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High Court Of Calcutta
Before Pranab Kumar Chattopadhyay And Arunabha Basu, JJ.
MANIK CHANDRA DAS - Appellant
Versus
STATE OF WEST BENGAL - Respondent
M. A. T. 4912 Of 2006
Decided On : 05/18/2007
EMPLOYMENT - Group 'd' posts - Filling up of posts - Sponsored by Employment Exchange - Executive order issued by Government - Whether can put a total restriction on respondents to consider candidatures of candidates not sponsored by Employment Exchange - Permissibility of extending field of choice to cover persons offering candidature to posts under public employment - Held, executive order cannot put a total restriction on respondents to consider candidatures of candidates not sponsored by Employment Exchange - Executive order issued by Government of West Bengal under Memo No. 830-Edn (CS) dated 31st October, 1995 is not consistent with law laid down by Supreme Court in case of Excise Superintendent, Malkapatnam v. K. B. N. Visweshwara Rao (supra) - Aforesaid executive order dated 31st October, 1995 has to be read subject to law laid down by Supreme Court in case of K. B. N. Visweshwara Rao (supra) which was reaffirmed by Supreme Court in subsequent decisions mentioned hereinbefore.
Fact of the Case:
Appellant challenged order dismissing writ petition seeking direction to respondent authorities to allow appellant to participate in interview for appointment of Group 'd' staff (Sweeper) in Raja Narendra lal Khan Women's College in district of Pashim Midnapore. Learned Single Judge dismissed writ petition holding that in view of Government Order issued under Memo No. 830-Edn (CS) dated 31st October, 1995, Group 'd' posts of colleges affiliated by University in State of West Bengal are to be filled up from candidates sponsored by concerned Employment Exchange and since aforesaid order was not challenged in writ application, learned single Judge did not find any merit on submissions made on behalf of writ petitioner.
Finding of the Court:
Executive order issued by Government of West Bengal under Memo No. 830-Edn (CS) dated 31st October, 1995 is not consistent with law laid down by Supreme Court in case of Excise Superintendent, Malkapatnam v. K. B. N. Visweshwara Rao (supra) - Aforesaid executive order dated 31st October, 1995 has to be read subject to law laid down by Supreme Court in case of K. B. N. Visweshwara Rao (supra) which was reaffirmed by Supreme Court in subsequent decisions mentioned hereinbefore - Restriction put by aforesaid executive order dated 31st October, 1995 to effect that only Employment Exchange sponsored candidates are to be considered for employment cannot be sustained and respondent authorities cannot prevent appellant or anybody from participating in interview for filling up vacant posts on basis of or pursuant to aforesaid executive order issued by Government of west Bengal dated 31st October, 1995.
Issues: Whether executive order issued by Government of West Bengal under Memo No. 830-Edn (CS) dated 31st October, 1995 can put a total restriction on respondents to consider candidatures of candidates not sponsored by Employment Exchange?
Ratio Decidendi: Supreme Court in case of Excise Superintendent, Malkapatnam v. K. B. N. Visweshwara Rao (supra) held that it should be mandatory for requisitioning authority/establishment to intimate employment exchange, and employment exchange should sponsor names of candidates to requisitioning departments for selection strictly according to seniority and reservation, as per requisition - In addition, appropriate department or undertaking or establishment should call for names by publication in newspapers having wider circulation and also display on their office notice boards or announce on radio, television and employment news bulletins; and then consider cases of all candidates who have applied - If this procedure is adopted, fair play would be subserved - Equality of opportunity in matter of employment would be available to all eligible candidates.
Final Decision: Appeal allowed - Impugned order set aside - Candidate of appellant/writ petitioner should be considered by concerned respondents along with other eligible candidates sponsored by Employment Exchange, if same has not already been done.
( 1 ) THE appellant/writ petitioner herein has preferred this appeal challenging the order dated 20th December, 2006 passed by the learned Single Judge whereby and whereunder the said learned Single judge dismissed the writ petition filed by the appellant herein. The appellant/ writ petitioner filed the aforesaid writ petition praying for a direction upon the respondent authorities to allow the said writ petitioner to participate in the interview for appointment of Group 'd' staff (Sweeper) in Raja Narendra lal Khan Women's College in the district of Pashim Midnapore.
( 2 ) THE learned Single Judge while deciding the writ petition held that in view of the Government Order issued under Memo No. 830-Edn (CS) dated 31st October, 1995, the Group 'd' posts of the colleges affiliated by the University in the State of West Bengal are to be filled up from the candidates sponsored by the concerned Employment Exchange and since the aforesaid order was not challenged in the writ application, the learned single Judge did not find any merit on the submissions made on behalf of the writ petitioner and therefore, dismissed the said writ petition.
( 3 ) THE learned Advocate of the appellant submits that the learned single Judge failed to appreciate that there is no statutory rule which authorises the respondent authorities to consider the candidatures of the candidates only sponsored by the Employment Exchange. It has also been submitted on behalf of the appellant that the executive instructions issued under Memo No. 830-Edn (CS) dated 31st October, 1995 cannot, compel the respondent authorities to consider only the candidates sponsored by the Employment Exchange for appointment to the said post of Group 'd' staff in the concerned college in view of the law laid down by the Supreme court in this regard. Mr. Sourav Mitra, learned Counsel of the appellant submits that the law in this field has already been settled by the Hon'ble supreme Court. Mr. Mitra referred to and relied on the following decisions
in support of his argument : 1) (1996)6 SCC 216, Excise Superintendent, Malkapatnam, Krishna district v. K. B. N. Visweshwaria Rao. 2) (2005)3 Cal HN 337 (FB) : (2005)2 WBLR (Cal) 266, Rabindra nath Mahato v. State of West Bengal and Ors. 3) (2006)8 SCC 111, Arun Kumar Nayak v. Union of India and Ors.
( 4 ) IT has also been submitted on behalf of the appellant that the restrictions imposed by the executive instructions issued under Memo dated 31st October, 1995 has been considerably diluted in view of declaration of law by the Hon'ble Supreme Court in the case of Excise Superintendent, malkapatnam v. K. B. N. Visweshwara Rao reported in (1996)6 SCC 216, which has also been followed by the Supreme Court in the subsequent decisions.
( 5 ) THE learned Counsel of the respondents, however, submits that the appellant herein cannot challenge the aforesaid Government order dated 31 st October, 1995 in the instant appeal instead of filing a fresh writ petition. Mr. Tapabrata Chakraborty learned Counsel of the State-respondents further submits that the aforesaid executive order issued by the Government of west Bengal on 31st October, 1995 satisfies the test of Article 162 of the constitution of India inasmuch as the Vidyasagar University statutes confers legislative competence. Mr. Chakraborty also submits that the said executive order dated 31 st October, 1995 also stands authenticated in terms of the provisions of Article 166 (2) of the Constitution of India. According to Mr. Chakraborty, recruitment policy as laid down by the said executive order dated 31st October, 1995 is operative in the field and the same is also binding upon the concerned authorities. Mr. Chakraborty also referred to and relied on the decision of the Supreme Court in the case of Ekta Shakti foundation v. Govt. of NCT of Delhi reported in AIR 2006 SC 2609 wherein the Hon'ble Supreme Court observed :
" 10. While exercising the power of judicial revi
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