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2008 DIGILAW 586 (CAL)

Subrata Sarkar v. STATE OF WEST BENGAL

2008-06-13

KALYAN JYOTI SENGUPTA, PRASENJIT MANDAL

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Judgment :- K.J. SENGUPTA, J. (1) THE above application challenges order of the learned tribunal dated 10th December, 2003 passed in T. A. No. 165 of 1998. It appears that by the judgment and order the learned Tribunal though upheld the basic grievance of the applicant, however, did not grant any relief. (2) THE fact of the case in short is stated hereafter. The petitioner was appointed on or about 25th March, 1981 through Public Service Commission as Clinical Instructor in the College of Nursing at Calcutta. However, she joined on 6th May, 1981 in the West Bengal General Service, Department of health and Family Welfare. In or about 6th February, 1993 the petitioner having seen an advertisement published by the Public Service Commission, west Bengal applied for the post of Senior Lecturer and she was called to take test for selection. According to her, she performed well. In spite of that she was not selected for the said post. Having been unsuccessful she challenged the selection process which was made on the basis of viva voce test. She also challenged the recruitment Rules published by the State on 26th December, 1979 framed under Article 309 of the Constitution of India by which the procedure for selection of candidate for the post of Senior Lecturer was provided. Basically, she had following grievances at the relevant time : (1) That there is no scope for promotion under the relevant Rules from the post of Clinical Instructor to the next higher post. Similarly there has been no promotional avenue from the post of Senior Lecturers and Readers whereas there has been scope for promotion in respect of the post of Principal and Professors. Therefore, there has been gross discrimination in the service rules in the same field. (2) That the procedure for selection on oral test wholly is arbitrary and unconstitutional. In absence of provision for promotion the serving clinical Instructor has to compete with the fresh candidates in the psc for the post of Senior Lecturers, in other words, the provision for filling up of the post of Senior Lecturers in the nursing college by direct recruitment is unfair and arbitrary. In absence of provision for promotion the serving clinical Instructor has to compete with the fresh candidates in the psc for the post of Senior Lecturers, in other words, the provision for filling up of the post of Senior Lecturers in the nursing college by direct recruitment is unfair and arbitrary. (3) THE petitioner ventilating the aforesaid grievance on or about 26th november, 1993 filed a writ petition challenging the selection process for the post of Senior Lecturers in the College of Nursing, West Bengal and also the rules framed under which the said selection process was initiated and prayed for quashing of the selection and order of injunction restraining giving appointment and/or selection of any candidate in the post of Senior Lecturer in this Honble Court. The learned single Judge of this Court on 26th november, 1993 was pleased to pass an order directing the respondents to keep the posts of Senior Lecturers in the College of Nursing vacant till disposal of the case. (4) ON formation of the West Bengal Administrative Tribunal the said writ petition was registered as T. A. No. 165 of 1998. In the meantime the petitioner has improved her qualification and has obtained Master Degree followed by ph. D. Degree. The said application was heard by the learned Tribunal on contest but the learned Tribunal found that earlier recruitment Rules for appointment to the post of Senior Lecturers and Readers are discriminatory and as such the respondents were directed to consider to amend Rule to eliminate discrimination and arbitrariness. Learned Tribunal did not quash the selection process on the ground that the applicant participated therein which was conducted under the existing recruitment Rules and was unsuccessful. Therefore, no order was passed for appointment to the post of senior Lecturer. (5) THE grievance in the present application before this Court was that in spite of holding recruitment Rules being discriminatory and denial of the petitioners right of promotion, being unconstitutional, complete relief was not granted by quashing the selection process and granting promotion to the petitioner. During pendency of this application it appears from the records that the State Government having accepted the said judgment and order has amended the said earlier Rule, 1979 relating to filling up of the post of Senior lecturer and Reader. The said Rule has been notified sometimes in July, 2005. During pendency of this application it appears from the records that the State Government having accepted the said judgment and order has amended the said earlier Rule, 1979 relating to filling up of the post of Senior lecturer and Reader. The said Rule has been notified sometimes in July, 2005. We have already noted that initially there has been no promotional avenue from the post of Clinical Instructor to any other post. Similarly, there was no provision for promotion from the post of Senior Lecturer and Reader respectively to the next higher post. By this amended Rules now the post of senior Lecturer has to be filled up both by direct recruitment and promotion in equal ratio. The qualification for promotion to the post of Senior Lecturer has been provided in the new Rules is as follows: (i) A Post Graduate Degree (securing at least 55% marks) in nursing from a recognised University. (ii) At least three years experience in a Government College of Nursing in this State as Clinical Instructor. 5. 1. The qualification for promotion in the post of Readers has been provided in the amended Rules as follows : (i) Educational qualification - A Post Graduate Degree -(securing at least 55% marks) in nursing from a recognised university; (ii) A total of eight years teaching experience in a recognised College of nursing under a recognised University in the capacity of Clinical instructor and Senior Lecturer (taken together) out of which five years of teaching experience must have been acquired in the capacity of senior Lecturer in a Government College of Nursing of this State. (iii) Desirable Qualification -Publication in recognising nursing journals; ph. D. or M. Phil acquired from recognised University. 5. 2. The procedure for filling up of the post, Professor has been provided under the amended Rules by direct recruitment and by way of a promotion with equal proportion of the total vacancy. The qualification for promotion to the post of the Professor is as follows : (i) Educational Qualification - A Post-graduate Degree (securing at least 55% marks) in nursing college from a recognised University. The qualification for promotion to the post of the Professor is as follows : (i) Educational Qualification - A Post-graduate Degree (securing at least 55% marks) in nursing college from a recognised University. (ii) A total of thirteen years teaching experience in a recognised College of Nursing under a recognised University in the capacity of Clinical instructor, Senior Lecturer and Reader (taken together), out of which five years of teaching experience must have been acquired in the capacity of Reader in a Government College of Nursing of this State. (iii) Desirable Qualification - Publication in recognised nursing journals; ph. D. or M. Phil acquired from a recognised University. (6) THE aforesaid fact of amendment of the recruitment Rules for the post of nursing in the Nursing College has been brought on record by filing supplementary affidavit. In view of the aforesaid subsequent development and fact Mr. S. C. Bose, learned Senior Advocate, appearing for the petitioner, submits that the learned Tribunal should have granted the relief. He, however, fairly submits that his client cannot get any monetary relief and can get notional benefit. However, the respondents must promote the petitioner to the post of Professor by this time as she had the qualification as stipulated in the amended Rules. In support of his contention he has relied on a Supreme court decision reported in AIR 1968 SC 1113 (para 5) and also 1985 (3) SCC 545 . (7) MR. Subrata Mukhopadhyay, learned standing counsel for the state, submits that the judgment and order of the learned Tribunal has been accepted by the state amending the Rules. In view of the amendment the case of the applicant can be considered. (8) WE have heard the contentions of the learned counsels for the parties. Going by the prayer made in the original application we think that the learned tribunal was justified in not granting relief to the respondent to promote the petitioner to the post as she prayed for. It is true that the learned Tribunal found that the relevant recruitment Rules are discriminatory and the selection process should have been set aside and cancelled and should have passed appropriate orders. So long the Rule is not amended it was not possible to grant complete relief. Now the Rule has been amended and we think that according to the submission of Mr. So long the Rule is not amended it was not possible to grant complete relief. Now the Rule has been amended and we think that according to the submission of Mr. Subrata Mukhopadhyay petitioners case must be considered in the light of the aforesaid Rules. From the petition we find that the petitioner has requisite educational qualification for the post of professor by this time. But other conditions are to be examined. We think that Mr. Bose is right in his contention that had the relevant recruitment rules been amended as has been done now the petitioner would have got promotion automatically to the post of Senior Lecturer in the year, 1993 itself, if not earlier, and gradually to the post of Professor. Unfortunately this has not happened. (9) UNDER these circumstances, we direct the State Government to consider the petitioners case of promotion to the post of Professor, which she could have got, by this time taking into consideration of the fact that in the year 1993 she had acquired qualification of becoming Senior Lecturer in terms of the amended Rules hence notional benefit may be given to this post to her as she deserves going by the provision of the amended Rules. This shall be considered within a period of three months from the date of communication of this order. She shall get the real benefit from the date of passing such order for appointment to the post of Professor. However, notional benefit should be given as and when she had acquired such qualification of becoming next higher post progressively as per norms published in the amended Rules. This application is, thus; disposed of without any order as to costs. Application succeeds.