Calcutta High Court (Appellete Side)
Dipankar Sarkar vs The State Of West Bengal & Ors on 29 April, 2016
Author: Debangsu Basak
Bench: Debangsu Basak
1 29.04.2016
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rc W.P. No. 15541(W) of 2010 Dipankar Sarkar Versus The State of West Bengal & Ors.
Mr. Ekramul Bari
Syed Mansur Ali
Mrs. Tanuja Basak .. For the petitioner
Mrs. Sanghamitra Nandy
Mrs. Subhra Nag ... For the State
Mr. Abhijit Gangopadhyay .. For the SSC
The petitioner has complained that although he has been placed at serial no. 48 of the merit list he has not been given appointment. The petitioner has complained that the 47th candidate prior to him did not opt for the vacancy. Therefore, the vacancy should have been filled up by the appointment of the petitioner.
Learned advocate for the petitioner has relied heavily on the interim order dated August 02, 2010. He has pointed out the observations made in such order. He has submitted referring to such order that when the candidate at serial no. 47 was not given the appointment the next candidate being the petitioner should have been given the appointment. He has thereafter referred to the affidavit-in-opposition filed on behalf of the West Bengal School Service Commission. He has submitted that the School Service Commission has not given details as to the date when the other person has been given appointment in lieu of the 47th candidate.
Learned advocate for the School Service Commission (SSC) has referred to a decision of this Court rendered in W.P.No. 13489(W) of 2010 (Mukul Biswas & Ors. Vs. State of West Bengal & Ors.) dated August 13, 2010. He has submitted that in such matter 2 the Court had directed the School Service Commission to show the vacancies in respect of a male (general) to the empanelled candidates of the female category. In the event any empanelled candidate from the female category opts for such vacancy the same shoul dbe filled up by such female candidate. He has submitted that a male candidate cannot be appointed in a girl school although a male candidate can be appointed at a co-educational school. He has also drawn the attention of the Court to the fact that an appeal carried from the judgment and order dated August 13, 2010 in Mukul Biswas (Supra) was dismissed by the judgment and order dated November 12, 2010. A Special Leave Petition filed against the Division Bench order was dismissed on January 31, 2011. Learned advocate for the SSC has referred to the affidavit-in-opposition filed on behalf of his client. He has submitted that the second empanelled candidate under the female category was shown to the vacancy for the 47th candidate . She has been chosen such vacancy. She has given such appointment. The three vacancy shown in the female category was filled up by the two other empanelled female candidates and the first wait listed female candidate.
Learned advocate for the petitioner has tried to distinguish Mukul Biswas (Supra) by submitting that the judgment was rendered subsequent to the counselling being offered in the relevant case. The judgment cannot be said to have been retrospective effect. Therefore, his client should not be denied the appointment on the basis of the ratio laid down in Mukul Biswas (Supra).
I have considered the contentions of the appearing parties and the materials made available on record.
The petitioner had participated in a selection process undertaken by the West Bengal School Service Commission. He is the first wait listed Other Backward Classes (OBC) candidate in such selection process.
The affidavit-in-opposition filed on behalf of the School Service Commission discloses that there were 8 vacancies for OBC male. In accordance with the rule one extra candidate was placed in the panel as the wait listed candidate for such 8 number of 3 vacancies. Such affidavit also discloses that there were three vacancies for the OBC (Female) candidate. One waitlisted female candidate was placed in the list.
In Mukul Biswas (Supra) it has been held that vacancies obtaining in the male category should be shown to the empanelled female candidates also when the empanelled male candidates does not opt for such vacancies.
Mukul Biswas (Supra) was rendered on August 13, 2010. It was upheld by the Division Bench on November 12, 2010. The Special Leave Petition was dismissed on January 31, 2011. The SSC in the present case has acted in a manner which finds approval in Mukul Biswas (Supra). The action, therefore, of the SSC cannot be faulted. It is not a case that the SSC is seeking to apply Mukul Biswas (Supra) retrospectively. The action taken by the SSC is in conformity of what has been held in Mukul Biswas (Supra).
In such circumstances, the action of the SSC in allowing the empanelled female candidate to opt for the vacancy accruing in the male category by reason of a male candidate not opting for such vacancy cannot be faulted.
W.P.No. 15541(W) of 2010 is dismissed withtout any order as to costs. Urgent photostat certified copy of this order be given to the parties on priority basis after compliance of all formalities as to costs.
(Debangsu Basak, J.)