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2020 DIGILAW 45 (CAL)

Sharmistha Sinha Gupta v. Wbsetcl

2020-01-10

RAJASEKHAR MANTHA

body2020
JUDGMENT 1. The short question that emerges in the instant writ application is interpretation of terms of an advertisement dated February 26, 2013 pursuant to which the petitioner applied for the post of Chief Medical officer at the West Bengal State Electricity Transmission Company Ltd. (WBSETCL). 2. Counsel for the petitioner submits that she had fulfilled all the criteria for the advertisement and appeared in the selection process but she was not recruited. 3. The brief facts leading to the dispute are, inter alia, that the petitioner and a large number of other persons were employees of the West Bengal State Electricity Board (WBSEB). For the purpose of business convenience and fulfilling statutory obligations of the Board, initially a company called West Bengal State Electricity Distribution Company Limited (WBSEDCL) was formed and an option was given to the employees of the WBSEB to join WBSEDCL. It was stipulated in the scheme for formation of the WBSEDCL and transfer of employment, that the service benefits as available to the employees of WBSEB would also continue with the transfer of employment from WBSEB to WBSEDCL. 4. The WBSEB had a GPF Scheme for its employees. The same was passed on as a benefit to those employees who opted to join the WBSEDCL. 5. In the meantime, the WBSEB, for the purpose of further reorganization and business convenience proposed to continue the transmission business of electricity through separate company called the West Bengal State Electricity Transmission Company Limited (WBSETCL). 6. The WBSETCL as a company and in terms of its service conditions did not have an independent GPF Scheme. However, by reason of the original scheme for demerger and/or creation of the two independent companies/entities Viz. WBSEDCL and WBSETCL, and the option being exercised by the former employees of WBSEB, the GPF benefit was ipso facto available to the employees who opted to join either of the two companies. 7. The petitioner was a Deputy Chief Medical Officer in the WBSEDCL. Pursuant to the advertisement issued on February 26, 2013 by the WBSETCL, she applied for the post of Chief Medical Officer thereat. It was however clearly stipulated in the advertisement that the post would carry, inter alia, service benefits which included only Contributory Provident Fund (CPF). 8. The petitioner applied and claimed that she was successful and was also recommended to be recruited to such post. It was however clearly stipulated in the advertisement that the post would carry, inter alia, service benefits which included only Contributory Provident Fund (CPF). 8. The petitioner applied and claimed that she was successful and was also recommended to be recruited to such post. There are internal communications in the hierarchy of the WBSETCL relied upon by the petitioner in support of such claim. The petitioner was however not appointed as she asserted her right to GPF based on the original scheme of bifurcation/reorganization. 9. The principal ground urged by the petitioner in support of her right to be engaged as CMO with WBSETCL is that notwithstanding the stipulation in the advertisement, she, by reason of the original scheme of creation of WBSEDCL and WBSETCL out of the WBSEB, is entitled to continue to enjoy her GPF benefit, even after she participated in an independent process of recruitment to the post of Chief Medical Officer, with WBSETCL, and notwithstanding the terms of the advertisement. 10. A subsequent and yet crucial fact needs to be factored herein. The post of Chief Medical Officer in the WBSETCL, post advertisement was never filled up by a permanent incumbent. It was continued and still continues with a temporary, contractual and/or ad hoc engagement. The recruitment process to the post of Chief Medical Officer was thus abandoned by the WBSETCL. 11. The aforesaid policy decision of the WBSETCL, would render the first and principal argument of the petitioner of her right to be engaged in the permanent post along with service benefits available to her at the WBSETCL, rather academic. 12. In essence what the petitioner is claiming under the first argument is a benefit of the original scheme for demerger, despite having exercised her option to join the WBSEDCL, even while competing for an independently advertised post in the newly created WBSETCL, unconnected with the scheme. 13. This Court is of the clear view that the terms of the advertisement pursuant to which the petitioner asserts cause of action, would have to govern the claim of the petitioner and not the original scheme based on which she had exercised option to join WBSEDCL. 14. The petitioner did have an option to join WBSETCL in the same post with the same benefit available to her either at the WBSEDCL or WBSEB. 14. The petitioner did have an option to join WBSETCL in the same post with the same benefit available to her either at the WBSEDCL or WBSEB. In such a situation, she would have joined or being entitled to the post of Deputy Chief Medical Officer at WBSETCL. 15. The post of Chief Medical Officer in the WBSETCL is required to be governed by terms of the advertisement. The argument of the petitioner that she is entitled to the GPF facility based on the fact that a large number of optees joined WBSETCL do enjoy the same benefit even today, cannot be applied to a post which is being filled up afresh pursuant to an advertisement, post such option under the Scheme. 16. Such filling up of post pursuant to advertisement afresh in the year 2013 must be deemed to have been governed only by the terms of the advertisement and any inconsistency between such terms and any other terms, must give way to the principal terms of the advertisement and not any other term that is in conflict therewith. 17. It would not be out of context to refer to the decisions of the S.C. in the case of Chandigarh Admn. Vs. Usha Kheterpalwaiereported in (2011) 9 SCC 645 reported in (2011) 9 SCC 645 . At paragraph 22, the S.C. has stated as follows:- '22. It is now well settled that it is for the rule-making authority or the appointing authority to prescribe the mode of selection and minimum qualification for any recruitment. The courts and tribunals can neither prescribe the qualifications nor entrench upon the power of the authority concerned so long as the qualifications prescribed by the employer is reasonably relevant and has a rational nexus with the functions and duties attached to the post and are not violative of any provision of the Constitution, statute and rules. (See J. Ranga Swamy v. Govt. of A.P. [ (1990) 1 SCC 288 : 1990 SCC (L&S) 76] and P.U. Joshi v. Accountant General [(2003) 2 SCC 632 : 2003 SCC (L&S) 191] .) In the absence of any rules, under Article 309 or statute, the appellant had the power to appoint under its general power of administration and prescribe such eligibility criteria as it is considered to be necessary and reasonable. Therefore, it cannot be said that the prescription of PhD is unreasonable.' 18. Therefore, it cannot be said that the prescription of PhD is unreasonable.' 18. The decision in the case of ( Madras Institute of Development Studies vs. K. Sivasubrananiyan) reported in (2016) 1 SCC 454 is also relevant. At paragraphs 13 and 17 it was laid down as follows:- '13. Be that as it may, the respondent, without raising any objection to the alleged variations in the contents of the advertisement and the Rules, submitted his application and participated in the selection process by appearing before the Committee of Experts. It was only after he was not selected for appointment that he turned around and challenged the very selection process. Curiously enough, in the writ petition the only relief sought for is to quash the order of appointment without seeking any relief as regards his candidature and entitlement to the said post. 17.In Manish Kumar Shahi v. State of Bihar, this Court reiterated the principle laid down in the earlier judgments and observed: (SCC p. 584, para 16) '16. We also agree with the High Court [ Manish Kumar Shahi v. State of Bihar, 2008 SCC OnLine Pat 321 : (2009) 1 AIR Jhar R 1015 ] that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition.' 19. The above decisions are referred d to in the context of the petitioners argument seeking to resile from the terms of the advertisement after being unsuccessful in the recruitment process. The internal notings in the hierarchy of the WBSETCL, cannot per se confer any rights on the petitioner. 20. Mr. The above decisions are referred d to in the context of the petitioners argument seeking to resile from the terms of the advertisement after being unsuccessful in the recruitment process. The internal notings in the hierarchy of the WBSETCL, cannot per se confer any rights on the petitioner. 20. Mr. Soumya Majumdar, led by Mr Arunabha Ghosh Ld Senior Advocate, for the petitioner submits that the said affidavit filed by the WBSETCL does not contain any averment to the effect that WBSETCL is continuing temporary engagement in the post of Chief Medical Officer. This Court has placed reliance on the oral submissions made on behalf of the Counsel for the WBSETCL in this regard. In any event, it is well settled that the employer is not bound to effect recruitment as advertised and is entitled to abandon the same. The reason advanced by Counsel for the WBSETCL, that the same was aimed at cost cutting and reducing overheads, cannot be ignored. 21. In view of the above discussions, no relief can, therefore, be granted to the petitioner in the instant writ application and the same is disposed of without any order. 22. In view of the disposal of the main writ petition, the connected application being CAN 9181 OF 2019 is also disposed of. There shall, however be, no order as to costs. Urgent photostat certified copy of this order, if applied for, be given to the parties.