JUDGMENT 1. THIS writ application is filed by the petitioner for issuing a writ of mandamus commanding the respondent authority to appoint the petitioner to the post of Junior Technical Assistant. 2. THE brief history of this case is as under: A recruitment process for appointment of 12 Junior Technical Assistants was initiated by the respondent No.3 in March 2001. Names of eligible candidates were collected from two sources. Concerned employment exchange sponsored the names of eligible candidates in respect of 70% vacancy, i.e. for eight vacancies. THE rest of 30% vacancies, i.e. 4, were kept reserved for consideration of the candidatures of all Ex-ITI trainees. THE petitioner participated in the selection process under reference in respect of un-reserved vacancies on the basis of sponsorship of his name by the concerned employment exchange. THE written test took place in December 2001 and interview took place between May and September 2002. In December 2002, two separate panels of selected candidates were prepared in order of merit. One of the above panels was prepared in respect of eight un-reserved vacancies from the candidates sponsored by the employment exchange. THE name of the petitioner appeared against serial No.6 of that panel. Similarly, the other panel was prepared from EX-ITI trainee participants in respect of the rest four vacancies. THE aforesaid two panels were sent to the State Government for approval in early 2003. THE State Government did not approve those panels on the ground of that those panels had not been prepared in accordance with the notification dated August 21, 2002 issued under the West Bengal Regulations of Recruitment Act, 1999. In the mean time, a group of Ex-ITI trainee participants filed an application under article 226 of the Constitution of India in the matter of Utpal Bhattacharjee and Ors. v. State of West Bengal and Ors. (in Re. W.P. No. 16235(W) 2002). In the mean time, a group of Ex-ITI trainee participants filed an application under article 226 of the Constitution of India in the matter of Utpal Bhattacharjee and Ors. v. State of West Bengal and Ors. (in Re. W.P. No. 16235(W) 2002). The above writ application was disposed of on February 25, 2003 with a direction upon the respondent authority to strictly comply with the principles laid down by the Hon'ble Supreme Court in the matter of U.P. State Transport Corporation v. U.P. Paribhawan Nigam Shikshukha Bishwaragh Sangh, reported in (1995)2 SCC 1 and U.P. Rajya Viduit Parishad Branch Welfare Association v. State of U.P., reported in AIR 2000 SC 2621 for the purpose of selection of the candidates for the vacancies under reference as also directing the respondent authority not to restrict the scope of employment of those Ex-ITI trainee participants to 30% of the posts within exempted category. 3. THE respondent No.3, thereafter, prepared one panel in order of merit in November 2003 placing all Ex-ITI trainee candidates who had participated in the recruitment process under reference under reserved category in order of merit along with the candidates sponsored by the Employment Exchange in respect of 70% vacancies, i.e. for eight posts. No panel was prepared in respect of the remaining 30% vacancies, i.e for four posts. After the above re-shuffling, the name of the petitioner did not appear within first eight empanelled candidates in the fresh panel. THE aforesaid fresh panel was duly approved by the State Government.first eight empanelled candidates got appointment to the post of Junior Technical Assistant in August 2004. 4. IT is submitted by Mr. Partha Sarathi Sengupta, learned Advocate appearing for the petitioner, that the procedure followed by the respondents to fill up the vacancy under reference suffered from procedural impropriety. According to him the notification dated August 21, 2002 was issued long after the initiation of the selection process in question and the same had no manner of application in respect of the same. According to him the circulars issued by the Chief Secretary to the Government of West Bengal under memo Nos. According to him the notification dated August 21, 2002 was issued long after the initiation of the selection process in question and the same had no manner of application in respect of the same. According to him the circulars issued by the Chief Secretary to the Government of West Bengal under memo Nos. 5120(60) LW and 129(60) LW dated October 17, 1977 and January 25, 1978 respectively read with the circular issued by the Secretary to the Government of West Bengal, Labour Department under memo No. 130(60)LW/2E-77/77 dated January 25, 1978 were holding the field for conducting the selection process under reference. As a result, the respondent authority asked the director of National Employment Services, Government of West Bengal for sponsoring the names of eligible candidate keeping in mind reservation of 30% vacancies, i.e. for four posts, for exempted category of ITI passed trainees. Accordingly, two panels were also prepared. One under the general category for candidates selected from amongst the candidates sponsored by the employment exchange and the other one for reserved category selected from the candidates considered under the exempted category of Ex-ITI trainees. The procedure adopted by the respondent authorities to prepared a single panel afresh from both the categories suffered from procedural impropriety in taking into consideration the notification dated August 21, 2002 which was issued long after initiation of the selection process in question. It is further submitted by him that the issue of non-applicability of the notification dated August 21, 2002 was settled in connection with filling up of the vacancies for junior operator assistant by a Judgment dated March 25, 2007 in the matter of Mahadeb Das and Ors. v. State of West Bengal and Ors., (in re: W.P. 13549(W) 2004). It is also submitted by him that the above decision was affirmed by a Division Bench of this Court by judgment dated August 1, 2008 passed in the matter of West Bengal State Electricity Distribution Co. Ltd. Ors. v. Mahadeb Das and Ors. (in re: FMA 421 of 2008). 5. IT is further submitted by him that by virtue of the order dated February 25, 2003 passed by a single Bench of this Court in the matter of Utpal Bhattacharjee and Ors. v. State of West Bengal and Ors., (in re. Ltd. Ors. v. Mahadeb Das and Ors. (in re: FMA 421 of 2008). 5. IT is further submitted by him that by virtue of the order dated February 25, 2003 passed by a single Bench of this Court in the matter of Utpal Bhattacharjee and Ors. v. State of West Bengal and Ors., (in re. W.P. 16235(W) of 2002), the scope for consideration of the cases of participants under the exempted category of Ex-ITI trainees was extended without restricting the consideration of their candidatures in respect of 30% vacancies only. According to him, the question that had fallen for consideration of the Court in the matter of Utpal Bhattacharjee and Ors. v. State of West Bengal and Ors. (in re: W.P. 16235(W) of 2002) was totally different. 6. MR. Sengupta relied upon the decision of Panjurmal Hassomal Advani v. Harpal Singh, reported in AIR 1975 Bom 120 . On the other hand it is submitted by Mr. Bhaskar Mitra, learned advocate appearing for the respondent Nos. 3 to 6 that the approval of the Government was mandatory for giving appointment to the selected candidates in the vacancies under reference. In preparing a single panel for the above purpose, the respondent Nos. 3 to 6 took into consideration the fact of direction of the State Government as also the direction given in the order dated February 25, 2003 in the matter of Utpal Bhattacharjee v. State of West Bengal (in re. W.P. 16235(W) of 2002). It is also submitted by him that all the eight unreserved posts were filled up by the empanelled candidates. Therefore, there is no scope to give appointment to the petitioner to the post of Junior Technical Assistant under unreserved category. 7. HAVING heard the learned counsels appearing for the respective parties as also considering the facts and circumstances of this case I find that at the time of initiation of the selection process under reference in March, 2001, the executive instructions issued by way of circulars were holding the filed. Those were the circulars issued by the Chief Secretary to the Government of West Bengal under Memo Nos.5120(60) LW and 129(60) LW dated October 17, 1977 and January 25, 1978 respectively read with the circular issued by the Secretary to the Government of West Bengal, Labour Department under Memo No. 130(60) LW/2E-77/77 dated January 25, 1978. Those were the circulars issued by the Chief Secretary to the Government of West Bengal under Memo Nos.5120(60) LW and 129(60) LW dated October 17, 1977 and January 25, 1978 respectively read with the circular issued by the Secretary to the Government of West Bengal, Labour Department under Memo No. 130(60) LW/2E-77/77 dated January 25, 1978. Admittedly, notification dated August 21, 2002, was issued under the West Bengal Regulations of Recruitment Act, 1999, long after the initiation of the selection process under reference. Therefore, the decision of the Government of West Bengal not to approve two panels, which had been prepared in accordance with the provisions of the executive instructions under reference, was misconceived. 8. IN the case of P. Mahendran v. State of Kamataka, reported in (1990) 1 SCC 411 , the Hon'ble Supreme Court held that selection process must be completed in accordance with law as it stood at its commencement and the amended rules would not invalidate the selection already made. IN the aforesaid decision, the Hon'ble Supreme Court observed as follows: "5. It is well settled rule of construction that every statue or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statue or in the Rules showing the intention to affect existing rights the rule must be held to be prospective. If a rule is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only. IN the absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure. The amending Rules of 1987 do not contain any express provision giving the amendment retrospective effect nor there is anything therein showing the necessary intendment for enforcing the rule with retrospective effect. IN the absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure. The amending Rules of 1987 do not contain any express provision giving the amendment retrospective effect nor there is anything therein showing the necessary intendment for enforcing the rule with retrospective effect. Since the amending Rules were not retrospective, it could not adversely affect the right of those candidates who were qualified for selection and appointment on the date they applied for the post, moreover as the process of selection had already commenced when the amending Rules came into force, the amended Rules could not affect the existing rights of those candidates who were being considered for selection as they possessed the requisite qualifications prescribed by the Rules before its amendment moreover construction of amending Rules should be made in a reasonable manner to avoid unnecessary hardship to those who have no control over the subject matter." Under similar circumstances, a Division Bench of this Court delivered a judgment dated August 8, 2008 in the matter of West Bengal State Electricity Distribution Co. Ltd. v. Mahadeb Das and Ors. (in re: F.M.A.421 of 2008), holding that the right of the empanelled candidates for the post of Junior operating Assistants could not be frustrated taking recourse to the provisions of law subsequently notified on August 21, 2001 under the West Bengal Regulations of Recruitment Act, 1999, changing the mode of selection. 9. I further find that the question which had fallen for consideration of the Court in the matter of Utpal Bhattacharjee and Ors. v. State of West Bengal and Ors. (in re: W.P. 16235(W) of 2002) was totally different. 10. FROM the main Order dated February 25, 2003 passed in the said Writ Petition, it is evident that the Petitioners therein were also claiming benefits under the exempted category quota and their grievance was that contrary to the judgment of the Apex Court reported in (1995) 2 SCC 1 and AIR 2000 SC 2621 , the Board had reserved 70% of the posts for candidates sponsored by the employment exchange leaving only 30% reserved for the exempted category including those Petitioners. It was in that context that the Order dated 25.2.2003 was passed and the relevant portions thereof read as follows: "After hearing the learned counsel for the parties and after going through the materials on record I thus dispose of this writ application by directing the respondents to strictly comply with the principles laid down by the Supreme Court in the aforesaid two decisions viz. 1995(2) SCC page 1 and AIR 2000 SC page 2621 for the purpose of selection of the candidates pursuant to the written test held on December 9, 2001. The respondents will not restrict the scope of employment of the petitioners to 30% of the posts within exempted category as stated in the affidavit-in-opposition filed by the Board. The writ application is thus disposed of with the above direction. No costs." [Quoted Verbatim but emphasis by underlining supplied by this Court] The aforementioned Order dated February 25, 2003 was subsequently modified vide CAN No. 5062 of 2003 by Order dated August 22, 2003. The same is required to be quoted and the same reads as follows: "22.8.2003 W.P. 16235 (W) of 2002 [Utpal Bhattacharjee and Ors. v. State and Ors.) Re: Application for modification/Review (CAN 5062 of 2003) Mr. Bikash Ranjan Bhattacharyya Mr. Bhaskar Mitra.....for applicants/respondent Nos.3-6 Mr. Debabrata Saha Roy.........for writ petitioners This is an application for review of my order, dated February 25, 2003 by which I disposed of a writ application by directing the respondents to strictly comply with the principles laid down by the Supreme Court in the two decisions, namely, 1995 (2) SCC 1 and AIR 2000 SC 2621 for the purpose of selection of candidates pursuant to the written test held on December 9, 2001. I specifically stated that the respondents will not restrict the scope of employment of the petitioners to 30% of the posts within exempted category as stated in the affidavit-in-opposition filed by the West Bengal State Electricity Board. The writ petitioners on completion of National Trade Certificate Course from their respective training institutes had undergone training as trade apprentices on consolidated stipend in different sub-divisions under the Assistant Engineers of the different divisions of the West Bengal State Electricity Board. On completion of such course, the Board issued completion certificate in favour of the petitioners. The writ petitioners on completion of National Trade Certificate Course from their respective training institutes had undergone training as trade apprentices on consolidated stipend in different sub-divisions under the Assistant Engineers of the different divisions of the West Bengal State Electricity Board. On completion of such course, the Board issued completion certificate in favour of the petitioners. By the said writ application petitioners claimed that in view of the aforesaid two decisions they are entitled to preference over direct recruit as mentioned in the said judgment. In the context of the aforesaid claim I disposed of such writ application as indicated above. By this application for review the West Bengal State Electricity Board has contended that this Court should clarify the said order by pointing out that the claim of the petitioners will be considered amongst unreserved 70% posts so that the policy decision of the State to reserve 30% posts for exempted category are not in any way disturbed. Since in view of the policy decision of the Government 30% posts have been reserved for exempted category, it is rightly pointed out by Mr. Bhattacharyya, the learned counsel for the applicants that petitioners' claim should be restricted to 70% unreserved category. Apart from the aforesaid point, the applicants have also taken a point that in view of the provisions of the West Bengal Regulation of Recruitment in State Government Establishment and Establishment from Public Undertakings, Statutory Bodies, Government Companies and Local Authorities Act, 1999 the scope of employment of the petitioners should be in accordance with the said Act. Since a learned single Judge of this Court has already declared the same Act as ultra vires. Constitution of India, there is no scope of considering such submission made by the applicants at this stage. J, thus, modify my order, dated February 25, 2003 by directing that the claim of the petitioners for those posts will be restricted to 70% unreserved category of the vacant posts. The application for modification/review is disposed of with the aforesaid observation. In the facts and circumstances of the case, there will be no order as to costs. Let Xerox-certified copy of this order be given to the parties within one week from the date of making of such application." (Bhaskar Bhattacharya, J.) (Quoted Verbatim but emphasis by underlining is by this Court) 11. In the facts and circumstances of the case, there will be no order as to costs. Let Xerox-certified copy of this order be given to the parties within one week from the date of making of such application." (Bhaskar Bhattacharya, J.) (Quoted Verbatim but emphasis by underlining is by this Court) 11. IT is thus evident upon the plain reading of the aforesaid order dated February 25, 2003, that the respondent authority was directed not to restrict the scope of employment of the writ petitioners of that petition (Ex-ITI trained candidates) to 30% of the posts within exempted category. The above order was further modified on August 22, 2003 by directing that the claims of the writ petitioners of that petition (Ex-ITI trained candidates) should be restricted to 70% unreserved category of vacant posts. The above orders purported that the claim of the writ petitioners (Ex-ITI trained candidates) would be considered amongst unreserved 70% posts so that the policy decision of the State to reserve 30% posts for exempted category were not in any way disturbed. 12. BUT in the instant case the respondent authority disturbed the policy decision of the State by keeping the reserve 30% posts of exempted category vacant and incorporating the names of selected EX-ITI candidates in the fresh panel to fill up 70% vacancies only. That was an outcome of misconception. The 30% vacancies should have been filled up from the Ex-ITI trained candidates first. Then the remaining 70% vacancies should have been filled up from the candidates sponsored by the employment exchange as also the remaining Ex-ITI trained candidates, if any, preparing a panel in order of merit. For the foregoing reasons, this writ application is allowed and a writ of mandamus is issued commanding the respondents to consider the case of appointment of the petitioner upon placement of his name preparing a panel in order of merit in respect of 8 posts of Junior Technical Assistant, i.e. 70% vacancies, taking into consideration the names of the candidates sponsored by the concerned employment exchange as also the remaining Ex- ITI candidates, if any, after due placement of the Ex-ITI candidates in a separate panel of 4 candidates, i.e. 30% vacancies, on the basis of written test held in December 2001 and interview subsequent thereto. Such steps must be concluded within eight weeks from today. 13. THERE will be, however, no order as to costs. Such steps must be concluded within eight weeks from today. 13. THERE will be, however, no order as to costs. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard. Writ application allowed