Back
1990 Supreme(Cal) 152
HIGH COURT OF CALCUTTA
Shyamal Kumar Sen, J.
Bikash Lal Dey & Anr.
Vs
State of West Bengal & Ors.
C. O. No. 14204 (W) of 1989
Decided on : March 29, 1990
Bijon Ghosh for the petitioner.
The provisions of the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959 are directory and not mandatory.
Headnote:
EMPLOYMENT EXCHANGE - REGISTRATION OF NAMES - SELECTION - APPOINTMENT - WITHHOLDING OF APPOINTMENT - REASON - ALLEGED FALSE REGISTRATION SENIORITY - INVALIDITY.
Fact of the Case:
Petitioners' names were registered with the District Employment Exchange, Krishnanagar, Nadia. They received a call for an interview for the post of 'D'-Group Staff (Peon) for the office of Collectorate, Nadia, Krishnanagar. They appeared at the interview and their names were published in the list of candidates selected for the panel. They were asked to appear before the Superintendent, District Hospital, Nadia, for medical examination and to produce attested copies of School Leaving Certificate. They submitted Verification Reports (V.R.) duly filled in before the authority concerned. However, their appointment was withheld on the ground that the names sent by the Employment Exchange authority were not in order of seniority and there was alleged false registration seniority noted in the submission list to bring the candidate within the purview of selection.
Finding of the Court:
The Court found that the petitioners had appeared at the selection test and interview and became successful. There was no reason to refer the matter back to the concerned Employment Exchange for verification. The Court also found that the petitioners could not be involved in the alleged fraud on the record of the Employment Exchange.
Issues: 1. Whether the withholding of appointment to the petitioners on the ground of alleged false registration seniority was valid? 2. Whether the provisions of the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959 were mandatory or directory?
Ratio Decidendi: 1. The Court held that the withholding of appointment to the petitioners on the ground of alleged false registration seniority was invalid. The Court relied on the judgment of the Supreme Court in Prem Prakash v. Union of India & ors., where it was held that the rectification of injustice done to some two persons should not result in injustice to two others. 2. The Court held that the provisions of the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959 were directory and not mandatory. The Court relied on the judgments of the Mysore and Allahabad High Courts in Narashima Murthu (MC) & ors. v. Director of Collegiate Education and Sambhu Nath Tewari v. State of Uttar Pradesh respectively, where it was held that the provision, if any, in this behalf is merely directory and not mandatory.
Final Decision: The Court allowed the writ petition and directed the respondents to give appointment to the petitioners to the post of 'D'-Group Staff (Peon) under unreserved and reserved quota in the office of Nadia District Collectorate if the petitioners are otherwise found to be fit for such posts in accordance with law. The Court also directed the respondents to extend the period of expiry of the said second panel if such appointments to the petitioners cannot be effected in accordance with law within 31st March, 1990.
It is the case of the writ petitioners that the petitioners had registered their names with the District Employment Exchange, Krishnanagar, Nadia (hereinafter referred to as the said Exchange). The petitioner no. 1 got his name registered with the Exchange on 14th May, 1977 and the petitioner no. 2 got his name registered with the said Exchange on 25th August, 1978. The petitioners received call for interview for the post of 'D'-Group Staff (Peon) for the office of Collectorate, Nadia, Krishnanagar under office Memo. No. 638(287) Extt. dated 24th February, 1988 although the petitioners did not apply for appointment for the said post. The petitioners appeared at the said interview held on 26th March, 1989. Copies of the said Memo dated 24th February, 1989 have been annexed to the writ petition. On 1st April, 1989 a list of names of candidates which included the names of the petitioners were published and appeared on the Notice Board of the respondent no. 2. On enquiry the petitioners came to know that another list was published earlier and the said earlier list as well as this list includes the names of those who have been selected for the panel prepared for such posts concerned. Thereafter the petitioners received Memo. No. 3207(8)/Estt. dated 7th June, 1989 from the office of the Collectorate, Nadia whereby the petitioners were requested to meet Nazarath Deputy Collector, Nadia in his office chamber at 12-00 noon on 20th June, 1989 with original School Leaving Certificate, Caste Certificate, if any, Registration Card of Employment Exchange along with a set of xerox copy of such papers positively. On 20th June, 1989 the petitioners were directed to appear before Superintendent, District Hospital, Nadia, Krishnanagar for medical examination and also to produce attested copies of School Leaving Certificate. Accordingly the medical examination was held and the reports thereof issued by the Superintendent, District Hospital, Nadia was submitted before the Collectorate authority on 21st June, 1989 along with other requisites. The petitioners thereafter submitted Verification Reports (V.R.) duly filled in before the authority concerned. Xerox copies of the said reports have also been annexed. Subsequently on enquiry the petitioners came to know from the office of the said Collectorate that the said office has sent the name of the candidates to the Exchange for confirmation and 5 out of 7 candidates, whose medical tests were taken and whose names had been sent after the said medical test have been returned from the said Exchange as confirmed. The names of the petitioners were, however, not confirmed by the said Exchange although the names of the petitioners were sent from the said Exchange itself to the Collectorate authority as fit and suitable candidates for the said post. The petitioners have come to know that the rest of the candidates of the second panel published on 1st April, 1989 which included the names of the petitioners were given appointment before the end of 30th September, 1989 which is the last date of the validity period of the said panel. The period of validity of the said panel was, however, extended by the authority for further period of 6 months i.e. upto 31st March, 1990. It is the case of the petitioners that in anticipation of getting the appointment for the said posts they resigned from their existing service inasmuch as they reasonably expected that since they have been duly selected and passed the medical test they would be given appointment to the said posts. It has been contended that since they have been successful in the interview and they have been selected there is no reason why appointment should not be given to them. An affidavit-in-opposition has been filed on behalf of respondent nos. 1, 2, 4 and 5 being the affidavit of Milan Kumar Dey affirmed on 22nd January, 1990 (hereinafter referred to as the said affidavit). In paragraph 9 of the said affidavit it has been stated as follows:
"In particul
