IN THE WEST BENGAL ADMINISTRATIVE TRIBUNAL
BIKASH BHAVAN, SALT LAKE CITY
K O L K A T A – 700 091
Present :-
The Hon’ble Mr. Justice Alok Kumar Basu,
Chairman
-AND-
The Hon’ble Dr. Kalyan Kumar Bagchi
Member (A)
J U D G M E N T
of
Case No. : O.A. 135 of 2012 (Subhash Chatterjee + 24 ors. Vs. State of W. B & ors.)
Case No. : O.A. 211 of 2012 (Dipankar Mondal + 29 ors. Vs. State of W. B & ors.)
Case No. : O.A. 369 of 2012 (Sushanta Banerjee + 2 ors. Vs. State of W. B & ors.)
Case No. : O.A. 386 of 2012 (Manik Kr. Debnath + 17 ors. Vs. State of W. B & ors.)
Case No. : O.A. 396 of 2012 (Surajit Ganguly + 289 ors. Vs. State of W. B & ors.)
Case No. : O.A. 407 of 2012 (Sankar Banerjee + 53 ors. Vs. State of W. B & ors.)
Case No. : O.A. 528 of 2012 (Anupam Roy + 24 ors. Vs. State of W. B & ors.)
Case No. : O.A. 592 of 2012 (Santanu Gayen Vs. State of W. B & ors.)
Case No. : O.A. 641 of 2012 (Prasanta Paul + 6 ors. Vs. State of W. B & ors.)
Case No. : O.A. 642 of 2012 (Bablu Das + 9 ors. Vs. State of W. B & ors.)
Case No. : O.A. 643 of 2012 (Prabir Kr. Biswas + 4 ors. Vs. State of W. B & ors.)
Case No. : O.A. 702 of 2012 (Subrata Modak Vs. State of W. B & ors.)
Case No. : O.A. 703 of 2012 (Shibendu Sarkar Vs. State of W. B & ors.)
Case No. : O.A. 704 of 2012 (Nitai Kr. Sikder Vs. State of W. B & ors.)
Case No. : O.A. 712 of 2012 (Biswajit Chatterjee + 6 ors. Vs. State of W. B & ors.)
Case No. : O.A. 718 of 2012 (Kanti Kr. Jana Vs. State of W. B & ors.)
Case No. : O.A. 719 of 2012 (Anil Kr. Patra Vs. State of W. B & ors.)
Case No. : O.A. 720 of 2012 (Debabrata Mahata Vs. State of W. B & ors.)
Case No. : O.A. 740 of 2012 (Pradip Mondal + 11 ors. Vs. State of W. B & ors.)
Case No. : O.A. 761 of 2012 (Bappa Dutta + 163 ors. Vs. State of W. B & ors.)
Case No. : O.A. 867 of 2012 (Tushar Mukherjee + 5 ors. Vs. State of W. B & ors.)
Case No. : O.A. 929 of 2012 (Tarun Kr. Guin + 62 ors. Vs. State of W. B & ors.)
For the Applicants:-
Mr. Arunava Ghosh,
Mr. Subrata Mukherjee,
Mr. Anindya Lahiri,
Mr. S. Bhattacharya,
Ms. N. Mitra,
Mr. P.S. Chakraborty,
Md. Mahmud,
Mr. S. Ahmed,
Mr. S.K. Mondal,
Mr. B. Roychowdhury,
Mr. P. Sarkar,
Mr. J. Das,
Mr. A. Bhattacharya,
Mr. S.K. Bera,
Mr. P. Pal,
Mr. K.L. Mondal,
Ms. E. Goswami,
Ms. I. Banerjee,
Ld. Advocates.
For State Respondents:-
Mr. A.L. Basu,
Ms. S. Agarwal,
Mr. S. Ghosh,
Mr. R.A. Chowdhury,
Mr. A. Hati,
Mr. S.N. Roy,
Mr. G.P. Banerjee,
Ms. M. Mallick,
Mr. M.N. Roy,
Mr. D. Koley,
Mr. B.P. Roy,
Ld. Advocates.
For the Public Service Commission (PSC) :-
Mr. A. Mitra,
Mr. B.K. Roy,
Ld. Advocates.
Judgment delivered on: 15.03.2013.
22 applications viz. OA 135/12, 211/12, 369/12, 386/12, 396/12, 407/12, 528/12, 592/12, 641/12, 642/12, 643/12, 702/12, 703/12, 704/12, 712/12, 718/12, 719/12, 720/12, 740/12, 761/12, 867/12 and 929/12 came up for hearing today. The facts and the legal issues being almost identical, with consent of all the parties, all these applications were taken up for analogous hearing.
2. The prayers of the applicants in these applications are for issue of mandatory orders commanding the respondents (i) to appoint the applicants to Group D posts in the West Bengal Secretariats/Directorates and Regional offices in the districts as contemplated in the advertisement no. 9/09 (ii) to initiate the process of appointment of the applicants whose names appeared in the panel dated 15.6.2011 (especially respondent no. 3) (iii) not to proceed with the recruitment of candidates in respect of subsequent panels (iv) to distribute the applicants whose names appeared in the panel dated 15.6.2011 amongst other Secretariat Departments/Directorates and Regional offices, in the alternative, to cancel the appointment of candidates who have been appointed to Group D post from the later panels dated 28.6.11, 13.7.11, 13.10.11 and 6.12.11 and to make an arrangement that all the empanelled candidates including the applicants may be appointed shortly or within the specified period in accordance with their ranking in the said panel and to give effect to their appointments from prior dates compared with others so that they can get the benefit of seniority in accordance with their merit/ranking and also to pay their arrear dues as admissible.
3. The case of the applicants as made out in the applications mentioned above are more or less identical and may be summarized as follows :
(a) An advertisement no. 9/09 was published by the Public Service Commission, West Bengal (PSC) inviting applications from candidates for filling up of Group D post for recruitment to the vacant post of Peon, Orderly Peon, Night Guard, Darwan and Farash and post of such other nomenclature in the West Bengal Secretariats, Directorates and in the Government offices of the district of West Bengal. The advertisement was not restricted to any particular department or Directorate of West Bengal. It was contemplated that recruitment will be made in 3 tiers, there being 33 vacancies in Secretariats, 44 in Directorates and 3936 vacancies in the 19 districts in the Regional offices. The applicants all applied for such post and selection process by way of written examination was conducted by the PSC on different dates and they participated in such examination.
(b) The first panel dated 30.5.11 was published in respect of Secretariats and Directorate offices. In continuation of the first panel, the second select list of candidates dated 15.6.11 was forwarded by PSC wherein names of all the applicants appeared. In such list the applicants have all been recommended to the post of GDA belonging to the cadre of Group D against Regional vacancies under the Health and Family Welfare (H & FW) Department and it contained the names of 2801 candidates. The panel was divided in respect of the districts only and there was no recommendation in respect of other Departments/Directorates. This was followed by 3rd, 4th, 5th and 6th panels dated respectively 28.6.11, 13.7.11, 13.10.11 and 16.12.11. It is to be mentioned that these panels were distributed districtwise in respect of different Directorates/Departments and they were all issued in continuation of the first panel.
(c) Though no one from the second panel has yet been offered appointment, several candidates whose names appeared in subsequent panels have either been appointed or/are in the process of being appointed. One Tanmoy Das whose name appears in the panel dated 28.6.11 has been appointed in Kolkata Pay and Accounts – I and Ujjal Roy being the very next candidate has also been appointed in the said office. Liton Saha whose name appears in the panel dated 13.7.11 has been appointed in Kolkata Collectorate under L & L R Department.
Ventilating their grievance, the applicants made representation addressed to the concerned authorities but without any result. Hence the applications.
4. Out of the 22 applications, the department of H & FW has come up with a reply only in OA 211/12 and in spite of repeated opportunities they did not file any reply in respect of other applications. The basic point taken in the reply in OA 211 of 12 is that with regard to the point in issue, a 2 member committee was constituted by the department to have their views regarding appointment of empanelled candidates. The committee submitted their views on 15.5.12 and the H & FW Department submitted that in view of the recommendation of the committee they are of the opinion that the applicants are not entitled to any relief as prayed for.
5. The view of the committee as annexed in the application is reproduced below :
“The health sector is always in the need of manpower. This sector stands apart insofar as most of its manpower requirement is for people who are trained/educated and have specific skill sets. At the same time, they are expected to be above queasiness and have a sense of service and purpose.
A Gr. D staff member appointed to any other department is responsible for carrying files from one desk to another, getting a glass of water and serving a cup of tea. Such activities neither require any niche skill set nor a high qualification set. It is sad that in our country in the event of vacancies of Gr. D staff being announced, invariably graduates and post graduates apply and get selected. In sharp contrast to other departments/directorates in the government, a Gr. D staff member in the health directorates, without fail, has to maintain a close association with the patients and is required to handle human refuse, blood, body parts and even dead bodies. Queasiness is not something that can be tolerated and the finer sensibilities that come with high qualifications often prove to be a hindrance in performance of duties.
The Public Service Commission is primarily configured to recruit personnel to the higher grades of the government. That it has recruited Gr. D staff for the government is unusual. However, it is also important to bear in mind that, a general recruitment process was carried out and no niche skills/capacities were tested for or used as a criterion for selection. 2817 candidates were selected for the directorate of health services out of a larger recruitment of Gr. D staff for various departments. The health directorates need people with particular skill/mind set and that is not negotiable.
Under the health department, the West Bengal Health Recruitment Board (WBHRB) has been created to carry out specific need based recruitments. It is only appropriate to have vacancies within the various wings under the health & family welfare directorates filled by recruitments carried out by the WBHRB.”
Sd/- Sd/-
Director of Health Services Director of Medical Education
West Bengal West Bengal
6. In two applications viz. OA 407/12 and OA 528/12 the department of Public Works (Roads) filed replies. The substance of the reply of PWD is that the PSC recommended names of 55 candidates for appointment in 55 vacancies in different Group D posts in the Secretariats and Regional offices under the department and out of 55 such candidates, 4 candidates were recommended for Secretariat office and 51 candidates were recommended for Regional offices (districtwise). Out of 4 candidates recommended by the Commission for the Secretariat, 3 have already been appointed and the fourth did neither respond to the letter and reminder issued, nor he did submit the filled up Verification Roll Form. 51 candidates recommended for Regional office were allotted to different circle offices under PW (Roads) Directorate and some of those selected candidates have been appointed after observing all the necessary formalities while appointment of the other candidates is in process. It was submitted on behalf of the department that they were not in a position to initiate the process of appointment to the applicants who have been exclusively recommended for H & FW Department.
7. PSC filed replies in all the cases and also additional replies in response to certain specific queries made by us. The position taken by the PSC as it appears from the written reply is that they issued advertisement no. 9/09 for recruitment to the post of Peon, Orderly Peon, Night Guard, Darwan, Farash and such other nomenclature of post under the cadre of Group D in accordance with rules of recruitment notified by the Government vide Notification No. 3326-F dated 5.5.09. The declared total number of vacancies was 4013 (Secretariat 33, Directorate 44, Regional 3936) and it was stated that the number of vacancies might increase.
8. The examination was held in April, 2010 on three consecutive dates and on the basis of such examination the PSC prepared a merit list containing 21899 candidates (13147 in general standard list (GSL), 1110 in relaxed standard list (I) for BC, 5768 in relaxed standard list (II) for SC, 1879 in relaxed standard list (III) for ST. The final merit list contains names of larger number of candidates than the declared vacancies existing at the time of first phase of allotment i.e. the panel for some more probable vacancies has also been prepared. Allotments were made according to the candidates’ merit position, the option exercised by them and also availability of vacancies. Allotments were made in phases, subject to availability of vacancies and the panels prepared are valid for 3 years.
9. H & FW Department had furnished a requisition with a large number of vacancies i.e. 3700 vacancies with districtwise breakup. The candidates whose first option was in a district had been allotted for that relevant district in the Regional offices of the department. In addition, successful candidates were allotted for appointment in Secretariat/Directorate/Regional offices according to their position in the merit list and the options exercised by them. The Commission made it clear that they have no role and/or jurisdiction in the matter of offering appointments which is entirely the domain of the concerned departments.
10. The PSC submitted that the candidates were recommended in 7 installments from the merit list of 21899 qualified candidates as follows:
Sl. No. installment with date no. of candidates recommended
1 30.05.11 193
2 15.06.11 2802
3 28.06.11 266
4 13.07.11 272
5 13.10.11 272