Calcutta High Court (Appellete Side)
Hriday Kumar Paul & Ors vs The State Of West Bengal And Ors on 30 July, 2010
Author: I.P. Mukerji
Bench: I.P. Mukerji
1
In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
PRESENT:
The Hon'ble JUSTICE I.P. MUKERJI
W.P. NO.22462 (W) OF 2009
HRIDAY KUMAR PAUL & ORS.
Versus
THE STATE OF WEST BENGAL AND ORS.
For the petitioners : Mr. Jayanta Kumar Banerjee
Mr. Rathindra Nath Pal
For the State : Ms. Suchitra Saha
Ms. D. Ghosh
Heard on: 02.07.2010, 23.07.2010
Judgment on: 30.07.2010
I.P. MUKERJI, J.
This is a writ by candidates in the 2006 selection process for recruitment of primary school teachers in the District of Malda. Recruitment is made according to West Bengal Primary School Teachers Recruitment Rules, 2001. The eligibility for being appointed as a primary school teacher is completion of the age of 18 years by a candidate. But, the candidate should not exceed 40 2 years of age on 1st January of the year in which the requisition for sending names of candidates is made by the Primary School Council to the employment exchange. The educational qualification required is school final. This is prescribed by rule 6. The selection process in question is of 2006. Therefore, all the candidates should have been in the above age group as on 1st January 2006. It is submitted that there is some relaxation for Schedule Caste, Schedule Tribe and other backward class category. Under rule 8 the employment exchange is to send names of candidates who have the required qualification under rule 6. The number of vacancies is to be intimated to them by the Council. According to the writ petitioners, who are twenty in number, they fulfil the age requirement prescribed in rule 6. With the leave of the court they have filed a supplementary affidavit affirmed on 7th May 2010, where their date of birth, academic qualification and date of registration with the employment exchange together with other particulars are mentioned.
Rule 9 deals with the selection procedure. The total marks for the assessment of each candidate is 100, out of which 65 marks are allotted for academic qualification, 22 marks for training and 3 marks for co-curricular activities aggregating to 90 marks. The remaining 10 marks are for written test. Therefore, 65% of the marks are for academic qualification, which I have already said is school final qualification.
3The employment exchange was required to sponsor 10 candidates for one vacancy. All this was changed by a circular dated 3rd March 2006 of the West Bengal Labour Department to the Deputy Director of Employment, Midnapore. That circular stated that in stead of 1:10 ratio, the ratio would henceforth be 1:35. Therefore, for one vacancy thirty five names had to be sponsored by the employment exchange.
It appears that the circular dated 3rd March 2006 was published just before the requisition was made by the Primary School Council, Malda to the concerned employment exchange for sponsorship of names for the 2006 selection process. This writ was moved before my brother Dipankar Datta, J. on 23rd December 2009. It was moved in the presence of the learned counsel for the Council. No interim order was passed. Directions were made for filing of affidavits. No affidavit in opposition was filed by the respondents. Hence, the application was mentioned before me, for hearing, it without affidavits. Before proceeding to hear this application I directed by my orders dated 6th May 2010 and 18th June 2010, that the advocate-on-record for the petitioner should serve a notice upon all the respondents. I am satisfied that such notice was duly served. No affidavit-in- opposition has been filed by the respondents. In spite of notice the Primary School Council chooses not to put in an appearance. The state is represented by counsel, but such counsel is helpless in the absence of the Council. 4 To day at the time of hearing two substantial points were urged on behalf of the writ petitioners. The first is that, by amending the rules regarding the number of names to be sponsored for each vacancy, by increasing it to 35 from10, the field of competition has been increased, so that, if all other things are constant, thirty five candidates, instead of ten have to compete for one particular post. According to the said supplementary affidavit all these writ petitioners have been registered with the employment exchange for a very long time, the earliest being the 19th writ petitioner who was registered on 19th December 1977. The latest is the 6th writ petitioner registered on 19th November 1997. Therefore, the said writ petitioner who was registered earliest in point of time had been with the employment exchange for about thirty years during the start of the selection process; the latest for about ten years. It is contended by the writ petitioners that after such wait, increasing the field of competition in this way from 1:10 to 1:35 is quite arbitrary and discriminatory of them.
Further, the writ petitioner obtained their qualifying qualification several years ago. At that time the approach towards marking in the school final examination was different from now. Marks were less liberally awarded. Since 65% weightage is given to academic qualification, the writ petitioners were at a considerable disadvantage when the ratio was increased from 1:10 to 1:35, because when such a large number of candidates was sponsored by the employment exchange, younger candidates were likely to be selected. These younger candidates have obtained their qualification at a much later point of time than the writ petitioners 5 when the approach towards award of marks or qualification was more liberal than during the time of the older candidates.
For both the above reasons writ petitioners have suffered prejudice, it is submitted.
It is further submitted that 167 posts of primary school teachers in Malda are still vacant.
I need not mention that none of the writ petitioners was selected in the 2006 selection process.
In my opinion, both the grounds of the writ petitioners are justified. Increasing the ratio from 1:10 to 1:35 is certainly disadvantageous to older candidates and who have registered themselves earlier with the employment exchange. On the basis of their existing qualification they have to compete with younger candidates. There is much merit in the submission that the approach in awarding marks in recent years is much more liberal than it was earlier. Therefore, by increasing the ratio from 1:10 to 1:35 the older candidates are placed in a disadvantageous position in as much as they have to compete with a larger number of candidates, with, in all likelihood, a better qualification. Further, the change has been made just before the requisition for sending names 6 by the Council to the employment exchange, which is prejudicial to the writ petitioners.
In the circumstances, this writ application has to be allowed by quashing the circular dated 3rd March 2006 of the Government of West Bengal Labour Department as far as sending of names by employment exchange for recruitment of primary teachers is concerned. The Primary School Council will continue to ask the employment exchange to send names in the ratio 1:10 and the employment exchange will so send.
Since the selection process of 2006 is over I am not inclined to disturb that selection process. But, when the vacant 167 posts are desired to be filled up by the respondents the names of the petitioners should be treated as sent by the employment exchange for such selection. Therefore, for any subsequent selection process for the said posts the employment exchange should send 20 names less. Further, the writ petitioners are to be treated, for the purpose of their age as if they have been sponsored further to the 2006 requisition of the Primary School Council to the employment exchange, to send names. In other words, the writ petitioners have to fulfill the age criteria as on 1st January 2006, for the next recruitment process for primary teachers in Malda for the said 167 posts.
The writ application is allowed to the above extent.
7Urgent certified photocopy of this judgment and order, if applied for, to be provided upon complying with all formalities.
(I.P. MUKERJI, J.)