Sri Amar Singh Harizon vs State Of West Bengal & Ors
2021 Latest Caselaw 4483 Cal

Dl   September
9.    2, 2021
                                 Through Video Conference

                                     W.P.S.T. 81 of 2017

                                   Sri Amar Singh Harizon
                                             Vs.
                                 State of West Bengal & ors.

                             Mr. Biswaroop Bhattacharya,
                             Mr. Surya Prosad Chatterjee,
                             Mr. Mohan Lall Banerjee,
                                  ...for the petitioner.

                             Ms. Chaitali Bhattacharya,
                                  ...for the State respondents.

This writ petition has arisen out of an order dated

February 22, 2017 passed by the West Bengal Administrative

Tribunal in Original Application No. 712 of 2013 filed by the writ

petitioner challenging the amended recruitment rules as notified on

May 31, 2011. The issue before the tribunal is summarized in the

first paragraph of the impugned judgment itself, which reads thus :-

"The short point involved in this application is whether

the amendment of the recruitment rules for the post of

Joint Director of Tourism in the Directorate of Tourism

under the Tourism Department, Government of West

Bengal made under notification no. 357-TW dated

31.05.2011 is unconstitutional and illegal."

We have heard the learned advocates appearing for the

parties. The amendment to the recruitment rules was made in

exercise of powers conferred under the proviso to Article 309 of the

Constitution of India. The original recruitment rule contemplates

three methods of recruitment, which are all disjunctive. One of the

methods of recruitment for the purpose of recruitment to the post of

Joint Director of Tourism as contemplated in the said rule amongst

others is that by transfer from WBCS (Executive) carrying scale of

pay comparable to that of Joint Director of Tourism. Out of the

three methods of recruitment, two were abolished and only the third

method of recruitment was accepted as the only mode in the

amended recruitment rules, which was duly notified on May 31,

2011.

It is argued on behalf of the writ petitioner that

although it may be accepted as a proposition of law that a candidate

may not have a vested right for promotion, but if it is found that his

chance of promotion is taken away by the amendment to the

recruitment rules, the same can be challenged as contrary to Articles

14 and 16 of the Constitution of India. It is further argued that the

recruitment rule was amended so that a person having background

that of the writ petitioner ultimately does not get the post by

promotion.

However, from the pleadings before the tribunal, we do

not find that any such case was made out before the tribunal that the

recruitment rule was amended in order to accommodate any

particular person to the post of Joint Director of Tourism.

The State respondents before the tribunal had

contended that having regard to the importance of the Tourism

Sector, the Government decided to fill up the post by transfer of

West Bengal Civil Services (Executive) officers, who have wide

experience in different fields of administration. It was further

contended that it is entirely at the option of the Government to

decide as to how the post of Joint Director is to be filled up.

In the absence of anything to show that the post in

question had all along been filled up by promotion of departmental

officers, the option exercised by the Government in favour of the

third method of recruitment as mentioned in the original rule and

finally to decide that it would be the only mode of recruitment

cannot be held to be arbitrary or discriminatory. In fact, in terms of

the original recruitment rules, the petitioner had only a chance to be

considered for promotion. As observed by the Hon'ble Supreme

Court in the case of Reserve Bank of India & ors. vs. C.S.

Sahasranaman & ors. reported in A.I.R. 1986 S.C. 1830, no

scheme governing service matters could be said to be foolproof and

some section or the other of the employees was bound to feel

aggrieved on the score of its expectation being falsified or

remaining to be fulfilled. However, if the scheme appears to be

arbitrary, irrational or perverse, then the court always have the

jurisdiction to set aside such recruitment rules or the scheme.

The Government has to run the administration and the

Government is the best judge to decide the method of recruitment,

creation and/or abolition of posts, prescription of qualification,

structuring and/or restructuring of cadres, etc. What steps would be

taken for improving the efficiency of the administration also falls

within the exclusive domain of the employer. In a judicial review,

this court is not competent to decide what kind of expertise or

experience is required for the post of Joint Director but only to

observe that the amendment in the recruitment rules by way of

notification for the post of Joint Director does not appear to be

arbitrary or unconstitutional. Moreover, the court cannot suggest

the manner in which the employer should structure or restructure

the cadres for the purpose of improving the efficiency of the

administration.

On such consideration, we do not find any reason to

interfere with the order passed by the tribunal.

The writ application, thus, fails without, however, any

order as to costs.

Photostat certified copy of this order, if applied for, will

be made available to the applicant within a week from the date of

putting in the requisites.

( Soumen Sen, J. )

( Hiranmay Bhattacharyya, J. ) dns