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
-----------------------
[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
-----------------------
10
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
-----------------------
[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
-----------------------
10
