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2025 DIGILAW 169 (CAL)

Prahlad Chandra Ray v. Satyajit Sarkar

2025-02-07

HARISH TANDON, PRASENJIT BISWAS

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JUDGMENT : HARISH TANDON, J. 1. The recruitment process for filling up the Group-D post in the concerned school initiated in the year 2006-2007 is still travelling in the Court flagging an issue which is otherwise settled through a catena of judgments rendered by this Court as well as the Apex Court. 2. The private respondent approached the Court for writ of mandamus to be issued so that he can participate in the selection process initiated for filling up Group-D post in the concerned school as a non-sponsored candidate. The interim order was passed allowing the private respondent to participate in the interview with the rider that the panel so prepared shall not be considered and approved by the District Inspector of School as it is subject to the final result of the said writ petition. Undeniably the private respondent stood first in the panel having found meritorious amongst the other sponsored candidates but in view of the embargo created in the interim order, the panel so prepared could not be approved by the concerned District Inspector of School. 3. The said writ petition being WP 8557(W) of 2007 was finally disposed of on 17.07.2013 by the Single Bench directing the concerned District Inspector of School to consider and approve the panel within 4 weeks from the date of the communication of the said order. The aforesaid order is impugned in the instant appeal by the appellant who stood second in the said panel being a sponsored candidate and an application for stay was also filed in the instant appeal which was taken out on 19.08.2013 and interim orders staying the operation of the order for a limited period was passed which was made absolute to operate till the disposal of the appeal on 05.09.2013. The consequential effect of the same leads to an unambiguity in our mind that the said interim order is still operative as a resultant effect the panel prepared by the selection committee could not be approved as on this date by the concerned District Inspector of School. 4. More than a decade has passed since the date of initiation of the recruitment process yet the post felt vacant prior to the year 2006-2007 has not been filled up. 4. More than a decade has passed since the date of initiation of the recruitment process yet the post felt vacant prior to the year 2006-2007 has not been filled up. The argument advanced by the appellant is basically founded upon a proposition of law enunciated by the Apex Court in case of Excise Superintendent, Malkapatnam Krishna District A.P. vs. K.B.N. Visweshwara Rao, (1996) 6 SCC 216 . The point which emerged in the said report was whether the authority can fill up the vacancy in the public employment, only amongst the candidates sponsored by the respective employment exchange without making any wide publication inviting all eligible candidates to offer their candidature for such posts. The Apex Court highlighted the equality principles emanating from Part-III of the Constitution of India and deprecated the practice of restricting the candidates sponsored by the respective employment exchanges. The Apex court held that the principle of fair play, justice and equal opportunity having ingrained in the Constitution of India, cannot be whittled down, as non-adherence has a cascading effect on a deserving candidate who shall be deprived of the right to be considered for appointment to the post under the State. The Apex Court held that there is no fetter on the part of the authorities to intimate the Employment Exchange to sponsor the names of the candidates to the requisitioning department for selection in order of seniority and reservation but in addition to the same, the appropriate department or undertaking or establishment should call for the names by publication in the newspaper having wider circulation as well as display on their office notice boards or announcement on radio, television and employment news bulletins in order to ensure that all deserving candidates may apply for such posts. 5. Based upon the judgment rendered in K.B.N. Visweshwara Rao (supra), subsequent three-Judge Bench of the Apex Court in Raj Kumar vs. Shakti Raj, (1997) 9 SCC 527 reiterated the principles laid down therein that besides advertising the vacancies, the selecting authority should call the names from the employment exchange and other media and conduct the examination for selection. 5. Based upon the judgment rendered in K.B.N. Visweshwara Rao (supra), subsequent three-Judge Bench of the Apex Court in Raj Kumar vs. Shakti Raj, (1997) 9 SCC 527 reiterated the principles laid down therein that besides advertising the vacancies, the selecting authority should call the names from the employment exchange and other media and conduct the examination for selection. Obviously the equality before the law and equal opportunity in public employment emanates from Article 14 and 16 of the Constitution of India which is included in Part-III thereof and therefore, any action which hinders its operation and infringes the right of a citizenry cannot be said to be permissible in law. 6. Post K.B.N. Visweshwara Rao (supra) and Raj Kumar (supra) the spate of litigations exploded the docket of the Court and are decided by the respective Division Benches which would be dealt in seriatim hereinafter. In the interregnum between the decision rendered by several Division Benches of this Court, we feel it prudent to consider the another judgment of the Supreme Court rendered in Abani Mahato vs. Kanchan K. Sinha & Ors. (2000) 9 SCC 527 wherein a candidate whose name was not sponsored by the employment exchange was permitted to participate in the recruitment process and was found eligible for the said post and was also appointed by the authority. Subsequently, the writ petition filed by one of the aggrieved party was allowed quashing the panel prepared by the selection committee which was challenged in the appeal but the appeal was dismissed on the ground that since the name of the appellant therein was not in sponsored by the employment exchange, is not entitled to participate in the selection process. Repelling the decision of the Division Bench, the Apex Court held that the moment the appellant has been directed to be considered and the said order is staring at the face, it would not be proper to quash and set aside the appointment simply because the candidate is not a sponsored candidate. 7. Repelling the decision of the Division Bench, the Apex Court held that the moment the appellant has been directed to be considered and the said order is staring at the face, it would not be proper to quash and set aside the appointment simply because the candidate is not a sponsored candidate. 7. Since they remained an uncertainty, despite the judgment rendered by the Apex Court as mentioned hereinabove, the point for determination as to whether a person whose name is not sponsored by the employment exchange has a right of any nature to participate as a candidate in a selection process initiated by the school for recruiting and selecting a person for appointment as a member of the non-teaching staff, was referred to the Full Bench in case of Rabindra Nath Mahata vs. State of West Bengal & Ors. the Full Bench decided the aforesaid point and the said decision is reported in (2005) 3 CHN 337 . The Full Bench noticed the unreported judgment of the Supreme Court rendered in case of Abu Taker vs. Abdul Wahab (Civil Appeal No. 1203 of 2001) and a Special Bench Judgment rendered in case of Debasis Dutta vs. State of West Bengal, (1998) 2 CLJ 1 noticed that the Special Bench judgment rendered in Debasis Dutta (supra) was considering a question of appointment of a non-teaching staff in a high school seeking appointment without being sponsored by the employment exchange took into account the Memo dated 27th October, 1995 and found that the same is merely a direction or the guidelines which are neither statutory provisions nor statutory Rules and therefore, the managing committee of the school are not bound to follow the provision of the said recruitment procedure and therefore, even if the Employment Exchanges (compulsorily notification of vacancies) Act, 1959 is taken into account, its simply mandates the intimation of vacancies to the employment exchanges without creating any obligation for recruiting only the candidates sponsored by the employment exchange. The Full Bench thus held that the direction passed in Debasis Dutta (supra) cannot be held to be a valid and proper. The Full Bench ultimately held that the law laid down in K.B.N. Visweshwara Rao (supra) and Raj Kumar (supra) has to be followed with rigour and cannot be lingered upon in the following: “25. The Full Bench thus held that the direction passed in Debasis Dutta (supra) cannot be held to be a valid and proper. The Full Bench ultimately held that the law laid down in K.B.N. Visweshwara Rao (supra) and Raj Kumar (supra) has to be followed with rigour and cannot be lingered upon in the following: “25. Position in law is, therefore, clear that law already settled by the Apex Court in the case of K.B.N. Visweshwara Rao 1997 (1) L.L.N. 8 (vide supra) and Raj Kumar (vide supra), having not been followed by the Division Bench of the High Court, clear observations were made by the Apex Court again in the case of Abu Taker (vide supra). But as the High Court did not decide the matter on merit, the Supreme Court directed High Court to decide the same on merit after setting aside the fining of the Division Bench of High Court upholding categorically the argument of the respondent and holding that name of the appellant cannot be excluded from consideration merely because his name had not been sponsored by Employment Exchange. Had the position been otherwise there could not have been direction for consideration on merits when the candidate was admittedly not sponsored by Employment Exchange. The law settled by the Apex Court is binding on all Courts under Art. 141 of the Constitution of India and the several judgments cited by the parties in this respect at the time of hearing conclusively supports the said proposition and so those judgments do not require separate reference as the proposition itself has not been disputed by the respondent.” 8. In the concurring judgment delivered separately, Justice Ganguly, held that restricting the recruitment to a sponsored candidate from the employment exchange offends the core value of Article 14 and 16 of the Constitution of India and therefore any judgment which runs counter to the same cannot be said to be a good law and reaffirms the view of Justice Chakrabarti that the Special Bench judgment in case of Debasish Dutta (supra) is not a good law in the following: “46. In the present case, the Apex Court had consciously determined the issue as to the right of a candidate to be considered for appointment without being sponsored by the Employment Exchange on the ground on which the right of Abu Taker (vide supra), was declined by the High Court relying on the decision in Debasis Dutta (vide supra), which was found to be unacceptable to the Apex Court in view of the decisions in K.B.N. Visweshwara Rao 1997 (1) L.L.N. 8 (vide supra) and Raj Kumar (vide supra) which expressly indicate that the Apex Court had borrowed and reaffirmed the ratio decided in the said two decisions to disagree with the view taken by the Division Bench following the ratio decided in Debasis Dutta (vide supra), by the Special Bench. The disapproval of the decision by the Division Bench, which followed the Special Bench, is a disapproval, of the decision by the Special Bench and as such not being an omission but being a conscious consideration without attracting the rule of sub silentio is binding under Art. 141 and thus overrules the decision in Debasis Dutta (vide supra).” 9. The matter did not stop at the stage as in case of Gaya Nath Rajbanshi vs. State of West Bengal & Ors. (2008) 2 CHN 879 another Division Bench was considering whether the Court can direct the person to appear before the Selection Committee without being sponsored by the employment exchange. In pursuit of deciding the cause and the relief as indicated hereinabove, an ancillary point was taken whether any legally enforceable right is created into a candidature to appear in the selection process as non-sponsored candidate. It is held that such right of appearance of the non-sponsored is not a simplicitor right but the right with the rider that in the event of an open advertisement of the post, non-sponsored candidate may appear as it appears from the decision of the K.B.N. Visweshwara Rao (supra). While considering the point so held it is observed that the decision rendered in K.B.N. Visweshwara Rao (supra) is a judgment not in personam but in rem and therefore is regarded as a declaration of law under Article 141 of the Constitution of India. While considering the point so held it is observed that the decision rendered in K.B.N. Visweshwara Rao (supra) is a judgment not in personam but in rem and therefore is regarded as a declaration of law under Article 141 of the Constitution of India. The aforesaid observation though appears to run counter to the ratio of the judgment rendered in K.B.N. Visweshwara Rao (supra) but was in the perspective of the fact that if the same is considered in its ordinary terms it has a ramification as an individual non-sponsored candidate may appear suo moto or by a decision of the managing committee and/or employer concerned at the sweet will. Obviously it may invite the notion of a favouritism and/or nepotism and therefore, the safeguard is to be made in the light of the observations rendered in the aforementioned judgment of the Supreme Court holding that it would be proper to make it mandatory for the requisitioning authority to intimate the employment exchange to sponsor the name of the candidates to the requisitioning department with an additional obligation to make a wide publication in the newspaper and the display in the notice boards or to announce on radio, television and employment news bulletins so that all the candidates who fulfils the eligibility criteria enshrined in the said employment exchange may apply and offer their candidature in order to secure the fairness and transparency in the selection process. The Division Bench held that selecting a people to participate in the selection process would offend the core value of the Article 14 as the identical treatment is not ensured in the following: “19. The Division Bench held that selecting a people to participate in the selection process would offend the core value of the Article 14 as the identical treatment is not ensured in the following: “19. Beside the point of Visweshwara Rao (supra) another point is striking in our mind that allowing of any individual non-sponsored candidate to appear in the interview will cause a breach of Article 14 of the Constitution of India as the other persons identically placed are not getting any opportunity to appear in the interview due to lack of any advertisement of the vacancy in the newspapers which also otherwise would cause an injury to the basic structure of the Constitution of India where equality in every respect is the basic foundation in terms of the judgment as pronounced in the case Kesavananda Bharati v. State of Kerala, 1973 (4) SCC 225 ; Indira Gandhi v. Raj Naryan, 1975 (Supp.) SCC 1; Minerva Mills v. Union of India, 1980 (3) SCC 625 and subsequently the case Woman Rao v. Union of India, 1981 (2) SCC 362 , in the broader angle of basic structure concept. Even to allow one individual candidate to appear in the interview by the Writ Court per se would be violative of Article 14 of the Constitution of India and thereby would damage the basic structure of the Constitution which has been dealt with in the case State of Karnataka v. Uma Devi, a Constitution Bench judgment reported in 2006 (4) SCC 1 : 2006 (2) WBLR (SC) 183 by holding, inter alia, that in public employment adherence to the rule of equality is a basic feature of the Constitution. Under the Service Jurisprudence the same principle is squarely applicable in the present case in hand. Uma Devi (supra) also has been relied upon by the Apex Court in the service matter to answer the point of basic feature of the Constitution in the service law on angle of equality clause of Article 14 of the Constitution of India in the case R.S. Garg v. State of U.P. 2006 (6) SCC 430 .” 10. In another Division Bench rendered in Debendra Nath Mondal vs. Ratan Kumar Das & Ors. (2008) 4 CHN 275 it was held that denial of an equal opportunity to appear in the selection process offends Article 14 which is a basic feature of the Constitution in the following: “19. In another Division Bench rendered in Debendra Nath Mondal vs. Ratan Kumar Das & Ors. (2008) 4 CHN 275 it was held that denial of an equal opportunity to appear in the selection process offends Article 14 which is a basic feature of the Constitution in the following: “19. Equality of opportunity even to appear in the interview is coming within the field of Article 14 of the constitution of India, which is the basic feature of the Constitution. Article 14 and 16, which is also a facet of Article 14, are parts of basic structure of Constitution in terms of the views expressed by the Apex Court in the case His Holiness Kesauananda Bharti Sripadagalvaru v. State of Kerala, 1973 (4) SCC 225 . In Indra Sawhney v. Union of India, 2001 (1) SCC 168, the Apex Court held “neither Parliament nor the Legislatures could transgress the basic feature of the Constitution, namely, the principle of equality enshrined in Article 14 of which Article 16 (1) is facet.” In the case Indra Sawhney (supra), B.P. Jeeven Reddy speaking for the majority while acknowledging equal opportunity is a basic feature of the Constitution, has also explained the exalted position of Article 14 and 16. Having a deduction of the issue in the angle aforesaid, the Constitution Bench of the Apex Court in the case Uma Devi (supra) held “adherence to the rule of equality in public employment is a basic feature of our Constitution, so Court is liable to uphold violation of Article 14 for ordering the need of compliance of Articles 14 and 16.” 11. The said Division Bench in the said report deprecated the practice of passing an order permitting the person to appear in the interview as it offends the right conferred under Article 14 and 16(1) of the Constitution of India in the following: 25. The said Division Bench in the said report deprecated the practice of passing an order permitting the person to appear in the interview as it offends the right conferred under Article 14 and 16(1) of the Constitution of India in the following: 25. On careful reading of the said judgment it appears that there was no argument advanced on the point as to whether a non-sponsored candidate without any advertisement of the vacancy suo motu and/or by permission of the employer may appear in the interview and if so, whether the same will hit the equality doctrine of Articles 14 and 16(1) of the Constitution of India, when in K.B.N. Visweshwara Rao (supra), the Apex Court by Larger Bench decision, a three-Judges Bench, held that there should be public advertisement of the post and subsequently in Arun Kumar Nayak (supra), the Apex Court held that the public advertisement of the vacancy is mandatory. 26. It is settled legal position applying the principle of doctrine of sub silencio that a decision is not an authority for what it had not decided on a point, which has not been argued. Reliance may be placed to the judgment passed in the case Goodyear India Ltd. v. State of Haryana, AIR 1990 SC 781 , Mittal Engineering Works (P) Ltd. v. Collector of Central Excise, Meerut, 1997 (1) SCC 203 and Municipal Corporation of Delhi v. Gurnam Kaur, 1989 (1) SCC 101 . Prof. P.J. Fitzgeralt in the Book “Salmonds on Jurisprudence” 12th Edition at page 153 has explained the concept of sub silencio to this effect: “a decision passes sub silencio in the technical sense that has come to be attached to that phrase when the particular point of law involved in the decision is not perceived by the Court or present in its mind.” It is also a settled legal position that “a decision is an authority for what it decides, and not that everything said therein constitute a precedent.......a decision of the Court takes its colour from the questions involved in the case from which it was rendered.” Reliance may be placed to the Constitution Bench judgment passed in the case State of Punjab v. Baldev Singh, 1999 (6) SCC 172 . It has been held by the Apex Court in the case Commissioner of Income Tax v. Sun Engineering Works (P) Ltd. 1992 (4) SCC 363 at Para 39 “judgment must be read as a whole and the observation from the judgment have to be considered in the light of the questions which were before the Court. A decision takes its colour from the questions involved-Court must carefully try to ascertain the true principle laid down by decision and not to pick out words and sentence from the judgment divorced from the context of the questions under consideration by the Court, to support their reasonings.” Further it is settled legal position that “one additional and different fact can make a world of difference between conclusion in two cases even when the same principles are applied in each case to similar facts.” Reliance may be placed to the judgment passed in the case Regional Manager v. Pawan Kumar Dubey, AIR 1976 SC 1766 , a three-Judges' Bench judgment, which has been referred to in the case Chandra Prakash Shahi v. State of U.P. AIR 2000 SC 1706 . 27. Following the aforesaid principle of law, namely, binding precedent principle and doctrine of sub silencio, it appears that all the judgments as referred to by the learned Advocate for the appellant, there was no question involved for decision of the Court as to whether appearance of a non-sponsored candidate suo motu and/or by grace or charity of the employer or for other consideration, would hit the equality clause of Articles 14 and 16(1) of the Constitution of India and the ratio decidendi of the judgment passed in the case K.B.N. Visweshwara Rao (supra) and the case Arun Kumar Nayak (supra) read with basic features of Constitution under Articles 14 and 16(1) of the Constitution. Having regard to the aforesaid findings and observation, with due respect to the authority of law as cited, we have failed to persuade our mind to accept the views expressed in those judgments as relied upon by learned Advocate for the appellant. Having regard to the aforesaid findings and observation, with due respect to the authority of law as cited, we have failed to persuade our mind to accept the views expressed in those judgments as relied upon by learned Advocate for the appellant. As per our reading K.B.N. Visweshwara Rao (supra) being a ratio decidendi and the judgment in the field passed by larger bench, which could be considered as a law of the land under Article 141 of the Constitution of India whereby and whereunder the Court have allowed the non-sponsored candidates to appear subject to public advertisement of the vacancy and notice by the employer following the modes as mentioned thereof, otherwise appearance of a candidate suo motu out of his own knowledge, which is nothing but a backdoor knowledge regarding vacancy and/or allowing someone, a non-sponsored candidate by the employer, which also a back door method as the same would deprive the other eligible candidates equally qualified to appear in the interview due to lack of such personal knowledge of the vacancy, will ex facie an arbitrary and ultra vires section to the Constitutional mandate of Articles 14 and 16(1) of the Constitution of India and it will hit the fair play, justice and equal opportunity clause of the Constitution. 29. Having regard to such, we are inclined to follow the judgment passed in the case K.B.N. Visweshwara Rao (supra) to hold that a non-sponsored candidate suo motu and/or by grace and charity and/or other consideration of the employer without any public advertisement of the vacancy, if appears in the selection process, that will cause a breach of equality doctrine of the Constitution as enshrined under Articles 14 and 16(1) of the Constitution of India and will hit fair play, justice and equality clause, the basic structures of Constitution. 30. 30. Having regard to such, the second argument as advanced is answered negatively against the appellant by holding that the Secretary of the Managing Committee had no right to allow the participation of sole non-sponsored candidate, the appellant, who got the knowledge of vacancy otherwise but not from the public advertisement of the vacancy, which admittedly was not done by the Managing Committee and/or from the notice following the mode of K.B.N. Visweshwara Rao (supra) and appellant had no legal right to appear in the interview and his participation caused a breach of Articles 14 and 16(1) of the Constitution of India. In that view of the matter, we are not finding any merits in the appeal and appeal is, accordingly, stand dismissed. 12. In a subsequent decision rendered in case of Union of India & Ors. vs. Pritilata Nanda, (2010) 11 SCC 674 which is also relied upon by the Single Bench, the Apex Court was considering a question where the person who participated in the recruitment process being non-sponsored candidate having found successful but his appointment was cancelled as he was not a sponsored candidate and it is held that though it is necessary to make a wide publication as mandated in K.B.N. Visweshwara Rao (supra) but did not interfere with the appointment for the simple reason but it would impact the services already rendered in the following: “19. In K.B.N. Visweshwara Rao case a three-Judge Bench of this Court considered a similar question, referred to an earlier judgment in Union of India v. N. Hargopal and observed: (K.B.N. Visweshwara Rao case, SCC PP. 217-218, Para 6) “6........It is common knowledge that many a candidate is unable to have the names sponsored, though their names are either registered or are waiting to be registered in the employment exchange, with the result that 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 seniority and reservation, as per requisition. 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 seniority and reservation, as per requisition. In addition, the appropriate department or undertaking or establishment should call for the names by publication in the newspapers having wider circulation and also display on their office notice boards or announce on radio, television and employment news bulletins; and then consider the case of all the candidates who have applied. If this procedure is adopted, fair play would be subserved. The equality of opportunity in the matter of employment would be available to all eligible candidates.” By applying the ratio of the abovenoted judgments to the case in hand, we hold that the authorities concerned of the South-Eastern Railway committed grave illegality by denying appointment to the respondent only on the ground that she did not get her name sponsored by an employment exchange. 20. The issue deserves to be considered from another angle. It was neither the pleaded case of the appellants before the Tribunal and the High Court nor was any evidence produced by them to prove that the Notification/Advertisement dated 31-1-1987 was sent to all the employment exchanges including the special employment exchanges in the State of Orissa. Before this Court also, no document has been produced to show that the advertisement was circulated to the employment exchanges in the State. In this backdrop, it is not possible to approve the stance of the appellants that the respondent was not appointed because she did not get her candidature sponsored by an employment exchange. 21. We also agree with the High Court that once the candidature of the respondent was accepted by the authorities concerned and she was allowed to participate in the process of selection i.e. the written test and viva voce, it was not open to them to turn around and question her entitlement to be considered for appointment as per her placement in the merit list on the specious ground that her name had not been sponsored by the employment exchange. In our considered view, by denying appointment to the respondent despite her selection and placement in the merit list, the appellants violated her right to equality in the matter of employment guaranteed under Article 16 of the Constitution.” 13. In our considered view, by denying appointment to the respondent despite her selection and placement in the merit list, the appellants violated her right to equality in the matter of employment guaranteed under Article 16 of the Constitution.” 13. Though the aforementioned Division Bench judgments as discussed hereinabove held that the Court cannot pass a writ of mandamus permitting the candidate to appear as a non-sponsored candidate but there appears a dissent in this regard and ultimately, the matter was referred to a Special Bench constituting three Hon’ble Judges of this Court in case of Tulsi Roy vs. Shri Krishanu Roy & Ors. which was decided on April 29, 2011 and reported in (2011) 2 CHN 1021 . The aforesaid point is answered in affirmative that the Court can issue a writ of mandamus permitting the non-sponsored candidate to participate in the selection process with the rider that if a simple prayer is made for participation to appear in the selection process without any prayer for direction to give an advertisement, such prayer should be rejected in the following: “From the decision of the Supreme Court in the case of Excise Superintendent Malkapatnam, Krishna District, A.P. v. K.B.N. Visweshwara Rao (supra), quoted by us while dealing with first question, it is clear that the aforesaid direction of the Supreme Court to advertise, being a law declared by it, a valuable legal right accrued in favour of a person having the requisite qualifications for the post concerned to apply for being considered for appointment even if such a person is not sponsored by the Employment Exchange pursuant to the statutory Rules framed by the State in that behalf and the selection without such advertisement has been held to be violative of the fundamental rights conferred under Articles 14 and 16 of the constitution. Therefore, if the school authority proceeds to fill up the vacancy without complying with the direction of the Supreme court, a person not sponsored by the Employment Exchange having requisite qualification can approach the High Court for a direction upon the employer to follow the said direction so that pursuant to an advertisement so given, he can apply for being considered for the post along with other applicants. A person by taking aid of the said decision can most certainly come to a High Court for enforcing the aforesaid direction. A person by taking aid of the said decision can most certainly come to a High Court for enforcing the aforesaid direction. But he cannot approach the Court for permitting him to appear at the selection process on the strength of the said decision of the Supreme court if he simply prays for permitting him to appear at the process of selection but without praying for direction for giving advertisement with the object of avoiding contest with the others, similarly placed with him, who would also apply pursuant to such advertisement. In our opinion, the High Court in such circumstances should reject his prayer. In the cases before us, all the petitioners prayed for direction for giving advertisement but in the case of Tulsi Roy, the learned Single Judge did not pass such direction and disposed of the writ application on the very first day of moving the same. Thus, in this type of a writ application, it is the first duty of the Court is to see whether the allegations of the writ petitioner that he has the requisite qualification for the post concerned. If the Court is satisfied on that aspect then it should verify whether the allegation of the writ petitioner that no advertisement was given was correct or not. After being so satisfied from the materials on record and after giving an opportunity to contest the allegation, the writ petitioner should be disposed of by directing the authority to give advertisement for the post with liberty to the writ petitioner to apply pursuant to such advertisement. We, thus, answer the second question formulated by us in the negative.” 14. What emerged from the aforesaid decision that the writ with the prayer to participate in the selection process simplicitor without for the direction to an advertisement in a widely circulated newspaper, posting on the notice board of the concerned department or in a television, radio or other media is not maintainable. It is further held that even in case where the direction of such nature is sought, before the Court embarks its journey in extending such relief, it must record its satisfaction on the genuinity of the allegations made therein with an additional consideration whether such writ petitioner fulfils all the eligibility conditions enshrined therein. 15. It is further held that even in case where the direction of such nature is sought, before the Court embarks its journey in extending such relief, it must record its satisfaction on the genuinity of the allegations made therein with an additional consideration whether such writ petitioner fulfils all the eligibility conditions enshrined therein. 15. The cumulative effect of the entire judgment rendered in this regard aimed at one destination that the authority should not restrict the candidature of the persons solely on the basis of the name having sponsored by the concerned employment exchange but should make an wide publication of the said recruitment process so that all the deserving candidates gets an equal opportunity to participate in the said selection process provided they fulfil all the eligible criteria enshrined therein. It is not desirable that the filling up of the post in the public employment should be restricted to a category of persons namely, the sponsored candidate as it offends not only the equality principles enshrined in Article 14 of the Constitution but also denial of an equal opportunity in the public employment under Article 16(1) of the Constitution of India. In view of the judgment rendered in Tulsi Roy (supra) the simple prayer for participation in the selection process without any direction to be issued upon the recruiting authorities to make a wide publication is not permissible. Even in a case where such direction was sought, the Court must satisfy the allegations made therein it stands on a parameter of genuinity. 16. Reverting to the facts of the instant case, the writ petition was filed for issuance of the writ of mandamus to allow the private respondent would appear at the written test and interview for the post of Group-D employee in Panigram High School without any direction for wide publication and therefore, comes within the purview of the ratio laid down in Tulsi Roy (supra). 17. We have no hesitation to hold that the order impugned is not sustainable but we take note of the further fact that in the event, the writ petition is dismissed what would be consequences that would follow therefrom. 17. We have no hesitation to hold that the order impugned is not sustainable but we take note of the further fact that in the event, the writ petition is dismissed what would be consequences that would follow therefrom. Admittedly, the recruitment process was initiated way back in the 2006-2007 and even if the private respondent was permitted to participate in the recruitment process on the basis of the interim order but with the rider that it would be subject to the result of the writ petition. More than a decade has elapsed and the appointment of the private respondent is put at halt in view of the interim order passed in the instant appeal, it would not be advisable to fill up the post treating the same as vacancy for the year 2006-07 after such a long time. 18. Accordingly, the entire recruitment process fails and the vacancy so kept in view of the interim order passed in the instant appeal should be notified as a future vacancy and to be filled up in accordance with the provision of the law applicable as of the date. The impugned order is thus set aside. 19. The writ petition is dismissed. 20. No order as to costs. I agree - Prasenjit Biswas, J.