Sujoy Halder and Others vs The State of West Bengal and Others

Harish Tandon, J.—The writ petitioners have challenged the purported action of the employment exchange for cancellation of the sponsorship to the District Primary School Council, South 24 Parganas for the post of Primary Teacher.

All the petitioners got themselves register with the employment exchange for the purpose of sponsorship of their candidature on requisition being sent by the concerned District Primary School Council for filling up the post of a Primary Teacher. The District Primary School Council notified the vacancy of the Primary Teacher to the concerned Employment Exchange under the West Bengal Primary School Teachers'' Recruitment Rules, 2001. After receiving the names of the candidates from the concerned Employment Exchange, the District Primary School Council intimated all the sponsored candidate to submit their Bio-data/testimonials. It is alleged in this writ petition that after the submission of the Bio-data/testimonials by the petitioners a notice was posted in the office of the District Primary School Council notifying that the Employment Exchange has cancelled the sponsorship of 298 candidates including the petitioners.

In this writ petition the writ petitioner assailed the aforesaid cancellation of the sponsorship and further prayed for an interim order permitting them to appear in the written test.

On 17.12.2009, an interim order was passed permitting the petitioner No.1 and 5 to appear in the written test schedule to be held on 20.12.2009 provisionally. It was further observed therein that mere participation shall not create any equity in favour of the said petitioners and shall be subject to an ultimate outcome of this writ petition.

By filing the supplementary affidavit it has been brought to the notice of this court that the petitioner No.1 has been found successful in the written test and his name is included in the panel prepared for the successful candidate for appointments. The appointment letter has not been issued because of the pendency of the instant writ petition.

In spite of the direction for filing the affidavits, no affidavit-in-opposition is filed by the respondents but however, the statement of fact received by the learned Advocate appearing for the Diamond Harbour Employment Exchange is produced before this court. It is stated therein that the sponsorship of the petitioner No.1 and 5 was cancelled as their registration was beyond the cut-off date.

The learned Advocate appearing for the petitioner submits that by virtue of the subsequent government order No. 163-EMP dated 18.11.2009, it is notified that the sponsorship which was invalidated because of the registration of the sponsored candidates being invalid, shall be treated as valid sponsorship for the vacancies of the Primary Teacher under Different District Primary School Council within the State. He further submits that the cancellation of the sponsorship without giving an opportunity of hearing offends Article 14 and 16 of the Constitutions. Lastly, he submits that the petitioner No.1 has been included in the panel for appointment to the post of a Primary Teacher and as such should not be denied justice on such technicalities.

The learned Advocate appearing for the state-respondent submits that the said Government Order dated 18.11.2009 has no manner of applicability in as much as the said government order was issued to validate the sponsorship for invalid registration and not the invalid sponsorship. He further submits that the authorities are not bound to afford an opportunity to the petitioner while canceling the sponsorship. Lastly he submits that the different Employment Exchanges have set up a separate cut-off date for the purpose of sponsorship to the District Primary School Council and the same does not offend Article 14 and 16 of the constitutions unless it is unrealistic, unreasonable and irrational.

Having considered the respective submissions made at the bar admittedly the names of the petitioners were sponsored by the concerned Employment Exchange to the District Primary School Council, South 24 Parganas for the post of the Primary Teacher within the District. The Employment Exchange subsequently cancelled the sponsorship of 298 candidates including the petitioner herein vide notice dated 25.06.2007, it would be relevant to reproduce the said letter which runs thus:

To

The Chairman,

District Primary School Council,

South 24 Parganas,

19B, Ballygunge Stn. Road,

Kolkata - 700 019

Sub : Cancellation of particulars of candidates submitted by the DEE, Diamond Harbour against the post of Primary Teachers.

Sir,

On thorough enquiry of the office records of DEE, Diamond Harbour like submission list for the vacancy of Pry. Teachers Candidates'' Identity Cards & relating register (X-63) I have come to the conclusion that the candidatures of the 298 candidates mentioned in the enclosed sheet are not within the basis of selection for the said post.

You are, therefore, requested to kindly not consider their candidatures against the post of Primary Teacher so that they may not get any interview letter from your end.

Enclo: As stated/

Yours faithfully,

(R. C. Dalut)

Deputy Director of Employment,

South 24 Pgs.

Copy forwarded to Employment Officer-in-Charge, D.E.E., Diamond Harbour with the advice the display the enclosed list of candidates whose names have been forwarded to the post of Pry. Teachers under D.P.S.C., South 24 Pgs. Their Regn. may please be cancelled under his Seal & Signature.

(R.C. Dalut)

Deputy Director of Employment, South

24 Pgs.

The said letter does not contain any reason for the cancellation of the sponsorship of 298 candidates including the petitioners herein. However, in furtherance thereof, another communication was made on 05.08.2008 incorporating the grounds for such cancellation which reads thus:

To

The Chairman,

District Primary School Council,

South 24 Parganas,

19B, Ballygunge Station Road,

Kolkata- 700 019.

Sub : Recruitment of Primary Teachers.

Sir,

In earlier correspondences in connection with the recruitment of Primary Teachers I have cancelled particulars of candidates sponsored by the Employment Exchanges of the district of South 24 Parganas on the following grounds :-

1) Beyond basis of selection, Basis of selection made by five Employment Exchange was already informed.

2) Non-submission of Caste Certificates or Change of Category or physically Handicapped Certificates. Example :-Particulars of one candidate were sponsored as S/C or O.B.C. or P/H candidates by an Employment Exchange but the candidate does not actually belong to S/C or OBC or P/H candidate.

3) Seniority or Registration, Example :- It is found that the candidate''s name was sponsored mentioning seniority of Registration as X02.10. (N.C.O). It has been informed that the following

N.C.O.s (National Code of Occupation) are understood as :

X02.10 - Class VIII passed but below non-matix passed.

X01.10 - Matric or Madhyamic Exam. Passed.

X01. 20 - H.S. passed.

X01.30/X01.40/X01.50 - Graduate in Arts/Science/Commerce respectively.

4) Year of passing out of Examination, Example : - It is found that one candidate belonging to General Category passed in the year 1996. His name was sponsored but the year, 1994 is the basis of selection.

5) Insertion of name in the Employment Exchange''s Register (X-63) :-It appears from the Register that in the blank pages of Register one candidate''s particulars are inserted and it is understood that the handwriting or ink is different ( In this occasion the name of the candidate should be verified with the Register).

6) Checking of Identity Card (X-10) :- It is observed that on the body of X-10 the renewal date is written as Directorate''s (DTE''s) Order/Permission. This is happened specifically in the matter of insertion of name in the Register.

7) Candidate residing outside jurisdiction :- It appears from the sponsored lists that father''s names of some candidates have not been mentioned, In place of father''s name, C/o is written. It is also found on enquiry that in such cases most of the candidates addresses are same and these candidates resident outside the jurisdiction of sponsoring exchange. Only Ration Card of the sponsored candidate will be helpful to identify the fake address of the candidate.

Your have been collecting bio-data of the sponsored candidates. During checking of their bio-data, I would request you to kindly take into consideration of the above noted facto/grounds so that the fake candidate may not got chance of interview.

Your are at liberty to cancel or reject particulars of sponsored candidates on any of the above noted grounds without referring the matter to this office. Only doubtful cases may please be referred to this office.

Yours faithfully,

( R.C. Dalui)

Deputy Director of Employment

South 24 Pgs.

On bare perusal of the same it appears that the several ground has been assigned without specifying which of the petitioners comes squarely within a particular ground. The aforesaid letter is issued vaguely and there is no certainty about the applicability of which of the ground to which of the petitioner, for example, in respect of ground No.5 it is stated that one candidate''s particular is inserted in the blank pages of the register in different handwriting or ink. From the ultimate instruction to the District Primary School Council to apply any of the grounds at the time of verification of the Bio-data, it is impossible and/or improbable that the District Primary School Council would be able to find out the said one candidate without specifying his name.

The candidate cannot claim any right for appointment to the post but has a right to be considered for such post. In case of Dilip Pradhan Vs. The State of West Bengal and Others, the writ petitioner therein was allowed to participate in the entire selection process but his appointment was withheld as his name is included in the list of 298 candidates whose sponsorship is subsequently cancelled by the concerned Employment Exchange. It was further observed that the point of mistake has not been taken in the pleading filed therein and in such perspective it is held:

While it is true that there may be cases where some decisions are taken erroneously and such decisions do not create any judicially enforceable legal right, in the facts of the instant case it is certainly not so. The concerned Council had initially asked for names of candidates from the various employment exchanges in the district of South 24-Parganas and accepted the candidature of the writ petitioner, upon his name being so sponsored by the concerned employment exchange. The writ petitioner was allowed to go through the entire selection process as a sponsored candidate, notwithstanding the fact that the Council was in receipt of the letter dated 22nd December, 2006, issued by the Deputy Director of Employment, South 24-Parganas. Thus, the stand taken by the added respondent No.6, being the Joint Director of Employment, South 24-Parganas, that the sponsorship of the name of the writ petitioner was a mistake, falls flat at this belated stage. Curiously enough, it is noticed that ''mistake'' is not even the stand taken by the concerned Council in its affidavit. In any event, an open recruitment process should allow and encourage as wide a participation as is possible and such participation cannot be narrowed or whittled down by introducing extraneous and superfluous reasoning only for the purpose of restricting it; which, in effect, strikes at the very root of an open process of selection by compromising with the quality of recruitment and the fairness and transparency associated with it.

Undoubtedly, the writ petitioner participated in the recruitment process as a sponsored candidate. His sponsorship shall be deemed to be valid and the letter dated 22nd December, 2006, issued by the Deputy Director of Employment, South 24-Parganas, shall have no manner of application in the facts of the instant case. In the event he has come within the zone of consideration in the category he applied for, the Chairman, District Primary School Council, South 24-Parganas, shall forward his name to the office of the Director of School Education, West Bengal, within a period of six weeks from date. Immediately on receipt of the name of the writ petitioner, the Director of School Education, West Bengal, shall take appropriate steps in the matter and grant approval in favour of the writ petitioner, in the event he conforms to and fulfils all statutory requirements necessary for the purpose of securing his appointment. It is expected that the Director of School Education, West Bengal, shall complete the process as expeditiously as possible, preferably within a period of four weeks, but not later than six weeks from the date of receipt of the communication from the office of the Chairman, District Primary School Council, South 24-Parganas.

Reverting back to the instant case, although the petitioners were allowed to submit the Bio-data/testimonial on the basis of the said sponsorship but were not allowed to participate in the written test. It is only the petitioner No.1 and 5, who were considered by this court to be eligible to sit in the written examination in terms of the statutory rules, were permitted to sit in the written examination. After participation in the written examination, the petitioner No.1 could only be found successful but the appointment is not given due to the pendency of the instant writ petition.

As held in case of Dilip Pradhan (supra) unless a case of mistake is made out in the affidavit (which is not filed in this case) the letter, by which the sponsorship of the petitioner is cancelled, is not applicable.

The petitioner Nos. 2,3 & 4 were not favoured with the interim order to participate in the written test and admittedly they did not appear therein and cannot get any relief in the instant writ petition after the completion of the selection process long back.

Furthermore, the petitioner NO.5 who was otherwise permitted to appear in the written examination could not be found successful.

Thus there is no justification in withholding the appointment of the petitioner No.1 who is otherwise found eligible but because of the cancellation of the sponsorship by the concerned Employment Exchange and such letter of cancellation has been held in case of Dilip Pradhan (supra) to be not applicable in absence of any positive case of mistake being made out in the pleading.

There is another aspects which needs clarification by this court the petitioners have relied upon a government order dated 18.11.2009, by which the sponsorship which becomes invalid was directed to be considered as valid sponsorship by the different District Primary School Council of the State for filling up the vacancies of Primary Teachers, in support of the contention that the sponsorship is no longer invalid. Before dealing the said government order it would be profitable to quote the same as below:

WHEREAS, the recruitment process of Primary Teachers in the state is underway.

AND WHEREAS, a number of candidates were sponsored by the Employment Exchanges several years back for the purpose;

AND WHEREAS, registrations of some "Exchange Sponsored Registrants" are not found to have been valid at the time of sponsorship;

AND WHEREAS, the registrations of some "Sponsored Registrants", which were otherwise valid at the time of sponsoring have become invalid in the meantime;

NOW THEREFORE, it is hereby ordered that the Employment Exchange Registrations of all enrolled candidates whose names were sponsored by the Employment Exchanges for vacancies of Primary Teachers under different District Primary School Councils of this State till the date of issue of this order may be deemed to be considered valid for the purpose of State-wide recruitment to the posts of Primary Teachers now being undertaken.

Joint Secretary

No. 163/1 (2)- Emp

Dated-18.11.09

Copy forwarded for information and necessary action to :

1) The principal Secretary, School Education Department, Bikash Bhavan, Salt Lake, Kolkata- 700 091.

2) The Director of Employment, West Bengal

Joint Secretary"

On meaningful reading of the said government order, it is manifest that the sponsorship which becomes invalid because of the invalid registration or invalidation of the registration subsequent to the sponsorship are directed to be considered as valid sponsorship. Therefore, if the sponsorship is invalidated because of the invalidation of the registration then the aforesaid government order applies with full force and rigour.

But in the instant case the sponsorship is not cancelled because of the invalidation of the registration but on the ground that the name of the petitioners could not have been sponsored because of the cut-off dates having fixed for such sponsorship.

It is hereby made clear that this court has not dealt the other grounds assigned in the said letter of cancellation of the sponsorship as the same is irrelevant for the instant purposes. There is no case of invalid registration and as such this court refrained from making any observation on the above government order in the instant writ petition.

In view of the findings made there is no hesitation to hold that the District Primary School Council, South 24 Parganas cannot withheld the appointment of the petitioner No.1 who is otherwise found successful in the recruitment process.

The Chairman of the said council is directed to recommend the name of the petitioner No.1 to the Director of the School Education for granting approval within three weeks from date.

The Director of School Education shall grant necessary approval within a week from the date of the receipt of such recommendation and ultimately upon receiving the approval the Chairman, District Primary School Council shall issue the appointment letter to the petitioner No.1 within 4 week.

The writ petition is thus disposed of.

There shall be no order as to costs.

Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.