Payel Bag & Ors vs State Of West Bengal & Ors
2021 Latest Caselaw 4493 Cal

             IN THE HIGH COURT AT CALCUTTA
                   Constitutional Writ Jurisdiction
                              Appellate Side



Present:
The Hon'ble Justice Abjijit Gangopadhyay


                          WPA 4008 of 2021

                             Payel Bag & Ors.
                                  Versus
                        State of West Bengal & Ors.



For the petitioner(s)            :   Mr.   Bikram Banerjee
                                     Mr.   Sudipta Dasgupta
                                     Mr.   Arka Nandi
                                     Mr.   Saikat Sutradhar

For the respondent Board         :   Mr. L. K. Gupta, Sr. Advocate

Mr. Subir Sanyal Mr. Ratul Biswas

For the NCTE : Mr. Sauvik Nandy

Heard on : 28.07.2021, 12.08.2021, 31.08.2021, 01.09.2021 and 02.09.2021

Judgement on : 03.09.2021

Abhijit Gangopadhyay, J.:

1. This writ application has been filed by 19 petitioners, inter alia,

with a prayer for considering their offline application forms in

respect of the selection process initiated by notification dated

December 23, 2020 by the West Bengal Board of Primary

Education, being the respondent no. 2 herein, and to conduct

interview of the petitioners and to take necessary consequential

steps for appointing the petitioners, being trained candidates,

after awarding appropriate marks for the wrong answers given

in the answer key of Teachers‟ Eligibility Test 2014 in respect of

six questions. Such appointments are to be given in the post of

Assistant Teachers in primary school. On 28th July, 2021 it was

observed by this court that the only question with which this

court is concerned is whether the petitioners can be declared as

persons who have been qualified in Teachers‟ Eligibility Test,

2014 (TET 2014, for short).

2. The petitioners‟ case, as has been made out in the writ

application is, they participated in TET 2014 but they were not

successful. Subsequently they filed an application under Right

to Information Act for OMR sheets, question papers and answer

key which were supplied to them by the West Bengal Board of

Primary Education („the Board‟, for short).

3. After scrutinising the question papers, answer keys and the

OMR sheets, as was supplied to them, they found that the

answers shown in the answer key in respect of some questions

were wrong. Later it came to light that the Board committed

error in respect of 6 (Six) questions and answers. The petitioners

beside other questions in the question booklet attempted those

six questions. They did not get any marks in respect of those six

questions and as a result, according to them, they were not

qualified in TET 2014. Their submission before this court is that

- had marks been awarded to them in respect of those wrong six

questions and answers they would have been qualified in TET

2014.

4. The petitioners thereafter filed writ applications for

reassessment or re-evaluation of OMR sheets of TET 2014 and

for awarding full marks against the wrong questions and

answers. The writ petition numbers of the petitioners were, as

has been supplied by the petitioners, including the date of order

passed in those writ applications are as follows:

Sl. Name of petitioners in Previous case number Order date

No. WPA 4008 of 2021

1. Payel Bag W.P. No. 12399(w) of 2018 November 26, 2018

2. MD. Kamaruzzaman W.P. No. 12398(w) of 2018 November 26, 2018

3. Sachin Roy W.P. No. 4123(w) of 2018 November 26, 2018

4. Ezaz Ahamed W.P. No. 4117(w) of 2018 November 26, 2018

5. Sanatan Basak W.P. No. 3701(w) of 2018 November 26, 2018

6. Ajoy Pal W.P. No. 23861(w) of 2017 November 26, 2018

7. Prasanta Kumar Maity W.P. No. 24628(w) of 2017 November 26, 2018

8. Sayantani Bej W.P. No. 24630(w) of 2017 November 26, 2018

9. Serina Khatun W.P. No. 417(w) of 2018 November 26, 2018

10. Prasad Krishna Mahato W.P. No. 28523(w) of 2017 October 3, 2018

11. Amit Bauri W.P. No. 2571(w) of 2018 March 7, 2019

12. MD. Sahabuddin W.P. No. 25774(w) of 2017 November 26, 2018

13. MD. Jiaul Hoque W.P. No. 4116(w) of 2018 November 26, 2018

14. Manas Mandal W.P. No. 4119(w) of 2018 November 26, 2018

15. Ranjit Kumar Pramanik W.P. No. 1496(w) of 2018 November 26, 2018

16. Swadhin Kumar Pal W.P. No. 23797(w) of 2017 November 26, 2018

17. Sirina Khatun W.P. No. 4487(w) of 2018 November 26, 2018

18. Bapi Saha W.P. No. 4120(w) of 2018 November 26, 2018

19. Ganapati Mahata W.P. No. 25773(w) of 2017 November 26, 2018

The petitioners have supplied the above chart also to the

learned advocate for the respondents, Mr. Biswas today.

The judgment and order passed in one of such applications,

being WP 12399(W) of 2018 is found from Annexure P-1 of the

present writ application which starts at page 26. The petitioners

have submitted that in respect of other writ applications,

numbers and dates of order whereof have been given in the

chart above, the judgments and orders were also similar.

5. Operative portion of the order of the court passed in WP

12399(W) of 2018 (vide Anneuxre P-1 at page 26 of the present

writ application) is as follows:

"Accordingly I direct the Secretary, West Bengal Board of

Primary Education to award marks to the petitioner/petitioners

who attempted the wrong question/options in the key answers

of JGB question booklet series. After awarding marks if it is

found that the petitioner/petitioners is/are otherwise eligible to

give appointment to the post of Assistant Teacher/Teachers

then the Secretary is further directed to take steps to give

appointment to the petitioner/petitioners in accordance with

law."

This order passed in WP 12399(W) of 2018 has fully echoed

another order passed by the said Hon‟ble Judge in WP 23006 of

2017 on 27th July, 2018.

6. The petitioners have submitted that in the other writ

applications filed by the writ petitioners herein (a chart whereof

has been given above) the same order, including the operative

part as has been quoted above, was passed.

7. The petitioners have submitted that as the six marks, as was

directed by the Hon‟ble Court in WP 12399(W) of 2018 and other

writ applications given in the chart above, were not awarded to

them despite court‟s direction they remained unqualified in TET

2014.

As they were not given the said six marks, they were not allowed

to fill up Form in the recruitment process for primary school

teachers by the Board, they had to file another writ application,

being WPA 45 of 2021 (vide Annexure P-4 of this writ

application) so that they can fill up Form in the recruitment

process. The court in WPA 45 of 2021 permitted the petitioners

to file hardcopy of the applications in response to the

advertisement made by the Board dated 23.12.2020. The

petitioners have alleged that such offline applications of the

petitioners were not considered and they were not called in the

interview as they were considered as unsuccessful candidates of

TET 2014. The petitioners‟ case is that six marks against six

wrong questions and answers in the answer key of TET 2014

were not awarded to them by the Board despite direction of the

court (which has already been mentioned hereinabove) which if

awarded to them, they would have been declared as qualified

candidates of TET 2014.

8. Respondent nos. 2, 3 and 4 being the Board, its Secretary and

its President have filed their affidavit in opposition. Paragraph

no. 7(a) of the said affidavit is as under:

"With reference to paragraph 11 of the petition, I state

that the contempt application filed by the writ petitioner

Payel Bag is still pending before this Hon‟ble Court for

alleged violation and disobedience of the judgment and

order dated November 26, 2018 passed by the Hon‟ble

Justice Samapti Chatterjee. I specifically state that the

respondent Board has complied with the judgment and

order dated 26th November, 2018 passed in W.P. No.

12399(W) of 2018 by awarding marks to the petitioner

in respect of the options exercised by her when her

options matched with the answer said to be corrected

by the Experts. Where the key answer provided by the

Board was not found to be correct by the Expert, the

marks awarded to the petitioners for the said questions

were deducted as the petitioners themselves questioned

the correctness of the key answers provided by the

Board and having done so, they cannot ask for marks

for the wrong key answer."

(Emphasis mine)

When this statement is read side by side with the operative

portion of the Court‟s judgment and order dated 26.11.2018 in

W.P. No. 12399 (W) of 2018 it became clear that the

respondents have written the operative part of the judgment and

order on its own and have completely ignored the Court‟s order.

By doing this a very serious illegality has been committed by the

respondents, one of whom is the President of the Board.

9. The respondents have submitted that the judgement delivered

by this court - be it in WP 12399(W) of 2018 or in WP 23006(W)

of 2017 or be it in similar judgments and orders in similar writ

applications as have been given in the chart above (operative

parts whereof are identical) - are to be read as a whole and the

tenor of the judgement never says for awarding marks to the

answers given by the candidates which are wrong.

10. The respondents have further submitted that experts were

engaged by the court for which both the parties to the litigation

agreed and the experts have stated that one question was

wrong, one question was confusing and four options in respect

of other four questions were wrong. Wrong in the sense that -

out of four options against a question the Board in their answer

key, for example, has shown option „B‟ as correct answer but it

was not so, option „D‟ was the correct answer, according to the

experts.

Therefore, the Board awarded marks to the different writ

petitioners who only gave the correct answers so far as the

experts‟ opinion are concerned and no marks were awarded to

the candidates who gave wrong answers including the answer

shown as correct by the Board, as the answer shown by the

Board was also wrong and on the basis of such submission the

respondent further submitted that if marks are to be awarded,

as was directed by the court in WP 12399(W) of 2018 (which

direction was similar to WP 23006(W) of 2017) and also in other

matters, (like the matters mentioned in the chart above) then

the candidates who selected the wrong option which was not the

option declared as correct by the experts, has to be awarded

and, therefore, the wrong committed by the petitioners would be

given a premium and it was never the intention of the operative

portion of the judgment and order of the Hon‟ble Judge in the

above writ applications.

11. The respondents further submitted that the court in the above

writ applications never directed to award marks to the

candidates who gave wrong answers and that is why the Board

is not required to award any marks to the candidates who

selected the wrong options. However, as one question was wrong

and one question was confusing, as has been decided by the

experts, two marks were added to all such petitioners who

attempted those six questions.

12. The respondents have also submitted that the operative part of

the judgement referred above is required to be interpreted in the

manner keeping in mind the intention of the court as appears

when it is read as a whole.

13. On the basis of the above submissions the respondents have

stated that the Board has not committed any mistake by not

awarding six marks to all the candidates who attempted the

questions.

14. I have considered the rival submissions of the parties and the

pleadings and the documents annexed thereto and the

respondents were granted enough opportunity to show me the

relevant paragraphs from which, when the judgement is to be

read as a whole, the operative part of the judgement as has been

quoted above, would take some other meaning.

15. The respondents for showing what is real meaning of the

operative portion of the order, drew my attention to paragraphs

5, 7, 8 and 9 of the said judgement which were the submissions

made on behalf of the writ petitioners therein and paragraphs

10, 11 and 12 of the said judgement which were the

submissions made on behalf of the Board, in respect of the

judgement delivered by the court in WP 23006(W) of 2017 and

other similar matters which were heard together. After careful

reading of the judgement and after considering the further

submission made before me by the learned senior counsel, Mr.

Gupta, for the respondents that as there was an agreement

between the parties as to appointment of an expert and as it

was decided by the court (Vide paragraph 14 of the judgement)

that the expert opinion "shall be binding" upon all the parties as

agreed by the parties, the petitioners herein cannot get any

advantage which has not been given by the expert.

16. After considering the above mentioned paragraphs of the said

judgement which recorded elaborately the submissions made on

behalf of the petitioners and also on behalf of the respondents

therein including the court‟s direction that the expert opinion

would be binding upon all the parties, I have to make the

following three observations:

i) Upon reading of the judgement as a whole including the

paragraphs as mentioned above I have not found anything

wherefrom the operative portion of the judgement

delivered by the Hon‟ble Judge in the abovementioned

writ application can be read as something different

comparing to what has been written therein, (i.e. written

in paragraph 20 of WP 23006(W) of 2017 and paragraph 4

of W.P. No. 12399 (W) of 2018). So there cannot be any

different reading by this court of the operative portion of

the judgement delivered by the court in the above writ

applications. Question of reading the said operative part

differently does not arise also.

ii) That expert‟s opinion would be final and binding upon the

parties does not mean that the court is also bound by the

opinion of the expert. In fact expert has not given any

such opinion that there was no mistake by the Board in

respect of six questions. The expert has said one question

was wrong; one question was confusing; and the options

given in respect of other four questions as correct, were

actually incorrect.

iii) The court while delivering the judgement and while

recording the operative part considered every aspect of the

matter including the expert‟s opinion and the pleadings

and submissions of the parties and passed the judgement

with the operative portion wherein it was clearly directed

by the said Hon‟ble Court that marks were to be awarded

to the petitioner/petitioners who attempted the wrong

question/options in the key answers of JGB question

booklet series.

In this respect the parties have given a clarification that

the wrong committed by the Board was not restricted to

only the JGB question booklet series. In the said TET

2014 conducted by the Board several question booklets

were there and booklet JGB was one of them. But the

questions in all those booklets were identical, only their

arrangement were different for prevention of copying by

the candidates from one booklet of one candidate in the

examination hall by the other candidate and this system

is followed in such examinations because if such copying

is done the candidate who is copying would surely make a

mistake.

17. Therefore, I hold that the principle which has been declared by

this court in the above writ applications for awarding marks to

the petitioners is in respect of all who had different booklet

series also (i.e. other than JGB Booklet series) as because the

wrong committed was there in every booklet series. The

operative part of the judgement delivered in those writ

applications by the court which I should quote, taking the risk

of repetition, is as follows:

"Accordingly I direct the the Secretary, West Bengal

Board of Primary Education to award marks to the

petitioner/petitioners who attempted the wrong

question/options in the key answers of JGB question

booklet series. After awarding marks if it is found

that the petitioner/petitioners is/are otherwise

eligible to give appointment to the post of Assistant

Teacher/Teachers then the Secretary is further

directed to take steps to give appointment to the

petitioner/petitioners in accordance with law."

(Emphasis mine)

18. This direction of the Hon‟ble Court in those writ applications is

clear and unambiguous and there is absolutely no reason to

interpret the words or the direction given in the said paragraph

differently by any court or any person including the

respondents.

19. All courts which follow Anglo-Saxon Jurisprudence follow the

principle that judges interpret statutes, they do not interpret

judgements. They interpret words of statutes, their words are

not to be interpreted as statutes. This is an age-old principle

which is being followed by the courts and the submissions of

the respondents for interpreting the direction of the court as

directed to award marks to all candidates who attempted the

wrong question/options in the key answers can never be

interpreted by any court or person. The respondents never made

any effort for modification or clarification of the said operative

part. The petitioners have submitted that the judgment and

order of the court was challenged twice before the Supreme

Court but the Supreme Court also did not interfere. Therefore, I

am of the view that such submission of the respondents to see

the operative part otherwise is not only highly irresponsible and

illegal but also wholly meaningless.

20. I find that the respondents are desperately trying to distort the

clear and unambiguous operative portion of the said judgement

and order passed by the said writ court for no reason at all,

except harassing the candidates/petitioners who came before

this court and pointed out the errors and wrongs committed by

the respondents. I have found from the pleadings and

submissions that the petitioners had to come to this court time

and again from the year 2018 till date by filing writ applications

one after another in this court just for getting the right thing

done, by the respondents, which has not been done. I hold that

the whole intention of the respondents is to harass the

petitioners by not awarding them marks as was directed by the

court and their intention is to show the door of the court to the

candidates time and again who are dying for a service of a

primary school teacher. In my view the respondents have

committed a grave (I repeat grave) wrong to the petitioners by

not awarding them six marks. The respondents have shown the

courage of fools to modify the clear and unambiguous order of

the court and have instead followed their own which wholly

shows total disrespect to the court which is a dangerous trend

which can never be allowed. The respondents have done so and

the President of the Board is a respondent here.

21. Therefore, I give the following directions to the respondents as I

am allowing the writ application:

a) By seven days from the date of communication of this

order the respondents shall take steps for awarding six

marks to the petitioners.

b) If after awarding six marks to the petitioners the

petitioners qualify in TET 2014, the respondent concerned

shall issue them TET certificates by seven days thereafter;

c) Offline applications filed by the petitioners (who will

qualify in TET 2014 as indicated above) pursuant to the

order passed by this court have to be considered and the

TET 2014 qualified petitioners are to be called in the

interview by two weeks thereafter. If the petitioners qualify

in the interview, no further impediment shall be created

for giving them appointment in the post of teachers in

primary schools;

d) As it is clear that the respondents have caused enough

harassment to the petitioners and have made deliberate

attempt to distort the order of the court passed in the

above writ applications in respect of which even this court

was invited to interpret the order which is not required at

all I impose a cost of Rs. 20,000/- to be paid to each of

the candidates individually as costs and thus, the total

cost of this matter shall be Rs. 3,80,000/-. This cost is to

be paid not from the Board‟s fund but by the person who

is actually controlling the Board, i.e., the President of the

Board. This cost is to be paid by the President of the

Board from his own pocket and is to be sent to the

petitioners by issuing cheques from his own bank account

to the petitioners by two weeks from date of

communication of the order.

e) If the timeframe fixed above is not followed by the

respondents which include the president of the Board, the

Board shall be debarred from taking any step after expiry

of the said period from giving appointment in any post of

primary teachers from the date of expiry of the time period

given till the directions as above are fully complied with.

22. Respondents should keep in mind that court‟s orders are not

things with which they can play by taking different stance and

taking shelters under different legal principles existing or not

existing. I say that the respondents have clearly failed to act

fairly and, I say - with ill intention which is writ large in the

actions of the respondents.

23. With the costs as aforesaid above directions, this writ

application is allowed.

(Abjijit Gangopadhyay, J.)

Later:

After delivery of this judgement the learned advocate for the

respondents has prayed for stay of the operation of the judgment and

order and has also prayed for waiving the cost, which I have

considered and have rejected.

(Abjijit Gangopadhyay, J.)

S. Banerjee