Hadaitullah Mallick vs State of West Bengal & Ors.

Re : C.A.N. 4926 of 2018

None appears on behalf of the respondents in spite of service. No accommodation is prayed for. Let affidavit of service be kept on record. This is an

application arising out of an appeal preferred against a judgment and order dated January 29, 2015 passed in the writ application.

the operative portion of the above judgment is quoted below:

“W.P. No.18275 (W) of 2014 is disposed of by only directing the respondents to not offer appointment to any general category candidate against

the OBC (A) or OBC (B) posts under the 2012 recruitment process without exhausting all candidates in either OBC category.â€​

Having heard the learned Counsel appearing for the applicant/appellant as also after considering the order impugned to this appeal, we find that the

case which had been made out before the learned Single Judge was that theappellant was a candidate belonging to the OBC (A) category. Though

there was no suitable candidate in OBC (B) category, the respondent authorities were seeking to fill up the OBC (B) category berths with general

candidates beforeoffering the same to OBC (A) candidates. Taking into consideration the aforesaid submission as also after considering the results of

the written examination of the candidates including that of the appellant the writ application was disposed of.

Today, an attempt is made before us to make out a different case that there was an attempt by the respondent authority to fill up the berths of

earmarked for candidates belonging to the OBC (A) category by the candidates belonging to the OBC (B) category. After considering the reply dated

June 6, 2014 to the application of the petitioner filed under the Right to Information Act (at page 87 to this stay application), we find that following

informations were supplied to the appellant:

“1. The applicant Hadaitullah Mallick obtained 20 marks in the written examination for the post of Peon.

Three (3) O.B.C.-A candidates have joined till date.

Out of the O.B.C. Candidates qualified in the written examination for the post of Peon, there were only 6 (six) candidates from O.B.C-.A category

who had obtained the qualifying marks.

Two (2) O.B.C.-B candidates were selected against two OBC-A vacancy.â€​

It appears from the aforesaid informations that the appellant obtained 20 marks in written examination. Out of the OBC candidates qualified in the

written examination for the post of peon, there were only six candidates from OBC (A) category who had obtained the qualifying marks. The rest of

the vacancies were filled up by the candidates belonging to OBC (B) category. So, it was not in dispute that the appellant failed to obtain the qualifying

marks for finding place in the panel prepared for the selected candidates.

That has also been stated by the appellant in paragraph 12 of the writ application (at page 50 to the application for stay). From the panel prepared for

appointment of peon under OBC (A) and OBC (B) category, which is annexed to this stay application (at page 83 of stay application), we find that

first six vacancies were filled up by the candidates belonging to OBC (A) and the rest of the two vacancies were filled up by the candidates belonging

to OBC (B) category.

Therefore, we do not find any reason to interfere with the order impugned to this appeal. Apart from the fact that an attempt is made to make out a

new case in this appeal. More so, it appears from the order impugned to this appeal that the learned Advocate for the appellant got the scope of

verifying the relevant records which had been produced before the learned Single Judge in course of hearing of the writ petition. With regard to the

decision dated July 2, 2018 in the matter of The West Bengal University of Health Sciences and Ors. vs. Dr. Paban Mandal and Ors.

(In Re: ASTA 16 of 2018 in AST 43 of 2018), which is relied upon by the learned Advocate appearing for the appellant, we find that the position of

the appellant in the merit list was taken into consideration for passing an order in his favour. According to the facts and circumstances of the above

case, there was no dispute with regard to the higher position of the candidate in the merit list. In view of the above distinguishable facts and

circumstances of that case, the same does not help the appellant in this case.