In Re: Mr. Soumitra Roy & Ors vs State Of West Bengal & Ors
2021 Latest Caselaw 4845 Cal

15.09.2021
Item No.01
Court No.16
Avijit Mitra
                  W.P.S.T. No. 72 of 2021     (through video conference)




               In re: An application under Article 226 of the
               Constitution of India;
                                 And


               In re: Mr. Soumitra Roy & ors.
                         - Versus -
                      State of West Bengal & ors.

               Mr. Siddhartha Banerjee,
               Mr. Dyutiman Banerjee
                                 For the Petitioners
               Mr. Tapan Kumar Mukherjee, Sr. Adv.,
               Mr. Pinaki Dhole,
               Mr. Sayan Ganguly
                                 For the State respondents

Mr. Pradip Roy, Ms. Shraboni Sarkar For the Respondent nos. 4, 8 & 9

The present writ petition has been preferred

challenging an order dated 10 th September, 2021

passed by the learned West Bengal Administrative

Tribunal in O.A. No.60 of 2020 with M.A. No.79 of

2020. The affidavit of service filed by the petitioners be

kept on record.

Mr. Banerjee, learned advocate appearing for the

petitioners submits that an advertisement being

advertisement no.5/2020 was published by the Public

Service Commission, West Bengal (in short, PSC) on

22nd January, 2021 inviting applications from eligible

candidates for appointment to the posts of Instructor

in various Government Industrial Training Institutes.

The training qualification under Craftsman

Instructorship Training Scheme (in short, CITS) was

not incorporated in the said advertisement as an

essential qualification for the posts of Instructor in

spite of a specific mandate of the Recommendation

Committee under Government of India, Directorate

General of Training (DGT), Ministry of Skill

Development and Entrepreneurship and as a

consequence thereof, the petitioners, who have such

training, have been seriously prejudiced since they

have to compete with candidates, who do not have

such training qualification and are not eligible for

appointment to the posts of Instructor.

Mr. Banerjee submits that the Recommendation

Committee had mandated CITS qualification for

recruiting Instructors at the Industrial Training

Institutes and such decision is binding upon the State

Government. The orders passed by the Union

Parliament or executive order by the Central

Government would occupy the field for recruitment of

Instructors at Industrial Training Institute and the

same would remain outside the domain of the State

legislature in view of the approval of the

Recommendation Committee under the Central

Government. The Parliament has prescribed rules for

recruitment of Instructors at Industrial Training

Institute and thereby the State Government cannot

initiate any recruitment process without adhering to

such rules. In support of such contention Mr. Banerjee

has drawn the attention of this Court to Articles 246

and 254 of the Constitution of India and has also

placed reliance upon the judgments delivered in the

cases of State of Kerala & ors. vs. Mar Appraem Kuri

Company Limited reported in (2012) 7 SCC 106,

Rajveer Singh Kumawat & ors. vs. Union of India & ors.

reported in 2018 (3) RLW 2201 (Raj) and Sarthak

Ghosh vs. State of West Bengal reported in 2017 SCC

OnLine Cal 357.

He further submits that the dissatisfaction of

the Recommendation Committee towards non-

inclusion of the said training qualification as an

essential qualification for recruitment of Instructors

would be explicit from the subsequent memoranda

dated 25th February, 2019, 3rd December, 2019, 9th

January, 2020 and 31st January, 2020 issued on

behalf of the Ministry. The last memorandum has been

brought on record by a supplementary affidavit. Let

the same be kept on record.

As the preliminary examination has been

scheduled on 18th December, 2021, Mr. Banerjee prays

for an interim order to restrain the respondents from

declaring the final result and from filling up the posts

of Instructor.

Drawing the attention of this court to the memo

dated 26th July, 2019 issued by the Deputy Director

General (C.P. & Admn.), Mr. Mukherjee, learned senior

advocate appearing for the State respondents submits

that the Recommendation Committee under the

Directorate General of Training, Government of India

has only requested the State to revise recruitment

rules and to consider the CITS as essential

qualification while recruiting vocational instructors in

Government and Private ITIs (Govt. & Private). Such

recommendation has no force of law and is not binding

upon the State. As per the existing recruitment rules,

the advertisement no.5/2020 has been published and

the selection process has been initiated. The existing

recruitment rules are also not under challenge in the

original application filed by the petitioners.

Mr. Roy, learned advocate appearing for the PSC

submits that 80 applicants preferred the original

application and out of them 23 applicants are the writ

petitioners in the present writ petition. From the

averments made in the present writ petition,

particularly, in paragraph 2 it would be evident that

some of the writ petitioners are still waiting to avail the

National Trade Certificate copies. The petitioners on

one hand have challenged the advertisement and on

the other hand they have applied for participation in

the said selection process pursuant to the

advertisement no.5 of 2020. Having applied for

participation, the petitioners cannot turn back and

challenge the selection process. The petitioners also

did not challenge the earlier order dated 13 th February,

2020 passed by the learned Tribunal in the original

application refusing the interim order, as prayed for by

the petitioners.

In reply, Mr. Banerjee denies the contention of

the respondents and submits that upon applying for

participation the petitioners have agitated the plea as

regards non-incorporation of an essential qualification

in the advertisement, contemporaneously. After 13 th

February, 2020, the date of examination was

scheduled on 18th September, 2021 and such

information was uploaded in the website on 4th

September, 2021. In view thereof, the petitioners filed

a miscellaneous application in connection with the

original application seeking appropriate directions.

Records reveal that the petitioners fulfil the

essential qualification, as incorporated in the

advertisement and are all eligible to participate in the

selection process. Out of 80 applicants, who jointly

preferred the original application, only 23 applicants

have approached this Court. In the memo dated 26 th

July, 2019 issued on behalf of Directorate General of

Training the State has been requested to revise the

recruitment rules. The advertisement has been

published by the PSC on the basis of the existing

recruitment rules in force. It further appears that the

original application was first taken up for hearing on

13th February, 2021. The interim order, as prayed for,

to restrain the respondents from giving effect or

further effect to the advertisement no.5/2020 dated

22nd January, 2020 was refused, however, it was

observed that 'the action taken by the authority shall

abide by the result of the application'. The said order

was not challenged by the applicants.

In the said conspectus and prior to final

determination of the issue as to whether the decision

of the Recommendation Committee is binding upon

the State, it would not be proper to stall the selection

process or to restrain the respondents from publishing

the result and from filling up the posts since the

advertisement has been published in consonance with

the existing recruitment rules. In view thereof,

petitioners' prayer for such interim orders is refused,

more so when, it has already been directed by the

learned Tribunal that 'the action taken by the authority

shall abide by the result of the application'.

It is, however, made clear that we have not

decided the issue as regards repugnancy between

parliamentary legislation and State legislation, as

argued on behalf of the petitioners and the same is left

open to be decided by the learned Tribunal at the time

of final hearing of the original application. It is also

made clear that the observations made in the present

order are only restricted to the issue as regards grant

of the interim order, as prayed for.

We have been informed that in spite of direction

of the learned Tribunal, the State respondents have

not yet filed any affidavit. In view thereof, the State

respondents are directed to file their reply to the

original application positively within a period of two

weeks. Rejoinder, if any, be filed by the applicants

within a week thereafter. Upon exchange of such reply

and rejoinder, the parties would be at liberty to

approach the learned Tribunal for final disposal of the

original application.

It is expected that the learned Tribunal shall

finally decide the original application, as expeditiously

as possible, preferably by the end of December, 2021.

With the above observations and directions, the

writ petition is disposed of.

There shall be no order as to costs.

All parties shall act on the server copies of this

order duly downloaded from the official website of this

Court.

(Hiranmay Bhattacharyya,J.) (Tapabrata Chakraborty, J.)