Calcutta High Court (Appellete Side)
Mohammad Azmal Hossain & Ors vs The State Of West Bengal & Ors on 29 April, 2011
Author: Harish Tandon
Bench: Harish Tandon
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Form No.J. (2)
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present :
THE HON'BLE JUSTICE HARISH TANDON
WP No. 23124 (W) of 2009
Mohammad Azmal Hossain & Ors.
Versus
The State of West Bengal & Ors.
For the petitioner : Mr. Bhaskar Sen
For addition of party : Mr. Jaladhi Das
For the Council : Mr. P. S. Deb Barman
Judgment on : 29.04.2011
HARISH TANDON, J.:
This writ petitioner has prayed for issuance of mandamus commanding the respondent no. 2 and 3 to send the interview letters to the petitioner for the post of primary teacher in district of Malda and to allow the petitioner to appear in the interview in the ratio of 1:10 basis upon condoning the age bar.
The writ petitioner, originally 27 in numbers, filed the instant writ petition making aforesaid prayers but subsequently three applications were taken out by the several other persons seeking their addition in this writ application which were eventually allowed and they were added as the 2 party respondents and are spousing the same cause as that of the original petitioners in this writ petition.
The facts stated in this writ application is that the names of the writ petitioners were duly sponsored by the different employment exchanges within the district of Malda to the District Primary School Council, Malda for the appointment to the post of primary teacher in the different primary schools within the said district. The writ petitioners were called by the District Primary School Council, Malda, the respondent no. 4 herein, to submit their bio-data and testimonials on 25.5.2007. The writ petitioners duly submitted their testimonials, bio-data and certificates to the respondent no. 4 but they did not receive the interview letters.
According to the writ petitioner the sponsorship should be done in 1:10 ratio but the respondent no. 6 namely Joint Director of Employment, directed all the employment officer to sponsor in 1:35 ratio. It is stated that the writ petitioners were expecting the interview letters but they were not called for the interview which was scheduled to be held on 27.12.2009 and thus the aforesaid prayer was made in this writ application.
This court by way of an interim order directed the respondent authorities to allow the petitioner to participate in the interview/test scheduled to be held on 27.12.2009 provided the petitioners come within the zone of consideration having regard to the invalidation of the training certificate and those candidates who obtained the certificates from institutions not recognized by the National Council of Teachers Education. The aforesaid interim order was passed on the submission of the writ petitioner that the candidates who obtained training certificates from an 3 institution not recognized by the National Council of Teachers Education but their names were sponsored as trained candidates. Their certificates have been declared by the Division Bench of this court as invalid. The writ petitioners were granted liberty to file supplementary affidavit which was accordingly filed. The writ petitioner now tries to contend that the government order by which the employment exchanges were directed to sponsor the names of the candidates in a ratio of 1:35 has been declared unconstitutional and is quashed by this court in WP No. 122462(w) of 2009. The new point is tried to be taken by the writ petitioner in the said supplementary affidavit that Rule 9 of the Primary Teachers Recruitment Rules, 2001 provides for making a list of names of all candidates in each category in a descending order on the basis of total marks obtained by them and no such list has been prepared and the writ petitioners are not communicated about the marks obtained by them.
In spite of order passed on 23.12.2009, no affidavit-in-opposition is filed by the respondent authorities.
Mr. Bhaskar Sen, learned Advocate appearing for the writ petitioner submits that the names of the candidates were sponsored in a ratio of 1:35 by the concerned employment exchange on the basis of government circular which has been quashed and set aside in a decision rendered in case of Hriday Kumar Paul & Ors. Vs. State of West Bengal & Ors. (WP No. 22462(w) of 2009) on 30.7.2010. Thus he contends that if the candidature of the petitioner is considered in 1:10 ratio, the petitioner would come within the zone for consideration for the purpose of interview. 4
According to him the respondent no. 4 should communicate the writ petitioners about the marks obtained by them and should also publish the list showing the marks obtained by each candidate in terms of Rule 9 of the Recruitment Rules of 2001. He further submits that the writ petitioners were not allowed to sit for the interview held on 27.12.2009 in spite of the interim order passed by this court in this writ application.
Mr. Partha Sarathi Deb Barman, learned Advocate appearing for the respondent no. 4 contends that the entire selection process of 2006 is complete and the appointment has already been made barring the few posts for which the panel is pending for approval as the matter is sub judice in the court. According to him the names of the writ petitioners were sponsored and the writ petitioners were called to submit their testimonials, bio-data and certificates and were not found eligible for an interview. He submits that the circular by which the ratio of sponsorship enhanced to 1:35 was although quashed and set aside but the court was conscious about the large number of appointments already made and as such did not pass any order for cancellation of the selection process but directed the concerned authority to consider the candidature of the petitioners therein at the time of filling up of some posts in future. Thus he contends that the circular by which the ratio of sponsorship was enhanced is quashed and set aside the same does not confer any right on the writ petitioner to be brought within the zone of consideration for the purpose of interview. Lastly, he submits that the rules governing the said selection process has been adhered to by the authorities and the writ petitioner has not made out any case evincing that the authorities have departed from adopting the procedure contrary to the statutory rules while conducting the selection process. 5
Having considered the respective submissions, there is no dispute that the names of the writ petitioners were sponsored by the concerned employment exchange to the District Primary School Council, Malda for filling up the vacancies to the post of assistant teacher in various primary schools within the said district. The writ petitioners were called to submit their testimonials, bio- data and certificates which have been duly complied with. The writ petitioners were not called for an interview as they were not found eligible for the same. It may be mentioned that the said selection process was undertaken in terms of the West Bengal Primary School Teachers Recruitment Rules, 2001. Rule 8 of the said Rules postulates that the District Primary School Council shall intimate to the concerned employment exchange the number of vacancies as determined under Rule 4 of the said Rule for the purpose of preparation of the panel for eligible candidates. The employment exchange, in turn, sent the names of the candidates having requisite qualifications in terms of the Rule 6 of the said Recruitment Rules. Such sponsorship of the names should be done in 1:10 ratio.
Rule 9 of the said Rule of 2001 provides that after receiving the names of the candidates from the concerned employment exchange, the Council shall communicate in writing to all candidates to produce their testimonials/certificates for computation of the marks in the score-sheet. Such computation shall be made on 100 marks basis and different marks have been allotted for specific qualification and 10 marks have been allotted for the interview/written test. It is further provided that all the marks have to be recorded on a score-sheet and the list containing the names of the candidates shall be prepared in descending order of total marks obtained by them. After the preparation of the said list the candidates whose names appears at the top of the list shall be called for an interview in a ratio of 1:5 basis.
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On scrutiny of the provisions contained in the Recruitment Rules of 2001 it does not appear that the candidates who were called to submit the testimonials/certificates/bio-data shall be allowed to participate in the interview/written test. Even on perusal of various provisions it does not appear that the authorities while preparing the score-sheet or the list in descending order has to publish it or send the same to the candidates who were called to submit bio-data, testimonials and certificates. It is not a case of the writ petitioner that the authorities have not followed the statutory rules so far as the preparation of score-sheet and the list of the candidates being prepared in descending order in accordance with the marks obtained by them. The wit petitioners also could not demonstrate that a pick and chose policy was adopted by the authority concern in allowing the candidate to participate in the interview/written test.
It is no doubt true that the circular by which the ratio of sponsorship was increased from 1:10 basis to 1:35 basis, is quashed and set aside by this court. Even by quashing the said circular this court did not set aside the selection process as large number of appointments have already been made.
In the midst of argument it was enquired whether any post is vacant so far as the selection process of 2006 is concerned, it is submitted by the learned Advocate appearing for the Council that no post is vacant except some posts where panel is not approved because of the pendency of the matter before the court. It is no doubt true that if the area of competition is restricted in 1:10 ratio there may be a situation when some of the writ petitioners could have been allowed to sit for the written test as the written test is conducted in a ratio of 1:5 basis. The writ petitioners no doubt 7 are put to disadvantageous position by widening the area of competition which was conducted in the ratio of 1:35 basis.
But the court also cannot shut its eye that any order upsetting the said selection process at this stage has a larger impact as the large number of appointments shall be rendered invalid. Thus this court feels not to interfere and/or disturb the said selection process at this stage. The respondent authorities shall allow the writ petitioners to participate in any future vacancies subject to their eligibility and shall consider their candidature at par with the other eligible candidates.
The writ application is, thus, dismissed. There shall be no order as to costs.
(Harish Tandon, J)