Calcutta High Court (Appellete Side)
Swapan Kumar Sarkar & Ors vs The State Of West Bengal & Ors on 14 July, 2010
Author: Biswanath Somadder
Bench: Biswanath Somadder
1 4.7.2010
.
ap W.P. 23768 (W) of 2007.
Swapan Kumar Sarkar & Ors.
Vs.
The State of West Bengal & Ors.
Mr. Manuwar Ali
... For the petitioners.
Mrs. Santi Das
... For the Council.
The writ petitioners, eleven in number, approached this Court initially on 1st November, 2007, and submitted that their names were not sent by the Employment Exchange, despite having all requisite qualifications, for the post of assistant primary teachers in the District Primary School Council, Murshidabad. On the basis of such submission, an ad interim order was passed on that day, whereby the writ petitioners were permitted, inter alia, to participate in the selection process along with the candidates sponsored by the Employment Exchange. It was, however, observed by the Court that upon preparation of the panel if it was found that the petitioners had secured place which brought them within the zone of consideration for appointment, they were not to be appointed without prior leave of Court. The Court had further specifically held that no equity would be created in favour of the writ petitioners by the said ad interim order dated 1st November, 2007, or by their participation in the selection process or their selection, if at all. It was further observed that in the event the petitioners failed to secure place within the zone of consideration, the concerned officer and the authority were to proceed with the selection process and appoint suitable candidates in accordance with law. Directions for filing of affidavits were given by the Court and the order was also made without prejudice to the 2 State's objection that individual writ petitions should have been filed by the several petitioners.
Subsequently, the matter came up for further consideration before Tapen Sen, J, on 1st March, 2010, at the instance of the learned counsel appearing on behalf of the writ petitioners. On that day, the writ petition was disposed of by the Court with a direction upon the State to publish the results strictly in accordance with law.
Consequently, on 18th March, 2010, at the instance of the learned counsel appearing on behalf of the District Primary School Council, Murshidabad, the order dated 1st March, 2010, was recalled by Tapen Sen, J, and it was further observed that as a consequence, the said order dated 1st March, 2010, would be deemed to have become non-operative.
Now the writ petition comes up for final disposal.
The learned counsel appearing on behalf of the writ petitioners submits that the petitioners only want to know their result and nothing more. By knowing the result, they would be able to improve their performance for a future examination.
On the other hand, the learned counsel appearing on behalf of the District Primary School Council, Murshidabad, invites this Court's attention to an order passed by a Division Bench of this Court presided over by the Hon'ble the Chief Justice on 15th January, 2010 in M.A.T. 33 of 2010 (Sima Mondal & Ors. vs. State of West Bengal & Ors.), wherein the Division Bench took into consideration an earlier order passed by another Division Bench of this Court, reported in (2008) 3 CLT 205 (HC) (Tanmoy Ramaya Lahiri & Ors. vs. The State of West Bengal & Others). She submits that in Tanmoy Ramaya Lahiri (supra) the Court had upheld the Constitutional validity of Rule 8 of the West Bengal Primary School Teachers Recruitment Rules, 2001, and had further held 3 that the writ petitioners were not entitled to participate in the selection process, which was confined only to the Employment Exchange sponsored candidates. She submits that this being the position in law, the writ petitioners did not even have the right to participate in the selection process and, as such, there is no question of declaration of their result by the Council. She further submits that in the ad interim order dated 1st November, 2007, the Court had made it clear that no equity would be created in favour of the petitioners by the said order or by their participation in the selection process. In such circumstances, she submits that the writ petition ought to be dismissed.
Having heard the learned counsel for the parties and upon perusing the instant application and the affidavits filed in connection thereto, it appears beyond any shadow of doubt that the recruitment process for the purpose of recruiting primary school teachers in the State of West Bengal are governed by the West Bengal Primary School Teachers Recruitment Rules, 2001. Rule 8 of the aforesaid Rules provides as follows:-
"Calling for the names from the Employment Exchange. - (1) the number of vacancies as determined under rule 4, except in case the vacancies mentioned in rule 14 and the vacancies to be filled by inter-council transfer under the provisions of sub-section (k) of section 19 of the Act, shall be intimated by the Council to the concerned Employment Exchange. For the purpose of preparation of panel for eligible candidates, the Employment Exchange shall be requested to send names of candidates "1:10 basis" who have requisite qualifications prescribed under sub-rule (2) of rule 6.
Provided that in case of non-availability of sufficient number of candidates belonging to the schedules castes, the schedules tribes, other backward classes, 4 exempted category, ex-servicemen and physically handicapped persons in the Employment Exchange of the concerned revenue district, a reference shall be made by the Council to the Special Employment Exchange, exempted category cell or the like at the State level for sending further names of candidates of respective categories.
(2) The letter to the employment exchange mentioned in sub-rule (1) shall contain, among other matters. -
(a) the required minimum qualifications of candidates: and
(b) the reservation quota for candidates belonging to the Scheduled Castes, Scheduled Tribes, Other Backward Classes, Exempted Category, Ex- servicemen and for physically handicapped candidates, maintaining the existing reservation rules as framed by the competent authority, after deducting 10% from the total vacancies for appointment on compassionate ground, with relaxation of upper age limit as admissible under Government orders; and
(c) the number of vacancies to be filled up.
(3) vacancies existing on date plus vacancies anticipated to arise against sanctioned strength, in course of next twelve months may be taken up as total vacancies while sending requisition to the Employment Exchange."
The scheme of the above quoted Rule makes it clear that the selection process is confined only to candidates sponsored by the Employment Exchange and as such the writ petitioners were not even entitled to participate in the selection process in accordance with the said Rule. The Division Bench of this Court in Tanmoy Ramaya Lahiri (supra) has also 5 upheld the Constitutional validity of Rule 8. The question of declaration of result of the writ petitioners, therefore, cannot arise, since the writ petitioners did not even have the right to participate in the selection process. The seemingly innocuous prayer of the learned counsel for the writ petitioners that by knowing their result, the writ petitioners would be able to improve their performance in a future examination, is also without any basis, as the writ petitioners cannot even sit in a future examination, in view of Rule 8 of the West Bengal Primary Teachers Recruitment Rules, 2001, which only allows candidates sponsored by the employment exchange to participate in the selection process.
For reasons stated above, the writ petition is liable to the dismissed and is hereby dismissed.
Urgent photostat certified copy of this order, if applied for, be given to the learned advocate for the parties.
(Biswanath Somadder, J.) 6 7 8