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2002 DIGILAW 675 (CAL)

Tariff Hossain v. State of West Bengal

2002-10-09

Amitava Lala

body2002
JUDGMENT Amitava Lala, J.: This writ petition is made challenging the vires of section 4 of the West Bengal Regulation of Recruitment in State Govt. Establishments and Establishments of Public Undertakings, Statutory Bodies, Govt. Companies and Local Authorities Act, 1999. Notice has been served upon the learned Advocate General of the State with the leave of the Court. No affidavit has been filed by the contesting respondent inspite of giving direction. Leave granted to file the supplementary affidavit by incorporating section 4 in the place and instead of section 3 of the Act in the prayer of the writ petition which has been inadvertently done. Section 4 of the Act is as follows: "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". 2. From the plain reading of the Act it appears that it is also made applicable to the local bodies including panchayat authorities and filling up the posts will be made through the Employment Exchange only. This is the crux of the case. According to the petitioner, filling up the posts through the Employment Exchange only is ultra vires to the Constitution of India. Article 246(2) of the Constitution of India says that Parliament has exclusive power to make laws in respect of any of the matters enumerated in List III in the Seventh Schedule in the Constitution referred to as the 'Concurrent List'. Article 254 says that if there is any inconsistency arising between the laws made by the Parliament and laws made by the Legislatures of the State, law which has been made by the Parliament with respect to any of the matters in the Concurrent List either before or after the law made by the Legislature of the State shall prevail except one situation when President gives his assent in respect of the prevailing effect of the State Act. There is a Central Act already existing in the field. The Act says that the Employment Exchange (Compulsory Notification of Vacancy) Act, 1959 was promulgated on 2nd September, 1959 by the Parliament. There is a Central Act already existing in the field. The Act says that the Employment Exchange (Compulsory Notification of Vacancy) Act, 1959 was promulgated on 2nd September, 1959 by the Parliament. Section 4 of the Act gives power of notification of vacancies to the Employment Exchange in respect of every employer whether it is private or public sector or every establishment pertaining to any class or category of the establishment. But sub-section (4) of section 4 says which is as follows: "Nothing in sub-sections (1) and (2) shall be deemed to impose any obligation upon any employer to recruit any person through the employment exchange to fill any vacancy merely because that vacancy has been notified under any of those sub-sections". 3. It appears from there that in such Central Act there is no embargo for recruitment by an agency from outside inspite of notification of vacancies with the Employment Exchange. The present Act appears to be taken assent of the Governor but not the President. Therefore, it cannot have any prevailing effect over and above such Central Act to restrict the candidates from participating in interview for getting a service in respect of panchayat authorities etc. or from any other source other than the source of Employment Exchange. Such Act being a Central Act has its prevailing effect. Although the Central Act has prevailing effect on the field of filling up the vacancies in respect of employment but State Act introduced in 1999 with the assent of the Governor which cannot supersede and/or curtail the right of the citizen in getting the service. 4. Section 224 of the West Bengal Panchayat Act, 1973 gives Rule making power. Under such Act a Rule has been given for filling up the post of appointment of the Sahayak in the Gram Panchayat and certain conditions of service are formulated in Memorandum No. 4406/PN/W/111 dated 4th December, 1998. Paragraph 3(b)(i) speaks for filling up the post in the following manner which is as follows: "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 news papers 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". 5. No. 2701-PN dated 28.7.98 inviting applications from the intending candidates eligible for the post". 5. If such right is taken away by virtue of the present Act then it has to be construed that not only the restriction under section 4 of the Act of 1999 has to be declared as ultra vires but it will run contrary to the own circular of the Principal Secretary of the Government of West Bengal issued for the purpose of filling up the post from the sources other than the Employment Exchange. 6. On a question of affecting right of the petitioner, he contended that a petitioner is a qualified candidate. He can contest the interview if a call is made by way of publication of advertisement. His right cannot be curtailed by saying that after a lapse of few years his name will be sponsored and until such happening comes forward no opportunity of service will be acceded. By that time the petitioner may be age-barred. In such situation entire attempt for incorporation of the name with the Employment Exchange can be a futile attempt. 7. Therefore, only one mode of interview for calling the name from the Employment Exchange cannot be a justifiable stand on the part of the State respondent. Under Article 16(i) of the Constitution of India there shall be an equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Under Article 16(3) nothing in this Article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within a State or Union Territory, any requirement as to residence within that State or Union Territory prior to such employment or appointment. Therefore, when such Central Law is in existence, promulgation of State law curtailing other modes of recruitment without assent of the President of India is definitely ultra vires. Directive principles of State policy under Article 39 of the Part IV of the Constitution of India prescribes the citizens, men and women equally, have the right to an adequate means of livelihood. It is not an idle formality. If State refuses to give employment to one class of people even having qualification it will obviously hit by Article 14 of the Constitution of India. It is not an idle formality. If State refuses to give employment to one class of people even having qualification it will obviously hit by Article 14 of the Constitution of India. Process of incorporation of names and calls from Employment Exchange is obviously a systematic process. But a developing country having hundred crores of people may not get an adequate opportunity within reasonable time. Therefore, the incorporation of the provision of other mode of recruitment under the Central Act is totally fit with the situation. 8. Learned Counsel appearing on behalf of the petitioner, cited several judgments before this Court. Firstly, he cited AIR 1996 SC 2384 (Thirumuruga Kirupananda Variyar Thauathiru Sundara Swamigal Medical Educational and Charitable Trust vs. State of Tamil Nadu & Ors.) to establish that in a conflicting situation between the Central and State Acts, unless the President's assent is received, the Central Act will prevail. I do not think there is any dispute in respect of such proposition of law. The judgment has been cited to analyse the position that when the Central Act i.e. the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959 itself is not restricting any right to notify only with the Employment Exchange for the purpose of availability of the opportunity of service promulgation of the State Act ignoring the same and restricting the avenue of getting service only through the Employment Exchange is not a logical promulgation. 9. Another judgment has been cited before this Court which is reported in AIR 1979 SC 898 (M. Karunanidhi vs. Union of India). In its paragraph 8, the Constitution Bench of the Supreme Court formulated certain points with regard to inconsistency in between the Central Act and State Act. It is, therefore, obvious that in such matters repugnancy may result from the following circumstances: 1. Where the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent and are absolutely irreconcilable, the Central Act will prevail and the State Act will become void in view of the repugnancy. 2. It is, therefore, obvious that in such matters repugnancy may result from the following circumstances: 1. Where the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent and are absolutely irreconcilable, the Central Act will prevail and the State Act will become void in view of the repugnancy. 2. Where however, a law passed by the State comes into collision with a law passed by Parliament on an Entry in the Concurrent List, the State Act shall prevail to the extent of the repugnancy and the provisions of the Central Act would become void provided the State Act has been passed in accordance with clause (2) of Article 254. 3. Where a law passed by the State Legislature while being substantially within the scope of the entries in the State List entrenches upon any of the Entries in the Central List the constitutionality of the law may be upheld by invoking the doctrine of pith and substance if on an analysis of the provisions of the Act it appears that by and large the law falls within the four corners of the State List and entrenchment, if any, is purely incidental or inconsequential. 4. Where, however, a law made by the State Legislature on a subject covered by the Concurrent List is inconsistent with and repugnant to a previous law made by Parliament, then such a law can be protected by obtaining the assent of the President under Article 254(2) of the Constitution. The result of obtaining the assent of the President would be that so far as the State Act is concerned, it will prevail in the State and overrule the provisions of the Central Act in their applicability to the State only. Such a state of affairs will exist only until Parliament may at any time make a law adding to, or amending, varying or repealing the law made by the State Legislature under the proviso to Article 254. 10. In the instant case, there is no assent of the President in respect of the State Act in limiting the call of the candidates from the Employment Exchange only. Therefore, it is militating with the Central Act i.e. the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959 under which the registration was made compulsory. 10. In the instant case, there is no assent of the President in respect of the State Act in limiting the call of the candidates from the Employment Exchange only. Therefore, it is militating with the Central Act i.e. the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959 under which the registration was made compulsory. Lastly, the subject matter is of the Concurrent List of the Seventh Schedule of the Constitution of India. Therefore, in its totality, there is a fallacy on behalf of the Legislative Body in promulgating the State Act 1999 restricting the source of recruitment only with the Employment Exchange. So far the Recruitment Rules annexed herein after Memorandum No. 4406/PN/W/111/98 dated 4th December, 1998 is concerned, a Division Bench judgment of this Court reported in 2000 WBLR(Cal) 357 (Santa Prosad Jana vs. State of West Bengal & Ors.) held that the process of recruitment under the Rules for sponsoring the name from the Employment Exchange as well as by way of publication is a valid proposition of law. The Division Bench held that Article 14 and Article 16 of the Constitution of India mandate that all persons who are eligible for the appointment should be considered for appointment. By following a Supreme Court judgment the Division Bench of this Court also held that it is now well-settled principle of law that Recruitment Rules should be scrupulously followed so as to enable or eligible candidates to apply for the vacant posts. 11. According to me, by restricting only source of recruitment through the Employment Exchange, State Act violates the mandate of the Constitution of India. Therefore, this Court declared that the restriction of recruitment only from the source of Employment Exchange under section 4 of The West Bengal Regulation of Recruitment in State Government Establishments and Establishments of Public Undertakings, Statutory Bodies, Government Companies and Local Authorities Act, 1999 is ultra vires. Therefore, an amendment to the extent is required to be made at the earliest but till such time the recruitment from the Employment Exchange as well as by wide publication of notice in the newspapers will be followed on the strength of the judgment and order of this Court. 12. Thus, the writ petition stands allowed and disposed of. No order is passed as to costs. 13. 12. Thus, the writ petition stands allowed and disposed of. No order is passed as to costs. 13. Let an urgent xeroxed certified copy of this judgment, if applied for, be given to the learned Advocates for the parties within the two weeks from the date of putting the requisites. Writ petition allowed.