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2005 DIGILAW 783 (CAL)

UTTAM KUMAR MAHATO v. STATE OF WEST BENGAL

2005-12-23

SUBHRO KAMAL MUKHERJEE

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Subhro Kamal Mukherjee, J. ( 1 ) THIS is an application under Article 226 of the Constitution of India (the writ petition in short) challenging an order dated October 19, 2005 passed by the District Panchayat and Rural Development Officer, Nadia concerning recruitment to the post of gram panchayet karmee of Bablari Gram Panchayat under Nabadwip Development Block. ( 2 ) THE name of the writ petitioner is registered with the local employment exchange. The writ petitioner belongs to scheduled tribe community. His name was sponsored by the employment exchange for recruitment to the post of panchayat karmee (reserved for scheduled tribe community) of Bablari gram Panchayat under Nabadwip Development Block in the district of Nadia. ( 3 ) THE Gram Panchayat Staff Recruitment Committee issued letters asking the candidates to appear in the interview. The said recruitment committee, also, invited one Gopal Malpaharia to appear in the interview. ( 4 ) ALL the candidates, including the writ petitioner and the said Gopal malpaharia, appeared in the written test held by the said recruitment committee on September 25, 2004. The successful candidates in the written test, including the writ petitioner and the said Gopal Malpaharia, were asked to appear in the oral test on October 9, 2004. ( 5 ) THE Gram Panchayat Staff Recruitment Committee, on the basis of such tests, prepared a panel of three successful candidates in order of merit. The said list was displayed in the notice board maintained in the office of the Block Development Officer of Nabadwip Development Block. In the panel the said Gopal Malpaharia was placed in the first position while the writ petitioner was placed in the second position. ( 6 ) UNDER Rule 48 (3) of the West Bengal Panchyat (Gram Panchayat administration) Rules, 2004 no person could be appointed as a gram panchayat karmee unless he is ordinarily a resident of the panchayat samity area within which the gram panchayat is comprised. ( 7 ) THE said Gopal Malpaharia is not a resident of the panchayat samity area within which Bablari Gram Panchayat is comprised. Therefore, Gopal malpaharia was not eligible for appointment in the post of gram panchayat karmee of Bablari Gram Panchayat. ( 7 ) THE said Gopal Malpaharia is not a resident of the panchayat samity area within which Bablari Gram Panchayat is comprised. Therefore, Gopal malpaharia was not eligible for appointment in the post of gram panchayat karmee of Bablari Gram Panchayat. ( 8 ) THE writ petitioner made representation against the panel prepared by the recruitment committee, but as his grievances were not redressed, he approached this Court by filing a writ petition, which was registered as W. P. No. 21375 (W) of 2004. ( 9 ) BY judgement and order dated May 11, 2005 Jyotirmoy bhattacharya, J. disposed of the said writ petition, inter alia, by directing the district Panchayat and Rural Development Officer to consider the grievances of the writ petitioner by treating the earlier writ petition as the representation before him and to dispose of the same by passing a reasoned order after giving opportunities of hearing to the writ petitioner as well as to the said Gopal malpaharia by six weeks from the date of communication of the said order to the said officer. ( 10 ) THE District Panchayat and Rural Development Officer, Nadia heard the writ petitioner and the said Gopal Malpaharia in details. He held enquiries through the Joint Block Development Officer, Nabadwip to verify the residential addresses of both the petitioner and the said Gopal Malpaharia. He asked the employment Officer, District Employment Exchange, Nadia to submit a report before him. ( 11 ) UPON consideration of the contentions of the writ petitioner, the said Gopal Malpaharia, the report of the Joint Block Development Officer, nabadwip, the District Panchayat and Rural Development Officer found, as findings of fact, that the said Gopal Malpaharia was not ordinarily a resident within Nabadwip Development Block, but he was residing within the Nabadwip development Block, but he was residing within the Nabadwip Municipality area. He, further, found that the said Gopal Malpaharia was not eligible for the post of panchayat karmee of Bablari Gram Panchayat and as such the candidature of the said Gopal Malpaharia was liable to be quashed. He, further, found that the said Gopal Malpaharia was not eligible for the post of panchayat karmee of Bablari Gram Panchayat and as such the candidature of the said Gopal Malpaharia was liable to be quashed. The District Panchayat and Rural Development Officer directed the Block Development Officer, Nabadwip to treat the candidature of the said Gopal Malpaharia as cancelled and, further, directed him to initiate fresh process for filling up the vacancy of gram panchayat karmee of Bablari Gram Panchayat by seeking names from the District employment Exchange Office mentioning criteria for eligibility in clear terms. ( 12 ) BEING aggrieved the writ petitioner has come up with this writ petition. ( 13 ) MR. Debabrata Saha Roy, learned Advocate, appearing for the writ petitioner, submits that when the District Panchayat and Rural Development officer found that the said Gopal Malpaharia, who got first position in the panel, was not eligible for appointment in the post of gram panchayat karmee of Bablari gram Panchayat, he ought to have directed the Gram Panchayat Staff recruitment Committee to recast the panel and he ought not to have directed initiation of fresh recruitment process for the said post. Mr. Saha Roy submits the direction to initiate fresh process was issued to deprive the writ petitioner of his legitimate right. ( 14 ) MRS. Bharati Mutsuddi, learned Advocate, appearing for the respondents, did not dispute, in her usual fairness, the findings of the District panchayat and Rural Development Officer that the said Gopal Malpaharia was not eligible for consideration for recruitment in the post of gram panchayat karmee of Bablari Gram Panchayat as he is not ordinarily residing within the panchayat samity area. Nevertheless, she submits that the writ petitioner cannot challenge the order directing initiation of fresh process for selection in the said post as the writ petitioner in the earlier writ petition, inter alia, contended that the entire selection process was vitiated for giving an opportunity to the said gopal Malpaharia and the outcome of such selection process was illegal. Nevertheless, she submits that the writ petitioner cannot challenge the order directing initiation of fresh process for selection in the said post as the writ petitioner in the earlier writ petition, inter alia, contended that the entire selection process was vitiated for giving an opportunity to the said gopal Malpaharia and the outcome of such selection process was illegal. ( 15 ) IN the earlier writ petition, which was registered as W. P. No. 21375 (W) of 2004, the writ petitioner, inter alia, prayed for writs in the nature of mandamus, commanding the respondents to rescind, cancel and withdraw the selection of the said Gopal Malpaharia in the post of panchayat karmee reserved for scheduled tribe community of Bablari Gram Panchayat under Nabadwip panchayat Samity and to issue letter of appointment in favour of the writ petitioner considering him as the first empanelled candidate inasmuch as the first empanelled candidate failed to fulfill the eligibility criteria for the said post. ( 16 ) IN substance, therefore, the grievances of the writ petitioner in the earlier writ petition was that the selection of the said Gopal Malpaharia in the post of panchayat karmee for the said gram panchayat was illegal and the writ petitioner being the second empanelled candidate was entitled to appointment. ( 17 ) JYOTIRMOY Bhattacharya, J. directed the District Panchayat and Rural development Officer to consider the grievance of the writ petitioner. The District panchayat and Rural Development Officer found, as findings of fact, that the said Gopal Malpaharia was not eligible for consideration for appointment in the post of gram panchayat karmee of Bablari Gram Panchayat as he was not an ordinary resident within Nabadwjp Panchayat area. ( 18 ) THE Supreme Court of India in the case of R. S. Mittalv. Union ot india reported in 1995 Supp (2) SCC 230, inter alia, observes that although a person on the select panel has no vested right to be appointed to the post for which he has been selected, the appointing authority cannot ignore the select panel or on its whims decline to make the appointment. When the selection board has selected a person and there is a vacancy, which can be offered to him, keeping in view his merit position, ordinarily, there is no justification to ignore him for appointment. When the selection board has selected a person and there is a vacancy, which can be offered to him, keeping in view his merit position, ordinarily, there is no justification to ignore him for appointment. There has to be a justifiable reason to decline to appoint a person, who is on the select panel. ( 19 ) THE Supreme Court of India in the case of Union of India and Ors. v. Rajesh P. U. , Puthuvalnikathu and Anr. reported in (2003)7 SCC 285 held that where out of the selected candidates it was possible to weed out the beneficiaries of irregularities or illegalities, there was no justification to deny appointment to those selected candidates whose selections were not vitiated in any manner. ( 20 ) THE only defect in the present selection process was to permit the said Gopal Malpaharia to participate in the process although he was not eligible for the post. There was no procedural irregularity or other defect. The District panchayat and Rural Development Officer could not find any irregularity whatsoever in the selection in preparing the panel excepting that permission was granted to Gopal Malpaharia to participate in the selection process. There is no justifiable reason in the order impugned justifying the direction on the block Development Officer to initiate fresh process. There is no case of malpractice or corrupt practice in the selection. ( 21 ) THEREFORE, the order cancelling the entire selection process suffers from the vice of arbitrariness and must he declared illegal and mala fide. ( 22 ) THE order dated October 19,2005 passed by the District Panchayat and Rural Development Officer, Nadia, is set aside in part the direction on the bock Development Officer, Nabadwip, who is convener of Gram Panchayat staff Recruitment Committee, to initiate fresh process for filling up the vacancy of gram panchayat karmee of Bablari Gram Panchayat under Nabadwip panchayat Samity is set aside. ( 23 ) THE Block Development Officer being the convener of the said recruitment committee is directed to call for a meeting of the said recruitment committee to recast the panel treating the candidature of Gopal Malpaharia as cancelled. The authority concerned, thereafter, shall issue the appointment letter to the first empanelled candidate, after such recast of the panel, within a month from the date of receipt of this order. The authority concerned, thereafter, shall issue the appointment letter to the first empanelled candidate, after such recast of the panel, within a month from the date of receipt of this order. ( 24 ) THE writ application is, therefore, allowed in part as indicated hereinabove. I direct the parties to bear their respective costs in this writ petition. Writ petition is allowed