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2011 DIGILAW 1378 (CAL)

Biswajit Das v. STATE OF WEST BENGAL

2011-09-29

ASIM KUMAR RAY, KALYAN JYOTI SENGUPTA

body2011
JUDGMENT Kalyan Jyoti Sengupta, J. 1. All the above batch of appeals have been preferred against the common judgment and order of the learned Trial Judge dated 28th January, 2010 by which all the connected writ petitions were dismissed finally holding that the writ petitioners are not entitled to get any relief in view of the Division Bench judgment in Tanmay Ramaya Lahiri's case [reported in (2008) 3 CAL LT 205 (HC)] wherein Rule 8 of the West Bengal School Teachers Recruitment Rules of 2001 was held to be logical and rational, the writ petitioners/appellants could not get any relief, hence the writ petition was dismissed. The short fact leading to filing the writ petitions and preferring the appeal are as follows: The writ petitioners/appellants and each of them filed respective writ petitions asking for declaration that Rule 8 of the West Bengal School Teachers Recruitment Rules of 2001 (as stood at that point of time) is ultra vires to Articles 14 and 16 of the Constitution of India, so far as it restricts recruitment only through employment exchange. So further relief was claimed for issuance of writ of mandamus directing the respondent to rescind or cancel the selection process initiated in 2006 by restricting field of choice through employment office viz. amongst sponsored candidates and further commanding the respondent to refrain from acting in terms of advertisement dated 30th August 2009 published in different newspapers as annexed to the petitions. 2. When those writ petitions were filed the learned Single Judge passed an interim order on 16th December, 2009 allowing the writ petitioners/appellants herein to participate in the written examination without prejudice to the rights and contentions. Pursuant thereto the writ petitioners/appellants participated in the selection process. However ultimately in view of dismissal of the writ petition the fruit of the interim order could not be enjoyed. 3. Before the present writ petition was filed there has been an amendment of the said Rule 8 whereby the field of choice has been expanded from employment exchange sources to all the eligible candidates on advertisement and public notification. However these writ petitioners/appellants did not apply in terms of the advertisement rather challenge the earlier Rule. Now the appeal has been admitted for hearing only on one point as to whether the Rule 8 as stood before amendment ultra vires the Constitution or not? 4. However these writ petitioners/appellants did not apply in terms of the advertisement rather challenge the earlier Rule. Now the appeal has been admitted for hearing only on one point as to whether the Rule 8 as stood before amendment ultra vires the Constitution or not? 4. Learned counsel for the respective appellants submit firstly that dismissal of the writ petition by the learned Trial Judge by the impugned judgment and order relying on Tanmay Ramaya Lahiri's case is legally wrong as the issue involved in that case was completely different. The issue involved therein was whether a candidate though being registered in the employment office can claim any sponsorship ignoring senior candidates. In Tanmay Ramaya Lahiri's case Constitutional validity of the unamended provision of Rule 8 was in issue. Previously this Rule restricted the field of choice amongst the candidates whose names have been registered in the employment exchange. 5. While assailing that unamended portion they say that the same is not only violative of Articles 14 and 16 of the Constitution of India but also contrary to the Supreme Court decisions in cases of, Excise Superintendent vs. K.B.N. Visweshwara Rao [ (1996) 6 SCC 216 ], Union of India vs. N. Hargopal [ (1997) 3 SCC 308], Arun Kr. Nayak vs. Union of India (2006) 8 SCC 111 and Union of India vs. Pritilata Nanda [ (2010) 11 SCC 674 ]. 6. It has also been held by a Full Bench of this Court in case of Sri Rabindranath Mahata vs. State of West Bengal & ors. reported in 2005 (2) CLJ (Cal) 161 wherein it has been held that judgment rendered in case of Excise Superintendent (Supra) is a declaration of law under Article 141 of the Constitution of India therefore any rules framed relating to recruitment process contrary thereto is automatically ultra vires. 7. Learned Single Judge really followed obiter of the Division Bench and rejected the writ petitions ignoring the aforesaid authoritative pronouncement. Hence the judgment of the learned Trial Judge cannot be sustained. In view of participation of all the candidates in selection process their candidature should be considered for appointment if they are found to be eligible. 8. It appears from the records this Court decided that point of appealability will be decided first before the decision is rendered on merit. 9. The learned Advocate General, Mr. In view of participation of all the candidates in selection process their candidature should be considered for appointment if they are found to be eligible. 8. It appears from the records this Court decided that point of appealability will be decided first before the decision is rendered on merit. 9. The learned Advocate General, Mr. Roy appearing for the State-respondent submits that none of the appeals can be maintained factually or legally in view of the decisions of the learned Single Judge on 29th September, 2009 passed in another writ petition wherein the candidates sponsored by the employment exchange in terms of the unamended rules asked for reliefs that the selection process based on unamended Rule 8 amongst the sponsored candidates from the employment exchange should not be cancelled. The learned Single Judge passed an interim order on 23rd September, 2009 restraining the respondents including the State from cancelling selection process and also from filling up of the vacancies for each selection process which was initiated in 2006 by any process other than sponsorship by Employment Office from amongst candidates who had submitted their bio-data in 2006. Pursuant to the said interim order School Council selected candidates for appointment of 40,000 (forty thousand) Primary Teachers for the slot of 2006. The said interim order dated 23rd September 2009 was made absolute on 24th September, 2009. 10. The present appellants are really seeking their selection and appointment for the 2006 slot and in view of the above order there is no vacancy left to accommodate them even if the appeal is allowed. Thereafter rule was amended and advertisement was issued. These appellants really without responding to the said advertisement have approached this Court. Learned Advocate General also submits that in spite of knowledge of the said interim order dated 23rd September 2009 and final order dated 24th December 2009, no step was taken to challenge the same for reversal. These two orders have reached finality. Hence there is no merit in this appeal. 11. We have heard contention and rival contention of the parties and we have read the materials placed before us. It appears that points for which decision is required in this mater are as follows: (i) Whether appeal is maintainable or not? These two orders have reached finality. Hence there is no merit in this appeal. 11. We have heard contention and rival contention of the parties and we have read the materials placed before us. It appears that points for which decision is required in this mater are as follows: (i) Whether appeal is maintainable or not? (ii) Whether unamended portion of the Rule 2001 as quoted above restricting the field of choice from and amongst the candidates sponsored by the employment exchange was unconstitutional or not? (iii) Whether the challenge as aforesaid has become infructuous in view of the amendment of the Rule having taken place in 2009, on the date of presentation of the writ petition? 12. As far as the maintainability of the appeal is concerned we think that this has to be decided on the facts and circumstances of this case and applying the provision of Clause 15 of the Letters Patent of this Court meaning thereby whether the judgment and order impugned before us is a judgment within the meaning of Clause 15 of the Letters Patent or for that matter true test is whether the decision of the learned Trial Judge determines and/or affects some right of the appellants or not. The aforesaid principle of law has been well settled in large number of decisions and one of such decision is Shah Babulal Khimji AIR 1981 SC 1786 . Keeping in view of the above proposition of law we find that the impugned judgment and order of the learned Trial Judge has ruled out the appellants' possibility of getting employment though at the interim stage the appellants got chance to participate in the selection process. Hence right to get employment is no doubt a very valuable right which includes right to livelihood if not right to life as guaranteed in Article 21 read with Articles 14 and 16 of the Constitution of India. What could be more affectation of rights than that of which is guaranteed in the Constitution itself? 13. We therefore overruling contention of the learned Advocate General that the appellants have been able to establish their case of affectation, hence appeal is maintainable. 14. What could be more affectation of rights than that of which is guaranteed in the Constitution itself? 13. We therefore overruling contention of the learned Advocate General that the appellants have been able to establish their case of affectation, hence appeal is maintainable. 14. We have examined the relief claimed in the writ petition which has been refused by the learned Trial Judge, and we notice that the writ petitioners/appellants and all of them on 14th December 2009 came with the writ petitions having noticed the advertisement dated 30th of August 2009. The unamended Recruitment Rule of 2001 was also asked to be declared unconstitutional in view of the Supreme Court judgment and further relief has been claimed for quashing the notification dated 30th of August 2009. 15. We are of the view that we do not find any reason to entertain the prayer for quashing of the notification dated 30th of August 2009 as the same is found to be completely consistent with the amended provision of the Recruitment Rules and also in terms of the Supreme Court judgment as quoted by the writ petitioners in the body of the writ petition. On plain reading of the said notification dated 30th August, 2009 we see that all the eligible candidates have been invited to submit their application which includes candidates sponsored by the employment exchange. 16. We have failed to understand why this notification has been challenged by the appellants/writ petitioners, they could have very well responded to this advertisement. 17. It appears from the argument and papers that by the said notification the vacancies arose in 2006 and subsequent vacancy of the later years 2009 were clubbed for the purpose of filling up of the large number of post of Primary School Teachers. 18. Therefore going through the body of the writ petitions and in the pleadings filed before the learned Trial Judge and having read text of the judgment and order of the learned Trial Judge we feel that appellants and each of them entertain apprehension that the vacancy arose in the year 2006 might be filled up following unamended Rule of 2001 meaning thereby without making any public notification and restricting to the candidates who were to be sponsored by the employment exchange. In this background the challenge was made though after amendment of the rule which cannot have any retrospective effect in the year 2010. In this background the challenge was made though after amendment of the rule which cannot have any retrospective effect in the year 2010. 19. The argument advanced as to the Constitutional validity of the unamended portion of the rule prevailing in 2006 ultra vires need to be addressed by this Court. 20. It was argued by the learned Advocate General that the rule restricting choice as provided earlier in 2006 was not an unconstitutional as this rule has been held to be valid by the Division Bench of this Court as relied on by the learned Trial Judge in the impugned judgment. The said Division Bench judgment has not been challenged. Moreover the learned Advocate General also contends that the Division Bench has relied on the decision of Supreme Court rendered in case of Union of India vs. N. Hargopal & ors. case (supra). 21. Therefore we read the judgment of the Division Bench in case of Tanmay Ramaya Lahiri's case (supra) 108 in the light of the argument advanced by the learned counsel for the appellants and it is rightly argued by the learned counsel that Tanmay Ramaya Lahiri's case was decided not on the issue whether unamended Rule of 2001 as it stood in 2006 is Constitutionally valid or not. It appears from the facts narrated by Their Lordships in Tanmay's case that writ petitioners therein wanted to participate in the selection process though their names were registered and not sponsored by the employment exchange and there was also challenge of the Recruitment Rules of 2001 as it stood then. It appears from the judgment that though the argument was advanced, Their Lordships did not frame any issue for decision specifically. The Division Bench proceeded on the basis of assumption that the rule is valid therefore sponsorship by the employment exchange following norms of seniority was mandatory. We find Their Lordships without any discussion of relevant decisions of Supreme Court on this point as a passing remark held that impugned rule is not irrational or illogical. It seems to us that Their Lordships were swayed by the decision of the Supreme Court in case of AT. Hargopal but Their Lordships had no occasion to take note of the other large number of Supreme Court decisions including Excise Superintendent, Malkapatnam, Krishna Dist. (A.P.) vs. K.B.N. Visweswara Rao (supra). It seems to us that Their Lordships were swayed by the decision of the Supreme Court in case of AT. Hargopal but Their Lordships had no occasion to take note of the other large number of Supreme Court decisions including Excise Superintendent, Malkapatnam, Krishna Dist. (A.P.) vs. K.B.N. Visweswara Rao (supra). We feel that the aforesaid decision of the Division Bench is contrary to the ratio laid down in the case of K.B.N. Visweswara Rao which is Three Judges Bench decision. We have strong reasons to hold so in view of the fact thereafter large number of Supreme Court decisions have already accepted the ratio decided in Visweswara Rao's case. The Full Bench of this Court in Rabindra Nath Mahata's case (supra) has held that the decision rendered by the Supreme Court in Visweswara Rao's case is a declaration of law under Article 141 of the Constitution of India. In the Full Bench decision taking note of large number of decisions of the Supreme Court categorically ruled in paragraph 21 as follows: 21. Therefore, above being the legal position settled by the Apex Court particularly in the case of KBN Visweshwara Rao (supra) and Raj Kumar (supra), the same was followed in the case of Abu Taker (supra) especially mentioning the said two judgments. It is noticed that in the judgment of the Supreme Court in the case of Abu Taker (supra) the contention of the appellant was considered that conclusion of the Division Bench of the High Court holding a candidate ineligible for consideration being not sponsored by the employment exchange, was erroneous, in view of the aforesaid two decisions of the Apex Court and the bench of the Apex Court in the case of Abu Taker (supra) held categorically "we find sufficient force in the aforesaid contention and as such the name of the appellant cannot be excluded for consideration merely because his name had not been sponsored by the employment exchange." 22. It appears that Division Bench in case of Tanmay Lahiri's case did not take note of the aforesaid binding value on the issue involved. We think that ignoring the consistent views of the Supreme Court even that of Larger Bench, relying on a smaller Bench of the Supreme Court any issue decided by the law Court is not a binding precedent. 23. We think that ignoring the consistent views of the Supreme Court even that of Larger Bench, relying on a smaller Bench of the Supreme Court any issue decided by the law Court is not a binding precedent. 23. The Division Bench of this Court in case of Manik Chandra Das vs. State of West Bengal & ors. reported in 2007 (2) CHN 761 took the same view as it has been taken by this Full Bench. The Division Bench of this Court have also taken note of good number of Supreme Court decisions as well as the aforesaid Full Bench decision and concluded in paragraph 20 as follows: 20. Thus, the restriction put by the aforesaid executive order dated 31st October, 1995 to the effect that only Employment Exchange sponsored candidates are to be considered for employment cannot be sustained and the respondent authorities cannot prevent the appellant or anybody from participating in the interview for filling up the vacant posts on the basis of or pursuant to the aforesaid executive order issued by the Government of West Bengal dated 31st October, 1995. 24. While concluding as above the Division Bench also observed in paragraph 14 as follows: 14. The submissions of the learned Counsel of the State respondents that the Supreme Court in the case of K.B.N. Visweshwara Rao (supra) did not declare any law and the specific observations of the Supreme Court mentioned in Paragraph 10 of the judgment in Arun Kumar Nayak's case (supra) is nothing but a passing remark in view of the judgment of this Court in the case of Debasish Dutta vs. State of West Bengal (supra) cannot be accepted as we find that in the case of Arun Kumar Nayak vs. Union of India and Ors., Supreme Court has specifically held: ....................But in Visweshwara Rao a three-Judge Bench of this Court has laid down the law and that is still holding the field. 25. We are in respectful agreement with the observation of the aforesaid Full Bench Decision as well as immediately above quoted Division Bench decision of this Court. 26. We therefore of the view that the learned Trial Judge should have taken note of the other decisions of the Supreme Court but had chosen to follow the Division Bench judgment on this particular point. 26. We therefore of the view that the learned Trial Judge should have taken note of the other decisions of the Supreme Court but had chosen to follow the Division Bench judgment on this particular point. The learned Trial Judge could have accepted the judgment of the Supreme Court's Larger Bench and Full Bench of this Court to distinguish decision in Tanmay Lahiri's case. 27. We therefore hold that while accepting plea of the learned Counsel for the appellants that the judgment of the learned Trial Judge was not correct on the point of law. We also hold that in view of consistent Supreme Court judgment the decision rendered by the Hon'ble Division Bench earlier with respect is not correct position of law. 28. Even in the recent judgment in case of Union of India vs. Pritilata Nanda (Supra) earlier decision in Visweshwara Rao's case has been unhesitatingly followed, so also it has been held in case of Arun Kumar Nayak vs. Union of India reported in (2006) 8 SCC 111 . 29. In view of the aforesaid discussion we therefore hold that the unamended portion of the Recruitment Rules of 2001 or selection for the post of Primary Teacher being Rule 8 was contrary to the decision of the Supreme Court hence it could not stand to scrutiny under Articles 14 and 16 of the Constitution of India. Therefore the said unamended portion debarring by necessary implication, eligible candidates from applying without being sponsored by the employment exchange is constitutionally invalid. 30. Now the question is even after holding as above whether the appellants can get any relief for the slot of 2006 vacancies or not? We think that as rightly argued by learned Advocate General the appellants and each of them cannot be considered to the post of the Primary Teacher the vacancy of which arose in 2006 in view of the judgment of the learned Single Judge dated 24th December 2009 in batch of writ petitions in case of Anindya Samanta & ors. vs. State of West Bengal and ors. and similar matters. vs. State of West Bengal and ors. and similar matters. The learned Single Judge by this judgment and order decided the matter in the manner as follows: Without expressing any opinion on the merits of the rival claims, this Court disposes of these writ petitions by making the interim order dated 23rd September 2009 absolute with the only modification that the concerned Councils shall consider, if not already considered, all candidates who were/are eligible, according to law, to participate in the selection process initiated in the year 2006 for filling up those vacancies in respect whereof requisitions were sent to the concerned employment exchanges strictly in accordance with the terms of the Recruitment Rules that would govern the process on the date the same was initiated. 31. In spite of the knowledge of the said judgment and order the appellants/writ petitioners before us did not challenge the same hence, the said order has now become binding and in spite of the aforesaid findings on the legal issues this Court cannot grant any relief as far as the appellants' claim for consideration in the vacancies arose in 2006, as the Recruitment Rules then prevailing will be applicable and which necessarily debars any person other than the sponsored candidates to participate in the selection process. 32. However, we view that said judgment of the learned Single Judge will confine to the vacancies arose in 2006 and it cannot have any application for the subsequent vacancies namely in 2009. 33. When the State Government has clubbed the vacancies arose in 2006 and 2009 for filling up it is therefore necessary that the appellants and each of them should become eligible in view of amendment of the Rules subsequently and they were and are entitled to participate in selection process in respect of vacancy arose subsequent to 2006. 34. The learned Single Judge did not consider this aspect of the matter we think perhaps, no effective assistance in this regard was lent. At the ad interim stage the learned Trial Judge having found suitability of the appellants and each of them allowed to participate in the selection process although they did not apply in response to advertisement, but approached Court. At the time of final hearing there was no change of the Rule and they were eligible therefore the interim order passed earlier should not have been vacated to non-suit the appellants. At the time of final hearing there was no change of the Rule and they were eligible therefore the interim order passed earlier should not have been vacated to non-suit the appellants. We therefore dispose of the appeal directing the Primary School Council and State concerned that if the posts/vacancies of which arose in 2009 are not filled up as yet or for that matter after having clubbed in 2006 and 2009 if all the vacancies are not filled up in terms of the order of the learned Single Judge the performance of each of the appellants before us should be considered in the selection process to fill up left over vacancies which arose subsequent to the year 2006 or 2006 year itself. There will be no order as to costs. I agree.