The Court :
1. The petitioners six (6) in number have filed the above write petition seeking a direction upon the respondents to recommend the names or the petitioners to fill up the posts and not to give any effect and/or further effect to the advertisement dated 19th July. 1997, being annexure 'D' to the petition.
2. Facts in brief are that the petitioners are all candidates In the panel prepared in accordance with the rank for the post of Lecturer in Commerce stream by the respondent authorities published on 4th November, 1996.
3. Recruitment to Colleges under different Universities in West Bengal are required to be made through the College Service Commission constituted under the West Bengal College Service Commission Act, 1978. The Commission is required to, inter alia, publish lists of panel of candidates for the post of Lecturer in accordance with the merit in every stream and/ or subject for various Universities after due selection process. The various non-Government Colleges affiliated to the various universities in the State are required to send their requests to the Commission in respect of any vacancy and/or expected vacancies in any particular stream or subject and the Commission is required in accordance with the rank of candidate in the empanelled list to recommend the name of the candidate to that particular college. Such recommendations are to be strictly in accordance with the rank of the candidate in the published panel. The life of the said panel is one year.
4. In the instant case, the panel was published on 4th November, 1996 and its validity is upto 3rd November, 1997. The position and/or rank of the six(6) petitioners in the said list/panel is as follows:
CandidateRankSerial No.
Petitioner No. 1116116Petitioner No. 2108108Petitioner No. 3112112Petitioner No. 4117117Petitioner No. 5118118Petitioner No. 6120120
5. The grievance of the petitioners in the instant case is that some of the candidates lower in the rank/serial number to the petitioners have been recommended for appointment to various Colleges over-looking the claim of the petitioners and thereby violating the statutory mandate of adhering to rank in the published list/panel.
6. In the affidavit-in-opposition failed on behalf of the Commission and affirmed by Shri Nitesh Chandra Ganguly, various allegations contained in the writ petition are denied and it is stated that the Commission in its meeting held on 3.11.97 recommended the names of other candidates whose names were appearing below the names of the writ petitioners from the panel of Commerce under the Calcutta University as well as from other panels of Commerce under Burdwan University and North Bengal University. The names of the writ petitioners along with a few other candidates were not recommended to any College but their names were allotted in respect of four vacancies, two in Umesh Chandra College and two in Heramba Chandra College. The said two Colleges, it is stated, are governed by an order of the Hon'ble Supreme Court of India, whereby in a petition of Brahmo Samaj, the Supreme Court was pleased to direct the Commission to recommend the names of three candidates in respect of one post. According to the Commission, the requisition from the said two colleges were received long after the expiry of the life of panel, the names could not be recommended in respect of four vacancies though the names of 12 (twelve) candidates were allotted in respect of the said two vacancies each in the said two Colleges.
7. The petitioners have also questioned the action of the respondent Commission in recommending the respondents No. 4, 5 and 6 whose names in the panel appeared below the name of the petitioners and who have been appointed to the Colleges where the names were recommended by the Commission and sought a direction for setting aside their appointment and Instead to appoint the petitioners in their place.
8. In so far as the respondent No. 4 is concerned, the affidavit-in-opposition has been filed on his behalf wherein it is stated that he was empanelled for the Calcutta University at serial 109 and in the North Bengal University at Serial No. 91. He has been appointed in the North Bengal University. There can be no doubt that the respondent No. 4 was empanelled at serial No. 91 for North Bengal University and was appointed to that University as per his rank. The petitioners can have no grievance in that behalf.
In so far as the respondent No. 5 is concerned, his serial number is 110 in Calcutta University and serial number 92 in the panel of North Bengal University. He has been appointed, in Allpore Duar College, Jalpaiguri in the zone of North Bengal University. The petitioners, in the circumstances, can have no grievance against the appointment of respondent No. 5 to the College of North Bengal University.
9. In so far as the respondent No. 6 is concerned, his serial number in the panel of Calcutta University is 111 and he has been appointed to A.P.C. College in Calcutta University. Only, the petitioner No. 2 herein who is having the rank/serial number 108 is above the rank of the respondent No. 6, while the remaining petitioners rank below the respondent No. 6. The petitioner No. 2 was allotted to Heramba Ch. College on the same date. i.e. at the said meeting held on 28.10.97, the Commission recommend the respondent No. 6 to A.P.C. College. It is thus apparent that the rule of seniority was adhered to in recommending the name of the respondent No. 6 to A.P.C. College after allotting the petitioner No. 2 (CU/108) to Heramba Ch. College.
10. The learned counsel for the petitioner, however, contended that until the petitioner No. 2 (CU/108) was duly appointed, the recommendation of the respondent No. 6 should not have been made. The said contention cannot be sustained for the reasons that under the regulations by which the Commission is bound, it was required to make the recommendations in the order of ranking. In view of the special circumstances existing with respect to the two Colleges referred to supra, and the orders of the Supreme Court in relation thereto, the Commission made the allotment of petitioner No. 2 in the order of rank and thereafter recommended the respondent No. 6 who is having the rank higher than the other petitioners to A.P.C. College. Equity is in favour of respondent No. 6 and does not permit any Interference with the procedure so adopted by the Commission in recommending the name of the respondent No. 6 to A.P.C. College. No interference is, therefore, warranted with the said recommendation of respondent No. 6.
11. In the light of the contentions urged and the material on record, the controversy in the instant case requires consideration of three questions which need to be decided viz, (I) as to whether the vacancies In the post of lecturer existed within the life of the panel, (II) as to the validity of the action of the Commission In not making the recommendation, but making only allotments and (Hi) as to the Jurisdiction, authority and power of this court to issue any order or direction as prayed for after the life time of the panel.
12. Depending upon the above, the only other question for consideration is with respect to the allotment made by the Commission of certain candidates including the petitioners to the two Colleges i.e. Heramba Ch. College and Umesh Ch. College in respect of the two posts of Lecturer in each of the said Colleges and with respect to allotment of petitioner No. 5 VU/97 (C.U. 118) to Ramnagar College for which the request was made by the said colleges to the Commission.
The allotments so made by the Commission to the said two Colleges are as under:
Name of the College.Name of the candidatesPanel position (Rank/Sl. No.)
Heramba Ch. College., Calcutta.Pankaj Bhattacharyya.C.U./99(City Group) (One Post)Sudir Kr. Dutta.
Manoj SharmaC.U./198
C.U./112Heramba Ch. College, Calcutta.Asim Kr. RoyC.U./105(City Group) (One Post)Amiya Kr. Nayak
Dilip Kr. KarakC.U./106
C.U./107Umesh Ch. College, Calcutta.Debasish HazraC.U./113(City Group) (One post)Lutfan Nesha
Nityalal SenC.U./114
C.U./115Umesh Ch. College,
Calcutta.Subrata KarC.U./116(City Group) (One post)Nibir Goswami
Debasis De SharmaC.U./117
C.U./119
13. The above are in the nature of allotment and not in the nature of recommendations. The reason for the same, as stated in the affidavit-in-opposition was that by virtue of the orders of the Supreme Court, no recommendations could be made to the said posts but only allotments could be made in the proportion of three candidates for one post, the College having the option to choose one of the candidates therefrom.
14. It is the contention of Mr. Shaktinath Mukherjee, learned senior counsel on behalf of the petitioners that by virtue of regulation No. 9 framed in exercise of the power conferred by sub section 1 read with clause 'b' of sub section 2 of section 17 of the West Bengal College Service Commission Act, 1978, the Commission on receipt of the requisition is to recommend a candidate for appointment against an approved post and that only one name from the panel could be recommended against the vacancy. Mr. Mukherjee has referred to the letters of the Principal of Umesh Ch. College and Heramba Ch, College, annexure 'C' series to the writ petition and also to the admissions contained in the affidavits-in-opposition, whereby allotments had been made for the said two colleges and not recommendation as required under the regulation and urged that an appropriate direction be issued to the respondent Commission as also to the two Colleges concerned to consider the said candidates for filling up the said four posts.
15. As regards the petitioner No. 5, the contention of Mr. Mukherjee, learned Senior Counsel for the petitioners is that the petitioner No. 5 Krishna Pada Das. V.U./97(C.O./118) was allotted/recommended for the post of lecturer in Ramnagar College, Mldnapore, but no Intimation was sent to the petitioner to join the said College nor was any Intimation sent to the concerned College for appointing the petitioner No. 5. learned counsel forthe petitioner, therefore, contended that directions need to be issued to the respondent Commission with respect to petitioner No. 5 as the allotment/ recommendation was made within the life time of the panel and decision was taken by the Commission within the life time of the panel.
16. It was further submitted by Mr. Mukherjee that in respect of two Colleges I.e. Raja Piari Mohan College, Hooghly and R.B.C. College, Nathati, 24-Parganas, North, requisition was received well within the life time of the panel but no action was taken by the Commission and, therefore, the respondent Commission be directed to fill up the existing vacancies in the said two Colleges from out of the panel.
17. Learned counsel for the respondent Commission, however, submitted that the requisitions by the two Colleges were not made in the prescribed form and, therefore, the names were not recommended to the said Colleges. Thereafter, the requisitions for the said posts from the two Colleges were received on 24.12.97 which is after the expiry of the life time of the panel.
18. Before we consider the said contentions, it may be appropriate to extract the relevant portions of the regulations No. 8 and 9 which read as under;
'Regulation 8 of the said Regulation provides for panel of candidates which is as follows:
'8(1)(i) on the result of the interview, the Commission shall, for each subject, prepare a panel of candidates found fit for appointment, strictly in order of merit, each such panel ordinarily includes names 50% in excess of the vacancies referred to in Regulation 3 or names in excess of such number as may be considered necessary by the Commission:
(ii) There shall be a separate set of panels further appointment in Colleges under each Universities:
(iii) Each panel remain valid for one year from the date of its finalisation by the Commission.'
19. Regulation 9 of the said Regulation provides for allotment of candidates which is as follows;
'9(1) On receipt of the requisition made by the principal of a College for recommending the name of a suitable candidate for appointment in a vacancy against an approved post, the Commission shall recommend only the name from the panel for appointment against the vacancy. A copy of the letter recommending the name shall be endorsed to the candidate concerned.'
20. A bare perusal of regulation '9' would show that on receipt of the requisition made by the principal of a College for recommending the name of a suitable candidate for appointment in a vacancy against an approved post, the Commission shall recommend only one name from the panel for appointment against the vacancy.
21. The teacher-in-change of Heramba Ch. College by letter No. 50/ HCC/97-98 dated 6.10.97 requested for allotment of two Lecturers in the Commerce Stream (PG. 29 of the annexure to the writ application). In thesaid letter, it is mentioned that the vacancies are existing in the Department or English, Mathematics and Law (Commerce) and another post in Commerce (Business Organisation) is going to fall vacant from 1.1.98 (Vice Professor Manas Kukul Ghosh).' Request was made for allotment of Lecturers. From the said letter, it is apparent that one vacancy exists in the Commerce stream while other vacancies were with respect to English and Mathematics. Also, one vacancy was going to arise from 1.1.98 which is after the life time of the panel.
22. Similarly, teacher-in-charge of Umesh Ch. College by letter dated 1.11.97, requested for filling up two posts of whole time Lecturers by his letter of 1.11.97. The said two posts, however, fall vacant with effect from 31.1.98 and 1.3.98. Although the request was made during the life time of panel in question, the vacancies can be filled up only on and after 31.1.98. i.e. after the life time of the existing panel which expired on 3.11.97.
23. In the circumstances, the only vacancy existing during the life time of panel in question and which could be filled up from the existing panel within its life time is the one In respect of the Heramba Ch. College, request for which was made by the teacher-in-charge on 6.10.97 and allotment was made by the Commission on 28.10.97. The said allotment, however, was not communicated to the Heramba Ch. College for the reason that the requisition was not received in prescribed form and that the allotment was made awaiting the said requisition.
24. On behalf of the respondent Commission, it was sought to be contended that the said vacancy in Heramba Ch. College was In respect of Law (Commerce) and not in the Commerce Stream. In my view the said objection is too technical because the requisition was in the Commerce stream and if the Commission had any doubt as to the actual requirement of the said College, it was for them to have ascertained the same by obtaining requisite clarification from the Heramba Ch. College. If in fact a vacancy was existing in the Commerce stream as stated in the letter dated 6.10.97 in Heramba Ch. College, the same, subject to the verification by the respondent Commission, requires to be filed up from out of the candidates allotted by the Commission to the said College as per the decision taken by the Commission at its meeting held on 28.10.97 and referred to supra from the candidates specified therein.
25. However, the strenuous objection urged before the court on behalf of the respondent was that the requisition was not in the prescribed from and that the allotments were made in anticipation awaiting formal requisition in prescribed form, although request was made by the teacher-in-charge in writing. A perusal of the regulations would show that no particular form has been prescribed thereunder. All that is postulated in regulation '9' is a requisition to be made by the principal of the College. If there are any forms in vogue that would not militate against the action to be taken by the respondent Commission based upon the written request, If received from the principals/Teacher-in-charge of the concerned Colleges. The fact remains that for compliance with procedural formalities, the substantive rights of the candidates In the panel of being considered for the post cannot be defeated.
26. This brings us to the main controversy viz., the power of this court to Issue directions after the life time of the panel. According to the learned advocate for the Respondent Commission, the candidates cannot seek directions nor should this court grant any direction for filling up vacancies after the validity of the panel has, expired on 3.1.97. Learned counsel for the respondent also submitted that the respondent Commission cannot recommend the name of any candidate from non-existing panel as that would be in violation of the Regulations framed under the Act. The further submissions of the learned counsel for the respondent is that the petitioners have applied for fresh empanelment on the basis of the advertisement No. 1/97 in Commerce subject and Interviews of the candidates on the basis of the applications so received have not yet started. The petitioners having applied for fresh empanelment must be deemed to have abandoned their right in respect of their previous panel prepared on the basis of advertisement No.2/95, it was submitted.
27. Mr. Shaktinath Mukherjee referred to and relied upon the Judgment of the Supreme Court in R.S. Mittal V. Union of India, 1995 Supp. (2) SCC 230, in support of his submission that when a person has been selected and empanelled and there is a vacancy which can be offered to him, there is no justification to ignore him for appointment unless where is justifiable reason to decline to appoint a person who is on the select panel. It was further submitted by the learned counsel for the petitioner that in respect of vacancies which existed during the life time of the panel and requisition in respect thereof had been made for filling up the said posts well within the life of the panel, the candidates in the said panel would not losse the right to be considered for appointment from the panel merely because of inaction of the respondent Commission. Such right, it was contended cannot be defeated on the ground that the panel has lost its validity.
28. In Prabir Sinha Roy & Ors. v. The Hon'ble the Chief Justice, High Court, Calcutta & Ors., reported in 1996(1) CHN 497, a learned single Judge of this High Court has considered, somewhat simitar contentions as raised in the present writ petition in the light of the judgments of the Supreme Court as also of this High Court and in paragraphs 38 and 39 observed as under:
'38. In R. S. Mittal's case (supra), the Hon'ble Supreme Court, while recognising the fact that a person on a select panel has no vested right to be appointed to the post for which he has been selected was of the view that he does have a right to be considered for appointment and the appointing authority cannot Ignore the select panel or decline to make the appointment on its whims. The Supreme Court went on to observe that when a person has been selected by the Selection Board and there is a vacancy which can be offered to him, keeping in view his merit position, then, ordinarily, there is no justification to ignore him for appointment. There has to be a justifiable reason to decline to appoint a person who is on the select panel. 39. The same principle has been reiterated in the case of the Secretariat Assistant Successful Examinees Union 1986 (supra), cited by Mr. Sircar in the said case, it was observed that the State is not expected to act in a leisurely manner and treat the matter of selection for appointment to services casually.'
29. In the light of the above, it must be held that the petitioners who are on the select panel have no vested right to be appointed but they dohave a right to be considered for appointment and the Commission is bound to recommend their names, if there is a vacancy with in the life time of the panel and can be offered to the candidates in the select panel, keeping in view the merit position, unless there is a justifiable reason to decline to recommend the name of the candidate from the panel In question.
30. In the instant case, it will be seen that there was no Justifiable reason for not making the allotments of the three candidates to the Heramba Ch. College for filling up the post of Lecturer in the Commerce stream, when the request for the same was made well within the life time of panel on 6.10.97 by the Principal-in-charge.
31. Also, no Justifiable reasons have been stated for not making recommendation for filling up the post of Lecturer in the Ramnagar College, Midnapore. The respondents in their affidavit-in-opposition have not traversed the contentions with respect to the vacancy in Ramnagar College, Midnapore as also with respect to Raja Piary Mohan College, Hooghly and R.B.C. College, Nathati. It is also not very clear whether the vacancies existed and requisitions had been made by the principals of the said three Colleges to the Commission within the life of the panel. Subject to verification of the same by the respondent Commission with respect to the date on which the vacancies arose and requisitions. If any, were made for filling up the said three posts of Lecturers in the Commerce stream, the Commission shall take appropriate action for recommending the names in accordance with the order of seniority and in accordance with the law from out of existing panel after the allotment is made for consideration of appointment of the three candidates allotted to Heramba Ch. College and after appointment, if any is offered to any of the said candidates by the said College. The allottees not so appointed by Heramba Ch. College would be entitled to be considered for recommendation to the vacancies in the three Colleges referred to Supra in the order of their rank in the panel subject of course, to the verification that the vacancy existed and requisitions had been received by the Commission for filling up the said vacancy from the said three Colleges namely, (i) Ramnagar College, Midnapore: (ii) Raja Piari Mohan College. Hoogly and (iii) R.B.C. College, Nalhati, within the life time of the panel i.e. before 3.11.97.
The above exercise shall be completed within a period of two months by the respondent Commission including the concerned Colleges.
With the directions as above, the writ application is accordingly disposed of. There shall be no order as to costs.
All parties are to act on a xerox signed copy of this Judgment duly signed by an Assistant Registrar of this court upon usual undertaking.
32. Application disposed of