S.B. Sinha, J. - (1.) This appeal is directed against a judgment and order dated 10th March, 2000 passed by a learned Single Judge of this Court whereby and whereunder the writ application filed by the appellant herein has been dismissed.
(2.) The petitioner-appellant filed an application, inter alia, praying for issuance of a writ of or in the nature of Mandamus directing the respondents to allow him to appear at the interview inter alia, on the ground that had the recruitment rules been followed it would have applied for the post in question, despite the fact that his name had not been sponsored by the employment exchange. The fact that the petitioner's name was registered in the employment exchange is not in dispute. The learned trial Judge, however, had proceeded on the basis that the petitioner ought to have made an averment to the effect that non-publication of the said vacancy in the newspapers was not known to him and thus he was not in a position to file an application.
(3.) The only question which arises for consideration, in view of the submission made by Mr. Dasgupta, learned counsel appearing on behalf of the State, is as to whether the recruitment rule which had been framed under the orders of the Governor and thus satisfies the requirements of Article 162 of the Constitution of India could be modified by a Circular letter dated 28.7.99. The recruitment rules have been framed by the State in respect whereof circular letter had been issued in terms of a direction of the Governor to the effect that he was pleased to decide that the scale of pay method of recruitment, appointing authority, age limit and minimum educational qualifications for the post of Gram Panchayat Sahayak which had been created ley the Department of Panchayat as stated in its Memo dated 16.11.98. The said circular letter containing the aforementioned averments was issued under the signature of the Principal Secretary to the Government of West Bengal in terms of the provisions of Article 166(3) of the Constitution of India being directory in nature, and the said Memo as indicated hereinbefore, having been issued under the direction of the Governor, must be held to have satisfied the requirement of Article 162 of the Constitution of India. The said memorandum, therefore, had the force of law. Once methods of recruitment have been is laid down under an order which has the force of a statute, the concerned authorities were bound thereby. It may also be placed on record that in the said Recruitment Rules detailed provisions have been laid down the relevant provisions of the Statute being clauses 3(a) and 3(b)(i) of the Memorandum dated 4.12.98 are to the following effect:- "3(a) For the purpose of recruitment against any vacancy in the post of Sahayak of a Gram Panchayat, the Selection Committee at the Block Level shall determine the nature of the vacancy following a block-wise roster of vacancies to be maintained in pursuance of the statutory provisions and circulars of the State Government in the Labour Department and the Backward Classes Welfare Department issued from time to time laying down the nature, extent and procedure for reservation of posts." "(b)(i) On determination of the nature of vacancy, the Recruitment Committee shall send requisition to the appropriate Employment Exchange within the district for names of the eligible candidates and also simultaneously publish notice in at least two newspapers publish within the district in the manner specified in this Department, Memo No. 2701-PN dated 28.7.98 inviting applications from the intending candidates eligible for the posts." In the said recruitment rules it has further been provided - "Notwithstanding anything to the contrary contained in this order, an employee or a Gram Panchayat eligible for appointment to the post of Sahayak, on his/her option or an eligible casual worker with requisite qualifications working in the establishment of the Gram Panchayat upto 31.12.91 (as distinguished from the purely scheme-specific appointments meant for implementation of the relevant schemes only and such appointees being paid out of such scheme fund only) may be given an opportunity along with other candidates (sponsored by Employment Exchange and responding to the advertisement published in the local newspapers) to complete for appointment to the post of Sahayak of a Gram Panchayat." However, a circular letter was issued from the Deputy Secretary, Government of West Bengal to the Director of Panchayat and Rural Development, West Bengal, relevant portion whereof is to the following effect:- "In conformity with a widely accepted interpretation of a judicial pronouncement in the apex court, the State Government in the Department of Panchayat and Rural Development issued an order bearing No. 2701/PN/N/III/2A-25/97, dated July 28, 1998 enjoining that any Panchayat Body in three tiers, should also consider the candidatures of the persons whose applications are received in response to the advertisements published in the newspapers in addition to candidature of the persons whose, names are sponsored by the Employment Exchange(s) on requisition. Since then, the aforesaid procedure has been considered in a number of courts of law and the presently acceptable position is that for the purpose of recruitment in a post in the Government or a statutory body, the procedure to take into consideration only those names which are sponsored by the Employment Exchange(s) is lawful and does not in any way offend the provisions enshrined in Article 14 or Article 16 of the Constitution. It was also held that in a procedure for recruitment, undue delay as also any arbitrariness should be eliminated. Considering the legal interpretation as currently obtained in this matter, it is hereby decided as follows:- (a) Memo No. 2701/PN/N/III/2A-25/97 dated 28th July, 1998 of this Department and subsequent orders incidental thereto, will henceforth be treated as cancelled; (b) If for the purpose of filling up any vacancy, an advertisement has already been published, all applications received within the due date from the eligible candidates, will be considered along with candidature of the persons whose names are obtained from the Employment Exchange(s) in the manner as laid down in No. 2701 dated 28.7.98 as referred to earlier." There, thus, cannot. be any doubt whatsoever that the provisions of the aforementioned recruitment rules were bound to be followed by all concerned. The petitioner has categorically stated that the mandatory provisions of the recruitment rules had not been complied with and thus entire recruitment process was bad in law. The learned Judge has not considered this aspect of the matter at all.;