Soumitra Pal, J.@mdashThe Petitioner had passed Madhyamik Pariksha (Secondary Examination) in the year 1986. In the said year he registered his name with the District Employment Exchange, Burdwan which was renewed from time to time. Thereafter, he passed Higher Secondary Examination. Subsequently he graduated with (Honours) in B.Com. He also obtained Diploma in Computer Science. He had completed courses and obtained certificates in Financial Accounting, Hardware and Networking and Business Management and had undergone training in ISO 9000 and Total Quality Management conducted by the Small Scale Industry Service Institute, Government of West Bengal. From time to time the Employment Exchange was informed about the enhancement of his educational qualifications. Facts are that in the Satischandra Industrial Centre, the Respondent No. 2 (for short ''the Institute''), there arose a vacancy for the post of Clerk (Cashier), a Group-C post. Accordingly, on 9th November, 2006 the Superintendent of the institute had sent a requisition to the Employment Officer, District Employment Exchange, Burdwan, the Respondent No. 3 for sponsoring the names of the candidates for the said post. Subsequently, the Respondent No. 3 had forwarded the names of 20 candidates including that of the Petitioner. It has been stated that before sponsoring the names of the candidates, the candidates were required to sign a register in the office of the District Employment Exchange stating their willingness to offer themselves as a candidate for the said post. On 4th January, 2007 the Petitioner signed the register which was endorsed on his identity card. Thereafter, as there was no communication regarding appointment, he contacted the Respondent No. 3, who informed that he had nothing to do further in the matter. Subsequently, a representative of the institute informed him verbally that delay occurred because clarifications with regard to the recruitment process were required to be obtained by the selection committee of the Institute. It has been stated that when the name of the Petitioner was forwarded by the Respondent No. 3, he was informed by the Employment Exchange that as he was 37 years of age, it was his last call. Finding no other alternative, as the Petitioner would cross the age limit for recruitment to the post, he accepted the offer. Thereafter, as the Respondent No. 2 allegedly did not take any step for completing the recruitment process, in this writ petition such inaction of the Respondent No. 2 has been challenged. Accordingly, prayer has been made to complete the recruitment process already initiated.
2. The matter was moved on 19th August, 2009. Thereafter, on 26th August, 2009 after hearing the learned Advocates for the parties an interim order in terms of prayer ''d'' was passed. On 11th September, 2009 directions were issued for filing of affidavits and interim order was extended. Accordingly, affidavits have been exchanged.
3. Learned Advocate appearing on behalf of the Petitioner relying on the statements in the writ petition submitted that before issuing the administrative approval, the memo dated 27th November, 2003 stipulated for obtaining prior approval of the Appointments Committee of the Cabinet for filling up the vacant posts. Therefore, as soon as the Appointments Committee of the Cabinet had granted the required approval, the process of recruitment had started. The memo dated 6th November, 2006 issued by the Director of Industrial Training, the Respondent No. 4, to fill up the post at the institute was pursuant to the approval granted by the Appointments Committee of the Cabinet. It indicated that the process of recruitment had commenced. Consequently, the Secretary of Institute on 9th November, 2006 had sent a requisition to the Respondent No. 3 requesting the Exchange to send the names. Thereafter, on 9th January, 2007 the Respondent No. 3. had sent the names of the candidates including that of the Petitioner. However, in the meantime by a memo dated 19th December, 2006, the Respondent No. 4 had issued a circular to stop the process of appointment. Subsequently by memo dated 28th December, 2006 the said Respondent had requested the Superintendent of the institute to suspend temporarily the appointment procedure until new recruitment rules were framed. Submission was the recruitment process commenced with the required approval of. the Appointment Committee of the Cabinet. Stoppage and suspension of the recruitment process, as evident from the memo and circular dated 19th December, 2006 and 28th December, 2006 mean stopping a process which was already initiated. Besides the new recruitment guidelines as contained in the memorandum dated 17th August, 2010 are prospective in nature. Since the Institute had initiated the recruitment process in terms of the recruitment guidelines or rules as existing in the month of November, 2006 by sending requisition to the Respondent No. 3 and as the Respondent No. 3 forwarded the names of twenty candidates including the name of the Petitioner in January, 2007 and as, thereafter, the Respondent No. 2 did not take steps for completing the recruitment process, the inaction is uncalled for. Relying on the Judgment in Gopal Sha and Ors. v. State of West Bengal and Ors., 2010 (1) WBLR(Cal) 483, submission was as the process of recruitment had started, the Petitioner cannot be subjected to the new recruitment guidelines framed on 17th August, 2010. Moreover, the new guidelines are prospective in nature. Besides, in view of the unreported Judgment in MAT 592 of 2002 with CAN 4147 of 2010 the Secretary of the Managing Committee, Kalinagar Girls'' High School, Nadia v. Archana Ghosh (Saha) and Ors. wherein it has been held that the decision in Snehansu Jash v. State of West Bengal, 2001 (3) CLT 155(H), does not operate as a binding precedent, as the vacancy arose in the year 2003, recruitment rules prevalent on the date of occurrence of vacancy are applicable.
4. Learned Advocate appearing on behalf of the State relying on its affidavit in opposition submitted that the approval of the Cabinet Committee and the request to the Employment Exchange to send the names were steps taken prior to the initiation of the selection process. The process of selection actually starts from the date of holding the examination. In the instant case as the examination for selection is yet to be held, the selection process has not started. Moreover, since the petition was moved more than two years after the process had stopped, the Petitioner is not entitled to the reliefs as prayed for. Further on the date when the petition was moved, the Petitioner was overaged. However, the candidature of the Petitioner will be considered provided he is within the age limit prescribed under the new recruitment guidelines. Reliance was placed on Snehansu Jash (supra) in support of his submission.
5. Learned Advocate appearing on behalf of the Respondent No. 2 adopted the submission advanced on behalf of the State.
6. The question to be considered - whether in the facts of the case the recruitment process to the post of Clerk (Cashier) had commenced.
7. In Order to answer the question, referring to the memorandum and circulars, it is necessary to note briefly the sequence of events.
8. The memorandum dated 26th November, 2003 and the annexure, the relevant portion of which are quoted below, are as under:
2. The twenty Junior Technical Schools will retain the status of Sponsored Industrial Training Centres after being renamed i.e. their status in relation to the State Government will remain the same. The designation, status, pay and allowances, conditions of service of the teaching and the non-teaching staff will remain the same as those prevailing before renaming. There will be no change in the responsibility of the State Government in providing grants-in-aid or any other financial assistance to these Sponsored Junior Technical Schools (renamed as Industrial Training Centres).
3. The management of these twenty junior Technical Schools will remain, as those prevailing before renaming, with the existing Governing Body which will exercise the same financial, administrative and other powers as have been lawfully vested on them before coming under the administrative and financial jurisdiction of the Director of Industrial Training.
4. It has further been decided that the twenty Junior Technical Schools (Government Sponsored) renamed as I.T.Cs. and the two Junior Polytechnics (Government) namely Fulia and Shibpur renamed as I.T.Is. in Annexure ''B'' will henceforth be under the administrative and financial jurisdiction of the Director of Industrial Training. West Bengal. Asansol Polytechnic where courses under Director General of Employment & Training (D.G.E.T.) are held will continue to be looked after by the Director of Technical Education and Training. West Bengal.
Annexure ''A''
|
Name and address of Junior Technical School (Sponsored) |
Renamed as |
|
4. Satish Chandra Silpa Vidyalaya P.O. Kalanabagram, Dist. Burdwan, Pin - 713124. |
4. Satish Chandra Industrial Training Centre (Sponsored). |
(Emphasis supplied)
9. It is evident that the status of the institute after being renamed, remained the same. As it appears from the memorandum, after renaming, the Governing Body of the institute has the same financial, administrative and other powers to manage the institute. Administrative and other powers mean the authority to recruit personnel. Thus, it is clear from the memorandum dated 26th November, 2003 there was no change regarding the process of recruitment.
10. Now in this background let the circular dated 27th November, 2003, memo dated 6th November, 2006, the circular dated 19th December, 2006 and the memo dated 28th December, 2006, be examined.
The circular dated 27th November, 2003 is as under:
No. J/2E-l/03(Gen)/2859(25)
Dated 27-11-2003
"CIRCULAR"
Requests for filling up of different vacant posts (Non-PSC) at sponsored ITGs & 2ITI s are being received by this Directorate. In terms of G.O. No. 4100 F.B. dt. 13.12.2000, prior approval from the Appointment Committee of the Cabinet is required to be obtained for filling up of every vacant post (Non-PSC) before issuing administrative approval for filling UP of the same.
In view of the above, Head of the ITCs/lTI s are requested to furnish proposal for filling up of every vacant post (Non-PSC) separately containing particulars and documents as enclosed herewith at Annexure ''A''.
Sd/-
Director of Industrial Training
West Bengal
(Emphasis supplied)
11. The relevant portion of the memo dated 6th November, 2006 is as under:
To: The Director of Industrial Training, West Bengal.
Subject: Appointment to the post of Clerk (Cashier) in "General" category at Satish Ch. I.T.C., Kalanabagram, Dist. Burdwan on regular basis.
-------------
Ref: His letter No. 3482. dt. 12.12.2005
The undersigned is directed to refer to the above noted letter on the subject mentioned above and to say that the Governor has been pleased to accord approval to the filling up of the l(one) post of Cashier (clerk) at Satish Chandra Industrial Training Centre, Kalanabagram, Dist. Burdwan on regular basis in the scale of pay of Rs. 3,350-6,32-5/- per month alongwith the other admissible allowances as per rules in force.
2. The Director of Industrial Training. West Bengal is hereby requested to take early necessary steps for filling up the said post on regular basis.
3. This order issues with the approval of the Appointments Committee of the Cabinet under their U.O. No. CAB(A)-133. dated 26.10.2006 on the decision of the Appointments Committee of the Cabinet meeting held on 19.10.2006 with the concurrence of the Finance Deptt. vide their U.O. No. 343, Group-''P''-Service, dated 06.07.2006.
4. The formal order in connection with the above said appointment will be issued by the Secretary of the Governing Body of the said instt.
5. The Principal Accountant General (A&E), West Bengal is hereby being informed.
kd/-
6.11.06
No. 655/ 1 (5)-TET(Trg)
Sd/
O.S.D. & Ex-Officio Dy. Secretary
to the Govt, of West Bengal.
Dated: 6.11.2006
(Emphasis supplied)
12. The relevant portion of the Circular dated 19th December, 2006 is as under:
"CIRCULAR"
It is hereby notified for information to the authorities of concerned ITCs that framing up of "Recruitment Rules" for appointment of different posts at Industrial Training Centres are under active consideration of the Technical Education and Training Department for some time past. By this time approval of ACC for filling up some posts on regular basis at some ITCs have been obtained. But the same cannot be processed in absence of valid "Recruitment Rules".
As such, all the Heads of the concerned I.T.Cs are hereby advised to stop the process of regular appointment immediately in the posts for which approval of ACC have been obtained until further orders.
Sd/-
Director of Industrial Training
West Bengal.
No. J/2E/Gen/03/4077(60)
Dated, the 19.12.06.''
(Emphasis supplied)
13. The relevant portion of the memo dated 28th December, 2006 is as under:
"To
The Superintendent
Satish Chandra I.T.C.
Kalanabagram
Dist. Burdwan.
Sub: Appointment to the post of Clerk (Cashier) on regular basis at his institute.
As per Memo No. 655 TET(Trg.)/ 4E(ITC)-6/2006 dated 06.11.06 (copy enclosed) necessary approval has been accorded on the cited subject.
Appointment procedure at his end may be suspended temporarily until he receives the recruitment rules, which is supposed to be published very soon.
Enclo: As stated.
DIRECTOR OF INDUSTRIAL TRAINING
WEST BENGAL"
(Emphasis supplied)
14. As seen from the circular dated 27th November, 2003 that prior approval from the Appointments Committee of the Cabinet is ''required'' to be obtained or is essential for filling up every vacant post before issuing administrative approval. Thus, soon after the ''required'' approval of the Cabinet Committee was granted, State by memo dated 6th November, 2006 directed the Director of Industrial Training to take early necessary steps to fill up the post in the institute and it was pointed out that formal order of appointment would be issued by the Secretary of its Governing Body. Thereafter, as evident from the letter dated 5th January, 2007, being annexure R5 to the affidavit in opposition, filed by the Respondent No. 2, the Secretary of the institute had on 9th November, 2006 requested the Respondent No. 3 to send names of the candidates. Accordingly, the Respondent No. 3 had sent the names on 7th January, 2007. Does it mean the recruitment process had commenced? That the process of recruitment had started is explicit from the circular dated 19th December, 2006 whereby the heads of the Industrial Training Centres were advised to "stop the process of regular appointment" or from the memo dated 28th December, 2006 directing to "suspend temporarily" the appointment procedure, indicating stoppage or suspension of the process of appointment which had commenced. Incidentally stoppage or suspension means not to continue further with an action which is already in motion. The action in this case means the process of appointment of clerk in the institute concerned. The argument of the Respondents that selection procedure commences with the holding of test cannot be accepted as it is to be kept in mind that every selection procedure has a methodology of its own. Thus, as the selection process had started, it would be governed by the recruitment method prevalent on the date of the approval granted by the Appointments Committee of the Cabinet.
15. Thus, as there was no change with regard to the status and administrative and other power of the institute as seen from the memorandum dated 26th November, 2003, as the process of recruitment had started with the grant of ''required'' approval of the Appointments Committee of the Cabinet, since by memo dated 9th November, 2006 the Respondent No. 3 was requested to send names of the candidates which were sent and as the said process of recruitment was stopped or suspended as evident from the memorandum dated 19th December, 2006 and the circular dated 28th December, 2006, meaning thereby the process of recruitment in motion was stopped, in my view, the argument of the Respondents that the recruitment process begins with the holding of test cannot be accepted. Therefore, the argument of the Respondents that the recruitment process did not start as there has been change of recruitment guidelines and the case of the Petitioner would be governed under the new guidelines if he is still within the prescribed age, cannot be accepted. Besides it is to be noted that the ''recruitment guidelines'' contained in the memorandum dated 17th August, 2010 are prospective in nature. It is evident from a perusal of its relevant portion, which is as follows:
In supersession of all previous orders in this regard, as related to the recruitment to the posts of different categories of Clerical Staff (Head Clerk, Store Clerk, Cashier, Clerk & Typist) at various Government Sponsored Industrial Training Centres (formerly known as Junior Technical Schools) in West Bengal, the Governor is pleased hereby to make the following Guidelines regulating the recruitment to the aforesaid posts at various Government Sponsored Industrial Training Centres (formerly known as Junior Technical Schools) in West Bengal.
All vacancies in the abovementioned posts shall be filled up observing the norms as laid down in West Bengal Act 14 of 1999 and as amended thereafter....
Evidently the memorandum dated 17th August, 2010 containing the new "Recruitment Guidelines" are prospective in nature as it speaks of "supersession of all previous orders" relating to recruitment from that date. Had it been retrospective, it would have been mentioned. Therefore, as the recruitment process had started on the date of granting the ''required'' approval by the Appointments Committee of the Cabinet, the Petitioner will be governed by the recruitment guidelines or procedure already existing on the date of such approval. The law laid down in Snehansu Jash (supra) relied on by the Respondents is not to be considered as in MAT 592 of 2002 it has been held that the decision in Snehansu Jash (supra) does not operate as a binding precedent.
16. Therefore, in my view, as the process of selection for the post of Clerk (Cashier) was initiated which was subsequently stopped or suspended, for the reasons as enumerated, the Respondents including the Respondent No. 2 would consider the candidature of the Petitioner for the post of Clerk (Cashier) in the institute in accordance with the recruitment guidelines or the method of selection prevalent on the date of approval by the Appointments Committee of the Cabinet. In view of the reasons as mentioned, I hope and trust that the Respondents shall complete the recruitment process as regards the Petitioner at the earliest. While completing the process the Respondents shall not take note of the Circular dated 19th December, 2006 and memo dated 28th December, 2006. The writ petition is, thus, allowed.
No Order as to costs.
Later:
17. After the Judgment is delivered, learned Advocate for the Respondent No. 2 prays for stay of its operation. Prayer is considered and rejected.
18. Urgent xerox certified copy of this Judgment and order, if applied for, be furnished to the appearing parties on priority basis.
