Amal Kanta Giri vs The State Of West Bengal & Ors
2021 Latest Caselaw 4708 Cal

                          IN THE HIGH COURT AT CALCUTTA
                            Constitutional Writ Jurisdiction
                                    Appellate Side

Present :-   Hon'ble Justice Amrita Sinha


                                WPA No. 4138 of 2021

                                     Amal Kanta Giri

                                           Vs.

                           The State of West Bengal & Ors.


For the writ petitioner         :-     Mr. Biswarup Biswas, Adv.

For the State respondents       :-     Mr. Swapan Kumar Datta, Sr. Adv.

Mr. Tapas Kumar Dey, Adv.

For UGC                         :-     Mr. Anil Kumar Gupta, Adv.

For WBCSC                       :-     Mr. Pulak Ranjan Mondal, Adv.
                                       Mrs. Bandana Mondal, Adv.
                                       Mr. Subhrangsu Panda, Adv.

Heard on                        :-     26.08.2021

Judgment on                     :-     09.09.2021


Amrita Sinha, J.:-

In response to a notification published by the West Bengal College Service

Commission, 'the Commission' in short, being Advertisement No. 1 of 2018 inviting

applications for recruitment in the post of Assistant Professor in different

Government aided colleges the petitioner applied for being recruited as Assistant

Professor in Physics. Advertisement was published for filling up 46 seats in the

unreserved category.

The petitioner has a post graduate degree and he has qualified in the NET

examination. He also has a post-doctoral degree from the University of Duisburg-

Essen, Germany and has post-doctoral research experience from the University of

Porto for the period 1st September, 2016 to 31st December, 2018. The petitioner

disclosed all his educational qualifications in the application form which was filed

by him online.

The petitioner appeared in the interview on 2nd April, 2019 and at the time of

interview he submitted the certificates of all the degrees and the qualifications

obtained by him. Provisional merit panel was published on 2nd November, 2019. The

petitioner was placed in serial no. 70 in the provisional merit panel published by the

Commission.

The petitioner not being satisfied with his position in the merit list made an

application under the Right to Information Act for his score sheet and ascertaining

the score pattern according to which marks were allotted to the candidates. From

the response given by the Commission the petitioner came to learn that 20 marks

has been allotted for performance in interview. For the post-doctoral experience one

mark may be allotted for each year. The petitioner came to learn from his scoresheet

that he has not been awarded any mark on account of experience.

The petitioner submits that he disclosed his post-doctoral qualification in the

application form that he filed online and he also produced the original certificate at

the time of interview. According to the petitioner, the Commission overlooked the

certificate in respect of his post-doctoral research experience which was issued

much prior to the date of interview.

The petitioner submits that since he had two years' experience in post-

doctoral work he is entitled to get two extra marks over and above what has been

awarded to him.

The Chairperson of the Commission has filed a report on 10th August, 2021

wherein it has been mentioned that the candidate failed to submit his post-doctoral

research experience certificate on the date of interview that is on 2nd April, 2019 and

he submitted the said certificate by post on 2nd February, 2021 which was received

by the office of the Commission on 4th February, 2021. As the provisional merit

panel was published on 1st November, 2019 the claim of the petitioner for awarding

two marks under the post-doctoral experience category cannot be allotted to him.

It is the specific case of the Commission that as the post-doctoral research

experience certificate of the petitioner was not produced before the Commission on

the date of interview that is 2nd April, 2019 or before the publication of the merit

panel on 1st November, 2019 but was submitted later on 4th February, 2021

accordingly, no marks can be allotted to him on account of the same.

To counter the argument forwarded by the Commission the petitioner has filed

an exception to the report wherein it has been specifically mentioned that the

petitioner submitted all the documents, papers along with post-doctoral research

experience certificate on the date of the interview. The officials of the Commission

duly checked and verified all the documents in support of the qualification and

degree disclosed in the application form and being satisfied with his candidature

after comparing the documents with the original received photocopy of the

documents but did not issue any receipt to him.

The petitioner contends that he is entitled to two extra marks on account of

his post-doctoral research experience and if the said two marks are added to his

score his total marks will increase and he is convinced that his merit position in the

panel is sure to go up. He seeks benefit of the two extra marks.

The petitioner relies on the following decisions in support of his case:

1) Purushottam -vs- Chairman M.S.E.B. & Anr. reported in (1999) 6

SCC 49 para 4

2) Union Public Service Commission -vs- Gyan Prakash Srivastava

reported in (2012) 1 SCC 537 para 15

3) West Bengal College Service Commission & Anr. -vs- Dr. Gautam

Pal reported in 2017 SCC Online Cal 3206

4) Unreported judgment of this Court passed on 25th February, 2016 in

WP No. 13400 (W) of 2015 (Dr. Gautam Pal -vs- West Bengal College Service

Commission & Ors.)

The petitioner prays for a direction upon the Commission to allot two marks to

him on account of his post-doctoral research experience for two years and on the

basis of the marks to be obtained by him recast the panel and in the event he falls

within the zone of consideration then necessary letter of recommendation may be

issued in his favour.

I have heard the submissions made on behalf of both the parties and have

perused the materials on records.

The application filed online by the petitioner clearly mentioned that he

possessed post-doctoral research experience for the period 1st September, 2016 to

31st December, 2018. The certificate issued in his favour by the University of Porto

dated 8th March, 2019 is annexed at page 66 of the writ petition. The certificate was

issued by the Associate Professor of the University of Porto (Portugal) wherein it was

clearly mentioned that the petitioner worked since September, 2016 and his

research work has been published in several international journals in the area of

Chemical, Physics and Material Sciences.

The petitioner asserts that he produced and submitted the self-attested

photocopies of all his educational, academic, teaching experience, research and

publication documents on the date of the interview and the said

documents/certificates were duly verified on the spot and received by the officials of

the Commission.

The petitioner has relied upon the instruction meant for the candidates

published by the Commission for the purpose of recommendation for appointment

to the post of Assistant Professor in terms of the Advertisement No. 1 of 2018.

The dispute in this case is whether the post-doctoral research experience

certificate was produced by the petitioner on the date of the interview or not? The

petitioner at the time of filing the application mentioned that he had the experience

of post-doctoral research for a period of two years. The petitioner has annexed a

certificate which was issued by the University of Porto prior to the date of the

interview. The petitioner was aware that the said certificate was of enough relevance

and was a very important piece of document to be placed by him before the

Commission in support of his candidature. It is not the case of the Commission that

the certificate relied upon by the petitioner is an ante-dated one. It is also not the

case that the certificate is not genuine or has been procured later on and is being

used for the purpose of recruitment. The only submission of the Commission is that

the certificate was not produced on the date of the interview and accordingly the

marks meant to be allotted on account of post-doctoral research experience was not

awarded to the petitioner.

It is not understandable as to why a candidate who has the requisite

qualification and the necessary documents in support of the same will keep back

the documents with himself and not produce the same at the time of interview even

after knowing the fact that the said document was extremely important for the

purpose of awarding of marks. Two years' experience certificate carried two marks.

A slight difference in marks may alter the position of a candidate in the merit panel.

The instruction to the candidates published by the Commission requires a

candidate to submit the print out of the application form submitted online along

with self-attested photocopies of all the relevant documents which is to be verified

during the interview. The original certificate is also required to be produced during

the interview failing which the candidature may be rejected. As the petitioner

disclosed his educational qualification including his post-doctoral research

experience in the application form and he possessed a certificate in support of the

same, it is quite obvious that the petitioner must have produced all the documents

in support of his educational qualification at the time of the interview.

After obtaining his score sheet under the Right to Information Act the

petitioner discovered that two marks which was meant for the post-doctoral

research experience has not been awarded to him. It is only thereafter that the

petitioner forwarded a further copy of the said certificate to the Commission. The

Commission, relying upon the latter copy forwarded by the petitioner after receiving

information under the Right to Information Act, has submitted that the petitioner

forwarded the certificate after publication of the merit panel.

The candidature of the petitioner has not been rejected due to non-furnishing

of the certificate in support of his experience as mentioned in his application form.

The Court is not oblivious of the fact that conducting a recruitment process

involves a humongous task. There are lacks of applicants and volumes of papers to

be considered, stacked and preserved in a proper manner so that the candidate may

be assessed appropriately. It is not absolutely impossible that a paper may go

missing or may not have been tagged or may be misplaced from the file of a

candidate. A candidate ought not to suffer for the same.

It appears from records that the petitioner was duly qualified and had a

certificate in his support on the date of the interview. Any prudent person looking

for a job will certainly produce the same before the selection body, not concealing

the same to be produced later on, being fully aware of the fact that he may lose his

chance to be selected if the document is not placed on record. Any job aspirant with

minimum prudence will not commit such a fatal error. It is too much of a risk to

hold on to the certificate and not produce the same at the time of interview. When

the petitioner produced photocopy of all the other documents in support of his

candidature, there is no plausible reason for not producing the experience

certificate. It seems that the Commission has simply ignored or disregarded the said

certificate for reasons best known to them.

Assuming for arguments sake that the petitioner did not produce the

certificate at the time of interview, it was the duty of the Commission to immediately

call for the same or to cancel his candidature for disclosing false information in his

application form.

In Purushottam (supra) the Hon'ble Supreme Court held that the right of the

appellant to be appointed against the post to which he has been selected cannot be

taken away on the pretext that the said panel in the meantime expired and the post

has already been filled up by somebody else. Usurpation of the post by somebody

else is not on account of any defect on the part of the appellant, but on the

erroneous decision of the employer himself. The appellant's right to be appointed to

the post has been illegally taken away by the employer. The Supreme Court was

pleased to direct the respondent authority to appoint the appellant to the post for

which he was duly selected. The appointment was directed to be prospective in

nature.

In the instant case, the petitioner approached this Court during the validity

period of the panel. The Court has come to a considered opinion that the marks on

account of experience has illegally not been awarded to him. At this stage the

Commission cannot be heard to submit that the petitioner cannot be accommodated

as the panel in question has expired in the meantime.

In the West Bengal College Service Commission & Anr. -vs- Dr. Goutam Pal

(supra) the Hon'ble Division Bench held that the requisite marks which ought to

have been awarded by the experts on experience was denied. The same was lapse on

the part of the experts in their decision making process which requires interference

on being approached. In the instant case, the marks on account of experience has

not be awarded to the petitioner. The said error on the part of the Commission is

required to be rectified pursuant to the order herein.

In view of the above, from the facts and circumstances of the instant case, the

only logical conclusion which can be arrived at is that, the certificate was duly

produced by the petitioner at the time of the interview but possibly due to

inadvertence the Commission overlooked the same and accordingly the marks on

account of post-doctoral research experience could not be awarded to him.

The instant writ petition is accordingly disposed of by directing the

Commission to verify the certificate produced by the petitioner in support of his

post-doctoral research experience and in the event the certificate happens to be

genuine, then the Commission shall award necessary marks to the petitioner and

thereafter add the additional marks to the marks already awarded in his favour. If

after addition of the extra marks the position of the petitioner in the provisional

merit panel changes, then the petitioner shall be appropriately placed in the

provisional merit panel. If thereafter the petitioner falls within the zone of

consideration, then the recommendation letter is to be issued in his favour,

notwithstanding the fact that the panel in question expired in the meantime. In the

event all vacancies have been filled up in the meantime, then the vacancy shall the

adjusted from the next advertisement published by the Commission being 1 of 2020.

Steps shall be taken by the Commission at the earliest, but positively within a

period of six weeks from the date of communication of a copy of this order.

WPA 4138 of 2021 is disposed of.

Urgent certified photo copy of this judgment, if applied for, be supplied to the

parties expeditiously on compliance of usual legal formalities.

( Amrita Sinha, J. )