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2006 DIGILAW 45 (CAL)

RAJIB MITRA v. STATE OF WEST BENGAL

2006-01-27

JYOTIRMAY BHATTACHARYA

body2006
Jyotirmay Bhattacharya ( 1 ) SINCE both these writ petitions are interrelated with each other and further since a common question of law is involved in both these writ petitions, this court heard both these writ petitions analogously and proposed to dispose of both these writ petitions by a common order for avoiding conflict of decisions. ( 2 ) LET me give the short background of the disputes between the parties leading to filing of these two writ petitions by the respective petitioners. The writ petition being W. P. No. 12141 (W) of 2005 was filed by Rajib Mitra seeking issuance of a writ of mandamus commending the respondents their agents and servants particularly the school authority to allow the petitioner to appear in the interview for filling up the post of Group-D staff of Chandannagar Banga Vidyalay along with other sponsored candidates with an alternative prayer for regularisation of his service in the said post. ( 3 ) ADMITTEDLY, the name of the petitioner was not sponsored by the employment Exchange. As a result, the school authority did not permit the petitioner to participate in the selection process for the said post. ( 4 ) RELYING upon various decisions of the Hon'ble Supreme Court including the decision in the case of Abu Tehir v. Addul Wahab and Ors. , in Civil appeal No. 1203 of 2001, the petitioner asserted his right of participation in the said selection process notwithstanding the fact that his name was not sponsored by the Employment Exchange for the said post. ( 5 ) BY an interim order passed on 10th June, 2005, the petitioner was permitted to participate at the interview provided it was found that any candidate junior to him in the matter of registration had been sponsored by Employment exchange. It was also provided in the said interim order that in case the petitioner is allowed to participate at the interview and he succeeds in getting appointment, such appointment shall abide by the result of the writ petition. ( 6 ) IT appears from the affidavit-in-opposition filed on behalf of the respondent Nos. 4 and 5 therein that none of the sponsored candidates was junior to the said petitioner with reference to their date of registration. But still then, the petitioner was allowed to participate in the said selection process. ( 7 ) ONE of the sponsored candidates, viz. 4 and 5 therein that none of the sponsored candidates was junior to the said petitioner with reference to their date of registration. But still then, the petitioner was allowed to participate in the said selection process. ( 7 ) ONE of the sponsored candidates, viz. , Partha Kumar Pal filed the other writ petition being W. P. No. 12991 (W) of 2005 challenging the action of the selection authority for allowing the petitioner in W. P. No. 12141 (W) of 2005 to participate in the selection process in spite of the fact that the conditions imposed in the aforesaid interim order was not satisfied. In the said writ petition, the petitioner therein sought for issuance of a writ of mandamus commending the respondent Nos. 1 to 10 to revoke, cancel, rescind, set aside and forbid from giving effect to the interview of the respondent No. 11 therein, viz. , the petitioner in the earlier writ petition) and not to consider him in the process of preparation of panel for the concerned post. ( 8 ) IN the said writ petition, the petitioner alleged that since none of the sponsored candidate was junior to the respondent No. 11 (viz. . the petitioner in w. P. No. 12141 (W) of 2005), the concerned authority ought not have allowed the said respondent to participate in the selection process. It was further alleged by the petitioner that the candidature of the respondent No. 11 therein who was allowed to participate in the selection process in violation of the interim order, should not be taken into account for the purpose of preparation of panel for the said post. ( 9 ) MR. De, learned Senior Advocate, appearing on behalf of the petitioner in W. P. No. 12991 (W) of 2005, submitted that at the time of initiation of the selection process the right of participation of Mr. Bari's client as a non-sponsored candidate was not recognised in view of the Special Bench decision of this Court in the case of Debasis Dutta v. State of West Bengal reported in (1998)2 Cal LJ page 1. ( 10 ) MR. De pointed out that the decision in the case of Debasis Dutta was delivered by the Special Bench of this Court on 13th May 1988. ( 10 ) MR. De pointed out that the decision in the case of Debasis Dutta was delivered by the Special Bench of this Court on 13th May 1988. The said decision was operating in the field till the delivery of the judgement by the Full bench of this Court on 7th July 2005 in the case of Rabindranath Mahata v. State of West Bengal and Ors. reported in (2005)2 Cal LJ page 161 : (2005)2 wblr (Cal) 266, wherein it was held that the decision in Debasis Dutta's case stood virtually overruled by the unreported decision of the Hon'ble Supreme court in the case of Abu Tehar v. Wahab and Ors. ( 11 ) MR. De, thus, contended that since the right of participation of any non-sponsored candidates was not recognised till the delivery of the Full Bench decision on 6th July, 2005, the concerned authority should have refused to allow the respondent No. 1 1 to participate in the said selection process. ( 12 ) MR. De further contended that the right of the respondent No. 11 to participate in the selection process should be determined with reference to the date of issuance of the interview letter, i. e. , 26th May 2005 which is the effective date for initiation of the selection process in view of the Division Bench decision of this Court in the case of Snehansu Jas v. State of West Bengal reported in (2001)2 Cal LJ 558. ( 13 ) MR. De, thus, contended that since the right of the non-sponsored candidate to participate in the selection process was not recognised till 25th may 2005, the respondent No. 11 should be excluded from the process of selection. ( 14 ) MR. De submitted that if the respondent No. 11 who was placed at the top in the panel is excluded from the selection process then his client, viz. , the petitioner in the subsequent petition who occupied the second position in the panel should be given appointment in the concerned post. ( 15 ) MR. Bari learned Advocate appearing for the respondent No. 11, viz, the petitioner in the earlier writ petition refuted the said submission of Mr. De by contending inter alia that in view of the decision of the Hon'ble Supreme Court in the case of Abu Tehirv. Abdul Wahab and Ors. ( 15 ) MR. Bari learned Advocate appearing for the respondent No. 11, viz, the petitioner in the earlier writ petition refuted the said submission of Mr. De by contending inter alia that in view of the decision of the Hon'ble Supreme Court in the case of Abu Tehirv. Abdul Wahab and Ors. , the right of his client to participate in the selection process cannot be denied notwithstanding the fact that his name was not sponsored by the Employment Exchange. ( 16 ) MR. Bari further submitted that since his client is otherwise eligible for the said post and was ultimately found to be successful in the interview, his right to get appointment in the concerned post cannot be denied. ( 17 ) THUS, by relying upon the unreported decision of the Hon'ble supreme Court in the case of Abu Tehir v. Abdul Wahab and Ors. , as well as the full Bench decision of this Court in the case of Flabindranath Mahata v. State of west Bengal and Ors. (supra), Mr. Bari submitted that his client should not only be given appointment to the said post but his appointment should also be regularised by the concerned authority. ( 18 ) MR. Bari contended that since admittedly Mr. De's client occupied second position in the panel, Mr. De's client cannot claim appointment to the concerned post by ignoring the performance of the petitioner in the interview. ( 19 ) MR. Sirkar, learned Senior Advocate, appearing for the Municipal authority, informed this Court that Mr. Bari's client was selected for the said post as his performance was assessed by the Selection Committee as better than that of the other participants for the said post. ( 20 ) LET me now consider the submission of the learned Counsel of the respective parties. ( 21 ) ADMITTEDLY the name of Mr. Bari's client was not sponsored by the employment Exchange for the said post. As such, the extant recruitment rules do not recognise Mr. Bari's client to participate in the selection process. It is also apparent from the affidavit of the Municipal authority that none of the sponsored candidates is junior to Mr. Basu's client. As such, even the interim order passed in the writ petition also stands in the way of petitioner's participation in the selection process. Bari's client to participate in the selection process. It is also apparent from the affidavit of the Municipal authority that none of the sponsored candidates is junior to Mr. Basu's client. As such, even the interim order passed in the writ petition also stands in the way of petitioner's participation in the selection process. ( 22 ) THE right of the non-sponsored candidate to participate in the selection process was decided in the negative by the Special Bench of this court in the case of Debasis Dutta (supra ). The judgment in Debasis Dutta's case was delivered by the Special Bench of this Court on 13 th May 1988. ( 23 ) BUT the decision of the Special Bench of this Court in Debasis Dutta's case was virtually overruled by the Hon'ble Supreme Court in the unreported decision in the case of Abu Tehir v. Abdul Wahab and Ors. The judgment in Abu tehir's case was delivered by the Hon'ble Supreme Court on 12th February 2002. ( 24 ) THE Full Bench of this Hon,ble Court in the case of Rabindranath mahata v. State of West Bengal and Ors. (supra) has also held that the decision of the Special Bench of this Court in Debasis Dutta (supra) was virtually overruled by the decision of the Hon'ble Supreme Court in Abu Tehir's case. The said judgment was delivered by the Full Bench of this Court on 7th July, 2005. ( 25 ) ON consideration of the aforesaid decisions cited by the respective parties, this Court holds that the right of the petitioner, viz. , Mr. Bari's client to participate in the selection process, notwithstanding the fact that his name was not sponsored by the Employment Exchange, was recognised as back as on 12th February, 2002 in view of the unreported decision of the Hon'ble Supreme court in Abu Tehir's case. ( 26 ) HERE in the instant case the selection process started on 26th May 2005 when the interview letter was admittedly issued. ( 27 ) THUS, in view of the decision of the Hon'ble Supreme Court in Abu tehir's case as well as the Full Bench decision of this Court in the case of rabindranath Mahata v. State of West Bengal and Ors. (supra), this Court cannot ignore the right of Mr. Bari's client to participate in the selection process which commenced on 26th May, 2005 for the said post. (supra), this Court cannot ignore the right of Mr. Bari's client to participate in the selection process which commenced on 26th May, 2005 for the said post. ( 28 ) IT was rightly pointed out by Mr. De that the Mr. Bari's client did not acquire any right of participation in the selection process by virtue of the interim order passed in his writ petition on 10th June, 2005, but still then, the fact remains that Mr. Bari's client was allowed to participate in the selection process and was ultimately found to be successful in the interview. ( 29 ) UNDER such circumstances, two courses are left open to this Court. One of such courses is to set aside the panel and to direct the Selection committee to hold a fresh interview of the candidates who participated in the selection process along with Mr. Bari's client. The other course is to allow the prayer of Mr. Bari's client so that the best candidate can get the appointment. ( 30 ) SINCE the right of participation of Mr. Bari's client cannot be ignored in either of the aforesaid situations, this Court feels it absolutely unnecessary to adopt the first course of action, as adoption of first course action will simply cause repetition of the same process. ( 31 ) THIS Court also does not feel it necessary to adopt the said course of action as this Court finds that no allegation has been made against the selecting authority in the process of selection of candidate for the particular post. ( 32 ) UNDER such circumstances, I direct the concerned authority to give appointment to Mr. Bari's client in the concerned post with a further direction to regularise his appointment in the said post. ( 33 ) THUS, the writ petition filed by Mr. Bari's client being W. P. No. 12141 (W) of 2005 stands allowed. ( 34 ) THE other writ petition being W. P. No. 12991 (W) of 2005 filed by mr. De's client stands rejected. Both the writ petitions are, thus, disposed of accordingly.