Calcutta High Court
Chairman, Nadia District Primary ... vs Jyotsna Rani Ray (Sarkar) And Ors. on 19 December, 2007
Equivalent citations: (2008)1CALLT312(HC)
Author: Pratap Kumar Ray
Bench: Pratap Kumar Ray, Prasenjit Mandal
JUDGMENT Pratap Kumar Ray, J.
1. Shri Subham Dutta, Employment Exchange Officer is present today before this Court.
The appeal is taken up for hearing.
2. Heard the learned Advocates appearing for the parties.
3. Challenging the Judgment and order dated 7th May, 2001 passed by the learned Trial Judge in W.P. No. 16028 (W) of 1999 this appeal has been preferred by the Chairman, Nadia District Primary School Council.
4. By the impugned Judgment under appeal, the learned Trial Judge directed the appearance of the writ petitioner at the time of next selection test straightway before the Council as a scheduled caste candidate irrespective of the fact as to whether her name would be sponsored again or not by the Employment Exchange and irrespective of the age bar.
5. The writ petitioner moved the writ application on the grievance that though she registered herself as a scheduled caste candidate in the local employment exchange, but the employment exchange made a mistake by referring her name as a general category candidate in respect of selection for the post of primary school teacher. As a general category candidate, her case was considered and she failed. It is the case of the writ petitioner had there been consideration of her candidature as a scheduled caste candidate, which in fact she is, she would have obtained the choice of appointment by selection amongst the scheduled caste candidates relating to the reserved vacancies for them . The learned trial Judge did not address the issue as to whether there was any scope for her selection as scheduled caste category on the basis of the marks as obtained by her vis-a-vis reserved vacancies for scheduled caste candidates and, as such, the learned trial Judge practically rejected the prayer of the writ petitioner to that effect. The writ petitioner has not been aggrieved against such and did not prefer any appeal. On the contrary the learned trial Judge passed a direction which reads such:
In these peculiar facts, I direct the respondent/Council to consider the case of the writ petitioner at the time of preparation of the next panel as a scheduled caste candidate irrespective of the fact whether her name be again sponsored or not and irrespective of the age eligibility bar.
6. This portion of the order is under challenge before us by the Council. To adjudicate the appeal the statutory interpretation will assist us. The Recruitment and Leave Rules regulating the recruitment and leave of primary teachers of West Bengal, hereinafter referred as the Recruitment Rules of 1991 for brevity, a Rule duly notified by the Education Department exists in the field. Rule 8 provides that the number of vacancies as to be determined under Rule 4 except the vacancies on account of died-in-harness category and/or inter-council transfer matter, council should inform the concerned employment exchange for sponsorship of the names by stipulating the proportionate number of candidates trained or untrained as well as on the basis of reservation quota for scheduled caste and scheduled tribe candidates. Rule 8 reads such:
8. Calling for the names from the Employment Exchange.-
(a) The number of vacancies as determined under Rule 4, except in case the vacancies mentioned in Sub-rule (a) and Sub-rule (b) of 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. For the purpose of preparation of panel for eligible candidates, the Employment Exchange shall be requested to send names of candidates, both trained and untrained, who have requisite qualifications and in order of seniority of registration, and the list of candidates so prepared shall comprise of at least 50% of trained candidates unless the number of registered trained candidates at the concerned Employment Exchange is sufficient to comprise of the 50% of the names in the list:
Provided that in case of non-availability of sufficient number of candidates belonging to the Scheduled Castes and the Scheduled Tribes in the Employment Exchange of the concerned revenue district, a reference shall be made by the Council to the Special Employment Exchange for he Scheduled Castes/Scheduled Tribes at the State Level for sending further names.
(b) The letter to the employment exchange mentioned in Sub-rule (a) shall contain, among other matters:
(i) the required minimum qualifications of candidates;
(ii) the reservation quota for Scheduled Castes and Scheduled Tribes candidates and physically handicapped candidates; and
(iii) the number of vacancies to be filled up.
(c) The total number of vacancies existing on the 31st December of a calendar year shall be treated as the number of vacancies for that year.
7. Under Rule 9 the Council got the power, thereafter to consider the names of sponsored candidates for selecting them following the procedure as laid down thereto. Rule 10 deals with the approval of the panel as to be prepared by the State Council following the aforesaid provisions. Rule 9 reads such:
9. Selection procedure.--(a) On or after the names of candidates for the posts of teachers are obtained from the employment exchange, all candidates shall be communicated in writing to produce testimonials/certificates for computation of their marks in the score prepared for the purpose of such selection.
(b) Credit shall be given and computed in he following manner:
(i) there shall be 100 marks in total as full marks.
(ii) the full marks shall be allotted to four different aspect of the candidate's eligibility in the following manner:
1. Academic qualification - 65 Marks
2. Training - 20 ..
3. Written Test/Oral Interview - 10 ..
4. Co-/curricular Activity - 5 ..
(iii) The percentage of marks to the total full marks obtained by the candidate in School Madhyamik/Higher Secondary (XI) Class shall be computed as percentage of 65 and recorded in the score sheet, and if a candidate has passed two of the above public examinations, the better result only shall be computed;
(iv) the percentage of marks to the total full marks obtained in Junior Basic Training Certificate Examination or equivalent shall be computed as percentage of 20 (twenty) and recorded in the score sheet;
(v) marks obtained in the interviews shall be recorded in the score sheet;
(vi) In awarding marks for co-curricular activities one mark shall be credited for each of the certificates mentioned below:
(A) A certificate that he/she represented the district in State level games, sports, issued by district level sports authority.
(B) A certificate that he/she has shown excellence in cultural activities representing he district in State level competitions issued by the district level authority.
(C) Minimum 'A' certificate of National Cadet Corps.
(D) A certificate of successful participation in liberating the illiterates by a district level officer, and (E) A diploma/certificate in Music/Arts and Craft on completion of a course of at last on year's duration from any University/recognised Government institutions:
Provided that the maximum of such marks to be credited shall not exceed five.
(vii) 18 (eighteen) marks shall be credited for academic qualification to an eligible candidate belonging to Scheduled Tribe category who have required qualifications as mentioned in Sub-rule (e) of Rule 6. Awarding of marks for training, interview and co-curricular activities shall be done in accordance with Clauses (iv), (v) and (vi) respectively.
(c) (i) The total marks obtained by each candidate for academic qualifications, training and co-curricular activities shall be computed in the manner prescribed in Clauses (iii), (iv) and (vi) and a list of names of all candidates of each category, namely, Scheduled Caste, Scheduled Tribe, physically handicapped and others shall be prepared in descending other of total marks obtained by them.
(ii) The Staff Selection Committee, in its meeting shall finalise the total number of candidates from the top of the lists mentioned in Clause (i) of Sub-rule (c), to be called for interview. The number of candidates to be called for interview shall be five times the number of vacancy unless the total number of candidates is insufficient for the same.
(iii) The candidates selected for interview shall be intimated the date, time and place for their interview.
(d) After the interview all scores shall be recorded and the marks obtained by a candidate shall be added up and the names of candidates shall be arranged according to marks obtained in a descending order.
(e) After the process as laid down in Sub-rule (b) is complete, the Selection Committee shall arrange the names serially down from the top of the list. A panel of such number of candidates as there are vacancies plus 10% of such vacancies shall be prepared. The reservation for Scheduled Castes, Scheduled Tribes and physically handicapped persons shall have to be strictly maintained in the panel. The panel shall show separately names of Scheduled Tribe, Scheduled Caste, Physically handicapped, and other eligible candidates.
(f) Thereafter, the panel thus prepared shall be placed in the meeting of the Council for passing and the total number of eligible candidate included in the panel shall be the same as the number of vacancies plus 10% of such existing vacancies.
8. Rule 4 is also a relevant rule for our consideration which has vested the power to the Council to determine the time to time number of vacancies in different primary schools within their jurisdiction.
4. Creation of Posts.--The Council shall create posts of teachers as referred to in Sub-rule 2(a) and (b) of Rule 3, determine from time to time the number of vacancies in primary schools with its jurisdiction, and take steps to fill in the vacancies as and when necessary.
9. Having regard to a conjoint reading of Rules 4, 8 and 9 aforesaid it appears that time to time number of vacancies are required to be determined first, thereafter names should be invited from the employment exchange and on receiving names, a selection process will follow each year or under gap of certain time to select candidates as per vacancy position under Rule 4 and thereafter appointment to be made.
10. Having regard to such statutory provision, the Council has no power to entertain the names of any other candidates who are not sponsored in terms of their invitation under Rule 8 by the employment exchange for the particular selection process of that particular vacancies as determined under Rule 4. In view of the statutory rigour to that effect and clear statutory provision, we are of the view that there is little scope to direct consideration of the candidature of the writ petitioner by the Council without having any further sponsorship of her name in terms of the new vacancies as to be declared under Rule 4. The learned Trial Judge failed to address the issue by analysing the foresaid rules and accordingly came to a wrong decision which as per our view is not legally sustainable.
11. The learned Advocate for the respondent/writ petitioner submits that considering the issue on the point of equity and natural justice the order passed by the learned Trial Judge should be considered by this Court. We are unable to accept this submission in view of the settled legal position that equity will yield the law and there is little scope to apply the equity principle contrary to the statutory law. Reliance may be placed to the Judgment passed in the case Nasiruddin v. Sitaram Agarwal wherein in para 35 the Court held "in a case where statutory provision is plain and unambiguous, the Court shall not interpret the same in a different manner only because of harsh consequence arising therefrom". In the case E. Palani Sami v. Palani Sami the Apex Court held "equitable consideration have no place where a statute contain express provision". In the case Bharat Petroleum Corporation Limited v. Mridula Ratnavalli the Apex Court held to this effect "it is well-settled that when there is a conflict between law, and equity, it is the law which has to prevail in accordance with Latin Maxim "Dura Lex Sed Lex" which means "the law is hard, but it is the law". Equity can only, supplement the law but it cannot supplant or override it". Very recently the Apex Court reiterated the legal position about the status of equity on the face of law in the case Shib Kumar Sharma v. Santosh Kumari by holding "in England the Court of Equity exercises jurisdiction in equity. The Courts in India did not possess any such exclusive jurisdiction. The Courts in India exercise jurisdiction both in equity as well as law but excise of equity jurisdiction is always subject to the provision of law. If exercise of equity jurisdiction would violate the express provision contained in law, the same cannot be done. Equity jurisdiction can be exercised only when no law operates in the field". Further in para 27 of the said section the Court held "a Court of law cannot exercise its discretionary jurisdiction dehors the statutory law. Its discretion must be exercised in terms of the existing statute".
12. Having regard to such legal position, painfully we cannot subscribe the argument advanced by the learned Advocate though the fact remains that due to mistake of employment exchange, the writ petitioner could not avail the chance of her selection when her name was sponsored.
13. With that finding and observation the impugned Judgment under appeal accordingly stands set aside and quashed. The appeal is allowed. The writ application stands dismissed.
14. Before parting with the matter we simply observe this that as the concerned sponsorship issue which is the subject matter of the writ was act of mistake by the employment exchange, such sponsorship of the writ petitioner's name in the eye of law should not be counted for the purpose of applying rotational formula in terms of the employment exchange brochure and all purposes it will be deemed that her name was not sponsored for that particular vacancy.
Personal appearance of the said officer, who is present today with the records of employment exchange, stands dispensed with.
Let urgent xerox certified copy of this order, if applied for, be given to the learned Advocates appearing for the parties expeditious.
Prasenjit Mandal, J.
15. I agree.