Research › Search › Judgment

Calcutta High Court · body

2009 DIGILAW 676 (CAL)

Goutam Kumar Dey v. STATE OF WEST BENGAL

2009-08-28

DIPANKAR DATTA

body2009
Judgment :- (1) These four petitions are related; hence the same have been heard together and shall stand disposed of by this common judgment and order. (2) Ashis Kumar Sikdar, petitioner, W.P. No. 10675 (W) of 2007 and W.P. No. 31980 (W) of 2008 preferred the former petition voicing a grievance that although the authorities of Bhowanipore High School (hereafter the school) had initiated a process for filling up a vacant post of Clerk by requisitioning names of eligible candidates from the local employment exchange, the sponsoring list did not contain his name as a result whereof he would be deprived of offering his candidature for appointment as Clerk. He, accordingly, prayed for a direction on the school authority to consider his candidature in course of interview fixed on 15.6.07. (3) On that petition, an order was passed on 11.6.07 by a learned Judge of this Court directing the school authority to permit him to appear at the interview, if he is otherwise eligible. It was specifically observed in the order that participation of Ashis in the process would not create any equity in his favour in obtaining employment and that the same shall abide by the result of the writ petition. Affidavits were called for and the writ petition was directed to be enlisted for hearing six weeks hence. (4) Ashis was allowed to participate in the selection process. Upon assessment of his candidature as well as the candidature of those who had been sponsored by the local employment exchange, the section committee prepared a panel. In such panel, Ashis figured at the top while Goutam Kumar Dey, petitioner in W.P. No. 15395(W) of 2007, secured third position. The panel was forwarded to the District Inspector of Schools (SE), Nadia for approval. (5) Alleging illegality in the process of preparation of panel, Goutam approached this Court with his writ petition referred to above. By order dated 8.1.08, a learned Judge of this Court, called for affidavits and the writ petition was directe to be listed for hearing six weeks hence. It was made clear that to endency of the writ petition would not debar the District Inspector from taking a decision on the question of approval of the panel in accordance with law and that appointment, if any, made in the meantime shall abide the result of the writ petition. It was made clear that to endency of the writ petition would not debar the District Inspector from taking a decision on the question of approval of the panel in accordance with law and that appointment, if any, made in the meantime shall abide the result of the writ petition. (6) The District Inspector, however, did not decide the issue of approval which prompted Ashis to file the latter writ petition referred to above. By order dated 7.4.09, another learned Judge of this Court adjourned hearing of the petition sine die with liberty to mention. (7) In the meantime, on 19.2.09, the Managing Committee of the school preferred W.P. No. 3486(W) of 2009 praying for an order on the respondent Nos. 2 and 3 viz. the District Inspector and the Additional District Inspector to cancel the panel that had been prepared on 15.6.2007. It is on record of such petition that by an order as contained in Memo dated 1.8.08, the District Inspector directed the Additional District Inspector to approve the panel, if otherwise found correct. (8) That writ petition was entertained on 6.5.09 by another learned Judge of this Court. While calling for affidavits the learned Judge directed that the writ petition filed by Goutam and the latter writ petition filed by Ashis shall be heard together with it. An interim order was passed restraining approval of the panel. (9) It appears that thereafter by order dated 21.8.09, this Court directed that all the four petitions all be heard together. None appears for the State. (10) Mr. Biswas, learned Advoacte appearing for Goutam, Mr. Chakraborty, learned Advocate appearing for Ashish and Mrs. Mukherjee, learned Advocate for the school have been heard. (11) The first and foremost issue that arises for determination is whether Ashis has any legal right to claim that he should be allowed to participate in the process of selection. It appears from the former writ petition of Ashis that his claim is built on the decision of the Apex Court reported in 1996(6) SCC 216 (Excise Superintendent, Malkapatnam, Krishna District vs. K. B. N. Visweshwara Rao and Ors) and the Full Bench decision of this Court reported in 2005(2) CLJ (Cal) 161 (Rabindra Nath Mahata vs.State of West Bengal and Ors.). In the former decision, the principle that has been laid down is that while a public authority initiates process for recruitment, it must not restrict the field of consideration to candidates sponsored by the Employment Exchange but must give wide publicity of the vacancies so as to enable candidates, whose names have not been sponsored but who are otherwise eligilble to offer their candidature for recruitment and for being considered along with candidates sponsored by the Employment Exchange. In the latter decision, the principle of law laid down by the Apex Court has been followed and it was observed, while answering the reference, that the decision of the Special Bench of this Court in Debasish Dutta vs. State of West Bengal and Ors., reported in 1998(2) CLJ 1 stood impliedly overruled by the subsequent unreported decision of the Apex Court dated dated 12.02.2002 in Civil Appeal No. 1203 of 2001 (Abu Taker vs. Abdul Wakab and Ors.). It was also held that candidates who have not been sponsored by the Employment Exchange could be considered for recruitment as non-teaching staff in the Non-Government institutions. However, it was made clear that no satutory rule had been placed before the Court to persuade it to take a contrary view. (12) Issue similar to the one that has been raised herein on the former petition of Ashis came up for consideration before a Division Bench of this Court. In the decision reported in 2007(2) CLJ (Cal) 105 (Gaya Nath Rajbanshi vs. State of West Bengal and Ors.), on consideration of the decision in Excise Superintendent (supra), the Court proceeded to observe as follows: "An individual non-sponsored candidate got no right to appear suo motu and/or by decision of the Managing Committee and/or employer concerned allowing any individual non-sponsored candidate to appear in the interview as per their sweet will unless the right of a non-sponsored candidate for appearance in the interview matures on the contingency of advertisement of the concerned vacancy in the daily newspapers and/or Employment Exchange notification having a wide circulation and/or other media, advertisement, radio and television as held by the Apex Court. As a corollary thereof since a non-sponsored candidate got no right to appear in the interview simpliciter in the absence of the aforesaid contingency of advertisement in the post in the newspapers and other media, the High Court also sitting in the writ jurisdiction cannot allow the, appearance of the individual candidate until and unless there is an advertisement of the particular post inviting the names of the general candidates by putting the same in the State wide published daily Newspaper for the reason that allowing of any individual candidate in absence of those contingencies in exercising the power under Article 226 of the Constitution of India would be nothing but an exercise of power which per se violative of Article 14 of the Constitution as the other identically placed candidates who may be the next door neighbour of the writ petitioner who could not approach the High Court due to financial stringency or for any other reason would be denied to appear in the interview despite fulfilment of qualification alike the writ petitioner". (13) This Court, apart from being bound by the said decision, is in complete agreement with the view expressed therein that allowing the petitioner to attend interview without there being due and proper advertisement of the vacancy would result in carving out a distinct benefit for him at the expense of sacrificing the equality doctrine guaranteed by Ariticie 14 of the Constitution of India which, if applied in proper perspective and in true earnest, would guarantee equal opportunity in the matter of public employment as enshrined in Article 16 thereof. (14) Ashis has alleged that the Employment Exchange did not sponsor his name though he possesses requisite qualifications for appointment as Clerk and, accordingly, he was deprived of an opportunity to offer his candidature before the school authorities, yet, there is no prayer in the prayer clauses for a direction upon the school authorities to advertise the vacancy. Instead he has only prayed for a direction on the school authorities to allow him to appear in the interview scheduled on 15.6.07. Instead he has only prayed for a direction on the school authorities to allow him to appear in the interview scheduled on 15.6.07. Following the decision in Gaya Nath Rajbanshi (supra), this Court is constrained to hold that the interim order, granted at the interim stage on the prayer of Ashis, if made absolute would not subserve expansion of the field of consideration which appears to be the prime object that weighed in the mind of the Apex Court while delivering its decision in Excise Superintendent (supra). (15) True it is that the Division Bench while delivering its decision in Gaya Nath Rajbanshi (supra) did not consider the Special Bench decision in Rabindra Nath Mahata (supra). However, the said decision was duly considered in a subsequent decision of a Division Bench of this Court presided over by the self-same learned Judge who authored the judgment in Gaya Nath Rajbanshi (supra), since reported in 2008(1) CLJ (Cal) 912 : Debendra Nath Mondal vs. Ratan Kumar Das and Ors. On consideration of the Full Bench judgment, in paragraph 22 of the decision it was held that: "**** In Full Bench judgment, there was no issue whether a non-sponsored candidate suo motu or out of charity and/or grace of the employer/establishment alone could be allowed to appear in the interview from non-sponsored category but their question was whether any non-sponsored . candidate was eligible to appear in the interview or not, following the K.B.N. Visweshwara Rao and Ors. (supra). The Full Bench judgment of this Court in Rabindra Nath Mahato (supra) practically had followed the KB.N. Visweshwara Rao and Ors. (supra) which was a judgment in the field where by a non-sponsored candidate may appear in the interview subject to advertisement of the vacancy in the daily newspaper and this issue that subject to advertisement in the daily newspaper of wide publication neither was addressed nor argued and thereby was answered by the Full Bench. Hence, Rabindra Nath Mahato (supra) in the instant case has no applicability herein and it cannot be a binding precedent to us due to the law of the land under Article 141 ****." It was finally held in paragraph 26 of the decision as follows: "*****As per our reading KB.N. Visweshwara Rao and Ors. Hence, Rabindra Nath Mahato (supra) in the instant case has no applicability herein and it cannot be a binding precedent to us due to the law of the land under Article 141 ****." It was finally held in paragraph 26 of the decision as follows: "*****As per our reading KB.N. Visweshwara Rao and Ors. (supra) being a ratio decidendi and the judgment in the field passed by larger Bench, which could be considered as a law of the land under Article 141 of the Constitution of India whereby and where under the Court have allow the non-sponsored candidates to appear subject to public advertisement of the vacancy and notice by the employer following the modes as mentioned thereof, otherwise appearance of a candidate suo motu out of his own knowledge, which is nothing but a backdoor knowledge regarding vacancy and/or allowing someone, a non-sponsored candidate by the employer, which also a backdoor method as the same would deprive the other eligible candidates equally qualified to appear in the interview due to lack of such personal knowledge of the vacancy, will ex facie an arbitrary and ultra vires action to the Constitutional mandate of Articles 14 and 16(1) of the Constitution of India and it will hit the fair play, justice and equal opportunity clause of the Constitution". (16) The decision in Debendra Nath Nondal (supra) was appealed against in the Apex Court vide SLP (Civil) No. 10024 of 2008. By an order dated 8.9.08, the Apex Court has dismissed the special leave petition. (17) There might be innumerable candidates better qualified than Ashis who could not offer their candidature by reason of they being unaware that the school authority had requisitioned names of eligible candidates with a view to filling up the subject vacancy. In terms of the law laid down in Excise Superintendent (supra), duly followed by the Full Bench decision in Rabindra Nath Mahata (supra), the school authorities were bound to advertise the vacancy so as to receive responses not confined to candidate is sponsored by the Employment Exchange but also beyond it. In terms of the law laid down in Excise Superintendent (supra), duly followed by the Full Bench decision in Rabindra Nath Mahata (supra), the school authorities were bound to advertise the vacancy so as to receive responses not confined to candidate is sponsored by the Employment Exchange but also beyond it. Ashis being aware of the principle of law decided in Excise Superintendent (supra), in all fairness, ought to have made a prayer to restrain the school authorities from proceeding with the selection process without advertising the post; instead, he has only prayed for consideration of his candidature upon a writ if mandamus being issued by this Court with a view to avoid competition. This course of action has been deprecated in the decisions of this Court in Gaya Nath Rajbanshi (supra) and Debendra Nath Mondal (supra). This Court, therefore, following the said decisions and even on the basis of its own understanding of the law of the land is of the clear view that Ashis is not entitled to any relief on the former petition in the absence of any prayer for a direction on the school authorities to publish due advertisement for inviting applications from eligible candidates. Making the interim order absolute would result in the Court giving Article 14 of the Constitution of India a complete go bye and that is not permissible. (18) Having regard to the terms of the order dated 11.6.07 passed on the former petition of Ashis, submission of Mr. Chakraborty appearing for him that he is entitled to offer of appointment based on the selection made by the selection committee cannot be accepted. Mere participation in the process of selection in terms of the order dated 11.6.07 did not vest any indefeasible right in favour of Ashis and the same being subject to result of the writ petition filed by him, it is held that Ashis has no right to maintain the former petition. The same stands dismissed. (19) Since the latter writ petition filed by Ashis is an off-shoot of the former petition, the same cannot survive, having regard to the fact that the former writ petition has failed. The same also stands dismissed. The same stands dismissed. (19) Since the latter writ petition filed by Ashis is an off-shoot of the former petition, the same cannot survive, having regard to the fact that the former writ petition has failed. The same also stands dismissed. (20) The school by filing an independent petition has contended that the process of selection suffers from illegality owing to the fact that Ashis was related to a member of the selection committee who, in all fairness, ought to have recused himself. This Court does not consider it necessary to adjudicate the controversy on this point in view of the order pass it proposes to. Since Ashis had no right to participate in the selection process and his participation therein is to have no effect, the school authority shall now recast the panel on the basis of marks obtained by the aspinng candidates. The recast panel shall be forwarded to the District Inspector for his consideration as early as possible but positively within four weeks from date of receipt of a copy of this order. He shall thereafter consider the issue, of approval strictly in accordance with law. (21) W.P. No. 3486(W) of 2009 stands disposed of. (22) Having regard to the direction for recasting of panel, the order passed by the District Inspector dated 1.8.08 shall not be acted upon. (23) In view of the aforesaid order, nothing survives for decision on the writ petition filed by Goutam which also stands disposed of. (24) Prayer for stay of operation of the order has been made by Mr. Chakraborty, learned Advocate for Ashis. The same is considered and refused. (25) Copy of this judgment and order, duly countersigned by the Assistant Court Officer, shall be retained with the records of W.P. No. 3486(W) of 2009, W.P. No. 31980 (W) of 2008 and W.P. No. 10675(W) of 2007. Urgent photostat copy of this order, if applied for, be supplied to the parties as early as possible.