SWATI PAL Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) Shorn of unnecessary details the facts are that the petitioner's name was sponsored by the Employment Exchange as an Exempted Category (in short, EC) candidate to the District Primary School Council, North 24-Parganas (in short, the Council) for participation in the recruitment process for appointment to the post of assistant teacher in a primary school in the year 2006. The petitioner's candidature was, however, considered under a different category and appointment was denied.

(2.) Aggrieved thereby, the petitioner approached this Court earlier by a writ petition being W.P No.16331 (W) of 2010. By an order dated 28th July, 2014 the respondent no.3 herein was directed to forward the name of the petitioner to the concerned authority of the State to enable the said authority consider the same for approval of her candidature. Alleging non-compliance of the said order, a contempt application was preferred and in course of hearing of the same it was submitted on behalf of the alleged contemnor that Council had already forwarded the name of the petitioner to the appropriate authority for approval. In support of such contention reliance was placed upon a letter dated 13th May, 2015. Recording such fact, the contempt application was disposed of on 3rd July, 2015. Thereafter by a memo dated 17th July, 2015 the respondent no.2 requested the respondent no.3 to terminate the service of the last empanelled candidate from the concerned category and to appoint the petitioner in such vacancy. The authorities thereafter maintained a deceptive silence and aggrieved by such inaction, the petitioner was constrained to again prefer a writ petition being W.P.No.1265 (W) of 2016. In the midst thereof, a memo dated 17th March, 2016 was issued by the respondent no.3 stating inter alia that some posts were converted from Exempted Category-Unreserved to Unreserved Category due to insufficient Exempted Category-Unreserved candidate at the time of approval of the panel of PTR examination, 2006 but subsequently two candidates, namely, Sri Gopal Bhattacharyya and Kamal Sanyal belonging to UR category did not join and the respondent no.2 was requested to send an approval of the petitioner under Exempted Category-Unreserved in any one of the said posts which were remaining vacant due to non joining of the said candidates. In view thereof, the writ petition was disposed of by an order dated 8th June, 2016 directing the respondent no.2 to approve the recommendation of the Council towards appointment of the petitioner in any one of the existing vacancies as indicated in the memo dated 17th March, 2016. After communication of the said order a recalling application was filed by the State and its functionaries stating inter alia that the vacancies indicated in the memo dated 17th of March, 2016 have already been filled up. In view thereof, the order dated 8th June, 2016 was recalled on 30th August, 2019 and thereafter the writ petition was heard on 5th of November, 2019 and Mr. Vaisya, learned advocate appearing for the Council was directed to avail necessary instruction. Today Mr. Vaisya submits that the petitioner applied in the recruitment process of 2006 as an OBC candidate. She secured 27.66 marks which is much less than the cut off marks being 41.08 in the OBC category and as such, the petitioner cannot be appointed. The documents, as produced, by Mr. Vaisya be kept on record.

(3.) He argues that there had been a bona fide mistake on the part of the Council in treating the petitioner to be a candidate under Exempted Category. Such mistake does not create any right in favour of the petitioner to seek any direction towards appointment. In support of such contention he has placed reliance upon the judgments delivered in the case of The Calcutta Municipal Corporation and Ors. vs. Rukhsana Anjum, reported in 2009(1)WBLR (Cal) 381 and Union of India vs. S.R Dhingra and Ors., reported in (2008) 2 SCC 229 (Para 23).