2005 Supreme(Cal) 427

High Court Of Calcutta
A. K. GANGULY, ALOKE CHAKRABARTI, D. K. SETH, PRABIR KUMAR SAMANTA, S. K. GUPTA
RABINDRA NATH MAHATA - Appellant
Versus
STATE OF WEST BENGAL - Respondent
W. P. 8027 (W) Of 2005
Decided On : 07/07/2005

The decision of the Supreme Court in Abu Taher v. Abdul Wahab and Ors. (supra) has overruled the Special Bench decision of this Court in Debasis Dutta v. State of West Bengal and Ors. reported in 1998 (2) CLJ 1, and as a result a person whose name is not sponsored by the employment exchange has a right to participate, as a candidate, in a selection process initiated by a school governed by the 1969 Management Rules (framed under the West Bengal Board of Secondary Education Act, 1963) for recruiting and selecting a person for appointment as a member of the non-teaching staff.

Headnote:

EMPLOYMENT EXCHANGE - Non-Sponsorship of a Candidate - Consideration of Candidature - Right of a Candidate - Whether a Person Whose Name is Not Sponsored by the Employment Exchange Has a Right to Participate, as a Candidate, in a Selection Process Initiated by a School Governed by the 1969 Management Rules (Framed Under the West Bengal Board of Secondary Education Act, 1963) for Recruiting and Selecting a Person for Appointment as a Member of the Non-Teaching Staff - Held, Yes.

Fact of the Case:

The petitioner, who was not sponsored by the employment exchange, filed a writ petition praying for a mandamus directing the respondents to allow him to participate in the selection process initiated by the school for recruitment and selection of clerk-cum-typist. The learned Single Judge, relying on the decision of the Supreme Court in Abu Taher v. Abdul Wahab and Ors. (Civil Appeal No. 1203 of 2001) and the decision of this Court by another learned Single Judge in Sanjay Kumar Ray v. State and Ors. reported in 2005 (1) WBLR (Cal) 130, held that the petitioner had a right to offer his candidature in the selection process in question provided he possessed the requisite qualifications prescribed for the post. However, the learned Single Judge, disagreeing with the view taken by the other learned Single Judge in the case of Sanjay Kumar Ray (supra) and being of the view that the special Bench decision in the case of Debasis Dutta (supra) still holds good and no law was laid down by the Supreme Court in the case of Abu Taher (supra) that a person will be entitled to offer his candidature in any recruitment process even though his name is not sponsored by the employment exchange for the said purpose, when relevant rules make such exercise a mandatory requirement, referred the matter to a Larger Bench.

Finding of the Court:

The Larger Bench, after considering the relevant provisions of the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959, the judgments of the Supreme Court in K. B. N. Visweshwara Rao v. Excise Superintendent, Malkapatnam, Krishna District and Raj Kumar v. Shakti Raj and Ors., and the judgment of this Court in Bhaskar Ranjan Ghosh v. Kamal Sen, held that: (i) The Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 only requires intimation of vacancies to Employment Exchanges and no obligation was prescribed for recruiting only the candidates sponsored by Employment Exchange. (ii) The guidelines issued by the Director of School Education, West Bengal for recruitment of teaching and non-teaching staff of Secondary Schools including Madrasha issued by Memo No. 2066-G. A. dated 27th October, 1995 are directory in nature and not mandatory. (iii) The Rules for Management of Recognised Non-Government Institutions (Aided and Unaided), 1969 do not contain any provision for selection through Employment Exchange. (iv) The decision of the Special Bench of this Court in Debasis Dutta v. State of West Bengal and Ors. reported in 1998 (2) CLJ 1, which held that the managing committee of a school governed by the 1969 Management Rules is bound to follow the provisions of the recruitment rules and no direction can be issued by the Court upon the managing committee of the school to allow any and every person to appear for the interviews though their names have not been sponsored by the employment exchange, was overruled by the Supreme Court in Abu Taher v. Abdul Wahab and Ors. (supra).

Issues: Whether a person whose name is not sponsored by the employment exchange has a right to participate, as a candidate, in a selection process initiated by a school governed by the 1969 Management Rules (framed under the West Bengal Board of Secondary Education Act, 1963) for recruiting and selecting a person for appointment as a member of the non-teaching staff?

Ratio Decidendi: The Supreme Court in Abu Taher v. Abdul Wahab and Ors. (supra) held that the name of a candidate cannot be excluded from consideration merely because his name had not been sponsored by the employment exchange. This decision overruled the Special Bench decision of this Court in Debasis Dutta v. State of West Bengal and Ors. reported in 1998 (2) CLJ 1, which had held that the managing committee of a school governed by the 1969 Management Rules is bound to follow the provisions of the recruitment rules and no direction can be issued by the Court upon the managing committee of the school to allow any and every person to appear for the interviews though their names have not been sponsored by the employment exchange.

Final Decision: The reference is answered by holding that following the law laid down by Supreme Court in the case of K. B. N. Visweshwara Rao (supra) and Raj Kumar (supra) by its judgment dated february 12,2002 given in Abu Taher v. Abdul Waha. b (supra) (Civil Appeal no. 1203 of 2001) has impliedly overruled the Special Division Bench decision of this Court in Debasis Dutta v. State of West Bengal reported in 1998 (2) CLJ 1 and as a result a person whose name is not sponsored by the employment exchange has a right to participate as a candidate in a selection process initiated by a school governed by 1969 Management Rules (framed under West Bengal Board of Secondary Education Act, 1963) for recruiting and selecting a person for appointment as a member of the nonteaching staff.