Calcutta High Court (Appellete Side)
Gita Tikader vs Unknown on 17 May, 2016
Author: Tapabrata Chakraborty
Bench: Tapabrata Chakraborty
17.5.16
skd
72
W. P. 173 (W) of 2016
In the matter of: Gita Tikader ... Petitioner
Mr. Shibaji Kumar Das
Mr. Ashhan Ahmed ... For the Petitioner
Mr. Subir Sanyal
Mr. Sumita Sen ... For the Council
The instant writ application has been preferred
challenging, inter alia, the inaction on the part of the respondents to
appoint the petitioner as an assistant teacher (primary) in a school under the North 24-Parganas District Primary School Council (hereinafter referred to as the said Council).
Mr. Das, learned advocate appearing for the petitioner submits that the petitioner's name was registered by the concerned employment exchange in the Exempted Category as an ex-census worker and his name was sponsored by the concerned employment exchange as a scheduled caste candidate under the Exempted Category for participation in the selection process conducted by the said Council for filling up posts of primary teacher and accordingly, he was allowed to fill up the bio-data proforma. Thereafter by a memorandum dated 15th March, 2004, the respondent no.2 directed the petitioner to submit the documents as referred to in the said memorandum. The petitioner duly submitted the said documents and upon scrutiny of the same he was allowed to participate in the written test held on 22nd March, 2004. The petitioner emerged to be successful in the written test and was accordingly empanelled and 2 such fact was reported to the respondent no. 5 and such fact was also corroborated by the respondent no.2 vide memorandum dated 6th February, 2006 addressed to the respondent no. 7 and it was reported that the petitioner has been appointed to the post assistant teacher (primary) as a scheduled caste candidate in an Exempted category reserved vacancy. Pursuant to the said memorandum the respondent no. 7 recorded the petitioner as 'placed' though at that juncture the petitioner was merely empanelled and due to such recording as 'placed' the petitioner stood excluded from availing further call for other vacancies. Aggrieved thereby the petitioner along with other similarly situated candidates approached the competent authority under the Right to Information Act, 2005 seeking information as to why they have been reported by the Council as 'placed' though they had not been appointed. In reply thereto, the Joint Director of Employment, West Bengal through a memorandum dated 2nd September, 2009 reported inter alia, that "the names of the five petitioners, as mentioned in the said application, have not been struck off by the Chairman, D.P.S.C., North 24-Parganas, and as such they have been shown 'placed' at the E.C.Cell on April, 2006". Thereafter as no steps were taken by the authorities towards appointment, the petitioner along with others were constrained to approach this Court by a writ application, being W.P. 25479 (W) of 2006 but the same was dismissed by an order dated 7th May, 2010 with liberty to petitioners therein to file a fresh a writ application incorporating successive developments. Pursuant thereto, the said writ petitioners preferred a fresh writ application, being W. P. 14145 (W) of 2010 and the same was disposed of by an order dated 11th April, 2011. Aggrieved by the said order, the petitioners therein preferred an appeal which was dismissed by an 3 order dated 14th March, 2014. Subsequent thereto, a contempt application was filed in connection with the said writ application, being CPAN 2342 of 2014 and the same was disposed of by an order dated 27th March, 2015 observing that there was no wilful violation of the order, on the basis of the alleged contemnor's submission that he was not in the helm of affairs when the writ application was disposed of and that he was trying to trace out all the relevant records to ensure effective compliance of the order dated 11th April, 2011 passed in W. P. 14145 (W) of 2010. Even after the disposal of the contempt application, no explanation was forthcoming as to whether the records have been traced and as to whether any steps have been taken in compliance with the order dated 11th April, 2011 and as such the petitioner was constrained to prefer the instant writ application.
Mr. Das submits that in the backdrop of the admitted fact that the petitioner was empanelled and that he was shown to have been 'placed' and that his name was not struck off from the panel by the respondent no.2, the respondents could not have denied him appointment.
Drawing the attention of this Court to the averments made in the writ application and the affidavit-in-reply, he submits that one Sri Bangajit Sinha, empanelled below the petitioner was given appointment and one Subhrangshu Sekhar Joarder, who had ranked below the petitioner and against whose name the word 'underage' was incorporated, was also given appointment but similar benefit has not been extended to the petitioner and such discrimination as practiced by the respondents is violative of the provisions of Article 14 of the Constitution of India.
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He further submits that the earlier writ application was heard upon exchange of affidavits. The maintainability point raised by the respondents alleging delay on the part of the petitioners therein to approach the Court, was rejected and since the photocopies of record of information were not legible, the matter was relegated to the Council only for verification as to whether the petitioners therein were empanelled. Per contra, Mr. Sanyal, learned senior counsel appearing for the respondent no.2 argues that the Council as the employer can certainly call for all relevant documents to consider the genuinity of the same prior to grant of any appointment to the petitioner and that as such the petitioner was asked to produce the documents as referred to in the memorandum dated 15th March, 2004 at page 42 of the writ application but the said documents were not furnished. The petitioner has not been able to produce any receipt towards submission of the said documents before the Council. In the absence of verification of the said documents question of grant of appointment to the petitioner does not occasion.
He further submits that it needs to be ascertained as to whether the petitioner did discharge the statutory period of service in census operation for securing registration in the exchange under Exempted category. The remark 'underage' has been incorporated against the name of the petitioner in the panel since he did not discharge the minimum period of service during census operation to avail registration under Exempted category. The petitioner has not been able to produce the relevant documents to answer such query of the council. The said remark 'underage' is not pertaining to the age of the petitioner.
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According to Mr. Sanyal, permission to allow the petitioner to participate in the selection process is always subject to determination of the eligibility of the petitioner on the basis of appropriate documents and having been allowed to participate in the selection process, the Council is not estopped from arriving at a satisfaction as regards petitioner's eligibility for appointment.
He further argues that the entire panel of 2004 has lost its life and no direction can be issued to grant appointment to the petitioner from a dead panel more so when admittedly all appointments pertaining to the said selection process have been made. The petitioner cannot also be considered in respect of the present vacancies for which the selection process has to be conducted as per the new rules and the provisions of the Right of Children to Free and Compulsory Education Act, 2009.
In reply, Mr. Das disputes the contention of Mr. Sanyal and submits that the respondents have illegally withheld the appointment of the petitioner. Along with the reply filed, the petitioner has brought on record his caste certificate and a letter dated 5th March, 2003 wherein it has been categorically stated by the said respondent no.2 that the petitioner was found qualified for appearing at the written test.
I have heard the learned advocates appearing for the respective parties and I have considered the materials on record.
The undisputed facts are that the petitioner's name was sponsored by the Employment Exchange as a scheduled caste candidate under Exempted Category. The petitioner was allowed to participate in the selection process. The petitioner was empanelled. The genuinity of the memoranda dated 6th of February, 2006 and 2nd September, 2009 have not been disputed by the respondents. 6 Candidates below the petitioner's rank in the concerned panel have been granted appointment. No appeal has been preferred against the order dated 11th April, 2011 passed in the earlier writ application (W.P. No.14145 (W) of 2010) preferred by the petitioner herein and others. The fact that similarly situated persons, who were empanelled in the same selection process and who were ranked below the petitioner, were appointed could not be disputed on behalf of the Council and as such similar benefits cannot be withheld in respect of the petitioner. It would be inequitable to mete out dissimilar treatment to similarly placed persons.
In the report filed by the Council pursuant to the order of this Court, a note issued by the respondent no.2 was brought on record wherein it was, inter alia, indicated that the petitioner was not appointed due to non-production of the Schedule Caste Certificate and as such the petitioner was treated as 'ES/UR' and that the cut off mark pertaining to the said category was 38.51 and the petitioner obtained 34.43. In the affidavit-in-opposition, it was stated that the said report has been filed mistakenly and on the date of final hearing a further chart was produced indicating that in EX-S (SC) the cut off mark was 28.28. As per the said note, the petitioner having secured 34.43 comes within the zone of appointment. Moreover, candidates appearing below the rank of the petitioner in the panel have been granted appointment.
Answering the argument of the Council to the effect that the appointing authority always has the jurisdiction to verify the fact as to whether the candidates registration under Exempted category in the concerned employment exchange, a coordinate Bench, in an order passed in the case of one Rama Sengupta (Gupta) (W. P. 11847 (W) of 2011), similarly situated with the petitioner observed, 7 inter alia, that when the concerned employment exchange has registered the name of the candidate under the ex-census category, it is the concerned employment exchange alone which can doubt the eligibility of the petitioner of being so empanelled, for it is the concerned employment exchange which has empanelled the petitioner upon scrutiny of the candidate's particulars and it is not within the competence of the Council or for that matter any other authority of the State to doubt such competence of the concerned employment exchange. Not only common etiquette but judicial propriety demands that the findings arrived at on the rudiments of similar facts by a coordinate Bench should be given respect and should be followed by another coordinate Bench.
A perusal of the order passed by this Court in the earlier writ application, being W. P. 14145 (W) of 2010, preferred by the petitioner herein and others would reveal that the writ petition was disposed of relegating the matter to the Council on a limited ground. The Council was only asked to verify the records of the selection process as the photocopies of the records produced before the Court were not properly legible. Such direction was binding upon the parties inter se. No argument was advanced on behalf of the said respondent no.2 as regards registration of the petitioner's name in the Exempted category. The said order was passed upon exchange of affidavits by the parties. Upon conscious consideration of the submissions made on behalf of the respondents, the Hon'ble Court passed the directives and in the backdrop of such factual scenario, no fresh ground can be agitated at this stage by the Council for withholding the appointment of the petitioner.
The petitioner was allowed to participate in the selection process, the petitioner was empanelled and in the facts and 8 circumstances of the case, appointment cannot be denied on a purported plea that the panel has now lost its life. The point of delay was argued on behalf of the Council in the earlier writ application but such argument was negated as would be explicit from the order dated 11th April, 2011. Furthermore, the claim of the empanelled candidates cannot be defeated on the ground that the validity of the panel has expired during the pendency of the litigation.
A duly-selected person for being appointed cannot be illegally kept out of employment on account of untenable decision on the part of the employer. The right of the petitioner to be appointed against the post to which he has been selected cannot be taken away on the pretext that the said panel has in the meantime expired. Usurpation of the post by somebody else is not on account of any defect on the part of the appellant, but on the erroneous decision of the employer himself.
Accordingly, this Court directs the Council and its Chairman to ascertain if any vacancy is still available pertaining to the selection process of the year 2004 within the jurisdiction of the Council and in the event such vacancy exists then the petitioner should be offered appointment in the said vacant post without disturbing the appointment of the last accommodated candidate. However, if it is found that no such vacancy is available, then the Council and its Chairman shall appoint the petitioner in any subsequent vacancy within its jurisdiction and such appointment should be regularised by the Council and the State Government prospectively.
This exercise should be completed by the Council, its Chairman and the State Government within a period of twelve weeks from the date of communication of this order.
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With the above observations and directions, the writ application is disposed of.
There shall, however, be no order as to costs.
Urgent certified photocopy of this order, if applied for, be supplied to parties as expeditiously as possible.
(Tapabrata Chakraborty, J.)