Calcutta High Court
Lalu Gangopadhyay vs State Of West Bengal And Ors. on 8 May, 2006
Equivalent citations: (2006)3CALLT505(HC)
Author: Pratap Kumar Ray
Bench: Pratap Kumar Ray
JUDGMENT Pratap Kumar Ray, J.
1. Heard the learned advocates appearing for the parties.
2. This writ application was moved by the petitioner praying his appearance in the interview for the post of Class-IV staff of Simian Annapurna Kali Bidyamandir, a higher secondary school, the appointment procedure of which is controlled and guided by the guidelines issued by the Director of School Education, West Bengal under Memo No. 1736(21) GA dated 1st November. 1999. The petitioner admittedly was not a sponsored candidate but relying upon the Judgment of the Apex Court passed in the case Excise Superintendent Malkapatnam, Krishna District, A.P. v. K.B.N. Viweshwara Rao and Ors. prayed for the following reliefs:
(a) A Writ/Order in the nature of Mandamus commanding the respondent authorities, specially the respondent Nos. 1 and 2 hereinto amend and/or quash the impugned relevant Recruitment Rules being Memo No. 2066-G.A. dated 27.10.1995 issued by the Director of School Education (Secondary), Government of West Bengal under the West Bengal of Secondary Education Act, 1963, for its being ultra vires of the Constitutional Provisions, commensurate to the provisions for publication in the newspapers and/or through any other widely circulated mass media inviting applications from the eligible candidates for appointment to any post in addition to the provision for requisitioning the concerned Employment Exchange authority for sponsoring the names of candidates and allowing the candidates to make independent applications for the post.
(b) A Writ/Order in the nature of Mandamus commanding the respondent authorities specially the respondent Nos. 5 and 6 herein to allow your petitioner's candidature and to consider his independent necessary application for the post of Class-IV Staff in Simlon Annapurna Kali Bidyamandir (H.S.), P.O. Simlon. P.S. Kalna, Dist. Burdwan upon his making the same to the respondent No. 5 herein and to allow him to be appeared before the Selection Committee for Interview along with the Employment Exchange-Sponsored candidates for appointment in the said post;
(c) A Writ/Order in the nature of certiorari directing the respondents to produce the entire original records in connection with the instant case before this Hon'ble Court and on such production being made administer conscionable Justice by perusing the same.
(d) A Writ/Order/Direction in the nature of prohibition requiring the respondents' forbearing from holding the process of selection or interview in connection with this matter till the Judgment is pronounced and in case the petitioner succeeds in it, the interview letter is communicated to him;
(e) An Ad-interim order commanding the respondent authorities specially the respondent Nos. 5 and 6 herein to allow the petitioner pending the Writ petition to appear in the interview along with the Exchange-Sponsored candidates the result thereof as to the petitioner being subject to the fate of the Writ petition.
3. Bhaskar Bhattacharya, J. on 26th September. 2000 passed an order at the interim stage to this effect:
The petitioner is directed to serve the copy of this application upon the respondent(s) informing that this matter will appear as "listed motion" a week after reopening.
In the meantime, the school authority will permit the petitioner to appear at the interview stated to be fixed on November 1, 2000 for the post of Group-"D".
After such interview, if the petitioner comes within the zone of consideration, the respondent authority will not appoint him, but such appointment will be subject, to the final decision of this writ application. However, if the petitioner does not come within the zone of consideration, the school authority will be entitled to appoint the selected candidate for the aforesaid post.
Let Xerox certified copy of the order, if applied for, be supplied within a week after reopening.
4. The petitioner accordingly appeared and a panel was prepared wherein the petitioner's name was empanelled as a first candidate. Second candidate of the panel, Alip Kumar Chatterjee. filed an application praying addition as a party, which was allowed. This writ application has been contested by the said added party by contending, inter alia, that in terms of the guidelines as there is a provision for interview of the only sponsored candidates from the Employment Exchange, the interim order dated 26th September, 2000 is not fit to be confirmed and name of the petitioner to be deleted from the panel and his case to be considered for appointment.
5. For effective adjudication, the relevant provision is required to be looked into.
6. Under the guileline aforesaid, the provision for sponsorship of candidates is mentioned in Clause 4(a) and (b), which reads to this effect:
4(a) On receipt of the prior permission from the School stage from the D.I. of Schools (S.E.), the School Authorities shall approach the Local Employment Exchange for sponsoring the names of the Employment Exchange candidates.
(b) Employment Exchange shall mention in the list the qualification, date of birth, date of registration etc., of the candidates. Names shall be sponsored within 45 days in case of General candidates and 60 days in case of S.C. and S.T. & O.B.C. candidates. If names are not sponsored within the time limit mentioned above the School Authorities may approach the D.I.S. (S.E.) who may take up the matter with the Employment Exchange. In case of receipt of Non-availability Certificate from the Employment Exchange the School may advertise in any State level Daily Newspaper under intimation to the D.I.S. In the advertisement name and full address of the Institution shall be mentioned irrespective of whether the vacancy is permanent or temporary. The reservation rules in all cases of appointments must be followed strictly.
7. The issue as to whether a non-sponsored candidate is entitled to appear in the interview now has been resolved affirmatively by the Judgment of the Full Bench of Calcutta High Court on identical provision of law as earlier appeared in the guidelines and direction issued by the Director of School Education, West Bengal regarding appointment of teaching and non-teaching staff. This Full Bench decision passed in the case Rabindra Nath Mahato v. State of West Bengal and Ors. reported in 2005(2) CLJ 161.
8. Learned Advocate for the added party, however, has contended that in view of the West Bengal Legislation, namely, West Bengal Regulation of Recruitment in State Government Establishments and Establishments of Public Undertakings, Statutory Bodies, Government Companies and Local Authorities Act, 1999, the Full Bench Judgment passed in the case, Rabindra Nath Mahato (supra) has no applicability as the said Act, 1999 provides that except sponsored candidates from Employment Exchange no other person could be considered for appointment. The relevant provision of the said Act, 1999 as relied upon reads to this effect:
4. Vacancies to be filled up by persons sponsored by employment Exchange.After the commence of this Act, all vacancies in the posts in any Government establishment or establishment of any public undertaking, statutory body, Government company or local authority shall be filled up by such persons as may be sponsored by an employment exchange.
5. Notification of vacancies to employment exchange.Every appointing authority in any Government establishment or establishment of any public undertaking, statutory body, Government company or local authority shall notify to the employment exchange concerned, in the form of a requisition, every vacancy in any post in such establishment in accordance with the provision of the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959 (31 of 1959), and the rules made thereunder, and shall state the qualification, age, experience or any other requirement for filling up of such vacancy.
9. From the definition Clause under Section 2, the definitions of the different words, namely, establishment, Government Company, local authority and public undertaking, the following appears:
2(4). "establishment" means
(a) any office, or
(b) any place where any industry, trade, business or occupation is carried on;
(6) "Government Company" has the same meaning as in Clause(18) of Section 2 of the Companies Act, 1956 (1 of 1956);
(7) "local authority" has the same meaning as in Clause (23) of Section 3 of the Bengal General Clauses Act, 1899 (Ben Act 1 of 1899):
(9) "public undertaking" means any industry, trade, business or occupation owned, controlled or managed by
(a) the State Government or any department of the State Government; or
(b) a Government company; or
(c) a corporation established by or under a Central or State Act which is owned, controlled or managed by the State Government and in which not less than fifty-one per cent of the paid up share capital is held by the State Government.
10. On a bare reading of the said provision it appears that same is not applicable for teaching and/or non-teaching staff of a school. The appointment is for the school and the school is neither the State Government Establishment, Establishment of Public Undertaking Statutory Bodies, Government Companies nor a Local Authority. The Managing Committee of the school is not a statutory body but a body created under a statute, namely, Rules of Recognized Non-Government Institution (Aided and Unaided) Rules, 1969. Reliance may be placed to the Judgment passed in the case Executive Committee of Vaish Degree College, Shamli and Ors. v. Lakshmi Narain and Ors. reported in (1976)2 SCC 58, wherein in paragraph 10 the Apex Court dealt with the matter by defining the tests as are required to be considered to identify the body as a statutory body, relevant portion of paragraph 10 of the report reads to this effect:
Here a distinction must be made between an institution which is not created by or under a statute but is governed by certain statutory provisions for the proper maintenance and administration of the institution. There have been a number of Institutions which though not created by or under any statute have adopted certain statutory provisions, but that by itself is not, in our opinion sufficient to clothe the institution with a statutory character. In Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi this Court clear pointed out as to what constitutes a statutory body. In this connection my Lord A.N. Ray, CJ. observed as follows: [SCC p. 435 : SCC (L&S) p. 115, para 25].
A company incorporated under the Companies Act is not created by the Companies Act but comes into existence in accordance with the provisions of the Act. It is not a statutory body because it is not created by the statute. It is a body created in accordance with the provisions of the statute.
It is, therefore, clear that there is a well marked distinction between a body which is created by the statute and a body which after having come into existence is governed in accordance with the provisions of the statute. In other words the position seems to be that the institution concerned must owe its very existence to a statute which would be the fountainhead of its powers. The question in such cases to be asked is, if there is no statute would the institution have any legal existence. If the answer is in the negative then undoubtedly it is a statutory body, but if the institute concerned but is merely governed by the statutory provisions it cannot be said to be a statutory body.
11. In that view West Bengal Act, 1999 has no applicability. Since the Full Bench Judgment has already declared, right of non-sponsored candidates to appear in the interview, same is binding before this Court. As such, on the reflection of the said Full Bench Judgment, the interim direction passed by Bhaskar Bhattacharya, J. whereby and whereunder petitioner appeared in the interview and thereby was empanelled as a first candidate, cannot be said as illegal. Said interim order, accordingly, stand confirmed. Since the petitioner is an empanelled first candidate, the Managing Committee of the school is directed to give effect of the panel as prepared by the Selection Committee and to process the matter following the said guidelines as already referred to. Writ application accordingly aucceeds.
Later:
Let urgent xerox certified copy of this order, if applied for, be given to the learned advocates appearing for the parties expeditiously.