IN THE HIGH COURT AT CALCUTTA CIRCUIT BENCH AT JALPAIGURI CIVIL APPELLATE JURISDICTION APPELLATE SIDE MAT 12 OF 2025 With CAN 1 of 2025 Sri. Sekhar Sarkar VS State of West Bengal & Ors.

Before: The Hon’ble Justice Arijit Banerjee &

The Hon’ble Justice Biswaroop Chowdhury For the Appellant Mrs. Usha Maity, Adv.

Mr. Haider Ali, Adv.

Mr. Satyam Sarkar, Adv.

For the State Mr. Anirban Banerjee, Adv.

Ms. Rima Sarkar, Adv.

For WBCSC Mr. Subhrangsu Panda, Adv.

Ms. Ira Bhattacharya, Adv. Ms. M. S. Mahapatra, Adv.

Mr. Karan Paswan, Adv.

For respondent nos. 5 & 6 Ms. Amrapali Chaki, Adv.

CAV on 08.04.2025 Judgment on 07.07.2025 Arijit Banerjee, J. :-

1. This appeal is directed against a judgment and order dated October 1, 2024, whereby the appellant’s writ petition being WPA 2054 of 2024 was disposed of by a learned Judge of this Court.

2. The appellant/writ petitioner participated in a recruitment process initiated by the West Bengal College Service Commission (in short the Commission) under the Persons with Disability PWD – (B) Category. His name appeared against Serial no. 2 of the provisional merit list published by the Commission. He submitted before the learned Single Judge that there is a vacancy in PWD- (A) category because of non-joining of one of the merit listed candidates. He sought appointment in the said vacancy.

3. The learned Judge disposed of the writ petition with the following observations:-

“The order dated 8^th July, 2019 of the Labour Department, Government of West Bengal published in the Kolkata Gazette Extraordinary deals with the Rights of Persons with Disabilities Act, 2016.

It mentions that if any vacancy cannot be filed up due to non- availability of a suitable person with benchmark disability or for any other sufficient reason, such vacancy shall be filled up through the procedure as mentioned in Section 34(2) of the Rights of Persons with Disabilities Act, 2016.

Section 34(2) of the Act, 2016 lays down that where in any recruitment year any vacancy cannot be filled up due to non- availability of a suitable person with benchmark disability or for any other sufficient reason, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with benchmark disability is not available, it may first be filled by interchange among the five categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability subject to the proviso mentioned in the Section.

From the aforesaid provisions of law, it appears that the vacancy which cannot be filled up in a particular year is required to be carried forward in the succeeding recruitment year.

In the instant case, the vacancy in the PWD- (A) category could not be filed up because of non-joining of the merit listed candidate. For filing up the same, the employer is required to carry forward the vacancy in the succeeding recruitment year. Only if the vacancy still cannot be filled up, then the same may be filled up by interchange among the five categories.

The appropriate authority is directed to take steps in accordance with law to fill up the said vacancy.”

4. Appearing for the appellant/writ petitioner, Ms. Usha Maity, learned Advocate submitted as follows:-

(i) Advertisement No. 01 of 2020 dated 24.12.2020 was published by the Commission for recruitment of Assistant Professor in English.

(ii) On 24.11.2022 interview of the petitioner was held.

(iii) On 22.09.2023, the provisional merit panel was published. The appellant was empanelled as S.C. PWD- (B) category candidate. However, in the advertisement, there was no categorisation as ‘A’, ‘B’

or ‘C’.

(iv) It is settled law that no eligibility criteria or condition can be changed after the advertisement is published. However, in the present case three sub categories under SC, PWD have been shown in the merit panel which does not appear in the advertise