Calcutta High Court (Appellete Side)
Madhab Chandra Neogi vs The State Of West Bengal & Ors on 13 November, 2018
Author: Protik Prakash Banerjee
Bench: Protik Prakash Banerjee
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Protik Prakash Banerjee
W.P. No. 34572 (W) of 2013
Madhab Chandra Neogi
Vs.
The State of West Bengal & Ors.
For the petitioner : Mr. Gautam Dey, Adv.
Ms. Rituparna Sengupta, Adv.
Mr. Anupam Das, Adv.
For the State : Mr. Soumitra Bandyopadhyay, Senior
Government Adv.
: Mr. Priyabrata Batabyal, Adv.
Heard on : June 22, 2018, July 3, 2018, July 17, 2018
and July 24, 2018
Judgement on : 13th November, 2018
PROTIK PRAKASH BANERJEE, J.:
1. If a single post cannot be reserved, then can a writ petitioner who complains of such a reservation in case of a single post, still be asked to go home from the writ court with empty hands? In other words, when a writ petitioner challenges a reservation on a question of law, even if he succeeds, can the relief which flows from such success, be denied? The respondents say it has to be denied. Very simply put, that is the case before me.
2. The respondent no. 2, the District Project Officer of the Sarva Siksha Mission for the District of South 24 Parganas, issued a guideline on November 18, 2008 (Annexure P/2) inter alia requiring that fifty percent of all posts of para-teachers be reserved for female candidates. Under the project/scheme of Sarva Siksha Mission, (referred to as "the said project/scheme" hereinafter) it is an admitted position that the engagement was to be contractual, for a period of one year, but subject to renewal. Accordingly, the managing committee of the Kamar Pota Ramkrishna Vidya Mandir, a primary school covered by the said scheme, issued a notification dated June 25, 2009 (Annexure P/1) advertising for applications from eligible female candidates for engagement as a para- teacher in history. This was therefore, a single post which it reserved for a female candidate. The writ petitioner was eligible in all respects for such contractual engagement if found suitable, except that he was of the wrong gender. He applied for being considered for engagement, but the school authorities rejected his application on the sole ground that the post was reserved for female candidates and the writ petitioner was not female. The writ petitioner, being aggrieved, represented his grievances to the respondent no. 2 and also the respondent no. 3, Director of Sarva Siksha Mission, West Bengal, by his letters dated July 23, 2009, July 28, 2009 and August 5, 2009.It is the case of the writ petitioner that nothing was done by the respondents concerned even after the concerned District Magistrate by a letter dated August 11, 2009 asked the respondent no. 2 to look into the allegations. The writ petitioner thereafter applied before this court when a coordinate bench, by an order dated May 10, 2013 passed in WP No.16205 (W) of 2009 [Madhab Chandra Neogi--v--State of West Bengal and Others] directed the present respondent no. 3 (respondent no. 2 therein) to take a reasoned decision in terms of the said letter dated August 11, 2009, within a time bound manner. Admittedly the present respondent no. 2, by a reasoned order June 28, 2013 (Annexure P/8) has decided the matter and rejected the prayer of the writ petitioner to issue fresh notification advertising the post as a general and unreserved post on the ground that supervening notifications which bind him has completely prohibited fresh engagement of para-teachers and only allowed such processes which had started before March 27, 2010 to continue till May 31, 2010. Hence the writ petitioner has approached this court. The writ petition was heard on affidavits.
3. Before proceeding further with the matter, it will be instructive to see what the writ petitioner had wanted in the earlier round of the proceedings under Article 226 of the Constitution of India. Only two of the prayers - being the principal reliefs - have been reproduced, at paragraph 12 of the present writ petition. They are as follows: -
"a. Cancellation/withdrawal by all concerned respondents authorities, of the notification dated 25th June, 200, whereby a single/sold (sic for 'sole') post of para teacher for History was reserved for a female candidate.
b. Issuance of a fresh Notification for filing up the single post of para teacher of History from General Category candidates."
4. When this was disposed of by the coordinate bench on May 10, 2013 directing only that the representations of the writ petitioner be considered and disposed of by a reasoned order in terms of the request dated August 11, 2009, but in accordance with law, it had two effects:
first, that it was to be disposed of in accordance with the law as is stood as on May 10, 2013 and second, that the coordinate bench was pleased not to quash the notification dated June 25, 2000 or to direct issuance of fresh notification. The writ petitioner did not challenge this order or any part of it, or seek any clarification thereof, but is relying upon it.
5. The present writ petition has the following principal reliefs: -
"a. A writ in the nature of mandamus commanding the respondents, their employees, agents, associates and each one of them to take immediate steps to cancel and/or not to give any effect of the impugned Notification issued by the respondent no.5 for filling the single post of para teacher in History subject in the Kamarpota Ramrishna Vidyamandir, P.O. Naula, P.S. Mathurapur, District South 24 Parganas.
b. A writ in the nature of mandamus commanding the respondent no.2, their employees, agents, associates and each one of them to take immediate steps to cancel the impugned order dated 28.06.2013 and to appoint your petitioner in the post of para teacher in the Kamarpota Ramkrishna Vidyamandir School.
c. A writ in the nature of mandamus commanding the respondent no.2, their employees, agents, associates and each one of them to take immediate steps to make fresh advertisement for filling up the single post of para teacher in History subject in the Kamarpota Ramrishna Vidyamandir, P.O. Naula, P.S. Mathurapur, District South 24 Parganas.
d. A writ in the nature of certiorari commanding the respondents, their employees, agents, associates and each one of them to certify and transmit all records and documents pertaining to this application before the Hon'ble Court so that conscionable justice may be administered by quashing the same."
6. Clearly, the reliefs prayed for in prayers (a), and (c) of the present writ petition are the same as the prayers (a) and (b) of the earlier writ petition, which were not allowed by the coordinate bench by its order dated May 10, 2013. Clearly, therefore, they are barred by res judicata or principles analogous thereto, in the form in which they have been prayed for. While prayer (b) of the present writ petition is new, it cannot be granted as framed, since no one - including the writ petitioner even if he is eligible - is entitled to any mandamus in the facts of the case to be appointed to any particular post, even without any process of selection, even in a case where the recruitment process could be held. Therefore, if the present writ petition survives, at all, it is only for the limited purpose of judicial review of the decision-making process behind the order dated June 28, 2013 passed by the respondent no. 2 herein. I will be charitable, and treat the present writ petition to be for such relief.
7. The 8 grounds contained in paragraph 16 of the writ petition are conspicuously silent as to what is the challenge to this decision-making process. Rather, they harp on the conspicuous silence of the respondent no. 2 on the question of whether a single post can be reserved and the refusal of the respondent no. 2 to convert the said vacancy to a general and unreserved post. They do not even deal, tangentially, with why and how a selection process ought to be held anew for a vacancy which the respondents have ordained in accordance with law, for reasons stated by them both in Annexure P/8 and the memoranda and the order referred to therein, shall not be filled.
8. At this stage, the reasons why the respondent no. 2 passed the order dated June 28, 2013 (Annexure P/8) are quoted below: -
"Decision taken:
After hearing all the parties and verifying relevant papers it appears that Kamarpota Ramkrishna Vidyamandir had been sanctioned one female para teacher post in History subject in the year 2008.
The school authority prepared and submitted the panel in the year 2009. The said panel was not approved by the District Project Office, Sarva Siksha Mission, South 24 Parganas as because complaint was lodged by Sri Madhab Chandra Neogi, who later filed this writ petition in the Hon'ble High Court at Calcutta.
The letter of the District Magistrate, South 24 Parganas vide Memo No. 1085/Conf/CC dated 11.08.2009i.e the representation of the petitioner is considered but because of embargo on engagement of para teacher by State Project Office, Paschim Banga SarvaSiksha Mission vide Memo No. 278 (20)/PED/PBSSM/2010 Dated 27.03.2010, Memo No. 285 (20)/PED/PBSSM dated 20.04.2010 and School Education Department, Govt. of West Bengal's order No. 276-SE (Pry.) Dated
09.06.2010, I am not in a position to give relief to the petitioner. Thus the matter is disposed of and all concerned may be informed accordingly."
9. Therefore, the respondent no. 2 has not held that in law, a single post may be reserved. Neither, I must record, has he held that what was done was unlawful. What he has said is that because of the complaint of the writ petitioner, the panel was not approved but because of the memoranda and order referred to by him in his decision, even after considering the letter of the District Magistrate aforesaid, he could not grant any relief to the writ petitioner.In other words, he has said that because of supervening notifications having the force of law, which prevent further engagement of para-teachers in any school under the said scheme/project, the prayer of the writ petitioner for issuance of fresh notification advertising the said contractual post, cannot be done. He has also recorded that the panel which was prepared by the school authorities pursuant to the notification as in Annexure P/1 was not approved due to the complaint of the writ petitioner.
10. In the light of the aforesaid, the writ petitioner has cited judgments which are binding on this court - and also on the respondent authorities
- for the proposition that a single post cannot be reserved. I note them only to respectfully follow them and hold that the reservation of the single post of para-teacher in History in the school concerned, even for contractual engagement for one year, subject to renewal, was wholly illegal and contrary to the law laid down by the Hon'ble Supreme Court. These decisions are, in ascending order of chronology, i. M.R. Balaji and Others--v--State of Mysore, reported in [1963] Suppl. 1 SCR 439 ii. Dr. Chakradhar Paswan--v--State of Bihar and Others reported in 1998 (2) SCC 214.(which overruled the judgment in the case of Union of India and Another--v-- Madhav Gajanan Chaubaland Another reported in 1997 (2) SCC 332, the only discordant note where reservation was allowed in case of a single post based on roster) iii. Post-graduate Institute of Medical Education and Research, Chandigarh--v--Faculty Association and Others reported in (1998) 4 SCC 1.
iv. State of U.P. and Others--v--Bharat Singh and Others reported in 2011 (4) SCC 120,
11. These decisions briefly, lay down a proposition of law, which I shall summarize as follows: - reservation under Arts. 15 (4) and 16 (4) must be within reasonable limits so much so that the interests of weaker sections of society, which are a first charge on the States and the Centre, have to be adjusted with the interests of the community as a whole and therefore, in a broad way, a special provision for reservation should be less than 50%. However, the actual percentage must depend upon the relevant prevailing circumstances in each case. The settled principle of law relating to affirmative action prescribes that if there is only one post in the cadre, there can be no reservation under Article 16 (4) of the Constitution. The question of reservation does not arise unless there is a plurality of posts in the cadre.
12. Applying this proposition of law, which certainly applies to the facts of the case, I have no hesitation in holding that the writ petitioner is perfectly correct in contending that the single post of an additional para- teacher in History in the concerned primary school, could not lawfully have been reserved for a female candidate, even in a case of horizontal reservation. This has been ably argued by the learned counsel appearing for the writ petitioner. The respondent no. 3 which communicated the guidelines as in Annexure P/2 issued by the respondent no. 2, apparently after the same was approved by the respondent no. 1, acted wholly unconstitutionally in reserving the single post aforesaid for a female candidate, when the guidelines themselves required that fifty percent of the teachers engaged had to be women teachers. When only post was available, there could not be a plurality of posts and so on the face of it, the reservation made, and the prior permission granted by the respondent no. 2 to the concerned school, for recruitment of a female candidate, was unconstitutional and in violation of Articles 14 and 15 of the Constitution of India. It was not saved as a "special provision".
13. However, that brings to fore the question I had posed in the first paragraph of this judgment. The respondents say that even if I hold that what they did was wholly unconstitutional, and that the selection procedure initiated by the notification as in Annexure P1 is required to be quashed, I cannot, by judicial review of Annexure P/8, grant the writ petitioner the substantial relief he seeks.
14. In the Affidavit-in-Opposition filed on behalf of the respondent no. 2, apart from the usual denials, two important documents have been annexed, referred to by the respondent no. 2 in his reasoned order as in Annexure P/8. These are the memoranda dated March 27, 2010 and April 20, 2010 by which the concerned authority of the said scheme/project stopped further engagement of para-teachers or any process of recruitment thereof. The Memo dated March 27, 2010, which was in force when the coordinate bench passed its order dated May 10, 2013 and when the respondent no. 2 took the decision dated June 28, 2013, bears quotation: -
"I am directed to bring to your notice that recruitment of regular primary teachers is in progress and about 28,000 Primary Teachers have been recruited till date. Additionally, the Govt. has taken steps for establishing new upper primary schools with regular teachers. Under the circumstances stated above, it has been decided that no further para- teachers shall be engaged in Primary and Upper Primary Levels.
If any para-teacher engaged previously in any schools, leaves the job or has already left the job or this position falls vacant due to any other reason, the vacant position shall also not be filled by engagement of Para Teachers and the position shall lie sine die till if it is filled up through regularly recruited teacher(s).
This order shall take immediate effect." (emphasis supplied).
15. The memo dated April 20, 2010 merely clarifies that engagement of para teachers for which permission was granted prior to the issuance of the order dated March 27, 2010 may be completed as usual but all such ongoing process was to be completed within May 31, 2010. The writ petitioner, as I have noted earlier, in paragraph 4 of this judgment, did not apply for clarification from the coordinate bench as on May 10, 2013, that its case ought to be considered on the basis of the position as obtained prior to March 27, 2010 or even May 31, 2010.
16. The respondent no. 2 is an officer of the "State" who is administering a project according to the directions issued by his superiors in the project. If the directions are lawful, he is bound by it. The respondent no. 1, the State of West Bengal, which has started the project with financial collaboration from the central government, has taken a policy decision not to engage para-teachers contractually to help teachers in primary schools, but to establish new upper primary schools with regular teachers to do their duty without however terminating any existing teacher. In fact, I take judicial notice of the fact that by the order dated June 9, 2010 - which has been produced before me by the respondent no. 1 in courtand bears No.376--SE(Pry) and not 276 - the services of the existing para-teachers have been extended, without any requirement of any further renewal of the contract, till they attain the age of 60 years. It has further given an absolute terminus, beyond which no engagement of any para-teacher could be made - this terminus is the date of issuance of the order dated June 9, 2010. This policy has been implemented. It is a welfare policy adopted by the State and the respondent authorities. Therefore, the conclusion is irresistible that an officer of the "State" who is administering such scheme/project, is bound by such memoranda and orders. The writ petitioner has not challenged any of the said memoranda or order referred to by the respondent no. 2 in his reasoned order dated June 28, 2013. He is therefore bound by them.
17. Once the writ petitioner has accepted the legality of the said memoranda and order referred to in Annexure P/8 and as referred to in paragraphs 14, 15 and 16 above, which constitute the reasons why the respondents felt they could not grant the relief prayed to the writ petitioner, I failed to appreciate how the writ petitioner can maintain his prayers for judicial review of the said decision-making process, with a view to obtaining a relief requiring the respondents to initiate a fresh process of engagement of para-teachers.
18. I have already held at paragraph 12 of this judgment that the horizontal reservation of such single post for a female was illegal and contrary to the law laid down by the Hon'ble Supreme Court, and I have already held that the respondent no. 2 has not held that this reservation was done validly. He may have been silent, but he has not said that this vacancy will be filled.
19. My problem - and that of the writ petitioner, which his drafting counsel does not appear to have appreciated - is that the respondents have already ordained that if for any reason the position of such a para- teacher existing before March 27, 2010 falls vacant for any reason and any selection process undertaken before March 27, 2010 is not completed before May 31, 2010, then such vacancy shall remain, sine die. The writ petitioner has not challenged - no doubt due to legal advice
- the memoranda, order and the notifications which have ordained this, or any part of them. As such, they continue to apply as that which has the force of law to the process of such recruitment. Such contractual post of additional para-teacher for a period of one year, which, if duly filled prior to May 31, 2010, would have allowed its incumbent to continue till he/she attained the age of 60 years, would continue, eternally, to remain vacant.
20. This would not prevent the respondents from filling any vacancy which would be declared for any post of Assistant Teacher in History, as and when it is created and sanctioned, based naturally on the staff pattern and the student strength, or when a new primary or upper primary school in the said panchayat area or the district is created, in accordance with law. If such eventuality occurs and if the writ petitioner is eligible when it does, he shall, like anyone else who is eligible, be entitled to apply for such selection process for public employment.
21. Therefore, I find no infirmity in the decision-making process behind Annexure P/8 which alone is under challenge before me as stated above. The reasons furnished by the respondent no. 2 are reasonable and not perverse and have considered such materials on record which are relevant and applicable to the case of the writ petitioner. I do however, as a consequence of my decision as in paragraph 12 of this judgment, quash the selection process initiated by Annexure P/1 since it cannot be given effect to, for the reasons aforesaid including what is stated in Annexure P/8. The writ petitioner is not entitled to have any relief of issuance of a fresh advertisement for that post of para-teacher or to any appointment to such post for the foregoing reasons. The writ petition is disposed of, without any further orders. The parties shall bear their own costs.
(Protik Prakash Banerjee, J.)