Calcutta High Court (Appellete Side)
Swati Pal vs The State Of West Bengal & Ors on 19 November, 2019
Author: Tapabrata Chakraborty
Bench: Tapabrata Chakraborty
1
19.11.2019
Item No.11
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W.P No. 1265(W) of 2016
Swati Pal
- Versus -
The State of West Bengal & Ors.
Mr. Sarwar Jahan,
Ms. Tina Biswas
... For the petitioner
Mr. Bhaskar Prasad Vaisya,
Mr. Biswarup Biswas,
Mr. Nilay Baran Mandal
... For the Council
Shorn of unnecessary details the facts are that the petitioner's name was
sponsored by the Employment Exchange as an Exempted Category (in short, EC)
candidate to the District Primary School Council, North 24-Parganas (in short, the
Council) for participation in the recruitment process for appointment to the post of
assistant teacher in a primary school in the year 2006. The petitioner's candidature
was, however, considered under a different category and appointment was denied.
Aggrieved thereby, the petitioner approached this Court earlier by a writ petition
being W.P No.16331 (W) of 2010. By an order dated 28th July, 2014 the respondent
no.3 herein was directed to forward the name of the petitioner to the concerned authority of the State to enable the said authority consider the same for approval of her candidature. Alleging non-compliance of the said order, a contempt application was preferred and in course of hearing of the same it was submitted on behalf of the alleged contemnor that Council had already forwarded the name of the petitioner to the appropriate authority for approval. In support of such contention reliance was 2 placed upon a letter dated 13th May, 2015. Recording such fact, the contempt application was disposed of on 3rd July, 2015. Thereafter by a memo dated 17th July, 2015 the respondent no.2 requested the respondent no.3 to terminate the service of the last empanelled candidate from the concerned category and to appoint the petitioner in such vacancy. The authorities thereafter maintained a deceptive silence and aggrieved by such inaction, the petitioner was constrained to again prefer a writ petition being W.P.No.1265 (W) of 2016. In the midst thereof, a memo dated 17th March, 2016 was issued by the respondent no.3 stating inter alia that some posts were converted from Exempted Category-Unreserved to Unreserved Category due to insufficient Exempted Category-Unreserved candidate at the time of approval of the panel of PTR examination, 2006 but subsequently two candidates, namely, Sri Gopal Bhattacharyya and Kamal Sanyal belonging to UR category did not join and the respondent no.2 was requested to send an approval of the petitioner under Exempted Category-Unreserved in any one of the said posts which were remaining vacant due to non joining of the said candidates. In view thereof, the writ petition was disposed of by an order dated 8th June, 2016 directing the respondent no.2 to approve the recommendation of the Council towards appointment of the petitioner in any one of the existing vacancies as indicated in the memo dated 17th March, 2016. After communication of the said order a recalling application was filed by the State and its functionaries stating inter alia that the vacancies indicated in the memo dated 17th of March, 2016 have already been filled up. In view thereof, the order dated 8th June, 2016 was recalled on 30th August, 2019 and thereafter the writ petition was heard on 5th of November, 2019 and Mr. Vaisya, learned advocate appearing for the Council was directed to avail necessary instruction. 3
Today Mr. Vaisya submits that the petitioner applied in the recruitment process of 2006 as an OBC candidate. She secured 27.66 marks which is much less than the cut off marks being 41.08 in the OBC category and as such, the petitioner cannot be appointed. The documents, as produced, by Mr. Vaisya be kept on record.
He argues that there had been a bona fide mistake on the part of the Council in treating the petitioner to be a candidate under Exempted Category. Such mistake does not create any right in favour of the petitioner to seek any direction towards appointment. In support of such contention he has placed reliance upon the judgments delivered in the case of The Calcutta Municipal Corporation & Ors. vs. Rukhsana Anjum, reported in 2009(1)WBLR (Cal) 381 and Union of India vs. S.R Dhingra & Ors., reported in (2008) 2 SCC 229 (Para 23).
He submits that during pendency of the present litigation the West Bengal Board of Primary Education has been vested with the authority to conduct selection process towards appointment of teachers in primary schools and as such the Council does not have the jurisdiction to send any proposal towards appointment of the petitioner. Presently there is no vacancy pertaining to the recruitment process in which the petitioner participated.
Mr. Jahan, learned advocate appearing for the petitioner submits that the issue as to whether an empanelled and appointed candidate can be removed from his/her service to accommodate any person, who secured more marks, was considered in an appeal being F.M.A 901 of 2011 and in the same a judgment was delivered deprecating such practice and observing that the appointments already made cannot be cancelled to accommodate fresh incumbents. In view thereof, the 4 only course left open is to approve and appoint the petitioner in a vacancy existing as on date in the concerned district.
Drawing the attention of this Court to the orders dated 3rd July, 2012 and 28th July, 2014 passed in W.P. No.16331(W) of 2010, he submits that it had already been admitted by the Council that the petitioner was a candidate under Exempted Category. In course of hearing of the writ petition, the Council concurred with the contention of the petitioner and submitted that her name was mistakenly included in a different category. The respondent no.3 issued a memo dated 13th May, 2015 to the respondent no.2 categorically indicating that the lowest cut off marks under Exempted category was 25.41 and the petitioner secured 27.66 marks and that accordingly the petitioner came within the zone of appointment and approval. The Council is now trying to take a different stand with the sole intent to deny appointment to the petitioner. Such action cannot be treated to be bonafide.
Records reveal that the first writ petition was preferred by the petitioner in the year 2010. For nine long years the petitioner had been before this Court pointing out the illegalities perpetrated by the respondents. It would be explicit from the order dated 28th July, 2014 that the Council had admitted that the petitioner's name was mistakenly included in a different category. Now after five years it is being contended that the petitioner was a candidate under OBC category and that earlier there had been a bona fide mistake on the part of the Council in stating that the petitioner applied under Exempted category.
In the said conspectus, it would be the bounden duty of this Court to put an end to the protracted long agony of the petitioner. The contention of Mr. Vaisya that there had been a bona fide mistake on the part of the respondents is not acceptable 5 to this Court at this juncture. In the case of Rukhsana Anjum (Supra) before completion of the selection process a letter of appointment dated 18th November, 1997 was inadvertently issued and in the case of S.R Dhingra (Supra) due to a clerical error the notional benefit of the respondents was wrongly fixed. Thus, the said two judgments are distinguishable on facts and have no manner of application in the instant case.
Vacancies arise every year due to retirement/resignation/death of appointees and presently there are existing vacancies in the concerned district. There no dispute that the petitioner fulfils the eligibility criteria and that candidates, who had secured less marks than the her, had been appointed.
In view thereof, this Court directs the Council to send a fresh proposal for appointment of the petitioner in an existing vacancy to the respondent no.2 within a period of two weeks from the date of communication of this order.
Upon receipt of such proposal and within a period of two weeks thereafter, the respondent no.2 shall approve the same and intimate the Council.
Within two weeks from the date of receipt of such approval, the Council shall grant appointment to the petitioner.
With the above observations and directions, the writ petition is disposed of. There shall, however, be no order as to costs.
Urgent photostat certified copy of this order be supplied to the parties on compliance of all formalities.
(Tapabrata Chakraborty, J.) 6