Calcutta High Court (Appellete Side)
Chinmay Dolai vs The State Of West Bengal & Ors on 4 July, 2018
1
13 4.7.18
CL
CAN 3552 OF 2018
(Application for stay)
in
M.A.T. 521 OF 2018
------------------
Chinmay Dolai
-vs.-
The State of West Bengal & Ors.
Mr. Sukanta Chakraborty Mr. Anindya Halder.
....For the Appellant/ Applicant.
Mr. Debabrata Saha Roy Mr. Pingal Bhattacharya.
....For the State.
Mr. Kallol Bose Mr. Suman Banerjee.
.....Fir the Respondent No.9.
Supplementary affidavit filed by the appellant/applicant shall be retained with the records.
While hearing the application for stay filed in this intra-court appeal, we have heard the parties on the merits thereof. We propose to dispose of the appeal as well as this application by this order.
The Deputy Secretary to the Government of West Bengal, Department of Higher Education, Science and Technology & Bio-Science, C.S. Branch, vide memo dated September 18, 2015 informed the Director of Public Instruction, West Bengal, of creation of 7 (seven) non-teaching posts and filling up of 9 (nine) non-teaching posts in Kalna College, Purba Burdwan (hereafter the college) with an instruction that such non-teaching posts should be filled up subject to the strict observance of the recruitment procedures as stipulated in the department 2 G.O. dated August 25, 2017 and as per reservation policy applicable from time to time. Copy of such memo was forwarded to the principal of the college. A process for recruiting, inter alia, 4 (four) lower division clerks (Group - C) was initiated by the college by issuing an undated advertisement, which is at page 56 of the stay application. It appears therefrom that while 3 (three) vacancies were unreserved, 1 (one) vacancy was reserved for a Scheduled Tribe candidate.
Being an aspirant for appointment on the post of Group - C staff, the appellant/applicant being a Scheduled Caste candidate intended to offer his candidature. However, aggrieved by the omission on the part of the college not to reserve one vacancy for a Scheduled Caste candidate, the appellant had presented a writ petition before this Court seeking a direction on the college to reserve one vacancy out of the 4 (four) Group - C posts for a Scheduled Caste candidate.
The writ petition was considered by a learned Judge of this Court and by judgment and order dated June 7, 2017, the writ petition was disposed of without granting any effective relief to the appellant. It was, inter alia, observed by the learned Judge as follows :
"Working of the 100-Point Roster may yield vacancies for only one category at any given point of time. In this case it is perfectly possible that there are three vacancies in the college in Group-C posts which are reserved by points in the 100-Point Roster corresponding to unreserved category. So far as payment of fees is concerned, the college has told 3 petitioner that he can appear. If he does appear for Group-C posts selection procedure written examination he must do so for the post as in the unreserved category."
Aggrieved by such order, the appellant has carried it before us in appeal. During its pendency, he participated in the recruitment process as a general candidate but unfortunately could not qualify for appointment. We have heard Mr. Chakraborty, learned advocate for the appellant and Mr. Bose, learned advocate for the college.
As noted above, the appellant is a Scheduled Caste candidate. His claim that the college did not adhere to the reservation policy as per the statutory mandate appears to us to be utterly vague and devoid of material particulars. In terms of the 100-point roster, the 1st, the 15th, the 32nd, the 36th, the 51st, the 61st, the 65th, the 68th, the 82nd and the 90th vacancy ought to be reserved for Scheduled Caste candidates. There are other vacancy points reserved for ex-servicemen and exempted category candidates belonging to the Scheduled Caste. The appellant has not been able to convince us, with reference to relevant data, that any of the 4 (four) vacancies on the post of lower division clerk, which the college proposed to fill up by initiating the process of recruitment in question, belongs to either of the aforesaid vacancy points that ought to be reserved for the Scheduled Caste candidates.
Mr. Chakraborty has valiantly endeavoured to impress us by referring to some of the documents annexed to the supplementary affidavit that till 2015, 4 there were 11 (eleven) incumbents working as lower division clerks in the college [9 (nine) male and 2 (two) female] and if the additional 4 (four) vacancies of lower division clerks were added to the 11 (eleven) referred to above, the last vacancy would obviously be the 15th vacancy on which a Scheduled Caste candidate should have been appointed.
We are afraid, we cannot accept the contention in the absence of the relevant pleadings either in the writ petition or in the stay application by the appellant. The submission of Mr. Chakraborty proceeds on an assumption that the 4 (four) vacancies which are sought to be filled up now, are in addition to the 11 (eleven) vacancies which had earlier been filled up by the college. In order to succeed in his claim that one vacancy should have been reserved for a Scheduled Caste candidate, the appellant ought to have obtained authentic information and/or particulars of the number of Group - C posts in the college, the status of the vacant posts (whether filled up by reserved candidates and/or general candidates) and which of such vacancies corresponds to the vacancies in the 100-point roster requiring it to be filled up by a Scheduled Caste candidate. We do not know, in the absence of the relevant data, as to whether appointments on the 11 (eleven) vacancies were made prior to or after the 100-point roster was introduced vide notification dated March 1, 2011. Information on all these points could have been had if only the appellant applied under the Right to Information Act, 2005. Either no request for information was made or even if made, the result thereof has not been made known to us. In view thereof, we are not 5 persuaded to hold that one of the vacancies would be the 15th vacancy where the appellant could have found a berth.
A submission has been advanced that the college ought to be called upon to apprise us as to whether any one of the vacancies, which was sought to be filled up by the undated notice referred to above, is the 15th vacancy or not. Law is well settled that it is for the party approaching the writ court to lay full facts for the purpose of satisfying the Court in regard to infringement of his legal right for obtaining a favourable order and it is not the duty of the Court to call upon the respondents and take them by surprise, by asking them to counter a particular claim which is not substantiated by the pleadings in the writ petition. The writ court, it is well-settled, is not supposed to conduct a roving enquiry. Having read the judgment and order impugned and upon looking at the 100- point roster introduced vide the said notification, we are ad idem with the learned Judge that it is possible, in terms of such roster, that 3 (three) vacancies in Group - C posts could be kept out of reservation for Scheduled Caste candidates. Such conclusion of the learned Judge, thus, does not require any interference.
Mr. Chakraborty's final submission that one vacancy in terms of the roster ought to have been reserved for either an exempted category candidate or an ex- serviceman is held not to advance the appellant's claim since not a single exempted category candidate or ex-serviceman has questioned the process; also, the appellant does not belong to that category of candidates and lacks the locus standi.
6We, therefore, find no merit in the appeal. The appeal as well as the stay application stands dismissed.
We record Mr. Bose's submission that the college is willing to refund Rs.100/- to the appellant that was realised from him as fees, contrary to the provision contained in section 4(1)(b) of the West Bengal Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Service Posts) Act, 1976, while he had expressed interest to compete for one of the Group - D posts. We grant liberty to the appellant to approach the college and claim refund of such sum. Refund shall be made immediately on an approach being made. Photostat certified copy of this order, if applied for, be furnished expeditiously.
(Asha Arora, J.) (Dipankar Datta, J.)