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2019 DIGILAW 373 (CAL)

Tanushree Das v. State of West Bengal

2019-03-15

SUBRATA TALUKDAR

body2019
JUDGMENT : 1. A short point has emerged in this writ petition. The writ petition belongs to the year 2008. The petitioner, Tanushree Das (for short TD) claims appointment to the post of Anganwadi Worker (for short AWW) under the Integrated Child Development Scheme (for short ICDS), Habibpur, District- Malda. The selection is of the year 2006 and Mr. Prahlad Chandra Ghosh, Learned Counsel appearing for TD/the writ petitioner straightaway takes this Court to the Selection Guidelines (for short the Guidelines). 2. It is submitted that the Guidelines envisage preparation of a panel from two categories, viz. the General Category (GC) and the Reserve Category (RC). It is submitted that the eligibility academic criterion is different for GC and RC. While for the GC the academic threshold for applying was fixed at Madhyamik Passed (for short MP), for the RC the criterion was fixed at Class VIII passed. Mr. Ghosh further submits from the records of the present proceedings that even the Question Papers for the two categories along with their respective answer scripts were separately prepared and assessed. 3. Therefore, Mr. Ghosh points out that the separate examinations held for two sets of examinees, one MP and the other Class VIII passed, presupposes the preparation of two panels, one for MP and the other for class VIII passed or, one for GC and the other for RC. 4. Mr. Ghosh submits that even the vacancy position according to the 100 point Roster was separately notified for GC and RC in respect of Bulbulchandi, Gram Panchayat (GP) to which the petitioner applied. Taking this Court to the Roster position as relied upon in the Affidavit of Opposition of Learned State Counsel, Mr. Ghosh points out that for Bulbulchandi GP the 31st position was reserved for GC candidates, the 32nd for RC candidates and the 33rd again for GC candidates. Therefore, the petitioner/ TD being the second successful GC candidate in her category of examination was entitled to be appointed to one of the two GC vacancies. However, most illegally, according to Learned Counsel for the Petitioner, out of the three vacancies, two RC candidates and one GC candidate have been appointed leaving out the petitioner, although second amongst GC candidates. 5. However, most illegally, according to Learned Counsel for the Petitioner, out of the three vacancies, two RC candidates and one GC candidate have been appointed leaving out the petitioner, although second amongst GC candidates. 5. In the Affidavit in Opposition of the State Respondents the stand is taken that the 3 vacancies for AWW were created under Habibpur ICDS project out of which two were for GC and one for RC candidates. It is further pointed out that one Ranu Sarkar belonging to RC, being placed in the first rank was appointed to a GC vacancy. Another candidate namely, Lakshmirani Saha (Nag) was appointed to the 2nd GC vacancy. 6. Mr. Sirsanya Bandyopadhayay, Learned Junior Standing Counsel, submits that the writ petitioner/ TD belongs to the GC category and was placed in the 4th Rank in the combined merit list. Since Ranu Sarkar topped the merit list, although being a RC candidate, she was appointed in the GC category following due process as applicable to such selection. The second in the combined merit list and GC candidate, Lakshmirani Saha (Nag), was followed by Gita Prasad (Singha) as the 3rd candidate in the merit list, although belonging to RC. According to the State Respondents, Lakshmi Saha (Nag) was therefore appointed to the second GC vacancy available and Gita Prasad (Singha) to the sole RC vacancy as per the Roster. 7. Mr. Bandhyopadhayay argues that academic eligibility alone, viz. MP or Class VIII passed, is not indicative of a position in the merit list. It is submitted by Learned State Counsel that the ultimate eligibility of the petitioner as well as the other candidates is relatable to the combined merit list. The vacancies, either General or Reserved, were then filled up from the common combined list as per law. The stand is taken by the State that irrespective of different sets of question papers, the post applied for, i.e. AWW, is one. Hence a single combined merit list. In support of his arguments, Mr. Bandhyopadhayay relies upon the authorities reported in 1997 (6) SCC 283 and 2018 (2) SCC 656 (at paragraph 8). 8. The stand is taken by the State that irrespective of different sets of question papers, the post applied for, i.e. AWW, is one. Hence a single combined merit list. In support of his arguments, Mr. Bandhyopadhayay relies upon the authorities reported in 1997 (6) SCC 283 and 2018 (2) SCC 656 (at paragraph 8). 8. Having heard the parties and considering the materials placed, this Court arrives at the following findings:- (A) It is an admitted position that the vacancies were separately notified according to Roster in respect of Bulbulchandi GP that is the 31st , 32nd and 33rd vacancies belonging respectively to GC, RC and then GC in that order. It is also an admitted position that the said Ranu Sarkar stood first among both GC and RC candidates. (B) It is also trite that a RC candidate topping the overall merit list would be entitled to claim the higher merit position in the General Category. Therefore, the appointment of Ranu Sarkar to the 31st vacancy in Bulbulchandi GP could have otherwise been an exercise permissible in law, but for the particular facts of this case. (C) Next, the terms of the recruitment in issue in this writ petition must be noticed. The terms of the advertisement clearly provide for recruitment from two categories with two distinct academic eligibility criteria laid down. (D) It is also relevant to notice that the syllabus and the question papers for either categories of candidates, i.e. GC and RC (MP and Class VIII passed) were different. The MP and Class VIII passed candidates were assessed separately. This fact shall become abundantly clear from the Right to Information Act, 2005 (for short the 2005 Act) Reply received by the petitioner and appearing at page 11 of her Affidavit in Reply. (E) Additional sustenance with regard to the above referred position of facts can be gathered from the clear averments at Paragraphs 4(iii) and 4(iv) of the Affidavit in Reply, as also Paragraph 7 thereof which, respectively, read as follows:- "4(iii) That for selection of Anganwadi Workers written examination was held. That for general candidates the question Standard was of Madhyamik Standard and for SC/ST candidates the question standard was of Class-VIII standard. 4(iv) That the written examination was also held and different sets of question papers were used for General and SC/ST candidates. 7. That for general candidates the question Standard was of Madhyamik Standard and for SC/ST candidates the question standard was of Class-VIII standard. 4(iv) That the written examination was also held and different sets of question papers were used for General and SC/ST candidates. 7. That the statements made in paragraph 6(i) of the said Opposition are strongly denied by me save and except which are matters of record and I submit that when the educational qualification required for general candidate for the post of Anganwadi worker was Madhyamik Examination Passed and for Sc/ST candidates for the same post was Class-VIII Passed, even in the written examination was held by different standard of question papers in as much as for general candidates the question standard was of Madhyamik standard and for SC/ST, question standard was VIII standard and also different sets of question papers having full marks 70 were used for general category and SC/ST category, there cannot be combined merit list and/or single panel, on the other hand, two merit lists (Panels) should have been prepared one for General category and another for Scheduled Caste/Scheduled Tribe Category and thereafter three vacancies (2 for General category and one for SC category) should have been filled up from the respective panel. That Gita Prasad (Singha), respondent No.11 belong to Scheduled Caste Category and made application in Scheduled Caste category having qualification VIII passed and as such she should not have been given appointment by denying my appointment since I obtaines second highest marks as General Category candidate. I submit that the resolution of the project Level Selection Committee dated 14.11.2006 was not properly adopted and the reasons given in the said resolution for cancelling my appointment was/ is not applicable and acceptable considering the facts and circumstances of the case. I shall make further submission to that effect at the time of hearing." (F) It also deserves to be mentioned in this discussion that although the writ petition is being decided in 2019 having been filed in 2008, the petitioner is covered by a subsisting interim order of this Court dated the 30th of January, 2008 to the effect that the appointment of the Respondent No. 11/Gita Prasad (Singha) and other steps taken by the Respondents shall abide by the result of the petition. In the considered view of this Court, on the strength of such interim order. In the considered view of this Court, on the strength of such interim order. The petitioner is entitled to claim reliefs at present in law and in equity, notwithstanding the passage of time. (G) In the above view of the matter, this Court, while not denying the proposition advanced by Learned State Counsel as reported in 2018 (2) SCC 656 on the point that candidates belonging to RC, if found to qualify with a higher ranking on the basis of their combined merit may be placed in the general list, at the same time, is of the clear view that the above referred proposition stands conditioned by the fact that the selection examination is common to both categories. (H) In the particular facts of the present case the selection examination was different in respect of two categories, GC and RC. Therefore, in the absence of a common examination and admittedly by employing separate evaluation procedures, the contention of the State Respondents that having regard to the common/singular identity of the post of AWW the respective GC and RC examinees were treated uniformly is an exercise unacceptable in law and equity. (I) On the other hand, the decision relied upon by Learned Counsel for the petitioner as reported in 1999 (6) SCC 49 applies apropo to the extent that when a duly selected person is kept out of employment on account of any untenable decision of the employer, such a selectee cannot be denied appointment on the ground that the appointment process or the panel, has expired in the meantime. The mere filling up of the post which the deprived candidate could fill up ought not stand in the way of appointing the deprived candidate. (J) Therefore, the very act of filling up the two GC posts by RC candidates has created disequilibrium in the recruitment process. It was incumbent upon the authority to fill up the vacancies separately for GC and RC candidates by treating their merit positions to be separate and not part of a common examination. 9. In the backdrop of the above discussion, this Court directs as follows:- (I) The Respondent No.7 shall take steps to forthwith offer appointment to the petitioner to the post of Anganwadi Worker, Habibpur Block, Malda. 9. In the backdrop of the above discussion, this Court directs as follows:- (I) The Respondent No.7 shall take steps to forthwith offer appointment to the petitioner to the post of Anganwadi Worker, Habibpur Block, Malda. (II) Although the petition is of the year 2008 and the selection pertains to the year 2006, since the Private Respondent Nos.9, 10 & 11 have been working against their respective posts for now more than a decade without any conscious act of commission or omission alleged against them, the appointments of the Private Respondent Nos. 9, 10 & 11 are not disturbed. (III) However, the appointment of the petitioner shall be treated as notional from the date of her first appointment with effect from 11th of May, 2006 and prospective with real time benefits as revised from time to time and applicable till date. The petitioner shall receive regular benefits from the date of her actual appointment and the period of service from May, 2006 till the date of her actual appointment shall be counted for calculating all service benefits which the petitioner is entitled in law to receive at par with the Respondent Nos.9, 10 & 11. 10. WP 975 (W) of 2008 stands accordingly allowed. 11. Urgent Xerox certified photocopies of this judgement, if applied for, be given to the parties upon compliance of the requisite formalities.