Calcutta High Court (Appellete Side)
Smt. Shrabani Mondal (Pal) vs The State Of West Bengal & Ors on 7 January, 2011
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
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Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
Appellate/Revisional/Civil Jurisdiction
Present:
The Hon'ble Mr. Justice Bhaskar Bhattacharya
And
The Hon'ble Mr. Justice Sambuddha Chakrabarti
M.A.T. No. 1179 of 2010
With
C.A.N. 7949 of 2010
Smt. Shrabani Mondal (Pal)
Versus
The State of West Bengal & Ors.
For the Appellant: Mr. Kamalesh Bhattacharya,
Mr. Tarun Kumar Das.
For the Council: Mr. Subir Sanyal,
Mrs. Sumita Sen.
For the State: Mr. Tapabrata Chakraborty,
Mr. Kumaresh Dalal.
Heard on: 06.12.2010.
Judgment on: January 7, 2011.
Bhaskar Bhattacharya, J.:
This Mandamus-Appeal is at the instance of an unsuccessful writ- petitioner and is directed against an order dated 11th August, 2010 passed by a learned Single Judge of this Court by which His Lordship dismissed the writ- 2 application filed by the appellant thereby holding that the writ-petitioner was not entitled to get any relief as she had no requisite qualification of being empanelled as a candidate under the 'exempted category' because the existing Rules do not prescribe that a former census worker for the year 2001 should come under the said category.
Being dissatisfied, the writ-petitioner has come up with the present mandamus appeal.
The appellant before us filed a writ-application, being W.P. No.15405 (W) of 2010, out of which the present Mandamus-Appeal arises, thereby praying for a mandamus commanding the respondents to show cause as to why the result of the writ-petitioner as a successful candidate in the exempted category should not be published, for issue of appointment letter in her favour for the appointment to the post of a primary teacher in any primary school under the control of the Bribhum District Primary School Council on the ground that the selection committee after scrutiny of the application, the academic testimonials as well as the certificate issued by the Block Development Officer concerned certifying successful participation of the writ-petitioner in the Census Operation, 2001, prepared a category-wise list of the candidates on the basis of the marks obtained by them in academic result according to merit by moving in the descending order and thereafter, prepared a merit list of candidates to be called for a written test in the ratio of 1:15 of the total number of vacancies to be filled and lists had been prepared for candidates belonging to the general, scheduled 3 castes, scheduled tribes, and other backward classes, ex-servicemen and other exempted categories as specified, and following such procedure, the writ- petitioner was called for the written test as a candidate of the exempted category.
According to the writ-petitioner, she was shortlisted for the written test and viva voce/aptitude test as a candidate of the exempted category and on the basis of her marks obtained in such tests, she was selected for the appointment to the post of primary teacher under the exempted category and as such, she should be empanelled as successful candidate for appointment.
The said application was opposed by the respondents thereby contending that a former census worker for the year 2001 could not come within the purview of "other exempted category" and consequently, the writ-petitioner was not eligible.
The Respondents contended that from the notification issued by the Labour Department, Government of West Bengal, it would appear that the election job workers/enumerators who were engaged in the job during the revision/preparation of electoral roles by the Home (C&E) Department between 1979 and 1st June, 2000 and who had put in a total or at least 240 days' work during the said period, are treated as persons belonging to the other exempted category.
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As indicated earlier, the learned Single Judge had turned down the prayer of the writ-petitioner by accepting the submissions of the respondents.
Therefore, the only question that arises for determination in this appeal is whether the learned Single Judge was justified in dismissing the writ-application.
Mr. Bhattacharya, the learned counsel appearing on behalf of the appellant, contended that not only the appellant/petitioner but also a large number of candidates having certificate of participation in the Census Operation, 2001 applied for the posts of primary teachers on the basis of advertisement inviting applications from the eligible candidates for the respective categories including the vacancies earmarked for the general exempted category candidates without making any eligibility criteria in the advertisement and/or defining the word 'exempted category' either in the Rules, 2001, as amended on 20th May 2009 and 27th July 2009 and that the West Bengal Regulation of Recruitment in State Government Establishment and Establishments of Public Undertakings, Statutory Bodies, Government Companies and Local Authorities Act, 1999, (hereinafter referred to as the West Bengal Act of 1999) is not applicable to the appointment in question as the provisions of Reservation and Source of candidates from the Director of Employment Exchange, E.C. Cell, Kolkata no longer exists in the amended Rules, 2001, as amended in 2009. According to Mr. Bhattacharya, it would appear from the Memo No.1108-SE (S) dated 12th August, 2002, issued by the Education Department, that in the process of selection from the candidates for appointment to the posts of teachers, the School Service 5 Commission made it clear that reservation for exempted category under the Act of 1999 would not be applicable in the selection process of teachers under the West Bengal School Service Commission Act, 1997, as by the said Act of 1997, the vacancies are required to be filled up by making advertisement in newspapers inviting applications from the eligible candidates from the different categories including exempted category as per the 100 Point roster. Mr. Bhattacharya submits that in the process of selection, with which we are concerned, the persons, the particulars whereof are given below, applied on the basis of advertisement and were allowed to appear in the written test without any order from any Court and on being qualified in the written test, they were allowed to appear in the interview/aptitude test and all of them had been selected but their results were also withheld and challenging such withholding of results, more than 20 candidates of such exempted category of the district of Birbhum filed the following writ-petitions which are pending and appearing in the List of the Hon'ble Justice Biswanath Somadder dated 6th December, 2010 against the following Item Nos., being Case Nos. :-
Srl. Item Case No. Cause Title
No. No.
1. 167 W.P. 15406 (W) of 2010 Sumita Nandi (Mondal)-Vs-State
2. 168 W.P. 15407 (W) of 2010 Rubi Rani Shil-Vs- State
3. 169 W.P. 15408 (W) of 2010 Aparna Dey (Mondal)-Vs-State
4. 170 W.P. 15409 (W) of 2010 Mitali Bandopadhyay -Vs- State
5. 171 W.P. 15410 (W) of 2010 Aparna Doy -Vs- State
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6. 172 W.P. 15411 (W) of 2010 Kanika Sen -Vs- State
7. 173 W.P. 15412 (W) of 2010 Santana Mondal (Pal) -Vs-State
8. 174 W.P. 15413 (W) of 2010 Lakshmi Roy -Vs- State
9 175 W.P. 15414 (W) of 2010 Mitali Garai -Vs- State
10 176 W.P. 15415 (W) of 2010 Shyamali Pal -Vs- State
11 227 W.P. 15446 (W) of 2010 Chinta Acharya -Vs- State
12 1510 W.P. 23882 (W) of 2010 Jharna Bagdi -Vs- State
13 1511 W.P. 23884 (W) of 2010 Chinta Mondal -Vs- State
14 1512 W.P. 23886 (W) of 2010 Alo Rani Mondal -Vs- State
15 1513 W.P. 23887 (W) of 2010 Madhabi Mondal -Vs- State
16 1514 W.P. 23888 (W) of 2010 Santwana Mondal -Vs- State
17 1515 W.P. 23890 (W) of 2010 Nayantara Mondal -Vs- State
18 1516 W.P. 23892 (W) of 2010 Tripti Chatterjee -Vs-State
19 1518 W.P. 23894 (W) of 2010 Madhuri Bagdi -Vs- State
Mr. Bhattacharya contends that it is, therefore, not the case where by virtue of the order of this Court the appellant was allowed to appear at the written test and interview/aptitude test under compulsion but in this case, the council of their own by following the Rules, after shortlisting, called the appellant for written test after being satisfied with the testimonials submitted by the appellant.
Mr. Bhattacharya further submits that even if the said Notification dated 21st August 2002 is accepted for the sake of argument to be applicable, there is 7 no scope of considering the candidature of any person who has not registered himself with the Director of Employment Exchange as land-loser, Census Worker, Election Job Worker and Enumerator as one belonging to exempted category. But it appears that the concerned Council offered appointment to a large number of candidates as exempted category candidates who are land- losers, though they did not register themselves as persons of exempted category with the Director of Employment Exchange, E.C. Cell, Kolkata. According to Mr. Bhattacharya, thus, there is gross discrimination against the candidates under the category of the Census Worker, 2001 by not giving the benefit of exempted category even after the selection and empanelment in the panel prepared for appointment by withholding their results which amounts to violation of the Fundamental Rights guaranteed under Articles 14 and 16 of the Constitution of India.
Mr. Subir Sanyal, the learned counsel appearing on behalf of the Council and Mrs. Sen appearing on behalf of the State have, on the other hand, opposed the aforesaid contention and according to them, pursuant to the advertisement published in newspaper on August 30, 2009 the writ-petitioner, although filed an application in the prescribed form for being considered for appointment to the post of Assistant Teacher in primary school under the Council as a general exempted category candidate, the same could not be favoured by the Council as the writ-petitioner in accordance with the notification and orders of the Government was not found to be an ex-census candidate. The writ-petitioner, however, moved a writ-application being W.P. No.8260 (W) of 10 before this Court 8 on April 23, 2010 and this Court by an order directed the Council to issue admit card in her favour and to allow her to appear in the written test to be held on April 26, 2010. Pursuant to the said order, the writ-petitioner was allowed to appear in the written test and subsequently, in the oral interview on the basis of her marks in the written test and she secured 19.96 marks. The writ-petitioner came within the zone of consideration for empanelment against the declared vacancies but she could not be considered for appointment as she could not satisfy that she was a candidate of the exempted category.
The learned counsel for the Respondents pointed out that the appellant produced the certificate dated May 13, 2010 issued by the Block Development Officer, Mayureswar-II Development Block, certifying that she had performed her duties as enumerator in Census Operation, 2001 of the said Block for the First Phase of Census, 2001 successfully but the aforesaid certificate produced by her could not satisfy the condition of para 5 of the notification No.301-Emp/1M- 10/2000 dated August 21, 2002 issued by the Government in exercise of power conferred under sub-section (a) of Section 3 of the West Bengal Act of 1999. By the said notification, the Government has declared that only the election job workers and enumerators who were engaged in the job during the revision/preparation of electoral rolls by the Home (C&E) Department between 1979 and 1st June, 2000 and who had put in at least 240 days' work during the said period are entitled to be declared as ex-census workers. As the writ- petitioner was engaged in connection with the Census Operation, 2001 and 9 worked as such for the first phase only for 30 days, she could not satisfy the condition of working for 240 days during his engagement as enumerator and that too, not in connection with the Census Operation, 1981 or 1991.
According to the learned counsel for the Respondents, after the aforesaid notification dated August 21, 2002 no other notification or order has been issued by the Government extending the zone of consideration of the former census workers to any other census operation after the Census Operation, 1991 and accordingly, the Council had not considered the candidature of any person who was engaged in the census operation after the year 1991 for appointment.
After hearing the learned counsel for the parties and after going through the notification issued by the Labour Department, Government of West Bengal, published on August 21, 2002, we find that in exercise of power conferred by sub-section (a) of Section 3 of West Bengal Act of 1999, the Governor was pleased to declare the following categories of persons as belonging to exempted category for the purpose of the aforesaid Act and among themselves, item No.4 was ex- census employees as defined below:
a) Ex-Census employees who worked in connection with 1981 Census Operation and who had put in at least six months' continuous service under the Director of Census Operations, West Bengal.
b) Ex-Census Enumerators/Supervisions of 1981 Census Operations and 1991 Census Operations holding authentic "Experience 10 Certificate" issued by the Directorate of Census Operations, West Bengal or any other competent authority duly authorized by the said Directorate.
c) Persons holding 'Discharge Certificate' only shall not be considered for inclusion in the "Exempted Categories" since certificates granted by certain officials in some cases do not conform to the census frame-work communicated by the Directorate of Census Operation, West Bengal.
Therefore, the appellant, on the face of the above definition, does not come within the exempted category.
Mr. Bhattacharya learned counsel for the appellant, however, in this connection, relied upon a Division Bench decision of this Court in the case of Directorate of Employment, Government of West Bengal vs. Nadia District School Council & Ors., whereby a Division Bench of this Court held that Section 2(II) of Act of 1999 does not cover the West Bengal Primary Education Council which is successor-in-office of the board and as such, the said Act of 1999 has no manner of application in regard to the employment under the Council. Mr. Bhattacharya submits that in view of the aforesaid decision of the Division Bench, the Government or the Council cannot take recourse to said notification dated August 21, 2002 issued in exercise of the power conferred under the Act of 1999 for excluding the candidature of the appellant under exempted category. 11
Therefore, the next question that falls for determination before us is whether the West Bengal Act of 1999, by virtue of which the notification dated August 21, 2002 was issued, is applicable in case of the employment of the Primary teacher under the District Primary School council as held by the above decision of the Division Bench.
The preamble of the West Bengal Act of 1999 is quoted below:
"An Act to provide for regulation of recruitment in State Government establishments and establishments of public undertakings, statutory bodies, Government companies and local authorities in West Bengal. WHEAREAS it is expedient to provide for regulation of recruitment in State Government establishments and establishments of public undertakings, statutory bodies, Government companies and local authorities in West Bengal with a view to providing equal opportunity to all citizens in matters relating to employment or appointment to any post in such establishment;"
In this connection, the following definitions given in the Act of 1999 are relevant and are quoted below:
Section 2(4) -"Establishment" means-
(a) any office, or
(b) any place where any industry, trade, business or occupation is carried on;
Section 2(5) -"Exempted" category means the category of persons seeking any job, declared by the State Government to be exempted category under Section 3;
Section 2(7) - "Local authority" has the same meaning as in Clause ( ) of Section of the Bengal General Clauses Act, 1899.
Section 2(9) - "Public undertaking" means any industry, trade, business or occupation owned, controlled or managed by-
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(a) the State Government or any department of the State Government; or
(b) a Government company; or
(c) A corporation established by or under a Central or State Act which is owned, controlled or managed by the State Government and in which not less than fifty-one per cent of the paid up share capital is held by the State Government;
Section 2(11)- "Statutory body" means any board, corporation, or society, not being a local authority, set up under any law for the time being in force and the affairs of which are controlled by the State Government. Therefore, in order to apply the provisions of the West Bengal Act of 1999 to the employment under the District Primary School Council it must be established that the District Primary School Council should be either an establishment of the State Government or establishments of public undertakings or statutory bodies or Government companies or local authorities in West Bengal.
According to Section 2 (xix) of the West Bengal Primary Education Act, 1973 as amended by the West Bengal Primary Education (Amendment) Act, 1999 (West Bengal Act X of 1999), "Primary School Council" means a District Primary School Council established under section 37, and includes the Siliguri Primary School Council referred to in sub-section (2A) of that section and the Calcutta Primary School Council referred to in section 38.
Part III of the West Bengal Primary Education Act, 1973 deals with the constitution, power, function, source of fund, election etc. of the Primary School 13 councils and such councils are the statutory bodies created under the said Act of 1973.
It further appears that in exercise of the power conferred under sub- section (1) and clause (k) of sub-section (2) of Section 106, read with clause (k) of sub-section (1) of Section 60 of the West Bengal Primary Education Act, 1973, the Governor of West Bengal was pleased to make the West Bengal Primary School Teachers Recruitment Rules, 2001 which gives the mode of recruitment of the primary teachers in different Primary School Councils.
Sub-rule (d) of Rule 2 of the aforesaid Rule defines "Board" as follows:
"Board means the West Bengal Board of Primary Education established under the Act."
Similarly, sub-rule (e) of Rule 2 defines council as follows:
"Council means a Primary School Council established under the Act."
In the case of Director of Employment, Government of West Bengal vs. Nadia District School Council and others (supra), upon which strong reliance has been placed by Mr. Bhattacharya, the question for decision, as it appears from paragraph 1 of the judgment, was the applicability of the law in the matter of ratio of sponsoring the number of candidates with regard to the number of vacancies. The learned Trial Judge held that the ratio should be 10:1 following 14 the Recruitment Rules of 2001. The appellant, on the other hand, contended that it should be 20:1 as provided in Section 10 of the Act of 1999.
The Division Bench turned down the contention of the appellant by giving the following reasons:
"We have examined with our utmost attention the aforesaid aspect. We are of the view that section 2(11) of the said Act of 1999 does not cover this particular body viz. the West Bengal Primary Education Council, which is the successor-in-office of the Board.
In this case, Board has been set up by and under special statute and is not a Corporation or Society and was not set up by a statute. According to us, Primary School Council which the successor -in- office of the Board is a statutory body and it has been created under the statute. Under such circumstances, the word "Board" used in section 2(11) of the said Act of 1999 shall be construed to be brought into existence under any law and that is why it has been mentioned specifically with the words "not being a local authority, set up under any law for the time being in force and the affairs fo which are controlled by the State Government".
We therefore hold that the aforesaid Act of 1999 has no manner of application in this case. As such, we are unable to accept the submission of Mr. Chakraborty.
That apart, we find another logic that Primary School Council has been set up by a law under the rule making process. The method of sponsorship has been provided by special rule. Therefore, this has been meant for specific and special purpose which can be termed to be a special statute. The Act of 1999 has been brought into existence for regulating the recruitment method for its general application but not for any special application under the cannons of interpretation. The provisions of a special statute always override the provisions of a general legislature."
15Therefore, in the above case before the Division Bench, there was conflict between the Act of 1999 and the Recruitment Rules regarding ratio of candidates to be called with reference to the vacant posts. In the case before us, the Recruitment Rules are silent as regards the definition of the "exempted category"
which is, however, provided in the Act of 1999. Therefore, the decision in that case does not apply to the point involved before us. We, however, with great respect to the Hon'ble Judges of the said Division Bench, are unable to subscribe the view taken by Their Lordships that the West Bengal Act of 1999 is not applicable to the West Bengal Primary Education Council which, according to Their Lordships, is not a corporation or society and that the same was not set up by the statute. We have already pointed out that the District Primary School Councils are created by the Statute and it appears that it satisfies the ingredients of becoming a "corporation" and that such "corporation" is controlled by the State Government as it appears from the various provisions (Sections 91-107) of the West Bengal Primary Education Act, 1973. Therefore, the District Primary School Council comes within the purview of the "statutory body" within the meaning of the West Bengal Act of 1999. We are also unable to accept the view of the said Division Bench that the Council is the successor-in-office of the Board. Both the Board and the Council are the creatures of the same statute viz. West Bengal Primary Education Act, 1973 and, therefore, the latter is not the successor of the former.16
As pointed out by the Supreme Court in the case of S.S. Dhanoa vs. Municipal Corporation Delhi and others, reported in AIR 1981 SC 1395, the concept of a corporation can be defined thus:
"A corporation is an artificial being created by law having a legal entity entirely separate and distinct from the individuals who compose it with the capacity of continuous existence and succession, notwithstanding changes in its membership. In addition, it possesses the capacity as such legal entity of taking, holding and conveying property. entering into contracts, suing and being sued, and exercising such other powers and privileges as may be conferred on it by the law of its creation just as natural person may*. The following definition of corporation was given by Chief Justice Marshall in the celebrated Dartmouth College case (1816-19) 4 Wheat 518, 636. 4 L Ed 629 : * Corpus Juris Secundum, Vol. 18, p. 136, para 1, Words and Phrases, Permanent Edition, Vol. 9A, p. 420; Halsbury's Laws of England, 4th Edn., Vol. 9, p. 716 (para 1201) and p. 749 (para 1245); Jowitt's Dictionary of English Law, 2nd Edn., Vol. 1, p. 474 and Black's Law Dictionary) 5th Edn. P. 307 A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence. These are such as are supposed best calculated to effect the object for which it was created. Among the most important are immortality, and, if the expression may be allowed, individuality; properties, by which a perpetual succession of many persons are considered as the same, and may act as a single individual. They enable a corporation to manage its own affairs, and to hold property, without the perplexing intricacies, the hazardous and endless necessity, of perpetual conveyances for the purpose of transmitting it from hand to hand. It is chiefly for the purpose of clothing bodies of men, in succession, with those qualities 17 and capacities, that corporations were invented, and are in use. By these means, a perpetual succession of individuals are capable of acting for the promotion of the particular object, like one immortal being."
Applying the aforesaid tests to the case of a District Primary School Council, we are of the firm view that it is a corporation controlled by the State Government and thus, the West Bengal Act of 1999 applies to the recruitment of a primary teacher by such Council and in the absence of definition of the "exempted category" in the Recruitment Rules, the definition given in the West Bengal Act of 1999 would be applicable and the learned Single Judge was right in dismissing the writ-application.
Since we propose to take a view which is in conflict with the one taken by another Division Bench in the case of Director of Employment, Government of West Bengal vs. Nadia District School Council and others (supra), we refer the matter to the Hon'ble Chief Justice for constituting a larger bench for the purpose of deciding the following question:
"Whether the definition of "exempted category" as given in Section 2(5) of the West Bengal Regulation of Recruitment in State Government Establishments and Establishments of Public Undertakings, Statutory bodies and Government Companies and Local Authorities Act, 1999 applies to the process of recruitment of primary teachers under the West Bengal Primary Teachers Recruitment Rules, 2001 as amended up to date".18
Let the matter be placed before the Hon'ble Chief Justice for appropriate order.
(Bhaskar Bhattacharya, J.) I agree.
(Sambuddha Chakrabarti, J.)