Arun Kumar Chanda & Ors. vs State of West Bengal & Ors.

Debangsu Basak, J.

Three writ petitions are taken up for analogous hearing. Manju Das (Chanda) since deceased, (hereinafter referred to as Manju for the sake of

convenience) filed two writ petitions being W.P. No. 6826(W) of 2005 and W.P. No. 25967(W) of 2008, during the lifetime Bhanu Bhowmick & Ors.

(hereinafter referred to as the unsuccessful candidates for the sake of convenience) filed W.P. No. 10661(W) of 2005. The writ petitions relate to a

selection process undertaken by a school for appointment of Group- ‘D’ Staff.

Manju was appointed as a Group-‘D’ Staff by the school on temporary basis in 1994. She was working in the school since then. A post of

Group-‘D’ Staff (Peon) was sanctioned and the District Inspector of Schools accorded permission for filling of such post on January 18, 2005.

The school undertook a selection process for the purpose of filling up such post. The Employment Exchange sponsored the names of eligible

candidates to the school on March 14, 2005. Manju was not sponsored by the Employment Exchange as she was not enrolled with the Employment

Exchange. Manju filed a writ petition being W.P. No. 6828(W) of 2005 claiming right to appear in the interview process. By an interim order dated

April 6, 2005, Manju was allowed to participate in the selection process provided, she fulfils all other criteria. Manju participated in the selection

process. A panel was prepared for the selection process and Manju became the first person in such panel. The school authority forwarded such panel

to the concerned District Inspector of School (Secondary Education) for approval on April 28, 2005. On June 13, 2005, the successful candidates

moved a writ petition being W.P. No. 10661(W) of 2005. Directions for affidavits were given. Such writ petition was directed to be heard along with

the writ petition of Manju being W.P. No. 6826(W) of 2005.

Manju however moved another writ petition being W.P. No. 24727(W) of 2007 seeking a direction upon the concerned District Inspector of Schools

(Secondary Education) for grant of approval. By an Order dated July 1, 2008, the Court directed the concerned District Inspector of School to take a

decision regarding the approval of the panel. By a memo dated August 18, 2008, the District Inspector of School approved the panel. On August 19,

2008, the School issued the letter of appointment. Manju joined the school in terms of such appointment. However, by a writing dated August 22, 2008,

the District Inspector of School refused to approve the appointment of Manju. Thereafter, on October 28, 2009, the District Inspector of School

approved the appointment of Manju but withheld the salary on the ground of pendency of the litigation. The unsuccessful candidates preferred an

appeal challenging the Order passed in W.P. No. 10661(W) of 2005. The Appeal Court set aside the order as the same was passed in absence of the

unsuccessful candidates. Manju died during the pendency of the writ petitions. On her death, her heirs and legal representatives were brought on

record.

Learned Advocate appearing for the unsuccessful candidates submits that, Manju could not have participated in the selection process as, the selection

was limited to the candidates sponsored by the Employment Exchange. Manju not being sponsored by the Employment Exchange, had no right to

appear in the selection process. The Order dated April 6, 2005 being an interim order, cannot be construed to mean that, the same permits Manju to

appear at the interview. The Order dated April 6, 2005 does not obviate the requirement of Manju being sponsored by the Employment Exchange. In

support of such contention, learned Advocate for the unsuccessful candidates relies upon the Procedure for Recruitment of Teaching and Non-

Teaching Staff of the Non-Government Aided Institutions established and administered by minority. He relies upon, 2008 Volume 1 Calcutta Law

Journal 912 (Debendra Nath Mondal v. Ratan Kumar Das & Ors.) and 2010 Volume 1 Calcutta High Court Notes page 137 (Goutam Kumar Dey v.

State of West Bengal & Ors.).

Learned Advocate appearing for Manju submits that, the selection process cannot be limited to sponsored candidates only. In support of such

contention, he relies upon 2008 Volume 3 Calcutta High Court Notes page 20 (Sanjit Kumar Sheet v. State of West Bengal & Ors.), 2011 Volume 3

Calcutta High Court Notes (Cal) page 756 (Sushil Kumar Biswas v. State of West Bengal) and All India Reporter 2008 Supreme Court page 1913

(Dhananjay Malik &Â Â Â Â Â Â Â Â Â Ors. v. State of Uttaranchal & Ors.). In any event, he submits that, the Order dated April 6, 2005, passed

in the writ petition of Manju, was not appealed against by any of the parties. Manju having participated at the interview in terms of such order, the

same cannot now be termed to be invalid.

The selection process undertaken by the school is governed by the provisions of the Recruitment Rules of Director of School Education, West Bengal

dated November 1, 1999. Such recruitment procedure requires the management of a school to approach the District Inspector of Schools (Secondary

Education) for prior permission for taking steps for appointment with relevant papers. On receipt of prior permission from the District Inspector of

Schools (Secondary Education), the school authorities are required to approach the local Employment Exchange for sponsoring the names of the

Employment Exchange candidates. Employment Exchange is required to mention in the list of sponsored candidates, the qualification, date of birth,

date of registration and other particulars of such candidates. Names are required to be sponsored within 45 days in the case of general candidates and

60 days in the case of Schedule Caste, Schedule Tribes and other backward classes candidates. It allows the school authorities to approach the

District Inspector of Schools (Secondary Education), if the Employment Exchange fails to sponsor the names within the time period specified. It also

lays down that, in case of receipt of non-availability certificate from the Employment Exchange, the school may advertise in any State level daily

newspaper under intimation to the District Inspector of Schools inviting applications from prospective candidates for participation in the selection

process.

In the present case, the school did not issue any advertisement. Nothing       is         placed on      Â

record to           suggest that,    the      Employment Exchange issued a non-availability certificate. Quite

to the contrary, the Employment Exchange sponsored the unsuccessful candidate. Manju was not a candidate sponsored by the Employment

Exchange. Manju participated in the selection process by virtue of the interim order dated April 6, 2005 passed in her writ petition being W.P.

6826(W) of 2005. The relevant portion of such interim order is as follows:-

“ In view of an unreported judgment of the Supreme Court dated 12th February, 2001 in C.A. 1203 of 2001 (Abu Taher versus Abdul Wahab &

Ors.) and also the judgment of the Supreme Court in the case of Raj Kumar versus Sakti Raj, reported in 1997 (9) SCC 527 and Excise

Superintendent, Malkapatanam versus K.B.N. Visweshwar Rao & Ors., reported in 1996 (6) SCC 216 and also the judgment of this Court in the case

of Sanjay Kumar Roy versus State of W.B. & Ors., reported in 2005 (1) CHN 355 holding that denial of consideration on the sole ground of the name

not having been sponsored by the Employment Exchange would be discriminatory and wrongful. The petitioner, prima facie, has an arguable case. If

selection to the post is made without considering the candidature of the petitioner the writ application will become infructuous. The balance of

convenience is in favour of an interim order. There will, therefore, be an interim order directing the respondent nos. 5 & 6 to consider the candidature

of the petitioner for a sanctioned group ‘D’ post along with other candidates. If the petitioner is otherwise, eligible, and if the petitioner was

within the age limit at the time of her initial appointment the petitioner shall not be debarred on the sole ground that she might have in the meanwhile

crossed the age limit. If the petitioner is eligible the petitioner shall be called for the interview. It is made clear that this interim order is passed without

prejudice to the rights and contentions of the parties to the writ application.

The affidavit in opposition to the writ application be filed within 6 weeks from the date. Affidavit in reply thereto, if any, be filed within two weeks

thereafter. Liberty is given to mention for hearing six weeks after the summer vacation.â€​

W.P. No. 6826(W) of 2005 is one of the writ petitions which is taken up for consideration. The interim order dated April 6, 2005 makes it clear that,

the same was passed without prejudice to the rights and contentions of the parties to the writ application. Therefore, in my view, Manju has to

establish at the final hearing of such writ petition that, she had a right to participate in the selection process in the given facts of the present case.

As    noted  above, the           selection         was     limited to       Â

sponsored candidates from the Employment Exchange. Sanjit Kumar Sheet (supra), Sushil Kumar Biswas (supra), Debendra Nath Mondal (supra)

and Goutam Kumar Dey (supra) deals with rights of persons not sponsored by Employment Exchange to participate in a selection process which was

not advertised. All the four authorities, rely upon 1996 Volume 6 Supreme Court Cases 216 (Excise Superintendent, Malkapatanam, Krishna District,

A.P. v. K.B.N. Visweshwar Rao). Sanjit Kumar Sheet (supra) and Sushil Kumar Biswas (supra) are of the view that, a person who was not

sponsored by the Employment Exchange is entitled to participate in the selection process.

They rely upon K.B.N. Visweshwar Rao (supra) to hold that, a selection process cannot be limited to the candidates sponsored by the Employment

Exchange only. The recruitment rules, therefore, has to be read in terms of the directions issued in K.B.N. Visweshwar Rao (supra). Debendra Nath

Mondal (supra), however, considers K.B.N. Visweshwar Rao (supra) and other judgments of the Hon’ble Supreme Court and is of the view that,

a person who has not been sponsored by the Employment Exchange, cannot right to participate in the selection process, in absence of the entire

selection process being challenged as violative of Articles 14 and 16 of the Constitution of India. It reads K.B.N. Visweshwar Rao (supra) not to lay

down a law by which, an individual, although not sponsored by the Employment Exchange, and the selection process not being advertised for the public

in general, to obtain an undue advantage over other non-sponsored persons and participate in such selection process.

It is of the view that, permitting an individual who has not been sponsored by the Employment Exchange and where the selection process has not been

advertised for the public in general, would be discriminatory and violative of Articles 14 and 16 of the Constitution of India. Similarly situated persons

as that of such individual would be deprived of their chance to participate in the selection process. Therefore, the recruitment should be ideally held

through a regular advertisement. In absence thereof, an individual who has not been sponsored by the Employment Exchange should not be allowed to

participate therein. Such an individual has no legally enforceable right to canvass, in absence of a challenge to the selection process itself as being

violative of Articles 14 and 16 of the Constitution of India for limiting itself to the Employment Exchange sponsored candidates. Such individual not

having challenged such selection process, is not entitled to a relief of participation in the selection process. This is also the view in Goutam Kumar Dey

(supra).

Sanjit Kumar Sheet (supra) considers a situation where the writ petitioner participated in the regular recruitment process and appeared at the

interview. It is of the view that, selection to a post cannot be restricted amongst the Employment Exchange sponsored candidates only. Similar view is

expressed in Sushil Kumar Biswas (supra). While saying so, they do not deal with the aspect of Articles 14 and 16 of the Constitution of India when, a

non-sponsored candidate is allowed to participate in a selection process which is not advertised, and which is limited to sponsored candidates. A

selection process initiated by a school must adhere to the published terms and conditions of such selection process. In a given case, where the

selection process is limited to Employment Exchange sponsored candidates only, without such selection process being advertised for the public in

general to participate, it would violate Articles 14 and 16 of the Constitution of India to allow any single individual who has not been sponsored by the

Employment Exchange, to participate in such selection process. True, a selection process cannot be limited to sponsored candidates from the

Employment Exchange only. When a non-sponsored candidate approached the Court seeking a right of participation in a selection process restricted to

Employment Exchange sponsored candidates only, then, in absence of such petitioner seeking quashing of the entire selection process, such petitioner

is not entitled to participation. Doing so would breach Articles 14 and 16 in as much as similarly situated and circumstanced persons as that of the

unsponsored candidate would be denied an opportunity to participate in such selection process. The ratio laid down in Debendra Nath Mondal (supra)

and Goutam Kumar Dey (supra) is, therefore, applied to the facts of the present case.

In the present case, as noted above, the selection process was limited to candidates sponsored by the Employment Exchange. Manju did not pray for

quashing of such selection process. She wanted a right of participation without a challenge to the selection process as noted in Debendra Nath Mondal

(supra) and Goutam Kumar Dey (supra). In absence of the selection process being assailed as violative of Articles 14 and 16 of the Constitution of

India, Manju is not entitled to a right of participation in such selection process.

There being no prayer for setting aside of the selection process undertaken, therefore, participation of Manju in such selection process, will not create

any right or equity in favour of Manju, which Manju otherwise did not enjoy. On the strength of Debendra Nath Mondal (supra) and Goutam Kumar

Dey (supra), Manju does not enjoy any right of participation. In fact, her participation in the selection process and getting selected thereat is of no

consequence. However, Manju worked in her post and discharged her duties till her death. Interest of justice would be subserved by requiring the

authorities to pay the heirs and legal representatives of Manju, the salaries and emoluments of Manju, receivable by Manju from the date of her

appointment till the date of her death. This, however, will not be construed to mean that, the heirs and legal representatives of Manju will receive any

other benefit including appointment on compassionate ground, as Manju cannot be treated as an employee validly appointed.

Dhananjay Malik & Ors. (supra) is of the view that, administrative rules do not confer justiciable right and that, if the rules framed under Article 309

of the Constitution are silent on a particular point, the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent

with the rules o manner of application in the facts of the present case. W.P. No. 6826 (W) of 2005, W.P. No. 10661 (W) and W.P. No. 25967 (W) of

2009 are disposed of accordingly. No order as to costs. Urgent certified website copies of this judgment and order, if applied for, be made available to

the parties upon compliance of the requisite formalities.