JUDGMENT

1. In both the writ petitions a challenge was thrown against legality or otherwise of the “appointment of respondents 4 to 18 in Group D posts in the judgeship of North 24 Parganas” on the recommendation of the Selection Board headed by the District and Session Judge, Barasat, North 24-Parganas. As the challenge and the subject-matter of dispute is identical and same, both the writ petitions are taken up analogously.

2. In C.O No. 3636 (W) of 1993, there are two petitioners, viz., Ramesh Das and Nirmal Kumar Biswas, who got their names registered with the Basirhat Employment Exchange, District North 24 Parganas under registration No. BC/3389/77, dated 13 October, 1977 and BC/1347/77, dated 19 July, 1977 respectively. Petitioner 1 passed higher secondary examination in 1975 and petitioner 2 passed higher secondary examination in 1976. Petitioner 2 is a member of scheduled caste community which was duly recorded in his Employment Exchange card.

3. In C.O No. 10485 (W) of 1993, sole petitioner Ms. Swapna Mazumdar, passed higher secondary exammation in 1977 and got herself registered with the Employment Exchange, District North 24 Parganas at Barasat under Registration No. BAR/W/1038/82, dated 12 May, 1982. The petitioner herein belonged to schedule caste community which was duly certified by Additional District Magistrate, North 24 Parganas, and was duly recorded in her Employment Exchange card.

4. Names of the petitioners in both the writ petitions were sponsored by the Employment Exchange for Group D posts in responds to the requisition from the Registry of the District and Session Judge, North 24 Parganas at Barasat, i.e, respondent 2 petitioners appeared before the interview board held on 24 February, 1990 but they were not selected and given appointment to the Group D posts. Appointment letters were issued by the District Judge on 27 February, 1991 in favour of respondents 4 to 18.

5. Challenging such appointments in favour of respondents 4 to 18, petitioners in both the writ petitions alleged, inter alia that the District and Session Judge, North 24 Parganas, respondent 2, on the recommendation of the Selection Board, filled up all the 33 vacancies Groups C and D posts. Only 8 candidates were sponsored by the Employment Exchange for filling up Groups C and D posts and out of 33 posts 25, candidates were appointed from amongst outsider having had no sponsorship from the Employment Exchange. It has been alleged further that no advertisement was published nor any notice was issued inviting application for filling up the posts for Groups C and D posts. Out of 33 candidates 25 candidates were appointed whose names were not sponsored by any Employment Exchange. It has been further alleged that respondents 2 and 3 deliberately flouted the Government order enjoying 70 per cent of the non-PSC vacancies to be filled up compulsorily through Employment Exchange as statutory obligation. Respondents 2 and 3 are required to comply with the notification No. 136 TW/EC, dated 27 March, 1990, issued by scheduled caste and scheduled tribe department which requires that 20 per cent vacancies in all appointment to services and posts in an establishment to be reserved for candidates belonging to SC & ST.

6. In C.O No. 3636 (W) of 1993 when this writ petition was moved on 2 April, 1993, this Court passed an interim order in the following manner:

“There will be no confirmation of the services of respondents 4 to 18 without the leave of the Court. It is made clear that if further vacancies are going to be filled up, the 2 posts may be kept vacant.”

7. In C.O No. 10485 (W) of 1993, the writ petition was moved on 19 August, 1993, when this Court passed an interim order directing the respondent to keep one post vacant for the sole writ-petitioner until further order.

8. In both the writ petitions the interim order passed on diverse dates are still subsisting.

9. For the purpose of effective adjudication, it is necessary to consider the following facts and circumstances.

10. After bifurcation of the Old District, 24 Parganas, into two districts, viz., North 24 Parganas Head Quarter at Barasat and South 24 Parganas Head Quarter at Alipore, a new Judgeship was created at Barasat for the District of North 24 Parganas.

10.1 The District and Session Judge, North 24 Parganas reported 33 vacancies to the Employment Exchange at Barrackpore, Dum Dum, Barasat, Bongan, Bashirhat. The District itself comprises 4 Sub-Divisions, viz., Bongan, Barasat, Barrackpore and Basirhat. Out of 33 vacancies, 13 vacancies were marked for the posts of “clerks,” 3 vacancies for the post of “typist-cum-copyists” and 17 vacancies for the post of “Group D” staff. For the purpose of selection, a selection committee was constituted comprising 3 senior judicial officers including Chairman, Selection Board, District and Session Judge as Ex officio.

10.2 In responds to the requisition by respondent 2 for Group D posts, list of candidates was forwarded by the Employment Exchange and petitioner were asked to appear before the interview Board.

10.3 Respondents did not disclose the result of the interview nor the panel prepared by the Selection Board.

10.4 25 persons including respondents 4 to 18 whose names were not sent and/or sponsored by the Employment Exchange were appointed by respondents. Although no advertisement was published for appointment for the said 33 vacancies, respondents 1 to 3 accepted application from outsider and appointed 25 outsider including respondents 4 to 18.

11. Pursuant to notification being No. C.O 5120 L.W, dated 17 October, 1977, issued by the Labour Department, Government of West Bengal as amended by G.O No. 129-LW, dated 25 January, 1978, issued by the said Department, respondent 2 took necessary steps in filling up the vacant post by reporting the vacancies in the local Employment Exchange.

12. Petitioner's grievance is that under the said Government's orders and notifications, non-P.S.C.s vacancies in State Government Establishments must be compulsorily filled up through Employment Exchange to the extent of 70 per cent of the vacancies leaving 30 per cent to be filled up by the persons falling within the exempted categories. It is provided that the employment authorities, while seeking names from the Employment Exchange, should indicate which posts are to be filled up by SC & ST candidates and the Employment Exchange is also required to forward adequate number of scheduled castes and scheduled tribes in order to enable the employing authorities to fulfil the requirements of West Bengal SC & ST (Full Reservation of Vacancies in Service and Posts) Act, 1976.

13. In response to the requisition of respondent 2, the Employment Exchange concerned sponsored candidates including petitioners 1 and 2 for Group D posts in C.O No. 3636 (W) of 1993 and also that of sole petitioner in C.O 10485 (W) of 1993. All the candidates for Group “D” posts called for interview on 24 February, 1991 by the Chairman, Selection Board, District Judges Court at Barasat. Though the interview was held on 24 February, 1991, the result of the interview was not disclosed nor the final result was published openly or communicated to the petitioners concerned. In spite of repeated attempts at the instance of the petitioners for securing some information as to the outcome of the interview, no reports were made available. Subsequently, petitioners came to know that respondent 2, District and Session Judge, North 24 Parganas at Barasat, on the recommendation of the Selection Board, filled up 33 vacancies in. Groups C and D posts. It has been alleged that amongst the appointees only 8 candidates were sponsored by the Employment Exchange and all the other 25 candidates were outsiders. It is the specific allegation of the petitioners that though petitioner's name were sponsored by the Employment Exchange, they were allowed to appear before the Selection Board. Petitioner's claim was ignored by appointing 25 persons from outside the sponsored list of candidates forwarded by the Employment Exchange Out of 33 posts, only 8 candidates, from amongst the Employment Exchange candidates are appointed. The entire appointment exercise was done by pick and choose method and the 25 outsiders were appointed by adopting unfair means and without complying with the statutory obligation which is sine qua non in the modalities for appointment of and filling up the vacancies to the extent of 70 per cent of the Non-PSC vacancies to be filled up through Employment Exchange compulsorily. It has been further alleged that respondents 2 and 3 failed to comply with the notification No. 136-TW/EC, dated 27 March, 1990 of the SC and ST issued by the Welfare Department which requires 22 per cent of the vacant posts in all the vacancies in all appointments to be reserved for candidates belonging to SC.

14. State respondents have contested the writ application by filing affidavit in opposition. On behalf of the State respondents it has been contended that after issuing interview letter to the candidates sent by the Employment Exchange and the candidates whose names were not forwarded by the Employment Exchange and who filed application after creation of new judgeship of the North 24 Parganas having valid Employment Exchange certificates were called for interview held on 24 February, 1991. The State respondents also stated in their affidavit that Employment Exchange (Compulsory Notification and Vacancies) Act, 1959, is not applicable in case of appointment of “doptori, orderly and peon” and accordingly, State respondents have had no obligation to fill up the vacancies from the candidates sent by the Employment Exchange only merely because the applications were invited. It has also been contended that those who have been succeeded in the interview including the outsiders have been appointed to the said post after due selection. The writ application is a belated application and not maintainable. The writ application has become infractuous too.

15. It transpired from the petitioner's application that instead of selection of Candidates from amongst the persons whose names were forwarded by the Employment Exchange, respondent had entertained applications in clandestine manner without securing reference from the Employment Exchange culminating to illegal appointment to respondents 4 to 18.

16. On behalf of respondents 4 to 18, the allegation was resisted and controverted by filing a return to this writ petition. It has been contended by respondents 4 to 18 that all the respondents, upon receipt of information as regards available vacancies, submitted application for respective posts before the District and Session Judge and as per recommendation of the selection committee they were selected and appointed to the said posts. According to private respondents, i.e, respondents 4 to 18, the scheme contemplated in the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959, was not applicable to them and they were not required to be sponsored through the Employment Exchange.

17. Employment Exchange (Compulsory Notification of Vacancies) Act, 1959, hereinafter referred to as said Act, 1959, contemplated that employment in the matter of unskilled office work would not attract the said Act, 1959. State Government, by a guideline under Memo No. 5120/60 LW, dated 17 October, 1977, being Annexure B, to the writ petition contemplates that all requirements in the State Government Establishments should be made through the Employment Exchange with a view to provide equal opportunity to all the citizens in the State in the matter of employment. The notification, dated 17 October, 1977, contemplates, inter aha:

“that shall vacancies arising in State Government Establishments, State Government Undertakings, Quasi-Government Establishments and Local Bodies where recruitment is not made through the PSC or by way of normal promotion or by absorption of persons declared surplus by the Government, shall be filled up through the Employment Exchange.”

18. In Union of India v. N. Hargopal, [1987 (2) L.L.N 201, in Para. 9, at page 26, it has been held, inter alia:

“It is clear that it is the desire of the Government of India that all Government departments, Government organisations and statutory bodies should adhere to the rule that not merely vacancies should also be notified to the Employment Exchanges, but the vacancies should also be filled by candidates sponsored by the Employment Exchanges. It was only when no suitable candidates were available, then other sources of recruitment were to be considered. While the Government is at perfact liberty to issue instructions to its own departments and organisations provided the instructions do not contravene any constitutional provisions or any statute, these instructions cannot bind other bodies which are created by statute and which function under the authority of statute. In the absence of any statutory prescription the statutory authority may however adopt and follow such instructions if it thinks fit. Otherwise, the Government may not compel statutory bodies to make appointments of persons from among candidates sponsored by Employment Exchanges only. The question, of course, does not arise in the case of private employers who cannot be so compelled by any instructions issued by the Government.”

19. Supreme Court in Hargopal case, [1987 (1) L.L.N 20] (vide supra) in Para. 10, at page 26 has given a caution by observing, inter alia:

“…The object of recruitment to any service or post is to secure the most suitable person who answers the demands of the requirements of the job. In the case of public employment, it is necessary to eliminate arbitrariness and favouritism and introduce uniformity of standards and orderlines in the matter of employment. There has to be an element of procedural fairness in recruitment. If a public employer chooses to receive applications for employment where and when he pleases, and chooses to make appointments as he likes a grave element of arbitrariness is certainly introduced. This must necessarily be avoided if Arts. 14 and 16 have to be given any meaning…”

20. In Sugrib Singh v. Punjab Nationalised Bank, [1991 (1) C.L.J 408], it was held, inter alia:

“that the State is bound to abide by an instruction which mandate that a candidate to be absorbed in the cadre must be sponsored by Employment Exchange concerned and no candidate even when registered in the Employment Exchange can claim to be appointed on permanent basis unless sponsored by Employment Exchange.”

21. In Sugrib Singh case (vide supra) in Para. 8, it has been held, inter alia:

“for the foregoing discussion I must held that in view of the executive instruction given by the Government of India and the bank, which answers the description of State under Art. 12 of the Constitution of India, through their different circulars, it is duty bound to adhere to their confirmation with and implementing the extant norms laid down for appointment to the post of Sub-ordinate staff including the peons as one of the norms thereof is sponsorship of candidates by Employment Exchange, the petitioners cannot get the relief sought for only by registration of names there.

22. In the case of S. Ranganayakulu v. Sub-Divisional Inspector (Postal), [1995 (1) S.L.R 557], it was held, inter alia:

“that it is a trite proposition that in the absence of any statutory rules, executives instruction, if issued, by the competent authority will have full play. In service jurisprudence there is a distinction between ‘rules of recruitment’ and ‘conditions of service.’ Non-fulfilment of any requirement of the ‘rules of recruitment’ renders a candidate ineligible or disqualified to enter the arena of either competition or selection. Such a defect is incurable. It is fatal to the candidature. Unlike the conditions of recruitment are rigid and inflexible….”

23. In Para. 9, it has been, inter alia:

“Instruction No. 12, aforementioned, falls under the copy of “Rules of Recruitment.” Therefore, the sposoring of a candidate by the Employment Exchange is an essential attribute of eligibility. The petitioner having not fulfilled that requirement was not entitled to be considered at all along with others, including the 4th respondent.”

24. In Hargopal case, [1987 (2) L.L.N 20] (vide supra), a question arose as to whether the instructions issued by the Government that the field of choice should in the first instance be restricted to the candidate sponsored by the Employment Exchange offend Arts. 14 and 16 of the Constitution. The answer was in the negative. Their Lordships observed, in Para. 10, at page 27:

“…In the absence of a better method of recruitment, we think that any restriction that employment in Government departments should be through the medium of Employment Exchange does not offend Arts. 14 and 16 of the Constitution.”

25. In State of Haryana v. Piyara Singh, [1992 (2) L.L.N 1037], a question arose before the Hon'ble Supreme Court as to whether there was an infringement of Arts. 14 to 16 of the Constitution when a Government servant, not sponsored by an Employment Exchange, was not considered for being regularized in service. It was also held that in such a situation, the question of infringement of Arts. 14 and 16 did not arise. It was also held that the requirement that a person should be sponsored through the Employment Exchange is in the public interest as such this practice would check back-door entry and also minimise the possibility of favouritism and nepotism. In substance, Supreme Court of India emphasised that such a practice is just and fair.

26. Supreme Court in B.N Minhas v. Indian Statistical Institute, [1984 (1) L.L.N 239], held:

“that administrative authority is bound to adhere to the procedural standards fixed by it to avoid arbitrariness, failing which action taken by it would be invalid.”

27. State respondents have contested this writ application by filing an affidavit-in-opposition. It has been contended that writ petitioner moved the instant application on 2nd April, 1993, challenging the appointment of respondents 4 to 18 but the petitioners did not explain the delay. Admittedly, appointment of 15 persons, i.e, respondents 4 to 18 in “Group D posts” were made on 27th February, 1991, and no explanation for the delay in challenging the appointment was advanced by the petitioners. In order to justify the delay, petitioners had advanced a plea that they were out of station as such they could not challenge the appointment in favour of respondents 4 to 18. Though this Court's attention was invited to the writ petition that petitioner 1 had been working elsewhere under daily-wage basis from 1st March, 1991 to 27th February, 1993. Similarly, petitioner 2 was employed under a contract job in Jamshedpur, Bihar, under “Ashina Construction” from 1st January, 1991 to 28th February, 1993. The factum of such employment would be evident from averment made in the Para. 27 in the writ petition. It has been contended by the State respondents that the plea in explaining the delay as advanced by the writ-petitioners should not be held to be sufficient and genuine and accordingly, the writ petition suffers from infirmities and accordingly, should be dismissed in limine.

28. In support of this contention reference has been made to Dilip Kumar Guha Neyogi v. Jute Corporation of India, [1989 (2) C.L.T 301]. In Dilip Kumar Guha Neyogi case (vide supra), it was observed that a challenge to this seniority list after an un-explained delay of three years and four years resting to upset the position of the promotee seniors cannot be entertained. Further reference was made to S. Sayand v. Zaminuddin, [A.I.R 1994 A.P 259], wherein it was held that in exercising discretionary jurisdiction under Art. 226 of the Constitution, the paramount consideration of the High Court is to render justice not only to the petitioners but also to the parties to the petition. The ultimate question will be whether the delay of laches on the part of petitioners as such confer a right on the opposite party on account of such delay or laches. If, so, it would be unjust to exercise the jurisdiction in favour of petitioners so as to divest the other party of their right accrued, on account of such delay or laches. It was held that such issues are to be dated the basis of the facts and circumstances of each case.

29. Admittedly, the petitioners, after appearing for interview and waiting for sometime for the result of the interview were engaged in some occupation or otherwise and petitioners had to accept a job for their living. In anticipation of such selection or securing an appointment, a person would not sit idle without making any exercise to meet both ends. Petitioners had been engaged somewhere for sometime and not all the time during the period from the date of interview till the date when the writ petition was filed. It shows that petitioners were otherwise trying to secure a job for their subsistence. I am not inclined to think that delay in moving the writ application was caused without sufficient grounds of delay. At the material point of time petitioners were engaged for some occupation or otherwise which could obviously go to their credit in as much as without sitting ideal, the petitioners kept themselves engaged in some avocation or occupation or otherwise. Hence, delay is not fatal in the facts and circumstances of the case.

30. The Apex Court has formulated invaluable legal precepts which mean judicial commands on various fundamental rights. These precepts are commands of the Apex Court to be strictly followed by the executive and the Subordinate Courts:

31. The consistent views and decision of the Apex Court will show that Art. 14 of the Constitution, the rule of natural justice and legal precepts are the constituent legal materials for formation and development of the doctrine of fairness in administration. In order to apply the doctrine successfully, a person must expect some benefit or advantages, legitimately or reasonably. It must be shown that the public officer, dealing with such legitimate and reasonable expectation, has not acted in good faith and deliberately failed to absorve cardinal principles of natural justice and has acted arbitrarily, unfairly, discriminatorily, capriciously and unreasonably with a definite intention to defeat legitimately expected benefit of advantage of the aggrieved persons.

32. There cannot be any modern management, much less any career planning, manpower development, management development, etc., which is not related to system of recruitment and promotions the respondents concerned appear to have overlooked this basic requirement of management, so far reasonable and legitimate expectation of the petitioners is concerned.

33. On fairness of good Administration in Management of M.S Nally Bharat Engineering Company, Ltd. v. State of Bihar, [1990 (1) L.L.N 755], in Paras. 19 and 20, it was observed, inter alia.

“19. It may be noted that the term, ‘fairness of procedure’ fair play in action’ ‘duty to act fairly’ are perhaps used as alternatives to ‘natural justice’ without drawing any distinction. But Prof. Paul Jack on points out that Such pharses may sometimes be used to refer not to the justice but, on the contrary, to refer to a standard of behaviour which, increasingly, the Courts require to be followed even in circumstances where the duty to observe natural justice is inapplicable.”

20. We share the view expressed by Professor Jackson Fairness, in our opinion, is a fundamental principle of good administration. It is a rule to ensure the vast power in the modern State is not abused but properly exercised. The State power is used for proper and not for improper purposes. The authority is not misguided by extraneous or irrelevant consideration. Fairness is also a principle to ensure that statutory authority arrives at a just decision either in promoting the interest or affecting the rights of persons. To use the time hallowed phrase “that justice should not only be done but be seen to be done” is the essence of fairness. Fairness is thus a prime test for proper and good administration.”

34. The Apex Court, highlighting the weakness of the Administration Karan Pal v. Union of India, [(1985) 2 SCC 457 : A.I.R 1985 S.C 774], observed, inter alia:

“In a vast country such as ours, strong and independent bureaucratic set up is indispensable. At the same time it is equally necessary that the services from top to bottom must be alive to the fact that it is obligation to maintain proper attitude, discipline and duty oriented working.”

35. The Supreme Court, in observing the duties of the Administrative Officers, observed in Kumari Neelima Misra v. Hahnder Kaur Paintal, [1990 (1) L.L.N 792], in Para. 23, at pagea 699, observed, inter alia:

“…23. The shift now is to a broader notion of fairness or fair procedure in the administrative action. As far as administrative officers are concerned duty was not so much to act judicially as to act fairly. …”

36. It has been alleged that respondents 4 to 18 have procured appointment by illegal means since their names were not sponsored through Employment Exchange and hence, their appointment should be set aside and petitioners should be appointed in place and stead of respondents 4 to 18. Admittedly, persons who have been enrolled and registered with the Employment Exchange for securing service after due process of law. It can not be denied that in consonance with the notification and guideline, a selection process, particularly in Government service and also in public bodies, should be followed. As this exercise was not introduced and considered by the respondents in appointing respondents 4 to 18, the petitioners having reasonable and legitimate expectation that petitioners should be appointed in place of respondents 4 to 18 inasmuch as respondents 4 to 18 were not eligible to appear before Selection Board as their names were not sponsored by the concerned Employment Exchange.

38. In the case of Vinod Kumar Sangal v. Union of India, [1995 (2) L.L.N 328], question arose whether the authority can extend the field of choice in case of promotion. Supreme Court in Para. 8, at page 331 of the said judgment held, inter alia:

“Grievance of the appellant is that the mode of selection in disregard of the instruction contained in the office memorandum, dated 24th December, 1980, operated to his prejudice appears to be justified because if separate selection had been made for the vacancies which occurred in the years 1980, 1981 and 1983, the field of choice would have been much more restricted and the appellant would have better chance of being selected”

38. Aforesaid judgment of the Supreme Court makes it clear that the respondents should not extend the field of choice by way of accepting the applications from respondents 4 to 18 directly.

39. Further grievance of the petitioners is that the appointment have been made without complying the notification No. 136.TD/EC, dated 27th March, 1990, which, inter alia, provides that 22 per cent vacancies in all appointments to services and posts in an establishment to be reserved for the candidate belonging to the scheduled caste. It has been alleged that the appointments have been made depriving petitioner 2 member of the scheduled caste category which comes within the reserved category and hence appointment from general category can not be held to be valid.

40. In dealing with the requirements of reservation Supreme Court in R.K Sabharwal v. State of Punjab, [1995 (1) L.L.N 810], held that (in Para. 4, at page 814):

if the percentage of reservation is fixed in respect of a particular cadre and the rostar indicates the reserve points, it has to be taken that the posts shown at the reserve points are to-be filled from amongst the members of reserved categories and the candidates belonging to the general category are not entitled to be considered for the reserved post.

It was further held that:

when the State Government, after doing necessary exercise makes the reservation and provides the extended percentage of posts to be reserved for the said backward class, then the percentage has to be followed strictly.

It has also been observed that roster points which have been reserved for backward class within the percentage has to be filled up by way of appointments/promotion of the members of the said class and no general category candidates can be appointed against a slot in the posts of the roster which are reserved for backward class.

41. In opposing the contention of the petitioners the State respondents and respondents 4 to 18 have come with a common and identical submission that any notification and/or guideline can not override the scheme of the Act in any manner whatsoever.

42. Ratio of the decisions of the Apex Court as indicated hereinabove will show that the observance of rules of recruitment is a sine qua non in the matter of modalities of recruitment by the Government and non-fulfilment of such statutory requirement renders a candidate ineligible and/or disqualified to enter even within the zone of consideration. It is fatal to those candidates who have been appointed from amongst the candidates whose names were not sponsor by the Employment Exchange and as the mode of recruitment have been too rigid and inflexible, the appointment so far made should also be held to be unauthorised appointment. But as the respondents 4 to 18, who have been selected on the basis of their applications, received and entertained by the competent authority/respondents, is not desirable that even though they were appointed by the respondents without following the norms the appointment should be set aside.

43. The appointments admittedly, were made in the year 1993, and in the meantime four years have elapsed and the dispute arose and ultimately the dispute was pending in the Writ Court for about four years for effective adjudication.

44. It cannot be ignored that several positions have been filled up from amongst the candidates who were not figured in the reference/list sent by the Employment Exchange. But in order to set up required infrastructure for catering to the needs of the litigant public in North 24-Parganas, respondents 4 to 1.8 were appointed and I think, in all fitness of things, it is not desirable that appointment in favour of respondents 4 to 18 should be disturbed. Since the appointments in favour of respondents have already been made, though I am not inclined to set aside such appointment, but this Court should not be unmindful to the genuine grievance of the petitioners, protracted statutory assurance for a call from the Employment Exchange and consequential appointment and legitimate expectation of the petitioners. It is incumbent that the petitioners in both the writ petitions should be held to be qualified and hence to be absorbed and accommodated in Group D category.

45. After giving anxious consideration of the facts and circumstances it cannot be ignored that after bifurcation, Judgeship in North 24 Parganas, Barasat was crippled and handicapped due to lack of adequate and viable infrastructural facilities. The competent authorities had completed the entire exercise of selection by a partial deviation from the subsisting rules of recruitment as they were anxious to select candidates for effective administration in he Judgeship of North 24 Parganas. Admittedly, respondents 1 to 3 had demonstrated their anxiety to select candidates by inviting applications from outside the reference received from Employment Exchange so that the administration in the Judgeship of North 24 Parganas could offer effective infrastructural service to the litigants. There might be some irregularities in the process of selection, there might be some element of unusual haste, but the exercise in filling up the vacant positions by introducing a pick and choose method, by entertaining applications on need based mechanism, instead of following the requirements of Recruitment Rules and instead of giving reasonable opportunity of assessment of merit from amongst the candidates referred from the Employment Exchange, the respondents competent authorities had appointed respondents 4 to 18. Though the exercise for absorption of the vacancies in the Judgeship of North 24 Parganas cannot be said to be fair but by cancelling the appointments of respondents 4 to 18 and/or withdrawing and cancelling the selection, petitioners would not get effective access to the justice for obvious reason, unless process for selection can be initiated de novo. For all fitness of things and for ends of justice, it is not desirable that the selection respondents 4 to 18 should be set aside. Irregularities in such cases can be ignored. The doctrine of equity may come to its aid for resolving the disputes. Equity shall overpower all technicalities when human justice is at stake.

46. If respondents 4 to 18, are not disturbed, the petitioners, who have challenged the entire selection process, ought to have given opportunity for being selected from amongst the candidates sent from Employment Exchange and not from amongst outsiders and/or mixed candidates. Legitimate expectation for being appointed in those vacancies was ignored.

47. In such view of the matter, the respondents are directed to select and appoint petitioners 1 and 2 in C.O No. 3636 (W) of 1993 and the sole petitioner in C.O No. 10485 (W) of 1993 for the post of “peon in Group D category” of the judgeship of North 24 Parganas, Barasat, If no vacancy is available for the post of “peon in Group D category,” the respondents are directed to create “supplementary posts” for the purpose of accommodating the petitioners in both the writ petition within 2 (two) months from the date and such exercise for appointing the petitioners shall be completed by 31st May, 1997.

48. I further direct that since the writ-petitioners, in both the writ petitions are going to be appointed in “Group D” posts, the appointment, already issued in favour of respondents 4 to 18 who have been rendering service for few years, may be confirmed in accordance with law.

49. Petitioners in both the writ petitions shall be deemed to be appointed with retrospective date when respondents 4 to 18 were appointed for the purpose of notional benefits and petitioners will be entitled to avail of all the promotional benefits and increments at par with respondents 4 to 18 though the petitioners shall be appointed from a prospective date in terms of the order passed by this Court today. The maximum age limit shall be relaxed, so far as the petitioners are concerned. The concession will not create precedence.

50. Writ petitions are disposed of accordingly. There will be no order as to costs.

51. Let a plain copy of the order duly countersigned by the Assistant Registrar (Court) be given to the learned advocates appearing for he parties on usual undertakings.