Calcutta High Court (Appellete Side)
Samik Nandy vs State Of West Bengal & Ors on 6 February, 2009
Author: Dipankar Datta
Bench: Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present : The Hon'ble Justice Dipankar Datta
W.P. No. 33 (W) of 2009
Samik Nandy
...Petitioner
Versus
State of West Bengal & ors.
...Respondents
Mr. Chandan Misra ...for the petitioner Mr. Amlan Jyoti Sengupta ...for the respondents 4 and 5 Heard on : 21.1.2009 Judgment on : 6.2.2009 The petitioner has graduated in Commerce in 2002. Before that, on qualifying in the Madhyamik Pariksha held in the year 1997, he enrolled his name in the local Employment Exchange. He claims to be the holder of a diploma in Professional Accounting and Computer Management. Despite enrolling his name with the Employment Exchange, it is claimed that the petitioner's name was never sponsored for consideration of his candidature for recruitment to any post commensurate with his qualification.
On or about 30.12.2008, the petitioner came to learn that the authorities of Howrah Siksha Sadan for Girls (hereafter the school) had initiated process for filling up a vacant post of Peon (Group D) by requisitioning names of eligible candidates from the local Employment Exchange and that 11.1.2009 had been fixed as the date of interview. He further came to learn that candidates other than those sponsored by Employment Exchange would not be allowed to attend such interview. The petitioner had met the Secretary of the Managing Committee of the School and its Headmistress and had requested them to allow him attend interview inasmuch as he possessed the requisite qualification and that his name had duly been registered with the Employment Exchange long ago. However, the authorities of the school expressed their inability to accede to the petitioner's prayer without sponsoring of his name by the Employment Exchange. Feeling aggrieved by the refusal of the school authorities to allow him attend interview scheduled on 11.1.2009, the petitioner approached the Court of Writ by filing the present petition seeking following relief :
"a) A Writ in the nature of Mandamus commanding the respondents, their servants agents and/or employees and particularly the respondent no.4 and 5 herein to allow the petitioner to appear in the selection test/interview for appointment to the post of Peon (Group-D staff) in respect of Howrah Siksha Sadan for Girls (Girls High School), of 2, Trailokyanath Banerjee Lane, Howrah-711 101, scheduled tobe held on 11.01.2009 or any other subsequent date thereafter along with the sponsored candidates".
The claim of the petitioner is built on the decision of the Apex Court reported in (1996) 6 SCC 216 (Excise Superintendent, Malkapatnam, Krishna District vs K.B.N. Visweshwara Rao & ors.) and the Full Bench decision of this Court reported in 2005 (2) CLJ (Cal) 161 (Rabindra Nath Mahata vs. State of West Bengal & ors.).
The writ petition was moved on notice to the Government Pleader on 9.1.2009. However, none appeared for the State respondents. On hearing learned Counsel for the petitioner, direction was issued upon the school authorities to allow the petitioner to participate at the interview scheduled to be held on 11.1.2009 along with other candidates sponsored by the Employment Exchange. It was, however, directed that in the event the petitioner's name figures in the panel, the same shall not be given effect without obtaining leave of this Court.
Even on service of notice on the school authorities in terms of the order dated 9.1.2009, none entered appearance on their behalf on the returnable date. Hearing of the petition was adjourned with a direction on the school authorities to produce the panel prepared in pursuance of the interview that was conducted on 11.1.2009.
The individual score sheets of the selectors as well as the panel prepared by the Managing Committee was placed before the Court on the adjourned date. It appears therefrom that the petitioner figures as first in the panel.
Mr. Sengupta, learned Counsel appearing for the school authorities submitted that the petitioner was found to be young and energetic and possessing the requisite qualifications for the post of Peon and he had been selected on merit. He prayed for an order from the Court to allow the school authorities to proceed further for filling up the post of Peon. This prayer was echoed by Mr. Misra, learned Counsel for the petitioner.
On perusal of the papers placed before this Court by the school authorities it appears that in all 35 candidates had been sponsored by the Employment Exchange for consideration towards filling up of the post of Peon on receipt of a requisition from the school authorities. All these sponsored candidates were born between 1971 and 1973 whereas the petitioner's date of birth is 25.7.1980. It is, therefore, obvious that the Employment Exchange had sponsored names of candidates maintaining seniority in the matter of registration of names while the petitioner being 7 to 9 years younger than the sponsored candidates was not discriminated. The question that falls for a decision on this petition is whether the school authorities should be permitted to proceed on the basis of selection made by them.
As has been noticed, the claim of the petitioner is based on the decisions in Excise Superintendent (supra) and Rabindra Nath Mahata (supra). In the former decision, the principle that has been laid down is that while a public authority initiates process for recruitment, it must not restrict the field of consideration to candidates sponsored by the Employment Exchange but must give wide publicity of the vacancies so as to enable candidates, whose names have not been sponsored but who are otherwise eligible, to offer their candidature for recruitment and for being considered along with candidates sponsored by the Employment Exchange. In the latter decision, the principle of law laid down by the Apex Court has been followed and it was observed, while answering the reference, that the decision of the Special Bench of this Court in Debasish Dutta vs. State of West Bengal & ors. reported in 1998 (2) CLJ 1 stood impliedly overruled by the subsequent unreported decision of the Apex Court dated dated 12.2.2002 in Civil Appeal No.1203 of 2001 (Abu Taher vs. Abdul Wahab & ors.) It was also held that candidates who have not been sponsored by the Employment Exchange could be considered for recruitment as non-teaching staff in the Non-Government Institutions. However, it was made clear that no statutory rule had been placed before the Court to persuade it to take a contrary view. Issue similar to the one that has been raised herein came up for consideration before a Division Bench of this Court. In the decision reported in 2007(2) CLJ (Cal) 105 (Gaya Nath Rajbanshi vs. State of West Bengal & ors.), on consideration of the decision in Excise Superintendent (supra), the Court proceeded to observe as follows:
"An individual non-sponsored candidate got no right to appear suo motu and/or by decision of the Managing Committee and/or employer concerned allowing any individual non-sponsored candidate to appear in the interview as per their sweet will unless the right of a non-sponsored candidate for appearance in the interview matures on the contingency of advertisement of the concerned vacancy in the daily Newspapers and/or Employment Exchange notification having a wide circulation and/or other media advertisement, radio and television as held by the Apex Court. As a corollary thereof since a non-sponsored candidate got no right to appear in the interview simplicitor in the absence of the aforesaid contingency of advertisement in the post in the Newspapers and other media, the High Court also sitting in the writ jurisdiction cannot allow the appearance of the individual candidate until and unless there is an advertisement of the particular post inviting the names of the general candidates by putting the same in the State Wide published daily Newspaper for the reason that allowing of any individual candidate in absence of those contingencies in exercising the power under Article 226 of the Constitution of India would be nothing but an exercise of power which per se violative of Article 14 of the Constitution as the other identically placed candidates who may be the next door neighbour of the writ petitioner who could not approach the High Court due to financial stringency or for any other reason would be denied to appear in the interview despite fulfilment of qualification alike the writ petitioner".
This Court, apart from being bound by the said decision, is in complete agreement with the view expressed therein that allowing the petitioner to attend interview without there being due and proper advertisement of the vacancy would result in carving out a distinct benefit for him at the expense of sacrificing the equality doctrine guaranteed by Article 14 of the Constitution of India which, if applied in proper perspective and in true earnest, would guarantee equal opportunity in the matter of public employment as enshrined in Article 16 thereof.
As in the case of Gaya Nath Rajbanshi (supra), the present petitioner has in paragraph 10 of the petition alleged that the school authorities did not advertise the vacancy in any newspaper or by other alternative means and, accordingly, he was deprived of an opportunity to offer his candidature by making an application before the school authorities, yet, there is no prayer in the prayer clauses for a direction upon the school authorities to advertise the vacancy. Instead the petitioner has only prayed for a direction on the school authorities to allow him to appear in the interview scheduled on 11.1.2009. Following the decision in Gaya Nath Rajbanshi (supra), this Court is constrained to hold that the interim order, granted at the interim stage on the prayer of the petitioner, if made absolute would not sub-serve expansion of the field of consideration which appears to be the prime object that weighed in the mind of the Apex Court while delivering its decision in Excise Superintendent (supra).
True it is that the Division Bench while delivering its decision in Gaya Nath Rajbanshi (supra) did not consider the Special Bench decision in Rabindra Nath Mahata (supra). However, the said decision was duly considered in a subsequent decision of a Division Bench of this Court presided over by the selfsame learned Judge who authored the judgment in Gaya Nath Rajbanshi (supra), since reported in 2008 (1) CLJ (Cal) 912 : Debendra Nath Mondal vs. Ratan Kumar Das & Ors. On consideration of the Full Bench Judgment, in paragraph 22 of the decision it was held that:
"**** In Full Bench judgment, there was no issue whether a non-sponsored candidate suo motu or out of charity and/or grace of the employer/establishment alone could be allowed to appear in the interview from non-sponsored category but their question was whether any non- sponsored candidate was eligible to appear in the interview or not, following the K.B.N. Visweshwara Rao & Ors.(supra). The Full Bench Judgment of this Court in Rabindra Nath Mahato (supra) practically had followed the K.B.N. Visweshwara Rao & Ors.(supra) which was a judgment in the field whereby a non-sponsored candidate may appear in the interview subject to advertisement of the vacancy in the daily Newspaper and this issue that 'subject to advertisement in the daily Newspaper of wide publication' neither was addressed nor argued and thereby was answered by the Full Bench. Hence, Rabindra Nath Mahato(supra) in the instant case has no applicability herein and it cannot be a binding precedent to us due to the law of the land under Article 141 ****."
It was finally held in paragraph 26 of the decision as follows :
"*****As per our reading K.B.N. Visweshwara Rao & Ors. (supra) being a ratio decidendi and the judgment in the field passed by larger bench, which could be considered as a law of the land under Article 141 of the Constitution of India whereby and whereunder the Court have allow the non- sponsored candidates to appear subject to public advertisement of the vacancy and notice by the employer following the modes as mentioned thereof, otherwise appearance of a candidate suo motu out of his own knowledge, which is nothing but a backdoor knowledge regarding vacancy and/or allowing someone, a non-sponsored candidate by the employer, which also a back door method as the same would deprive the other eligible candidates equally qualified to appear in the interview due to lack of such personal knowledge of the vacancy, will ex facie an arbitrary and ultra vires action to the constitutional mandate of Articles 14 and 16(1) of the Constitution of India and it will hit the fair play, justice and equal opportunity clause of the Constitution".
The decision in Debendra Nath Mondal (supra) was appealed against in the Apex Court vide SLP (Civil) No.10024 of 2008. By an order dated 8.9.2008, the Apex Court has dismissed the Special Leave Petition.
The present case is no different from those referred to above. The petitioner obtained private information that the post of Peon in the school is being filled up by the school authorities by requisitioning names of eligible candidates from the Employment Exchange. The Employment Exchange obliged by sponsoring names of 35 candidates strictly as per seniority as would be evident from the dates of birth of the respective sponsored candidates which were between 1971 and 1973. No one junior to the petitioner as regards enrolment was sponsored. No one belonging to the age group of the petitioner was also sponsored. The petitioner stole a march over the sponsored candidates and was placed first in the panel. There might be innumerable candidates better qualified than the petitioner who could not offer their candidature by reason of they being unaware that the school authority had requisitioned names of eligible candidates with a view to filling up the subject vacancy. In terms of the law laid down in Excise Superintendent (supra), duly followed by the Full Bench decision in Rabindra Nath Mahata (supra), the school authorities were bound to advertise the vacancy so as to receive responses not confined to candidates sponsored by the Employment Exchange but also beyond it. The petitioner being aware of the principle of law decided in Excise Superintendent (supra), in all fairness, ought to have made a prayer to restrain the school authorities from proceeding with the selection process without advertising the post; instead, he has only prayed for consideration of his candidature upon a writ of Mandamus being issued by this Court with a view to avoid competition. This course of action has been deprecated in the decisions of this Court in Gayanath Rajbanshi (supra) and Debendra Nath Mondal (supra). This Court, therefore, following the said decisions and even on the basis of its own understanding of the law of the land is of the clear view that the petitioner is not entitled to any relief on this petition in the absence of any prayer for a direction on the school authorities to publish due advertisement for inviting applications from eligible candidates. Making the interim order absolute would result in the Court giving Article 14 of the Constitution of India a complete go bye and that is not permissible.
The school authorities shall proceed to recast the panel. The name of the petitioner shall be deleted and a panel shall be drawn up in order of merit. Thereafter, the school authorities shall be entitled to take follow up action in accordance with law.
The writ petition stands dismissed without order for costs.
Urgent photostat certified copy of this judgment, if applied for, be furnished to the applicant within 4 days from date of putting in requisites therefor.
(DIPANKAR DATTA, J.)