HARISH TANDON - (1.) THE name of all the petitioners were sponsored by employment exchange upon notifying the vacancies by the District Primary School Council, Malda for recruitment to the post of Primary Teacher.
(2.) PURSUANT to the said sponsorship, the District primary School Council, Malda invited all the petitioners to submit their testimonials/certificates which was duly complied with. Although, petitioners were called for verification of the testimonials/certificates by the said District Primary School Council but thereafter the concerned authority neither issued the interview letter nor a letter of appointment to the petitioners. According to the petitioner, the authorities could not have called the names from the concerned employment exchange in terms of the executive circular being memo No.3E-3 (Mid.Paschim/2002/1694 T (91) dated 3.3.2006 in the ratio of 1:35 whereas the statutory rules which governs the recruitment process postulates that the sponsorship shall be made by employment exchange in the ratio of 1:10. It is further contended that by a subsequent notification dated 16 December, 2005, the word with training has been omitted from Rule 6(2) of the recruitment Rules of 2001 and there has been an insertion of the words priority and preference will be given to the candidates having requisite training from a recognised institute (provided candidates will be recruited on merit basis if trained candidates is not available). It is the further case of the petitioners that although the word with training has been omitted by the aforesaid notification but allotment of 22 marks to the trained candidate still occupied the place in Rule 9 of the said rules. On the basis of the facts adumbrated above the instant writ petition is filed praying for their appointment and also quashment of the said notification dated 16.12.2005 by which the ratio of sponsorship was increased and deletion of 22 marks from Rule 9 of the said rules of 2001. Mr. Kashi Kanta Maitra, learned Senior Advocate appearing for the petitioners submits that by executive circular the statutory provision can not be amended. He further submits that if the statutory rules provides the sponsorship in the ratio of 1:10, then by executive instruction , the said ratio can not be increased to 1:35. He placed reliance upon unreported judgement delivered by the Single Judge of this Court in case of Hriday Kumar Paul and another Vs. The State of West Bengal and Anrs (W.P No.22462 (w) of 2009 decided on 30.7.2010), in support of the contention that the said executive circular has been quashed and set aside being arbitrary and discriminatory. He further submits that the petitioners have been placed to considerable disadvantages in competiting 35 candidates against a post and could have been selected to the post if such competition is reduced from 35 to the 10 as provided in the statutory rules. Mr. P.S. Deb Barman, the learned Advocate appearing for District Primary School Council submits that under the statutory rules of 2001, the District Primary School Council notifies the number of vacancies to the concerned employment exchange and invites the application from all the sponsored candidates for the purpose of computation of the marks under Rule 9 of the said rules. He succinctly argued that none of the sponsored candidate have been eliminated from the zone of consideration at the first leg of the recruitment process. He vehemently submits that the candidates can not have vested right to the post. He further submits that the instant writ petition is liable to be dismissed on the score of acquiescence and estopple as after participating is the selection process the candidate can challenge that the recruitment process is bad. In support of such contention he relies upon a judgement of the Supreme Court in case of Dhananjoy Malik and vrs. State of Uttaranchal and Ors. reported in (2008) 4 SCC 171 and in case of Vijendra Kumar Varma Vrs. Public Service Commission reported in (2011) 1 SCC 150. Lastly Mr. Deb Barman submits that large number of candidates are already appointed in the said selection process and as such this court should not interfere in this writ petition. In reply Mr. Maitra submits that there can not be an estoppel against the statutory right. He further submits the deprivation to the petitioner has been made at the very threshold when the names of the candidate is sponsored in the ratio of 1:35 instead of 1:10. Having considered the respective submission made at the bar, admittedly, the petitioners were sponsored by the concerned employment exchange to the District Primary School Council for the purpose of consideration to the post of a primary teacher. It is undisputed that the petitioners participated in the selection process in the sense that they submitted testimonials/certificates with the concerned District Primary School Council. Admittedly the selection process commenced in the year 2007 under the West Bengal Primary School Teachers Recruitment Rules, 2001 which was framed in exercise of the power conferred under Section 106 of the West Bengal Primary Education Act, 1973, by the State Government.
(3.) IT would be profitable to refer certain provisions of the said recruitment Rules of 2001 for the purpose of adjudication in the instant writ petition. Rule 3 of the said rules provides that there shall be ordinarily one teacher for every 40 pupils or students and the second teacher may be admissible when the roll strength exceeds 60, similarly a third teacher may be admissible when the said roll strength exceeds 100 and so on so forth. Rule 4 provides that the council shall determine from time to time the number of vacancies in the primary school within their jurisdiction whereas Rule 8 of the said rules postulates that the council shall notify the number of vacancies to the concerned employment exchange for sending the names of the eligible candidates. The eligibility criteria is enshrined in Rule 6 of the said rules to include that the candidate must be a citizen of India, above the age of 18 years but below 40 years and should be Madhyamik /School Final pass under the West Bengal Board of Secondary Education or equivalent. Rule 9 of the said rule envisaged that the council shall invite the testimonials/certificates from all candidates whose name is sponsored by the concerned employment exchange for the purpose of computation of the marks on the score sheet to be prepared in terms of Sub Rule 2 of Rule 9 on the basis of 100 point roster. Out of 90 marks, 65 marks are computed on the basis of academic qualifications, 22 marks on the basis of training and 3 marks on the basis of co-curricular activities. The said marks shall be incorporated in the order of descend and the candidates in the ratio of 1:5 shall be called for written test held for 10 marks. Thus the candidates whose name are sponsored by the concerned employment exchange are brought within the zone of consideration for the purpose of computation of 90 marks. None of the candidates whose candidature is sponsored by the concerned employment exchange is eliminated from the zone of consideration for such computation. IT is also undisputed with the petitioners were brought within the zone of consideration so far as the computation of 90 mars are concerned. IT is now tried to be contended is that the sponsorship was made in the ratio of 1:35 in stead of 1:10. According to the petitioners if the area of competition is reduced from 35 to a post to the 10, they could have had a better chance to qualify for the written test being the second leg of recruitment process. To such submission, I find substantial force as has been held by the co-ordinate bench in case of Hriday Kumar Paul & Ors. (supra), and unreported judgement that the executive circular by which the ratio of sponsorship is increased to 1:35 is arbitrary and discriminatory and thereafter the said circular was quashed and set aside. Even after quashing and/or setting aside the executive circular dated 3 March, 2006 the co-ordinate bench was conscious of the fact that large number of appointments are already made and directed the concerned authorities to include the name of the petitioners therein as sponsored candidate and allow them to participate in the subsequent selection process after relaxing the age bar. Therefore, the co-ordinate bench after quashing the circular did not upset the selection process, more particularly, the appointments already made therein. It can be logically inferred that if the zone of consideration is restricted in 1:10 ratio, some of the petitioners might have been brought within the zone of consideration in the second leg of recruitment process i.e. the written test. Mr. Deb Barman stressed much on the principle of acquiescence and estoppel as the petitioners after participating in the recruitment process should not be allowed to agitate that the said process was bad.;