Calcutta High Court (Appellete Side)
Tanmoy Chowdhury vs State Of West Bengal And Others on 10 January, 2012
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
1
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Ashim Kumar Banerjee
-And-
The Hon'ble Justice Soumen Sen
M.A.T. 1852 of 2011
Tanmoy Chowdhury
-Versus-
State of West Bengal and Others
In re.: C.A.N. 11037 of 2011 (Appln. U/S. 5)
CAN 11195 of 2011(Application For Stay)
For Appellant : Ms. Sanghamitra Nandy
For Respondent/State : Mr. Sailaja Nanda Bhattahcarjee
Mr. Debabrata Kole Judgment on :- January 10, 2012.
This is an application for condonation of delay as the appeal is barred by 648 days. The appellant claims that he moved his writ petition on December 14, 2009 and obtained an interim order. The matter again came up in the list on January 28, 2010 along with other matter and was finally disposed of. Subsequent disposal of the writ petition was never communicated to him by the learned Advocate hence, he could not prefer the appeal.
Although we are not fully convinced with the grounds mentioned in the application for condonation of delay, for ends of justice, we condone the delay and hear the appeal itself as it would involve a short question of law.
By consent of the parties, we take up the hearing of the appeal treating the same as on day's list.
2The petitioner by his writ petition asked for permission to participate at the interview for the post of a Primary Teacher, being conducted by the District Primary School Council. He obtained an interim order to the effect that he was allowed to participate in the written examination to be held on December 20, 2009 strictly without prejudice to the rights and contentions of the respondents in that writ petition. The matter subsequently appeared before His Lordship on January 28, 2010 along with other matters. His Lordship dismissed the writ petition by holding that the Recruitment Rules, 2001 did not permit the Council to consider the candidature of any candidate not sponsored by the Employment Exchange. The appellant was not sponsored by the Employment Exchange, as such he was not entitled to be considered. His Lordship relied on the Division Bench decision in the case of Tanmoy Ramaya Lahiri & Ors. Vs. The State of West Bengal & Ors., reported in (2008) 3 CAL. LT 205 (HC). Hence, this appeal before us.
Ms. Sanghamitra Nandy, learned Counsel appearing for the appellant submits that identical issue was gone into by another learned Judge in W.P. 15800 (W) of 2009 along with other matters. His Lordship vide judgment and order dated September 28, 2009 passed an interim order to the effect that the respondents would be restrained from cancelling the selection process initiated in 2006 under the unamended Rules for the post of Primary School Teachers and from filling up the vacancies for which the selection process was initiated in 2006. An appeal was preferred. The Division Bench vide judgment and order dated September 29, 2011 in M.A.T. 237 of 2010 observed that the decision in Tanmay Ramaya (Supra) was in effect over-ruled by the decision of a Full Bench of this Court in the case of Rabindranath Mahata Vs. State of West Bengal & Ors. reported in 2005 (2) CLJ (Cal) 161, wherein the Full Bench of this Court held that the decision to uphold the selection process considering only sponsored candidates through Employment Exchange was 3 erroneous. In view of the decision of the Apex Court in the Case of Excise Superintendent (Malkapatnam) Vs. KBN Visweshwara Rao, reported in (1996) 6 SCC 216, the Division Bench ultimately held that the State should go for a wide publicity in the selection process clubbing 2006 to 2009 vacancies and consider all eligible candidates. The Division Bench observed as follows :-
"We therefore dispose of the appeal directing the Primary School Council and State concerned that if the posts/vacancies of which arose in 2009 are not filled up as yet or for that manner after having clubbed in 2006 and 2009 if all the vacancies are not filled up in terms of the order of the learned Single Judge the performance of each of the appellants before us should be considered in the selection process to fill up left over vacancies which arose subsequent to the year 2006 or 2006 year itself."
We have heard Mr. Sailaja Nanda Bhattacharjee, learned Counsel appearing for the State.
We are of the view that the decision of the learned Single Judge impugned herein is not in conflict with the other decision referred to above including the decision of the Division Bench in M.A.T. 237 of 2010. The learned Single Judge held that the petitioner was not entitled to any special preference through Court's sponsoring. That direction was apt. In this regard, we may refer to another Division Bench decision in the case of Gaya Nath Rajbangshi Vs. State of West Bengal & Ors., reported in 2008 (2) CHN 879 (Cal), wherein Court's sponsoring of candidate was deprecated by a Division Bench. In the case of Rabindranath Mahata (Supra), the Full Bench relied upon the decision in the case of Excise Superintendent (Malkapatnam) (Supra), wherein the Apex Court observed that in case of State appointment, wide publicity must be made. The Division Bench decision in M.A.T. 237 of 2010 also observed so. Hence, the Primary School Council should follow such direction and in such process all eligible candidates should be allowed to participate in the selection process. If the appellant is otherwise entitled to, he could apply for the 4 same. He cannot get any special privilege by Court's sponsoring. The learned Single Judge relied on the Recruitment Rule that provided for consideration of the sponsored candidates only. Hence, there was no scope for giving any special privilege to the sponsored candidate of the Court. The Division Bench in M.A.T. 237 of 2010 relying on the Apex Court decision in the case of Excise Superintendent (Malkapatnam) spoke about the wide publicity and consideration of all eligible candidates. Hence, in such view of the matter, we do not find any scope to interfere with the decision of the learned Single Judge based on Tanmoy Ramaya (Supra) that was not formally overruled.
We do not find any scope to interfere with the said decision. We only observe that in case the Recruitment Process is commenced by following the observation of the Division Bench in the case of M.A.T. 237 of 2010, all eligible candidates would be at liberty to participate including the present appellant, if he is so entitled in law.
We abundantly make it clear that the appellant is not entitled to any special privilege through Court's sponsoring.
With these observations, the appeals along with the applications are disposed of without any order as to costs.
Urgent xerox certified copy of this order, if applied for, be given to the parties, on priority basis.
( Banerjee, J.) ( Soumen Sen, J.) akb