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2013 DIGILAW 232 (CAL)

Gurucharan Khaspuri v. State of Bengal

2013-05-06

PRASENJIT MANDAL

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Judgment :- Prasenjit Mandal, J. This application is at the instance of a candidate for the post of lecturer under the category of ‘Other Backward Classes’ in the college and is filed for issuance of a writ in the nature of mandamus commanding the respondents to recommend as lecturer in Physiology and other consequential reliefs. The short fact necessary of the purpose of the disposal of this writ petition is that, pursuant to an advertisement being no.3 of 2008 dated December 5, 2008 the petitioner applied for the post of Lecturer in Physiology under the University of Bidyasagar as a backward class candidate and participated in the selection process. Thereafter, by a letter dated March 3, 2010, the petitioner was recommended by the respondent College Service Commission for appointment to the substantive post of Lecturer in Physiology of Sabang Sajonikanta Mahavidyalaya, West Midnapore. When the petitioner went to join the said college, he was informed that the post had already been filled up and that there was no vacancy in the said college. Thereafter, the petitioner moved several petitions to different authorities and the Hon’ble Minister-in-Charge, Higher Education Department, Government of West Bengal. Thereafter the Hon'ble Minister-in-Charge wrote a letter dated July 16, 2010 to the College Service Commission about the appointment of the petitioner and the said Minister-in-Charge was informed that the post of Lecturer in Physiology of the college in question had already been filled up by the commission, but, it had not been noted in the office of the College Service Commission. It was also indicated that the petitioner would be recommended by the commission as and when an O.B.C. vacancy for the post of Lecturer in Physiology under the Bidyasagar University Zone would be received. Subsequently, on December 28, 2012, the respondent College Service Commission advertised for the post of Assistant Professors, Librarians and others including the post of Physiology, but, the petitioner was not offered an appointment. Thereafter, on January 22, 2013 he filed an application for appointment. Then on February 12, 2013, this application has been filed by the petitioner for the reliefs already stated. Now, the question is whether the respondent authorities can deny the claim of the petitioner for recommendation in the vacant post of Lecturer in Physiology though he was intimated that he would be recommended as and when the vacancy would arise. Then on February 12, 2013, this application has been filed by the petitioner for the reliefs already stated. Now, the question is whether the respondent authorities can deny the claim of the petitioner for recommendation in the vacant post of Lecturer in Physiology though he was intimated that he would be recommended as and when the vacancy would arise. Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that there is no dispute that the petitioner went through the selection process for appointment to the substantive post of Lecturer in Physiology under the Bidyasagar University Zone pursuant to the advertisement no.3 of 2008 dated December 5, 2008 issued by the West Bengal College Service Commission. It is also not in dispute that the petitioner was empanelled under the ‘Other Backward Classes’ category and that he was recommended for the post of Lecturer in Physiology in the Sabang Sajonikanta Mahavidyalaya, West Midnapore. W hen the petitioner went to join the said college, he was informed that the post had already been filled up. It is also not in dispute that by a letter dated July 28, 2010, the West Bengal College Service Commission informed the Hon’ble Ministerin-Charge, Higher Education Department, Government of West Bengal to the effect that as the post of Lecture in Physiology of Sabang Sajonikanta Mahavidyalaya had already been filled up, but, it had not been noted in their office, the petitioner would be recommended as and when an Other Backward Classes vacancy for the post in question under the Bidyasagar University Zone would be received. This happened in the month of June 2010. Subsequently, the respondent College Service Commission issued the advertisement dated December 28, 2012 showing vacancy to the post of Physiology as indicated in Annexure P-3 at Page No.15 which indicates that one post under the O.B.C.-B was vacant. Anyway, from materials on record, I find that the advertisement was issued in the year 2008 and the petitioner appeared in the interview for selection in 2009 and, thereafter, the panel was prepared on November 25, 2009 or soon thereafter. From the materials on record it is not clear as to the position of the petitioner according to list of selection as no such copy has been furnished. From the materials on record it is not clear as to the position of the petitioner according to list of selection as no such copy has been furnished. The only consideration in favour of the petitioner is, the letter of the College Service Commission dated July 28, 2010 issued to the Hon’ble Minister-in-Charge, Higher Education Department, indicating that the petitioner was recommended in the concerned college, but, the said post had already been filled up by the commission. The letter also lays down that it was the liability of the commission and he must be recommended by the commission as and when an Other Backward Classes vacancy for the post of Lecturer in Physiology under the Bidyasagar University Zone would be received. The petitioner has also failed to show when the vacancy under the said category had arisen. It was possibly known to the petitioner when the advertisement dated December 28, 2012 was published by the College Service Commission for different posts of Assistant Professors, Librarian etc. Reiterating the case of the petitioner Ms. Anupama Hajari, learned Advocate appearing for the petitioner has contended that since the petitioner was an empanelled candidate and as per letter Annexure P-2 appearing at Page No.14, the Commissioner was bound to recommend the petitioner as and when an O.B.C. vacancy for the post of Lecturer in Physiology under the concerned university would be received, but, it had not been done. So, the reliefs as sought for should be granted. Ms. Hajari has relied upon the decision of Purushottam v. Chairman, M.S.E.B. & Anr. reported in (1999) 6 Supreme Court Cases 49 particularly the paragraph no.4 and she has contended that the right of the petitioner to appointment against the post to which he has been selected cannot be taken away on the pretext that the said panel had in the meantime expired and the post had already been filled up by somebody else. She has also relied upon the decision of Kaushik Mallick v. West Bengal College Service Commission & Ors. reported in 2010 (4) CHN (CAL) 69 and thus, she has submitted that when the commission had committed an illegality and the petitioner had no knowledge about the illegality nor had any control over the commission, the application of the petitioner should not be dismissed on the ground of delay. On the other hand, Mr. reported in 2010 (4) CHN (CAL) 69 and thus, she has submitted that when the commission had committed an illegality and the petitioner had no knowledge about the illegality nor had any control over the commission, the application of the petitioner should not be dismissed on the ground of delay. On the other hand, Mr. P.R. Mondal, learned Advocate appearing for the College Service Commission has referred to the unreported decision of M.A.T.463 of 2000 passed by a Division Bench of this Hon’ble Court and submitted that when the life of the panel had already expired by lapse of time it cannot be stated that the College Service Commission was taking advantage of its own wrong in denying the appointment. He has also referred to the decision of State of Bihar & Ors. v. The Secretariat Assistant Successful Examinees Union 1986 & Ors. reported in AIR 1994 Supreme Court 736 and thus, he has contended that the empanelment does not create any vested right to be appointed unless the relevant service rule says to the contrary and thus, he has submitted that since the petitioner was simply an empanelled candidate and there was no vacancy, he could not be appointed. Such empanelment does not create any vested right as indicated in the said decision under reference. So, the prayer of the petitioner should be dismissed. Having due regard of the submissions of the learned Advocates of both the sides, I find that the decision of Purushottam (supra) is not applicable in the instant case in view of the fact that, the said decision is based on a different fact from the present one. In the instant case, by the letter (Annexure P-1), the petitioner was recommended for appointment to the post in question of the concerned Sabang Sajonikanta Mahavidyalaya by a letter dated March 3, 2010. As per his contention when he went to join, he had been informed that the post had already been filled up. Any way, save and except the letter of the College Service Commission to the concerned Minister dated July 28, 2010, I do not find that the petitioner took any steps for appointment under the said O.B.C. category up to January 22, 2013, when he filed an application to the College Service Commission for appointment when the advertisement dated December 28, 2012 indicated the vacant post under the Other Backward Classes-B category. Mr. Mr. Mondal has contended that the life of the panel exists for one year and so after the lapse of the life of the panel, the question of appointment does not arise. In the instant case, it is difficult for the petitioner to know when actually any vacancy under the concerned category arose under the Bidyasagar University Zone. But the concerned rule is clear that the life of the panel existed only for one year. In the case of Purushottam (supra), there was a dispute whether the concerned applicant belonged to the Scheduled Tribe candidate or not and that is why, there was a delay on the part of the commission. The petitioner had to file a second writ petition. In the meantime, the life of the panel expired and as such, the petitioner had no laches or negligence in the matter of selection. But, in the present case as soon as the petitioner went to join to the college on getting the letter of appointment, he was informed that the post had already been filled up. The Commission had also acceded the fact of filling up the post earlier but not recorded in the office of the College Service Commission and as such, the recommendation had been made by mistake. So, the decision of Purushottam (supra) is quite distinguishable from the present one and for that reason the decision of Purushottam (supra) will not be applicable in the instant case. Similarly, the decision of the Division Bench of this Hon’ble Court in Kaushik Mallick (supra) I hold, is not applicable in the instant case. Inasmuch as, in that case a less merited student whose position was below the name of the petitioner in the selection list based on merits got an appointment depriving the petitioner of that case. The Hon’ble Division Bench directed for not disturbing the candidate who had already been appointed earlier but the appellant should be appointed in the next available vacancy. Therefore, the situation of that case is quite different and under such circumstances, the Hon’ble Division Bench observed that since the appellant had no laches or negligence and the concerned authority took an erroneous decision, the right of the appellant to be appointed had been taken away illegally by the employer. So, the present case is completely different from the case of kaushik Mallick (supra) and so this decision will not be applicable. So, the present case is completely different from the case of kaushik Mallick (supra) and so this decision will not be applicable. So far as the M.A.T. No.463 of 2000 and other appeals are concerned, the appeals were allowed and the concerned writ petitions were dismissed on the ground that the petitioners had approached the Court when the College Service Commission had stopped operating the panel in 1995 by which time the life of the panel had expired. So, these M.A.T. appeals support the stance of the respondents. The case of State of Bihar & Ors. (supra) cited by Mr. Mondal, in my view, is very much applicable. In order to appreciate the situation the paragraph no.10 of the said decision is quoted below:- “It is now well settled that a person who is selected does not, on account of being empanelled alone, acquire any indefeasible right of appointment. Empanelment is at the best a condition of eligibility for purposes of appointment, and by itself does not amount to selection or create a vested right to be appointed unless relevant service rule says to the contrary.” It may be menti oned herein that the decision of State ofBihar & Ors. (supra) is based on the decisions of the Hon’ble Apex Court in Shakarsan Dash v. Union of India 1991 reported in 1991 (3) SCC 47 : ( AIR 1991 SC 1612 ) and Sabita Prasad v. State of Bihar reported in 1992 (3) Scale 361 . Since the writ petition has been filed long after lapse of the life of the panel in view of the fact that the decisions of State of Bihar & Ors. (supar) and the bunch of appeals including M.A.T. No.463 of 2000, I am of the opinion that though it was difficult for the petitioner to know whether any vacancy under the said Other Backward Classes category occurred during the lifetime of the panel and to take appropriate steps within the lifetime of the panel, this belated application cannot be entertained at all. So in the instant case, there is no discrepancy or arbitrariness on the part of the respondent authorities. So in the instant case, there is no discrepancy or arbitrariness on the part of the respondent authorities. It is not certain from the advertisement dated December 28, 2012 when the vacancy under that Other Backward Classes-B category fell vacant and the petitioner being not able to enlighten over this fact, such belated application, pursuant to the advertisement of 3 of 2008 and recommendation in the year 2010, in my view, cannot be reopened for consideration in the year 2013. The respondents can well deny the prayers of the petitioners for recommendation at the belated stage. Therefore, no relief can be granted in favour of the petitioner. The application is, therefore, devoid on merits and is, therefore, dismissed. However, there will be no order as to costs. Since no affidavit-in-opposition is filed, allegations contained in the writ petition stand not admitted by the respondents. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.