Atashi Dutta vs The State Of West Bengal & Ors
2022 Latest Caselaw 898 Cal

Form No. J(2)

                     IN THE HIGH COURT AT CALCUTTA

                          Constitutional Writ Jurisdiction

                                Appellate Side
Present :

The Hon'ble Justice Abhijit Gangopadhyay

                                  WPA 18327 of 2021

                                     Atashi Dutta
                                       -Versus-
                             The State of West Bengal & Ors.


     For the petitioner                  :    Mr. Goutam Banerjee
                                          :   Mr. Sandip Kumar Mondal



    For the State                        :    Mr. Swapan Banerjee
                                         :    Mr. Shamim ul Bari

    For SSC                               : Dr. Sutanu Kumar Patra
                                          : Ms. Supriya Dubey


    Heard On: 25.01.2022, 28.02.2022
    Judgment On: 28.02.2022

     Abhijit Gangopadhyay, J.

1. The petitioner submits that she was 4th wait listed candidate in the post of

Assistant Teacher in Computer Applications in Class XI and XII. The 3rd

wait listed candidate was recommended by the School Service Commission

and she refused to join. Therefore, in the refused vacancy the petitioner

should have been recommended.

2. Learned advocate for the School Service Commission submits that

whether a recommended candidate is refusing a vacancy or not comes

through the District Inspector of Schools to the Commission and then again

in respect of the said vacancy counselling is required to be held if such

report from the DI comes within the validity period of the panel.

3. From the documents annexed to the writ application, specially Annexure P-

3 of the writ application, I find that the recommendation letter was issued

to wait listed candidate no.3 (WL-3) on 04.09.2019 under 1st SLST 2016

under rule 18 (3) of the relevant rules. A recommendation letter remains

valid for a period of ninety days from the date of issuance. Therefore, the

recommendation letter which was issued to WL-3 on 04.09.2019 remained

valid till 03.12.2019. As soon as the validity period of the recommendation

letter issued in favour of the WL-3 expires, the right of the wait listed

candidate no.4 (WL-4) accrues (unless it is extended under the proviso of

the said rules) and the said candidate gets a legal right to get an

opportunity of counselling.

4. This right of WL-4 accrued before expiry of the relevant panel. The panel

expired, as has been intimated to me by the learned advocate for the

Commission, on 17th December, 2019. The right of the petitioner, being WL-

4, accrued on 04.12.2019. Therefore, she should get an opportunity of

counselling and recommendation if she selects a school in the counselling.

If this is the only school where vacancy arose in respect of the subject

'Computer Applications' the Commission is directed to call maximum three

candidates from the wait list being WL-4, WL-5 and WL-6 if there is 6 (six)

waitlisted candidates (or less, if there is lesser number of waitlisted

candidate) for placing the vacancy before them for the purpose of holding a

counselling. On the basis of the counselling, following the procedure for

holding the counselling as has been laid down in the rules and followed by

the Commission, the appropriate candidate should get a recommendation

because of the fact that the vacancy arose before expiry of the panel.

5. If the right of a candidate accrues before the expiry of the panel, no

bureaucratic delay can stand in the way of the right of a candidate accrued

to him/her in any manner whatsoever. The vacancy in the school, where

WL-3 was recommended, may be reported to the Commission after one, two

or three years or may be after ten years keeping in mind the snail's pace

with which the bureaucracy works. Does such bureaucratic delay means

that a candidate aspiring for a job of a school teacher when the candidate

he is in the wait list will suffer? The reply shall always be in the negative.

6. Therefore, I direct the School Service Commission to hold a counselling as

has been indicated above within a period of thirty days from the date of

communication of this order and to give the candidates an opportunity to

select a school and on the basis of such counselling recommendation has to

be made in favour of a candidate and the West Bengal Board of Secondary

Education shall issue appointment letter by twenty one days from the date

of receipt of the recommendation from the School Service Commission.

With the above observation and direction, the writ application is

allowed.

(Abhijit Gangopadhyay, J.)