Bidhan Chandra Ray and Another vs West Bengal College Service Commission and Others

Dipankar Datta, J.—Sri Bidhan Chandra Ray and Sri Sanat Kumar Biswas are the petitioners in this writ petition. They have joined in this petition having independent but identical cause of action.

Both of them, inter alia, are Master degree holders in ''Library and Information Science'' and ''Philosophy'', conferred by the University of Calcutta (hereafter the University). They belong to Scheduled Caste community.

The West Bengal College Service Commission (hereafter the Commission), sometime in March 2007, had issued an advertisement bearing No. 1/2007 (hereafter the said advertisement) inviting applications from eligible candidates for recruitment to posts of Lecturers in various subjects in colleges affiliated to the several universities in the State. The vacancy list attached to the said advertisement showed that there were 11 vacancies in posts of Librarian in colleges (names whereof not disclosed) under the University, out of which three were reserved for Scheduled Caste candidates and the rest eight were unreserved.

It is undisputed that the petitioners possess the minimum eligibility criteria for appointment indicated in the said advertisement. In response to the same, they had offered their candidature for appointment in vacant posts of Librarian in colleges affiliated to the University. However, to their utter dismay and disappointment, they noticed from the provisional list of selected candidates published by the Commission that all the eleven vacancies were treated unreserved and consequently not a single vacancy was filled up by candidates belonging to Scheduled Caste community. Questioning the propriety, legality and/or validity of the provisional list of selected candidates published by the Commission, the petitioners approached this Court by presenting this petition on 9.7.2008 claiming the following relief:

a) A Writ of and/or in the nature of Mandamus do issue directing the respondents and each of them to cancel the purported list of selected candidates being annexure ''P6'' hereof and directing them to include the Schedule caste candidates in the three reserved posts/vacancies from the reserved candidates namely your petitioners herein;

b) A writ of and/or in the nature of certiorari do issue directing the respondents to produce and bring the records and proceedings in the matter so that the same may be quashed in doing conscionable justice;

c) A Writ of and/or in the nature of prohibition do issue prohibiting the respondents and each of them from proceeding with and/or further proceeding with and/or further proceeding with the said selection list until the same is corrected by giving the posts reserved for schedule caste candidates and also prohibiting the respondent from making any appointment in pursuance of the said select list.

The writ petition was admitted on 21.7.2008 by a learned Judge of this Court. While calling for affidavits, no interim order was passed.

It is not in dispute that during the pendency of the writ petition the Commission recommended the names of nine selected candidates for appointment as Librarian in various colleges leaving aside Smt. Pubalika Bhattacharyya and Sri Rahul Majumder, respondents 4 and 5 herein respectively. It has been ascertained during hearing from Mr. Mondal, learned Counsel representing the Commission that since the petitioners had alleged in the writ petition that the respondents 4 and 5 were over-aged on the date they applied in response to the said advertisement, the Commission had in its wisdom considered it just and proper to await the decision of this Court on the writ petition.

Neither has any one appeared for the respondent No. 3, the Director of Public Instructions, West Bengal and the respondent No. 5, nor has any affidavit-in-opposition been filed on their behalf.

In its affidavit-in-opposition, the Commission has justified its action of filling up all the eleven vacancies without reservation for Scheduled Caste candidates as declared in the vacancy list attached to the said advertisement by contending that some of the college authorities had erroneously submitted requisitions projecting the vacancies therein as reserved for Scheduled Caste candidates but subsequently the error was rectified by sending fresh requisitions for such posts. At the time of publication of the provisional merit list the corrected requisitions were taken into consideration. Since the post of Librarian/Assistant Librarian is a single cadre post, a common provisional merit list was published which consisted names of nine general candidates and two Scheduled Caste candidates who, on merit, were selected ahead of some general candidates. It has further been contended therein that since the post of Librarian or Assistant Librarian of a college is a single cadre post, reservation rules would not be applicable.

Mr. Dutta, learned Counsel appearing for the petitioners contended that three vacancies having been reserved for Schedule Caste candidates, the same could not have been filled up by the general category candidates without de-reservation thereof. This, according to him, was in gross violation of constitutional principles. By referring to the affidavit-in-opposition filed on behalf of the Commission, he submitted that the contention raised therein cannot be accepted. Number of Librarian to be appointed in a particular college depends upon the number of books maintained in the library of that college. In the event the library of a particular college has more than a specified number, an additional post of Assistant Librarian may be sanctioned for which recruitment is required to be made in accordance with the applicable guidelines. He has, accordingly, urged this Court to call upon the Commission to provide particulars as to whether the colleges in respect whereof selection process had been initiated vide the said advertisement have only one post of Librarian or more than one post. If there are two posts of Librarian and Assistant Librarian in a particular college and one of such posts in terms of the applicable roster is reserved for either Scheduled Caste or Scheduled Tribe candidates and is sought to be filled up in terms of the said advertisement, the decision of the Commission to fill up the vacancy in that post by general category candidates ought to be held illegal.

That apart, he contended that respondents 4 and 5 being ineligible having crossed the upper age limit, they could not have been placed in the merit list published by the Commission.

Mr. Mondal contended that the plea raised by Mr. Dutta is not traceable in the pleadings and, therefore, does not merit credence. He reiterated the contents of the affidavit-in-opposition to urge that reservation of single cadre post not being permissible, the Commission had not committed any illegality warranting judicial interference. By referring to the records of selection, he contended that the petitioners did not fare well and were the tail-enders in the provisional merit list. Even otherwise, the petitioners being unsuccessful candidates are estopped from challenging the process of selection. The writ petition being devoid of merit, he prayed for its dismissal.

Mr. Sanyal, learned Counsel appearing for respondent No. 4, contended that the Government retains the authority to relax age-bar in an exceptional case and she being an exceptional candidate, as is evident from her position in the provisional merit list (she is at No. 2), the Commission ought to have placed her case before the Government for consideration instead of sitting tight over the matter on the specious ground that the present petition is pending. This has resulted in delay in sending of recommendation. The question as to whether the respondent No. 4 would be entitled to relaxation in respect of age bar is a question which ought to be decided by the Government in terms of the applicable guidelines and since no decision had yet been taken by the Government, this Court in exercise of powers of judicial review ought not to examine the question on the present petition where absolutely no relief had been claimed against her.

The Court had called upon the Commission to produce before it the records of selection. The records have since been produced and perused. On the factual score, it appears that twenty one candidates had offered their candidature for appointment as Librarian in colleges under the University including six candidates belonging to Schedule Caste community. Out of these six, the 4th and the 11th ranked candidates in the provisional merit list belong to Scheduled Caste community while the respondents 4 and 5 ranked 2nd and 9th therein. The 11th candidate (the last recommended candidate) obtained total marks of 56.61 marks while the second and the first petitioners obtained 17th and 18th ranks securing 48.31 and 43.62 marks respectively. Mr. Mondal is correct in his contention that they are part of the tail of the list.

The contention of Mr. Dutta that number of posts of Librarian in a college depends upon the number of books the college has in its library and, therefore, it was for the Commission to demonstrate before the Court that none of the colleges in respect whereof recruitment process had been initiated has only one sanctioned post of Librarian has not impressed this Court. The plea he has raised does not find place in the pleadings. True it is that in the reply affidavit there is a cursory reference to Maharaja Sirish Chandra College allegedly having a sanctioned post of Librarian and another sanctioned post of Assistant Librarian borne in equal scale of pay. However, the onus lay on the petitioners to demonstrate before the Court that the colleges in respect whereof recruitment process had been initiated vide the said advertisement have more than one sanctioned post of Librarian. The Right to Information Act, 2005 had been enacted by the time the said advertisement was issued. By exercising due diligence, the petitioners could have sought for and obtained information in respect of particulars of requisitions sent by the colleges to the Commission and in particular whether those colleges have one post of Librarian or two posts, one Librarian and one Assistant Librarian, and also whether such vacancy in terms of the applicable reservation roster attracted reservation or not. Full and proper disclosure of facts was necessary in order to seek relief from the Court in the present case. The petitioners have not discharged the onus which could have entitled them to relief, as claimed. This Court is not prepared to conduct a roving enquiry without the foundational facts in the pleadings in support of the contention that has been raised. It is well settled that when a point has not been raised in the petition and no foundation having been laid in the pleadings for such a plea being advanced before the Court, at the stage of argument the Court should not allow that plea to be taken and based thereon allow the petition. Reference in this connection may be made to the decision of the Apex Court reported in National Buildings Construction Corporation Vs. S. Raghunathan and Others, . It is also settled law that there cannot be any reservation in a ''single post cadre'' either directly or by device of rotation of roster point [see Post Graduate Institute of Medical Education and Research, Chandigarh Vs. Faculty Association and Others, ]. Since it has not been shown to the Court by the petitioners with sufficient clarity that the posts for which they had applied do not conform to ''single post cadre'', the action taken by the Commission is unexceptionable and there was no requirement of de-reserving the vacancy by it, as contended by Mr. Dutta.

So far as the allegations levelled against respondents 4 and 5 are concerned, this Court finds that no relief has been claimed against them. Certainly, the petitioners cannot expect relief from the Court without a prayer to that effect. Even otherwise, whether or not they are entitled to relaxation of age-bar has to be considered by the appropriate department of the Government. Since the respondents 4 and 5 have not yet been recommended, the grievance raised by the petitioners, if at all justified, appears to be thoroughly premature.

There is no merit in the writ petition and, accordingly, the same stands dismissed without order for costs.

Urgent photostat certified copy of this judgment, if applied for, be furnished to the parties as expeditiously as possible.