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IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
SAMAPTI CHATTERJEE, J.
Salil Das & Ors. - Petitioners
Versus
The State of West Bengal & Others - Respondents
W.P. No. 453, 454, 456, 457, 458 of 2017
Decided On : 28-02-2018
Cancellation of Appointment - Selection Process - Recruitment Policy - Government Order - Natural Justice
Fact of the Case:
The petitioner was appointed to the post of clerk (Un-reserved) in Vidyasagar College after following due selection process. However, the appointment was later cancelled by the authority without holding any disciplinary proceedings or giving any opportunity of hearing. The petitioner filed a writ petition challenging the cancellation order.
Finding of the Court:
The court found that the impugned order of cancellation was issued without giving the petitioner an opportunity to controvert the enquiry report, and it violated the principles of natural justice. The court quashed the cancellation order and directed the authority to allow the petitioner to join his service without further delay. The court also directed the authority to serve a copy of the enquiry report to the petitioner and allowed the petitioner to file a comprehensive written reply against the report. If the authority is not satisfied with the reply, they were directed to initiate disciplinary proceedings and complete them within six weeks, serving the reasoned decision to the petitioner within one week.
Issues: The main issue was whether the appointment of the petitioner could be cancelled without holding any disciplinary proceedings or without giving any opportunity of hearing.
Ratio Decidendi: The impugned order of cancellation was found to violate the principles of natural justice as it was issued without giving the petitioner an opportunity to controvert the enquiry report. The court held that the appointment of the petitioner cannot be cancelled without following due process of law, thereby, holding a regular disciplinary proceeding.
Final Decision: The impugned order of cancellation and the cancellation order were quashed and set aside. The authority was directed to allow the petitioner to join his service without further delay and to serve a copy of the enquiry report to the petitioner. The petitioner was allowed to file a comprehensive written reply against the report, and if the authority was not satisfied, they were directed to initiate disciplinary proceedings and complete them within six weeks, serving the reasoned decision to the petitioner within one week.
SAMAPTI CHATTERJEE, J.
1. The following issue is to be determined in this case:—
(i) “Whether the appointment of the petitioner after following due selection process could be cancelled by the authority without holding any disciplinary proceedings or without giving any opportunity of hearing?”
2. The petitioners case in a nutshell is as follows:—
On 26th February, 2016 the Secretary, College (Sponsored Branch) Higher Education Department, Government of West Bengal intimated the Director of Public Instruction West Bengal vide Memo No. 229-Edn(CS)/4E-5/2014 for creation of one non-teaching post and filling up all four existing vacant non-teaching posts in Vidyasagar college. (hereinafter referred to the said college). The said college on 16th December, 2016 in terms of the recruitment policy being G.O No. 585-Edn(CS)/10M-20/08 dated 9th September, 2008 requested the concerned employment bank to sponsor the names of the candidate and in addition thereof the college authority has also published the same in daily Bengali newspaper and in daily English newspaper inviting applications from the eligible candidates for recruitment to the said post of non-teaching staff of Vidyasagar College for wide publication.
3. The Recruitment Policy dated 9th September, 2008 is quoted below:—
“Government of West Bengal
Higher Education Department
C.S Branch
Bikash Bhavan, Salt lake, Kolkata-91.
No. 585-Edn(CS)/10M-20/08Kolkata, the 9th Sept. 2008
From: Sri. M. Chakraborti, OSD & Ex-Officio Deputy Secretary to the Govt. of WB
To: The Director of Public Instruction, West Bengal
Sub: Recruitment policy regarding appointment in non-teaching posts in non-govt. colleges.
In cancellation of this Department's G.O No. 830-Edn (CS) dt. 31.10.95, the undersigned is directed by order of the Governor to say that henceforth the following procedure shall be followed for direct recruitment to the non-teaching posts in non-govt. colleges until further orders.
The concerned appointing authorities shall in addition to obtaining names from Employment Exchanges give wide publicity of the vacancies in the newspapers having widen circulation and also display the vacancies on the office notice boards in such a manner as to ensure reasonable opportunity of response from the eligible candidates for due consideration of their candidature in the recruitment process.
This orders is issued in accordance with the provision as laid down in Labour Department memorandum no. 101-Emp dated 25.7.2008
OSD & Ex-Officio Dy. Secretary”
4. It is also stated that college authorities also displayed the vacancies of non-teaching staff on the office notice board.
5. On 6th February, 2017 it was decided in the meeting of the Selection Committee that the recruitment procedure in Group C post would be conducted only through interview of the eligible applicants/candidates. The said committee was constituted in the following manner:—
“3(a) Accordingly the selection committee had been constituted for recruitment to the posts of non-teaching staff in Vidyasagar College in the following manner:—
(i) Dr. Goutam Kundu, Principal and Chairman, Selection Committee, the respondent no. 5.
(ii) Dr. Sudipa Bandyopadhyay, Convener (Member from Governing Body-Teachers' Representative), Selection Committee, the respondent no. 6.
(iii) Prof. (Dr.) Gobinda chandra Sadhukhan, member from Governing Body (Government Nominee), the respondent no. 7
(iv) Prof. Uday shankar Hazra, mamber from Governing Body (University Nominee), the respondent no. 8
(v) Dr. Alok ghosh Chaudhuri, member from Governing Body (Teacher's Representative), the respondent no. 9”
6. In the said meeting the decision was also taken regarding process of allotment of marks for the said selection. It is stated that on 11th February, 2017 and 21st February, 2017 the petitioner along with other candidates were called for interview before the Selection Committee for recruitment to the post of clerk (unreserved) in the said college.
7. Thereafter, the petitioner duly appe
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