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2001 DIGILAW 416 (CAL)

Amit Kumar Dinda v. State of West Bengal

2001-07-12

DIPAK PRAKAS KUNDU

body2001
JUDGMENT 1. The writ petitioner in this writ application has prayed for an order commanding the concerned respondents-authorities as well as the Selection Committee for the said purpose to allow the petitioner in the interview to be held on 4th August, 2001 for the post of Panchayat Sahayak in 7 No. Dariapur Gram Panchayat under Contai-II Panchayat Samity, District-Midnapore. 2. The learned Advocate appearing for the writ petitioner supported the claim of the writ petitioner on the basis of a circular dated 4.12.1998 issued by the Principal Secretary to the Government of West Bengal. In the aforesaid circular dated 4.12.1998, it was laid down that ten per cent of the total post of Sahayak of Gram Panchayat in a district shall be filled up by promotion from among the serving Gram Panchayat Karmees in a Gram Panchayat within the district who have passed Madhyamik or equivalent examination and have put in at least ten years of regular and satisfactory service. If, however, no eligible candidate is available for filling up a vacancy, the post will be filled up by direct recruitment. The said circular dated 4.12.1998 further laid down that the remaining 90% of the post in a district shall be filled up by direct recruitment in the manner specified in Memo No. 2701-PN/N/III/2A-25/97 dated 28.7.1998. In Memo dated 28.7.1998, it was laid down that the candidature of persons not sponsored by the Employment Exchange(s) shall also be considered along with the candidates sponsored by the Employment Exchange(s) for recruitment against the vacancies. It was further laid down by the aforesaid Memo dated 28.7.1998 that from time to time the Recruitment Committee shall send requisition to the appropriate Employment Exchange or Exchanges within the districts for names of candidates and publish notice in leading newspapers in the manner laid down in the said Memo inviting application from the intending candidates eligible for the post(s). 3. The learned Advocate for the petitioner also relied upon the decision of a Division Bench of this High Court in (1) Santa Prosad Jana v. State of West Bengal & Ors. reported in 2000 WBLR (Cal) 357. The learned Advocate for the petitioner also relied upon the decision dated 18.9.2000 rendered by P.K. Samanta, J. in (2) Suman Ali v. Govt. of West Bengal & Ors. (W.P. No. 10315(W) of 2000). reported in 2000 WBLR (Cal) 357. The learned Advocate for the petitioner also relied upon the decision dated 18.9.2000 rendered by P.K. Samanta, J. in (2) Suman Ali v. Govt. of West Bengal & Ors. (W.P. No. 10315(W) of 2000). Today while replying, the learned Advocate for the petitioner relied upon the decision in the case of (3) Y.V. Rangaiah & Ors. v. J. Sreenivasa & Ors. reported in AIR 1983 SC 852 . The learned Advocate for the petitioner today also relied upon a Division Bench Judgment of this High Court in (4) Basudeb Bag & Anr. v. Bhaskar Chandra Kar & Ors. reported in 1996(1) CLJ 230 . The learned Advocate for the petitioner also relied upon an order passed by me on 6.4.2001 in W.P. No. 5071 (W) of 2001. 4. The learned Advocate for the respondents opposed the argument made by the learned Advocate for the petitioner. While opposing the contention and argument of the learned Advocate for the petitioner, the learned Advocate for the respondents referred to and relied upon (1) the West Bengal Regulation of Recruitment in State Government Establishment and Establishments of Public Undertakings, Statutory Bodies, Government Companies and Local Authorities Act, 1999 (hereinafter referred to as the said Act) ; and (2) the decision dated 8.9.2000 of a Division Bench of this High Court in (5) Kaushik Kumar Mondal v. State of West Bengal & Ors. in M.A.T. No. 2809 of 2001 with C.A.N. No. 7083 of 2000. The learned Advocate for the respondents also referred to and relied upon a Special Bench Decision of this High Court in (6) Debasish Dutta v. State of West Bengal & Ors. reported in 1993 (2) CLJ l. 5. It is evident from Santa Prosad Jana's case (supra), that the said Act was not placed before the Division Bench of this High Court and the Division Bench of this High Court had no chance to consider the said Act. The decision in Santa Prosad Jana (supra), was delivered on the basis of the circular dated 4th December, 1998. I have carefully gone through the decision of the Division Bench in Santa Prosad Jana's case (supra), and I do not find any mention of the said Act. However, Santa Prasad Jana's case (supra), was considered by a Division Bench of this High Court in the case of Kaushik Kumar Mondal (supra). I have carefully gone through the decision of the Division Bench in Santa Prosad Jana's case (supra), and I do not find any mention of the said Act. However, Santa Prasad Jana's case (supra), was considered by a Division Bench of this High Court in the case of Kaushik Kumar Mondal (supra). The Division Bench of this High Court considered the aforesaid Act and also the circular dated 4.12.1998 and the Division Bench of this High Court after thoroughly considering the points held as follows :- "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 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." 6. Thus, it is clear that by subsequent decision of the Division Bench of this High Court after taking into consideration in Santa Prasad Jana's case (supra), and the circular dated 4.12.1998 as also the aforesaid Act came to the conclusion that the persons whose names have not been sponsored by the Employment Exchange (s) cannot get any relief other than direction directing the concerned Employment Exchange to sponsor the name of the petitioner for the post in question provided the name of any junior has been sponsored. The Division Bench of this High Court further held that if a person is not registered with the Employment Exchange, his name cannot be sponsored and his name also cannot be sponsored by the Employment Exchange if he does not come within the purview of the zone of consideration. It was held that grievance that can be raised by a person against the authorities of the Employment Exchange only if the name of others who had got their names registered after the petitioner, had been sponsored excluding him. It was held that grievance that can be raised by a person against the authorities of the Employment Exchange only if the name of others who had got their names registered after the petitioner, had been sponsored excluding him. The order of the trial Judge directing the Employment Exchange to sponsor the name of the petitioner for the post in question provided the name of any junior has been sponsored was not interfered with. The decision rendered by the Division Bench of this High Court in Kaushik Kumar Mondal's case (supra), is binding upon me. 7. So far the judgment rendered by P.K. Samanta, J., in Suman Ali (supra), is concerned it appears that the said judgment was rendered on 18.9.2000 whereas the judgment in Kaushik Kumar Mondal's case (Supra), was rendered on 8.9.2000. I have carefully gone through the judgment rendered by P.K. Samanta, J. It is apparent that the decision of Kaushik Kumar Mondal's case (supra), was not cited before the learned Judge and the learned Judge had no opportunity to look at the decision rendered by the Division Bench of this High Court in Kaushik Kumar Mondal's case (supra). In Suman Ali (supra), it was, inter alia, held as follows : "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 Prasad Jana (supra)." I am of the opinion that in view of the decision of the Division Bench of this Court in Kaushik Kumar Mondal's case (supra), the decision rendered in Suman Ali's case (supra), cannot have any binding precedent because two decisions cannot go together. No doubt that the decision in Suman Ali's case (supra), is binding upon the parties in that case but that has no binding effect on me. I am bound to follow the decision of the Division Bench in Kaushik Kumar Mondal's case (supra). 8. That apart I find that in the aforesaid Act there is no provision laying down the procedure for publication of notice in the newspaper. On the other hand, I find that in Section 4 of the said Act, it has been clearly laid down that after the commencement of the said Act all vacancies in the posts in any Government Establishments 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. The use of the word “shall" in Section 4, in my view, has made the provisions of Section 4 mandatory. In Section 5 of the said Act, it has been laid down that every appointing authority in any Government Establishments or establishment of any public undertaking, statutory body, Government Company or Local Authority shall notify to the Employment Exchange concerned, in the form of a requisition, every vacancy in any post in such establishment in accordance with the provisions of the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 and the rules made thereunder and shall state the qualifications, age, experience or any other requirement for filling up of such vacancy. I am of the view that the use of the word "shall" has made the provisions of Section 5 of the aforesaid Act mandatory. I am of the view that the use of the word "shall" has made the provisions of Section 5 of the aforesaid Act mandatory. It further appears from Section 6 of the aforesaid Act that the Employment Exchange shall, on receipt of the requisition under Section 5, submit to the appointing authority a list of registrants other than the registrants who belong to the exempted category, in order of seniority determined on the basis of the length of the period of registration in that Employment Exchange and in accordance with such principle of rotation as the Director of Employment Exchange may prescribe from time to lime and also in conformity with the qualification, age, experience or Other requirement, if any, as stated in the requisition. The use of the word "shall”, in Section 6, in my opinion, has made the provisions of Section 6 mandatory. Therefore, I am of the view that if one reads Sections 4, 5 and 6 of the aforesaid Act jointly or separately it is clear that all the said sections are absolutely mandatory and strict compliance of the sections is necessary. It is not that the Legislature was ignorant that the post can also be filled up by publishing notices in the newspaper but the Legislature in its wisdom, chose not to include that method in the said Act and excluded the said method. In my opinion, the maxim "expressum facit cessare tacitum" (when there is express mention of certain things, then anything not mentioned is excluded) applies to the present case. In (7) B. Shankara Rao v. State of Mysore reported in AIR 1969 SC 453 at 459, the Supreme Court pointed out that this well known maxim is a principle of logic and common sense and not merely a technical rule of construction. The same view was reiterated in (8) Union of India v. Tulsiram Patel reported in AIR 1985 SC 1416 at 1450. 9. That apart as far back as in 1875 in (9) Taylor v. Taylor reported in (1875) 1 Ch D 426, it was laid down that when power is given under a statute to do a certain thing in a certain way the thing must be done in that way or not at all. This principle is very much well-settled and followed in a large number of decisions. This principle is very much well-settled and followed in a large number of decisions. Suffice it to refer to (10) State of Gujarat v. Shantilal reported in AIR 1969 SC 634 at 654. Therefore, any vacancy of Sahayak of Gram Panchayat which can be filled up should be filled up strictly in accordance with the provision of the aforesaid Act and not by taking recourse to the procedure not prescribed by the said Act. 10. So far my order dated 6.4.2001 in (11) Sayed Ali v. State of West Bengal & Ors. (W.P. No. 5071 (W) of 2001) is concerned it is absolutely clear on the face of the order that the said order was passed without taking into consideration of the provisions of the aforesaid Act and the decision of the Division Bench of this Court in Kaushik Kumar Mondal's case (supra), as also the decision of a Special Bench of this High Court in Debasish Dutra's case (supra). I have no hesitation to say that my direction was per incurium and is not binding upon me. I feel relaxed to say so. 11. So far the decision in Y.V. Rangaiah's case (supra), is concerned, I am of the view that the said decision should be read in factual matrix of the said case which was stated in Paragraph 4 of the aforesaid decision. The said Paragraph 4 is quoted hereinbelow : "In the light of the rules and instructions mentioned above, a list of approved candidates should have been prepared as on 1st September, 1976 for making appointments to the grade of Sub-Registrars Grade-II by transfers. The grievance of the petitioners is that contrary to the rules and instructions a list of the approved candidates was not prepared as on 1st September, 1976 instead it was considerably delayed and drawn up only in the year 1977 when an amendment to the rules had been incorporated by G.O. Ms No. 265-Revenue (UI) dated 22nd March, 1977 whereby the original rules providing for consideration of Lower Division Clerks for appointment as Sub• Registrars Grade-II were done away with and promotion or transfer to that Category was to be made from amongst Upper Division Clerks employed in the Registration and Stamps Department. The complaint of the petitioners in the two representations petitions is that by delaying the preparation of list of approved candidates till after the rules were amended their chance for consideration for appointment to the higher post were adversely affected, inasmuch as the petitioner in representation petition No. 302 of 1978 ranked as Sr. No.2 in Zone IV and the two petitioners in representation petition No. 1036 of 1978 stood at Sr. Nos. 9 and 10 in the category of Lower Division Clerks, i.e., much higher to the respondent Nos. 3 to 15. Had a list been prepared as on 1st September, 1976 in accordance with the prescribed rules and instructions the petitioner, by virtue of their high seniority among the Lower Division Clerks stood a fair chance of being appointed to the higher grade. The inevitable result of the delay in the preparation of the list has been that respondent Nos. 3 to 15, who were juniors to the petitioners in the category of Lower Division Clerks, have been promoted as Sub-Registrars Grade-II and the petitioners who were senior to those respondents have been denied their legitimate change of promotion. The petitioners in the two representation petitions, therefore, prayed for cancellation of the appointment of respondent No. 3 to 15 and for their appointment in the vacancies that existed from 1st September, 1976 to 31st August, 1977. The petitioners further sought direction to the respondent Nos. 1 and 2 to prepare a panel or list of the Upper Division Clerks and Lower Division Clerks eligible for appointment by transfer as Sub-Registrars Grade-II according to old Rule 5 of Andhra Pradesh Registration and Sub-ordinate Service Rules and to make appointments by transfer with retrospective effect out of the panel for vacancies arising during the said period." 12. It is evident from the above quoted Paragraph 4 that in the light of the rule and instruction mentioned in Paragraphs 1, 2 and 3 of the said decision that a list of approved candidates should have been prepared as on 1st September, 1976 for making appointments to the grade of Sub-Registrars Grade-II by transfer. The list of the approved candidates was not prepared as on 1st September, 1976 instead it was considerably delayed and drawn up only in the year 1977 when an amendment to the rules had been incorporated. The list of the approved candidates was not prepared as on 1st September, 1976 instead it was considerably delayed and drawn up only in the year 1977 when an amendment to the rules had been incorporated. The complaint of the petitioners was that by delaying the preparation of the list of the approved candidates till after the rules were amended, their chance for consideration for appointment to the higher post were adversely affected. Had a list been prepared as on 1st September, 1976 in accordance with the prescribed rules and instructions the petitioners by virtue of their high seniority among the Lower Division Clerks stood a fair chance of being appointed to the higher grade. The inevitable result of the delay in the preparation of the list had been that the junior to the writ petitioners in that case had been promoted and the petitioners who were seniors to them had been denied their legitimate chance of promotion. The factual matrix in the case of Y.V. Rangaiah (supra), is absolutely different from those involved in the present case. It is not the case of the petitioner, made out in the petition, that there was delay and for that delay the petitioner was prejudiced. That apart, the selection process was not initiated in the year 1998 or 1999. The aforesaid Act came into force with effect from 15.11.1999. There is no allegation in the petition that the selection process was started before 15.11.1999 or that the petitioner was entitled to be considered' before 15.11.1999. In fact, the petitioner has filed this writ application on 18.5.2001. Under the circumstances, I am of the view that the Supreme Court decision in Y.V. Rangaiah's case (supra), has no manner of application in the facts and circumstances of the present case. 13. So far Basudeb Bag's case (supra), is concerned it is evident from that the Division Bench of this Court had laid down that as the process of selection had commenced in 1983 which had to be completed in accordance with law as it stood at the commencement of the selection, the said selection could not be held to be illegal. 14. The learned Advocate for the petitioner sought to argue that since the post was created in the year 1998, the petitioner should get the benefit of the circular dated 4.12.1998 and the provision of the said Act shall have no application. 14. The learned Advocate for the petitioner sought to argue that since the post was created in the year 1998, the petitioner should get the benefit of the circular dated 4.12.1998 and the provision of the said Act shall have no application. I cannot accept the argument of the learned Advocate for the petitioner for the simple reason that nothing has been disclosed before this Court to show that the process of selection had commenced prior to 15.11.1999, the date of commencement of the aforesaid Act. That being the position, I am of the view that the aforesaid judgment of the Division Bench of this High Court in Basudeb Bag's case (supra), has no manner of application in the present case. No averment has been made in the petition to show that the process of filling up of the vacancy in the post of Sahayak of Gram Panchayat had been initiated prior to 15.11.1999. 15. A Special Bench of this High Court in Debasish Dutta's case (supra), considered the decision of Supreme Court in (12) Malkapatnam, Krishna District v. B.N. Viwashar Rao & Ors. reported in 1996 (3) SCC 216 and distinguished the decision in the following words :- "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." 16. In Debasish Dutta's case (supra), the writ petitioner prayed for direction upon school authority including the Selection Committee to allow the petitioner to appear in the interview along with the candidates sponsored by the Employment Exchange. Recruitment Rules required sponsoring of name by Employment Exchange. Special Bench, inter alia, held as follows :.- "No direction can be issued by this Court upon the Managing Committee of the School to allow any and every person to appear in the interviews although his name has not been sponsored by the Employment Exchange. The orders issued in this behalf by some of the benches of this Court do not lay down the correct law and must be overruled”. 17. The orders issued in this behalf by some of the benches of this Court do not lay down the correct law and must be overruled”. 17. In view of the discussion made hereinabove if I direct the respondents to allow the petitioner to appear before the interview board for selection in the posts of Panchayat Sahayak then that would amount to rewrite the statutory provisions by usurping the legislative power under the thin guise of judicial review. That apart Court cannot direct anyone to ignore or disobey the statutory provisions. I find that there is no merit in the case, hence, the petition is dismissed. There will be no order as to costs. Re: W.P. No. 8680 (W) of 2001. The facts and circumstances and the legal points involved in the present writ proceeding are same and similar to those in Amit Kumar Dinda v. State of West Bengal & Ors. (W.P. No. 7456 (W) of 2001). Just now I have rendered my decision in W.P. No. 7456 (W) of 2001. In view of my decision in W.P. No. 7456 (W) of 2001, this writ petition being W.P. No. 8680 (W) of 2001 is also dismissed. There will be no order as to costs.