It is unfortunate how a piece of social welfare legislation intended to protect a voiceless section of society is sought to be circumvented by filing such frivolous petitions : Calcutta High Court

IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction Present : Hon’ble Justice Amrita Sinha WPA No. 59721 The State of West Bengal & Ors WPA 92321 Md. Azfar Mondal The State of West Bengal & Ors For the writ petitioners Mr. Biswarup Biswas Adv Mr. Pulak Ranjan Mondal Adv Ms. Bandana Mondal Adv Mr. Subhrangsu Panda Adv Mr. Anil Kumar Gupta Adv For respondent nos. 11 & 12 : Mr. Monish Sen Adv Ms. Oisani Mukherjee Adv For respondent nos. 13 & 14 : For the State Mr. Debabrata Chatterjee Adv Mr. Simanta Kabir Adv Mr. Imtiaz Ahmed Adv Ms. Ghazala Firdaus Adv Mr. Shibasish Banerjee Adv Mr. Sk. Saidullah Adv Ms. Arunima Mukhopadhyay Adv Mr. Debopam Roy Adv in WPA 92321 in WPA 59721 Mr. Ramaprasad Sarkar Adv Md. Mansoor Alam Adv in WPA 92321 Amrita Sinha J.: by this common judgment Facts of both the case being similar the writ petitions are being disposed of A notification was published by the West Bengal College Service Commission ‘the Commission’ for short inviting applications from eligible candidates for appointment in accordance with the WB College Service Commission Regulations 2012 The petitioners belong to the OBC A category. Both of them participated in the recruitment process initiated by the Commission for being appointed as Assistant Professor in the subject Geography. Initially only eight vacancies were published in OBC A category but thereafter fresh vacancies were added and 11 vacancies in the OBC A category have been filled up by way of recommendation The petitioners were selected to participate in the interview. In the provisional merit panel Rentu Biswas was placed in rank 12 and Md. Azfar Mondal was placed in rank 13 in the OBC A category. As the name of the petitioners appeared in serial nos. 12 and 13 respectively in the provisional merit panel published on 6th March 2020 recommendation letter was not issued in their favour According to the petitioners the candidate whose name appeared in rank 2 under OBC A category namely Md. Akhtar Hasinur Rahman was recommended for being appointed in the Maharajadhiraj Udaychand Women’s College Burdwan and he joined the post in July 2020 but suddenly expired in the first week of February 2021. As the said post fell vacant during the pendency of the panel the Commission ought to have directed re counselling for filling up the said post It is the further case of the petitioners that Surendranath College for Women has also sent requisition for filing up the vacant post under OBC A category but the same was not filled up initially. Thereafter the said vacancy was filled up by way of transfer of a candidate from Rabindra Mahavidyalaya. Consequent to the said transfer a vacancy cropped up in Rabindra Mahavidyalaya The petitioners pray that their names may be recommended in either of the two vacancies which arose during the validity period of the panel The Commission has filed a report wherein it has been mentioned that out of the 20 empanelled candidates in the OBC A category 11 candidates were recommended who were above the writ petitioners in rank As per the available records there is no vacancy in the post of Assistant Professor in Geography in the Maharajadhiraj Udaychand Women’s College Burdwan and the College has not reported about the death of the As regards vacancy in Surendranath College for Women the same could not be filled up by recommendation due to the transfer order issued by the Higher Education Department on 5th February 2021. The transfer order has been made from the Rabindra Mahavidyalaya to Surendranath College for Women in favour of one S. Pramanik Assistant Professor in Geography The college authority of Rabindra Mahavidyalaya has sent a letter to the Commission on 26th March 2021 seeking recommendation against the vacancy without submitting the filled in requisition form without the resolution of the Governing body and without the Backward Classes Welfare Department authentication as required for sending valid requisition of vacancy by a College The report further mentions that the requisition submitted by Rabindra Mahavidyalaya on 26th March 2021 shall be guided by Advertisement No. 20 which was published long before the vacancy in Rabindra Mahavidyalaya was reported but as the petitioners are empanelled under Advertisement No. 18 accordingly their names cannot be recommended in respect of the vacancy which arose in Rabindra Mahavidyalaya The learned advocate representing Maharajadhiraj Udaychand College Burdwan submits that admittedly there is a vacancy in the college but the vacancy can neither be declared nor requisition be sent to the Commission as the person who had joined the post is yet to be reported dead either by the police of by his family members. According to the College no valid information about the death of the professor has been received either from the family members of the professor or from the police. In the absence of valid documents of death vacancy of the said post cannot be declared It is the further contention that the petitioners are merely empanelled candidates and they do not have any vested right of appointment. As and when their names will be recommended by the Commission their right to get the job will accrue Prior thereto the petitioners are not entitled to a writ of Mandamus commanding the authorities for issuance of the letter of recommendation in their favour Regulation 3.4 of the aforesaid Regulations has been placed. The said Regulation lays down that only on receipt of a valid and complete requisition from the Principal or Teacher in Charge of a College for recommending a candidate for appointment in a vacancy against an approved post the Commission shall consider the vacancy as a valid vacancy and shall record it as such in its books According to the College requisition cannot be forwarded to the Commission as there is no valid evidence of death of the Professor and according to the Commission until and unless a valid and complete requisition is received from the Principal or the Teacher in Charge of a college the vacancy against an approved post cannot be treated as a valid one The respondents pray for dismissal of the writ petitions In response to the submission made by the respondents the petitioners have relied upon the First Information Report registered in the Purba Bardhaman Sadar P.S on 3rd February 2021 in response to a complaint lodged by the father of Md Akhtar Hasinur Rahman alleging that he suspected his daughter in law as the prime culprit for the death of his son and the offence has been registered under Section 302 of the Indian Penal Code. Post mortem was completed at Burdwan Medical College and Hospital and thereafter the body was handed over to the father It has been submitted that the FIR is a Government document and is enough proof of death of the professor I have heard and considered the submissions made on behalf of both the The panel in question expired on 9th March 2021. During the pendency of the panel the petitioners approached this Court praying for relief. Admittedly the petitioners are empanelled at serial nos. 12 and 13 respectively and candidates up to the serial no. 11 have been recommended for appointment. Out of 11 recommended candidates one has expired. The submission of the College that they do not have the report of death of the said professor is not at all convincing. The professor met an unnatural death. Post mortem of his body was conducted. Case has been registered under Section 302 of the Indian Penal Code. The College admits that vacancy is there and the said vacancy arose within the validity period of the panel but the College for strange reasons did not report the same before the It is not expected that the Commission will have knowledge of all vacancies arising in the Colleges. It is for the Colleges to draw attention of the Commission in respect of any vacancy that arises so that the same may be recorded by the Commission as a valid vacancy. In the absence of reported vacancies it is naturally not possible for the Commission to recommend candidates for filling up the same As regards the vacancy in Rabindra Mahavidyalaya admittedly the transfer order of the professor from Rabindra Mahavidyalaya to Surendranath College for Women was issued during the validity period of the panel. Accordingly there is a vacancy to be filled up in Rabindra Mahavidyalaya In Nirvik Banerjee vs University of Burdwan reported in 2014 3 CLJ Cal) 411 the Court considered the issue as to whether the vacancies arising subsequent to the issue of advertisement or preparation of the panel can be filled up from the same panel. The Court was of the opinion that vacancies arising during the life time of the panel would be capable of being filled up from the same panel. The claim of the candidates cannot be rejected only on the ground that merely on the basis of being empanelled they have acquired no vested legal right to seek appointment from the panel In the said judgment the Court also took into consideration the submission of the respondents that there may be other empanelled candidates whose position may be higher than the petitioner and giving appointment to the petitioner without considering their claim would not be proper. The Court in answer to the above has laid down that if any empanelled candidate did not feel aggrieved enough by the act of the respondent in not considering their candidature for appointment the Court ought not to embark on a search process and identify them and elicit from them whether they are still interested in the subject post. The candidates who have brought the cause to the Court should not be denied justice In the matter of Mousumi Pal vs The West Bengal College Service Commission & Ors. of 2007) in order dated 16th July 2013 passed by this Court reference was made to a decision of the Hon’ble Supreme Court in the matter of State of UP vs Ram Swarup Swaroj reported in3 SCC 699 and the Court observed that even if life time of the panel expired during pendency of the writ petition the petitioner cannot be denied relief specially when the writ petition was moved before expiry of the life time of the panel. The Court was of the view that when merit list was published by the Commission it was noted that the panel was prepared with due consideration of the number of anticipated vacancies then any vacancy which arose for which advertisement was published the Commission should recommend the name of the petitioners. The Commission was directed to recommend the name of the petitioners in any vacancy of which panel was prepared or from the vacancy that occurred subsequently for which next advertisement was published during life time of the panel An appeal and application for stay was filed against the order dated 16th July 2013 and the Hon’ble Appeal Court by order dated 7th October 2013 in MAT 14413 with CAN 102113 was pleased to reject the prayer for stay. The order of the learned Trial Judge was thereafter complied by the Commission and the same has been recorded in the order dated 28th January 2014 passed in WPCRC 396 (W Admittedly in the instant case two vacancies are still available one on account of death of a professor during the pendency of the panel and the other on account of transfer of a professor from Rabindra Mahavidyalaya to Surendranath College for Women Accordingly the Commission is directed to verify about the existence of the two vacancies and if the vacancies are indeed available conduct re counselling from the empanelled candidates for filling up the said posts notwithstanding the fact that the validity of the panel expired in the meantime as the writ petition was filed when the panel was valid Steps shall be taken in the matter at the earliest but positively within a period of eight weeks from the date of communication of a copy of this order WPA 59721 and WPA 92321 are disposed of Urgent Photostat certified copy of this judgment if applied for be supplied to the parties expeditiously on compliance of usual legal formalities ( Amrita Sinha J. 

Summary: The entire object of filing such petition was to procrastinate and delay the recovery proceedings initiated by the respondent authorities. The Hon’ble High Court at Calcutta before The Hon’ble Mr. Justice Ravi Krishan Kapur held such an opinion in the matter of  Ontrack Systems Limited vs.  The Regional Provident Fund Commissioner-II, Employees’ Provident Fund Organisation &amp; Ors [W.P.A.13339 of 2019]. The facts of the case are associated with the petitioner’s primary grievance which was directed against an order passed under section 8B of the Employees’ Provident Fund and Miscellaneous Provisions Act, 1985. The petitioner also challenged the orders passed under section 7Q and 14B of the Act.  It was alleged that, by a notice dated 13 March, 2014, the petitioner establishment was directed to participate in a proceeding under Sections 7Q and 14B of the Act which pertained to defaults in making statutory payments by the establishment under the Act. It was alleged by the petitioner that, The respondent authorities have refused to consider the prayer of the petitioner establishment despite making several representations on the ground that the establishment was facing acute financial problems. Eventually, considering the defaults committed by the establishment, levied damages under Section 14B of the Act assessed at Rs 48,37,497/- and interest was also assessed under Section 7Q of the Act for an amount of Rs 18,88,529/-, the respondent authorities by an order dated 16 September 2014. Subsequently,  the establishment failed to make the payments towards their provident fund dues in terms of the aforesaid orders. Therefore, a certificate of recovery dated 6 May 2015 was issued against the establishment, by which the Enforcement Officer requested the establishment to submit diverse documents. On alleged grounds, the bankers of the establishment had declared the establishment to be a non performing asset and that the Income Tax Department had also attached all the bank accounts of the establishment in March 2014, from a representation dated 8 May 2015. Thereupon, on 9 June 2015, a payment notice was issued by the respondent authorities. Afterwards, another representation was made by the establishment on 3 August 2015 highlighting their poor financial condition. A show cause notice was issued on 14 August 2017, to the establishment demanding an explanation concerning why the directors of  the establishment should not be committed to civil imprisonment for failing to comply with the recovery certificate dated 6 May 2015. Eventually, the respondent authorities also issued an order of attachment under section 8B of the Act on 25 July 2018. The petitioner urged that the establishment was going through an acute financial crisis and were unable to even pay their operational expenses, on the background that the petitioner assails the consequential order of attachment issued under Section 8B of the Act. The respondent authorities on behalf of the establishment submitted, they had failed to consider the representations made by them and to take into account the financial hardship which the establishment was undergoing. It is contended that the establishment is a regular and habitual defaulter of the dues payable to the respondent authorities. It is further alleged that the establishment has chosen not to avail of the alternative statutory remedy provided under the Act. Considering the submissions made on behalf of the parties, the Hon’ble Court was of the view that a specific statutory appeal mechanism provided under the act wherein the establishment had deliberately chosen not to prefer any appeal challenging any of the previous orders passed by the respondent authorities. This was deliberated in order to avoid the mandate under section 70 of the Act and with the aim of circumventing the statutory obligations of the establishment to deposit an amount of 75% as precondition to the filing of any appeal. The Hon’ble Court found no grounds to seek any interference with the steps taken by the Respondent Provident fund authorities. The court also found that there had been no illegality nor irrationality nor procedural impropriety in the actions of the respondent authorities. Furthermore, there has been no ground urged by the petitioner which justified even consideration of the impugned actions of the respondent authorities. The entire object of filing such petition was to procrastinate and delay the recovery proceedings initiated by the respondent authorities. The Hon’ble Court also found it disturbing to note the indifferent attitude shown by the respondent authorities in recovering their dues from the establishment. However, there was no stay or any kind of restraint in such proceedings and the respondent authorities had not taken any step in the matter during the pendency of such proceedings. The Hon’ble Mr. Justice Ravi Krishan Kapur stated, “In view of the unmeritorious, misadventure and kite flying exercise undertaken on behalf of the petitioner to procrastinate the recovery proceedings, costs are assessed at Rs.5,00,000/- (Five lacs) payable to the West Bengal State Legal Services Authority, Kolkata towards the cause of welfare and treatment of acid attack victims within a period of four (4) weeks from date. Moreover, The Hon’ble Court directed The Advocate-on-Record on behalf of the respondent Provident Fund Authorities is directed to serve a copy of this order on the Member Secretary, State Legal Services Authority, West Bengal, who has been further directed to seek compliance thereof concerning the direction of costs. Thus, the matter was dismissed by the Hon’ble Court, directing the respondent authorities “to take all possible steps as expeditiously as possible for recovery of their dues from the establishment in accordance with law”.