Calcutta High Court (Appellete Side)
Barnana Bhattacharjee vs The State Of West Bengal & Ors on 18 June, 2019
Author: Samapti Chatterjee
Bench: Samapti Chatterjee
1
BR 18.6.2019
1
W.P. 2321 (W) of 2019
Barnana Bhattacharjee
-vs-
The State of West Bengal & Ors.
Mr. Subir Sanyal ,
Mr. Debasish Mukhopadhyay,
Ms. Jeenia Rudra,
Ms. Madhusri Dutta Majumdar
... for the Petitioner
Mr. Pulak Ranjan Mandal, Sr. Advocate
Ms. Bandana Das
.... For the W. B. College Service
Commission
Mr. Swapan Dutta,
Mr. Suhrid Sur .... For the State
Mr. Samiran Mandal,
Mr. Nitish Samanta .... For the College
Despite direction for filing affidavit, no affidavit
has been filed by the respondent authorities. This
matter had been heard for last two days.
Petitioner has filed the present writ petition to accord approval of the appointment of the petitioner and fix pay of the petitioner as per the prescribed scale of pay and thereafter release the arrear salaries on and from 16th December, 2016.
Mr. Sanyal, learned advocate appearing for the petitioner submits in response to an advertisement for Assistant Professor in Political Science in respect to the Mekliganj College under the North Bengal University petitioner applied through online. Since the petitioner was a successful candidate, therefore, petitioner was recommended by the College Service Commission on 16th December, 2016 for the post of Assistant Professor in Political Science under general 2 category candidate in Mekliganj College. Accordingly, letter of appointment was issued on 30th November, 2016 by the Mekliganj College. Thereafter petitioner joined the said college on 16th December, 2016. Since the authority failed to disburse the petitioner's salary from the date of his joining, therefore without finding any alternative, the petitioner made a representation before the President, Governing Body of Mekliganj College on 25th November, 2017. Unfortunately the petitioner's representation was answered by the college authority stating, inter alia, that the DPI raised objection against that appointment as the said appointment is violative of the existing roster since the post no. 12 is reserved for PH category. Unfortunately the petitioner has been given appointment against the post no. 12 though she is a general caste category candidate. Mr. Sanyal further submits that there is a provision to de-reserve the post thereby reserving the next post in the roster for the PH category. In support of his contention Mr. Sanyal draws the Court's attention at page 33 where the Government has de-reserved the post no. 12 subsequently reserved the post no. 14 for the PH category vide an order dated 5th June, 2011 in respect of some other candidate. Mr. Sanyal also draws the Court's attention to the Section 34 sub-section 2 of Rights of Persons with Disabilities Act, 2016. Section 34 sub-section 2 is quoted below:
" Section 34( 2 )- Where in any recruitment year any vacancy cannot be 3 filled up due to non-availability of a
suitable person with benchmark disability or for any other sufficient reasons, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with benchmark disability is not available , it may first be filled by interchange among the five categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability:
PROVIDED that if the nature of vacancies is an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the five categories with the prior approval of the appropriate Government." Therefore, in conclusion Mr. Sanyal submits Court should direct the State Authority to take steps to de-reserve the post no. 12 for general caste thereby reserving the post no. 14 for PH category.
Per contra, Mr. Dutta, learned Senior advocate appearing for the State submits that it is not a bona fide mistake on the part of the college authority. The college authority knowing fully well that the post no. 12 is reserved for PH category has recommend the post no. 12 as general category to the College Service 4 Commission. Accordingly, the College Service Commission recommended the petitioner's name as general candidate for the said post. Mr. Dutta further contends repeatedly the college authority was informed by the Department of Women and Child Development and Social Welfare to explain in writing why the post no. 12 has been referred as general caste, though admittedly as per roster the post no. 12 is reserved for PH category. Therefore, in conclusion Mr. Dutta submits that Court should not allow the college authority to escape from their liabilities.
Mr. Mondal, learned advocate submits that by the bona fide mistake this post no. 12 has been considered by the college authority as unreserved category, therefore, petitioner's name was forwarded as general caste category for the said post. Mr. Mondal further submits though the college authority informed the State that it was a bona fide mistake inadvertently done by the college authority. Mr. Mondal also draws the Court's attention at page 31 wherefrom it reveals as follows :
Government of West Bengal Department of Women & Child Development and Social Welfare Bikash Bhavan, North Block, 10th floor, Salt Lake City,Kolkata- 700 091 Memo No. 3139-SW/O/ID-57/18 Dated, Kolkata, the 21st June, 2018 From : Deputy Secretary to the Government of West Bengal To : The Teacher -in-Charge Mekliganj College 5 P.O. Mekliganj Dist.-Cooch Bihar Pin-735304 Sub: Prayer for De-reservation of Roster point no. 12 (Unreserved -PwD) and reservation of No. 14 (Unreserved ) for Pwd Ref: Your letter No. S/121/MC/17 dated 23.11.2017 Sir, I am directed to request you to dispose off the matter in connection with the subject mentioned under reference within the purview of Notification No. 50-Emp/1M-25/98 dtd. 01.03.2011 and in the light of sec. 33 and 36 of the PwD Act, 1995 read with sec.
34(2) of the Rights of the Persons with Disabilities Act, 2016.
I am also directed to request you to follow the Rights of the Persons with Disabilities Act, 2016 for next appointment.
Yours faithfully Sd/-
Deputy Secretary"
Before parting with his submission, Mr. Mondal submits since there is a provision under Sections 33 and 36 of the PwD Act, 1995 and also sub-section 2 of Section 34 of the Rights of Persons with Disabilities Act, 2016 the post can be de-reserved by reserving the next post. Furthermore, since by the letter dated 21st June, 2018 the teacher-in-charge has been directed to take steps on the basis of the Sections 33 and 36 of the PwD Act, 1995 as well as Section 34 ( 2 ) of the Rights of Persons with Disabilities Act, 2016. Therefore, Court may direct the State Authority to de- reserve the post no. 12 thereby reserving the post no. 14 for the PH category.
Mr. Mondal, learned Senior Advocate appearing for the College Service Commission submits since the college has sent the petitioner's name under general caste category, therefore, petitioner's name 6 has been recommended.
Considering the rival submissions advanced by the learned advocate for the parties and after perusing the records, I find that in response to the advertisement the petitioner applied through online for the post of Assistant Professor in Political Science in Mekliganj College under North Bengal University. Since the petitioner was selected, therefore, petitioner was offered with appointment letter. Accordingly , petitioner joined the said college on 16th December, 2016. Since then the petitioner has been performing her duties without getting any salaries. I also cannot ignore the fact that in some identical cases the Government has also de-reserved the post no. 12 as general caste category thereby reserving the post no. 14 as PH Category vide its letter dated 5th June, 2011. Not only that by the letter dated 21st June, 2018 the Deputy Secretary of the Department of Women and Child Development and Social Welfare directed the Teacher-in-Charge of the Mekliganj College to take steps in the light of the Sections 33 and 36 of the PwD Act, 1995 as well as Section 34 (2) of the Rights of Persons with Disabilities Act, 2016.
Considering the above observations, I direct the State Authorities to take steps for de-reserving the post no. 12 for general category thereby reserving the post no. 14 for PH category. Thereafter approving the petitioner's appointment to the post of Assistant Professor in political science in respect of Mekliganj College. Furthermore, respondent authorities are 7 directed to take steps for fixing the petitioner's pay as per prescribed scale of pay and thereafter release the current salary as well as arrear salaries with effect from 16th December, 2016. Entire exercise shall be completed within eight weeks.
With this direction the writ petition is disposed of.
No order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the learned advocate for the parties on usual undertakings.
( Samapti Chatterjee, J. )