Calcutta High Court (Appellete Side)
Sunil Kumar Das vs Director Of Public Instruction on 19 November, 2009
Author: Aniruddha Bose
Bench: Aniruddha Bose
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Aniruddha Bose
W. P. No. 7221(W) of 2007
Re: CAN No. 6786 of 2008
SUNIL KUMAR DAS
Vs.
DIRECTOR OF PUBLIC INSTRUCTION, W.B. & ORS.
Advocate for the Petitioner: Mr. Bidyut Kiran Mukhopadhyay
Mr. Pratap Kr. Sen
Advocate for Respondent No. 5: Mr. Jayanta Kr. Datta
Advocate for Respondent Nos. 7&8: Mr. S. K. Datta Advocate for the State: Mr. P. S. Bhattacharya Judgement On: 19.11.2009 ANIRUDDHA BOSE, J.:-
1. The petitioner in this writ application has been working as a clerk on temporary basis in Prabhat Kumar College, Contai since the year 2001. This college is affiliated to Vidyasagar University and is guided by the Vidyasagar University First Statutes, 1983. I shall refer to this statute in the later part of this judgment as the "1983 Statute". The petitioner is registered as a general category candidate in the District Employment Exchange, Contai.
2. It appears that there were vacancies in three non-teaching posts in the college and the Director of Public Instruction, West Bengal, (DPI) being the respondent no. 1, had granted permission to the college authorities to fill up these vacancies. One of the vacancies was for the post of a clerk. The text of the memorandum issued by the respondent no. 1 in this regard on 21st March 2006 specifies:
"The undersigned has to state that the authorities of P. K. College may fill up the following vacant Non-Teaching post(s) with effect from the actual date of effecting of appointment to the post(s) but not earlier than the date of the issue of this Memo subject to the strict observance of the recruitment procedure as prescribed in Govt. order no. 830-Edn (CS), dated 31.10.1995 and subject to the provision as laid down in the relevant statutes of affiliating University and also reservation quota for scheduled castes, scheduled Tribes and Other Backward Classes candidates. This order is issued in terms of G.O. No. 77-Edn (CS), dated 02.2.2006 and in concurrence with Finance Department's U.O. No. 3044-Group-P (Service), dated 20.12.2003.
Sl No. Name of Posts No. of posts Vice/Post creation Scale G.O. No. & Date of Pay
1. Clerk 1(One) Rs.3350-6325/-
2. Sweeper 1(One) Rs.2600-4175/-
3. Lab. Attendant 1(One) Rs.2600-5175/-
Physics.
N.B. (1) The appointment of Sri Samir Baran Jana, Petitioner in W.P. No. 16902(W) of 2004 may be considered against the post of Laboratory Attendant (Physics) above as per reasoned order no. ED- 151/2005. dt. June, 2005 passed by D.P.I., W.B. in compliance with the order of Hon'ble High Court passed on 04.4.2005.
N.B. (2) The appointment(s) on compassionate ground in the die-in- harness cases before 06.6.2005 is/are to be considered in suitable Group 'D' post(s) first, out of the post(s) permitted to fill up herein. The remaining vacant NT post(s) is/are to be filled up in accordance with the provision as laid down in this order and in terms of G.O. No. 222- Edn-(CS), dated 22.2.2001.
Contract basis appointment(s) (in whole time substantive posts) may be moved for regularisation to this Directorate forthwith."
4. In the present proceeding, the dispute is over filling up of the post of clerk. The principal of the college had notified the vacancy for the said post to the Officer-in-charge, Employment Exchange, Contai, for sponsoring the names of eligible candidates for the said post. This was done in terms G.O. No. 830- Edn(CS) dated 31.10.95, the provisions of which the college authorities were required to comply with as per the memorandum issued by the DPI. The employment exchange sent the names of thirty-five eligible candidates including that of the petitioner for interview for the said post. The petitioner appeared in the interview before the selection committee on 21 September 2006. Prior to the date of interview, however, two employees of the said college from the category of lower subordinate staff had made applications on 15 September 2006 and 20 September 2006 for their appointment to the said post. These two employees being Sri Tarashankar Panda and Ashok Kumar Maity have been impleaded in this writ petition as respondent no. 6 & 7. Respondent no. 6 was holding the post of laboratory assistant whereas the respondent no. 7 was appointed as permanent bearer of the library in the said college. These posts are commonly referred to as Group 'D' posts.
5. The memorandum bearing no. 830-Edn(CS) contemplates recruitment to Group 'C' and 'D' posts in non-government colleges only from amongst the candidates sponsored by the employment exchange, subject to certain exceptions. These exceptions, however, are not relevant for adjudication of the present proceeding. The petitioner appeared in the interview and the case of the petitioner is that the selection committee had prepared a panel of three candidates on the basis of their performance and the petitioner's name figured on top of this panel. Thereafter the governing body of the college appears to have had accepted the panel and authorised the principal and secretary of the college to issue appointment letter to the petitioner. The appointment letter to the petitioner was issued on 21st January 2006 and it seems the petitioner joined the post of clerk on 23rd September 2006, and his selection was in the process of formalisation.
6. The respondent no. 6 & 7, in the meantime had made a representation dated 20 September 2006 before the DPI. In this representation, they staked their claim for being absorbed in the post of clerk keeping in view their experience in the college as group 'D' staff. A copy of this representation has been brought on record of this proceeding by the petitioner by way of filing a supplementary affidavit affirmed on 19 December 2008. In this representation, it was also stipulated:
"By virtue of the statute it is provided that if any permanent vacancy arises that post should have been filled up by promotion and regarding filling up the post preference should have been given to those candidates who was working in the Group 'D' category. Thereby by virtue of the statute those persons who are working in a Group 'D' post have a right to be considered for the post of Group 'C' keeping in view of the experience as a Group 'D' staff. By virtue of the statute the undersigned has a right to make an application before the concerned authority to consider their claim to be absorbed in the vacant post of Group 'C' (clerical post) keeping in view of their experience as a Group 'D' staff....."
7. The provision of the 1983 statutes on which the said respondents sought to rely on is clause 163, which provides:-
"(a) Whenever a permanent vacancy occurs in any of the posts referred to in sub-clause (i) of clause (a) of Statute 160, such vacancy shall in the first instance be filled up by promotion from amongst the employees holding any of the posts referred to in sub-clause (ii) of clause (a) of Statute 160. In the matter of such promotion, efficiency, seniority including academic qualifications, character rolls and attendance shall have to be taken into consideration. In case no suitable candidate for such promotion is available, such permanent vacancy shall be filled up by direct recruitment in accordance with the procedure laid down for the purpose;
Provided that the provisions relating to recruitment of non-teaching employees of affiliated colleges as laid down in the foregoing Statutes shall not apply in cases where, on compassionate ground, a wife, son, daughter or dependant of any employee- both teaching and non- teaching-dying in harness is to be offered a job consistent with his/her qualifications. He/she shall have precedence over others in the matter of appointment or placement, as the case may be;
Provided further that the provision mentioned above shall also be applied in case of a college employee who is disabled permanently or otherwise incapacitated rendering him unfit to continue in service, provided this fact of disablement is certified by a medical officer authorised by the Director of Health Services.
(b) Wherever a permanent vacancy occurs in any of the posts referred to in sub-clause (ii) of clause (a) of Statute 160, in the matter of filling up of such vacancy, the procedure as laid down in these Statutes for direct recruitment shall be followed.
[c] In the case of filling up of vacancies in the posts referred to in sub- clause (ii) of clause (a) of Statute 160, efficient and experienced members of the lower subordinate staff having the requisite qualifications shall get preference over others.
Explanation A dependent of an employee shall mean husband, wife, son, unmarried or widowed daughter, unmarried or widowed sister, brother, parent provided such relation of the employee is solely dependant on him/her."
8. When they got no favourable response to their representation, the respondent nos. 6 & 7 moved a writ petition before this Court being W.P. No. 2233(W) of 2006 (Tara Shankar Panda V. State of West Bengal & Ors.). In this writ petition, in substance they challenged the selection of the petitioner for the said post. One of the grievances made out in the said writ petition appears to be non-consideration of the representation made by them before the DPI. Their case, as made out in that writ petition was that under the 1983 Statute the vacant posts for clerk were to be filled up by promotion from efficient and experienced members of the lower subordinate staff and for this purpose preference was to be given to those candidates who were working in Group 'D' category. On this basis they wanted to be considered for being absorbed in the vacant post for which the petitioner was selected. It was contended that the purported attempt to directly recruit from the employment exchange for this post was in violation of the provisions of Clause 163 of the 1983 Statute. This writ petition was disposed by an Hon'ble Single Judge of this Court on 17 January 2007 with the following direction:-
"In view of the above I direct the respondent no. 2 to take a decision with regard to the representation dated September 20, 2006 and after giving an opportunity to the petitioner, the college authority as also respondent no. 6 dispose of the same in accordance with law by passing a reasoned order within six weeks from the date of communication of this order. I further direct the respondent no. 2 to communicate his decision to the petitioners as also to the concerned college within a week from taking such decision. The respondent no. 2 is restrained from approving the panel in question till one week after the communication of the order passed by him as aforesaid. I make it clear that I have not entered into the merits of the case and all points are kept open."
9. The respondent no. 2 in that writ petition was the DPI. He passed an order in pursuance of the direction of this Court holding that a lapse had taken place on the part of the college authorities by not calling the petitioners to the interview and the college authority had not adhered to relevant provisions of the statute of the concerned university. The approval of appointment of the petitioner to the post in question was not given on this ground. In the order passed on 22 March 2007, the DPI observed:
"On perusal of all the submissions and records as submitted before me, I am of the view that a lapse seems to have taken place on the part of the college authority, by not calling the petitioners to the interview and thus the college authority has not adhered to the relevant provisions of the statute of the concerned university. Accordingly approval of appointment to the post in question cannot be accorded unless the candidatures of the petitioners are taken into consideration....."
10. In this writ petition, the petitioner has assailed the legality of this order. Mr. Bidyut Kiran Mukhopadhyay, learned Senior Advocate appearing for the petitioner submits that the respondent no. 1 had gone beyond the direction of this Court in passing the order impugned. The case of the petitioner is that in their representation, the claim of the respondent no. 6 & 7 was for absorption. In the order passed on 17 January 2007, an Hon'ble Single Judge of this Court had directed the DPI to take a decision with regard to the said representation. It has been argued on behalf of the petitioner that the case of the said respondents could not have been considered on any other ground, and the DPI should have confined his enquiry on the point as to whether the respondent nos. 6 & 7 were entitled to be absorbed in the post in question. The DPI had examined, in the impugned order, on the other hand, the question as to whether the respondent no. 6 & 7 ought to have called for interview or not. According to Mr. Mukhopadhyay, this was not the prayer of the petitioners in W.P. No. 2233(W) of 2006 in their representation. On this count, he submits that the impugned order of the DPI cannot be sustained being contrary to the direction by this Court, and prays for quashing of the same.
11. His further case is that under Statute 163, for the post of a clerk there is no mandatory provision for grant of promotion but what this statute stipulates is that if the incumbents in subordinate posts are found to be with suitable qualification and experience, then only such incumbents could be considered for the post of a clerk in Group 'C'. He points out in this regard that the administrative circular issued by the State Government does not permit the college to appoint anyone on promotional basis from Group 'D' to a vacancy arising for the post of a clerk. In this regard he has relied on the Government Order No. 830-Edn (CS)/31st October 1995 which the college authorities were required to follow. The copy of this Government Order has been made part of Annexure "P4" (at page 39 of the writ petition) and the text of this Government order is reproduced below:
"From: Shri S. K. Das Deputy Secretary to the Govt. of West Bengal To: The Director of Public Instruction, West Bengal Sub: Recruitment policy regarding appointment in non-teaching posts in Non-Govt. Colleges.
Sir, With reference to your U.O. No. 599/95 dated 18.9.95 on the subject mentioned above, I am directed by order of the Governor, to say that the Governor has now been pleased to order that henceforth all the Group 'C' and Group 'D' non-teaching posts in all the non- Government Colleges, except in respect of the cases mentioned below, should be filled up only from amongst the candidates sponsored by the Employment Exchange(s).
In the following cases exemption for recruitment through Employment Exchange(s) be made.
The cases of appointment on compassionate ground like dying in harness or having been declared physically incapaciated for rendering further service.
The existing non-teaching employees shifting from one Non-Govt. College to another will not come under the purview of this Government order.
The promotional posts can however be filled up from amongst the employees holding lower feeder posts by promotion from Group 'C' to Group 'C' in terms of provision in this regard in the Statutes of affiliating units.
In no suitable candidates for such promotion is available, direct recruitment can be made to such promotional posts.
The above provision may be brought to the notice of all Non- Govt. Colleges immediately.
Yours faithfully, Deputy Secretary"
12. Mr. Mukhopadhyay accordingly submits that the order of the DPI which is impugned in this writ petition ought to be quashed and prays for a direction for giving approval to the petitioner's appointment.
13. Appearing for the State, Mr. Partha Sarathi Bhattacharyya, learned counsel argued that the memorandum of 31st October 1995 stood modified by two subsequent memoranda, bearing Nos. 924-Edn(CS) 10M-10/3 dated 26 November 2007 and 585-Edn.(CS)/10M-20/08 dated 9 September 2008. In the former it has been stipulated that for posts in Group 'C', duly qualified candidates working for at least 5 years as regular employees may be considered for appointment along with candidates sponsored by the employment exchange. The latter issued on 9 September 2008 provides for wide publicity in the newspapers in addition to making requisitions to the employment exchanges for filling up non-teaching posts in non-government colleges. In fact, this memorandum seeks to cancel the memorandum no. 830 dated 31 October 1995. He sought to defend the impugned order on the basis of these two memoranda.
14. The main question which falls for determination in this proceeding is as to whether the case of the private respondents could have been considered or not by the authorities. The other issue, argued on behalf of the respondent nos. 6 & 7, is as to whether the entire recruitment process stands vitiated because of the fact that no publicity was given in the general media inviting applications for recruitment to this post. As has been indicated in the earlier part of this judgment, Rule 163 of the 1983 Statute contemplates filling up of vacancies in non-teaching posts in non-government colleges by two modes, by way of promotion and through direct recruitment.
15. So far as the post of clerk is concerned this post comes within the ambit of Statute 160(a)(ii) of the 1983 Statute. Appearing on behalf of the private respondents, (i.e. respondent nos. 6 & 7) Mr. Datta relied on an unreported judgment of this Court in W.P. No. 1349(W) of 2003, in the case of Jagabandhu Barman Vs. State of West Bengal & Ors. delivered on 18 November 2003. In this judgment, while considering an almost identical provision in a similar statute relating to North Bengal University, an Hon'ble Single Judge of this Court held:-
"After hearing the learned Advocates for the parties and after going through the aforesaid materials on record I find that in view of the provisions contained in Statutes 2(a)(ii) post of Library Assistant should be filled up by direct recruitment as mentioned in Statute 5(b). However, clause (c) of the said statute 5 creates an embargo over clause (b). According to such clause (c) while filling up vacancies in the posts preferred to in sub-clause (ii) of Clause (a) of Statute 2 efficient and experienced members of the lower subordinate staff having the requisite qualifications shall get preference over others. Conjoint reading of clause (b) and (c) makes it clear that for the purpose of filling up any post referred to in sub-clause (ii) of Clause (a) of Statute 2 an employer first ascertain whether there is any applicant from the lower subordinate staff of the college having the requisite qualification. If there is any such candidate, appointment should be given from amongst those as in the said clause (c) it is specifically mentioned that they shall get preference over others. In the event there is no such applicant from the lower subordinate staff in such a situation an employer will proceed to fill up by direct recruitment by way of sponsorship from the employment exchange."
16. Before considering the argument of the respondents on construction of the said provision of the Statute on the basis of the ratio of the judgment delivered in W.P. No. 13490(W) of 2003, I shall examine two issues. First, the impact of the two memoranda dated 26 November 2007 and 9 September 2008 on the subject recruitment process, and then the question of validity of the selection process in the absence of media publicity for inviting applications for filling up the said post. The admitted position is that at the time the post had fallen vacant and sponsorship from the employment exchange was sought for, memo no. 830- Edn(CS) of 31 October 1995 prevailed. This memorandum neither contemplated participation of the lower subordinate staff in the selection process, nor advertisement in the media. These stipulations were introduced by the subsequent memoranda dated 26 November 2007 and 9 September 2008. Thus, for the purpose of conducting recruitment to the post in question, the provisions of these two memoranda could not apply.
17. Appearing for the private respondents, Mr. Datta, however, argued that it was incumbent on the recruiting authority to advertise the vacancy in view of different judicial pronouncements mandating such a course. Four authorities were relied upon by him on this count, being the decisions reported in 1996(6) SCC 216, 1997(9) SCC 527, 2008(1) SCC 105 and 2008(1) CLJ 912. All these decisions are uniform on the point that for filling up of posts by public authorities, advertisement in the media is necessary for inviting applications for the post or posts in question from the general public. In the facts of the present case, however, in my opinion, the recruitment process would not be vitiated on the sole ground that no media publicity was given inviting applications from the general public for filling up the said post. I hold so because in this case, it is not the complain of any of the potential candidates that they had no knowledge of the vacancy, as a result of which they could not apply for the post. The respondent nos. 6 & 7 admittedly had the knowledge of the vacancy, and sought to be absorbed therein. They in fact did apply for the post in question, and in their initial applications dated 15 September and 20 September 2006, both of them wanted direct appointment. In their subsequent representation, their prayer was for absorption. In these circumstances, in the absence of any potential candidate raising a complain that because of lack of publicity he could not apply for the post, I do not think I can take cognizance of the complain of lack of publicity and declare the recruitment process to be invalid at the instance of the respondent nos. 6 & 7. No lis on this count had been raised at any material time by the private respondents and the private respondents also wanted to be directly appointed to the post in question.
18. Mr. Mukhopadhyay had argued that the impugned order cannot be sustained because it was not passed in accordance with the direction of this Court. In the order passed on 17 January 2007, an Hon'ble Single Judge of this Court had directed the DPI to take a decision with regard to the representation of the private respondents (writ petitioners therein) made on 20 September 2006. In this representation, they prayed for absorption in the post in question. The petitioner's case, as I have observed in the earlier part of this judgment, is that the DPI, while taking the decision must have confined his probe on the point of absorption of the private respondents, and it was not open to him to evaluate the entire process of selection. It is a fact that the DPI in the impugned order found lapse in the decision of the college authorities in not calling the private respondents for interview. He did not base his decision on the sole issue of claim of absorption of the respondent nos. 6 & 7 for the post in question. But for this reason alone, I do not think the order ought to be quashed. While considering the representation if the DPI finds any basic flaw in the selection process, then I do not think he could be held to have acted contrary to the direction of the Court by not confining his scrutiny on the sole question as to whether the respondent nos. 6 & 7 ought to have been absorbed in the post.
19. Now comes the question of interpretation of the provisions of Statute 163. The said statute provides for promotion to the posts referred to in Statute 160(i)(a) at the first instance from the cadre of employees specified in Statute 160(ii)(a). If no suitable candidate for promotion could be found, the authorities then are entitled to make direct recruitment. So far as filling up of vacancies in posts specified in Statute 160(ii)(a), (the subject post comes within the scope of this provision) direct recruitment is mandated. The question which arises next is that if direct recruitment is the mandated course for filling up of vacancies for the said post, then in what manner the claims of efficient and experienced members of the lower subordinate staff shall get preference, as specified in Clause (c) of Statute 163. In the case of Jagabandhu Barman (supra), an Hon'ble Single Judge of this Court held that in such a situation, the authorities ought to examine the claims of the members of the lower subordinate staff first, and if no such employee is found to be competent, then only it would be permissible to take recourse to the process of direct recruitment.
20. Mr. Mukhopadhyay, contended that the points raised in this writ petition was never examined in that case, and that decision was rendered while considering provisions of a different statute. I am of the opinion, however, that since the provisions of the Statute considered in the case of Jagabandhu Barman (supra) are almost identical to the provisions of the 1983 Statute, it would not be proper on my part to ignore the said decision rendered by a bench of co-ordinate strength.
21. I, however, respectfully disagree with the opinion expressed by His Lordship in the case of Jagabandhu Barman (supra) as regards interpretation of the provisions of the statute involved in that writ petition. In that case His Lordship has been pleased to hold that before taking recourse to direct recruitment, the authorities for the purpose of filling up of a post in the nature of the subject post shall ascertain first as to whether any suitable candidate is there in the cadre of the lower sub-ordinate staff, and if the college authorities find that they have requisite qualification, then selection should be made amongst those persons. It is the opinion of His Lordship in the case of Jagabandhu Barman (supra) that if there is no such applicant from the lower subordinate staff, then only the college authorities may take recourse to the procedure for direct recruitment.
22. In the 1983 Statute, this is the procedure which has been provided in clause 163(a), which relates to the posts specified in Statute 160(i)(a). This system is akin to promotion. However, so far as the posts pertaining to clause 160(a)(ii) are concerned, for filling up such posts, the course of direct recruitment has been prescribed. Moreover, the Statute does not stipulate that if efficient and experienced members of the lower subordinate staff are found, they shall be considered to the exclusion of any other candidate. What the Statute prescribes is that they shall get preference over others. The expression "preference", as used in clause 163(c) of the Statute, in my opinion means that when their cases are compared with others for the purpose of recruitment, they may be given certain advantages or additional credits. I am not inclined to venture into the exercise as to what would be the nature of such advantage or credits. That would be for the recruiting authorities to determine. What in my opinion the course of action for the recruiting authorities would be in such a case (i.e. filling up of a post specified in clause 160(ii)(a)) is that if there are candidates from the lower subordinate staff along with those sponsored by the employment exchange, certain special advantages or credits may be given to the lower subordinate staff. This is apparent from the provision of clause 163(c), which specifies that the members of lower subordinate staff "shall get preference over others" (emphasis supplied). The employment of the expression others in the said provision implies that their cases ought to be compared with the candidates coming from the general category, as then only the question of getting preference would arise.
23. Question also arises on the point that if the process of direct recruitment as per memorandum no. 830-Edn(CS) dated 31 October 1995 is made, then those who would be eligible for interview would only be candidates sponsored by the employment exchange. In such a situation, how could a member of the lower subordinate staff would have the chance of being considered? That question may not be relevant now, in view of issuance of the notifications dated 26 November 2007 and 9 September 2008. But in the present case, the provisions of memorandum no. 830-Edn(CS) apply. In such a situation, in my opinion, if any member of the lower subordinate staff is sponsored by the employment exchange for the post in question then only the question of their getting preference would arise. Such a course again would make the passage for lower subordinate staff considerably narrow. But in my opinion, that is what the statute prescribes.
24. The present writ petition involves adjudication on the following question of law:-
(i) Whether for the purpose of filling up of a vacant post specified in Statute 160(a)(ii) of the Vidyasagar University First Statues, 1983 at a time the memorandum no. 924-Edn (CS)/10M-10/03 dated 26 November 2007 and 585-Edn (CS)/10M-20/08 dated 9 September 2008 had not become operational, the recruiting authority was required first to ascertain whether there was any efficient and experienced member of the lower subordinate staff having the requisite qualifications, as prescribed in Statute 163(c) and if such lower subordinate staff were found suitable, fill up such vacancy from such lower subordinate staff without following the procedure for direct recruitment or they were required to seek sponsorship from the employment exchange in terms of memorandum no. 830-Edn(CS) dated 31 October 1995, or consider the claims of lower subordinate staff who were efficient and experienced having suitable qualification only if names of such staff were sponsored by the employment exchange?
25. I have already expressed what in my opinion would be the answer to this question. But since there is a subsisting decision of a bench of co-ordinate strength in which a contrary view has been expressed, I refer this matter to His Lordship the Hon'ble Acting Chief Justice for appropriate direction. The interim order already passed in this matter shall continue until further order. (ANIRUDDHA BOSE, J.)