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2010 DIGILAW 860 (CAL)

Anindita Roy (Mukherjee) v. STATE OF WEST BENGAL

2010-07-23

ANIRUDDHA BOSE

body2010
Judgment : ANIRUDDHA BOSE, J.:- 1. The writ petitioner in W.P. No. 12922(W) of 2010 seeks appointment to the post of lecturer in microbiology in Maharajadhiraj Uday Chand Women’s College in the district of Burdwan. She claims to be serving in the same post on a contractual basis on and from 4 October 2004. At that point of time, however the vacancy was not sanctioned by the educational authorities of the State, which implied that the State was not obliged to undertake the financial obligation arising out of employment of the petitioner. The writ petitioner in W.P. No. 13277(W) of 2010 is also an aspirant for the same post. His name for this post has been recommended by the West Bengal College Service Commission. I shall refer to the writ petitioner in W.P. No. 12922(W) of 2010 as AR, whereas the writ petitioner in W.P. NO. 13277(W) of 2010 shall be referred to in the later part of this judgment as SC. 2. The college in question had made request for sanctioning two posts of lecturers in microbiology in the early part of 2006, but only one post in the said college was sanctioned on 9 July 2007. 3. In the year 2005, the West Bengal College Service Commission (Commission) published advertisement in which applications were invited from suitable candidates for the posts of lecturers in different colleges under the University of Burdwan. For consideration of her candidature AR had applied in both botany as well as microbiology. AR was called for interview and eventually was selected for lectureship in microbiology under the Burdwan University and her name was empanelled as the only candidate in that subject. This panel was published by the Commission on 8 June 2006, but AR was not recommended for any college as there was no vacancy in the said subject for lectureship at that point of time. When the post of lectureship in microbiology in the said college was sanctioned, the panel in question had lapsed, the life of a panel being for one year. 4. AR thereafter filed an application under Article 226 of the Constitution of India, being W.P. No. 2512(W) of 2008. This writ petition was filed against an order passed by the Commission rejecting AR’s representation for being recommended for appointment to the post of lectureship in microbiology in a college under Burdwan University. 4. AR thereafter filed an application under Article 226 of the Constitution of India, being W.P. No. 2512(W) of 2008. This writ petition was filed against an order passed by the Commission rejecting AR’s representation for being recommended for appointment to the post of lectureship in microbiology in a college under Burdwan University. Rejection was made on the ground that there was no valid requisition during subsistence of the panel. This writ petition was disposed of by an Hon’ble Single Judge of this Court with the following direction: “Having regard to the special circumstances of the case where the petitioner, who has been discharging duties at the College till date to the satisfaction of all concerned, and has duly been selected by the West Bengal School Service Commission, has suffered prejudice by reason only of delay in issuance of order of sanction for formal creation of the post, the matter is referred to the Principal Secretary, Higher Education Department to consider notional sanction of the post of lecturer of Microbiology of the College from an anterior date, prior to 07.06.2007. If such sanction is granted, the requisition of the College shall be deemed to have been made prior to 07.06.2007 and the West Bengal School Service Commission shall recommend the petitioner to the post. It is, however, made clear that the petitioner will not claim arrears of salary and allowances from the Government. The petitioner shall be entitled to the salary and emoluments of regular lecturer only from the date of her actual appointment, upon recommendation of the West Bengal College Service Commission, and not from the date from which the post might notionally be sanctioned. This judgment and order having been passed in the special facts and circumstances of the case, is not to be treated as a precedent. Having regard to the fact that there is no permanent Lecturer of Microbiology in the College and having regard to the fact that the matter has been pending for long, the Principal Secretary, Higher Education Department is directed to take a decision in the matter expeditiously, preferably within forty-five days from the date of communication of this order." 5. Having regard to the fact that there is no permanent Lecturer of Microbiology in the College and having regard to the fact that the matter has been pending for long, the Principal Secretary, Higher Education Department is directed to take a decision in the matter expeditiously, preferably within forty-five days from the date of communication of this order." 5. The Principal Secretary, Higher Education Department to the Government of West Bengal considered the matter and rejected AR’s plea in an order passed on 4 June 2010 on following grounds: “(a) The West Bengal College Service Commission made an advertisement being No.2/05 on 20.09.2005. From the list of vacancies in different subjects under different universities of the said advertisement, it is observed that there were eight vacant posts in Microbiology under Calcutta University zone. But no vacancy was available in Microbiology under Burdwan University zone. In spite of this advertisement not mentioning any vacancy in Microbiology under Burdwan University zone, the petitioner applied for the post of lecturer in Microbiology in any college under Burdwan University zone. (b) The College Service Commission issued a call letter to the petitioner to appear in the interview and she was empanelled as the only successful candidate under Burdwan Zone on 08.06.2006. As per submission of College Service Commission, the entire matter was done inadvertently. (c) In the provisional merit panel in Microbiology under Burdwan University zone against advertisement no.02/05, it had been categorically mentioned that the panel shall remain valid for one year from the date of publication and empanelment does not confer any right of being recommended for an appointment. (d) It may be stated that as in the said advertisement no. 02/05, no vacancy was published in Microbiology under Burdwan zone. Naturally, all aspiring applicants for this subject under Burdwan zone would not have applied for the post-in-question and if such applicants had applied, the result might have been different due to wider competition. (e) The college authority requested the Director of Public Instruction, West Bengal on 18.01,2006 vide its letter no. DPI/23/6 dated 18.01.2006 for sanctioning two posts in Microbiology and sanction for one post in Microbiology in the college was accorded by the State Government in July 2007 vide G.O. No. 634-Edn(CS) dated 09/07/2007. (e) The college authority requested the Director of Public Instruction, West Bengal on 18.01,2006 vide its letter no. DPI/23/6 dated 18.01.2006 for sanctioning two posts in Microbiology and sanction for one post in Microbiology in the college was accorded by the State Government in July 2007 vide G.O. No. 634-Edn(CS) dated 09/07/2007. On the basis of a number of applications for creation of teaching posts from various colleges, State Government examines them; seeks explanation regarding students strength, infrustructual facilities etc, and takes necessary steps for concurrence of Finance Department and finally Government order for creation of teaching posts is issued. In the instant case, a large number of teaching posts were created by the State Government vide G.O. No. 634-Edn(CS) dated 09/07/2007. Hence, no willful and intentional delay has been observed. (f) In the instant case, the provisional merit panel was published on 08.06.2006 and it expired on 7th June, 2007. The State Government issued the said order being G.O. No. 634-Edn(CS) dated 09/07/2007 on 09.07.2007. After the expiry of the said panel, it has no validity in the eye of law. (g) The College Service Commission has already recommended another one, Shri Subhendu Chakraborty, for the posot of Microbiology created vide, G.O. No. 634-Edn (CS) dated 09/07/2007 in the Maharajadhiraj Uday Chand Women’s College. Shri Chakraborty was empanelled through a subsequent advertisement, in which the post of Microbiology had been advertised for Burdwan University zone. In view of the above, the prayer of the petitioner to give her the appointment to the post of the lecturer in Microbiology in any of the colleges under Burdwan University can not be acceded to." 6. This order is under challenge in AR’s writ petition and the main ground of challenge is that the Principal Secretary has examined in the order the entitlement of the writ petitioner (i.e. AR) to be considered for the post which was sanctioned on 9 July 2007 on the basis of her being empanelled in the merit list prepared on the basis of advertisement no. 02/05, but ignored the direction of this Court in W.P. No. 2512(W) of 2008 for examining the aspect of granting sanction to the said post from an anterior date. 7. It appears that after sanction was given for the subject post, requisition was made by the college for filing up of the vacancy in the post of lectureship in the microbiology. 7. It appears that after sanction was given for the subject post, requisition was made by the college for filing up of the vacancy in the post of lectureship in the microbiology. Fresh advertisement was published by the Commission, being advertisement 3/08 for selection in, inter alia, the said post. SC had applied for being appointed in this post and was successful in the selection process. The Commission had recommended his name for the vacancy in the said college for the subject post but the college authorities did not issue the letter of appointment. After several representations the college authorities disclosed the reason for not giving the letter of appointment to the petitioner in a communication dated 22 April 2010. The communication, a copy of which has been made annexure “P9” in SCs writ petition specifies: “This is to inform you that as regards the post for which your name has been recommended by WBCSC, it has now come under judicial purview. The college is in possession of an order of the Hon’ble High Court on W.P. No. 2512(W) of 2008 in which the Principal Secretary, H.E. Deptt. has been asked by the Hon’ble High Court to antedate the creation of the post so that the claim of the petitioner for appointment to the newly created post of lecturer in Microbiology in this college can be considered. The GB in its meeting dated 19.04.2010 discussed the matter in detail. It was held that if on the basis of the recommendation of the CSC you are now appointed to the vacant post of Lecturer in Microbiology, the order of the Hon’ble High Court is likely to be infructuous and this may amount to violation of the order of the Hon’ble High Court. Under these circumstances the college GB unanimously resolved not to issue any appointment letter to you till the disposal of the case by competent authority.” 8. SC in his writ petition seeks a mandatory direction upon the college authorities to issue appointment letter for the said post. It is in the light of these facts, I am to examine the competing claims of AR and SC. So far as the order of Principal Secretary in W.P. No. 2512(W) of 2008 is concerned, I am satisfied that the Principal Secretary, Higher Education Department did not examine the issue in the manner directed by this Court. It is in the light of these facts, I am to examine the competing claims of AR and SC. So far as the order of Principal Secretary in W.P. No. 2512(W) of 2008 is concerned, I am satisfied that the Principal Secretary, Higher Education Department did not examine the issue in the manner directed by this Court. The order of the Hon’ble Single Judge in W.P. No. 2512(W) of 2008 was clear and unambiguous. The Principal Secretary, Higher Education Department was directed to consider grant of notional sanction of the post of lectureship of microbiology of the college from an anterior date, prior to 9 June 2007. This direction was issued by the Hon’ble Single Judge after a specific finding to the effect that the petitioner (i.e. AR) had been deprived of opportunity of regular appointment only on the ground of unexplained governmental delay, for which she was not responsible. In the order passed on 4 June 2010, the Principal Secretary, Higher Education department had not examined that aspect at all. 9. On this aspect, he has only observed that since the vacancy for lectureship in the said college was not advertised, accommodating AR in that post would be to the prejudice to the other potential candidates who did not apply for the same as the vacancy was not advertised. This observation, in my opinion, is an improper justification for not examining the question of granting the sanction from an anterior date. There is specific observation in the judgment of this Court that there was unexplained delay in granting sanction for the post. If the post was sanctioned during subsistence of the panel without such delay, AR would have been recommended as she was the sole empanelled candidate in that subject. It is not the case of the Government that such delay was deliberate, to enable all aspirants for the subject vacancy to apply. Such delay appears to be for administrative reasons. Now introducing the case of notional prejudice to the possible applicants for the subject vacancy cannot be, in my view, permitted to defeat the right of AR to be considered for the said vacancy upon examining the possibility of granting notional sanction from an anterior date. The order of the Hon’ble Single Judge in W.P No. 2512(W) of 2008 admittedly was not appealed against by any of the parties. The order of the Hon’ble Single Judge in W.P No. 2512(W) of 2008 admittedly was not appealed against by any of the parties. Since the Principal Secretary, Higher Education Department was to examine the matter as per direction of this Court, it was incumbent upon him to confine the scope of his enquiry or examination to the issues framed by this Court. Failure to examine the issue which was referred to him renders the order invalid, contrary to the direction of this Court, and the ground on which the plea of AR was rejected is not acceptable to this Court. The said order is unsustainable in law and is quashed. The Principal Secretary, Higher Education Department, Government of West Bengal will have to reexamine the matter afresh, in terms of the direction of this Court in W.P. No. 2512(W) of 2008. 10. Now comes the question as to whether the SC’s appointment would be held up or not pending further consideration of AR’s representation, which I propose to direct the Principal Secretary, Department of Higher Education to undertake. 11. Admittedly, SC has been selected through a legitimate selection process and his name has been recommended for the said post. However, AR’s case is that in the event the Principal Secretary considers the question of grant of sanction for the post in question from an anterior date and the post is notionally sanctioned from a date on which the merit list in which AR was empanelled remained valid, then she would have become automatically entitled to be appointed to the said post. Thus if SC is now permitted to be appointed in this post, then the entire exercise to be undertaken by the Principle Secretary, Higher Education Department would be a futile exercise, and the order of this Court in W.P. No. 2512(W) of 2008 would in substance become incapable of being implemented. 12. But can SC’s appointment be kept in suspension for this reason alone? The competing claims of the two writ petitioners in this petition requires to be weighed on the basis of comparative legal strength of their respective cases, as well as on equitable considerations. I am of the view that SC’s case for appointment at this stage is stronger because his name has been recommended through a valid selection process. The competing claims of the two writ petitioners in this petition requires to be weighed on the basis of comparative legal strength of their respective cases, as well as on equitable considerations. I am of the view that SC’s case for appointment at this stage is stronger because his name has been recommended through a valid selection process. AR’s claim still remains in the domain of probability depending on the final outcome of the decision of the Principal Secretary, Department of Higher Education. 13. In the light of these facts, in my opinion SC should be permitted to join his duties in the college in the said post but this would be an interim arrangement, on payment of regular salary. I direct the Principal Secretary, Department of Higher Education to reexamine the case of AR in the light of the directions issued by this Court in W.P. No. 2512(W) of 2008, which I have discussed in the earlier part of this judgment. I would request the Principal Secretary, Higher Education Department to complete this exercise within a period of three weeks from the date of communication of this order considering the fact that fate of two young aspirants for the post of lectureship hangs on balance and would be dependent upon such decision. In the event the Principal Secretary directs the post to be sanctioned from an anterior date then SC’s appointment in the said college as an interim arrangement shall stand negated, and AR shall be appointed to that post. The Commission is directed to keep one vacancy in the post of microbiology in any college under Burdwan University open for a period of five weeks so that this exercise can be completed. If the Principal Secretary finds sanctioning the vacancy from an anterior date to be unwarranted, then SC shall continue in the job in regular basis. In such a situation, if AR can be accommodated in any other vacancy, it shall be open to the authorities to do so condoning age bar in her case. In the event however AR becomes entitled to be appointed to the said post on the basis of a positive finding by the Principal Secretary, Higher Education Department, Government of West Bengal in her favour, then SC shall be accommodated in the post which is directed to be kept vacant and his appointment to this post shall be negated. In the event however AR becomes entitled to be appointed to the said post on the basis of a positive finding by the Principal Secretary, Higher Education Department, Government of West Bengal in her favour, then SC shall be accommodated in the post which is directed to be kept vacant and his appointment to this post shall be negated. Both these writ petitions shall stand disposed of in the above terms. All interim orders passed in these two writ petitions stand dissolved. 14. There shall, however, be no order as to costs. 15. Urgent Photostat certified copy of this order, if applied for, be given to the learned Advocates for the parties with necessary formalities as expeditiously as possible.