Calcutta High Court (Appellete Side)
Mithu Singha Roy vs State Of West Bengal & Ors on 15 June, 2012
Author: Harish Tandon
Bench: Harish Tandon
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate side
Present :
The Hon'ble Justice Harish Tandon.
W. P. No. 22293 (w) of 2009.
Mithu Singha Roy.
-vs-
State of West Bengal & Ors.
For the petitioner : Mr. Samarjit Dey
For the Council : Mr. Sk. Kamaluddin
For the State : Mrs. Sipra Majumdar
: Ms. Pratira Ghatak
Heard on : 03.05.12
Judgment on : 15.06.2012
HARISH TANDON, J.:
The petitioner has challenged the constitutional validity of Rule 8 of the Recruitment Rules of 2001 as it offends Article 14 and 16 of the Constitution of India. The factual background of the instant writ petition is that the petitioner duly registered her name in the register of the Employment Exchange, Srirampur, Hooghly in the year 1990.
The District Primary School Council, Hooghly notified the brief vacancies for the post of Assistant Teacher in the Primary School with the Employment Exchanges within the said District. Rule 8 of the West Bengal Primary School Teachers Recruitment Rules 2001, framed in exercise of the power conferred under Sub-section 1 and Clause(K) of Sub-section 2 of Section 106 read with Clause (K) by Sub-section 1 of Section 100 of the West Bengal Primary Education Act, 1973, cast duty upon the Employment Exchange to send the names of the eligible candidates to the Council. In compliance of the above provision, the council notified the vacancy to the Employment Exchange in the year 2006 and the Employment Exchange sent the names of the eligible candidates but did not sponsor the name of the petitioner.
The petitioner filed the instant writ petition challenging the action of the council in restricting the zone of consideration amongst the sponsored candidate being contrary to the law declared by the Supreme Court in case of Excise Superintendent Malkapatnam, Krishna District, A.P. Vs. K.B.N. Visweshwara Rao. reported in (1996) 6 SCC 216.
At the time of admitting the writ petition, as interim measure, the petitioner was permitted to participate in the written examination scheduled to be held on December 20, 2009. It was, however, observed by this court that such participation shall not create any equity in favour of the petitioner and shall abide by the result of the writ petition.
In spite of the direction, no affidavit-in-opposition is filed by the respondents. However, the parties submit that the matter can be decided on a point of law because of the intervening judgments rendered by this Court.
According to the petitioner, the division bench in case of Biswajit Das and ors. Vs. State of West Bengal and ors. (MAT 237 of 2010 and various others decided on 29.9.2011), declared Rule 8 of the said Recruitment Rules 2001 to be constitutionally invalid and therefore, the appointment should not be restricted amongst the sponsored candidates. It is further submitted that the entire selection process is vitiated as has been undertaken in gross violation of the law declared by the Supreme Court in case of K.B.N. Visweshwara Rao (supra). The petitioner further relied upon a judgment rendered in case of Adwait'ya Bera & Ors vs. State of West Bengal & Ors reported in W.P. No. 13907 (w) of 2007 and various others decided on 10.1.2012 to contend that where the large number of appointments has already been made, the court instead of canceling the same should direct the authorities to complete the process of appointment of the successful candidates whose result were withheld because of the pending litigation.
The learned Advocate appearing for the council submits that the division bench in case of Tanmoy Ramaya Lahiri vs. State of West Bengal reported in (2008) 3 WBLR (Cal) 108 held that Rule 8 of the Recruitment Rule of 2001 is intra vires and does not offend Article 14 and 16 of the Constitution. It is further submitted that the subsequent division bench in case of Biswajit Das and ors. (supra) should not have taken a contrary view and instead should have referred the matter to larger bench.
Further reliance is placed upon a division bench judgment in case of Tanmoy Chowdhury vs. State of West Bengal & ors. (MAT 1852 of 2011 decided on 10.1.2012) in support of the contention that the another division bench held that the judgment rendered in case of Tanmoy Ramaya Lahiri (supra) is not formally overruled which necessary mean that the zone of consideration should be restricted amongst the sponsored candidates.
Having heard the respective submissions, the point emerges whether Rule 8 of the West Bengal Primary School Teachers Recruitment Rules 2001, is constitutionally valid or offends Article 14 and 16 of the Constitution of India.
Section 4 of Employment Exchanges (Compulsory notification of vacancies) Act, 1959 postulates that all government departments, government organizations and statutory bodies should notify the vacancies to the Employment Exchanges for the purpose of filling up the vacancies. In case of Union of India vs. N Hargopal reported in (1987) 3 SCC 308, a point cropped up whether an "establishment in the Public Sector" or an "Establishemnt in the Private Sector" may make appointments to the post to which the said Act applies, to the persons not sponsored by the Employment Exchange or it restricts to the government establishments only. Further point was raised whether restricting the appointment amongst the candidates sponsored by the Employment Exchange would offend Article 14 and 16 of the Constitution or not.
While dealing the aforesaid point, it is held that the object of the Act is not to restrict but to enlarge the field of choice so that the best and the most efficient worker could be employed by the employer. It is ultimately held therein that restricting the employment in the government department through the medium of Employment Exchanges does not offend Article 14 and 16 of the Constitution in these words:
"9. The further question is whether the instructions issued by the government that in the case of government departments the field of choice should, in the first instance, be restricted to candidates sponsored by the Employment Exchanges offend Articles 14 and 16 of the Constitution. Shri P. Parmeshwara Rao, learned Counsel appearing for some of the respondents strenuously urged that such a restriction would offend the equality clauses of the Constitution, namely, Articles 14 and 16. He urged that when Parliament had gone into the question and decided that there should be no compulsion in the matter of appointment by way of restriction of the field of choice, it was not open to the Government to impose such compulsion. He argued that it would be unreasonable to restrict the field of choice to those sponsored by the Employment Exchanges. In a country so vast as India, in a country where there was so much poverty, illiteracy and ignorance, it was not right that employment opportunities should necessarily be channelled through the Employment Exchanges when it is not shown that the network of Employment Exchanges is so wide, that it reaches all the corners of this vast country. He argued that it is futile to expect that persons living in distant places could get themselves registered with Employment Exchanges situated far away. The submission of Shri Parmeshwara Rao is indeed appealing and attractive. Nonetheless, we are afraid we cannot uphold it. The object of recruitment to any service or post is to secure the most suitable person who answers the demands of the requirements of the job. In the case of public employment, it is necessary to eliminate arbitrariness and favouritism and introduce uniformity of standards and orderliness in the matter of employment. There has to be an element of procedural fairness in recruitment. If a public employer chooses to receive applications for employment where and when he pleases, and chooses to make appointments as he likes, a grave element of arbitrariness is certainly introduced. This must necessarily be avoided if Articles 14 and 16 have to be given any meaning. We, therefore, consider that insistence on recruitment through Employment Exchanges advances rather than restricts the rights guaranteed by Articles 14 and 16 of the Constitution. The submission that Employment Exchanges do not reach everywhere applies equally to whatever method of advertising vacancies is adopted. Advertisement in the daily press, for example, is also equally ineffective as it does not reach everyone desiring employment. In the absence of a better method of recruitment, we think that any restriction that employment in government departments should be through the medium of employment exchanges does not offend Articles 14 and 16 of the Constitution. With this modification of the judgment of the High Court, the appeals and the special leave petitions are disposed of. No orders are necessary in the writ petition."
Subsequently the three judges bench of the Supreme Court in case of K.B.N. Visweshwara Rao (supra) considered the similar point and took note of the earlier two judges bench decision rendered in case of N. Hargopal (supra) and it is held :
"4. It is evident that there is no provision in the Act which obliges an employer to make appointments through the agency of the Employment Exchanges. Far from it, Section 4(4) of the Act, on the other hand, makes it explicitly clear that the employer is under no obligation to recruit any person through the Employment Exchanges to fill in a vacancy merely because that vacancy has been notified under Section 4(1) or Section 4(2). In the face of Section 4(4), we consider it utterly futile for the learned Additional Solicitor General to argue that the Act imposes any obligation on the employers apart from notifying the vacancies to the Employment Exchanges. The learned Additional Solicitor General invited our attention to the speech of the Minister of Labour and Employment and Planning (Shri Nanda) made at the time of the introduction of the Employment Exchanges (Compulsory Notification of Vacancies) Bill. Far from being of any assistance to the learned Additional Solicitor General, the speech appears to be against his submission. In his speech, the Minister quoted from the report of the Training and Employment Services Organisation Committee and observed that the recommendation of the Committee offered a full explanation of the provisions of the Bill. The recommendation of the Committee which he quoted was:
"Though we have not, for the present, recommended compulsion on private employers to recruit through the Employment Exchanges, we recommend that they be required on a compulsory basis to notify to the Exchanges all vacancies, other than vacancies for unskilled categories, vacancies of very temporary duration and vacancies proposed to be filled through promotion."
The Minister further said:
"The main thing is that an obligation is being placed that after this legislation becomes operative, from that date, the employer in every establishment in the public sector shall, before filling up any vacancy in any employment in that establishment, notify that vacancy to such Employment Exchanges as may be prescribed. And so far as the private sector is concerned, there is this further qualification that the government concerned may specify by notification that the employer in every establishment in private sector or every establishment pertaining to any class or category of establishments in private sectors shall, before filling up any vacancy in any employment in that establishment, notify that vacancy to such Employment Exchanges as may be prescribed. This is the kernal of this provision. This is the main object, that is, an obligation placed on the employer to notify the vacancies that may occur in their establishment before filling those vacancies."
The Minister was conscious that there was a likelihood of the Bill being misunderstood as compelling the employers to make appointments through the Employment Exchanges only. He clarified the position saying:
"The misunderstanding is as if this Bill gives power to the Government to compel the employers to recruit only such persons as are submitted by the Employment Exchanges. That is not so. This compulsion extends only to notification of vacancies. Naturally the employer has to consider the names which are submitted by the Employment Exchanges but there is no compulsion that they must restrict the choice only to the least (sic list) that is submitted to them. Of course, there is also the objection from the other side that it may not go far enough. We believe that even this will make things very much better. In any case, when the Committee reported, they also suggested this much advance. At present, they said, we should have only compulsory notification, but not compel the employers to recruit only out of the list that is sent by the employment exchanges."
5. As we said the speech of the Minister, at the time of the introduction of the Bill, is totally destructive of the contention of the learned Additional Solicitor General that the employers are under an obligation to recruit persons for appointment through the Employment Exchanges only. The learned Additional Solicitor General requested us to give a purposive interpretation to the provisions of the Act and insist that employers, in making appointments, should restrict their field of choice to candidates sponsored by the Employment Exchanges. We are unable to appreciate the argument since there is no provision of the Act which requires interpretation by us and which we may reasonably interpret as compelling the employer to appoint persons sponsored by the Employment Exchanges. On the other hand, we have already referred to Section 4(4) which is explicit that there is no such obligation on the part of the employer. We also notice that the object of the Act is not to restrict the field of choice in any particular manner, but to enlarge the field of choice. That is why in his introductory speech, the Minister said:
"... a large number of employers, particularly in similar industrial establishments and in construction works, do not employ any scientific method, but depend for their supply of labour on agents or recruit in a haphazard manner from amongst those assembled at factory gates or at works sites. The methods adopted are not always dictated by a consideration of efficient service, but as more a matter of bestowing patronage and favour. This applies in varying degrees to a large number of employers."
The Minister discussed the existing position and anticipated position in t he following words:
"The Act of notification of vacancies has important consequences. In the first place, so far as the employer is concerned, he will be placed in a position to have a much wider choice for the purpose of selection. Now, what is the present position? Any person knocks at the gate of the factory or the mill or other establishment and from those few who are there they choose. Now it would be possible for them to have a wider area of selection. The names of so many others who may not be able to go and knock at every gate, can be submitted and out of them, the best can be selected. So far as the quoting of selection is concerned, it should improve because of the wider range of choice. On the side of the worker certainly it means a more equitable distribution of employment opportunities. It should not be necessary for a person to be all the day moving from place to place. It should be sufficient for him to register at a place, give all the particulars about his qualifications and then he should be sure that at any rate, his name will be considered along with other names and there will be some regard for fitness in the choice of people who enter these new places for employment."
6. It is, therefore, clear that the object of the Act is not to restrict, but to enlarge the field of choice so that the employer may choose the best and the most efficient and to provide an opportunity to the worker to have his claim for appointment considered without the worker having to knock at every door for employment. We are, therefore, firmly of the view that the Act does not oblige any employer to employ those persons only who have been sponsored by the Employment Exchanges."
Therefore, the zone of consideration should not be restricted amongst the sponsored candidates, but in addition thereto, the vacancy should be advertised by publication in the newspapers, display on the notice board, announcement on radio, television and news bulletins so that all eligible candidate would offer their candidature and an equal opportunities are given to them.
The division bench in case of Tanmoy Ramaya Lahiri and ors. Vs. State of West Bengal reported in 2008 (3) CLT 205 (HC) took note of both the judgments of the Apex Court delivered in case of N. Hargopal (supra) and K.B.N. Visweshwara Rao (supra) and held that the restricting consideration through the employment exchange does not offend the equality clause but rather encouraged the fair play to avoid chance of discrimination. What weighed much to the division bench in the said report was the observation made in Hargopal Case and there is no reflection in the said order that the three judges bench observation in case K.B.N. Visweshwara Rao's case was considered at all.
A bunch of writ petitions were filed challenging the selection procedure undertook without making a publication in the widely circulated newspaper as observed by the Apex Court in case of K.B.N. Visweshwara Rao (supra) came to be disposed of 28 January, 2010 by separate orders. Those writ petitions were disposed of holding that restrictions imposed by the council amongst the sponsored candidates are not invalid.
Separate mandamus appeals were filed by the unsuccessful petitioner of those bunch of writ petitions. The large section of the appeals out of those bunch of appeals came of before the division bench in case of Biswajit Das and ors.(supra) and on 29.9.2011, it disposed of those mandamus appeals in saying that Rule 8 of the said Recruitment Rules 2001 was contrary to the decision of the K.B.N. Visweshwara Rao(supra) and hence could not stand on the anvil of Article 14 and 16 of the Constitution. The division bench held that the said provision by which the restrictions for consideration is imposed amongst the sponsored candidates is constitutionally invalid. The said division bench took note of the earlier division bench judgment in case of Tanmoy Lahiri(supra) and held:
" We therefore of the view that the learned Trial Judge should have taken note of the other decisions of the Supreme Court but had chosen to follow the Division Bench judgment on this particular point. The learned Trial Judge could have accepted the judgment of the Supreme Court's Larger Bench and Full Bench of this Court to distinguish decision in Tanmay Lahiri's case.
We therefore hold that while accepting plea of the learned Counsel for the appellants that the judgment of the learned Trial Judge was not correct on the point of law. We also hold that in view of consistent Supreme Court judgment the decision rendered by the Hon'ble Division Bench earlier with respect is not correct position of law."
(emphasis supplied) Therefore, the decision rendered in case of Tanmoy Lahiri (supra) was declared being not correct proposition of law in view of a three bench decision of the Supreme Court rendered in case of K.B.N. Visweshwara Rao(supra).
One of such bunch of appeals came up before another division bench in case of Tanushree Sadhukhan & Ors. vs. the State of West Bengal & Ors. (FMA No. 1286 of 2010 decided on 16.12.2011) who took note of the decision rendered in case of Biswajit Das and ors. (supra) and concurred and applied the ratio decided therein.
Thereafter, another bunch of writ petitions which were still pending came up for consideration before me and similar point was raised by the respective parties. I had an occasion to consider all the judgments including aforesaid two division bench judgments and held that the ratio of Biswajit Das(supra) which declares that the decision rendered by the earlier is not the correct proposition of law in view of the larger bench decision of the Supreme Court.
The learned Advocate appearing for the council placed before me a subsequent division bench judgment deciding the case of Tanmoy Chowdhury(supra) wherein it is held that the subsequent division bench (Biswajit Das) did not formally overruled the earlier division bench judgment (Tanmoy Ramaya Lahiri) and held that there is no scope for giving any special privilege to the sponsored candidate of the court.
Upon noticing the later division bench judgment and on perusal thereof, it appears that the said judgment runs contrary to the subsequent division bench judgment (Biswajit Das). It is a settled proposition of law where two conflicting judgments of the equal strength is operating the field, the lesser strength bench has an option either to accept one of them which is more apt and suitable in the given facts of the case in hand or to refer the matter to the Hon'ble Chief Justice for constituting the larger bench.
I am of the view that the ratio decided by the division bench in both the cases are conflicting and runs counter to each other. To eradicate the conflicting judgments to operate in the field, I am of the view that the matter should be placed before the Hon'ble Chief Justice for constituting the larger bench to answer which of the ratio laid down in case of Biswajit Das and ors. and Tanmoy Chowdhury and ors. are the correct proposition of law.
Let this matter be placed before the Hon'ble Chief Justice for constituting a larger bench as indicated above.
(Harish Tandon, J.)