Calcutta High Court (Appellete Side)
Pg (Anisur Ali vs The State Of West Bengal & Ors.) on 13 March, 2020
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02 13.03.2020 W.P.S.T. 18 of 2019
pg (Anisur Ali vs. The State of West Bengal & Ors.)
Mr. Arjun Ray Mukherjee
Ms. Saheli Mukherjee..........for the petitioner
The unsuccessful original applicant in O.A.
1060 of 2014, on the file of the West Bengal
Administrative Tribunal (hereafter the 'tribunal'), is the
petitioner before us. The tribunal has dismissed the
original application by an order dated December 19, 2018
accepting the stand of the respondents in the original
application that the Group-D posts, which were being filled up and for which the petitioner was one of several aspirants, were not meant for Exempted Category (hereafter 'EC') candidates.
It appears that several vacancies in respect of Group-D posts were sought to be filled up by the Department of Irrigation and Waterways, Government of West Bengal in the year 2006. In connection with such process, names were requisitioned from the employment exchanges, which included names of candidates belonging to the EC [as defined in section 2(5) of the West Bengal Regulation of Recruitment in State Government Establishments and Establishments of Public 2 Undertakings, Statutory Bodies, Government Companies and Local Authorities Act, 1999 (hereafter the 'said Act')].
Upon the petitioner's name being sponsored, he participated in the selection process. The claim in the original application was that despite being selected and empanelled, the petitioner was not offered appointment although other empanelled candidates were appointed. In course of enquiry that the petitioner made, he came to learn of a decision taken by the respondents that the Group-D posts, which were sought to be filled up, were not meant for EC candidates and hence he was not eligible for consideation.
A challenge having been thrown before it, the tribunal accepted the stand of the respondents that the Group-D posts were meant for non-EC candidates. Such a stand could be traced to a memorandum dated July 07, 2009 issued by the Deputy Secretary to the Government of West Bengal, Irrigation and Waterways Department (at page 89 of the writ petition). The tribunal also accepted the stand of the respondents that requisition was made to the employment exchange for sponsoring of EC candidates by mistake.
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Mr. Ray Mukherjee, learned advocate appearing for the petitioner assails the order of the tribunal by referring to the provisions of the said Act as well as a notification dated August 02, 2001 (hereafter the 'said notification') issued by the Labour Department, Government of West Bengal providing for 100-point roster of vacancies. According to him, provisions have been made in the 100 point roster for appointment of candidates belonging to EC in line with the provisions of the said Act and, therefore, the tribunal fell in error in not examining the provisions of the said Act together with the said notification and in relying on the contents of memo dated July 07, 2009, as aforesaid.
Referring to section 2(4) of the said Act as well as notifications, which have been issued from time to time under section 3 thereof by the Principal Secretary to the Government of West Bengal, Labour Department including, inter alia, the said notification, it is his contention that the respondents could not have excluded EC candidates from the zone of consideration for appointment on posts under the Government and exclusion of the petitioner from the panel, after the panel was drawn up, is absolutely illegal and arbitrary. 4
We have recorded in our previous orders how hearing of this writ petition had to be adjourned from time to time to enable the respondents meet the points raised by Mr. Ray Mukherjee. We had even requested the learned Advocate General to assist us in reaching an appropriate decision in this writ petition. Unfortunately, neither does anyone appear for the respondents today nor has any accommodation been prayed. It is seen from the Monthly List for March, 2020 that advance publication of the day's sitting was made known to all concerned. Be that as it may, having regard to the caution sounded in the order dated August 26, 2019 that no further adjournment shall be granted, we are of the considered opinion that keeping the writ petition pending any further to hear the version of the respondents would not be in the best interest of justice.
Sections 2(4) and (5) of the said Act defines an 'establishment' and 'exempted category', respectively. It is quoted hereunder:
"(4) 'establishment' means⎯
(a) any office, or
(b) any place where any industry, trade, business or occupation is carried on;
(5) 'exempted category' means the category of persons seeking any job, declared by the State Government to be exempted category under section 3. 5
Section 3 of the said Act provides guidance as to who an EC candidate is. In pursuance thereof, several notifications were issued declaring the class/category of persons to be EC for the purpose of the said Act. That the petitioner belongs to EC is not disputed.
In view of such definition of 'establishment' coupled with provisions in sections 2(5) and 3 of the said Act and the notifications issued by the Labour Department including, inter alia, the said notification providing for the 100-point roster of vacancies for guidance of the appointing authorities, which necessarily includes the State Government and its offices, we have no manner of doubt that the decision of the Irrigation and Waterways Department to treat the relevant vacancies in respect of Group-D posts as meant for non-EC candidates was arrived at in complete ignorance of the provisions of the said Act and the said notification as well.
At page-22 of the affidavit-in-opposition of the respondents is an order dated November 29, 2006 issued by the Irrigation and Waterways Department with the approval of the Minister-in-Charge thereof. Paragraph 2 6 of the said order reads as follows:
"All Superintending Engineers of respective circles under I & W Directorate are requested to ensure sponsorship of eligible candidates for Group-D post from respective employment exchanges immediately and arrange for sending the sponsored names district wise to the relevant Sub-Committees strictly as per roster reservation."
(emphasis supplied) After the process of recruitment had commenced and panel drawn up, the respondents shifted their stand as would appear from paragraph 2 of the memo dated July 7, 2009, relied on by the tribunal, reading as follows:
********Furthermore, the vacancies of Group-'D' posts as mentioned in the Department G.O. No. 1355- IE dated 29.11.06 are meant for non-exempted category. As such, panels for Group-'D' posts, circle- wise are to be prepared as per 100-point roster in terms of Labour Department Circular No. 240-EMP dated 02.08.01."
The said memo does not expressly say that it was issued with the approval of the Minister-in-Charge of the relevant department. Even if it were, no reason has been assigned why EC candidates were not to be considered for recruitment to Group-D posts in the office of the Government. The explanation provided in the affidavit-in-opposition does not commend to be acceptable in the absence of any reason as to why the 7 vacancies, allegedly segregated, were not meant for EC candidates and/or why no process for such candidates was initiated separately, if indeed the pleaded case is to be believed. A mere assertion in this behalf, without anything more, would not be sufficient.
The tribunal ought not have approved the acts of the respondents contrary to law and thereby deprive the petitioner of a chance of public employment on the specious ground that names of EC candidates had been requisitioned from the employment exchange by mistake and that the vacancies in respect of the Group-D posts were not meant for EC candidates.
For the reasons aforesaid, we find no reason to uphold the order of the tribunal. The same is set aside. The writ petition stands allowed.
The respondents are directed to consider the candidature of the petitioner having regard to his position in the panel prior to the exclusion, which drove him to approach the tribunal with the original application.
In the event the respondents find that the petitioner was duly empanelled and would have been entitled to an appointment in his favour depending upon his merit position in such panel, if any of the vacancies 8 been kept reserved for EC candidates according to the 100-point roster, then notwithstanding that the petitioner is an EC candidate he shall be offered appointment without any delay but positively within a period of eight weeks from date of receipt of a copy of this order.
If there are other genuine reasons for which the petitioner is not so entitled, a reasoned order shall be passed and communicated to him forthwith.
It is made clear that relief granted hereinabove is restricted to the petitioner only.
It is also needless to observe that since the petitioner is yet to be appointed, we have not examined the other points raised by Mr. Ray Mukherjee regarding counting of his service from the date appointments were issued in favour of other empanelled candidates for seniority and retiral benefits and all such points are left open.
Urgent photostat certified copy of this order, if applied for, be furnished to the parties expeditiously. (SAUGATA BHATTACHARYYA, J.) (DIPANKAR DATTA, J.)