Research › Search › Judgment

Calcutta High Court · body

2000 DIGILAW 466 (CAL)

Kaushik Kumar Mondal v. State of West Bengal

2000-09-08

H.Banerji, S.B.Sinha

body2000
JUDGMENT The Court: The appellant herein is aggrieved by an order dated 21.8.2000 passed by a learned Single Judge of this Court in W.P. No. 13435 (W) of 2000 whereby and whereunder the said writ application filed by the appellant herein was disposed of by directing the respondent No.6 to sponsor the name of the petitioner for the post in question provided the name of any junior has been sponsored. 2. Mr. Mondal, learned Counsel, appearing on behalf of the appellant has streneously submitted that having regard to the fact that the State of West Bengal in exercise of power conferred upon it under Article 162 of the Constitution of India laid down Rules by a Circular letter dated 4.12.1998 whereby and whereunder the method of recruitment has been prescribed for appointment of Sahayak in the Gram Panchayat, the question of consideration and candidature of a person whose name has only been sponsored by the Employment Exchange does not arise. In support of the aforementioned contention strong reliance has been placed on a Division Bench judgment of this Court in which one of us is a member in Santa Prasad Jana vs. State of West Bengal & Ors., reported in 2000 W.B.L.R. (Cal) 357. 3. Mr. Das Gupta, learned Counsel appearing on behalf of the State, however, brought to our notice that the State of West Bengal enacted West Bengal Regulation of Recruitment in State Government Establishments and Establishments of Public Undertakings, Statutory Bodies, Government Companies and Local Authorities Act, 1999, being West Bengal Act XIV of 1999 (hereinafter called and referred to for the sake of brevity as the said Act) which had come into force with effect from 15.11.1999 a would appear from the notification dated 10.11.1999. Section 4 of the said notification reads thus: "4. After the commencement of this Act, all vacancies in the posts in any Government establishment or establishment of any public undertaking, statutory body, Government company or local authority shall be filled up by such persons as may be sponsored by an employment exchange." 4. Mr. Mandal, however, submits that having regard to the decision of the Apex Court in Excise Superintendent, Malkapatnam, Krishna, District A.P. vs. K. B. N. Visweshwar Rao & Ors., reported in (1996) 6 SCC 216 , despite the said Act, the vacancies should be notified in newspapers and would otherwise be widely published. Mr. Mandal, however, submits that having regard to the decision of the Apex Court in Excise Superintendent, Malkapatnam, Krishna, District A.P. vs. K. B. N. Visweshwar Rao & Ors., reported in (1996) 6 SCC 216 , despite the said Act, the vacancies should be notified in newspapers and would otherwise be widely published. Learned Counsel further contends that having regard to the fact that rules had been framed earlier in terms of the circular dated 4.12.1998 and as the said rules have not been rescinded and in any event, no new rule having been framed in terms of section 11 of the said Act, old rules shall prevail. 5. In Santa Prasad Jana (supra) a Division Bench of this Court, of which one of us was a party, held that once valid rules have been framed by the State in exercise of its power under Article 162 of the Constitution of India in absence of any statute or rule made under the proviso appended to Article 309 of the Constitution of India, the same cannot be amended by reason of an executive instruction. It stands admitted that prior to enactment of the said Act, recruitment rules had been framed by the State in exercise of its power under Article 162 of the Constitution of India which had been circulated by a memorandum dated 4.12.1998, the relevant provisions whereof read thus: "3(a) For the purpose of recruitment against any vacancy in the post of Sahayak of a Gram Panchayat, the Selection Committee at the Block Level shall determine the nature of the vacancy following a Block wise roster of vacancies to be maintained in pursuance of the statutory provisions and circulars of the State Government in the Labour Department and the Backward Classes Welfare Department issued from time to time laying down the nature, extent and procedure for reservation of posts. (b) (i) On determination of the nature of vacancy, the Recruitment Committee shall send requisition to the appropriate Employment Exchange within the district for names of the eligible candidates and also simultaneously publish notice in at least two newspapers published within the district in the manner specified in this Department Memo No. 2701-PN dated 28.7.98 inviting applications from the intending candidates eligible for the post." 6. It is now a well settled principle of law by reason of several decisions of the Apex Court and this Court including Union of India vs. Samasundaram Viswanath, reported in (1989) 1 SCC 175 , whereupon Mr. Mandal himself has relied upon, that executive instruction under Article 162 of the Constitution can be issued in respect whereof State has the legislative competence in the event no statute has been enacted and for the purpose of filling up of the gaps if any necessity arises therefor. The recruitment rules dated 4.12.98 were framed in terms of the said power. It has been held in Samasundaram Viswanath: "It is well settled that the norms regarding recruitment and promotion of officers belonging to the Civil Services can be laid down either by a law made by the appropriate legislature or by rules made under the proviso to Article 309 of the Constitution of India or by means of executive instruction issued under Article 73 of the Constitution of India in the case of Civil Service under the Union of India and under Article 162 of the Constitution of India and in the case of Civil Service under the State Governments. If there is a conflict between the executive instructions and the rules made under the proviso to Article 309 of the Constitution of India prevail, and if there is a conflict between the rules made under the proviso to Article 309 of the Constitution of India and the law made by the appropriate legislature prevails." 7. The said decision therefore runs counter to the submission of Mr. Mandal. Once the State legislature has made enactment, the recruitment rules dated 4.12.1998 must be held to have been repealed by necessary implication to the extent it is contrary to or inconsistent therewith. 8. This court is, at this stage, not concerned as to whether any rule has been framed in relation to the matters governed under section 11 of the said Act, or not. Even assuming. that such rules have not been framed, the rules, which were existing having regard to the provisions of section 25 of the Bengal General Clauses Act shall continue to operate in the field so long rules under the said Act are not framed. This aspect of the matter is now covered by several decisions of this court as also the Supreme Court of India. This aspect of the matter is now covered by several decisions of this court as also the Supreme Court of India. Reference in this connection may be made to Special Bench decision of this Court in AIR 1961 Cal. 578 and 1995 Suppl. (2) SCC 348. 9. The submission of Mr. Mondal to the effect that despite the provision of the said Act, a wide publicity should be given in view of the decision of the Apex Court in KBN Visweshwara Rao cannot be accepted. The Supreme Court in its, earlier decision in Union of India vs. N. Harogopal, reported in (1987) 3 SCC 308 , has categorically held that appointment upon calling for names from the Employment Exchange is not illegal. The Apex Court has also subsequently clarified the position in Arun Tewari & Ors. vs. Zila Mansavi Shikhak Sangha & Ors., reported in AIR 1998 SC 331. This aspect of the matter has also been considered by a Full Bench of this court in Debashis Dutta vs. State of West Bengal, reported in 1998 (2) CLJ 1 , wherein K.B.N. Visweshwara Rao (supra) has been distinguished in the following terms:" In Excise Superintendent, Malkapatnam, Krishna District A.P. vs. KBN Visweshwara Rao & Ors., reported in 1996 (3) SCC 216, 723 posts were sought to be filled up from amongst the candidates sponsored through the medium of Employment Exchange. Although such names were sponsored, in terms of interim direction issued by the Tribunal, orders were issued to select the candidates whose names were not sponsored. Keeping in view the factual matrix the Apex Court held- 'Having regard to the respective contentions, we are of the view that contention of the respondents is more acceptable which would be consistent with the principles of fair play, justice and equal opportunity. It is common knowledge that many a candidate is unable to have the names sponsored, though their names are either registered or are waiting to be registered in the Employment Exchange, with the result that the choice of selection is restricted to only such of the candidates whose names come to be sponsored by the Employment Exchange. Under those circumstances many a deserving candidate is deprived of the right to be considered for appointment to a post under the State. Under those circumstances many a deserving candidate is deprived of the right to be considered for appointment to a post under the State. Better view appears to be that it should be mandatory for the requisitioning authority establishment to intimate the Employment Exchange, and Employment Exchange should sponsor the names of the candidates to the requisitioning departments for selection strictly according to seniority and reservation, as per requisition. In addition the appropriate department or undertaking or establishment should call for the names by publication in the newspapers having wider circulation and also display on their office notice boards or announce on radio, television and employment news bulletins; and then consider the cases of all the candidates who have applied. It this procedure is adopted, fair-play would be sub-served. The equality of opportunity in the matter of employment would be available to all eligible candidates.' 'In that case, there was nothing to show that in terms of the recruitment rules, vacancies would be filled up only from against the candidates whose names had been sponsored by the Employment Exchange".- 10. Similarly, a Division Bench of this Court in Ziaul Islam vs. State of West Bengal, reported in Calcutta Law Times, 1999 (1) HC 509 held; "In Crawford's Statutory Construction and Interpretation of Statutes, Article 271 at Page 539, the law is stated in the following terms: 'Even where a statute is clearly mandatory or prohibitory, yet, in many instances, the courts will regard certain conduct beyond the prohibition of the statute through the use of various devices or principles. Most, if not all of these devices find their justification in consideration of justice. It is a well known fact that often to enforce the law to its letter produces manifest injustice, for frequently equitable and humane considerations, and other considerations of a closely related nature, would seem to be of a sufficient calibre to excuse or justify a technical violation of the law'. No such case of impossibility arise in the instant case." This aspect of the matter has also been considered in Muktipada Maity vs. State of West Bengal & Ors., reported in 1999 WBLR (Cal) 252. 11. No such case of impossibility arise in the instant case." This aspect of the matter has also been considered in Muktipada Maity vs. State of West Bengal & Ors., reported in 1999 WBLR (Cal) 252. 11. All the aforementioned decisions had again been considered by a Division Bench comprising A.K. Mathur, C.J. and one of us S.B. Sinha, J. in Sairindhri Dolui vs. State of West Bengal, 2000 (1) SLR 803, wherein all the relevant decisions on the question had been taken into consideration. It has clearly been held therein that any appointment made in violation of the mandatory provisions of the statute or the recruitment rules would be void. If, in view of the aforementioned decisions, the case of the petitioner could not be considered as his name had not been sponsored by the Employment Exchange, the only relief to which he was entitled to, was in that which had been granted in his favour by the learned trial Judge. If the petitioner is not registered with the Employment Exchange, his name cannot be sponsored. His name also cannot be sponsored by the Employment Exchange if he does not come within the purview of the zone of consideration. Only grievance that can be raised by a person as against the authorities of the Employment Exchange is only if the names of others who had got their names registered after the petitioner, had been sponsored excluding, him. In this event, the vires of the 1999 Act has also not been questioned. 12. For the reasons aforementioned, we are of the opinion that no case has been made out for interference with the impugned judgment. There is no merit in this appeal. The appeal and the application are accordingly dismissed, but in the facts and circumstances, there will be no order as to costs. S.B. Sinha, J. H. Banerji, J. Appeal dismissed.