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2006 DIGILAW 656 (CAL)

NABENDU MONDAL v. STATE OF WEST BENGAL

2006-09-27

PRABIR KUMAR SAMANTA, PRASENJIT MANDAL

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PRABIR KUMAR SAMANTA, J. ( 1 ) THIS appeal involves an interesting issue as to the appointment in the post of Judicial Officer in West Bengal Civil Service (Judicial ). ( 2 ) FIVE writ petitioners belonging to Schedule Caste and other backward classes appeared in the West Bengal Civil Service Judicial examination held by the Public Service Commission, West Bengal for the purpose of recruitment in the post of Judicial Officer in West Bengal Judicial services. Out of the 5 petitioners 3 belong to the Scheduled Castes and the other two belong to other backward classes. ( 3 ) THE Public Service Commission, West Bengal, by an advertisement No. 15/2003 dated 29th November, 2003 invited applications for recruitment to the West Bengal Civil Service Judicial for filling up of the vacancies notified therein. In the said advertisement vacancies were notified for 141 Judicial Officers, which was the vacancy position for the year of 2003, of which 103 posts were reserved for General Categories, 13 posts for Scheduled Caste candidates,18 posts for Scheduled Tribe candidates and 7 posts for other backward classes. ( 4 ) IT is not in dispute that pursuant to such advertisement the examination was duly held and on the basis of the examination conducted by the PSC in all 137 candidates have already been appointed. Four posts of Judicial Officers are still lying vacant. ( 5 ) IN the writ petition it has been alleged by the writ petitioners that each of them had qualified in the written test and were accordingly called to appear in the personality test. But, they were not ultimately selected for recruitment on the ground that they failed to obtain the requisite marks only in their personality test. Accordingly, it has been alleged by them that for the purpose of recruitment to the posts of Judicial Officer importance should be given to the marks obtained in the written test and no one should be refused selection for not obtaining requisite marks in the personality test, inasmuch as there is every possibility for allotting of marks in the personality test tainted with bias or other extraneous consideration. ( 6 ) INTERESTINGLY at the same time it has been averred by the petitioners, who themselves belong to the Schedule Caste and backward classes that for Judicial Service posts should not have been reserved for scheduled Caste, and other backward classes in accordance with the west Bengal Scheduled Caste and Scheduled Tribe (Reservation of vacancies in Services and Posts) Act, 1976 as it requires high standard of specialized knowledge in the field of law and any relaxation in the matter of quality for the purpose of selection is bound to impair the administration of justice in the lower Judicial Service. Such averment may have been made under an impression that they had been placed in order of merit along with the general class candidates on the basis of the written examination. But, such plea was totally abandoned before the writ Court. On the other hand the petitioners pressed their writ petition solely on the ground that they should have been selected in such reserved categories of Scheduled Caste and other backward classes as because proper reservation had not been made by such advertisement as per the latest notification issued in respect thereof by the State Government. ( 7 ) THE petitioners, however, all along contended that they obtained high marks in the written test and as such they were asked to appear in the personality test but were not selected only on the ground that they failed to obtain the requisite marks in the said personality test. ( 8 ) HAYING regard to the basic thrust of the writ petition whereby the petitioners have sought for relief by the Court in exercise of its extra-ordinary writ jurisdiction for the purpose of their selection in the posts of judicial Officer on the basis of their comparative merits, I ignore the statements made in the writ petition against such reservation for the candidates belonging to the Scheduled Caste and other backward classes. That I do more so, because the rule of pleading does not strictly apply in a writ petition. The Court in exercise of its extra-ordinary writ jurisdiction is not bound by mere technicalities of pleadings. It must render justice on the principles of constitutional rights, legal rights, equity and justice and for that purpose it may mould reliefs. That I do more so, because the rule of pleading does not strictly apply in a writ petition. The Court in exercise of its extra-ordinary writ jurisdiction is not bound by mere technicalities of pleadings. It must render justice on the principles of constitutional rights, legal rights, equity and justice and for that purpose it may mould reliefs. It is also worthwhile to note that before the writ Court, the petitioners in all seriousness had raised grievance that proper reservation had not been made for the purpose of recruitment in the post of Judicial Officers for the Schedule Casts and other backward classes candidates by the State Government and/or the West Bengal public Service Commission by issuing such advertisement. ( 9 ) THE trial Judge dismissed the aforesaid writ petition only because the petitioners raised such grievances at a stage when the entire selection process was complete and the successful candidates had already been given appointment. ( 10 ) BEFORE delving into the merits of the writ petition I must say that out of the five writ petitioners three are belonging to the Scheduled Caste and their case cannot be considered on the basis of the contention put forward by them that while the Government of West Bengal by its latest notification had enhanced the reservation for the Scheduled Caste candidates to the extent of 25% of the posts, the Public Service commission by the aforesaid advertisement reserved only 10% of the vacancies for the Scheduled Caste candidates. So far as the reservation for Scheduled Caste candidates is concerned, I am unable to accept such contention of the writ petitioners. Although the State Government by issuing notification dated 22nd March, 1999 made amendment by enhancing percentage of reservation of posts for Scheduled Caste candidates, but such amendment is not applicable in respect of the West Bengal Civil service Judicial. Because 3rd proviso to Clause (a) of sub-section (1) of section 4 of the West Bengal Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1976 clearly stipulates that in respect of the West Bengal Civil Service Judicial, the percentage shall be 10 for Scheduled Castes and 5 for Scheduled Tribes. By a Notification issued by the State Government statutory provision made by way of legislation cannot be altered. By a Notification issued by the State Government statutory provision made by way of legislation cannot be altered. Therefore, this writ petition on behalf of the three petitioners belonging to the Schedule Castes candidates must fail and I accordingly dismiss the appeal on behalf of them. ( 11 ) IN this case none of the petitioners belong to the Scheduled tribes nor any question has been raised in respect of reservation made for Scheduled Tribe candidates by the said advertisement. ( 12 ) BUT, I find substance in the contention of the writ petitioners so far as it relates to the reservation for other backward classes. The State government by issuing Notification as far back as on 6th November, 1997 had amended the percentage of reservation for other backward classes in services and posts under the Government of West Bengal by increasing the same from 5% to 7%. The advertisement was made by reserving 5% of posts for other backward classes in West Bengal Judicial Service. In this regard it may be noted that the aforesaid West Bengal Commission for Backward Classes Act, 1993 (Act 1 of 1993) has not made any provision like that of the West Bengal Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1976 by fixing a certain percentage of posts for other backward class candidates in the west Bengal Judicial Service. ( 13 ) IN the absence of any such statutory provision and more particularly in view of the provisions of Clause (c) of Section 2 of the West, bengal Act, 1 of 1993 whereby the State Government has been authorized to increase the percentage for reservation of posts from time to time by publishing Notification in the Official Gazette, I am of the view that for the purpose of recruitment in the posts of judicial officers there was no impediment to reserve 7% of the posts instead of 5% as made for other backward classes. The said Notification dated 6th November, 1997 was very much applicable in the matter of recruitment for services and posts in the West Bengal Judicial Service. But, the said advertisement was not made for recruitment in the posts of West Bengal Judicial Service by suitably reserving 7% of the posts for other backward classes. The said Notification dated 6th November, 1997 was very much applicable in the matter of recruitment for services and posts in the West Bengal Judicial Service. But, the said advertisement was not made for recruitment in the posts of West Bengal Judicial Service by suitably reserving 7% of the posts for other backward classes. ( 14 ) ALTHOUGH such an advertisement was made by the Public Service commission on the basis of the instruction given by the Government of west Bengal but that would not in any way make the reservation made therein for the other backward classes sustainable in law. ( 15 ) PROCEEDING on the basis of the said Notification I am of the view that 7% of the posts ought to have been reserved for other backward classes while recruiting Judicial Officers in the West Bengal Judicial service. It has also been admitted in course of hearing that proceeding on such basis nine posts instead of seven posts out of 141 Posts of Judicial officers notified by the said advertisement were required to be reserved for other backward classes. ( 16 ) IN a similar situation arising in respect of physically handicapped candidates for which no reservation had been made by the said advertisement for the posts in West Bengal Judicial Service, the Division bench of this Court has disposed of the appeal, taken out against the order of dismissal of the writ petition filed by the two physically handicapped candidates, by directing appointment in favour of the two physically handicapped candidates included in the select list as 6 posts out of the advertised posts remained vacant till date as because the posts reserved for the Scheduled Tribes had not been filled up. It was so done for the interest of justice instead of setting aside the whole selection process whereupon 135 candidates have already appointed and who have taken charge of their respective posts and in the meantime services have been rendered by them for more than one year. ( 17 ) THE learned Advocate appearing both for the State Government and the Public Service Commission have taken a fair stand in this case. They have stated that if two more candidates in order of merit from the select List are appointed then justice would be rendered, instead of appointing the two of the writ petitioners belonging to the other backward classes. They have stated that if two more candidates in order of merit from the select List are appointed then justice would be rendered, instead of appointing the two of the writ petitioners belonging to the other backward classes. ( 18 ) WE, therefore, called for the records of the Public Service commission and have carefully gone through the Select List prepared by it. We find therefrom that a general standard list of 200 candidates including 5 OBC and 5 SC candidates qualified by general standard was published. Thereafter a relaxed standard list-1 of 45 candidates qualified by relaxed standard for the Scheduled Castes, Scheduled Tribes and other backward classes was also published. Out of the 45 candidates 24 candidates belong to the categories of Schedule Caste. Rests belong to other Backward classes. ( 19 ) ONE Shri Sandip Karmakar belonging to the backward class featuring at Serial No. 9 in order of merit in the aforesaid relaxed standard list-1 as above has already been appointed as the last candidate in the category of other backward classes. In the said relaxed standard list - 1 the name of Nita Sarkar, the appellant No. 5 herein appears at Serial no. 12. But, before her one other candidate, namely, Anil Kr. Kushwaha appears at Serial No. 10. The other backward class candidate in this appeal namely the appellant No. 3 herein, namely, Malay Kr. Das appears at Serial No. 34 in order of merit in the aforesaid relaxed standard list no. 1 and before him there are several other candidates in order of merit. Had the 7% of the vacant posts been reserved for other backward classes by following the said notification, then two more candidates in order of merit from the said relaxed standard list-1 would have been appointed. In that case the other appellant namely, Moloy Kumar Das would not have been appointed. I am therefore of the view that the other appellant, Moloy kumar Das, could not be appointed by ignoring the candidates placed before him in order of merit in the said relaxed standard list-1, only because he has approached this Court and others have not. If for the reasons above, I am to direct appointment for two more candidates, I will do so by selecting two more candidates in order of merit from the said relaxed standard list-1 irrespective of their approaching to this Court for such appointments. If for the reasons above, I am to direct appointment for two more candidates, I will do so by selecting two more candidates in order of merit from the said relaxed standard list-1 irrespective of their approaching to this Court for such appointments. As such said Malay Das shall not be entitled to be appointed. As per the decision of the Full Commission taken at its meetings held on 30th May, 1997 and 24th October, 1997, the backward class candidates are required to obtain 38% in total both for the written examination and personality test in order to figure in the merit list. Both the aforesaid candidates as stated above have obtained total aggregate marks of 523 and 521 respectively, which are much more than 38%. ( 20 ) I am, therefore, of the view that, since two more other backward class candidates are entitled to be appointed, such appointment should be made from the backward class candidates appearing in order of merit in the aforesaid relaxed standard list No. 1 just after the last backward class candidate appointed in the post. As stated earlier Smt. Nita Sarkar, the appellant No. 5 herein, appears at Serial No. 12 in order of merit in the aforesaid relaxed standard list No. 1 should get an appointment. The other backward class candidate, namely, Anil Kr. Kushwaha appearing at Serial no. 10 in the aforesaid relaxed standard list No. 1 is also entitled to get an appointment even though he is not a party to the writ petition. Because such appointment must necessarily be made strictly in order of merit and not because someone has approached this Court seeking an appointment in the'post but not qualified to be appointed in order of merit. ( 21 ) I, therefore, hold that two more candidates in order of merit from the Select List, namely, Anil Kr. Kushwaha at Serial No. 10 and the appellant no. 5, namely, Nita Sarkar at Serial No. 12 are entitled to be appointed. This I hold for the purpose of maintaining high standard of efficiency required in the judicial service and without putting much importance to the fact that one of them has not joined in this writ petition. Because if proper reservation had been made for the OBC candidates at the first instance, the candidates at Serial Nos. 10 and 12 would have been appointed by this time. Because if proper reservation had been made for the OBC candidates at the first instance, the candidates at Serial Nos. 10 and 12 would have been appointed by this time. Accordingly, I direct that these two candidates be offered with the appointment immediately. ( 22 ) IT is recorded herewith that till date 137 candidates have been appointed so far including the two candidates appointed as physically handicapped candidates pursuant to the judgment and order of this Court as above out of 141 vacancies notified for the post. Four posts are still lying vacant. Such vacancies are, perhaps for the reasons that the posts reserved for the Scheduled Tribes could not be filled up, as no candidate belonging to the Scheduled Tribe was suitable and/or available for appointment. I, therefore, also direct that if necessary, the respondents concerned for the purpose of giving appointment to the aforesaid two candidates from the aforesaid list belonging to other backward classes shall de-reserve the posts reserved for the Scheduled Tribe candidates and shall carry forward such reservation for the subsequent recruitment. ( 23 ) I set aside the judgment of the learned Single Judge and allow this appeal with the direction as already made hereinabove, so far as the appeal by appellant No. 5 only who is a candidate belonging to the other backward classes is concerned. This appeal by the other appellants herein shall stand dismissed. ( 24 ) I also make it clear that if fo. r any reason said Anil Kumar kushwaha is not willing to accept the appointment at this stage then the respondents would make an offer to the next candidate in order of merit from the aforesaid relaxed standard list No. 1 I, conclude by saying that the respondents shall act in accordance with the directions as above forthwith without making any delay whatsoever in this regard. ( 25 ) A copy of this judgment be immediately forwarded by the department to the Public Service Commission, West Bengal and a copy of this judgment be immediately placed before the Registrar General, high Court. Urgent xerox certified copies of this judgment, if applied for, be supplied to the parties as expeditiously as possible.