Md. Abdul Motaleb Miah & Ors vs The State Of West Bengal & Ors
2021 Latest Caselaw 4670 Cal

08-09-2021
  ct no. 05
   Sl. 12
 Sayandeep
                             W.P.A. 13717 of 2021

                      Md. Abdul Motaleb Miah & Ors.
                                -Versus-
                      The State of West Bengal & Ors.

                             (Via Video Conference)


                Mr. Partha Sarathi Deb Barman
                Ms. Reshmi Ghosh
                Mr. Golam Mohiuddin
                Ms. Puja Mondal
                                          ...for the petitioners

                Mr. Sk. Md. Galib
                Mr. Gaurav Das
                                                       ....for the State

                Mr. Nadeem Sulaiman
                                  .....for the Respondent No. 2

Mr. Prosenjit Mukherjee Mr. Nirmalya Kumar Das Ms. Madhurima Sarkar

..for the Madrasah Service Commission

There are four aspirants who are at

present working as assistant teachers in different

Madrasahs in the District of Dakshin Dinajpur

and they have jointly preferred this writ petition

with a common prayer for publication of list

prepared by the West Bengal Madrasah Service

Commission containing names of candidates who

have been selected for participation in the

personality test for preparation of final panel for

the post of Headmaster/ Headmistress /

Superintendents in different categories of

recognized non-Government aided Madrasahs in

West Bengal. There was notification dated 30th

August, 2020 issued by the Secretary, West Bengal

Madrasah Service Commission (hereinafter referred

to as the said "Commission") inviting online

applications for eligible candidates for their

participation in 7th State Level Selection Test, 2020

for the post of Headmaster/Headmistress/

Superintendent in different categories of recognized

non-Government aided Madrasahs in West Bengal.

It is the case of the writ petitioners that they have

applied for the said post of Headmaster/

Headmistress / Superintendent in the Madrasahs

pursuant to the said notification dated 30th

August, 2020 being eligible candidates. Pursuant

to such notification of the Commission, written test

was conducted by the Commission where all the

four writ petitioners participated. In addition

thereto, their academic records were also appraised

by the Commission while preparing the list of

candidates who are to be allowed to participate in

the ensuing personality test which is schedule to

commence on and from 9th September, 2021. The

grievance of the writ petitioners is that non-

publication of the list of the selected candidates

for the purpose of holding personality test as

contemplated under the relevant provisions of the

West Bengal Madrasah Service Commission

Recruitment(Selection and Recommendation of

Persons for Appointment and Transfer to the Post

of Teaching and non-Teaching staff) Rules, 2010

(hereinafter referred to as "the Rules of 2010")

The prayer made in the writ petition runs

infra :

"b) A writ in the nature of Mandamus commanding the Respondents and/or their men, agents or subordinates as to why each of them should not be restrained from treating the petitioners as not qualified candidates for the posts in question, without publishing and/or disclosing the list of qualified and not qualified candidates with the marks obtained by the respective candidates in written test, academic including professional qualification and experience;

c) A writ in the nature of Mandamus directing the Respondents and/or their men, agents or subordinates as to why the respondents should not be restrained from conducting personality test for the posts in question without publishing the list of qualified and unqualified candidates disclosing the marks of the respective candidates in written test, academic including professional qualification and experience;

d) A writ in the nature of Mandamus directing the Respondents and/or their men, agents or subordinates to show-cause as to why one post of Headmaster, two

posts of Headmistress and one post of superintendent of recognized non-

Government aided High/ Higher Secondary/Junior High/Senior Madrasahs be kept vacant forthwith;"

In support of the case made out in the writ

petition Mr. Partha Sarathi Deb Barman learned

Counsel duly assisted by Ms. Reshmi Ghosh draws

attention to the relevant provisions of said Rules of

2010 specially Rule (10)(3)(a) as well as Rule 18, for

better understanding Rule (10)(3)(a) and Rule 18 is

quoted below:

"(3) While specifying the vacancies in the advertisement, the Commission shall, in case of the post of -

          (a)   Headmaster/          Headmistress        /
                Superintendent         .-   Publish     a

provisional/tentative vacancy list at the time of inviting application for State/ Region Level Selection Test and a final vacancy list at the time of publication of the result of written examination by declaring the actual vacancies that have occurred/been reported.

18. Preparation of list of candidates for Personality Test.- After the evaluation of the answer sheets of the written examination, the Commission shall prepare medium, post, subject, category and gender- wise list of the candidates, who shall qualify for personality test on

the basis of the marks obtained by him/her in the written test and evaluation of academic and professional qualification (to be calculated on the basis of statement made in regard to academic qualification by a candidate at the time of submission of the application form) taken together and also teaching experience as per Schedules II and III, if applicable: Provided that the number of qualified candidates for every category (of post) and/or subject (teacher and non-teaching staff to be called for the personality test in order of merit, shall not exceed 1.5 times of the number of actual vacancy (ies): Provided further that if more than one candidate scores same marks at the last rank/position of the list of qualified candidates all such candidates as that position shall be called for the personality test."

Placing reliance upon the said Rule

(10)(3)(a) and Rule 18 Mr. Partha Sarathi Deb

Barman has tried to impress upon this Court

that the Commission is duty bound to publish

the list prepared by the Commission on the

basis of written test as well as academic

performance prior to holding personality test.

In support of the contentions of the writ

petitioners, it has also been submitted before

this Court that in order to maintain

transparency in the selection procedure adopted

by the Commission such disclosure of the list of

candidates for holding personality test is

necessary. Mr. Deb Barman has also relied

upon the Judgment of the Supreme Court

reported in (2008)14 Supreme Court Cases 144

(Mohd. Altaf(2) and Others vs. U.P. Public

Service Commission and Another)

Per contra, Mr. Prosenjit Mukherjee,

learned advocate representing the Commission

being the main contesting respondent has

specifically made submission that there is no

statutory requirement to publish the result of

the list of candidates selected for participating in

the ensuing personality test and in addition to

Rule (10)(3)(a) and Rule 18 Mr. Mukherjee has

drawn attention to Rule 23 of the Rules of 2010.

Rule 23 is quoted below:

               "23.    Publication           of        Panel.-      The

               Commission            shall        publish           such

               panel(s)        and        waiting         list(s)     of

               candidates           in    the      Commission's

Website and the Notice Board of the

Commission as well as the Offices of

the District Inspector of Schools(SE)."

It has also been submitted on behalf of the

Commission that pursuant to the said

notification dated 30th August, 2020 written test

was held and the result of written test was

published on 11th August, 2021. The writ

petitioners did not approach the Commission by

making any representation or any application

under the Right to Information Act for

dissemination of information relating to their

performance in the written test. On the

contrary, the writ petitioners filed the present

writ petition on 3rd September, 2021 when the

personality test is scheduled to be commenced

on and from 9th September, 2021 and that will

be concluded next day that is 10th September,

2021. It has been specifically submitted on

behalf of the Commission that considering the

relevant provisions of Rules of 2010, there is

requirement for publication of final panel in

terms of Rule 23 of the Rules of 2010 but at this

stage after completion of first stage of selection

process when the written test is over and there

is requirement to conduct personality test, there

is no requirement provided in the said Rules of

2010 to publish the list containing names of

candidates who will be permitted to participate

in the personality test.

Elaborate submissions have been made by

the learned advocate representing the writ

petitioners as well as the Commission by

pointing out the relevant provisions of Rules of

2010 in support of their respective cases and

which has been considered by this Court. on

perusal of Rule 10(3)(a), it appears that the said

Rule primarily relates to publication of vacancy

list at the time of inviting application for

State/Regional Level Selection Test and relating

to final vacancy list at the time of publication of

result of the written examination by declaring

the actual vacancies that have occurred or have

been reported. Rule 18 provides for evaluation

of answer-sheet of the written examination

thereafter the Commission is required to prepare

medium, post, subject, category and gender wise

list of the candidates who shall qualify for

personality test on the basis of the marks

obtained by him or her in the written test and

evaluation of academic or professional

qualification which are to be taken together and

also teaching experience as per schedule II and

III, if applicable. There is also another relevant

provision which the learned advocates have

pointed out during the course of hearing before

this Court that is Rule 23 which specifically

deals with publication of panel and which says

the Commission shall publish the panel(s) and

waiting list(s) of candidates in the Commission's

website and the notice board of the Commission

as well as the offices of District Inspector of

Schools(SE). Conjoint reading of Rule 10(3)(a),

Rule 18 and Rule 23 does not contemplate

publication of list of selected candidates which

has been prepared in terms of Rule 18 of the

said Rules of 2010 before commencement of the

personality test rather Rule 23 specifically

provides for publication of panel and waiting list

of candidates at the end of the selection process.

On placing reliance upon Rule 10(3)(a) an

attempt has been made to make out a case

before this Court that there is a statutory

prescription for publication of list of vacancy at

the time of publication of result of written

examination which has not been done in the

present case and Mr. Deb Barman has made

submissions that there is a requirement of

publication of list of vacancies as per Rule

10(3)(a). Considering such submission made on

behalf of the writ petitioners, this Court has

tried to find out whether any case in the writ

petition relating to failure to comply with the

relevant provisions of Rule 10(3)(a) of the Rules

of 2010 is made. Unfortunately Court has failed

to find out any specific case made out on behalf

of the writ petitioners in the present writ petition

and there is no such averments made that there

is failure on the part of the Commission to

publish the list of vacancies as contemplated

under the Rule 10(3)(a) and there is no specific

prayer couched in the writ petition to that

extent.

The Judgment reported in 2008(14)

Supreme Court Cases 144 (Mohd. Altaf(2) and

Others vs. U.P. Public Service Commission

and Another) has been placed before this

Court but on perusal of the ratio of the

judgment it appears that the selection process

which was considered by the Supreme Court

was for different post and that relates to

different method of selection; it has no

connection with the selection process which the

Commission is required to follow under the said

Rules of 2010 therefore the decision as

contained in the Judgment of the Apex Court

reported in Mohd. Altaf (supra) is of no help.

Lastly in order to satisfy the conscience

of the Court Mr. Prosenjit Mukherjee learned

advocate representing the Commission has

placed before this Court a writing signed by the

Secretary, West Bengal Board of Madrasah

Service Commission, dated 7th September, 2021

containing the marks awarded by the

Commission in favour of the four writ petitioners

in written test. On primary scrutiny it appears

that the marks obtained by the writ petitioners

are not adequate to make them eligible to

participate in the ensuing personality test

considering the cut-off marks fixed by the

Commission for the said personality test.

In view of above conspectus of facts, this

Court does not find merit in the writ petition and

accordingly the writ petition stands dismissed.

However, the Court directs the Secretary

of the Commission to inform the four writ

petitioners separately the marks which have

been awarded to them in the written test as well

as in their academic qualification within a period

of seven days from the date of Communication of

this order.

The writing dated 7th September, 2021 of

Secretary of the Commission produced before

the Court in sealed cover is kept with the

records.

All parties are directed to act on a server

copy of this order duly downloaded from the

official website of this Court.

Urgent photostat certified copy of this

order, if applied for, is to be given to the parties

upon compliance with the necessary formalities.

(Saugata Bhattacharyya, J.)