench specifically held:
"When a particular qualification is laid down in an advertisement relating to a distinct class of candidates, the candidate possessing a qualification higher than that advertised can ordinarily not be debarred or disqualified, but it is open to the employer to make a rule providing for disqualification of candidates possessing qualification higher than the prescribed qualification, but the burden would be on the employer to justify such a rule."
Mr. Bari, learned Advocate representing the respondents-writ petitioners also relies on the following Division Bench decisions of this Court wherein similar and identical issues were decided earlier by this Court.
1) F.M.A. 238 of 2010 with C.A.N. 7356 of 2008.
(Shyamali Sarkar (Roy) vs. State of West Bengal & Ors.)
2) A.S.T. 205 of 2014 with A.S.T.A. 150 of 2014 4 (Mukul Samanta (Maity) vs. State of West Bengal & Ors.) Having heard the learned Advocate of both the parties and going through the impugned judgement and order under appeal, we find that the Learned Single Judge considered the rival contentions of the parties and decided the issues strictly in accordance with law and in the light of the earlier decisions of this Court.
In the present case, undisputedly, the respondents-writ petitioners did not enjoy any benefit for their higher academic qualifications and therefore, we are of the view that they should not be punished for their aforesaid higher academic qualifications.
Mr. Halder, learned advocate of the appellants submits that another Division Bench of this Court presided over by The Hon'ble Chief Justice examined the matter from a different angle in the case of Shampa Dey vs. State of West Bengal & Ors. (M.A.T. 932 of 2014 with C.A.N. 6132 of 2014) and approved the order of termination on the ground of suppression of facts without following the earlier Division Bench judgements as well as Special Bench judgement of this Court.
We are not inclined to follow the subsequent Division Bench decision of this Court in the case of Shampa Dey (supra) ignoring the earlier Division Bench Judgements as well as Special Bench judgement.
5There is no doubt that specific prohibition with regard to graduate candidates was mentioned in the advertisement following the prevalent guidelines of the authorities at the relevant time but the State Government and its authorities should justify the reasonableness of such restrictions. The appellants herein did not furnish any ground to justify the prohibition imposed on the graduate candidates. The appellants herein failed to justify the necessity of the aforesaid restrictions mentioned in the guidelines as well as in the advertisement.
The decision of the Hon'ble Supreme Court cited by the learned Advocate of the appellants in the case of Manoj Kumar vs. Govt. of NCT of Delhi & Ors. (supra) and Union of India and Others vs. Sukhen Chandra Das (supra) have no manner of application in the facts of the present case since in the present case, the candidates concerned did not suppress any material facts with regard to their character and antecedents and/or date of birth etc. It is also not the case of the appellants that the respondents-writ petitioners herein did not possess the requisite qualifications. The services of the respondents-writ petitioners were terminated by the appellants only on the ground of non-disclosure of the graduate qualification although no extra benefit was granted to the respondents-writ petitioners for the said higher qualification.
One other important fact should also be mentioned herein regarding subsequent modification of the guidelines relating to the higher 6 qualifications of Anganwadi Workers by the State Government. The State Government subsequently modified the guidelines and made it clear that all the graduate and higher qualified candidates would be eligible for the post of Anganwadi Workers. The State Government realised that the restrictions imposed earlier were unreasonable and therefore, subsequently modified the same by declaring that all graduates and higher qualified candidates would be eligible for the post of Anganwadi Workers.
This Court, therefore, cannot ignore the subsequent decisions of the State Government whereby the graduate and higher qualified candidates were declared eligible for the post of Anganwadi Workers by modifying the earlier guidelines. In view of the subsequent modified guidelines graduate candidates were admittedly declared eligible for appointment as Anganwadi Workers and the State Government should not have terminated the services of the graduate Anganwadi Workers upon considering the present modified stand.
Pursuant to the earlier guidelines, appointments of the graduate candidates as Anganwadi Workers were liable to be cancelled which does not mean that those appointments has to be cancelled under any circumstances. The competent authority failed to take note of the aforesaid relevant facts before cancelling the appointments of the respondents-writ petitioners although the competent authority of the State Government realised the defects in the earlier restrictions and modified its guidelines and 7 declared the graduate candidates eligible for the post of Anganwadi Workers.
In the aforesaid circumstances, we are not inclined to hold that the respondents-writ petitioners should be punished even though the said respondents-writ petitioners did not enjoy any extra benefit for the higher qualification.
Therefore, we do not find any scope to interfere with the impugned judgement and order under appeal passed by the Learned Single Judge.
Accordingly, we affirm the judgement and order under appeal passed by the learned Single Judge and dismiss the appeal without awarding any costs.
The appellants herein are directed to comply with the directions of the Learned Single Judge without any further delay and positively within a period of three weeks from the date of communication of this order.
Let a photostat plain copy of this order duly countersigned by the Assistant Registrar (Court) be handed over to the learned advocate appearing for the parties on usual undertaking.
(Pranab Kumar Chattopadhyay, J.) Ishan Chandra Das- J.:
I agree.
(Ishan Chandra Das, J.) 8 D.C.