Dr. Arun Sarkar vs State Of West Bengal And Others

@JUDGMENT-JUDGMENT

Protik Prakash Banerjee, J

A) Whether amputation of both the arms (bilateral upper limb amputee) is a disability which precludes an otherwise qualified Assistant Professor of

Bengali from discharging his duties, is what Mr. Sanyal wants me to decide in this writ petition. However, I am afraid that WP No.29975 (W) of 2017

[Dr. Arun Sarkarâ€" vâ€"State of West Bengal and Others] does not really ask for this in terms, and there is no challenge to any refusal of the

college authorities to appoint him on any ground. What it seeks is that the Respondents No.4 to 6, being the College Authorities, issue him with an

appointment letter in terms of the recommendation of the College Service Commission made after due process of selection, dated April 27, 2019, and

to allow him to join in the substantive post of Assistant Professor in Bengali of Acharya Girish Chandra Bose College, 35, Rajkumar Chakraborty

Sarani (Scott Lane) Kolkata â€" 700 009 and to pay him the salary in accordance with law, month by month.

B) The facts are not in dispute. The petitioner had suffered a train accident while working as an Assistant Teacher in a high school, underwent a

bilateral amputation of the upper limbs, and claims to be 80% disabled. He was thereafter accommodated in the physically handicapped category of

Assistant Teachers through the West Bengal School Service Commission. He was selected as a physically handicapped category candidate by the

West Bengal College Service Commission, and joined service on its recommendation, at the Kandi Raj College in Bengali. It is the case of the

petitioner that his present residence is at Naihati and it is not possible for him to travel 480 km every day to serve at Kandi while staying at Naihati; at

the same time, it is not possible for him to live all alone at Kandi, after amputation of both the arms. He claimed that it was not possible for him to shift

his residence to Kandi from Naihati because one of his daughters was studying at a school in Naihati and the other at a college in Kolkata. This being

the position the other family members of the petitioner’s family could not relocate to Kandi, the place of posting of the petitioner. So, the petitioner

sought appointment as an in-service candidate and applied under the advertisement No.1/2015 for the post of Assistant Professor in a vacancy of

physically challenged category and was successful in the duly held selection process, and was recommended by the West Bengal College Service

Commission by a letter dated April 27, 2015 to the said Acharya Girish Chandra Bose College under Section 7 of the West Bengal College Service

Commission Act, 2012, for the substantive post of Assistant Professor in Bengali in the PH (Physically Handicapped) Category and the vacancy with

RP No.12. A request was made to issue the appointment letter within a month from receipt of the recommendation. Since nothing was done, hence

the writ petition under Article 226 of the Constitution of India was taken out, seeking the reliefs mentioned in paragraph 1 above.

The matter was heard on affidavits. The principal points which were taken by all the respondents, including the West Bengal College Service

Commission, were that recommendation, even after success in a selection process, did not mean that a right to appointment had accrued to the

candidate, and that the recommendation was not binding on the college. A subsidiary point taken by the respondents No.4 to 6 (college authorities)

was that the petitioner was not a person with a disability within the meaning of The Persons with Disabilities (Equal Opportunities, Protection of Rights

and Full Participation Act, 1999) (hereinafter, the said Act of 1995). The petitioner rebutted this last point by submitting that he had been treated to be

a physically handicapped candidate with a disability of 80% as certified by the competent authority under the said Act of 1995 and had been given

appointment on that basis at Kandi and his pay had also been fixed on that account there, and it was too late in the day to take this point and the

respondent authorities were estopped from taking this point after having accepted the status of the petitioner has (as?) a person with disability under

the said Act of 1995 for so long.

Let us take this question of the petitioner not being a person with disability within the meaning of the Act of 1995 first. If the respondents No.4 to 6

succeed in this, then regardless of the fact not being taken by the Commission earlier, a case can be made out that the petitioner could not have been

treated as a person with disability under the said Act of 1995 and therefore, not allowed to participate in a selection process of 2015 in that category,

regardless of his having been so allowed earlier.

The respondents No.4 to 6 rely upon Section 2(i) of said Act of 1995, to show that bilateral amputation of upper limbs is not a disability mentioned

therein. Section 2(i) aforesaid, reads as follows: -

Section 2: Definitions: - In this Act, unless the context otherwise requires,

******

Clause (i): Disability meansâ€

Blindness.

Low Vision.

Leprosy-cured.

Hearing impairment.

Locomotor disability.

Mental illness.

In order to strengthen this proposition, that there was an omission on the part of the legislature to include any disability caused by amputation, in the

said Act of 1995 and that this mistake was sought to be remedied in view of the treaty obligations of the country, the learned Senior Advocate on

behalf of the respondents No.4 to 6 further relied upon the provisions of the Rights of Persons with Disabilities Act, 2016, (hereinafter the said Act of

2016). He relied most particularly upon the provisions of Section 2(s) of the said Act of 2016, which reads as follows: -

“person with disability:- means a person with long term physical, mental, intellectual or sensor impairment, which in interaction with barriers, hinders

his full and effective participation in society equally with others.

So according to the respondents No.4 to 6, in any advertisement made after the said Act of 2016 came into force, person with disability caused by

amputation would be eligible to apply under the physically handicapped category, but not in an advertisement of 2015, when the new Act had not come

into force. If we consider only this definition of disability, divorced from its context, and come to the conclusion that ‘amputation’ is not a

disability within the meaning of the statute aforesaid, perhaps we would be committing a very basic mistake. The items enumerated in Section 2(i) of

the said Act of 1995 are disabilities, whereas ‘amputation’ is a cause for a disability. It is the effect of the amputation on the basis of which

disability is to be ascertained.

In this connection, Section 2(o) of the said Act of 1995 assumes importance. Section 2(o) aforesaid, provides: -

Section 2(o): “locomotor disability†means disability of the bones, joints or muscles leading to substantial restriction of the movement of the limbs

or any form of cerebral palsy.

9 Therefore, if locomotor disability means such disability of bones, joints or muscles, leading to substantial restriction of the movement of limbs,

amputation, which removes the limbs or substantial parts thereof would naturally and obviously mean substantial restriction of the movement of the

said limbs, which would constitute locomotor disability. Therefore, I am afraid that I cannot accept the interpretation of Section 2(i) of the said Act of

1995 as advanced by the respondents No.4 to 6 which would have the effect of removing amputation as a cause for locomotor disability and operate

to frustrate the purpose of the said Act of 1995.I therefore, hold against the respondents No.4 to 6 in respect of the subsidiary point as in paragraph 3

taken by them.

10 Now we come to the meat of the matter, being the principal objections of all the respondents summarized at paragraph 3 above. Taking the first of

these principal objections, I agree that the law is well settled that mere selection does not confer on the selectee any indefeasible right to be appointed

or to have a mandamus issued by way of an application under Article 226 of the Constitution of India for his appointment. This shall appear inter alia

from the decision of the Hon'ble Supreme Court in the case of Balakrushna Behera and Othersâ€"vâ€" Satya Prakash Dash reported in (2008) 1

SCC 318. Therefore, that a selectee was recommended for appointment in a particular post at Acharya Girish Chandra Bose College creates in him

no right to have an appointment letter from the said college; I therefore, hold in favour of the respondents No.4 to 6 on this point.

Now we come to the thorniest question of them all, being whether a recommendation made by the West Bengal College Service Commission

under Section 7 of the West Bengal College Service Commission Act, 1978, is binding on the respondents No.4 to 6 or not.

Thankfully, the question has been answered by an Hon'ble Division Bench of this Court on reference by a learned Single Judge.

It appears that in a case arising out of a government sponsored college which was fully aided by the State, a question arose whether the procedure for

appointment of a teacher through the College Service Commission would be applicable. In W.P. 4366 (W) of 2003 (Dr. Bikash Ghosh â€"vs- State of

West Bengal & Ors.) A.K. Banerjee, J. (as his Lordship then was) was pleased to take the following view: -

“Here, the concerned college is a Government sponsored college. The college is fully aided by the State. As much, they are bound by

recommendation made by the College Service Commission.â€​

In a similar vein was the judgment in the case of Baisakhi Banerjeeâ€"vâ€"Chairman, West Bengal College Service Commission reported in (2006)

110 CWN 538 wherein it was held that:

“The recommendation of the West Bengal College Service Commission regarding appointment of lecturer is binding on the College Authority.â€​.

The above view was in fact wholly different from and contrary to the view taken by a coordinate bench way back in 1988 is in the case of C.O.

18223 (W) of 1985 passed on 11th February, 1988 by Umesh Chandra Banerjee, J. (as His late and lamented Lordship then was). His Lordship’s

view was that the legislature in its wisdom had not thought it fit to incorporate in the statute of 1978 that the Governing Body of a college is bound to

accept the recommendation of the commission without any demur or protest.

His Lordship, in fact, expressed his view eloquently, to the following effect: -

“In my view, the language of the statute cannot be read into such a straight â€" jacket formula that there is no scope for the college authority to

raise an objection in the matter of appointment of a principal. Principals are appointed for the proper administration of the college including the

education sphere. Educational qualification by itself would not be sufficient; the administrative capability and the dealings with the members of the

staff - teaching and non - teaching the student teacher relationship etc. would have to be considered, as otherwise the educational institution would be

in doldrums with no effective administrative system in the concerned institution. To say that the Governing body has no say in the matter and is bound

to accept the recommendation of the commission without a demur or a protest or without any objection would be putting something into the words of

the statute which the Legislature in its wisdom thought it fit not to incorporate. It is now well-settled that in the matter of interpretation of statutes,

plain literal meaning ought to be attributed to the language used with no addition or supplemental to the language of the statute. In my view, the

Governing Body of the college would be within its right to request the college commission for appointment of the Principal from some-one outside the

college by reason of lack of administrative capability and in any event, lack of confidence onto the concerned person. Confidence go a long way in the

smooth running of the institution and in the event there being any lack of thereof, the whole administrative system of the college concerned would

crumble down and the interest of education would die a natural death. There must be proper cohesion understanding between the management of the

school and the Principal of the institution. In the event of there being lack of understanding, the educational atmosphere would be polluted resulting in

complete frustration of the object with which the educational institution was founded. In the case under consideration it appears that the Governing

Body has no confidence onto the person concerned. It would be unjust and unfair on the part of the Law courts to trust someone who according to the

authority does not deserve to be so appointed as the Principal of the College.

Whereas it is true that no Principal can be appointed by the statute 1978 without the recommendation of the college commission. But that does not

mean and imply that whomsoever the College commission recognizes, the administration would be bound to accept him inspite of special knowledge as

regards the non â€" suitability of the concerned candidate in so far as the administrative of the College is concerned.â€​

It is apparent that the first two judgments took a diametrically opposite view of the law as compared to the last judgment above. Hence, a

reference was made by a learned Single Judge, to the Hon'ble Division Bench, inter alia on the question of “1. “Whether recommendation of the

College Service Commission for the post of Principal, or for that matter any teaching post is binding on the college and mandatory inasmuch as

whether once a recommendation is made, the college may request the College Service Commission to revise or change the said recommendationâ€​.

After noticing the divergent judgments, their Lordships of the Division Bench noticed the statutory provisions, on which the differing judgments had

been based, as below: -

“7. Functions of the Commission. â€" (1) Notwithstanding anything contained in any other law for the time being in force or in any contract, custom

or usage to the contrary, it shall be the duty of the Commission to select persons for appointment to the post of Teachers of a College :

Provided that â€

For the selection of persons for appointment to the posts of Teachers other than Principal, the Commission shall be aided by two persons having

special knowledge on the subject for which such selection is to be made, of whom one shall be a Nominee of the University to which such college is

affiliated and the other shall be a nominee of the Chancellor of such University.

for selection of person for appointment to the post of Principal, the Commission of the University to which such college is affiliated or his nominee

and a nominee of the Chancellor of such University.

It shall also be the duty of the Commission to advise the Chancellor or the State Government on such matter as may be referred to it by either of

them.

Manner of selection of persons and procedure for the conduct of business of the Commission. â€" (1) The manner of selection of persons for

appointment to the posts of Teachers of a college shall be such as may be provided for by regulations.

The procedure for the conduct of business of the Commission shall be such as may be provided for by regulations.

9 Effect of recommendation of the Commission.- Notwithstanding anything contained in any other law for the time being in force or in any contract,

custom or usage to the contrary, appointments to the post of Teacher of a college shall be made on the recommendation of the Commission.â€​

“(1) On receipt of a request made by the Principal of a college for recommending the name of a suitable candidate for appointment in a vacancy

against, an approved post, the commission shall recommend only one name from the panel for appointment against the vacancy. A copy of the letter

recommending the name shall be endorsed to the candidate concerned.

 The topmost name appearing in the panel at the material time shall be recommended every time.â€​

Their Lordships were pleased to record that the case of Dr. Baidyanath Mukherjeeâ€"vâ€"State of West Bengal and Others reported in (1982) 2

CLJ 300 had been cited before them but since the question in that case was whether the claim of the first candidate in the list of selected candidates

could be ignored by the School Service Commission and a person occupying a lower rank in the list could be recommended, and it was a case

challenging arbitrary exercise of power by the College Service Commission whereas the question before the Division Bench was whether the college

is bound by the recommendation made by the College Service Commission, the judgment was not applicable.

(p) The Hon'ble Division Bench decided the reference on the point whether the recommendation of the College Service Commission for appointment

of a candidate is binding on the concerned college, by holding that: -

a) “We are also unable to accept the submission of Mr. Mukherjee that recommendation by the College Service Commission is neither an advice

nor a request. The dictionary meaning of the word 'recommend' is 'to speak or write of or suggest as fit for employment or favour'; 'to advice that a

thing should be done (the Pocket Oxford Dictionary of current English, 5th Edition).â€​

b) “We are also unable to accept the submission of Mr. Mukherjee that the person selected has an indefeasible right which can be enforced by a

writ of mandamus. He conceded that in exceptional cases a writ in the nature of mandamus may be refused. We are of the opinion that a writ in the

nature of mandamus may be refused by the Court for good reasons. We are supported in our view by the judgement of the Apex Court in the case of

Jai Singh Dalal-vs.-State of Haryana, 1993 Supp. (2) SCC 600⠀where paragraph 7 of the journal cited was relied upon as also “. In a recent

decision in Shankarsan Dash-vs.-Union of India, 1991 (2) SCT 555 : 1991 (2) SLR 779 (SC, )the Constitution Bench of this Court reiterated that even

if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates do/not acquire any

indefeasible right to appointment against the existing vacanciesâ€​.

iii) Sec. 7 of the West Bengal College Service Commission Act, 1978 provides that the duty of the Commission would be to select persons for

appointment to the post of teacher of a College. Sec. 8 of the Act provides that the manner of selection shall be as laid down by the regulations. Sec.

9 stipulates that appointments to the post of Teacher (which as per the definition Section includes a Principal) shall be made on the recommendation of

the Commission. None of the aforesaid sections relied upon by Mr. Mukherjee makes it mandatory for a college to appoint a candidate recommended

by the Commission for appointment to the post of a Teacher.

(iv) Read together, the said sections mean that no person who is not recommended or approved by the Commission shall be appointed as a Teacher or

Principal of a College. The final decision whether or not to give appointment to the selected person is in the realm of the College Authorities. The

decision must however be bona fide, free from arbitrariness and in the best interest of the concerned institution.

(v) Regulation 9 of the Regulations framed under the 1978 Act which has been extracted above, also cannot be understood as making it mandatory for

a College to give appointment to a person recommended by the Commission. The said rule only empowers the Commission to recommend the name of

a suitable candidate for appointment from the panel and further requires the Commission to recommend the top most name appearing in the panel at

the material time. Neither the Commission nor the recommended candidate can insist that the College must appoint such person. The Governing Body

of a College may have very good reasons for not accepting the recommendation of the Commission, in which case, the Governing Body should

communicate its decision with reasons to the Commission and request for a fresh recommendation. It would be the duty of the Commission in that

event to make a fresh recommendation in accordance with Regulation 9(2).

(f) As regards the submission of Mr. Mondal, who represented the College Service Commission, that there is no other source of appointment except

Sec.9 of the 1978 Act, we are in agreement with him to the extent that no appointment can be made dehors or ignoring Sec. 9. However, it does not

follow from the same that the recommendation of the Commission under Sec. 9 is binding on the concerned College. Such an interpretation of Sec. 9

is neither warranted nor desirable.

(g) In Jatinder Kumar-vs.-State of Punjab, AIR 1984 SC 185 0relied on by Mr. Dutta, Learned Senior Advocate appearing for the Governing Body,

the Hon'ble Supreme Court held that though the selection has to be made by the Commission and the Government can fill up the posts by appointing

only those selected by the Commission and not otherwise, yet, the selection by the Commission is only a recommendation and the final authority for

appointment is the Government.

(q) In such view of the matter, the question of law has already been decided by a Division Bench of this Court and I merely have to apply the decision

on the question of law. The recommendation of the petitioner by the West Bengal Service Commission for being appointed as an Assistant Professor

of Bengali in Acharya Girish Chandra Bose College in the concerned vacancy was neither binding on the college nor clothed the petitioner with any

right to seek an appointment letter from the respondents No.4 to 6 pursuant to the said recommendation; since the writ petition was instituted for this

relief, I hold that the writ petition, for the reasons mentioned above, is not maintainable for issuance of a mandamus for the purpose prayed for, based

only on the recommendation of the Commission. The writ petition therefore fails.

(r) The writ petition had alleged non-consideration of the representation made by the petitioner and that the respondents no.4 to 6 were not taking any

steps. The respondents No.4 to 6, in their affidavit-in-opposition have disclosed that they have written to the respondent no. 1 and to the appropriate

authority as to why they believe that the petitioner is not suitable for the post as recommended. This has not been challenged by the writ petitioner

separately and appears to be beyond the scope of the writ petition. The sufficiency of the reasons given by the respondents No.4 to 6 cannot be gone

into by me in judicial review, unless it has been properly impeached by pleadings and an opportunity has been given to the respondents to respond to it.

The submission of Mr. Sanyal, that the prayer for the writ of certiorari in conjunction with a prayer for appropriate directions or orders can encompass

such relief is a little too sweeping for it to be accepted when there are no pleadings. It is not as if all the materials were there on record and the

reasons for challenging the decision also pleaded therein, and only the specific prayer for quashing of the decision was missing. Here, as I have

recorded, the case of the petitioner was that the respondents no.4 to 6 were not acting on the Commission’s recommendation and had not taken

steps, but the case was never that the respondents No.4 to 6 had written to the Commission or the State that the writ petitioner was unsuitable and it

was never their case that the reasons given by the respondents no.4 to 6 were not sufficient or lawful. The respondents No.4 to 6 made this objection

clear at the outset still the petitioner did not choose to apply for leave to amend the writ petition and bring his allegations on record. I cannot therefore,

grant any relief to the writ petitioner in this petition. Thus, while I dismiss the writ petition, I grant liberty to the writ petitioner to challenge in

accordance with law the decision of the respondents No.4 to 6 as disclosed in the affidavit-in-opposition of the respondents No.4 to 6 to not issue the

letter of appointment to the writ petitioner, and the sufficiency and bona fide of the reasons assigned by the respondents No.4 to 6, if so advised. The

writ petition is dismissed with the above observations. There shall be no order as to costs.

(s) Before parting with this case I record my appreciation of the registry and those involved in electronic dissemination of this judgment in real time,

through the internet, because though this judgment had been prepared long since, due to the unfortunate pandemic and its consequences, until such

technical expertise was brought to bear on a system of virtual court as now obtains in this Court, it could not be delivered.

Later:

After passing of the judgment, Mr. Ratul Biswas, appearing on behalf of the petitioner, prays for extension of the interim order already passed in the

matter and which was continuing to be extended for a further period of two months to enable him to take appropriate steps.

The said interim order, which in effect, continues this lien on the post if not extended would mean that before testing the judgment delivered today, the

petitioner would be without any remedy.

In such exceptional circumstances, even though the writ petition has been dismissed, I stay the operation of this order and continue the interim order

for a period of two months from today or until any further orders passed by the Appellate Court to which this shall be subject.

Urgent Photostat certified copy of this judgment, if applied for, be given to the parties within seven days from date on usual undertaking.