Calcutta High Court (Appellete Side)
Kartick Mal vs The State Of West Bengal & Ors on 9 August, 2023
09.8.2023
ap
172
WPA 13647 of 2021
Kartick Mal
Vs.
The State of West Bengal & Ors.
Mr. Victor Chatterjee
Mr. Bornamoy Basak
... For the petitioner.
Mr. Sambuddha Datta
Mr. Shamit Dutta
... For respondent no. 6.
Mr. Subhrangsu Panda
Ms. Mithu Singh Mahapatra
... For respondent no. 4.
Mr. Anil Kr. Gupta
... For UGC.
The matter has been called on several earlier
occasions. As usual, the State is not represented
even today.
The petitioner was appointed to the post of
Laboratory Attendant at Maheshtala College, Kolkata
on April 10, 2000.
It appears that the governing body of the college
resolved to form a selection committee for the purpose
of filling up a Group-D post of Physics Laboratory
Assistant in the year 2000. On February 02, 2000,
the college made a requisition before the concerned
employment exchange for sponsoring the names of
the eligible candidates to fill up the said post. The
post was kept reserved for a Schedule Caste
candidate.
In addition to that, the college also published
an advertisement inviting applications from the
eligible candidates for filling up the said post.
The name of the petitioner was not sponsored
by the employment exchange, but he made an
application following the advertisement published in
the newspaper. Accordingly, the petitioner was
allowed to participate in the selection process along
with the candidates sponsored by the employment
exchange.
On April 07, 2000, a panel was prepared by the
selection committee for the said post and the
petitioner figured at no. 1 position in the said panel.
The college on April 10, 2000 issued an
appointment letter to the petitioner and the petitioner
joined his duty on April 12, 2000. Thereafter, the
college by a letter dated April 17, 2000 sought
approval of fixation of pay of the petitioner form the
Director of Public Instruction, West Bengal.
By the impugned order dated September 21,
2020, the Director of Public Instruction, West Bengal
declined to approve the pay of the petitioner to the
post of Laboratory Attendant.
It appears that the writ petitioner approached
this Court on earlier occasion by filing a writ petition
[W.P. 16231 (W) of 2008] on which the following
orders were passed by a Co-ordinate Bench on
December 09, 2019.
"This petition has been pending since
2008. It is fairly submitted on behalf of the
parties that the matter can be remanded to
the Director of Public Instruction,
Government of West Bengal, Higher
Education Department being the respondent
no. 3 herein to consider the case of the
petitioner and adjudicate as to whether the
petitioner is entitled to the approval of pay
to the post of Library Attendant.
The aforesaid exercise is to be completed
within a period of six weeks from the date of
communication of this order.
It is needless to mention that the
respondent no. 3 will give a right of hearing
to the petitioner as well as all affected
parties and pass a reasoned order in
considering the case of the petitioner."
Following the order, the Director of Public
Instruction, West Bengal, by the order impugned
rejected the claim of the petitioner for approval of his
pay primarily on two grounds:
(a) There was no prior sanction from the
State for relevant post in question,
(b) In carrying out the recruitment process,
the college authority made an
advertisement in the newspaper
inviting the application from the
prospective candidates whereas at the
material point of time the Government
Order No. 830-Edn(CS)/10M- 47/95
dated October 31, 1995, provided for
calling for the name from the
Employment Exchange(s).
In my view none of the grounds can be
sustained.
The law related to the calling of names from the
employment exchange has been settled by the
Supreme Court long ago by the judgment reported at
(1996) 6 SCC 216 (Excise Superintendent,
Malkapatnam, Krishna District - Andhr vs. K.B.N.
Visweshwara Rao & Ors.). It was held that
restricting the scope of employment amongst
candidates sponsored by the employment exchanges
violates the mandate of Article 14 of the Constitution
of India. The Supreme Court held that in addition to
the names sponsored by the employment exchange,
an open advertisement should be made in newspapers
inviting the applications from the eligible candidates
to ensure fair play in public employment.
Therefore, it cannot be said that the college
acted illegally in publishing the advertisement in
newspaper inviting the applications from the
prospective candidates for the post in question.
Regarding the non-sanction of the relevant post,
the learned advocate for the college has referred to
page 18 of the affidavit-in-opposition filed by the
college.
It appears that by a letter dated Calcutta,
December 03, 2000, the college was given the
permission by the Department of Higher Education to
fill up the said post of Laboratory Attendant. From a
close scrutiny it appears that though the date of the
said letter was typed as December 03, 2000, the same
was issued to the college only on January 03, 2000.
Therefore, the college initiated the process of
selection after obtaining the permission.
Be that as it may, the fact remains that the
petitioner was appointed against a sanctioned post.
In that view of the matter, the order of the
Director of Public Instruction dated September 21,
2020 cannot be sustained.
The college admits that the petitioner was given
appointment by the college way back on April 10,
2000 and since then he has been working to the said
post without his legitimate pay.
In the aforesaid facts, this writ petition is
disposed of giving a direction upon the Director of
Public Instruction to approve the pay scale of the
petitioner giving him the seniority from his date of
joining service i.e., April 12, 2000 within two weeks
from the date of communication of this order. The
petitioner shall also be entitled to get 50% arrear
salary as his back wages after adjusting the
remuneration received from the college. Such
payment should be made within two months from the
date of communication of this order.
With the aforesaid directions, WPA 13647 of 2021
is disposed of.
Urgent photostat certified copies of this order, if
applied for, be made available to the parties upon
compliance with the requisite formalities.
(Kausik Chanda, J.)
