Calcutta High Court (Appellete Side)

Moumita Ghosh & Ors vs Aktarul Islam Kayal & Ors on 12 January, 2021

  12.01.2021
  S/L No. 28
 Court No.12
DNS/s.biswas
                             MAT 843 of 2020

                              Moumita Ghosh & Ors.
                                        Vs.
                            Aktarul Islam Kayal & Ors.

                           (Through Video Conference)

                   Mr. Partha Sarathi Bhattacharya
                   Mr. Ashis Kumar Chowdhury
                   Mr. Rajib Ghosh
                   Ms. Debrupa Mukherjee
                                                 ... ... for the appellants
                   Mr. Kishore Datta, learned Advocate General
                   Dr. Sutanu Kr. Patra
                   Mr. K. K. Bandyopadhyay
                   Ms. Supriya Dubey Chakraborty
                                                  ... ... for the WBCSSC
                   Mr. A. Majumder, ld. AAG
                   Mr. Bhaskar Prasad Vaisya
                   Mr. Suman Dey
                                                      ... ... for the State
                   Dr. Chapales Bandyopadhyay
                   Ms. Anandamayee Dutta
                         ... ... for the respondent no.118/ Secy, WBCSSC

Mr. Subir Sanyal Ms. Ruchira Chatterjee Mr. Vishak Bhattacharya ... ... for the respondent no. 1 to 115 Ms. Koyeli Bhattacharya ... ... for the WBBSE

This appeal is at the instance of parties who were not

parties in the writ proceeding. They filed an application for

leave to prefer an appeal that was allowed on 7th February,

2021 on the sole consideration that the applicants claimed

to be the merit listed candidates for the recruitment to the

posts of Assistant Teachers in upper primary school in

connection with State Level Selection Test 2016 (in short

SLST) but by reason of the cancellation of merit list their

chance of being appointed on the basis of the panel

prepared as per merit list is in jeopardy. The application

for leave to appeal was thus allowed on such

considerations by an order dated 7th January, 2021.

The contention of the petitioner Mr P. S.

Bhattacharya, learned Senior Counsel appearing on behalf

of the applicants/appellants is that the cancellation of the

merit list suffers from total non-application of mind. By

reason of the publication of the merit list by the School

Service Commission third party's interest has been created

and it was improper to quash the merit list without giving

an opportunity of hearing to the successful merit listed

candidates. It is submitted that the merit list was

published by the School Service Commission after

completion of the selection process by following

recruitment rules i.e. SLST 2016 (upper primary) and the

appellants as successful candidates are eligible to get

appointment as teacher in the Upper Primary Section of

Government aided and sponsored Schools which fact

ought to have been taken into consideration by the learned

Single Judge before quashing the merit list and directing

the successful candidate to appear again in the interview

process. It is submitted that in view of the fact that the

appellants are merit listed candidates selected through

recruitment process they cannot be directed at this stage

to appear again in the interview process. Mr.

Bhattacharyya in keeping with the tradition of the bar has

candidly submitted that all the writ petitions except WPA

No. 9597 of 2019 were filed when merit list was not

prepared. All other matters were filed subsequently only

after preparation of the merit list which factor is relevant

in considering the grievance of the present appellants as

by that time valuable right has accrued in their favour by

reason of inclusion of their names in the merit list

prepared by the Commission.

The said list was prepared after verifying everything

and the learned Single Judge without recasting the said

merit list cancelled the selection process without following

the recruitment rules. It is submitted that once a person

is declared successful according to the merit list of

selected candidates the appropriate authority has the

responsibility to appoint that person as the rights of the

successful candidates cannot be turned down on the basis

of the claim of unsuccessful candidate. It is argued that

the court in such a situation should not sit in judgment

over the method of marking used by the interviewing body

in the personality test. There is no fault on the part of the

successful candidates whose names were included in the

merit list as per the eligibility criteria and their merits and

they cannot be made to suffer for any mistake committed

by the Commission in giving preference to some

candidates. It is argued that it is fundamental that he

who alleges must prove it which the writ petitioner has

failed to do. In other words it is argued that the

allegations of malpractices or favouritism or any illegal

procedure adopted in preparation of the merit list are

completely unsubstantiated and there is no proper

pleading in the writ petition which, however, was ignored

by the learned Single Judge.

Mr. Bhattacharyya has taken us through the

judgment meticulously and submitted that the finding of

the learned Single Judge that the TET marks wrongfully

inflated of the selected candidates is neither urged nor

pleaded and in absence of a clear case of mala fide made

out by the writ petitioners the learned Single Judge could

not have directed the process of recruitment denovo. It is

submitted that the learned trial Judge has failed to

appreciate that the criteria mentioned in the

advertisement is the criteria to be followed and any

infraction of Rule 12(4) which essentially is procedural and

is directory in nature could not have affected the

preparation of the merit list even if it is contended and

held that the interview list exceed the ratio of 1:1.4 as

required under Rule 12(4). It is submitted that the

learned Single Judge has over emphasised the

requirement of B.Ed. degree as required under the

advertisement read with Rule 4(1) third proviso. It is

submitted that the writ petitioners are unable to establish

that even if there may be a relaxation by the commission

by accepting B.Ed. degree certificates after submission of

online application the writ petitioners are unable to

establish any prejudice, in short, it is submitted that

acceptance of such certificates could not make any

difference so far as the writ petitioners are concerned.

Mr. Bhattacharya, was critical of the observation made

by the learned single Judge with regard to manipulation of

the interview marks and it is submitted that the

explanation of the Commission that there are 40 interview

boards assessing the large number of candidates, the

uniformity is not possible and it has been recognised by

the Hon'ble Supreme Court in Lila Dhar vs. State of

Rsjasthan & Ors. reported in (1981) 4 SCC 159

(paragraph 8).

Mr. Bhattacharya has strenuously argued that the

names of the petitioners having featured in the merit list

ought to have been heard by the learned single Judge

before directing the de novo selection as the learned single

Judge has failed to appreciate that valuable right has been

denied in respect of present appellants and no order could

be passed without giving an opportunity of hearing to the

petitioners. In this regard learned counsel has relied upon

a judgment of the Hon'ble Supreme Court in the case of

Arun Tewari & Ors. vs. Zila Mansavi Shikshak Sangh

& Ors. reported in (1998) 2 SCC 332 (paragraph 13).

We have heard Mr. Kishore Datta, learned Advocate

General, ably assisted by Dr. Sutanu Patra. It is

significant to mention that Commission has not preferred

any appeal against the order. That the said order has

adversely affected the Commission cannot be doubled.

The learned Advocate General appearing for the School

Service Commission (in short SSC) has submitted that the

first process as directed by the learned single Judge has

already commenced and the verification is under process.

The conduct of the Commission is an extreme relevant

factor in deciding the locus of the present writ petitions as

well as the issues raised by them as the challenges thrown

by the Commission to the claim of the writ petitions were

rejected by the learned single Judge with regard to

recruitment of teachers in question after considering the

relevant record and pleading.

Firstly, we deal with the argument made by Mr.

Bhattacharya that the order ought not to have been

passed in favour of the writ petitioners in absence of the

present appellants. We are of the firm opinion that no

vested rights had accrued in favour of the applicants

merely because their names were included in the merit

list. It is elementary that inclusion of the names in the

merit list does not create any indefeasible rights to claim

appointment. In the absence of any vested right in favour

of the candidates whose claims are under consideration for

appointment, we are of the view that the present

appellants are not required to be heard, apart from the

fact that the validity of the recruitment process can only

be answered and defended by the Commission as they

have prepared the list. The recruitment process was

initiated under the West Bengal School Service

Commission (Selection and Appointment to the Posts of

Teachers for Upper Primary Level of Schools) Rules 2016

and whether proper procedure has been followed can only

be answered by the Commission. If there has been a clear

infraction of the rules and illegalities committed in the

process of recruitment, the Court has every right to

interfere with such illegalities as and when they are

brought to the notice of the Court. In any event we invite

the applicants to make submission on merits and to

demonstrate errors in the judgment. They were given the

opportunity to argue on merits.

The impugned judgment records the following

contentions raised by the writ petitioners challenging

recruitment process :

a) Lesser qualified candidates with inferior academic

qualifications and lower TET (Teacher Eligibility Test)

weightage have been included in the Merit List.

b) The Intervie list has been published without

disclosing the specific marks obtained by the candidates

c) The Commission failed to prepare the Merit List in

terms of the Rules. The Commission also failed to prepare

the Interview List in the ratio of 1:1.4 of the final vacancies

as mandated under the Rules.

d) Untrained candidates were brought into the zone of

consideration in violation of the Rules.

e) Arbitrary awarding of marks in the Personality

Tests/Interviews which would be evident from identical

marks awarded to several candidates.

f) The Commission commenced the Personality Test of

candidates in the Interview List without first publishing

the final vacancy list.

These issues have been very meticulously discussed

and answered in favour of the writ petitioners. We find

two of the aforesaid issues namely no.(a) and (b) are

important and enough to decide the entire gamut of

controversy as we feel that answer in either way would be

sufficient to dislodge either of the parties. In other words

if the said issues are answered in favour of the writ

petitioners there may not be any necessity to decide the

other issues as they would go to the very root of the

recruitment process culminating in a merit list. The entire

complexion of the controversy between the parties and

relative merits of their cases depend upon the steps taken

by the SSC in terms of the order passed in W.P. No. 5189

(W) of 2018 (Nandini singha vs. State of West Bengal)

dated 16th January, 2019 which had triggered and

unsettled the merit list prepared by the commission of all

candidates pursuant to the advertisement mentioned

above. The writ petitioners alleged that 21 of 160 writ

petitioners despite scoring higher marks in the aggregate

of academic qualifications, professional qualifications and

TET weightage failed to find a place in the merit list as

opposed to candidates with a lower aggregate who were

selected for the merit list. This was in reference to six

categories female general, female OBC-B, male general,

male SC, male OBC-A and male OBC-B, the same pattern

was repeated as well for the other categories. In some

cases the writ petitioners were not even called for

verification which is before the stage of

interview/personality stage. The commission cantended

before the learned Single Judge that pursuant an order

passed in aforesaid writ petition that is Nandini singha

(supra) dated 16th January, 2019 the Commission decided

to reassess the TET marks of the petitioners. The

Commission thereafter found that the marks of all

candidates were required to be reassessed and accordingly

decided to reassess the OMR answers scripts for TET 2015

of all the candidates as a result of the reassessment the

TET marks of a large number of candidates was altered.

The question arises if there has been a reassessment of

the answers scripts of the TET 2015 then the exercise of

discretion left to the candidates to give preference in terms

of Clause 6 of the first SLST (AT) for upper primarly level is

affected and if the answer to this is in the affirmative then

the Commission is left with no choice but to start a

process from the stage of Rule 12(3) as directed by the

learned Single Judge. The learned Single Judge relied

upon the affidavits filed by the Commission affirmed on

13th October, 2020 and the report of the Chairman of the

Commission dated 29th November, 2019 wherein Nandini

Singha was declared as TET qualified in compliance of the

order dated 16th January, 2019. A burning match stick is

good enough to rage down a building. This solitary case in

extending justice to Nandini singha which she deserved,

has pricked the conscience of the Commission otherwise

in the report of the Chairman it would not have been

stated that the Commission had reasons raising to believe

that other candidates had been similarly prejudiced as the

writ petitioners in W.P. No. 5189 (W) of 2018 and on an

unanimous decision taken by the Commission a resolution

was taken in the presence of all and with the consent of its

members for revisiting the TET marks of 2,28,670

candidates. The Commission in its affidavit dated 23rd

December, 2019 did not offer any explanation on the

decision to reassess the TET marks of all the candidates

and the first time that the commission indicated that such

a steps was taken in January, 2019 was by way of

submission in October, 2020 followed by an affidavit of 9th

October, 2020. There is a saying "truth has the ugly habit

of raising its head" and precisely that had happened in the

instant case, courtesy to Nandini Singha who possibly

came as rescuer for the writ petitioners, as it was because

of her case the commission decided to reassess and revisit

the TET marks of all 2,28,670 candidates.

It cannot be denied that Rule 12(5) of the 2016 Rules

gives weightage to a candidate's TET marks and makes it

clear that TET weightage would have a bearing on a

candidate being selected for the merit list as detailed

further in Part A of Schedule III. The Brochure says that

no request for rechecking, reassessment, reevaluation or

scrutiny of OMR Answer Sheets will be entertained and no

correspondence in this regard will be entertained.

Moreover, Clause 6 of the first SLST (AT) for Upper

Primary Level Brochure provides that a candidate may give

information in relation to TET 2011 of TET 2015 Roll

Number (applicant can use any one among both TET

results). By reason of the aforesaid undertaking of the

Commission, the reassessment of the TET marks of all the

candidates has caused prejudice to the candidates as

explained by the learned Single Judge in the following

words :-

"hence, there is every possibility that a reassessment of TET 2015 may result in a candidate being deprived of the choice given to him/her under Clause 6 of the Information Brochure. For example, if a candidate who has opted to give his marks obtained in TET 2011 which are higher compared to TET 2015, the candidate may be irrevocably prejudiced if his TET 2015 marks are subsequently enhanced to a level higher than his TET 2011 marks. The converse may also apply where a candidate has opted to give his TET 2015 marks instead of 2011 and finds that upon reassessment, his 2015 marks have been reduced to a level lower than his TET 2011 marks. The net result of all these possibilities is that

a candidate is deprived of exercising an effective choice under Clause 6 of the Brochure. The question is can a candidate be unfairly prejudiced by an act of the Commission without the candidate being informed, in advance, of the nature of the act."

The learned Advocate General, in his usual fairness

and true to the tradition of the Bar has submitted that this

reassessment by the Commission has a cascading effect

on the initial list that had influenced the learned Single

Judge. Moreover, we find that after the advertisement for

the recruitment process was published clearly mentioning

that after submission of online form no further

rectification will be allowed, the commission allowed

submission of certificates of B.Ed. by the candidates, who

had obtained such certificates after the cut off date. This

relaxation for some of the candidates to the exclusion of

other is not permissible as the Rules of the game cannot

be altered to the prejudice of others after initiation of the

recruitment process. Accordingly we agree with the

following finding of the learned Single Judge:

"Even if the contention of the Commission that

certain candidates were allowed to add to their

qualifications since the said qualification had already

been obtained by the candidate before the last date of

submission of the application form is accepted as

correct, it is undeniable that the cut-off date was

relaxed for several of the candidates to the exclusion

of others. It is equally correct that apart from several

candidates being treated as B.Ed qualified, the marks

under the other heads namely TET weightage was

modified after the last date of submission of the

application forms. The answer of the Commission

that the third proviso to Rule 4(1) is directory and

procedural in nature or that no candidate had

suffered infraction of his right, is not acceptable. The

Rules prescribed cannot be complied on a selective

basis; either the compliance has to be uniform or

alternatively selective relaxation of the Rules must be

upon notice to the candidates who will be affected by

such change to the Rules."