Calcutta High Court (Appellete Side)
State Of West Bengal & Ors vs Papiya Ghosal (Maity) & Ors on 24 January, 2025
Author: Tapabrata Chakraborty
Bench: Tapabrata Chakraborty
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IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
APPELLATE SIDE
Present:
The Hon'ble Justice Tapabrata Chakraborty
&
The Hon'ble Justice Partha Sarathi Chatterjee
MAT 493 of 2024
State of West Bengal & Ors.
Vs.
Papiya Ghosal (Maity) & Ors.
With
MAT 509 of 2024
+
CAN 6 of 2024
+
CAN 7 of 2024
State of West Bengal & Ors.
Vs.
Kabita Samanta & Ors.
For the State/ Appellants (in both the matters) : Mr. Sirsanya Bandapadhyay,
Senior Standing Counsel,
Ms. Tapati Samanta.
For the Respondent Nos. 1 to 3. (in MAT 493 of 2024) : Mr. Rajendra Banerjee,
Mr. Sudip Kumar Chakraborty.
For the Respondent Nos. 4 & 5 (MAT 493 of 2024) : Ms. Mousumi Chakraborty,
Mr. Anjan Banerjee.
For the Respondent No. 1 (in MAT 509 of 2024) : Mr. Tushar Kanti Har,
Mr. Somnath Chakraborty.
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For the Union of India (in both the matters) : Reshmi Bothra,
Mr. Guddu Singh.
For the added party (in MAT 493 of 2024) : Mr. Ashis Kumar Choudhury,
Mr. Babhru Bahan Bera,
Mr. Avisek Chatterjee.
For the added party (in MAT 493 of 2024) : Mr. Partha Sarathi Sengupta,
Ld. Sr. Adv,
Mr. M. N. Roy,
Mr. Arabinda Maji,
Mr. Biawaroop Nandy,
For the added party (in MAT 509 of 2024) : Mr. Pratik Dhar, Ld. Sr. Adv.,
Mr. Ashis Kumar Chowdhury,
Mr. Rajib Ghosh,
Mr. Babhru Bahan Bera
Mr. Arpayan Mukherjee.
For the added party (in MAT 493 of 2024) : Mr. Soumya Majumder,
Ld. Sr. Adv.,
Mr. Gautam Banerjee,
Ms. Pompey Bose,
Ms. Mousumi Chakraborty,
Mr. Anjan Banerjee.
For the Applicants (in CAN 6 & 7 of 2024)
(in MAT 509 of 2024) : Mr. Siddhartha Banerjee,
Mr. Sudipta Dasgupta,
Mr. Sandwip Sutradhar,
Mr. Sutirtha Nayek.
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Hearing is concluded on : 13th January, 2025
Judgment On : 24th January, 2025
Partha Sarathi Chatterjee, J.
1. Both the appeals, preferred at the behest of the State of West Bengal and
its functionaries, arise from a common order dated September 19, 2023,
delivered by the learned single Bench in two writ petitions being WPA
6322 of 2024 (Kabita Samanta vs. State of West Bengal & Ors.) and WPA
22212 of 2022 (Papiya Ghoshal (Maity) vs. State of West Bengal & Ors.),
which were heard analogously. For having thematic coherence, both
appeals were heard together.
2. Prior to venturing to delve into the contentious issue involved in the
appeal, it is prudent to outline the key facts that led to these appeals, which
are as follows:
a) By a memorandum dated March 7, 2019, bearing No. 1789-
SW/O/3E-16/2015, the Joint Secretary to the Government of
West Bengal, Department of Women and Child Development
and Social Welfare, informed the Director of the Integrated
Child Development Scheme (ICDS) project, West Bengal, and
the Controller of Vagrancy, that the Recruitment Rules for the
posts of Supervisor under ICDS, along with the proposal for
filling the vacancies of 3,376 posts of Supervisor, had been
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approved by the Cabinet. According to the new Recruitment
Rules, 422 posts would be filled by promotion, based on
selection (by promotion) from Anganwadi Workers under ICDS
and Case Workers under the Controller of Vagrancy. The
remaining 2,954 posts would be filled through Direct
Recruitment, through a selection process conducted by the
Public Service Commission (in short, PSC). Both the Director
and the Controller were instructed to compile a list of eligible
and willing Anganwadi Workers and Case Workers to participate
in the examination for the promotional posts.
b) In pursuit of that objective, a selection process was initiated for
the recruitment of 2,954 posts of Supervisor (female-only) under
the ICDS, 2019 in the Department of Women and Child
Development & Social Welfare, Government of West Bengal.
Through an advertisement bearing No. 08 of 2019, applications
were invited from eligible candidates for the aforementioned
posts.
c) Meanwhile, by a letter dated March 8, 2019, the Director
instructed the eligible and willing Anganwadi Workers (in short,
AWW) to submit their applications for the posts online by April
15, 2019. In response to the letter dated March 8, 2019, the writ
petitioners/respondents, all of whom are Anganwadi Workers
(AWWs), offered their candidatures for the post and participated
in the examinations held on October 30, 2021, and October 31,
2021.
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d) Subsequently, the AWWs filed two separate writ petitions,
namely WPA 6322 of 2022 and WPA 22212 of 2022, praying for
an order to annul the memorandum dated March 7, 2019. They
also prayed for order restraining the respondents from giving
effect to the results of the examinations held on October 30,
2021, and October 31, 2021, as well as a stay on the entire
recruitment process.
e) The main grievances of the writ petitioners/respondents, as
articulated in the two writ petitions, are that the Ministry of
Women & Child Development, Government of India, through its
memorandum No. 1-2/2014-CD.1 dated 15th September 2015, in
supersession of all earlier guidelines, issued new guidelines
regarding the filling of vacancies for the post of Supervisor.
According to these new guidelines, 50% of the vacancies for the
post of Supervisor would be filled by promotion from amongst
Anganwadi Workers (AWWs) with at least 10 years of experience
as AWWs and the prescribed qualifications, as per the
Recruitment Rules for the post of Supervisor. In the event of a
shortage of eligible candidates, the vacancies would be filled by
direct recruitment. The remaining 50% of the vacancies would
be filled through direct recruitment.
f) However, through a memorandum dated 7th March 2019, the
Joint Secretary to the Department of Women and Child
Development and Social Welfare stated that, out of a total of
3,376 vacancies for the post of Supervisor, the Cabinet decided
to fill 422 posts through promotion from AWWs, while the
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remaining 2,954 posts would be filled by direct recruitment.
This decision was made in complete derogation of the
notification dated 15th September 2015 issued by the Ministry of
Women & Child Development, Government of India. According
to the petitioners, the memorandum dated 7th March 2019 is in
conflict with the Government of India’s memorandum dated
15th September 2015, and therefore, cannot stand. Additionally,
the selection process initiated based on the memorandum dated
7th March 2019 is also flawed.
g) Notably, the memorandum dated 7th March 2019 follows a
memorandum dated 25th February 2019 issued by the Secretary
to the Government of West Bengal, Department of Women and
Child Development and Social Welfare. The Memo. dated 25th
February 2019 (hereinafter referred to as the Rules of 2019)
notified a Recruitment Rules which prescribed the method of
recruitment. According to Rule 3(a) of the Rules of 2019, 50% of
the posts for Supervisors would be filled by direct recruitment
through a competitive examination conducted by the PSC, West
Bengal. Rule 3(b) of the Rules of 2019 stipulates that the
remaining 45% of the posts would be filled from AWWs of the
ICDS scheme, while the remaining 5% would be filled from Case
Workers, with the provision that if there are insufficient
qualified Case Workers, the residual vacancies in the Case
Worker quota may be filled by eligible and qualified AWWs.
h) Rules 3 contains a footnote specifying that for vacancies
occurred up to 30th September 2015, the ratio of direct
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recruitment, as stated in Rule 3(a), and recruitment from the
categories of AWWs and Case Workers, as specified in Rule 3(b),
will be in a 75%:25% ratio, respectively. For vacancies created
thereafter, the ratio of direct recruitment, as stated in Rule 3(a),
and recruitment from the categories of AWWs (including Case
Workers), as stated in Rule 3(b), shall be in a 50%:50% ratio,
respectively.
i) As mentioned earlier, both writ petitions were heard together
and disposed of by a common order dated 19th September 2023,
which is under challenge in these two appeals. Keeping the
objective behind the issuance of the notification dated 15th
September 2015 in mind, the learned single Bench directed the
appellants to fill 50% of the 3,458 posts from AWWs. The
learned single Bench noted that it found no justification for the
appellants’ decision to create an artificial distinction between
vacancies that arose before 30th September 2015 and those that
arose thereafter, and to fill the vacancies occurring before 30th
September 2015 in a 75%:25% ratio through direct recruitment
and promotion from AWWs and Case Workers, while filling the
vacancies arising after 30th September 2015 in a 50%:50% ratio
through direct recruitment and promotion from AWWs and
Case Workers. Aggrieved by this order, these appeals have been
preferred at the instance of the State and its functionaries.
3. Mr. Bandyopadhyay, learned advocate appearing in support of the appeals
argued that the learned single Bench had erroneously observed that the
State had made an artificial distinction between vacancies that occurred
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prior to 30th September 2015 and those that arose thereafter. He
contended that vacancies occurred up to 30th September 2015 must be
filled in accordance with the recruitment rules prevailing at that time.
Similarly, vacancies that arose after 30th September 2015 should be filled
according to the Recruitment Rules of 2019, which were framed in
accordance with the instructions contained in the memorandum dated
15th September 2015 issued by the Ministry of Women & Child
Development, Government of India.
4. He claimed that the State rightly decided to fill up the vacancies which
arose prior to 30.09.2015 at the ratio of 75% : 25% through direct
recruitment and by promotion from AWWs and Case Workers, and to fill
up the vacancies occurred after 30.09.2015 at the ratio of 50% : 50%
through direct recruitment and by promotion from AWWS and Case
Workers.
5. Inviting our attention to a calculation sheet appearing at page 40 of the
paper book filed in connection with MAT 509 of 2024, Mr. Bandyopadhyay
contended that in September 2015, there were 1,949 Supervisors in service,
with 964 posts filled through direct recruitment and 985 posts by
promotion though applying a 75%:25% ratio, 1,462 and 487 posts were
required to be filled up through direct recruitment and promotion
respectively. Similarly, in January 2019, the total number of Supervisors
in-service was 1,500, with 734 posts filled through direct recruitment and
766 by promotion though applying 50% : 50% ratio, 750 posts in each
category were required to be filled up through direct recruitment and by
promotion. He claimed that resultantly, 514 posts were filled up by
promotion in excess.
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6. He further contended that in September 2015, the total number of
vacancies was 3,009, with 2,755 posts and 254 posts required to be filled
applying a 75%:25% ratio. In January 2019, there were a total of 3,458
vacancies, and after deducting the 3,009 posts, 449 posts remained to be
filled in a 50%:50% ratio. He submitted that 82 posts were allotted for
Jangal Mahal, and thus, out of 3,376 posts, the State correctly decided to
fill 2,954 posts through direct recruitment and 442 posts through
promotion, respectively. According to Mr. Bandopadhyay, there was no
illegality in conducting the selection process. He argued that by giving
retrospective effect to the notification dated 15th September 2015, the
rights of the candidates to be appointed to the posts cannot be taken away.
7. To invigorate his submission, Mr. Bandopadhyay relied on several
decisions. He referred to a decision, reported at (1983) 3 SCC 284 (Y. V.
Rangaiah vs. J. Sreenivasa Rao) for the proposition that vacancies must
be filled according to the rules prevailing at the time the vacancies arose.
He also cited a decision, reported at (2011) 15 SCC 16 (Gridco Limited &
Anr. vs. Sadananda Doloi & Ors.) for the proposition that a Writ Court is
entitled to examine administrative actions in cases of illegality,
irrationality, unreasonableness, or unfairness, but cannot function as an
appellate body over administrative decisions or determine whether a more
appropriate decision could have been made. He further relied on decisions,
reported at (1990) 1 SCC 411 (P. Mahendran & Ors. vs. State of Karnataka
& Ors.) and (1998) 9 SCC 223(B.L. Gupta & Anr. vs. M.C.D.) to argue that,
in the absence of an express provision or necessary intent, a rule or its
amendment cannot be given retrospective effect. Lastly, he cited another
decision, reported at (2023 SCC OnLine SC 344) (Tajvir Singh Sodhi &
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Ors. vs. State of Jammu and Kashmir & Ors.) to lend support to his
contention that courts should refrain from interfering in the selection
process for public employment, which involves specialized expertise and
discretion, and should not sit in appeal over the decisions of the selection
committee.
8. Mr. Dhar, learned senior advocate, while opposing the appeal on behalf of
candidates aspiring to be appointed by promotion, argued that since the
entire ICDS project is funded by the Central Government, only the Central
Government has the authority to prescribe the Recruitment Rules for the
post.
9. Therefore, the State cannot frame any rules that conflict with those
promulgated by the Central Government. He further argued that
candidates aspiring for direct recruitment to the post, who have not yet
entered service, have no right to say what would be the number of
vacancies for a particular post.
10. He argued that ‘recruitment’ and ‘selection’ are distinct terms. He
explained that recruitment is a broader process that begins when an
employer takes steps to appoint an employee, whereas selection begins
when candidates from the open market or those sponsored by the
employment exchange are invited to participate in the selection process. In
support of this contention, he relied on a decision rendered by a Special
Bench of this Court, reported at (2019) 2 CHN 1 (LB) (Managing
Committee, Kadamtala High Madrasah vs. State of West Bengal & Ors.).
11. He contends that the Recruitment Rules, 2019 are solely intended for
recruitment and not for any other purpose. Referring to the preamble of
the Rules, he argued that they were promulgated to regulate recruitment to
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the post of Supervisor. Therefore, Rule 3 of the Rules, which prescribes the
method of recruitment, pertains to the post itself and not for the vacancies.
As such, the State is bound to fill the posts of Supervisor in a 50%:50%
ratio.
12. He emphasized that the note appended to Rule 3 of the Rules of 2019 is
not against the writ petitioners/respondents, i.e., the AWWs in service who
aspire for the posts, as the note pertains to vacancies arising before and
after a specific date. Citing the decision, reported at (2020) 2 SCC 173
(Anupal Singh & Ors. vs. State of Uttar Pradesh & Ors.), he argued that
the terms “post” and “vacancy” are distinct, and since the clause 3 of
Recruitment Rules, 2019 pertains to the post, the note appended thereto
cannot override the same. He further argued that a note to a rule cannot
derogate from the explicit words of the substantive provision of the rule
and must be read as explanatory, in harmony with the substantive
provision. In support of such contention, he relied on two decisions,
reported at (2004) 13 SCC 25 (Rai Sudhir Prasad vs. State of Bihar &
Ors.) and (2005) 6 SCC 776 (Punjab State Electricity Board Ltd. Vs. Zora
Singh & Ors.). Citing a decision, reported at (2023) 3 SCC 773 (State of
Himachal Pradesh & Ors. vs. Raj Kumar & Ors.), he contended that the
judgment of Y.V. Rangaiah (supra), relied on by Mr. Bandopadhyay, has
been overruled and emphasized that there is no universal rule that
vacancies must necessarily be filled on the basis of the rules which existed
on the date on which they arose.
13. He asserted that in the present case, even if it is assumed that some
candidates were appointed by promotion in excess, the number of
candidates appointed by promotion will not exceed 50% of the total
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strength if the appellants are directed to fill the vacancies in a 50%:50%
ratio.
14. Mr. Sengupta, learned senior advocate, appearing for the candidates
selected for the posts by direct recruitment adopted the submissions of Mr.
Bandopadhyay.
15. Mr. Majumder, learned senior advocate representing the writ
petitioners/respondents, submitted that to apply for the post, an AWW is
required to have 10 years of working experience. He contended that,
considering the objective behind the promulgation of the Recruitment
Rules, 2015, it can be argued that allowing the State to fill the posts by
applying the note appended to Rule 3 of the 2019 Rules would lead to the
unjust deprivation of AWWs who aspire to acquire the posts through
promotion.
16. Mr. Banerjee, learned advocate appearing for the applicants in CAN 6 of
2024 and CAN 7 of 2024 filed in connection with MAT 509 of 2024,
submitted that these applicants should be added as parties, since any order
passed in these two appeals may seriously impact their rights. He
contended that the State has been conducting the current selection process
without properly following the reservation policy and without reserving the
appropriate number of posts for candidates from the OBC-A community.
17. The issue sought to be raised by Mr. Banerjee through the aforementioned
two applications for the addition of parties was not addressed or
considered by the learned Single Bench. At the appellate stage, it would
not be appropriate to enlarge the scope of the lis by introducing new
issues. For this reason, we are not inclined to entertain these applications,
and accordingly, those two applications are dismissed.
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18. The settled legal principle, as established in the case of State of Himachal
Pradesh & Ors. vs. Raj Kumar & Ors. (supra), is that there is no universal
rule mandating that vacancies must be filled according to the rules that
were in place when the vacancies arose. Therefore, it is clear that the State
does not have a statutory obligation to fill vacancies based on the rules that
existed at the time the vacancies occurred.
19. Significantly, Clause 6 of the notification dated 15.09.2015 issued by the
Ministry of Women & Child Development, Government of India,
authorized the State to amend the Recruitment Rules for the post.
However, this clause stipulated that the amendment of the Rules would
adhere to the guidelines set forth in the notification. The notification dated
15.09.2015 superseded all prior guidelines and mandated that vacancies
should be filled in a 50%:50% ratio through direct recruitment and
promotion, respectively. In contrast, when the State amended the rules by
inserting a note after Rule 3 in the Rules of 2019 (Notification dated
25.02.2019), a new guideline was introduced, stipulating that the ratio for
direct recruitment and recruitment from AWWs and Case Workers taken
together, would be 75%:25%. Consequently, it appears that the note
appended to Rule 3 of the Rules of 2019 is inconsistent with the
notification dated 15.09.2015.
20. Although neither party has challenged the validity of the amended Rules
(notification dated 25.02.2019), it can be argued that subordinate
legislation must conform to the enabling statute and cannot exceed the
authority granted by the parent Act (See, case of State of Tamil Nadu &
Anr. vs. P. Krishnamurthy, reported in (2006) 4 SCC 517). Therefore, the
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power to amend the Rules should be interpreted as being granted to carry
out the purposes of the Recruitment Rules, 2015.
21. However, keeping generality vs enumeration principle in mind and even
assuming that the power to amend the rules is a general delegation without
specific limitations and/or particularization, it may be permissible to
examine the object of the parent Rules (here, the 2015 Rules) and assess
whether the amended rules align with the scope of such general power.
Nonetheless, it can be argued that such delegated power cannot be used to
extend or restrict the scope of the parent Act/Rule, as it is strictly ancillary
and cannot create substantive rights or obligations not envisaged by the
parent Rule.
22. An examination of the prefatory words of the 2015 Rules, as framed by the
Government of India, reveals that the existing AWWs were recognized as
the most important functionaries at the village level under the ICDS
scheme. In light of the recent exponential growth in Anganwadi Centres
and Anganwadi Workers, and their significant efforts to ensure quality
service delivery and community participation, the 2015 Rules were
promulgated to encourage AWWs’ participation in these posts, based on
their merit, and to improve their career prospects.
23. Therefore, since a general power to amend the Recruitment Rules was
delegated, it can be concluded that the State is not debarred from
considering the number of posts occupied by candidates through direct
recruitment and promotion, and then amending the Rules to further the
objectives of the Parent Rules. It is also important to note that Rule 3
specifies that 50% of the vacancies for the post should be filled by
promotion of AWWs with 10 years of experience and the prescribed
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qualifications for the Supervisor post. If no suitable candidates are found,
the vacancies would be filled through direct recruitment. This indicates
that the State was not required to strictly maintain a 50%:50% ratio
between candidates selected by direct recruitment and those selected by
promotion.
24. The records reveal that by an interim order dated 11.07.2024, passed in
these appeals, the State was permitted to make appointments, up to a total
of 1,729, either by promotion or direct recruitment, in each category, if it
so desired, from the declared vacancies. Mr. Bandopadhyay submitted
that, in accordance with the order dated 11.07.2024, the State has since
filled the vacancies of 1,729 posts out of total 3458 posts through direct
recruitment.
25. According to the calculation sheet produced by the State, as in January
2019, 734 posts were occupied by in-service candidates through direct
recruitment, and 766 posts were occupied through promotion. If 1,729
posts are filled through direct recruitment, as per the interim order dated
11.07.2024, the total number of posts occupied by candidates through
direct recruitment would be 2,463 (1,729 + 734). Since 50% of the total
posts amounts to 2,479, there is a shortfall of 16 posts to meet the 50%
target for direct recruitment. Meanwhile, 766 posts are occupied by
candidates through promotion. If the remaining 1,729 posts are filled by
promotion, the total number of posts occupied by candidates through
promotion would be 2,495 (1,729 + 766), resulting in a difference of 16
posts. The calculation sheet, as referred to above, suggests that, as of
January 2019, 16 posts have been occupied by candidates through
promotion in excess.
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26. In light of the discussions above and the current status of the recruitment
process, we are of the view that the learned Single Bench has rightly
directed that the respondents should proceed with filling the vacancies
while adhering to the objectives and mandate outlined in the Recruitment
Rules of 2015, as promulgated under the Notification dated 15.09.2015.
However, considering subsequent developments, we are of the opinion
that the State should take into account the posts occupied by candidates
through direct recruitment and promotion as of January 2019, as well as
the posts filled under the interim order dated 11.07.2024. The State should
make efforts to fill the remaining 1,713 vacancies (1,729 – 16) from AWWs
and Case Workers. In the event the suitable candidates from AWWs and
Case Workers are not available, the State shall be at liberty to fill the
remaining vacancies, if any including the aforementioned 16 posts,
through direct recruitment. It is ordered accordingly.
27. With these observations and order, the appeals are disposed of. As
directed, the applications being CAN 6 of 2024 and CAN 7 of 2024 are
dismissed.
(Partha Sarathi Chatterjee, J.) (Tapabrata Chakraborty, J.)