- (1.) The principal question involved in the instant Writ Petition is whether the candidates who have secured higher marks than the general candidates in the Selection Test on the basis of merit can be appointed against the unreserved vacancies even after filling up the entire vacancies reserved for the reserved category candidates. In other words, if the candidates belonging to reserved category secure higher marks than the candidates of unreserved category then in such circumstances whether such reserved category candidates should be denied appointment on the ground that the total seats reserved for the reserved category candidates have already been filled up and inspite of showing better merit than the unreserved category candidates, appointment cannot be given on the ground that the appointment to the reserved category candidates must be confined amongst the reserved seats meant for them and inspite of showing better merits they cannot be accommodated against the seats which are not reserved for any category.
(2.) In the present case the petitioner belongs to OBC category. It has been mentioned in the Government Order being No. 735/BC/M-6/82(1) dated 8th April, 1999 issued by the Principal Secretary to the Government of West Bengal, Backward Classes Welfare Department that by Order No. 1056/BCW/EC/MR/606 dated 6th April, 1997 the percentage of the vacancies to be reserved was raised from 5% to 7%. The name of the petitioner was also sponsored by the Employment Exchange as an eligible candidate for the post of Assistant Teacher under the District Primary School Council, Hooghly. By a written communication dated 27th October, 1998, the Secretary, District Hooghly Primary School Council informed the petitioner that his name has been sponsored by the Employment. Exchange for the post of Assistant Teacher in the Primary School under the District School Council, Hooghly and the Writ Petitioner was requested to appear personally with all documents in original on 19th January, 1999 before the authority of the said Council and thereafter by a subsequent Memo dated 1st November, 1999 the said Secretary, Hooghly District Primary School Council informed the petitioner that his name has been selected after preliminary scrutiny as per Rules and the petitioner was directed to appear for a written test on 19th December, 1999. The petitioner duly appeared at the said interview along with other eligible candidates selected by the District Primary School Council, Hooghly.
(3.) Admittedly, the Writ petitioner herein secured 50.22% marks. The last appointed general category candidates against unreserved vacancies secured 48.15% marks and the last appointed candidates against reserved category vacancies meant for the OBC candidates secured 50.80% marks. The petitioner herein was not appointed even after securing 50.22% marks whereas the general category securing only 48.15% marks was appointed against unreserved vacancies. The petitioner challenged the validity and/or legality of the aforesaid decision of the respondent authorities in the matter of refusing appointment to the petitioner inspite of securing higher marks and showing better performance at the Selection Test than the general category candidates.;