Amarnath Hayet v. State of West Bengal — 1995 DIGILAW 280 (CAL)

JUDGMENT 1. The Writ Application reveals the disturbing feature of an employee who was constrained to approach the writ Court for relief as his claim has been dashed to the ground by the arbitrary action of the respondents bristled with illegalities and inexorable attitude. 2. To redress the wrong, the petitioner preferred a Writ Application claiming a direction in the shape of a mandamus on the respondents to act and proceed according to law and to forbear from giving any effect and/or further effect to the purported appointment made in favour of the respondent Nos. 7 & 8. The other relief excavated by the petitioner in his Writ Application is also for a mandamus with a direction on the respondent to recall, rescind, cancel, withdraw and/or set aside the purported appointment made for the respondent Nos. 7 & 8. It is needless to repeat that a writ of certiorari is also embodied in the prayer of the petition along with ancillary prayers among which the most important prayer that found place in the body of the petition is that the petitioner is entitled to the post of Superintendent, District Jail/Deputy Superintendent Central Jail. 3. To get a grip to the core problem in the lis, the petitioner, after his graduation in the year 1968, appeared in Public Service Commission, West Bengal Miscellaneous Services Recruit Examination and by dint of his merit, he was selected as Dy. Jailor in permanent post. He obtained his training w.e.f. 27.12.73 for a period of three months. 4. In due course he was sent to Malda District Jail as Dy. Jailor on 24.4.74 and some time in April 26, he was transferred to Midnapore Central Jail as Dy. Jailor, where he worked in the Establishment Branch. With the passage of time, the petitioner appeared in the West Bengal Civil Service and allied examination of 1977. He qualified in both the Groups-A & B, but he was appointed in Group-C as Inspector, weights and measures, where he worked for some time under the Commerce and Industries Department, weights and measures Branch, Calcutta Headquarter. 5. In the mean time, the Public Service Commission made an advertisement bearing No. 2/80 dated 8th of January, 1988 where the applications were invited for certain posts. According to Annexure-A the following advertisement was made: One temporary (likely to be permanent) post of whole time Superintendent, District Jail/Dy. 5. In the mean time, the Public Service Commission made an advertisement bearing No. 2/80 dated 8th of January, 1988 where the applications were invited for certain posts. According to Annexure-A the following advertisement was made: One temporary (likely to be permanent) post of whole time Superintendent, District Jail/Dy. Superintendent, Central Jail, (other than Presidency Jail) order home (Jails) Dept. in HEGS. Women unsuitable. Person eligible for promotion to the post are ineligible to apply. Pay: 600-25-650-30-360. QUALIFICATIONS: Essential (i) Degree; (ii) Administrative experience for three years in a responsible capacity. Desirable: (i) Diploma in Sociology; (ii) Experience of Cottage Industries and in handling mer. Age: Ordinarily between 30 and 35 years on 1.2.80. One temporary (likely to be permanent) post of Asst. Prof. of Sarder Frida and Ayurved Itihas, J.B. Roy State Ayurvedic Medical College and Hospital in WBBS. Pay: 425-15-500-20-700-25-825 plus N.P.A. of Rs. 75 p.m. private practice not allowed. Selected candidate shall prior to joining to produce in certificate of registration with Paschim Banga Ayurved Parishad. QUALIFICATIONS: Essential (i) Degree in Ayurved or any other qualification included in Part A of the schedule to Paschim Banga Ayurvedic System of Medicine Act, 1961; (ii) Teaching experience for five years; (iii) Ability to lecture in Bengali; Desirable: Post-graduate qualifications or research experience in Ayurveda. Age: Ordinarily not more than 45 years on 1.1.80, re1axable for otherwise well qualified and experienced candidates. 6. In view of the above advertisement, the petitioner placed himself in the interview on 27.3.80 as he was an eligible candidate for the post. He did not refrain from putting in his testimonials. Though the petitioner appeared in the interview, yet the respondents did not intimate him ever about the fate of the interview. Annexure-D will unfold the representations put in by the petitioner craving for the result of the interview. During the subsistence of the panel of the first interview, an identical advertisement of West Bengal Public Service Commission bearing No. 24/82 under (b) dated 3.7.82 was published in the Ananda Bazar Patrika for another post of a whole time Superintendent District Jail/Dy. Superintendent of Central Jail. 7. The petitioner again appeared in the said interview. It is needless to repeat that the petitioner through inquiries came to learn that in the first interview the petitioner occupied the second place. Superintendent of Central Jail. 7. The petitioner again appeared in the said interview. It is needless to repeat that the petitioner through inquiries came to learn that in the first interview the petitioner occupied the second place. Even in the second interview during the currency and survival of the first panel created under the first interview, the petitioner was not appointed, but one Anup Kumar Tripathy was appointed who was not armed with the requisite qualification. In none of the appointments the Public Service Commission respected the advertisement by which the commission was governed and regulated. The qualifications of the respondent Nos. 7 & 8 were much below the requirement who had no right to be appointed as the respondent No.7 was a matriculate and the essential qualifications requirements of respondent No.8 at any rate did not come within the fold of the advertisement. 8. Neither the demand Justice nor the repeated representations, though swelled in number, did fructify. The petitioner, since baffled of his attempt in securing relief from the authority was compelled to rush to the Writ Court in the manner, as indicated above. 9. The State respondents, though contested the claim, yet it did not choose to submit any affidavit-in-opposition. The State through its learned Counsel has agitated its claim to repel the claim of the petitioner on the ground that the writ petition outlived its purpose and the object for which the relief is sought to have been claimed has now become stale. 10. The reasons assigned by the learned Counsel for the State are that one of the respondents already retired fr0m service and other already being promoted to the next post. The combined result proves inevitably that it is a case of fate accompli. 11. The point that survives for consideration of the Court is as to whether there is any scope for consideration of the' prayer of the petitioner in the background of the fact accompli. 12. The claim as interwoven by the petitioner in his application has been forwarded by the learned Counsel for the petitioner through his studious submission to grounding the claim, of the petitioner, he has argued with much vehemence, if not with emphasis, that the Government cannot twist the law to suit its own end. The submission arises in this way. 13. The claim as interwoven by the petitioner in his application has been forwarded by the learned Counsel for the petitioner through his studious submission to grounding the claim, of the petitioner, he has argued with much vehemence, if not with emphasis, that the Government cannot twist the law to suit its own end. The submission arises in this way. 13. According to him, respondents made an advertisement, Annexure-A for the post indicating sufficiently the qualifications plus the experience. The first thing which stares at my face is that the essential qualification which held the field is the "Degree" plus administrative experience for three years in a responsible capacity. The "Desirability", as couched in the said annexure is the diploma in Sociology in addition to experience to Cottage Industry and in handling men. If I consider the anatomy of the 'qualification' it is manifest that the word 'Degree' stands in preference to diploma in Sociology. It is not a substitute for diploma. 14. The experience of the present petitioner is beyond any shadow of doubt who not only worked as Dy. Jailor in the establishment Branch till 2.7.89 since April 26, 1976. To butress his claim for appointment, it is worthwhile to note that he also worked as an inspector of weights and measures under the Commerce and Industries Department, weights and measures Branch Calcutta Head-quarter. The above untrammeled facts, if forged, 'constitute the claim of the petitioner as legitimate to appoint him in such post as evident by Annexure-A vis-a-vis, the claim of the respondent No.7 who was appointed on the strength of the first interview fails to answer the description. 15. Respondent No. 8 does not stand on a better footing than that of the respondent No.7. The experience as exposed by the petitioner in the writ petition against the respondent Nos. 7 & 8 and their qualifications are beside the advertisement which cannot be a ground for their selection and appointment. The Public Service Commission is an impartial body which is not to serve the cause of anybody. Due to its recommendation, the person/persons applying for the post would be appointed, if eligible. It cannot make any recommendation for appointment overriding the qualification and experience. 16. The Public Service Commission is an impartial body which is not to serve the cause of anybody. Due to its recommendation, the person/persons applying for the post would be appointed, if eligible. It cannot make any recommendation for appointment overriding the qualification and experience. 16. The learned Counsel for the petitioner to demonstrate the role of the Public Service Commission in the matter of selection and appointment has laid much emphasis on (1) Omprakash v. State of M.P., AIR 1978 MP 59 , where the Court eloquently spoke about the role of the Public Service Commission. In short, the Court held that the name of any person not possessed of requisite qualification and experience cannot be appointed as the Public Service Commission survives to ensure a selection of the best available person for appointment in a post, because the Public Service Commission is constituted by person of high ability, varied experience and undoubted integrity and further assisted by experts on the subject. The appointment when made in the instant case overriding the advertisement, the action of the Public Service Commission suffers from grave error and illegality which is not curable. 17. Mr. Banerjee, learned Counsel for the petitioner laid much emphasis on (2) P.K. Ram Chandra Iyer v. Union of India, AIR 1984 SC 541 where the Apex Court held that the person having requisite qualification should be appointed and the Selection Committee did not have the power to relax essential qualification pertaining to experience. There is no material on record that the PSC was within its power and reach to relax the essential requirements as advertised. 18. Mr. Banerjee again relied on (3) State of Bihar v. A.K. Mukherjee, AIR 1975 SC 192 , where the Court endorsed the view that 'screaning a candidate out of consideration altogether is illegal, if the applicant has the eligibility under the regulations'. In the instant case, there is no regulation but the advertisements which disclosed the essential elements and requisites which must be considered and obeyed at the time of selection for the purpose of appointment. I have already indicated that even a selection made followed by appointment dehors the norms and the essential requirements, it is patently illegal not curable unless the experience and qualifications are relaxed which are void in this case. 19. Mr. I have already indicated that even a selection made followed by appointment dehors the norms and the essential requirements, it is patently illegal not curable unless the experience and qualifications are relaxed which are void in this case. 19. Mr. Banerjee again to substantiate his claim for the petitioner has relied on (4) Shri Satyendra Nath Mandal v Hindustan Petroleum Corporation and Others, Cal LT 1994(1) HC 184 to contend that although the case under reference falls on a different premises but the essential requirements must be fulfilled failing which the selection is not protected by law. The essential requirements, since not complied with, it is the obligation of the Court to shoot the action of the respondent at the first sight, otherwise the selection and the appointment following is ridiculous and ridiculed. 20. Therefore, upon consideration of the decisions rendered by the Courts of our country, I have no hesitation to hold that the essential requirements have not been fulfilled while selecting and appointing the respondent Nos. 7 & 8, the claim of the petitioner cannot be whittled down for the fate accompli. The precedents galore that appointments, if made illegally and the persons entitled to benefit possessed of required qualification and experience cannot be thrown out for the fact accompli. 21. The learned Counsel for the State has made a two fold argument. The first of which is that the Court cannot take into account, the claim of the petitioner as the act has already been accomplished. The next argument made by the learned Counsel for the State is that the absence of any prohibitory order cannot impose any liability on the respondents under the service jurisprudence. I cannot accept any of the contentions of Mr. Banerjee as the petitioner is entitled to benefit under the service jurisprudence, though much water had flown into the Ganges of which the petitioner is not the author thereof. It is the action of the respondents which deprived him of enjoying the benefit of service affecting the livelihood of the petitioner coming within the fold of Article 21 of the Constitution. The action of the respondent is curable even after the passage of time for the Writ Application, since not disposed of and for its untenability the fait accompli is no ground to axe his claim. 22. The action of the respondent is curable even after the passage of time for the Writ Application, since not disposed of and for its untenability the fait accompli is no ground to axe his claim. 22. Upon considering the merit of the claim and its viability, I direct appointment of the petitioner to a post of identical nature, if the post falls vacant within a year where the age would not be a stumbling block for his appointment. If no post is available, I direct the respondent No.2 to create a supernumerary post for him till a vacancy occurs. The direction is to be executed within a period of one year. While appointing the petitioner to any of such post, he will not be entitled to any pecuniary arrear benefit of any kind. The authority shall make endeavour to maintain his seniority as far as practible. Concluding, therefore, I hold that the claim of the petitioner succeeds and the application allowed with a direction to issue mandamus accordingly.