Research › Search › Judgment

Calcutta High Court · body

2008 DIGILAW 265 (CAL)

Snehasis Thakur v. STATE OF WEST BENGAL

2008-03-05

JAYANTA KUMAR BISWAS

body2008
Judgment :- (1.) THE petitioner in this writ petition dated January 25th, 2008 is seeking a mandamus directing the respondents to permit him to participate as a candidate in the selection process initiated by them for recruitment to the post of Gram Panchayat Karmee. (2.) HIS case is that though his name has not been sponsored by the employment exchange, he is entitled to participate in the selection process, since he satisfies the qualifications prescribed by the West Bengal Panchayat (Recruitment and Conditions of Service of Gram Panchayat Karmee) Rules, 1995, Rule 6. (3.) COUNSEL for the petitioner submits that in view of Excise Superintendent v. K. B. N. Visweshwara Rao and Ors., (1996) 6 SCC 216 ; and Aran Kumar Nayak v. Union of India and Ors. , (2006) 8 SCC 111 , the petitioner is entitled to participate in the selection process. The question therefore is whether the petitioner is entitled to participate in the selection process. (4.) THE selection process is governed not by the rules mentioned in the petition, but by the West Bengal Panchayat (Recruitment of Employees of Gram Panchayat) Rules, 2007, Rule 7. Rule 7 prescribes the method of, and qualifications required for, recruitment to the post of Gram Panchayat Karmee. Clause (b) of sub-rule. (1) of Rule 7 prescribes the method of recruitment, which is by direct recruitment through employment exchange by the district level selection committee. There is no provision requiring publication of any employment notice inviting applications from the open market candidates other than the candidates sponsored by the employment exchange. Validity of this rule has not been questioned in the writ petition, and as was held by the apex Court in Union of India and Ors. v. N. Hargopal and Ors. , (1987) 3 SCC 308 such a provision as Rule 7, confining the source of eligible candidates only to the employment exchange, does not violate the provisions of Articles 14 and 16 of Constitution of India. (5.) IN Hargopal (para. 9 of the report) their Lordships noted and held as follows: "the further question is whether the instructions issued by the government that in the case of government departments the field of choice should, in the first instance, be restricted to candidates sponsored by the Employment Exchange offend Articles 14 and 16 of the Constitution. (5.) IN Hargopal (para. 9 of the report) their Lordships noted and held as follows: "the further question is whether the instructions issued by the government that in the case of government departments the field of choice should, in the first instance, be restricted to candidates sponsored by the Employment Exchange offend Articles 14 and 16 of the Constitution. Shri P. Parmeshwara Rao, learned counsel appearing for some of the respondents strenuously urged that such a restriction would offend the equality clauses of the Constitution, namely, Articles 14 and 16. He urged that when Parliament had gone into the question and decided that there should be no compulsion in the matter of appointment by way of restriction of the filed of choice, it was not open to the government to impose such compulsion. He argued that it would be unreasonable to restrict the field of choice to those sponsored by the Employment Exchanges. In a country so vast as India, in a country where there was so much poverty, illiteracy and ignorance, it was not right that employment opportunities should necessarily be channelled through the Employment Exchanges when it is not shown that the network of Employment Exchanges is so wide, that it reaches all the corners of this vast country. He argued that it is futile to expect that persons living in distant places could get themselves registered with Employment Exchanges situated far away. The submission of Shri Parmeshwara Rao is indeed appealing and attractive. Nonetheless, we are afraid we cannot uphold it. The object of recruitment to any service or post is to secure the most suitable person who answers the demands of the requirements of the job. In the case of public employment, it is necessary to eliminate arbitrariness and favouritism and introduce uniformity of standards and orderliness in the matter of employment. There has to be an element of procedural fairness in recruitment. If a public employer chooses to receive applications for employment where and when he pleases, and chooses to make appointments as he likes, a grave element of arbitrariness is certainly introduced. This must necessarily be avoided if Articles 14 and 16 have to be given any meaning. We, therefore, consider that insistence on recruitment through Employment Exchanges advances rather than restricts the rights guaranteed by Articles 14 and 16 of the Constitution. This must necessarily be avoided if Articles 14 and 16 have to be given any meaning. We, therefore, consider that insistence on recruitment through Employment Exchanges advances rather than restricts the rights guaranteed by Articles 14 and 16 of the Constitution. The submission that Employment Exchanges do not reach everywhere applies equally to whatever method of advertising vacancies is adopted. Advertisement in the daily press, for example, is also equally ineffective as it does not reach everyone desiring employment. In the absence of a better method of recruitment, we think that any restriction that employment in government departments should be through the medium of employment exchanges does not offend Articles 14 and 16 of the Constitution. With this modification of the judgment of the High Court, the appeals and the special leave petitions are disposed of. No orders are necessary in the writ petition. " (6.) THE petitioner is not questioning the validity of the recruitment process either. According to counsel for the petitioner there is nothing wrong with the recruitment process. This being his submission, I fail to understand how the petitioner can seek a mandamus commanding the respondents to permit him to participate in the selection process, when according to the petitioner himself the respondents have not committed any wrong by initiating the recruitment process and sending a requisition to the employment exchange for sponsoring names of the eligible candidates in terms of the recruitment rules. One can understand that if the recruitment process offends the provisions of Articles 14 and 16, then it has to be quashed directing the respondents to initiate a lawful recruitment process. But it is very difficult to understand how without interfering with the recruitment process, the petitioner can be permitted to participate in it. If such an order is made, I am afraid, it will amount to the Court making an order contrary to the recruitment rules. It is not the petitioners case that though in terms of the recruitment rules he is entitled to participate in the process, he is not being permitted to do that. His case rather seems to be that since employment notice has not been published, he cannot apply for the post, and hence order should be made directing the respondents to allow him to participate in the process as a candidate. His case rather seems to be that since employment notice has not been published, he cannot apply for the post, and hence order should be made directing the respondents to allow him to participate in the process as a candidate. Even assuming that by not publishing the employment notice the respondents have committed a wrong, such wrong is not to be set right by the Court by directing them to allow the petitioner to participate in the process; for the only final order that would be permissible is to direct them to publish the employment notice and thus to follow the lawful procedure. The question therefore is whether the authorities cited to me lay down any law that in such a case as this even without interfering with the recruitment process the Court is empowered to make an order permitting the candidates such as the petitioner to participate in a validly initiated recruitment process. (7.) IN Excise Superintendent v. K. B. N. Visweshwara Rao and Ore., (1996) 6 SCC 216 reference was made to Hargopal that turned down the argument that confining the source of eligible candidates only to the employment exchange would offend the provisions of Articles 14 and 16 of the Constitution. In Visweshwara Rao, their Lordships, however, expressed an opinion that in addition to requisitioning names from the employment exchange, the employer should publish employment notice in newspapers providing scope to maximum number of candidates to participate in the selection process. It is not known whether such opinion was expressed by their Lordships in the context of any statutory recruitment rules confining the source of eligible candidates only to the employment exchange. Before expressing the opinion, their Lordships said (in para. 4 of the report): "this Court in Union of lndia v. N. Hargopal noted the contention of counsel appearing for respondents therein that excluding the candidates who were not sponsored through medium of employment exchange and restricting the choice of selection to the candidates sponsored through the medium of employment exchange, would offend the equality clause of Articles 14 and 16 and held that the contention was attractive and it was not open to the Government to impose restriction on the field of choice. But in view of the fact that even the paper publication would not reach many a handicapped who would be unable to have access to the newspaper, it was held that the sponsorship through the medium of employment exchange would not violate Articles 14 and 16. On the other hand, it would advance the rights to the handicapped. In that view, this Court upheld the restriction imposed by the State and Central Governments to consider the cases of the candidates through medium of employment exchange, while holding that such a restriction was not intended to be applicable to the private employment as held in para 6 of the judgment." (8.) IN Arun Kumar Nayak the employer sent requisition to the employment exchange for sponsoring names of candidates for the post of extra departmental sub-postmaster, names were sponsored and at such stage decision in Visweshwararao came. Consequently, the director general of posts issued a circular providing for simultaneous publication of employment notice that was published by a corrigendum. But the responding candidates were not considered. On such facts, the publication of employment notice was upheld. It is apparent that in that case the circular of the competent authority provided for publication of employment notice simultaneously with the sending of requisition to the employment exchange, but that is not the position of the rules here. In my opinion, in the face of the statutory rule, here there is no scope to say that even if his name is not sponsored by the employment exchange, the petitioner is entitled to participate in the selection process. Writ petition dismissed.