A State Act that restricts the source of recruitment to employment exchanges only is ultra vires the Constitution of India and violates the right to equality of opportunity in employment and the right to livelihood.

Amitava Lala, J.: This writ petition is made challenging the vires of section 4 of the West Bengal Regulation of Recruitment in State Govt. Establishments and Establishments of Public Undertakings, Statutory Bodies, Govt. Companies and Local Authorities Act, 1999. Notice has been served upon the learned Advocate General of the State with the leave of the Court. No affidavit has been filed by the contesting respondent inspite of giving direction. Leave granted to file the supplementary affidavit by incorporating section 4 in the place and instead of section 3 of the Act in the prayer of the writ petition which has been inadvertently done. Section 4 of the Act is as follows:

"After the commencement of this Act, all vacancies in the posts in any Government establishment or establishment of any public undertaking, statutory body, Government company or local authority shall be filled up by such persons as may be sponsored by an employment exchange".

2. From the plain reading of the Act it appears that it is also made applicable to the local bodies including panchayat authorities and filling up the posts will be made through the Employment Exchange only. This is the crux of the case. According to the petitioner, filling up the posts through the Employment Exchange only is ultra vires to the Constitution of India. Article 246(2) of the Constitution of India says that Parliament has exclusive power to make laws in respect of any of the matters enumerated in List III in the Seventh Schedule in the Constitution referred to as the 'Concurrent List'. Article 254 says that if there is any inconsistency arising between the laws made by the Parliament and laws made by the Legislatures of the State, law which has been made by the Parliament with respect to any of the matters in the Concurrent List either before or after the law made by the Legislature of the State shall prevail except one situation when President gives his assent in respect of the prevailing effect of the State Act. There is a Central Act already existing in the field. The Act says that the Employment Exchange (Compulsory Notification of Vacancy) Act, 1959 was promulgated on 2nd September, 1959 by the Parliament. Section 4 of the Act gives power of notification of vacancies to the Employment Exchange in respect of every employer whether it is private or public sector or every establishment pertaining to any class or category of the establishment. But sub-section (4) of section 4 says which is as follows:

"Nothing in sub-sections (1) and (2) shall be deemed to impose any obligation upon any employer to recruit any person through the employment exchange to fill any vacancy merely because that vacancy has been notified under any of those sub-sections".

3. It appears from there that in such Central Act there is no embargo for recruitment by an agency from outside inspite of notification of vacancies with the Employment Exchange. The present Act appears to be taken assent of the Governor but not the President. Therefore, it cannot have any prevailing effect over and above such Central Act to restrict the candidates from participating in interview for getting a service in respect of panchayat authorities etc. or from any other source other than the source of Employment Exchange. Such Act being a Central Act has its prevailing effect. Although the Central Act has prevailing effect on the field of filling up the vacancies in respect of employment but State Act introduced in 1999 with the assent of the Governor which cannot supersede and/or curtail the right of the citizen in getting the service.

4. Section 224 of the West Bengal Panchayat Act, 1973 gives Rule making power. Under such Act a Rule has been given for filling up the post of appointment of the Sahayak in the Gram Panchayat and certain conditions of service are formulated in Memorandum No. 4406/PN/W/111 dated 4th December, 1998.

Paragraph 3(b)(i) speaks for filling up the post in the following manner which is as follows:

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