JUDGMENT Jyotirmay Bhattacharya, J. The appellant/writ petitioner filed a writ petition challenging the constitutional validity of Rule 8 of the Recruitment Rules, 2001 in pursuance whereof the concerned District Primary School Council had initiated a process for recruitment of primary teachers in schools under its jurisdiction in 2006. Admittedly, the appellant/writ petitioner was not sponsored by the employment exchange. Since he was not sponsored by the employment exchange, he was not called upon by the Council to participate in the selection process in connection wherewith written examination was scheduled to be conducted on 28th December, 2009. By virtue of an interim order passed by Learned Single Judge of this Court on 14th December, 2009; the Court directed the Council to allow the petitioner to participate in the written examination without prejudice to its rights and contentions. Accordingly, the petitioner was allowed to participate in the written examination, but ultimately he was excluded from the zone of consideration as the writ petition was ultimately decided against the appellant/petitioner. The Learned Trial Judge ultimately dismissed the writ petition on 28th January, 2010 by holding interalia that the Recruitment Rules, 2001 did not permit the Council to consider the candidature of any candidate, not sponsored by the employment exchange, and since the petitioner's name was not so sponsored, the Council suo motu could not have issued call letter in his favour to participate in the written examination. This conclusion was drawn by the Learned Single Judge of this Court by relying upon a Division Bench decision of this Hon'ble Court, reported in 2008(3) CLT 205 (HC) (Tanmoy Ramaya Lahiri & Ors. -vs- The State of West Bengal & Ors.) where Rule 8 has been found to be logical and rational. The legality and propriety of the said decision of the Learned Single Judge of this Court passed on 28th January, 2010 in W.P. No. 22118(W) of 2009 is under challenge in this mandamus appeal. -vs- The State of West Bengal & Ors.) where Rule 8 has been found to be logical and rational. The legality and propriety of the said decision of the Learned Single Judge of this Court passed on 28th January, 2010 in W.P. No. 22118(W) of 2009 is under challenge in this mandamus appeal. Identical issue as to whether any candidate not being sponsored by the employment exchange can participate in the selection process subject to fulfillment of the requisite eligibilities, came up for consideration before the Full Bench of this Hon'ble Court in the case of Rabindra Nath Mahato -vs- State of West Bengal & Ors., reported in 2005(3) CHN 337 wherein it was held as follows :- "Para 41 - The question whether the choice to be restricted only among the candidates sponsored by the Employment Exchange came up for consideration in K.B.N. Visweshwara Rao (supra) in which the Apex Court (Three-Judges' quorum) had held : "We are of the view that contention of the respondents is more acceptable which would be consistent with the principle of fair play, justice and equal opportunity. It is common knowledge that many a candidate is unable to have the name sponsored, though their names are either registered or are waiting to be registered in the Employment Exchange, with the result of the choice of selection is restricted to only such of the candidates whose names come to be sponsored by the Employment Exchange. Under these circumstances, many a deserving candidate is deprived of the right to be considered for appointment to a post under the State. Better view appears to be that it should be mandatory for the requisitioning authority/ establishment to intimate the Employment Exchange, and Employment Exchange should sponsor the names of the candidates to the requisitioning departments for selection strictly according to the seniority and reservation, as per requisition. In addition, the appropriate department or a undertaking or establishment should call for names by publication in newspapers having wide circulation and also display on their office notice boards or announce on radio, television and employment news bulletin and then consider the cases of all the candidates who have applied. If this procedure is adopted, fairplay would be subserved. The equality of opportunity in the matter of employment would be available to all eligible candidates. Para - 42. If this procedure is adopted, fairplay would be subserved. The equality of opportunity in the matter of employment would be available to all eligible candidates. Para - 42. This decision was followed and its ratio was reiterated by the Apex Court in another three-Judges Bench of the Apex Court wherein the Apex Court observed : "15. In view of this legal position, the necessary requirements should be that they should necessarily not only notify but also call the names from Employment Exchange; in addition they should give wide publicity in media inviting application from qualified persons for selection, ......thereafter should strictly follow the procedure by not only calling the names from Employment Exchange, but also by publishing in the local and national newspapers and giving wide publicity in media ..." Para - 43. Reliance of this two decisions by the Apex Court in Abu Taher (supra) with the observation that there was force in the contention of Mr. Krishnamani appearing for the appellant and that the name of the appellant cannot be excluded from being considered merely because his name had not been sponsored by the Employment Exchange even though the decision of the Division Bench had followed the decision in Debasis Dutta (supra), clearly indicates that the decision in Debasis Dutta (supra) was overruled by Abu Taher (supra). We, therefore, hold that the decision in Debasis Dutta (supra) stands overruled in view of the decision in Abut Taher (supra)." Identical view was also expressed by the Division Bench of this Hon'ble Court in a subsequent case, Biswajit Das -vs- State of West Bengal, reported in 2012 (5) CHN CAL 326. Unfortunately, those decisions were not brought to the notice of the Learned Single Judge of this Court while disposing of the said writ petition. By applying the principles laid down by the Full Bench of this Hon'ble Court in the case of Rabindra Nath Mahato (supra) and the principles laid down by the Division Bench of this Court in the case of Biswajit Das (supra), this Court has no hesitation to hold that the petitioner was wrongfully and/or illegally excluded from the zone of consideration, simply because of the fact that he was not sponsored by the concerned employment exchange. As such, we are unable to maintain the impugned order. The impugned order, thus, stands set aside. As such, we are unable to maintain the impugned order. The impugned order, thus, stands set aside. We, thus, direct the Council to ascertain from its records as to whether any candidate who secured less marks than the petitioner in the selection test was accommodated in any primary school on the basis of the selection process initiated in 2006 and if it is found that any candidate securing less marks than the petitioner was given appointment, and if any vacancy is still available, then the petitioner should be offered appointment in the said vacant post without disturbing the appointment of the last accommodated candidate within its jurisdiction on the basis of the recruitment process initiated in 2006. However, if it is found that no such vacancy is available then the Council should appoint the petitioner in any subsequent vacancy available within its jurisdiction and such appointment should be regularised by the Council and the State Government prospectively. This exercise should be completed by the Council as well as the State respondent within twelve weeks from the date of communication of this order. The appeal is, thus, disposed of in the above manner without creating any precedence. In view of the disposal of the appeal, no further order need be passed on the stay application. The stay application is, thus, deemed to be disposed of.