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2000 DIGILAW 483 (CAL)

Biswajit Ghosh v. State of West Bengal

2000-09-18

Prabir Kumar Samanta

body2000
Judgment P.K. Samanta, J. This writ petition is one of large number of writ petitions which have been filed in this court challenging the recruitment procedure adopted by the local authority like Gram Panchayat for the purpose of appointment in the posts of Panchayat Karmee, Sahayak and other equivalent posts. On the basis of the allegations made in those petitions, it could be divided into two groups. In one group of petitions allegations are that for the purpose of recruitment in the post concerned, the respective local authority made requisition of eligible candidates only from the Employment Exchange without inviting applications from all eligible candidates by making publication of vacancies in local newspapers or at any conspicuous place of the locality. In the other group it has been alleged that the requisition having been made by the authority concerned to the concerned employment exchange, it forwarded the names of the candidates who were registered later than the writ petitioners. 2. The issue which gained momentum in view of the decision of the Supreme Court reported in (1996) 6 SCC 216 (Excise Superintendent vs. Bisweswar Rao) relates to the recruitment procedure for the posts of Gram Panchayat Karmee in a Gram Panchayat. It may be stated that the posts of Gram Panchayat Karmee in a Gram Panchayat were created by a memorandum dated 28th April, 1994 issued by the Government of West Bengal. Thereafter the West Bengal Panchayat (Recruitment and Conditions of Service of Gram Panchayat Karmee) Rules, 1995 were framed by the State Government in exercise of power conferred by section 224 of the West Bengal Panchayat Act, 1973. The said Rules amongst other prescribed the procedure for recruitment in the said posts under Rule 7. In particular, sub-rule (3) of Rule 7 provided that on determination of the nature of vacancy under sub-rule (2) the Block Level Selection Committee as constituted by sub-rule (1) of Rule 7 of the said rules shall place requisition to the Employment Exchange for names of candidates eligible under Rule 6. In particular, sub-rule (3) of Rule 7 provided that on determination of the nature of vacancy under sub-rule (2) the Block Level Selection Committee as constituted by sub-rule (1) of Rule 7 of the said rules shall place requisition to the Employment Exchange for names of candidates eligible under Rule 6. Accordingly, it was seriously contended that in view of the Supreme Court decision in the case of Excise Superintendent vs. Bisweswar Rao, 1996 (6) SCC 216 , the concerned authorities are under obligation to invite applications from all eligible candidates by publishing the vacancies in the local newspapers and/or upon publication of such vacancies in any conspicuous place of the locality so that the local candidates otherwise eligible for being appointed in the said posts of Panchayat Karmee will have chance for being considered for an appointment in the said posts. 3. In course of hearing it transpired that a post of Sahayak was created in a Gram Panchayat by a circular dated 16.11.98 issued by the Principal Secretary to the Government of West Bengal. The State Government for the purpose of recruitment in the said post of Sahayak by a further circular dated 4.12.1998 issued by the said Principal Secretary prescribed amongst other things the procedure for recruitment. The Division Bench of this court in the case of Santa Prasad Jana vs. State of West Bengal, reported in 2000 WBLR (Cal) 357, held that the said procedure dated 4.12.98 has the statutory force and has prescribed the Rules for recruitment in the post of Sahayak, which amongst other things specifically provided that for the purpose of recruitment in the said post, the concerned authorities would be under obligation to invite applications from all intending eligible candidates of the locality upon publication of notice of vacancies in at least two newspapers published within the district in addition to the requisition that should be made to the appropriate Employment Exchange within the district for names of eligible candidates. 4. Thus, there is apparent inconsistency between the procedures for recruitment in the posts of Panchayat Karmee on one hand and Sahayak on the other hand in a Gram Panchayat. But all such procedures have been laid down in a manner which gave them a statutory character as held by the Division Bench of this court in the case of Santa Prasad Jana (supra). But all such procedures have been laid down in a manner which gave them a statutory character as held by the Division Bench of this court in the case of Santa Prasad Jana (supra). In relation to the procedure for recruitment for the post of Panchayat Karmee as prescribed by aforesaid 1995 Rules this court was addressed only with the argument that in view of the decision of the Supreme Court in the case of Excise Superintendent vs. K.B.N. Bisweswar Rao, (supra) the concerned authority should have proceeded for the purpose of recruitment for the posts of Pane hay at Karmee upon publication of vacancies in the local newspaper/newspapers and/or in any conspicuous place of the locality in addition to the requisition that would be made to the Employment Exchange concerned in compliance with the 1995 Rules. 5. The Supreme Court decision in the above case became the focal point of argument in this case. Therefore it became necessary to consider the same in proper perspective. It is clear from the said Supreme Court decision that it had not the occasion to deal with any particular recruitment Rules framed in exercise of power conferred by the statute or under the provisions of Article 309 of Constitution of India, prescribing a particular procedure for recruitment in a post by making requisition of candidates from the Employment Exchange concerned. In the said decision it was observed that "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 department 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 wide 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." 6. This judgment- of the Supreme Court came to be referred in a subsequent decision of the Supreme Court reported in (1997) 9 SCC 227 , Raj Kumar & Ors. vs. Sakti Raj & Ors. There the recruitment in the posts concerned was made by dispensing with concerned 1955 Rules and the 1970 Notification which modified the said 1955 Rules. This judgment- of the Supreme Court came to be referred in a subsequent decision of the Supreme Court reported in (1997) 9 SCC 227 , Raj Kumar & Ors. vs. Sakti Raj & Ors. There the recruitment in the posts concerned was made by dispensing with concerned 1955 Rules and the 1970 Notification which modified the said 1955 Rules. The 1970 Notification came to be issued, in relation to the method and manner of selection of Canal Pathwaris. It was held that 1955 Rules stood modified and the only competent authority to select the candidates was Subordinate Service Selection Board (SSSB) which was required to advertise the vacancies and select the candidates. Such decision was arrived at by the Supreme Court as because the examinations for recruitments were held and results were declared under 1955 Rules while the Subordinate Service Selection Board (SSSB) did not conduct the examinations. The candidates were given training for three months as prescribed under the 1955 Rules. They were again called for from the respective employment exchange and interviews were conducted thereafter. It was therefore held that the selection was bad in law as it was held by dispensing with both the 1955 Rules and 1970 Notification which had the statutory character. It was observed by the Supreme Court that the Subordinate Service Selection Board (SSSB in short) having been empowered by 1970 Notification to recruit candidates, was further required to advertise and select the candidates under the said notification which was not done. Therefore, the ratio of the said decision is that the 1970 Notification which provided for advertisement of vacancies and selection of candidates by Board, having the statutory character should have been followed for the purpose of recruitment of candidates. In other words the procedure adopted for recruitment of candidates by dispensing with the said 1970 Notification which had the force of a statute was held to be in law. 7. Interestingly, the Supreme Court in a further later decision reported in (1998) 2 SCC 332 , Arun Tewari and Ors. In other words the procedure adopted for recruitment of candidates by dispensing with the said 1970 Notification which had the force of a statute was held to be in law. 7. Interestingly, the Supreme Court in a further later decision reported in (1998) 2 SCC 332 , Arun Tewari and Ors. vs. Zila Mansavi Shikshak Sangha and Ors., relied on the decisions reported in (1987) 3 SCC..., Union of India vs. Hargopal and (1992) 4 SCC 99, Delhi Development Horticulture Employees Union vs. Delhi Administration and distinguished the decision in the case of Excise Superintendent vs. K.B.N. Bisweswar Rao, (1996) 6 SCC 216 by holding that the same was on the basis of special facts of that case. In the case of Arun Tewari (supra) proviso to Rule 10(3) of the Recruitment Rules provided that in specific circumstances the State Govt. may in consultation with the general administrative department prescribe the criteria and procedure for the selection of candidates. The Education Department proposed a scheme for selection of Assistant Teachers under the said proviso by inviting applications from Employment Exchange. The State Govt.'s approval of the said scheme was found in that case. The Supreme Court held that the said proviso to Rule 10(3) of the Recruitment Rules did not suffer from unguided and excessive delegation of power inasmuch as the discretion was given to the Government itself and not to a subordinate officer and therefore the rule making authority had given to itself the power to prescribe criteria and procedure for selection in specific circumstances. It held that the scheme framed for selection by inviting applications from Employment Exchange was in exercise of the power conferred by proviso to rule 10(3) of the recruitment rules and such scheme prescribing separate criteria and procedure in special circumstances by making departure from normal recruitment process was absolutely permissible and therefore no objection can be raised in this regard. Thus, the Supreme Court came to hold in substance that a scheme prescribing criteria and procedure for selection of candidates which was framed in exercise of the power conferred by the Rules which is statutory in nature cannot be questioned on the strength of the decision in the case of Excise Superintendent vs. Bisweswar Rao (supra) as because such procedure contemplated selection by inviting application from Employment Exchange. 8. The Supreme Court in another decision reported in (1998) 3 SCC 88 , Dr. 8. The Supreme Court in another decision reported in (1998) 3 SCC 88 , Dr. Mira Massey vs. Dr. S.R. Mehrotra, was required to consider the appointments made in favour of the appellants in the posts of Lecturer in the University concerned who were engaged as Research Associates and/or Evaluators. The posts of Research Associates and Evaluators were not referred to the Act, Statute or Ordinance of the University. The appointments of the appellants against regular posts of lecturer were strongly deprecated by the Supreme Court in view of the Ordinance 35.11 (b) which referred that whenever a vacancy is to be filled up by direct recruitment in the posts in categories A & B, it shall be through advertisement specifying the minimum eligible qualifications. The Supreme Court though did not interfere with the appointments made in the posts of lecturer in favour of appellants because of their qualifications and long association with the University as such but when creating a precedent is indicated that the vacancies in the posts of lecturer are required to be filled up on regular basis upon due advertisement. This decision was rendered obviously on the basis of Ordinance 35.11(b) of the University which itself provided for due advertisement for the purpose of direct recruitment in the posts of lecturer. This decision of the Supreme Court stands on a different footing as in the filed of higher education teachers should always be selected purely on the basis of their merits and the University should always endeavour to appoint best available candidates in the country as teachers for the best interest of education. It therefore, necessarily implies that for the purpose of an appointment in the post of a lecturer in an University there should always be an advertisement of the vacancy for the purpose of inviting applications from the best available candidates in the country. 9. Thus, upon consideration of the decisions of the Supreme Court as above, it appears that the recruitment rules as framed which have the force of law, be it for recruitment upon due advertisement or by inviting applications from Employment Exchange should necessarily be followed scrupulously. 9. Thus, upon consideration of the decisions of the Supreme Court as above, it appears that the recruitment rules as framed which have the force of law, be it for recruitment upon due advertisement or by inviting applications from Employment Exchange should necessarily be followed scrupulously. In the case in hand the recruitment in the posts of Panchayat Karmee is governed by aforesaid 1995 Rules which were framed by the State Government in exercise of power conferred by section 224 of the West Bengal Panchayat Act which provided for laying the Rules as framed by the State Government before the State Legislature. The Rules thus, framed became a statute. This statute, namely, 1995 Rules amongst other, under sub-rule (3) of Rule 7 provided for placing requisition to the local Employment Exchange for names of candidates for filling up the vacancy in the post of Panchayat Karmee. The said provision being statutory should be scrupulously followed. 10. Publicity regarding vacancy though seems to be the necessary corollary for fair play and equality of opportunity in relation to employment and recruitment from one source namely Employment Exchange will deprive many eligible candidates on the date of vacancy in the post, from applying for an appointment, yet then such a provision cannot be read into the said Rules, 1995 which has the force of law, in the absence of specific mention thereof in the said Rules, 1995. This court has not been addressed on the question of constitutionality of the aforesaid provisions of the Rules, 1995. As discussed hereinbefore and upon summing up of the decisions of the Supreme Court on the point, it emerges that the Rules prescribing the manner and method of recruitment including the manner of the source for recruitment, which have the force of law, if violated would vitiate the selection. So is the decision of the Special Bench of this court reported in 1998(2) CLJ page 1 (Debasis Dutta vs. State of West Bengal). 11. In this connection it is necessary to note that on behalf of the petitioners no materials were produced to show that the aforesaid Special Bench decision has been challenged in the Supreme Court or that the Supreme Court has stayed the operation of the effect of the said judgment. On the contrary, some orders of the Supreme. 11. In this connection it is necessary to note that on behalf of the petitioners no materials were produced to show that the aforesaid Special Bench decision has been challenged in the Supreme Court or that the Supreme Court has stayed the operation of the effect of the said judgment. On the contrary, some orders of the Supreme. Court made in relation to Special Leave Petitions arising out of the interim order of the Division Bench of this court staying the directions of the learned Single Judge for consideration of the applications of the candidates for the purpose of recruitment in the post of Primary Teacher by calling them for interview notwithstanding the fact that their names were not sponsored by the Employment Exchange, were produced. The Supreme Court in setting aside the aforesaid interim order of the Division Bench made a reference to the decision in the case of Excise Superintendent vs. K.B.N. Bisweswar Rao and Ors., (1996) 6 SCC 216 and observed that the Division Bench of this court cannot get out of the above binding judgment of the Supreme Court. The Supreme Court however, directed the Division Bench of this court to dispose of the appeal before it, afresh on merits without reference to the order made by it. The Supreme Court as a matter of principle did not overrule the aforesaid Special Bench decision of this court in the case of Debasis Dutta (supra). 12. The recent enactment by the State Legislature namely the West Bengal Regulations of Recruitment in State Government Establishment and Establishment of Public Undertakings Statutory Bodies, Government Companies and Local Authorities Act, 1999 (Act XIV of 1999) with effect from 15th November, 1999 is very much relevant in this regard. 12. The recent enactment by the State Legislature namely the West Bengal Regulations of Recruitment in State Government Establishment and Establishment of Public Undertakings Statutory Bodies, Government Companies and Local Authorities Act, 1999 (Act XIV of 1999) with effect from 15th November, 1999 is very much relevant in this regard. Sub-section (4) of section 1 of the said Act provides that the said Act of 1999 shall apply to all posts in State Government Establishment and Establishment of Public Undertakings, Statutory Bodies, Government Companies and Local Authorities other than the posts which are required to be filled up either on the recommendations of:- (a) the Public Service Commission, West Bengal, or (b) the West Bengal College Service Commission constituted under the West Bengal College Service Commission Act, 1975, or (c) the West Bengal Regional School Service Commission constituted under the West Bengal School Service Commission Act, 1997, in respect of any of the regions relation to in sub-section (2) of section 3 of the said Act, or (d) any Municipal Service Commission constituted under any law for the time being in force, or (e) the Co-operative Service Commission constituted under the West Bengal Co-operative Societies Act, 1983 or by promotion or by obserption of persons declared surplus by the State Government or by absorption of such categories of casual workers and other workers as the State Government may by notification specify from time to time or by persons included in the exempted category. Section 4 of the said Act of 1999 provides as under: 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. Section 4 of the said Act of 1999 provides as under: 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. Again section 16 of the Act of 1999 provided as under: Notwithstanding anything contained in this Act, no appointment made in any post in any State Government establishment or establishment of any public undertaking or statutory body or Government company or local authority after the coming into force of this Act shall be invalid if the process of filling up of such post have been collected, in accordance with the rules of recruitment to, or the procedure for filling up of, such post in force on the day immediately before the day on which this Act comes into force, and every such appointment shall be deemed to have been validly made as if this Act had not been passed. 13. In view of the aforesaid provisions of the Act XIV of 1999 there is no scope for reading down in the said Rules of 1995 a procedure for recruitment in the posts of Panchayat Karmee by inviting applications through newspaper advertisement of vacancies in the said posts over and above the requisition of candidates from the local Employment Exchange. It will not be out of place to mention that the enactment of the aforesaid Act XIV of 1999 by the State Legislature had the effect of withdrawing the basis of the Supreme Court decision in the case of Excise Superintendent vs. K.B.N. Bisweswar Rao (supra). I am, therefore, of the opinion that for the purpose of recruitment in the posts of Panchayat Karmee, the authority concerned for the manner of the source is required to follow scrupulously the procedure as laid down in the Rules, 1995. Under the said Rules, 1995 it was not under any obligation to invite applications upon publication of the vacancies in the newspaper. Furthermore, the aforesaid Act XIV of 1999 being in the affirmative language with regard to the manner of the source of candidates, there is no scope for reading down a further scope of inviting applications upon publication of vacancies in the newspaper. 14. Furthermore, the aforesaid Act XIV of 1999 being in the affirmative language with regard to the manner of the source of candidates, there is no scope for reading down a further scope of inviting applications upon publication of vacancies in the newspaper. 14. It is again apparent that the provisions made for recruitment of Sahayak in a Gram Panchayat under notification dated 4.12.98 which were held to be statutory in character, empowered the recruitment committee to simultaneously publish notice in at least two newspapers inviting applications from the intending candidates eligible for the post along with the requisition that is to be made to the appropriate Employment Exchange for names of eligible candidates. "Where two Acts are inconsistent or repugnant the latter will be read as having impliedly replaced the others. The court leans against implying a repeal; unless two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time, a repeal will not be implied". "Where a new Act is couched in general affirmative language, and the previous law can well stand with it, and if the language used in the later Act is all in the affirmative, there is nothing to say that the previous law shall be repealed and therefore the old and the new laws may stand together". - Craies on Statute Law. 15. The provisions for the manner of the source of eligible candidates for the purpose of recruitment in the post of Sahayak as per the Rules as above having empowered the Recruitment Committee to invite applications upon publication of vacancies in the newspaper over and above the requisition that is required to be made to the appropriate Employment Exchange can very well stand together with the provisions of Act XIV of 1999 for filling up vacancies in Government Establishment, Statutory Body, or Local Authority by persons sponsored by Employment Exchange, inasmuch as the later provisions do not necessarily import a contradiction. Therefore, for the purpose of selection in the post of Sahayak the Recruitment Committee must proceed upon simultaneous publication of vacancies in the newspapers in addition to the requisition that will be made for eligible candidates before the appropriate Employment Exchange as per the Rules framed under memorandum dated 4.12.98 as held by the Division Bench of this court in the case of Santa Prosad Jana (supra). 16. 16. Thus, the recruitment process for the purpose of selection for an appointment in a post of Panchayat Karmee should be in terms of said 1995 Rules. But one must not lose sight of the large number of allegations coming up to the court in this regard as are appearing in other group of petitions that the concerned Employment Exchange for the purpose of sponsoring names of candidates upon requisition made by the Gram Panchayat either failed to sponsor the names of deserving candidates on the basis of their educational qualification and residence in the locality or sponsored the names of candidates ignoring the seriality and/or the seniority of candidates in relation to the registration of their names with the Employment Exchange. It is also a common experience that such disputes lead to litigations every now and then resulting in delay in filling up the vacancy and at times upsetting the selection. It is therefore necessary that if such a dispute is raised by anyone it should be dealt with at the thresh-hold so that no one can have any grievance afterwards. 17. I, accordingly, hold that if an eligible candidate raises a dispute before the concerned Gram Panchayat by furnishing his registration number with the concerned Employment Exchange, educational qualification, age and the place of his residence; that his name has not been sponsored by the concerned Employment Exchange arbitrarily and illegally or he has been ignored by the Employment Exchange while sponsoring the names of the candidates or that the Employment Exchange ignoring the seniority in registration of candidates has sponsored the names of other candidates, then the concerned Gram Panchayat if finds the said complaint to be a bona fide one, will immediately intimate in writing the substance of the complaint both to the Block Level Selection Committee constituted under Rule 7(1) of said 1995 Rules and the concerned Employment Exchange who sponsored the names of candidates. The said Block Level Selection Committee upon receipt of such information will immediately stop the recruitment process, if no appointment letter has been issued in the meantime. The concerned Employment Exchange upon receipt of such intimation shall compulsorily within a period of one month thereafter reply back in writing to the Gram Panchayat disclosing the reasons as to why such person or persons were not sponsored, which shall be forwarded to the said Block Level Selection Committee. The concerned Employment Exchange upon receipt of such intimation shall compulsorily within a period of one month thereafter reply back in writing to the Gram Panchayat disclosing the reasons as to why such person or persons were not sponsored, which shall be forwarded to the said Block Level Selection Committee. It appears that such person or persons were not sponsored mistakenly or inadvertently and/or wrongfully the said Block Level Selection Committee will take into consideration the candidature of such person or persons for the purpose of recruitment in the post of Panchayat Karmee along with the candidates already sponsored by the concerned Employment Exchange by holding the written test and oral interview of all such candidates afresh. 18. With these directions this writ petition shall stand disposed of. Ail interim orders shall stand vacated. There will be no order as to costs. 19. Urgent xeorx certified copy of this order if applied for be supplied to the parties as expeditiously as possible. Writ petition disposed of with directions. Interim orders vacated.