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2019 Supreme(Cal) 1
IN THE HIGH COURT OF CALCUTTA
ARIJIT BANERJEE, J.
RIYA DAS - Appellant
Vs.
STATE OF WEST BENGAL AND OTHERS - Respondent
Writ Petition No.25055 of 2018
Decided on : 21-02-2019
Advocate Appeared:
Soumen Kumar Dutta, Adv., Debanshu Ghorai, Adv., Indrajit Mondal, Adv., Pantu Deb Roy, Adv., Arindam Deb Roy, Adv., Joydeep Kar, Adv., Siddhartha Banerjee, Adv., Saikat Banerjee, Adv.
The main legal point established in the judgment is that the Reservation Act does not apply to the High Court, and the educational qualification restriction for the posts was rational considering the nature of the duties.
Headnote:
Examination Fee - Recruitment Notification - West Bengal Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1976 - The court held that the Reservation Act does not apply to the High Court, and therefore, there is no bar in charging examination fees from all candidates including those belonging to Scheduled Castes or Scheduled Tribes.
Fact of the Case:
The petitioner challenged a notification inviting online applications for filling up Group - 'D' posts on the grounds of examination fee imposition, irrational educational qualification, non-publication of recruitment notice in newspapers, suspension of the Right to Information Act, and absence of High Court rules for recruitment of Group - 'D' Staff.
Finding of the Court:
The court dismissed the writ petition, stating that the petitioner had no legitimate grievance as she was ineligible to apply for the posts.
Issues: The issues included the applicability of the Reservation Act to the High Court, rationality of educational qualifications, publication of recruitment notice, suspension of the Right to Information Act, and absence of permanent rules for recruitment.
Ratio Decidendi: The court held that the Reservation Act does not apply to the High Court, and the educational qualification restriction was rational considering the nature of the posts. It also found no violation in the publication of the recruitment notice and the suspension of the Right to Information Act during the recruitment process. The absence of permanent rules for recruitment was not a ground for challenging the notification.
Final Decision: The writ petition was dismissed without any order as to costs.
Arijit Banerjee, J.
The subject matter of challenge in this writ petition is a notification dated 28 September, 2018 which was posted on the Website of the Calcutta High Court inviting Online applications in the prescribed format from eligible Indian citizens possessing knowledge of the vernacular of the State for the preparation of a panel for filling up the existing and expected vacancies in 221 Group - 'D' posts on the Original Side and the Appellate Side of the High Court.
2. The petitioner has challenged the said notification on six grounds which are as follows:-
(i) Examination Fee has been imposed on SC/ST candidates in violation of Section 4 (b) of the West Bengal Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1976 (in short the Reservation Act).
(ii) The educational qualification prescribed is irrational. There is no justification for making graduate candidates ineligible.
(iii) No marks have been indicated for the interview.
(iv) The recruitment process has not been published in two Newspapers of national importance one of which should be in the vernacular of the State.
(v) The operation of Right to Information Act, 2005 (in short RTI, Act) has been suspended during the process of recruitment.
(vi) There are no High Court Rules for recruitment of Group - 'D' Staff.
3. I will take up each of the ground separately, discuss the submissions of Learned Counsel for the parties on such point and record my opinion as to whether or not there is merit in the ground.
Re:- Examination Fee.
4. Appearing for the petitioner, Mr. Dutta, Learned Counsel drew my attention to Section 4 (1) (b) of the Reservation Act which provides that fees, if any, prescribed for any examination for selection to any service or post shall not be charged in the case of candidates belonging to the Scheduled Castes or the Scheduled Tribes. He then drew my attention to Section 7 of the said Act which provides, inter alia, that if an Appointing Authority makes an appointment in contravention of the provisions of Sections 4 or 5, he shall be punishable with imprisonment for a term of five years or fine of Rs. 2500/- or with both. Mr. Dutta submitted that the fact that penalty has been prescribed for acting in contravention of Section 4 of the Act indicates that the provisions of Section 4 are mandatory in nature. In this connection, Learned Counsel referred to the decision of the Hon'ble Supreme Court in the case of Jitendra Kumar Singh and another-versus-State of U.P and others reported in, (2010) 3 SCC 119. In particular, Learned Counsel relied on Paragraph 48 of the said judgment.
5. Appearing for the High Court Administration, Mr. Kar Learned Senior Advocate submitted that Section 4 of the Reservation Act pertains to appointment to services and posts in an 'Establishment'. Section 2 (b) of the Act defines 'Establishment' as any office of the State Government, a local or statutory authority constituted under any State Act for the time being in force, or a Corporation in which not less than 51 per cent of the paid up share capital is held by the State Government, and includes Universities and Colleges affiliated to the University, Primary and Secondary Schools and also other educational institutions which are owned or aided by the State Government and also includes an 'Establishment' in public sector. Section 2 (c) of the Act defines “Establishment in public sector” as any industry, trade, business or occupation owned, controlled or managed by - (a) The State Government or department of the State Government; (b) A Government company as defined in Section 617 of the Companies Act, 1956 or a Corporation established by or under a Central or State Act, in which not less than 51 per cent of the paid up share capital is held by the State Government; (c) a local or statutory authority, constituted under any State Act for the time being in force.
6. Mr. Kar submitted that the High Court is not an 'Establishment' within the
