THE WEST BENGAL BACKWARD CLASSES (OTHER THAN SCHEDULED CASTES AND SCHEDULED TRIBES) (RESERVATION OF VACANCIES IN SERVICES AND POSTS) ACT, 2012.

Other Backward Classes” shall mean such classes of citizens as specified in Schedule I, other than Scheduled Castes and Scheduled Tribes, and includes such classes as the State Government may, by notification in the Official Gazette, specify from time to time.

GOVERNMENT OF WEST BENGAL
LAW DEPARTMENT
Legislative

NOTIFICATION

No. 533-L.—25th March, 2013.—The following Act of the West Bengal Legislature, having been assented to by the Governor, is hereby published for general information:—

West Bengal Act XXXIX of 2012

THE WEST BENGAL BACKWARD CLASSES (OTHER THAN SCHEDULED CASTES AND SCHEDULED TRIBES) (RESERVATION OF VACANCIES IN SERVICES AND POSTS) ACT, 2012.

[Passed by the West Bengal Legislature.]

[Assent of the Governor was first published in the Kolkata Gazette, Extraordinary, of the 25th March, 2013.]

An Act to provide for the reservation of vacancies in services and posts for the Backward Classes of citizens other than the Scheduled Castes and Scheduled Tribes.

Whereas clause (4) of article 15 of the Constitution enables the State to make any special provisions for the advancement of any socially and educationally Backward Classes of citizens;

And Whereas clause (4) of article 16 of the Constitution enables the State to make any provision for the reservation of appointments or posts in favour of any Backward Classes of citizens which in the opinion of the State is not adequately represented in the services under the State;

And Whereas clause (1) of article 38 of the Constitution states that, the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may, a social order in which justice, social, economic and political, shall inform all the institutions of the national life;

And Whereas under clause (2) of article 38 of the Constitution, the State shall, in particular, strive to minimize the inequalities in income and endeavour to eliminate inequalities in status, facilities and opportunities not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations;

And Whereas under clause (b) of article 39 of the Constitution, the State shall in particular, direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;

And Whereas under clause (c) of article 39 of the Constitution, the State shall in particular direct the policy towards securing that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;

And Whereas under article 46 of the Constitution, the State shall promote, with special care the educational and economic interests of the weaker sections of the people, and shall protect them from social injustice and all forms of exploitation;

And Whereas the members of the Backward Classes of citizens other than the Scheduled Castes and Scheduled Tribes who are socially and economically backward, are not adequately represented in the services and posts within the State of West Bengal;

And Whereas it is expedient to provide for the reservation of vacancies in services and posts for them;

It is hereby enacted in the Sixty-third Year of the Republic of India, by the Legislature of West Bengal, as follows:—

1. Short title, extent and commencement:

(1) This Act may be called the West Bengal Backward Classes (Other than Scheduled Castes and Scheduled Tribes) (Reservation of Vacancies in Services and Posts) Act, 2012.

(2) It extends to the whole of West Bengal.

(3) It shall come into force on such date as the State Government may, by notification in the Official Gazette, appoint.

2. Definitions:

In this Act, unless the context otherwise requires,—

(a) “appointing authority”, in relation to a service or post in an establishment, means the authority empowered to make appointment to such service or post;

(b) “cadre” means the strength of a service or a part of a service sanctioned as a separate unit;

(c) “establishment” means any office of the State Government, a local authority or statutory authority constituted under any State Act for the time being in force, or a corporation in which not less than fifty-one per cent of the paid up share capital is held by the State Government, and includes universities and colleges affiliated to the universities, primary and secondary schools and also other educational institutions which are owned or aided by the State Government, and an establishment in public sector;

(d) “establishment in private sector” means any industry, trade, business or occupation which is not an establishment in public sector;

(e) “establishment in public sector” means any industry, trade, business or occupation owned, controlled or managed by-

(i) the State Government or any Department of the State Government,
(ii) a Government company as defined in section 617 of the Companies Act, 1956 or a corporation established by or under a Central Act or State Act, in which not less than fifty-one per cent, of the paid up share capital is held by the State Government,
(iii) a local or statutory authority, constituted under any State Act for the time being in force;

(f) “lists” means list prepared by the Government of West Bengal from time to time for purposes of making provision for the reservation of appointments or posts in favour of Backward Classes of citizens which, in the opinion of the Government, are not adequately represented in the services under the Government of West Bengal or any local or other authority within the territory of the State of West Bengal or under the control of the Government of West Bengal;

(g) “notification” means a notification published in the Official Gazette;

(h) “Other Backward Classes” shall mean such classes of citizens as specified in Schedule I, other than Scheduled Castes and Scheduled Tribes, and includes such classes as the State Government may, by notification in the Official Gazette, specify from time to time;

(i) “Schedule” means the Schedule appended to this Act;

(j) “single post cadre” means a cadre which has the strength of one post only;

(k) “State Government” means the Government of West Bengal.

3. Act not to apply in relation to certain employment:

This Act shall not apply in relation to,—

(a) any employment under the Central Government;
(b) any employment to the cadre of Higher Judicial Officers;
(c) any employment in private sector;
(d) any employment in domestic service;
(e) any employment in single post cadre.

4. Certain categories of persons to be excluded from reservation:

Persons or sections from Other Backward Classes specified in column 3 of Schedule II shall be excluded from the purview of this Act.

5. Reservation for Other Backward Classes in vacancies to be filled up by direct recruitment:

After the commencement of this Act, all appointments to services and posts in establishments which are to be filled up by direct recruitment shall be regulated in the following manner, namely,—

(a) subject to the other provisions of this Act, ten per cent of the vacancies shall be reserved for candidates belonging to the Other Backward Classes denoted as “Other Backward Classes Category A” category and seven per cent of the vacancies shall be reserved for candidates belonging to the “Other Backward Classes Category B” category of the Other Backward Classes in the manner set out in Schedule HI:

Provided that the State Government may, from time to time, by notification in the Official Gazette, increase the percentage in the manner that the overall reservation for the Scheduled Castes, the Scheduled Tribes and Other Backward Classes shall not exceed fifty per cent.

(b) the members of the Other Backward Classes qualifying on merit in an open competition on the same standard as of the unreserved candidates for appointment to any unreserved post in a service or post in an establishment to be filled up by direct recruitment shall not be adjusted against the quota reserved in such service or post for such candidate under sub-section (a).

Explanation.—For the purpose of this Act, Other Backward Classes Category A shall mean the “More Backward Classes” and the Other Backward Classes Category B shall mean the “Backward Classes”.

6. Certificate of identification:

A candidate who claims to be a member of either Other Backward Classes Category A or Other Backward Classes Category B category shall support his candidature by such certificate of identification to be issued by such competent authority in such manner as may be prescribed.

7. De-reservation of reserved vacancy:

(1) There shall be no de-reservation of any reserved vacancy by any appointing authority to any post in an establishment which is required to be filled up by direct recruitment. In the absence of any qualified candidate from Other Backward Classes, the vacancy shall remain unfilled.

(2) Notwithstanding anything contained in sub-section (1), if in the public interest, it is necessary to fill up any vacancy as aforesaid, remaining unfilled on account of non-availability of a qualified candidate from “Other Backward Classes”, the appointing authority shall refer the vacancy to the State Government for de-reservation. Upon such reference, the State Government may, if it is satisfied that it is necessary or expedient so to do, by order, de-reserve the vacancy, subject to the condition that the reservation against the vacancy so de-reserved shall be carried forward against the subsequent unreserved vacancy available at the time of passing the order of de-reservation or any unreserved vacancy which shall occur in future:

Provided that the State Government may, if it is satisfied that the appointing authority by genuine mistake or on account of an error of judgment or owing to ignorance has filled up any reserved vacancy otherwise than by a candidate for whom the vacancy is reserved and that there has been no malafide intention in this regard on the part of the appointing authority, by order in writing, regularize the appointment, if so applied for by the appointing authority, on the basis of the carry-forward principle. In such case, reservation against the reserved vacancy already filled up otherwise than by a candidate belonging to the Other Backward Classes for whom the vacancy was originally reserved, shall,-

(a) if such vacancy relates to an establishment other than the establishment in Universities and Colleges affiliated to the Universities, Primary and Secondary Schools and also other educational institutions which are owned or aided by the State Government, be carried forward to the nearest unreserved vacancy available at the time of consideration of any application; or
(b) if such vacancy relates to an establishment in Universities and Colleges affiliated to the Universities, Primary and Secondary Schools and also other educational institutions which are owned or aided by the State Government, be carried forward to the nearest unreserved vacancy available at the time of consideration of any application or to any unreserved vacancy which shall occur in future:
Provided further that the State Government may, if it considers necessary or expedient so to do, by notification in the Official Gazette, empower any other authority not below the rank of District Magistrate and District Commissioner for Reservation to exercise the power of the State Government to de-reserve a reserved vacancy under this sub-section.

(3) The appointing authority shall, for the purposes of sub-section (2), make an application to the State Government in such Form and in such manner, as may be prescribed by the State Government.

(4) Notwithstanding anything contained in the foregoing provisions of this section or elsewhere in this Act, if, in the public interest, it is necessary or expedient to fill up any vacancy, in any post in any primary, secondary or higher secondary school, in any district owned or aided by the State Government, caused by deputation or leave of the incumbent of that post for a period not exceeding ten months and remaining unfilled on account of non-availability of a qualified candidate from the Other Backward Classes, the appointing authority may refer the vacancy to the District Commissioner for Reservation, referred to in section 8, of the concerned district for de-reservation and upon such reference, the District Commissioner for Reservation may, if he is satisfied that it is necessary or expedient so to do, by order, de-reserve the vacancy, subject to the condition that the reservation against the vacancy so de-reserved shall be carried forward against the subsequent unreserved vacancy in any such post caused by such deputation or leave for such period.

Explanation I.—For the purpose of this Act, for Kolkata, the references to District Commissioner for Reservation shall be construed as references to the Joint Commissioner for Reservation.

Explanation II.—For the purpose of this Act “Kolkata” shall mean the town of Kolkata as defined in section 3 of the Kolkata Police Act, 1866.

8. Commissioners to enforce reservation:

(1) There shall be a Commissioner, a Joint Commissioner, a Deputy Commissioner and an Assistant Commissioner for reservation for the State and a District Commissioner for reservation for each district, for the purpose of enforcing the provisions of this Act.

(2) Save as otherwise expressly provided in this Act, every officer referred to under sub-section (1) shall be the same officer as provided for in the West Bengal Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1976.

(3) If any appointing authority having territorial jurisdiction throughout West Bengal, or having its offices and fixed territorial jurisdiction in Kolkata or having its offices in Kolkata without having any fixed territorial jurisdiction, contravenes any provisions of this Act, and thereby commits an offence punishable under section 10, the Commissioner, or the Joint Commissioner, or the Deputy Commissioner, or the Assistant Commissioner or any officer not below the rank of Inspector of Backward Classes Welfare Department authorised by him in this behalf, may file a complaint in any court having jurisdiction against such appointing authority.

(4) If any appointing authority having territorial jurisdiction in the whole, or in any part, of the district, or having no fixed territorial jurisdiction in the district, but having his office in the district to which the jurisdiction of the District Commissioner extends, contravenes any provisions of this Act, and thereby commits an offence punishable under section 10, the District Commissioner or any officer not below the rank of Inspector of Backward Classes Welfare Department authorised by him in this behalf, may file a complaint in any court having jurisdiction against such appointing authority.

9. Territorial jurisdiction:

For the purpose of section 8,—

(a) territorial jurisdiction shall, in relation to an appointing authority, mean the area to which its administrative jurisdiction extends; and

(b) an appointing authority, whose administrative jurisdiction does not extend to any fixed area, shall be deemed to be an appointing authority without having any fixed territorial jurisdiction.

10. Penalty for contravention of provisions by an appointing authority:

If an appointing authority contravenes any provision of this Act, he shall be punishable with imprisonment for a term which may extend to five years, or with fine of two thousand and five hundred rupees, or with both:

Provided that nothing contained in this section shall apply in relation to an appointment to any service or post of which the appointing authority is the Governor.

11. Cognizance of offence:

No court shall take cognizance of an offence punishable under this Act save upon complaint made by the Commissioner or the District Commissioner, or an officer not below the rank of Inspector of Backward Classes Welfare Department duly authorised in this behalf.

12. Previous sanction of the State Government necessary for prosecution:

No prosecution for an offence under this Act shall be instituted except by, or with the sanction of, the State Government.

13. Burden of proof:

Where a complaint is filed in any court having jurisdiction against an appointing authority under sub-section (3) or sub-section (4) of section 8 for contravening any provision of this Act the burden of proof that no contravention of any provision of this Act has been made by him, shall lie with him.

14. Protection of action taken in faith:

No suit, prosecution or other legal proceeding shall lie against any person for anything, which is in good faith done or intended to be done under this Act.

15. Removal of difficulties:

If any difficulty arises in giving effect to the provisions of this Act, the State Government may take such steps or issue such orders not inconsistent with the provisions of this Act, as the State Government may consider necessary for removing the difficulty.

16. Power to amend any Schedule:

The State Government may, by order published in the Official Gazette, add to, amend or alter any Schedule.

17. Submission of annual report, maintenance of other records and inspection thereon:

(1) Every appointing authority shall maintain such records and documents as may be prescribed by rules made in this behalf and shall furnish to the State Government in the prescribed manner an annual report on the appointments made by it during the previous year reckoned according to the British calendar.

(2) Any officer authorised by the State Government in that behalf may inspect any record or documents which are maintained in relation to appointments made by such appointing authority.

(3) It shall be the duty of the appointing authority to produce such records or documents for inspection by the officer authorized under sub-section (2), and furnish such information or afford such assistance as may be necessary for him to carry out his functions under this Act.

(4) Notwithstanding anything contained in the West Bengal Services (Duties, Rights and Obligations of the Government Employees) Rules, 1980 any member of the Other Backward Classes who is adversely affected on account of the non-compliance with the provisions of this Act or the rules made thereunder by any appointing authority, may bring the fact to the notice of the State Government and upon application made by him the State Government may call for such records or take such action thereon as it may think fit.

18. Power to make rules:

(1) The State Government may make rules for carrying out the purposes of this Act.

(2) In particular and without prejudice to the generality of the foregoing power such rules may provide for all or any of the following matters, namely,—

(a) form in which every establishments shall submit annual report to the State Government regarding the number of persons recruited in such establishments;
(b) any other matter which has to be or may be prescribed by rules made in this behalf.

19. Saving:

Actions taken in pursuance of any notifications, orders etc. issued for the purpose prior to coming to force of this Act shall be deemed to have been taken under the provisions of this Act.

SCHEDULE I

[See Section 2(h)]

SCHEDULE II

[See Section 4]

Explanation.—Wherever the expression “permanent incapacitation” occurs in this Schedule, it will mean incapacitation which results in putting an officer out of service.

SCHEDULE III

(See section 5)

The reservation for the members of the Other Backward Classes in services or posts in an establishment shall be given effect to in the following manner, namely:-

(i) A roster of one hundred vacancies will be necessary to give effect to the reservation of vacancies for the Other Backward Classes for direct recruitment. The roster given below shall be adopted for the purpose by each establishment:-

(ii) Before making any appointment by direct recruitment, the appointing authority shall ascertain by consulting the register whether the vacancy is reserved or unreserved and if it is reserved, for whom it is reserved. Immediately after an appointment is made the particulars thereof shall be entered in the register and signed by the appointing authority.

(iii) The roster is a running account from year to year and shall be maintained accordingly. If recruitment in a particular year stops at a particular point of a cycle, say at the 5th point, recruitment in the subsequent year shall begin at the next point, that is, at the 6th point.

(iv) The roster shall be maintained separately for permanent and temporary vacancies.

(v) A vacancy due to whatever cause, except termination of service during probation, shall be treated as a fresh vacancy.

By order of the Governor,

MALAY MARUT BANERJEE,
Secy. to the Govt. of West Bengal,
Law Department.