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High Court of Judicature at Calcutta
JYOTIRMAY BHATTACHARYA & TAPASH MOOKHERJEE, JJ.
The West Bengal College Service Commission & Others
Versus
Barnali Sen (Sinha) & Others
F.M.A. No. 412 of 2012 (Appellate Side)
Decided on : 21-11-2014
WEST BENGAL COLLEGE SERVICE COMMISSION ACT - REGULATION 9 - RECOMMENDATION OF CANDIDATES - AREA-WISE PREFERENCE - ARTICLE 15(3) OF THE CONSTITUTION OF INDIA - FEMALE CANDIDATES - PREFERENCE IN POSTING. Regulation 9 of the West Bengal College Service Commission (manner of selection of persons for appointment to the post of teachers including principals) Regulations, 1980, provides for the procedure of recommendation of candidates for appointment to teaching posts in colleges. Regulation 9(2) mandates that the topmost name appearing in the panel at the material time shall be recommended every time. Regulation 9(3) provides that the area-wise preference of the candidates as well as the special requirement of the college concerned shall also be taken into account. The Court held that Regulation 9(3) cannot get precedence over Regulation 9(2). The area-wise preference of the candidates should be considered in conjunction with their position in the merit list and the availability of vacancies. The recommending authority has the discretion to recommend a candidate according to the special need of the colleges in the light of his area-wise preference. The Court further held that the West Bengal College Service Commission Act and the Regulations made thereunder do not authorize the Commission to make any provision for reservation of female candidates in the light of Article 15(3) of the Constitution of India. The State Government has not made any suitable legislation or issued any administrative direction in this regard. Therefore, the Commission cannot make any provision on its own for giving preference to female candidates in respect of their place of posting, nearer to their residence.
Fact of the Case:
The petitioner, a lecturer in English, challenged the recommendation of the West Bengal College Service Commission (Commission) for her appointment in a college in Bankura, which was about 250 km away from her residence. She contended that the Commission did not adhere to Regulation 9(3) of the West Bengal College Service Commission (manner of selection of persons for appointment to the post of teachers including principals) Regulations, 1980 (Regulations) and the principles underlying Article 15(3) of the Constitution of India while recommending her.
Finding of the Court:
The Court held that the Commission had not violated Regulation 9(3) of the Regulations. The area-wise preference of the candidates should be considered in conjunction with their position in the merit list and the availability of vacancies. The recommending authority has the discretion to recommend a candidate according to the special need of the colleges in the light of his area-wise preference. The Court further held that the Commission was not authorized to make any provision for reservation of female candidates in the light of Article 15(3) of the Constitution of India. The State Government has not made any suitable legislation or issued any administrative direction in this regard. Therefore, the Commission could not make any provision on its own for giving preference to female candidates in respect of their place of posting, nearer to their residence.
Issues: 1. Whether the Commission violated Regulation 9(3) of the Regulations while recommending the petitioner? 2. Whether the Commission was required to adhere to the principles underlying Article 15(3) of the Constitution of India while recommending the petitioner?
Ratio Decidendi: 1. Regulation 9(3) of the Regulations does not give a right to the candidates to be recommended to a place of posting of their choice which is nearer to their residence by ignoring Regulation 9(2). 2. The area-wise preference of the candidates should be considered in conjunction with their position in the merit list and the availability of vacancies. The recommending authority has the discretion to recommend a candidate according to the special need of the colleges in the light of his area-wise preference. 3. The Commission is not authorized to make any provision for reservation of female candidates in the light of Article 15(3) of the Constitution of India. The State Government has not made any suitable legislation or issued any administrative direction in this regard. Therefore, the Commission cannot make any provision on its own for giving preference to female candidates in respect of their place of posting, nearer to their residence.
Final Decision: The Court allowed the appeal and set aside the impugned order. The petitioner was directed to join the post of lecturer in the Panchmura Mahavidyalaya at Bankura within a month from the date of the order. If she failed to do so, the college authority was free to report the vacancy to the Commission, which could then take up the selection process for filling up the vacancy in accordance with law.
Jyotirmay Bhattacharya, J.
This Mandamus Appeal is directed against the judgment and/or order passed by a learned Single Judge of this Court on 30th August, 2011 in W.P. No.10300 (W) of 2010 at the instance of the West Bengal College Service Commission and another being the respondent No.2 and 4 of the writ petition.
By the impugned order, the learned Trial Judge, while allowing the writ petition of the respondent No.1 herein, directed the appellants/respondents to recommend the name of the writ petitioner to a college located at a reasonably commutable distance from the place where she lives as indicated by her repeatedly, after considering the vacancy position in any such college or colleges. Such direction was passed by the learned Trial Judge primarily on two grounds.
The learned Trial Judge held that the Regulation 9(3) of the West Bengal College Service Commission (manner of selection of persons for appointment to the post of teachers including principals) Regulations, 1980 (hereinafter referred to as the said “Regulation”) had not been adhered to by the appellants while recommending the name of the writ petitioner for her appointment in the post of lecturer in English in a college in Bankura within Burdwan University zone.
The learned Trial Judge also held that the writ petitioner being a lady candidate, the principles underlying Article 15(3) of the Constitution of India ought to have been adhered to by the concerned authority while recommending her to a college for her appointment in the post of lecturer. Since the concerned authority while recommending her to a college in Bankura did not adhere to the Constitutional mandate under Article 15(3) of the Constitution of India, recommendation which was given by the appellants requires to be interfered with. The direction passed by the learned Trial Judge while disposing of the writ petition is primarily based on the aforesaid findings of the learned Trial Judge. Let us now consider the merit of the instant appeal in the facts of the instant case.
The West Bengal College Service Commission (hereinafter referred to as the “Commission”) published an advertisement on 5th December, 2008 in its Website inviting applications in the prescribed form from the eligible candidates for preparation of a panel for appointment to the post of lecturers and librarians in the affiliated non- Government colleges/teachers training colleges under different Universities in West Bengal. The Commission also published a list of tentative vacancies as on 15th September, 2008 in respect of the post of lecturers in different subjects and in the said list, total number of vacancies in the post of lecturers in English for Burdwan University zone was shown as 78 and for physically handicapped candidates vacancies were shown as 3. The writ petitioner applied in the prescribed form by offering her candidature for the post of lecturer in English under Burdwan University zone.
Admittedly, she fulfilled the eligibility criteria prescribed for the post of lecturer in English. She was allowed to participate in the selection process. The commission called her for appearing in interview on 9th July, 2009 in the office of the said Commission. She appeared in the interview before the selection authority. She was empanelled under general category and ultimately a panel consisting of 32 candidates belonging to general category was published on 25th November, 2009 in the Commission’s Website for the subject English under Burdwan University zone.
The name of the petitioner was placed at serial No.31 in the said panel. She was called upon to appear for counselling before the concerned authority on 10th March, 2010 for selecting the choice of her posting from the vacancies available under Burdwan University zone as on the date of counselling. 5 available vacancies which remained unfulfilled as on the date of her counselling was placed before her and she selected the college, namely, Panchmura Mahavidyalaya
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