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High Court of Calcutta
B. Bhattacharya, Aniruddha Bose, Sambuddha Chakrabarti, JJ.
Tulsi Roy – Appellant
Versus
Krishanu Roy – Respondent
Decided on : Apr 29, 2011
APPOINTMENT OF NON-TEACHING STAFF IN GOVERNMENT-SPONSORED SCHOOLS - APPLICABILITY OF SUPREME COURT DIRECTIONS IN EXCISE SUPERINTENDENT CASE - REQUIREMENT OF ADVERTISEMENT - APPLICABILITY OF NEW SELECTION RULES TO VACANCIES ARISING FROM QUASHED APPOINTMENTS - INTERPRETATION AND APPLICATION OF RELEVANT LAWS.
Fact of the Case:
Three writ petitions were filed challenging the appointment of non-teaching staff in government-sponsored schools without following the procedure laid down by the Supreme Court in the Excise Superintendent case, which required advertisement of vacancies. The petitioners, who were not sponsored by the employment exchange, sought to participate in the selection process and contended that the absence of advertisement violated their fundamental rights under Articles 14 and 16 of the Constitution.
Finding of the Court:
The court held that the principles laid down in the Excise Superintendent case were applicable to government-sponsored schools and that a person whose name was not sponsored by the employment exchange could file a writ petition seeking permission to participate in the selection process, provided that they also sought a direction for advertisement of the post. The court further held that the West Bengal School Service Commission (Selection of person for Appointment to the post of Non-teaching Staff) Rules, 2009, were applicable to vacancies arising from appointments that were set aside by a court for non-compliance with the Excise Superintendent case.
Issues: 1. Whether the principles laid down in the Excise Superintendent case were applicable to government-sponsored schools. 2. Whether a person whose name was not sponsored by the employment exchange could file a writ petition seeking permission to participate in the selection process without seeking a direction for advertisement of the post. 3. Whether the West Bengal School Service Commission (Selection of person for Appointment to the post of Non-teaching Staff) Rules, 2009, were applicable to vacancies arising from appointments that were set aside by a court for non-compliance with the Excise Superintendent case.
Ratio Decidendi: 1. The court held that the principles laid down in the Excise Superintendent case were applicable to government-sponsored schools because the absence of wide publication of the advertisement of employment violated the principles of equality among citizens and the equal opportunity in the matter of employment, which are guaranteed under Articles 14 and 16 of the Constitution. 2. The court held that a person whose name was not sponsored by the employment exchange could file a writ petition seeking permission to participate in the selection process, provided that they also sought a direction for advertisement of the post. The court reasoned that the Supreme Court's directions in the Excise Superintendent case were intended to ensure that all eligible candidates had an opportunity to apply for government jobs, and that this could only be achieved if vacancies were advertised. 3. The court held that the West Bengal School Service Commission (Selection of person for Appointment to the post of Non-teaching Staff) Rules, 2009, were applicable to vacancies arising from appointments that were set aside by a court for non-compliance with the Excise Superintendent case. The court reasoned that the new rules were intended to ensure transparency and fairness in the selection process, and that it was in the interest of justice to apply them to all vacancies, regardless of when they arose.
Final Decision: The court set aside the appointments of the selected persons in all three writ petitions and directed the school authorities to proceed afresh in accordance with the new Rules of 2009.
Bhaskar Bhattacharya, J.
1. THESE three matters have been assigned to this Bench by the Hon'ble Chief Justice of which the first one has been assigned as a consequence of reference by a Division Bench of this Court dated 17th March, 2008 passed in F.M.A. No.768 of 2007 and the other two matters have been referred to by another Division Bench before whom these two writ-applications were assigned on the request of two learned Single Judge of this Court because of importance of the question involved. The said Division Bench was, however, of the view that since the other one, namely, the case of Tulsi Roy, has already referred to a larger bench, these two writ- applications should also be heard along with the same. Consequently, these two writ-applications have also been assigned before us.
2. WE have heard all these three matters together as the points involved in all these three matters are substantially the same. In the case of Tulsi Roy (Supra), for the purpose of appointment of a clerical staff, The concerned school took prior permission of the District Inspector of Schools and asked the employment exchange to sponsor the names of the eligible candidate. Accordingly, the names of 20 candidates were sponsored by the employment exchange including that of the appellant. The name of the respondent No. 1, however, was not sponsored by the employment exchange. He came up with a writ-application before a learned Single Judge of this Court and prayed for permission to participate at the process of selection. The learned Single Judge by order dated October 13, 2006 allowed such writ-application and directed the school authority to permit the writ-petitioner to participate in the process of selection.
3. THE writ-petitioner, accordingly, appeared at the interview and became successful as he was placed at the first position in the panel whereas the appellant, one of the sponsored candidates by the employment exchange, was placed in the second position.
4. THE appellant, the second empanelled person in the panel, thus, preferred an appeal before the Division Bench against the order allowing the writ-application of the respondent No. 1 with the leave to prefer an appeal and the learned Division Bench after taking into consideration various decisions was of the view that the order passed by the learned Single Judge should be set aside and the writ-application should be dismissed. However, in view of the fact that there were conflicting views on the subject and in the case of Uttam Kumar Matty v. State of West Bengal and Ors., reported in (2007)4 CHN page 499, a Division Bench of this Court having directed that an advertisement should be published before making any such selection, and at the same time, Their Lordships having some doubts as to whether the principle laid down by the Hon'ble Supreme Court in various decisions as regards the necessity of advertisement for recruitment applies to the Government sponsored schools, Their Lordships referred the matter for a decision by a Larger Bench. In the other two applications which were referred to a Division Bench, the question was whether a person who was not been sponsored by employment exchange can straightway file a writ-application praying for permitting him to appear at the interview for the post of Group-D staff of a Government sponsored school.
5. AS pointed out earlier, those two matters were referred to a Division Bench and the said Division Bench in view of pendency of a reference before the Larger Bench, requested the learned Chief Justice to place the matters along with the case of Tulsi Roy, the first matter before us, for decision.
6. THEREFORE, in all these three matters which are now placed before us, although in the reference no specific point has been formulated, after hearing the learned counsel appearing on behalf of the parties and after taking into consideration the materials on record, we have, however, formulated the following questions for decision in these thre
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