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2010 DIGILAW 1273 (CAL)

Md. Halimuddin v. STATE OF WEST BENGAL

2010-10-05

DIPANKAR DATTA

body2010
Judgment : 1. The petitioner is aggrieved because the fourth respondent, the Secretary, West Bengal Madrasah Service Commission, has not issued recommendation in his favour for ultimate appointment in any of the existing vacancies in the post of Assistant Teacher in Political Science (Bengali medium). 2. In 2007, a combined examination was conducted for recruitment of Assistant Teachers in non-government aided schools and madrasahs of West Bengal. The petitioner offered his candidature by responding to the advertisement that was issued inviting applications. He participated in the written examination, followed by personality test. During the course of the recruitment process, recruitment to the posts of Assistant Teachers in madrasahs was brought within the jurisdiction of the West Bengal Madrasah Service Commission. The petitioner’s personality test was conducted by such Commission. According to the petitioner, he secured the 5th position in the final merit list. It is alleged that although the recruitment process had been initiated for filling up 34 vacancies, the petitioner was not favoured with any recommendation. 3. Mr. Ashok Chakraborty, learned senior advocate representing the petitioner, complained of the arbitrariness of the fourth respondent in not issuing recommendation in favour of the petitioner although there were existing vacancies where he could legitimately be accommodated. 4. Advertisement no.294/ME dated 28th June, 2008 issued by the Committee for Selection of Teachers in Madrasahs in West Bengal was referred to in support of the submission that all over the State there were 34 vacancies in the post of Assistant Teacher in Political Science and, therefore, it is rather shocking that the 5th empanelled candidate had been refused recommendation whereas candidates who had secured lesser ranks than the petitioner had been considered for issuance of recommendation. 5. In support of his submission that the petitioner is entitled to recommendation, Mr. Chakraborty referred to the decisions of this Court reported in 1997 (2) CHN 435 (Sri Deb Narayan Chatterjee & ors. vs. Union of India & ors.), 2007 (4) CHN 228 ( Tapasi Ghosh vs. West Bengal College Service Commission & ors.) and 2009 (4) CHN 754 (State of West Bengal vs. Asim Chakraborty). He also referred to three unreported decisions of Hon’ble Justice Jayanta Kumar Biswas, all dated 7th August, 2009, while disposing of W.P. No.13006 (W) of 2009, WP. vs. Union of India & ors.), 2007 (4) CHN 228 ( Tapasi Ghosh vs. West Bengal College Service Commission & ors.) and 2009 (4) CHN 754 (State of West Bengal vs. Asim Chakraborty). He also referred to three unreported decisions of Hon’ble Justice Jayanta Kumar Biswas, all dated 7th August, 2009, while disposing of W.P. No.13006 (W) of 2009, WP. No.13008 (W) of 2009 and W.P. No.13009 (W) of 2009 to contend that the life of the panels had been extended by the Commission and having regard to the specific submission recorded therein to the effect that the unfilled vacancies would be filled up from the panel, since extended, the Commission may be directed to issue recommendation in favour of the petitioner. 6. Mr. Panja, learned advocate representing the fourth respondent vehemently opposed the writ petition. According to him, the contention of the petitioner that there were 34 vacancies in all has been made to mislead the Court. He referred to advertisement no.03/AT/2007 dated 4th October, 2007 issued by the West Bengal Central School Service Commission in connection with 8th Regional Level Selection Test (being the first annexure to the counter affidavit of the fourth respondent), to contend that the petitioner had offered his candidature in pursuance thereof and since Regional Level Selection Test was being conducted, the petitioner could not have laid any claim for appointment to any of the 34 vacancies which were then existing all over the State. According to him, the petitioner’s candidature was initially considered by the West Bengal Regional School Service Commission, Eastern Region and after the School Service Commission was divested of power to select candidates for recruitment to madrasahs, the Madrasah Service Commission considered the candidature of the petitioner for appointment to any of the existing four vacancies in madrasahs within the jurisdiction of the said Regional Commission. Since the petitioner was placed at the 5th position of the panel and the four vacancies had been filled up by the first four candidates in order of merit, there was no illegality on the part of the fourth respondent in not recommending the petitioner. He, accordingly, prayed for dismissal of the writ petition. 7. Learned advocates for the parties have been heard and the materials on record considered. He, accordingly, prayed for dismissal of the writ petition. 7. Learned advocates for the parties have been heard and the materials on record considered. This Court has no hesitation to hold that the petitioner has not been subjected to any legal wrong for which powers of the writ court are required to be exercised. 8. It is not in dispute that the petitioner offered his candidature in response to advertisement no.03/AT/2007 referred to above. That advertisement declared the tentative vacancies both in schools and madrasahs for which recruitment process had been initiated. Note appended to the advertisement mentions that “tentative vacancies mean and include vacancies in teaching posts which presently exist and those likely to occur within the 1st January, 2008 and have been reported”. 9. According to the vacancy statement, there was only one vacancy in a Bengali medium madrasah. However, at the time the exact and final vacancies were published vide advertisement dated 20th June, 2008 referred to above, there were only four vacancies in madrasahs within Eastern Region in the post of Assistant Teacher in Political Science. The petitioner having offered his candidature in respect of the 8th Regional Level Selection Test cannot raise any valid claim for appointment in madrasahs not within the Eastern Region. That could have been possible if a State Level Selection Test had been conducted. Having participated in the Regional Level Selection Test, the petitioner cannot now turn around and claim that he should be considered for appointment in vacancies in madrasahs in the other regions. 10. Mr. Chakraborty sought to contend that vacancies have since occurred which have been reported to the fourth respondent to which the petitioner ought to be recommended. Particulars of the vacancies are not to be found in the pleadings. He prayed for an opportunity to file a supplementary affidavit. This Court declined to grant his prayer based on the settled legal position that filling up of vacancies over and above the number of vacancies advertised would be violative of the fundamental rights guaranteed under Articles 14 and 16 of the Constitution of India. One may usefully refer in this connection to the decisions reported in reported in (2006) 3 SCC 330 (State of Uttar Pradesh vs. Raj Kumar Sharma) and (2010) 2 SCC 637 (Rakhi Ray & ors. vs. High Court of Delhi & ors.). 11. One may usefully refer in this connection to the decisions reported in reported in (2006) 3 SCC 330 (State of Uttar Pradesh vs. Raj Kumar Sharma) and (2010) 2 SCC 637 (Rakhi Ray & ors. vs. High Court of Delhi & ors.). 11. It has to be borne in mind that advertisement dated 4th October, 2007 was issued in terms of the provisions contained in the West Bengal School Service Commission (Selection of Persons for Appointment to the Posts of Teachers) Rules, 2007. The Rules do not contemplate filling up of vacancies in excess of notified or advertised vacancies. The case of the petitioner is not covered by the exception mentioned in paragraph 7 of the decision in Rakhi Ray (supra). 12. The decisions referred to by Mr. Chakraborty have been looked into. None of the decisions have any application to the facts and circumstances of the present case. No law has been laid down in any of the said three reported decisions that an appointment ought to be made from a panel to fill up a vacancy that was not notified/advertised. 13. In Deb Narayan Chatterjee (supra) an appointment was made beyond the life of the panel and having regard to the peculiar facts of the case, the learned Judge observed that by its conduct, the employer had kept the panel alive despite its expiry. That is not the case here. 14. In Tapasi Ghosh (supra), the petitioner’s claim was overlooked in preference to candidates who had secured lesser ranks. It is incomprehensible as to how the ratio of the decision is applicable in the facts and circumstances of the present case at hand. The petitioner has not demonstrated that the four vacancies in the Eastern Region that were to be filled up had, in fact, been filled up by any candidate inferior in merit than him. 15. In Asim Chakraborty (supra), the decision to cancel the panel was found to be arbitrary and unfair and, therefore, the Division Bench of this Court did not see reason to interfere with the impugned judgment and order of the Tribunal. There has been no cancellation of panel here. 16. All the reported decisions are, thus, distinguishable. 17. The unreported decisions placed by Mr. Chakraborty also do not come to the aid of the petitioner. There has been no cancellation of panel here. 16. All the reported decisions are, thus, distinguishable. 17. The unreported decisions placed by Mr. Chakraborty also do not come to the aid of the petitioner. It appears that in respect of particular subjects the life of the panels had been extended by the Commission and, therefore, a submission was made that existing vacancies would be filled up from such panels. Here, question of extending the life of the panel did not arise. The four vacancies in madrasahs in the Eastern Region in respect whereof process had been initiated had duly been filled up. 18. There is no merit in the writ petition. The same stands dismissed. 19. There shall be no order as to costs. 20. Urgent photostat certified copy of this judgment and order, if applied for, shall be given to the applicant as early as possible.