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IN THE HIGH COURT AT CALCUTTA
Amrita Sinha, J.
Tanmoy Karan – Petitioner
Versus
The State of West Bengal & Ors. – Respondents
WPA No. 5566 of 2021
Decided On : 25-08-2021
Service Law – Appointment - Reserved category vacancy - Post of Assistant Professor - whether a candidate whose name appears in the merit panel, simultaneously, under two separate categories, one reserved and the other unreserved, can switch over from one category to the other after opting to join the post in respect of a particular category?
Finding of the Court : Bar to exercise option in the other category comes to play. It is then that he forfeits his right to choose any other vacancy in any other category. If the aforesaid explanation is not accepted, then the panel of both the categories gets disturbed, as a candidate may switch over from one category to the other, according to his convenience, causing inconvenience to the subsequent empanelled candidates in the category. Such flip-flop action creates uncertainty in the mind of the empanelled candidates and the future of the subsequent candidates in the panel remains hanging in a balance. Transparency gets lost - A candidate is required to exercise his choice in an informed manner and ought to stick to his choice instead of moving over from one category to the other. A candidate ought not to mis-utilise his choice or the privilege that he enjoys under the Constitution and under the respective Regulations, and at the same time, a candidate cannot stand in the way of others from getting a job taking advantage of the fact that he belongs to the reserved category - The wrong that has been committed by the Commission may be undone if two vacancies in the unreserved category are permitted to be filled up by re-counselling from the remaining empanelled candidates of the unreserved category list and adjusting the vacancy position accordingly from the subsequent advertisement - Commission is directed to conduct re-counselling of the remaining empanelled candidates of the unreserved category in the subject Geography for filling up two vacancies notwithstanding the fact that the panel in question expired in the meantime. The re-counselling shall be held strictly in accordance with the Regulations within a period of eight weeks from the date of communication of a copy of this order.
JUDGMENT :
1. In response to the advertisement no. 1 of 2018 published by the West Bengal College Service Commission inviting applications for the post of Assistant Professor in State-aided Degree Colleges of West Bengal, the petitioner applied for being appointed in the subject Geography. He was successful in the selection process and his name appeared at serial no. 50 in the provisional merit panel published by the Commission in the unreserved category.
2. At the time of publication of the advertisement 37 vacancies were declared for the unreserved category in the subject Geography. The empanelled candidates were requested to attend counselling to be held on 16th March, 2020.
3. As the vacancies in the unreserved category were filled up by the candidates whose name appeared at the top of the merit list the petitioner did not get a chance to participate in the counselling process.
4. The petitioner submits that after the initial counselling, re-counselling was held on 5th November, 2020, 11th December, 2020 and 11th January, 2021.
5. It has been submitted that the candidate whose name appeared in the unreserved category at serial no. 46, Rejaul Islam Sana was called for re-counselling on 5th November, 2020 and the candidate at serial no. 47, Mayna Mahato was called for re-counselling on 11th January, 2021. Sandipan Ghosh was empanelled at serial no. 42 in the unreserved category and he was called for re-counselling on 5th November, 2020. Rajesh Dey serial no. 45 and Tarun Sasmal serial no. 48 under the unreserved category were called for re-counselling on 22nd February, 2021. The aforesaid Sandipan Ghosh, Rajesh Dey, Rejaul Islam Sana and Mayna Mahato’s names also figured in the provisional merit list in the subject Geography in the OBC-B category.
6. It has been submitted that Rajesh Dey ranked 9 in the OBC-B category panel appeared in the counselling and opted to join Birpara College, Alipurduar. His name was recommended by the College Service Commission and the college issued the letter of appointment in favour of Rajesh Dey on 13th July, 2020. The appointment letter clearly mentioned that the appointment will be treated as cancelled if the appointee failed to join the post by 12th August, 2020. The said Rajesh Dey did not join Birpara College.
7. The aforesaid Sandipan Ghosh was empanelled as serial no. 8 in the merit panel under OBC-B category and he opted to join Hiralal Bhakat College, Birbhum. The said Sandipan Ghosh also did not join the recommended college.
8. According to the petitioner though initially only 37 vacancies were declared but thereafter the College Service Commission included several other subsequent vacancies and candidates up to serial no. 48 in the unreserved category were called for counselling.
9. It is the case of the petitioner that as the aforesaid Rajesh Dey and Sandipan Ghosh opted to join the reserved posts in the recommended colleges, accordingly, the two vacancies created in the unreserved category are liable to be filled up by the Commission by conducting fresh counselling. Petitioner’s merit position being 50, he ought to be given a chance to appear in the counselling.
10. It has been contended that as the aforesaid persons initially opted to join in the reserved category vacancy accordingly they ought not to be permitted to switch over to the unreserved category after recommendation was made in their favour in the counselling process.
11. The petitioner has annexed the subsequent advertisement published by the West Bengal College Service Commission being advertisement no. 1 of 2020 for filling up the post of Assistant Professor in various subjects in State-aided Degree Colleges of West Bengal.
12. It has been contended that despite vacancies being available for appointment of candidates from the provisional merit panel, the Commission published further notification being advertisement no. 1 of 2020 inviting applications for the post of Assistant Professors in State-aided Degree Colleges. The Commis
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