- (1.) The writ Petitioner has been working in Prabhat Kumar College, Contai in the district of Purba Medinipur as a clerk on a temporary basis since the year 2001. This college is affiliated to the Vidyasagar University regulated by Vidyasagar University First Statutes 1983. The dispute in this matter is with regard to filling up the post of a clerk for which a regular vacancy has been declared. Appointment to such a post is guided by Clause 163 of the Vidyasagar University First statutes.
(2.) The provision relating to appointment to the post of a clerk is referred to in Statute 160(ii)(a). In my own opinion, as per the rules, the said post ought to have been filled up through the process of direct recruitment. In the case of W.P. No. 1349(W) of 2003, Jagabandhu Barman v. State of West Bengal and Ors. considering a similar rule concerning the North Bengal University, an Hon'ble Single Judge of this Court held: After hearing the learned Advocate for the parties and after going through the aforesaid materials on record I find that in view of the provisions contained in Statutes 3(a)(ii) post of Library Assistant should be filled up by direct recruitment as mentioned in Statute 5(b). However, Clause (c) of the said Statute 5 creates an embargo over Clause (b) according to such Clause (c) while filling up vacancies in the posts referred to in Sub-clause (ii) of Clause (a) of Statue 2 efficient and experienced members of the lower subordinate staff having the requisite qualifications shall get preference over others. Conjoint reading of Clause (b) and (e) makes it clear that for the purpose of filling up any post referred to in Sub-clause (ii) Clause (a) of Statute 2 an employer must first ascertain whether there is any applicant from the lower subordinate staff of the college having the requisite qualification. If there is any such candidate, appointment should be given from amongst those as in the said Clause (c) it is specifically mentioned that they shall get preference over others. In the event, there is no such applicant from the lower subordinate staff in such a situation an employer will be to fill up by direct recruitment by way of sponsorship from the employment exchange.
(3.) In my order passed in this proceeding on 19 November 2009, I had respectfully disagreed with the view of the Hon'ble Judge expressed in the said judgment as I was of opinion that the said post ought to have been filled up by the process of direct recruitment. In these circumstances, I had referred the matter to His Lordship the Hon'ble Acting Chief Justice for appropriate direction, upon formulating the following question: (i) Whether for the purpose of filling up of a vacant post specified in Statute 160(a)(ii) of the Vidyasagar University First Statues, 1983 at a time the memorandum No. 924-Edn (CS)/10M-10/03 dated 26 November 2007 and 585-Edn (CS)/ 10M-20/08 dated 9 September 2008 had not become operational, the recruiting authority was required first to ascertain whether there was any efficient and experienced member of the lower subordinate staff having the requisite qualifications, as prescribed in Statute 163(e) and if such lower subordinate staff were found suitable, fill up such vacancy from such lower subordinate staff without following the procedure for direct recruitment or they were required to seek sponsorship from the employment exchange in terms of memorandum No. 830-Edn(CS) dated 31 October 1995. or consider the claims of lower subordinate staff who were efficient and experienced having suitable qualification only if names of such staff were sponsored by the employment exchange?;