Research › Browse › Judgment

Calcutta High Court · body

1990 DIGILAW 267 (CAL)

Abhiranjan Kuiri v. State of West Bengal

1990-07-05

Monoranjan Mallick

body1990
ORDER The writ petitioner has prayed for a writ of Mandamus upon the Respondents Nos. 2 & 3 for giving him appointment as Stenographer for the post of which he was duly selected along with Respondent No 4 and the Respondent Nos. 2 and 3 asked him to be medically examined and to fill in police verification report. The petitioner's case is as follows: 2. The petitioner was called for interview on 23.6 1988 by the Respondents along with other candidates on being sponsored by the Employment Exchange for the post of Stenographer. He was directed by the Respondent No.3 by the letter dated 83.1989 to fill in verification report for police verification and submit Medical Examination Report from the Chief Medical Officer Health, Purulia. He was further intimated that on receiving the said reports further action for the appointment of Stenographer would be taken. He obtained the medical examination report dated 10.3.1989 and submitted the same to the Respondent He also filled in Police verification form and submitted it on 10.3.89. In .the meantime the Respondent No.4 was duly appointed on or about June 1989. But even though there were two posts, the petitioner has not been given any appointment even though he along with Respondent No.4 was selected to the two vacant post of Stenographers. The petitioner has demanded justice from the Respondents and as no action was taken the petitioner has moved this Court under Article 226 of the Constitution. 3. As in the meantime the writ petitioner's learned Advocate has received the reply from the respondent no. 3 dated 23.2.1990 that as the meantime the recruirment policy of the stenographer has been changed, no appointment can be given to the petitioner on the basis of the selection made by the Directorate. The writ petitioner has, therefore, submitted a supplementary affidavit impugning the above letter. In the supplementary affidavit it is contended that when the process of the selection of the petitioner as a Steno grapher concerned long before the new recruitment policy of stenographer was implemented sometime in August 1989 then only because there was delay in receiving the report of the Police Verification the respondent no. 3 cannot refuse to give the petitioner appointment when he was already selected for the post under the recruitment policy then prevafling and the recruitment policy cannot have retrospective effect to deny the petitioner appointment. 3 cannot refuse to give the petitioner appointment when he was already selected for the post under the recruitment policy then prevafling and the recruitment policy cannot have retrospective effect to deny the petitioner appointment. It is also submitted that the amended rule cannot be applied to invalidate the selection made by the Directorate prior to commencement of the amended rule and a right has been created in his favour after being selected for the post of the Stenographer in accordance with the terms and conditions of the then existing rules and that his selection being valid and legal appointment should be given and denial of appointment on the plea of amended rule is manifestly illegal and completely unwarranted. Even though the Respondents have been directed to file affidavit but no affidavit-in-opposition has been filed by the Respondents. 4. The learned" Advocate for the respondent has produced the new recruitment rules of stenographer issued by the Finance (Audit) Department. Government of West Bengal being No. 9650-F dated 22nd August 1989 and has submitted the letter annexed with the supplementary affidavit is the reason for not granting the petitioner's appointment as stenographer because before such appointment could be' given on receiving the police verification rep ort the new recruitment rules have come into force and the Respondent No.3 has therefore not issued the appointment letter became the recruitment policy of the stenographers has not been charged and the recruitment has to be made through the Public Service Commission and that is reason for the refusal to issue the appointment letter infavour of the petitioner. 5. On hearing submissions made by the learned Advocate for the petitioner and the learned Advocate for the State it has been made clear that even though the process of recruitment to the two vacant posts of stenographers in the office of the Respondent no. 3 was started long before the new recruitment rules for the appointment of stenographers have been framed with effect from 22nd August, 1989 and even though one of the candidates being Respondent no. 4 whose verification roll was received prior to the new recruitment rules were framed was given appointment and as there was some delay in receiving the verification roll of the petitioner, his appointment has been denied only because in the meantime new recruitment rules have come into force. 6. 4 whose verification roll was received prior to the new recruitment rules were framed was given appointment and as there was some delay in receiving the verification roll of the petitioner, his appointment has been denied only because in the meantime new recruitment rules have come into force. 6. The learned Advocate for the petitioner has relied upon the decision of the Supreme Court in P. Mahendran vs. State of Karnataka AIR 1990 SC 405 . In that decision the Supreme Court has held that when the candidates for the appointment of the Motor Vehicles Inspectors were selected prior to the amendment of the rules by which the recruitment rules have been amended the rules not being retrospective the process of appointment is to be completed in accordance with the law as it stood at the commencement of the process of recruitment and the amended rule would not invalidate the selection already made. 7. The facts of the present case are exactly similar to those of the case before the Supreme Court in the above decision. In this case the process of recruitment was started sometime in 1988 and the petitioner along with Respondent no. 4 was selected. The respondent no. 4 bas already been given appointment. As there was delay in processing the appointment because of the delay in receiving the verification roll dully filled is submitted by the petitioner on 10.3.1989, the Respondent no. 3 has refused to give the petitioner appointment even though selected on the ground that in the meantime the rules of recruitment of stenographer has been amended with effect from 22nd August 1989. The new recruitment rules has been produced before me. There is nothing to indicate that it has been given retrospective operation. Therefore, in view of the above decision of the Supreme Court the selection already made cannot be invalidated because of subsequent amendment of the recruitment rules of stenographers providing for recruitment of stenographers through Public Service Commission. 8. The new recruitment rules has been produced before me. There is nothing to indicate that it has been given retrospective operation. Therefore, in view of the above decision of the Supreme Court the selection already made cannot be invalidated because of subsequent amendment of the recruitment rules of stenographers providing for recruitment of stenographers through Public Service Commission. 8. The following observation of the Supreme Court reported in AIR " 1990 SC 405 at para 11 page 412 reads as follows:- "It is true that a candidate does not get any right to the post by merely making an application for the same but a right is created in his favour for being considered for the post in accordance with the terms and conditions of the advertisement and the existing recruitment rules. If a candidate applies for a post in response to advertisement issued by Public Service Commission in accordance with recruitment Rules he acquires right to be considered for selection in accordance with the then existing Rules. This right cannot be affected by amendment of any Rule unless the amending Rule is retrospective is nature." 9. In that view of the matter the letter annexed with the supplementary affidavit dated 23.2.1990 refusing to appoint the petitioner on the ground that the recruitment rules for appointment of the stenographer has in the meantime been amended and the Respondent No.3 has now ceased to have the power to appoint the stenographer on the basis of the selection made by him from the candidates sent from Employment Exchange cannot be sustained and must be set aside. The writ petition is therefore allowed. 10. The respondent Nos. 2 and 3 each of them shall within four weeks from the date of communication of this Judgment complete the process of appointment of the petitioner as stenographer in the office of the Respondent No.3 and give him the appointment to the post of Stenographer, if there is nothing adverse in the medical report and the police verification report of the petitioner. There is no order as to costs. Writ petition allowed; direction given to give appointment.