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2010 DIGILAW 1260 (CAL)

Srikanta De v. STATE OF WEST BENGAL

2010-10-05

DIPANKAR DATTA

body2010
Judgment : 1. The petitioner offered his candidature for recruitment as an Assistant Teacher in History in vacant posts in recognized non-government aided schools within the jurisdiction of the West Bengal Regional School Service Commission, Eastern Region (hereafter the Regional Commission) by responding to an advertisement dated August 26, 2008 published by the West Bengal Central School Service Commission (hereafter the Central Commission). He was found eligible and, accordingly, was called upon by the Regional Commission to participate in the written examination followed by personality test comprising the 9th Regional Level Selection Test. The petitioner did not secure a place in the final panel i.e. merit list prepared by the Regional Commission. However, his name figured at the second position of the waiting list. 2. It is alleged in the petition that after counseling of the candidates placed in the merit list was complete, two vacancies remained unfilled. One was in Surul High School and the other in Geruapahari Labanya Moyee High School (Co-ed) (hereafter the said school). In respect of the vacancy in Surul High School, the first wait-listed candidate exercised option. Recommendation having been issued in his favour by the Regional Commission, he has since joined the school as Assistant Teacher. 3. So far as the other vacancy in the said school is concerned, the petitioner expected to be offered a chance for exercising his option. However, to his utter surprise, he was not called upon by the Regional Commission. The petitioner made a request for information under Section 6 of the Right to Information Act, 2005. He, however, did not receive any reply. Feeling aggrieved, the instant petition dated 9th August, 2010 was presented before this Court praying for, inter alia, order on the Regional Commission to recommend the name of the petitioner to the said school for appointment in the post of Assistant Teacher in History. 4. Mr. Saha Ray, learned advocate appearing for the petitioner, contended that the Regional Commission acted illegally and unreasonably in not offering the petitioner the chance to exercise his option for ultimate recommendation for appointment in the said school. 4. Mr. Saha Ray, learned advocate appearing for the petitioner, contended that the Regional Commission acted illegally and unreasonably in not offering the petitioner the chance to exercise his option for ultimate recommendation for appointment in the said school. He referred to the West Bengal School Service Commission (Selection of Persons for Appointment to the Post of Teachers) Rules, 2007 (hereafter the Rules) and submitted that the same contemplates preparation of a waiting list and having regard to the object of preparation thereof, the petitioner ought to have been recommended instead of keeping the post of Assistant Teacher in the said school vacant. 5. Mr. Gangopadhyay, learned advocate representing the respondent nos. 4 to 8, did not dispute the factual position. According to him, there were 29 vacancies in schools within the jurisdiction of the Regional Commission for which recruitment process was initiated. All the candidates in the merit list, according to him, were called upon to attend the counseling session. One of them remained absent. It is his contention that in terms of the provisions of the Rules, the Regional Commission is not empowered to recommend the petitioner since the candidate who remained absent in course of the process of counseling had not expressed disinclination to be appointed. He specifically referred to Part ‘B’ of the Rules laying down provisions relating to counseling for recommendation of name to the post of Assistant Teacher and in particular to paragraph 9 thereof read with Rule 17(5) of the Rules to sustain the action of the Regional Commission forming subject matter of challenge in this petition. Based on the aforesaid two provisions and in view of absence of any provision in the Rules to the effect that a wait-listed candidate may be recommended in the event a candidate in the merit list fails to turn up for counseling, Mr. Gangopadhyay contended that the Regional Commission cannot be accused of acting illegally or unreasonably in not recommending the petitioner’s name. He did contend that the provisions of the Rules, as it stands now, has operated harshly against the petitioner but the Regional Commission not being in a position to disobey the Rules has refrained from recommending the name of the petitioner for appointment in the said school. He concluded by submitting that the petitioner is not entitled to any relief. 6. The Court has heard learned advocates for the parties. He concluded by submitting that the petitioner is not entitled to any relief. 6. The Court has heard learned advocates for the parties. The only issue that requires a decision is whether the Rules have been properly interpreted by the Regional Commission to deny recommendation in favour of the petitioner. 7. It is considered necessary to refer to certain provisions of the Rules to which attention of the Court has been drawn. Rule 17 deals with recommendation of a candidate for an appointment to the post of teacher. Sub rule (5) thereof being relevant is quoted hereunder: “(5) if – (a) a candidate refuses to accept his allotment of post during counseling for the post of Teacher, or (b) The Regional Commission gets information from any school or madrasah from the District Inspector of Schools (Secondary Education), or otherwise, that a candidate recommended for appointment has not accepted the offer of appointment within the stipulated period, or (c) Such a candidate refuses to accept appointment, or (d) On further scrutiny it appears that the candidate has misrepresented the facts, the Regional Commission may do away with his name from the panel and recommend the name of a candidate from the waiting list strictly in order of merit within the validity period of the panel and waiting list”. Paragraph 9 of Part ‘B’ referred to above provides that “the candidates in the waiting list, if necessary, may be recommended in accordance with the provision of sub rule (5) of rule 17”. 8. The purpose for which a waiting list is prepared in connection with a recruitment process is well-known and this Court need not dilate on such aspect here. However, the question as to whether the petitioner is entitled to a recommendation assumes significance in view of the understanding of the Rules by the respondents 4 to 8 regarding absence of any plain and clear provision therein which empowers the Regional Commission to do away with the name of a candidate in the merit list in the event he remains absent at the time of counseling. 9. This seems to be an inadvertent error of the draftsman of the rules. 9. This seems to be an inadvertent error of the draftsman of the rules. It needs no reiteration that while interpreting statutory provisions the Court would be circumspect in adding words to a statute and, therefore, slow in supplying casus omissus; however, it is settled law that the Court may iron out the creases without altering the material of which the statute is woven [see : Lord Denning’s decision in the case of Seaford Court Estates Ltd. v. Asher, reported in (1949) 2 All E R 155 (CA), followed by the Supreme Court of India in its decisions in M. Pentiah v. Muddala Veeramallappa reported in AIR 1961 SC 1107 , S. Gopal Reddy v. State of A.P. reported in (1996) 4 SCC 596 , and Ahmedabad Municipal Corporation v. Nilaybhai R. Thakore reported in (1999) 8 SCC 139 ]. 10. It is the duty of the Courts to try to gather the real intention of the rule framer by carefully attending to the whole scope of the statute under consideration, which is required to be construed. To the mind of this Court, a purposive approach, if adopted, could go a long way in curing the deficiency that has been visualized by the Regional Commission and which has impeded the process of issuing recommendation in favour of the petitioner. 11. Clause (a) of sub rule (5) of rule 17 empowers the Regional Commission to recommend the name of a candidate from the waiting list in order of merit within the validity period of the waiting list if a candidate refuses to accept his allotment of post during counseling for the post of teacher. In the present case it has not been disputed by Mr. Gangopadhyay that one candidate who had figured in the merit list did not turn up for counseling. It is nobody’s case that the said candidate did not have notice of the date of counseling or that he did not receive the intimation that he is required to attend the counseling session. A presumption could, therefore, follow that despite being intimated that the empanelled candidate may attend the counseling session, he refused to attend the same for exercising his option for any of the vacancies then available for obtaining recommendation in his favour. A presumption could, therefore, follow that despite being intimated that the empanelled candidate may attend the counseling session, he refused to attend the same for exercising his option for any of the vacancies then available for obtaining recommendation in his favour. Refusal to accept allotment need not be read narrowly to mean refusal on the spot but might be implied by conduct of the empanelled candidate in not attending the counseling session without rhyme or reason or even by not informing the Regional Commission that for certain unavoidable reason he would not be able to attend the counseling session and that an alternative date may be fixed. Mr. Gangopadhyay did not dispute that the Regional Commission did not receive any such intimation. 12. ‘Refuse’ according to the Chambers 20th Century Dictionary, inter alia, means to renounce. The empanelled candidate must be deemed to have renounced allotment which could have been made available to him had he exercised his option by remaining present on the date and venue fixed for counseling. The Regional Commission by not treating the said empanelled candidate to have been disqualified for issuance of recommendation in his favour by reason of his not attending the counseling session appears to have acted unreasonably. By narrowly construing Rule 17(5)(a), the Regional Commission acted to the prejudice and detriment of the petitioner. 13. Results of the selection test are now displayed on the website of the Central Commission. An empanelled candidate, if he is really interested in obtaining employment, is reasonably expected to note, in this age of advancement of information technology and the fiercely competitive world arising out of severe unemployment problems, that he has been duly empanelled. If he had not received the letter of intimation requiring him to attend the counseling session, he could have urged the Regional Commission not to deprive him of the fruits of his labour and to allow him to exercise his option in accordance with his merit position. There has been no attempt on the part of that empanelled candidate to seek enforcement of the right that he acquired by reason of his empanelment. 14. For the reasons aforesaid, the writ petition is bound to succeed. The same stands allowed and a Mandamus is issued directing the Regional Commission to immediately issue recommendation in favour of the petitioner for his appointment in the said school. 14. For the reasons aforesaid, the writ petition is bound to succeed. The same stands allowed and a Mandamus is issued directing the Regional Commission to immediately issue recommendation in favour of the petitioner for his appointment in the said school. It shall be open to the petitioner to act on the offer of appointment to be issued by the authority of the said school on the basis of such recommendation. 15. There shall be no order as to costs. 16. Urgent photostat certified copy of this judgment and order, if applied for, shall be given to the applicant as early as possible.