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2014 DIGILAW 325 (CAL)

Prasanta Das v. State of West Bengal

2014-04-07

SAMBUDDHA CHAKRABARTI

body2014
JUDGMENT Sambuddha Chakrabarti, J. By this writ petition the petitioner has inter alia prayed for a writ in the nature of Mandamus commanding the respondents to cancel the promotional appointment of respondent no. 6 and to appoint the petitioner in his place and for other consequential reliefs. The petitioner was appointed as a Steno-Typist in Dum Dum Motijhil College (the College, for short), i.e., the respondent no. 3 herein on June 22, 1998. On July 18, 2007 a notice was issued for temporary appointment to two posts of Cashier, one for the morning and another for the day section of the college. The notice was issued inviting applications from the serving Group C candidates. The petitioner applied for both the posts and he had applied for promotion to the vacancies. According to the petitioner, in terms of the prevailing Government Order whenever a vacancy in the post of the Cashier occurred it had to be filled up by promotion from the employees belonging to the category of Lower Division Clerk, Typist etc. and if no suitable candidate was available by way of promotion only then such posts would be filled up by process of direct recruitment. The grievance of the petitioner is that so far as the panel for the morning section is concerned the respondent no. 6 who was junior to the petitioner and was working as an Electrician/Caretaker was selected as the first candidate and in the panel prepared the petitioner was selected as the second. In the panel for the day section one Gopal Nag Chowdhury was empanelled as the first candidate and the petitioner’s name appeared as the second candidate. The petitioner belonged to the Scheduled Caste category. The post in the day section was unreserved; but for the morning section it was reserved for the Scheduled Caste. Challenging the illegality in the selection process the petitioner has filed the present petition. The principal point on which the petitioner has sought to assail the selection of the respondent no. 6 is that it was contrary to the relevant Government Order and the reservation policy of the government. As per the Government Order the post of the Cashier was to be filled up from the category of Lower Division Clerk, Typist etc. The respondent no. 6 who was selected for the post was neither a Clerk nor a Typist and the petitioner was senior to him. As per the Government Order the post of the Cashier was to be filled up from the category of Lower Division Clerk, Typist etc. The respondent no. 6 who was selected for the post was neither a Clerk nor a Typist and the petitioner was senior to him. The Calcutta University First Statutes, 1979 (the Statutes, for short) also provides that promotion to the post of Cashier of a college would be by promotion from employees belonging to Assistant, Clerk, Labour Assistant, Record Keeper etc. That apart the respondent no. 6 belongs to a totally different cadre of lower subordinate staff from which there cannot be any promotion to the concerned post. The respondents nos. 3, 4 and 5, i.e., the College authorities have contested the case by filing an affidavit-in-opposition. The case of the respondents inter alia is that in terms of the directive of the State Government the College is entitled to fill up the vacancy for the posts of the Clerk or Cashier or Accountant etc. either by transferring the existing staff or by promoting the existing staff out of the Clerk, Library Assistant, Typist and some Electrical staff of the lower divisional scale of pay whom the College authority may deem fit for the post. In terms of the said directive the College authority proceeded to select the eligible staff to promote to the post of Cashier for both the day and the morning section by a notification inviting applications. The selection committee formed for the purpose of selection of the candidates selected Sri Gopal Nag Chowdhury as the first candidate for the day panel and Sri Sanjib Das, the respondent no. 6, for the morning panel. The selection committee followed the Statutes as well as the Government Order dated February 22, 2001. The respondents have alleged that they had received several complaints against the petitioner and even the Director of Public Instructions asked the Principal of the College to submit a detailed report on the allegations made by a complainant. The respondent submitted that the instant case was not a case of ordinary and normal promotion but a fresh inter departmental selection which was done by a selection committee. Several other factors were taken into consideration like attendance, experience, efficiency, seniority and character roll and the selection committee after considering the eligibility of the candidates and service records and other documents selected the respondent no. Several other factors were taken into consideration like attendance, experience, efficiency, seniority and character roll and the selection committee after considering the eligibility of the candidates and service records and other documents selected the respondent no. 6 for the concerned post as per the Government Rule and the Statutes. As per the Statutes the post of Caretaker is a feeder post for the post of a Cashier, Account etc. and as such the respondent no. 6 was duly qualified and competent for being considered for the promotional post of Cashier. Thus, the entire question boils down to whether the appointment of the respondent no. 6 as the Cashier is valid and in terms of the Rules prevailing the field. It appears from the Government Order dated February 22, 2001 issued by the Higher Education Department, C.S. Branch, Government of West Bengal that whenever a vacancy arises in the post of a Head Clerk the same may be filled up by transferring the existing Accountant/Cashier/UD Clerk. Whenever a vacancy arises in the post of Accountant/Cashier/UD Clerk the post may be filled up by promoting the existing Clerk/Library Clerk/Typist, similar clerical staff of the lower division scale of pay to the concerned post whom the College authority may deem fit for the post. In either case attendance, experience, efficiency, etc. shall have to be taken into consideration. The respondents have denied that the respondent no. 6 had never been assigned any official or clerical job or the decision to appoint him as the Cashier of the College had been manipulated in his favour. Turning to the Statutes it appears that the non-teaching employees of colleges affiliated to the University of Calcutta have been classified into two groups, namely, ministerial staff comprising the posts of Office Superintendent, Cashier, Accountant, Head Clerk, Senior Assistant and Senior Clerk and such other posts as may be approved by the Government. It also includes the Assistant, Clerk, Library Assistant, Stenographer, Store Clerk, Storekeeper and such other posts as may be approved by the State Government. Lower subordinate staff comprises Skilled Driver, Library Attendant, Skilled Bearer, Electrician, Mechanic and Carpenter and unskilled labourer like Messenger Peon, Darwan, Night Guard and Sweeper. It also includes the Assistant, Clerk, Library Assistant, Stenographer, Store Clerk, Storekeeper and such other posts as may be approved by the State Government. Lower subordinate staff comprises Skilled Driver, Library Attendant, Skilled Bearer, Electrician, Mechanic and Carpenter and unskilled labourer like Messenger Peon, Darwan, Night Guard and Sweeper. Statute 6 of Chapter XIII of the Statutes says that whenever a permanent vacancy occurs in any of the posts referred to in sub-Clause 1 of Clause (a) of the Statute 3, i.e., the Ministerial Staff comprising the posts of Office Superintendent, Cashier etc. such vacancy shall in the first instance be filled up by promotion from amongst the employees holding any of the posts referred to in sub-Clause 2 of Clause (a) of Statute 3, i.e., the Assistant Clerk, Library Assistant, Store Clerk, Caretaker etc. The respondent no. 6 was admittedly holding the post of an Electrician/Caretaker. As such it cannot be doubted that the respondent no. 6 was qualified to be promoted to the post of Cashier by virtue of the post he was holding. He was eligible to be promoted both in terms of the Government Order as well as the Statutes. Both the Government Order as well as the Statutes require that in the matter of such promotion several factors like efficiency, seniority, attendance etc. are required to be taken into consideration. Even if the petitioner is senior to the respondent no. 6 there were certain allegations against the petitioner which have been mentioned in details in the affidavit-in-opposition by the College authorities. The petitioner had, however, described the same as entirely fabricated and motivated and he has further alleged that since the authorities have not taken any step against the petitioner the same need not be considered as factors standing in the way of the petitioner’s promotion. Be that as it may, a bare perusal of the relevant Government Order and the Statutes makes it quite clear that appointment was made in consonance thereof and I find sufficient justification in the submission that the post of Caretaker is a feeder post for the promotional post of Cashier and as such the respondent no. 6 was duly qualified and competent for being considered for the post. 6 was duly qualified and competent for being considered for the post. So far as the comparative merits of the candidates is concerned it is well settled that courts do not sit in appeal over the selection of candidates which is left to the expert body of selection committee. This principle of law is subject to certain well laid-down factors justifying judicial interference. These are, however, are not present in this case. Mr. Chatterjee the learned Senior Counsel for the petitioner has also challenged the selection of the respondent no. 6 that there was no Scheduled Caste member on the selection committee as contained in the UGC guidelines for implementation of the reservation policy. It has been provided in Clause 8 therein that there should be one member belonging to the Scheduled Caste/Scheduled Tribe category in the selection committee for the appointment to the posts for the reserved categories. Even this point of attack is not available with the petitioner. It is important to note that the petitioner did not raise any objection at the relevant point of time and was in fact taking a calculated risk by sitting on the fence. He was already an employee of the college. If the petitioner had any objection to the composition of the selection committee it was incumbent upon him to have raised an objection then and there without waiting for the results to be published and not to take the objection after being unsuccessful in the selection process. Such practice has been deprecated by the Supreme Court in various judgments. More recently, in the case of Madan Lal –Vs.- State of Jammu and Kashmir, reported in (1995)3 SCC 486 , the Supreme Court had held that the selection process including an interview cannot be challenged by a candidate who takes a calculated chance and appears at the interview and then, only because the result of the interview was not acceptable to him turn around and contend that the process of interview was unfair or the selection committee was not properly constituted. On the application of the principle of law judicially well-settled the petitioner cannot be heard about the composition of the interview board. Thus, I find no merit in the writ petition and the same is hereby dismissed. There shall, however, be no order as to costs.