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Thursday, August 15, 2013

service matter - In the absence of public Advertisement, no posts should be filled from the selected list =there was no advertisement for direct recruitment the select list was quashed.the apex court held that There can be no scintilla of doubt that there was requirement of advertisement for inviting the names. However, as we perceive, the present case projects a totally different picture. = sec. “4. Vacancies to be filled up by persons sponsored by employment exchange. - After the commencement of this Act, all vacancies in the posts in any Government establishment or establishment of any public undertaking, statutory body, Government company or local authority shall be filled up by such persons as may be sponsored by an employment exchange.” - sec.6 Employment exchange to submit list of registrants to appointing authority – The employment exchange shall, on receipt of the requisition under section 5, submit to the appointing authority a list of registrants, other than the registrants who belong to the exempted category, in order of seniority determined on the basis of the length of the period of registration in that employment exchange and in accordance with such principle of rotation as the Director of Employment may prescribe from time to time, and also in conformity with the qualification, age, experience or other requirement, if any, as stated in the requisition.”- The Act provides that the persons are to be selected from the candidates sponsored by the employment exchange. It is admitted by the learned counsel for the State that on the basis of the statutory command names were called for from the employment exchange. As stated earlier, he would clarify that though the names were called for from the employment exchange, the process of selection was not restricted to only the sponsored candidates. In essence, the submission of the learned counsel for the appellants and the learned counsel for the State that when thousands of candidates had appeared, though not sponsored by the employment exchange, the panel prepared after following due procedure should not have been quashed. - There can be no scintilla of doubt that there was requirement of advertisement for inviting the names. However, as we perceive, the present case projects a totally different picture. The number of posts available was 1446 in the group ‘D’ category. For the said posts more than 57000 candidates competed. On a querry being made, the learned counsel for the State would admit that the vacancies have not been filled up because of pendency of litigation. Regard being had to the special features of the case, we are inclined to set aside the order of the High Court and that of the tribunal and we so do. We further direct the State Government to fill up the posts available from among the select list. We may hasten to clarify that if any one whose name features in the select list has been appointed in any other department or statutory organization or Government company, he cannot claim an appointment in the Department of Irrigation and Waterways. We further direct the respondent-State and its functionaries to adjust respondents 1 and 2 and extend them the benefit of appointment. The appointees cannot claim any seniority with retrospective effect as that might create cavil amongst the appointees in other departments at earlier point of time. The aforesaid exercise shall be completed within a period of eight weeks from today. 13. The appeals are disposed of in above terms. However, there is no order as to costs.

                      published in http://judis.nic.in/supremecourt/filename=40651
  IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                    CIVIL APPEAL Nos. 6748-6749   OF 2013
               (Arising out of SLP (C) Nos. 6177-6178 of 2012)

Buddhadeb Ruidas & ors. etc. etc.            ... Appellants

                                   Versus

State of West Bengal and ors.                     ...Respondents


                                    With

                    CIVIL APPEAL Nos.  6750-6751  OF 2013
              (Arising out of SLP (C) Nos. 23631-23632 of 2012)

                                    With

                       CIVIL APPEAL No. 6752  OF 2013
                 (Arising out of SLP (C) No. 21677 of 2013)

                                    With

                      CIVIL APPEAL No.    6753  OF 2013
                 (Arising out of SLP (C) No. 21679 of 2013)





                               J U D G M E N T


Dipak Misra, J.



      Leave granted in all the special leave petitions.


   2. Regard being had to the similitude of the seminal  issue  that  arises
      for consideration in all these appeals they were  heard  together  and
      are disposed of by a common judgment.
For the  sake  of  clarity  and
      convenience we shall state the facts from Civil Appeal arising out  of
      SLP (C) Nos. 6177-6178 of  2012)  wherein  the  challenge  is  to  the
      judgment and order dated 11.11.2011 in WPST Nos. 269 and 275  of  2011
      passed by the High Court of Calcutta.

   3. The factual score as depicted is that  the  Deputy  Secretary  (Rev.),
      Irrigation and Waterways Directorate of the Government of West  Bengal
      vide  memo  No.  773-IE  dated  29.6.2006  directed  the  Director  of
      Personnel and Ex-Officio Chief Engineer, Irrigation and Waterways,  to
      issue  instructions  to  the  Superintending  Engineers  of  different
      circles to call for names of eligible candidates  for  recruitment  to
      1446 group ‘D’ posts under the irrigation and  Waterways  Directorate,
      Government of West Bengal.
 In pursuance of  the  said  direction  the
      departmental authorities in accordance with  Section  4  of  the  West
      Bengal Regulation of Recruitment in  State  Government  Establishments
      and  Establishments  of   Public   Undertakings,   Statutory   Bodies,
      Government Companies and Local Authorities Act, 1999 (for brevity ‘the
      Act’) requisitioned names from many an employment exchange.  
At  this
      juncture, many aspirants approached  the  West  Bengal  Administrative
      Tribunal (for short ‘the tribunal’)  which  permitted  the  applicants
      therein to participate in the selection process.  
Eventually,  57,437
      candidates took part in the selection process.
 It is apt to note here
      that 24520 candidates  were  sponsored  by  the  employment  exchange.
      After following due procedure a select list of the selected candidates
      was prepared and the same was published on 24.7.2010.

   4. As the facts would unfurl, the respondents 4 and 5 preferred O.A.  No.
      454 of 2010 before the tribunal assailing the  process  of  selection.
      The tribunal by its order dated 26.8.2010 declined to pass an  interim
      order which was challenged before the High Court in WPST  No.  542  of
      2010 wherein the High Court passed an order  that  if  any  panel  had
      already been prepared, no effect should be given to such a  panel  and
      no appointment from the said panel should be given  till  disposal  of
      the  original  application  before  the  tribunal.  
Thereafter,   the
      tribunal by its judgment dated 30.8.2011, after hearing the applicants
      and some of the selectees who were impleaded as parties and the  State
      of West Bengal, came to hold that as the Department had not advertised
      the posts in the newspapers and the  entire  recruitment  process  had taken place by calling names from the employment exchange  and  hence, the selection was vitiated.
Be it noted, similar orders  were  passed
      by the tribunal at the instance of other applicants in other  original
      applications and all the aggrieved parties approached the  High  Court
      in different writ  petitions.  
The  High  Court  on  different  dates
      disposing of the writ petitions has concurred with the view  expressed
      by the tribunal by opining that the plea of limitation  raised  before
      the tribunal was  sans  substance  and  the  restricted  selection  by
      calling for names from the employment exchange invites  the  frown  of
      Articles 14 and 16 of the Constitution and, accordingly, dismissed the
      writ petitions.  Being aggrieved by the aforesaid orders, the  present
      appeals have been preferred by way of special leave.

   5. We have heard Mr. L. Nageswara Rao, learned senior  counsel,  and  Mr.
      Chanchal Kumar Ganguli, learned counsel for  the  appellants  and  Mr.
      Kalyan K. Bandopadhay, learned senior counsel for the State.   Despite
      notice, no one has appeared for the contesting respondents.

   6. On a perusal of the orders passed by the tribunal and the  High  Court
      it is evincible that on  a  singular  ground,  namely,  there  was  no
      advertisement for direct recruitment the select list was quashed. 
 For
      arriving at the said  conclusion  reliance  has  been  placed  on  the
      authority in Excise  Superintendent,  Malkapatnam,  Krishna  District,
      A.P. V. K.B.N. Visweshwara Rao and others[1].
The principle laid down
      in the aforementioned authority has been reiterated  in  Union  Public
      Service Commission  v.  Girish  Jayanti  Lal  Vaghela  and  others[2],
      National Fertilizers Ltd. and  others  v.  Somvir  Singh[3],  Nagendra
      Chandra and others v. State of Jharkhand and others[4], State of Bihar
      v. Upendra Narayan Singh and others[5] and State of Orissa and Anr. v.
      Mamata Mohanty[6].

   7. There cannot be any dispute with regard to the  aforesaid  proposition
      of law.  However, Mr. Nageshwar Rao, learned senior counsel,  and  Mr.
      Chanchal Kumar Ganguli,  learned  counsel  for  the  appellants  would
      submit that the obtaining factual matrix exposits a different scenario
      altogether.
They would submit that Section 4 of the Act lays  down  a
      different process and that being  the  legislation  operating  in  the
      field, it was obligatory on the part of  the  tribunal  and  the  High
      Court to accept the stand put forth by  the  affected  parties.   They
      would  further  contend  that  when   more   than   57000   candidates
      participated in the selection process, it should not have been treated
      to be a selection  restricted  to  the  candidates  sponsored  by  the
      employment exchange.

   8. The learned  counsel  for  the  State  supporting  the  stand  of  the
      appellants submitted that the functionaries of the State followed  the
      mandate of Section 4 and that  is  how  names  were  called  from  the
      employment  exchange  and  thereafter,  at  the  district  level  wide
      publicity was given and also on the basis of the order passed  by  the
      tribunal several thousand candidates appeared and regard being had  to
      the totality of circumstances, it should have been treated as  a  fair
      selection and the High Court should not have concurred with  the  view
      expressed by the tribunal in quashing the panel,  for  the  candidates
      were selected in respect  of  group  ‘D’  posts  and  they  come  from
      absolutely poverty-stricken background.  The  learned  senior  counsel
      would further apprise  us  that  vide  memorandum  No.  101-EMP  dated
      25.7.2008 the State Government has already  directed  that  henceforth
      all appointing authorities in the State Government  establishment  and
      the establishments of Public Undertakings Statutory Bodies, Government
      companies and local authorities shall, in addition to obtaining  names
      from the employment exchange, give wide publicity to fill up vacancies
      in newspapers having wider circulation and display  the  vacancies  on
      the offices’ notice boards in such a manner as  to  ensure  reasonable
      opportunity  of  response  from  the  eligible  candidates   for   due
      consideration  of  their  candidature  in  the  recruitment   process.
      However,  he  would  contend  that  keeping  in  view  the   statutory
      provision, names were called from employment exchange and  when  large
      number of candidates had appeared in the selection process, it was not
      appropriate on the part of the tribunal and  the  High  Court  to  set
      aside the same on at the behest of two applicants.

   9. At this stage we may profitably refer to Section 4 of  the  Act  which
      reads as under: -

      “4.   Vacancies to be filled up by  persons  sponsored  by  employment exchange. -
After the commencement of this Act, all vacancies  in  the
      posts in any Government establishment or establishment of  any  public
      undertaking, statutory body, Government  company  or  local  authority
      shall be filled  up  by  such  persons  as  may  be  sponsored  by  an
      employment exchange.”

  10. Section 6 of the Act reads as follows: -

      “6.   Employment exchange to submit list of registrants to  appointing authority  –  
The  employment  exchange  shall,  on  receipt  of   the requisition under section 5, submit to the appointing authority a list  of registrants, other than the registrants who belong to the  exempted  category, in order of seniority determined on the basis of the  length  of the period of registration  in  that  employment  exchange  and  in  accordance  with  such  principle  of  rotation  as  the  Director  of Employment may prescribe from time to time,  and  also  in  conformity  with the qualification, age, experience or other requirement, if  any,  as stated in the requisition.”

  11. We have referred to the aforesaid provisions only  to  appreciate  the
      statutory scheme.
The  Act  provides  that  the  persons  are  to  be
      selected from the candidates sponsored by the employment exchange.  
It
      is admitted by the learned counsel for the State that on the basis  of
      the statutory command  names  were  called  for  from  the  employment
      exchange.  
As stated earlier, he would clarify that though  the  names
      were called for from the employment exchange, the process of selection
      was not restricted to only the sponsored candidates.  
In essence,  the
      submission of the learned counsel for the appellants and  the  learned
      counsel for the State that when thousands of candidates had  appeared,
      though not sponsored by the employment exchange,  the  panel  prepared
      after following due procedure should not have been quashed.

  12. There can be no scintilla of  doubt  that  there  was  requirement  of
      advertisement for inviting the names.  
However, as  we  perceive,  the
      present case projects a totally  different  picture.   
The  number  of
      posts available was 1446 in the group  ‘D’  category.   
For  the  said
      posts more than 57000 candidates competed.  
On a  querry  being  made,
      the learned counsel for the State would admit that the vacancies  have
      not been filled up because of pendency of  litigation.   
Regard  being
      had to the special features of the case, we are inclined to set  aside
      the order of the High Court and that of the tribunal and we so do.  We
      further direct the State Government to fill  up  the  posts  available
      from among the select list.  
We may hasten to clarify that if any  one
      whose name features in the select list has been appointed in any other
      department or statutory organization or Government company, he  cannot
      claim an appointment in the Department of  Irrigation  and  Waterways.
      
We further direct the respondent-State and its functionaries to adjust
      respondents 1 and 2 and extend them the benefit of  appointment.   
The
      appointees cannot claim any seniority  with  retrospective  effect  as
      that might create cavil amongst the appointees in other departments at
      earlier point of time.  
The  aforesaid  exercise  shall  be  completed
      within a period of eight weeks from today.

  13. The appeals are disposed of in above  terms.   However,  there  is  no
      order as to costs.



                            ..............................................J.
                                                                [H.L. Dattu]






                            ..............................................J.
                                                               [Dipak Misra]

New Delhi;
August 13, 2013

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[1]    (1996) 6 SCC 216
[2]    (2006) 2 SCC 482
[3]    (2006) 5 SCC 493
[4]    (2008) 1 SCC 798
[5]    (2009) 5 SCC 65
[6]    (2011) 3 SCC 436

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