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1984 DIGILAW 313 (CAL)

Kalyan Kumar Mukhopadhaya v. State of West Bengal

1984-09-03

BHAGABATI PRASAD BANERJEE

body1984
ORDER : In this Civil Rule the petitioner has challenged the validity of the order of appointment of Shri Swapan Bhattacharya, the respondent No. 6 in the writ petition on the ground that the name of the respondent No. 6 was not in the panel prepared in accordance with the procedure laid down in Circular No 7007(15) V dated 2.10.78 which is annexure 'B' to the petition, issued by the Secretary to the Government of West Bengal, Department of Animal Husbandary and Veterinary Service for recruitment of Veterinary Field Assistants. 2. The case of the petitioner that pursuant to an advertisement issued by the Respondent No.3, the petitioner applied for the post of Veterinary Field Assistant for Bankura District and that after the interview was held in accordance with the said circular two separate panels one for reserved category and of scheduled castes and the other for scheduled tribes category were prepared by the District Veterinary Officer, Bankura which was forwarded to the Adviser, Animal Husbandary and Vererinary Service, Government of West Bengal, Calcutta – 1, by the Memo No 60/Misc-3 dated Bankura the 12th January, 1981 which is annexure 'G' to the petition. In the said panel, the petitioner's name appeared against Serial No 2 in unreserved category. In the unreserved category there are 10 candidates who were selected on the basis of the marks obtained at the said interview and the list of scheduled castes and scheduled tribes category contained 5 names which was also prepared on the basis of the marks obtained at the said interview. The name of the respondent No.6, Swapan Kumar Bhattacharya did not appear in the said panel which is annexure 'G' to the petition. It appeared that one Shri Mritunjay Pal whose name was against serial No 1 in the unreserved category, was appointed by the Memo No. 5531/1A-6-80-E S dated 18.11.80 in the post of Veterinary Field Assistant Similarly Shri Kartick Chandra Mali whose name appeared against Serial No. 1 in the said reserved category was also appointed by the order No. 1065/1A-6/80- E S dated 1481. It further appears that Abani Mohan Midya whose name appeared against Serial No 2 in the panel of reserved category, was also given an appointment in the post of Veterinary Field Assistant by the order No 1339/1A-6/80 E S dated 20th April, 1981 It further appeared that on the same day namely on 18.11.80 when Shri Mritunjay Pal was given appointment in the post of Veterinary Field Assistant, the respondent No.6 whose name did not appear in the said panel was given appointment in the post of Veterinary Field Assistant. 3. Mr. Prasenjit Basu, learned advocate appearing on behelf of the petitioner, cotended that the appointment of the respondent No.6 in the post of Veterinary Field Assistant was made in clear violation of the circular laying down the procedure to be followed in the matter of selection which is annexure 'B' to the petition and it was further contended that the persons out of the penal could not be appointed when after Mritunjay Pal was appointed, it was the turn of the petitioner to get an appointment in unreserved category and that the authorities concerned arbitrarily appointed the respondent No.6 in the said post. 4. In support of the contention that the appointment of respondent No. 6 was in clear violation of the circular which is annexure 'B' to the petition, the learned advocate appearing for the petitioner cited two decisions of the Supreme Court. The first relied on in this behalf was a case of the Supreme Court in Union of India v. K.P. Joseph & ors., reported air 1973 SC 303 wherein the Supreme Court observed. "To say that an administrative order can never confer any right would be too wide a proposition. There are administrative orders which confer rights and impose duties. It is because an administrative order can abridge or take away rights that we have imported the principle of natural justice of audi alteram partem into this area" 5. The other case relied upon in this behalf was a case of the Supreme Court of India in Dr. There are administrative orders which confer rights and impose duties. It is because an administrative order can abridge or take away rights that we have imported the principle of natural justice of audi alteram partem into this area" 5. The other case relied upon in this behalf was a case of the Supreme Court of India in Dr. Amarjit Singh Ahluwalia v. The State of Punjab & ors reported in AIR 1975 SC 984 wherein the Supreme Court observed that though the administrative instruction having no force of law, the State Government could not at its sweet-will depart from the principles laid down in the circular without rational justification and that the sweep of Articles 14 and 16 is wide and pervasive. These two articles embody the painciple of rationality and they are intended to strike against arbitrary and discriminatory action taken by the State. In that Case the Supreme Court also held "that when the State Government departs from the principles of seniority laid down by it, albeit by administrative instruction and the departure is without reason and arbitrary, it would directly infringe the guarantee of equality under Article 14 and 16." 6. In this case, in my view the principles laid down by the Supreme Court are fully applicable. Apparently, there could not be any justification for appointing the respondent No.6 in the said post in violation of the procedure and principles laid down in the said circular and that is not understood how the respondent No. 6 could be appointed when his name did not appear in the penal prepared by the District Veterinary Officer, Bankura on the basis of interview for the said post and that the position of the persons in the penal were fixed strictly on the basis of the marks obtained through such interview. It is well established principle of law that the Government in dealing with public in the matter of giving jobs cannot act arbitrarily in its sweet will and unlike a private individual, the State cannot act as it pleases in the matter in its absolute and unfettered discretion Nowadays every activity of the Government must have a public element in it and must therefore be informed with reasons and guided by public interest In this Case it appears that the respondents have acted arbitrarily and whimsically in appointing the respondent No. 6 when the name of the respondent no. 6 did not appear in the said select panel. In this case the respondents did not appear and did not file any affidavit-in-opposition controverting any of the allegations made in the writ petition. The writ petition was moved by the petitioner with notice to the State and as far back as on 10th July, 1981 an order was passed by this Court that the respondents should keep one past of Veterinary Field Assistant for the District of Barkura vacant and that in spite of the notice and service of copy of the writ petitions, the respondents did not choose to appear and contest the writ petition. In the circumstances aforesaid, I hold that the appointment of the respondent No 6 was illegal in view of the fact that such an appointment was given in clear violation of the circular which is annexure 'B' to the petition and when the said respondent's name did not appear in the list of candidates selected for appointment which is annexure 'G' to the petition. The respondents acted arbitrarily, whimsically and capriciously in giving appointment to the respondent No.6. It is very unfortunate that when the petitioner was awaiting for his appointment as he stood second in the selection test, appointment was given to a stranger who was not selected for such appointment and whose name did not appear in the penal prepared in this behalf. Accordingly, the appointment of the respondent No 6 which is annexure 1' to the petition, is quashed and the respondent Nos. 1 to 4 are directed to give appointment in the post of Veterinary Field Assistant in the District of Bankura on the basis of Se1ecPanel which is annexure 'G' to the petition. 7. The Rule is accordingly made absolute. 8. Let a writ in nature of certiorari be issued quashing the appointment of respondent No 6 which is annexure 1' to the petition and let a writ in the nature of mandamus do issue commanding the respondents to give appointment to the Post of Veterinary Field Assistant in the Subordinate Veterinary Service on the basis of selection panel prepared in this behalf which is annexure 'G' to the petition. There will be no order as to costs. Rule made absolute.