Bhaskar Bhattacharya, J. - (1.) ALL these three Mandamus-Appeals were taken up together as the same question of law arises for determination in these three appeals preferred against three different orders passed by the same learned Single Judge on 13th May, 2010, thereby dismissing three separate writ-applications filed by the respective appellant.
(2.) BEING dissatisfied, the three unsuccessful writ-petitioners have come up with these mandamus appeals. The following facts are not in dispute: a) The writ-petitioners applied for the post of primary teacher before the District Primary School Council, Purulia, by duly filling up the prescribed application- form thereby describing themselves as the members of 'other backward classes' (hereinafter called OBC). b) According to the writ-petitioners, they obtained more than 60% marks in the Madhyamik Examination but they have not been called for written test and interview although it appears that persons obtaining less than the marks obtained by the writ3 petitioners in general category have been called for such written test and interview. c) According to the writ-petitioners, while shortlisting the candidates for the purpose of issuing admit cards for the written test and the interview, the council has not followed the prescribed Rules framed in that behalf with regard to the policy of reservation for Scheduled Caste, Scheduled Tribe and OBC candidates. d) It is alleged that the council has fixed 67.8% mark in the Madhyamik Examination as the cut off marks for calling a candidate under OBC category to the written test and interview, whereas such marks for general category is fixed at 60%. e) The writ-petitioners, therefore, prayed for quashing the process of shortlisting and for passing direction for preparation of a fresh list for sending admit cards for the written test and the interview by following the Rules framed in that behalf. f) The learned Single Judge, without asking the Respondents to file affidavit, dismissed the writ-application filed by the appellants on the ground that there was no violation of the concerned West Bengal Primary School Teachers Recruitment Rule, 2001 (as amended) and the cut off mark fixed for OBC candidates for shortlisting, i.e. 67.88% was prepared in accordance with the procedure laid down in Rule 9 of the West Bengal Primary School Teachers Recruitment Rules, 2001 and the various sub-rules thereunder. BEING dissatisfied, the writ-petitioners have come up with these appeals. In view of the aforesaid allegation of fixing cut off marks alleged by the writ-petitioners, in these appeals, we called for an affidavit from both, the State Government and the Primary School Council, Purulia, for explaining the aforesaid position. Both the State Government and the Purulia District Primary Council have admitted the position that the minimum cut off marks obtained in the Madhayamik Examination by a candidate for which the Admit Card was issued for those in the general category was 60% whereas for the candidates in the OBC category, the same was fixed at 68%. It is further admitted that for the candidates belonging to the SC category, the minimum cut off marks is 50.38% whereas for those in the ST category, it was 54.13% marks in the Madhyamik Examination. The District Primary School Council, however, in its affidavit has justified their stance by contending that there should be separate list for General, SC, ST and OBC categories even at the stage of shortlisting and the Admit Card should be issued to the total number of candidates which should be 15 times the number of vacancy available under each category. It is asserted that in the district of Purulia, there were 70 available vacancies for OBC candidates in Bengali Medium as per 100 point roster. Therefore, the total number of OBC candidates who should get admit cards for the written test and interview should be 70X15=1050 whereas the total number of applications received from the candidates of the OBC category was 17,218 and from those 17,218 candidates, the first 1050+ additional 5 having obtained same mark at the bottom=1055 candidates have been called and in that process, the candidate who obtained the 1055th position was the last candidate in the list under the OBC category for issue of Admit Card for written test and interview and the said candidate obtained 67.88% marks in the Madhyamik Examination. According to the District Primary School Council, in the general category, on the other hand, the number of vacancy being 616 for Bengali Medium, the total number of 616X15=9240+39 additional having obtained the same marks at the bottom = 9279 persons were called for written test and interview and the person obtaining 9279th position in the general category had obtained 60% marks in the Madhyamik Examination.
(3.) THE respondents, therefore, contended that there was nothing illegal for fixing higher cut off marks for OBC candidate than those fixed for the candidates of the general category having regard to the fact that the admit cards for the written examination and the interview can be issued to candidates 15 times the number of vacancies for each category under the Rules. So far, the categories of SC and ST are concerned, since those are not the subject matter of these writ-applications, we are not dealing with the cut off marks fixed for SC and ST candidates and we propose to restrict our scrutiny only to the OBC candidates. Therefore, the sole question that arises for determination in these appeals is whether having regard to the fact that out of total number of vacancies of 1078, the quota for OBC was 70, there was any scope for fixing higher cut off mark for OBC candidates than the one fixed for under general category under the provision of the Rules. At the very outset, we keep on record that the none of the learned counsel for the parties has disputed the position of law that if a candidate of SC, ST or OBC category secures selection on merit without taking aid of the quota of reservation, those candidates, although belonging to the reserved category, should be treated to have been selected under the general category and his selection should not be taken into consideration as having been filled up from the quota of that particular reserved category. In other words, although there are 616 posts under the general category, if any of the first 616 candidates based on merit come within any of the categories of the SC, ST and OBC, in that event, those should be treated to be selected under General category and the remaining posts reserved for those categories should also be filled up from those three categories. Thus, the term 'general category' does not necessarily means 'other than reserved categories' and the quota of the general category, in a given situation, may be even exhausted fully by the candidates of the reserved categories if all of them figure in the first 616 ranks on merit.;