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High Court Of Calcutta
P. S. MISHRA, S. B. SINHA, VINOD KUMAR GUPTA
DEBASIS DUTTA - Appellant
Versus
STATE OF WEST BENGAL - Respondent
W. P. 1933 Of 1997
Decided On : 05/13/1998
EMPLOYMENT EXCHANGE - NOTIFICATION OF VACANCIES - RECRUITMENT RULES - INTERPRETATION - MANDAMUS - LEGALITY OF APPOINTMENT - FAIR PLAY AND EQUAL OPPORTUNITY. 1. The Recruitment Rules, though containing directory provisions, must be substantially complied with. 2. Any deviation from the directions issued by the Director of School Education by reason of the said Recruitment Rules can only be made by the Director of School Education himself or by the State Government by issuing an order, direction, or guideline depending on the facts and circumstances of each case. 3. The Managing Committee of the school is bound to follow the provisions of the Recruitment Rules, and petitioners who have not raised the question of constitutionality of the said rules in the writ application cannot be permitted to do so by way of argument. 4. No direction can be issued by the court upon the Managing Committee of the School to allow any and every person to appear in the interviews though his name has not been sponsored by the Employment Exchange. The orders issued in this behalf by some of the Benches do not lay down the correct law and must be overruled. 5. The Managing Committee cannot act in contravention of the said provision unless the same is unconstitutional. This court in exercise of its power under Article 226 of the Constitution of India cannot also issue a direction asking it to violate the provision of the statute.
Fact of the Case:
The petitioner, a graduate, registered with the local Employment Exchange, challenged the exclusion of his name from the interview for a non-teaching staff (clerk) post in a school. The school authorities had called for candidates through an advertisement, but the petitioner's name was not sponsored by the Employment Exchange.
Finding of the Court:
The court held that the petitioner, not having been sponsored by the Employment Exchange, had no legal right to be interviewed. The Managing Committee of the school was bound to follow the Recruitment Rules and could not act in contravention of the said provision unless it was unconstitutional.
Issues: 1. Whether the petitioner had a legal right to be interviewed despite his name not being sponsored by the Employment Exchange? 2. Whether the Managing Committee of the school could act in contravention of the Recruitment Rules?
Ratio Decidendi: 1. The Recruitment Rules, though containing directory provisions, must be substantially complied with. 2. Any deviation from the directions issued by the Director of School Education by reason of the said Recruitment Rules can only be made by the Director of School Education himself or by the State Government by issuing an order, direction, or guideline depending on the facts and circumstances of each case. 3. The Managing Committee of the school is bound to follow the provisions of the Recruitment Rules, and petitioners who have not raised the question of constitutionality of the said rules in the writ application cannot be permitted to do so by way of argument. 4. No direction can be issued by the court upon the Managing Committee of the School to allow any and every person to appear in the interviews though his name has not been sponsored by the Employment Exchange. The orders issued in this behalf by some of the Benches do not lay down the correct law and must be overruled. 5. The Managing Committee cannot act in contravention of the said provision unless the same is unconstitutional. This court in exercise of its power under Article 226 of the Constitution of India cannot also issue a direction asking it to violate the provision of the statute.
Final Decision: The writ petitions were dismissed with directions, but there was no order as to costs.
( 1 ) THESE writ applications have been referred to a larger bench by Samaresh Banerjea, J by an order dated 19th September, 1997 as His Lordship was of the opinion that the decision of the Supreme Court in Excise Superintendent, Malkapatnam, Krishna District, A. P v. K. B. N. Visweshwara Rao and Ors. reported in 1996 (3) SCC 216 and also a Division Bench judgment of this court in M. A. No. 433 of 1997 (since reported in 1997 (2) CLJ 428) cannot have any application in the facts and circumstances of the present case in view of the decision of the apex court in Union of India v. N. Hargopal and Ors. reported in 1987 (3) SCC 308. According to the learned judge although Hargopal (supra) has been noticed in Excise Superintendent, the same has not been overruled. The learned Judge was also of the view that in Excise Superintendent (supra) Their Lordships have not decided the question as to what would be the position where in a particular case the Recruitment Rules itself provides that such recruitment may be made by calling for names of the candidates from Employment Exchange. The fact of the matter may be noticed from W. P. No. 1933 of 1997 the writ petition was filed by the appellant, inter alia, praying for the following reliefs:-"a) Writ of or in the nature of Mandamus directing the respondents and each one of them not to hold any interview for selection in the post of non-teaching staff (clerk) in sanctioned vacancies in Burdwan Municipal High School, P. O. Burdwan, Dist. Burdwan excluding your petitioner therefrom;b)a writ of or in the nature of Mandamus directing the concerned Employment Exchange Authority (being respondent No. 5) to sponsor the name of the petitioner for interview, for appointment in the post of non-teaching staff (clerk) in the concerned school within 24-hours of the communication of the order. C) A writ of or in the nature of Mandamus directing the respondent school authority including the Selection Committee to permit your petitioner to appear before the said Selection Committee for interview for the post of non-teaching staff (clerk) in Burdwan Municipal High School, Burdwan, along with candidate sponsored by the Employment Exchange. "
( 2 ) THE writ petitioner is a Graduate and as such qualified for being appointed in the post of Clerk in a High School. He also got his name registered with the local Employment Exchange. According to the petitioner he has come to learn that the school authorities of Burdwan Town High School are proceeding to fill up the post and called the candidates for interview for the said purpose. The writ petitioner had been excluded from being granted an interview.
( 3 ) MR. P. K. Chatterjee. the learned counsel, appearing on behalf of the petitioner submitted that keeping in view the recent decision of the apex court in Excise Superintendent, Malkapatnam, Krishna District, A. P v. K. B. N. Visweswara Rao and Ors. reported in 1996 (3) SCC 216, the principle of fair play, justice and equal opportunity demands that apart from intimating the Employment Exchange in terms of the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 all the candidates eligible therefor should be allowed to take part in the interview.
( 4 ) MR. M. C. Das, the learned counsel, appearing on behalf of the respondent, on the other hand, submitted that the writ petitioner having got himself registered under the Employment Exchange cannot now turn round and contend that he should also be interviewed despite the fact that his name has not been sponsored. The learned counsel contends that recruitment rules framed by the Director of School Education is a statutory one, and thus, the Managing Committee of the said school cannot issue an advertisement which would be contrary to and inconsistent with the said rule.
( 5 ) BEFORE we proceed into consider the matter, the scope and purport of the provisions of the West Bengal Board of Secondary Education Act, the rules framed thereun
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