Calcutta High Court (Appellete Side)
18709W/2007 on 22 July, 2010
Author: Dipankar Datta
Bench: Dipankar Datta
07.10
ab
W.P. 18709(W) of 2007
Mr. Ashim Kr. Routh,
... for the petitioner
Mr. Ahhijeet Gangopadhyay,
... for the respondent Nos. 2 to 5
Mr. A. K. Chatterjee, Mr. Balai Lal Sahoo, Mr. S. P. Ray, ... for the added respondent No. 6 The petitioner offered his candidature for recruitment to the post of Assistant Teacher in Political Science by participating in the 7th Regional Level Selection Test, 2006 conducted by the West Bengal Central School Service Commission. The petitioner belongs to general category and, therefore, could have staked claim to any of the 33 unreserved vacancies.
After participating in the written examination as well as attending the personality test, the petitioner obtained a total of 73.00 marks. He was placed at serial No. 41 of the Combined Merit List. Obviously, he was not favoured with any recommendation for appointment.
The petitioner presented this petition on 22nd August, 2007 with a grievance that the Regional School Service Commission, Western Region(hereafter the Commission) acted illegally in filling up the unreserved vacancies by candidates belonging to other categories viz. scheduled castes or other backward classes or physically handicapped and, therefore, he was deprived of due recommendation for appointment. In other words, the vacancies meant to be filled up by general category candidates were being encroached upon to accommodate the candidates belonging to the reserved category.
2While entertaining this petition, on 12th October, 2007, a learned Judge of this Court directed the Commission not to fill up one post in the general category.
During pendency of the writ petition, the candidate at serial No. 36 of the combined merit list (Kartick Kumar Ghosh) filed an application for addition of party. He had also applied for vacating the said interim order. It was his contention that two of the candidates who figured in the final panel amongst first 33 candidates had declined to accept offers of appointment and one physically handicapped candidate, had been accommodated against a vacancy reserved to be filled up by the candidates belonging to physically handicapped category; therefore, being the 2nd waitlisted candidate, he had acquired a right to be recommended for appointment. However, by reason of the interim order, he was deprived of such recommendation and the interim order is operating to his severe detriment and prejudice.
The application for addition of party was allowed and the said Kartick Kumar Ghosh was added as respondent.
His application for vacating the interim order was directed to be treated as affidavit-in-opposition.
The Commission also filed affidavits, three in number, which have all been considered at the time of final hearing.
It appears from the final panel of qualified candidates being Annexure "R-1" to the affidavit of the Commission dated 20th July, 2010 that candidates against serial Nos. 2, 5, 7, 19, 21, 23, 25, 26 and 31 belonging to OBC category, SC category, OBC category, OBC category, PH category, OBC category, SC category, OBC category and PH category respectively were treated as general category candidates considering their respective performances in the selection test and were accommodated against vacancies, which were meant to be filled up by general candidates. I do not find any illegality in the decision of the Commission to treat such 3 reserved candidates as general category candidates for appointment against unreserved vacancies since that is the law of the land. The apprehension of the petitioner that unreserved vacancies were being filled up by the candidates belonging to reserved category appears to be correct but the process by which the Commission accommodated those reserved category candidates cannot be invalidated on any score whatsoever.
Mr. Routh, learned Advocate for the petitioner did not dispute this position and, therefore, had to concede ultimately that the Commission did not commit any illegality in treating the reserved category candidates as belonging to general category.
However, he raised a question as to how the Commission could consider the added respondent as qualified for being recommended for appointment. According to him, the final panel of qualified candidates (Annexure "R-1" referred to above) would reveal that the Commission had offered appointment to the 32nd and 34th ranked candidates of the combined panel overlooking the claim of the candidate who secured 33rd rank and because of such illegality in preparation of panel, the Commission ought not to offer recommendation in favour of the added respondent. He also drew my attention to the document at page 52 of the writ petition to contend that there are gross discrepancies in the final panel (Annexure "R-1" referred to above) and, therefore, I ought not to interfere.
I shall take up his second contention first. On a comparison of the registration numbers of the candidates appearing in the final panel and the document at page 52 of the writ petition, it does not appear to be a fact that there is discrepancy in such registration numbers. However, there is discrepancy in so far as the description of the roll numbers of the candidates are concerned.
Mr. Chatterjee, learned Advocate for the added respondent has submitted that the roll numbers have been inserted in the document 4 at page 52 incorrectly. The roll number of one candidate has been placed against the registration number of another candidate and vice-versa. The contention appears to be correct and, therefore, I do not find enough merit to discard the final panel (being Annexure "R-1" as referred to above).
So far as the plea raised regarding the 33rd ranked candidate is concerned, it appears that the said candidate, Kamal Kumar Goswami is a physically handicapped candidate. The 32nd and 33rd ranked candidates viz. Tushar Kanti Bayen and Tapan Kumar Mondal along with the said Kamal Kumar Goswami obtained 73.50 marks each. There being a tie amongst the three candidates, the 32nd and the 33rd vacancies which were unreserved, could not have been filled up by three candidates and, therefore, the physical handicapped candidate i.e. the said Kamal Kumar Goswami was accommodated against the first vacancy meant to be filled up by the physically handicapped candidates under reserved category and thereby making it possible for the Commission to recommend both Tushar Kanti Bayen and Tapan Kumar Mondal for appointment against the 32nd and the 33rd vacancies. In the event the candidates upto Tapan Kumar Mondal( ranked 34th) including rd Kamal Kumar Goswami(ranked 33 ) had not refused to accept offers of appointment, normally, the added respondent being at serial No. 36 of the final panel would not have been favoured with any recommendation. However, from the affidavit filed by the Commission, it appears that two candidates having refused to accept offers of appointment, the candidate at serial No. 35 of the final panel viz. Pradip Guria and the added respondent at serial No. 36 of the final panel fortunately got the opportunity of their names being recommended for appointment. The said Pradip Guria has already accepted the offer of appointment but due to the interim order passed by this Court, the added respondent is being deprived of any recommendation in his favour.
Considering the facts and circumstances narrated above, I do not find any reason to hold that the added respondent is not entitled to any recommendation in his favour. Fortunately for him, 5 two candidates having refused to accept offers of appointment, there is a real chance for him to be selected as waitlisted candidate. A waiting list is maintained for the purpose of meeting the contingency of the nature that has occurred here. By proposing to consider the added respondent for filling up the last vacancy under unreserved category, i.e. the 33rd vacancy, the Commission has not acted illegally or in excess of jurisdiction.
I do not find any merit in this writ petition. The same stands dismissed without any order as to costs.
The Commission shall now proceed to issue recommendation in favour of the added respondent. If at all he is willing to accept offer of appointment, he shall be at liberty to join the school where his name has been recommended.
The period, during which the writ petition was pending before this Court shall be excluded if at all the added respondent has incurred any disability for appointment in the meantime.
Urgent certified photostat copy of this order, if applied for, be supplied to the parties at an early date.
(Dipankar Datta, J)