Sudeb Kanti Banerjee & Anr vs The State Of West Bengal & Ors
2022 Latest Caselaw 5286 Cal

                IN THE HIGH COURT AT CALCUTTA
                  Constitutional Writ Jurisdiction
                          Appellate Side

Present :-
The Hon'ble Justice Moushumi Bhattacharya.


                           WPA 30376 of 2014

                       Sudeb Kanti Banerjee & Anr.
                                   Vs.
                      The State of West Bengal & Ors.


For the petitioners                          :   Mr. S.P. Lahiri, Adv.
                                                 Ms. Diksha Ghosh, Adv.
                                                 Mr. Rajesh Naskar, Adv.


For the respondent no. 14                    :   Mr. Saibal Kumar Acharya, Adv.
                                                 Mr. Tarun Kumar Das, Adv.
                                                 Mr. S.B.Mukhopadhyay, Adv.


For the respondent no. 6                 :       Mr. Lalit Mohan Mahata, Adv.
                                                 Mr. Prasanta Behari Mahata, Adv.
                                                 Mr. Amit Bikram Mahata, Adv.
                                                 Mr. Aditya Bikram Mahata, Adv.


For the respondent
nos. 9 to 13 & 15                        :       Mr. Saikat Banerjee, Adv.
                                                 Mr. Uttam Kumar Roy, Adv.


For the State                            :       Mr. Swapan Banerjee, Adv.
                                                 Mr. Sougata Mitra, Adv.
                                     2


Last Heard on                            :      10.08.2022.


Delivered on                             :      11.08.2022.
Moushumi Bhattacharya, J.

1. The petitioners before the Court responded to an advertisement

of 14.1.2011 for filling up a few designated posts for non-teaching staff

in the Bikramjeet Goswami Memorial College, Purulia. The petitioners

applied for the said posts and appeared in the written examination on

6.2.2011. The petitioners state that they successfully completed the

written examination and received a call for appearing before the

Standing Committee for an interview on 13.6.2011. The interview was

however not held as scheduled. The petitioners allege that several

persons were appointed in the advertised posts thereafter. The

petitioners further allege that all the appointees were related to

members of the Governing Body or the Principal of the College. The

petitioners seek quashing of the selection and the appointments of the

candidates being respondent nos. 9-15, to the posts of non-teaching

staff in the College.

2. Learned counsel appearing for the petitioners alleges bias on the

part of the Governing Body and submits that each of the appointees was

related in some manner or the other to the President and Members of

the Governing Body as well as the Standing Committee of the College.

Counsel further submits that despite the petitioners receiving letters for

an interview, the petitioners were not allowed to participate in the oral

test round which was scheduled to be held on 13.6.2011. It is further

submitted that the appointments did not follow any proper process

which would be evident from the Government nominee on the Board of

the Governing Body lodging a complaint before the competent authority

on the mode and manner of the appointments.

3. Learned counsel appearing for the State defends the

appointments and submits that the panel was prepared by the

Selection Committee and was approved by the Director of Public

Instructions on 2.1.2012. Counsel submits that the complaint made in

the writ petition is an after-thought and suffers from unexplained delay.

It is further submitted that the petitioners are unsuccessful candidates

and hence do not have locus standi to challenge the selection of the

private respondents.

4. Learned counsel appearing for the private respondents, namely

respondent nos. 9-13 and 15 submits that the petitioners were

contenders for the posts of clerk and typist and are hence not entitled to

challenge the appointments in the other five posts. Counsel places a

statement of the marks awarded to the petitioners; that the petitioner

no. 1 who applied for the post of clerk secured 39 out of 50 in the

written test and 4 out of 5 for academics hence having a total score of 43.

The petitioner no. 2 who applied for the post of typist secured 24 out of

50 in the written examination and 3 out of 5 in academics with a total

score of 27. Counsel defends the selection of the respondent no. 12 to

the post of clerk as the said respondent got a total score of 49 and the

respondent no. 11 to the post of typist as the said respondent obtained

a total score of 39. Counsel submits that none of the petitioners stood a

chance of being selected and that cancelling the interview did not make

a difference to the overall performance or the marks awarded to the

petitioners. Counsel disputes the fact of the Government nominee

making a complaint in relation to the selection. It is also submitted that

the petitioner no.1 is now gainfully employed as a primary teacher with

effect from 13.2.2017. Counsel further submits that the interviews were

held for the posts of two peons and one guard and that respondent nos.

10, 13 and 14 were selected to the said posts. It is also submitted that

although a plea of bias is taken by the petitioners, the father of the

petitioner no. 2 was also a member of the Governing Body of the College

at the relevant point of time. It is also submitted that the doctrine of

necessity was pressed into service by the College and the private

respondents were appointed to the posts without delay.

5. Before this Court comes to the controversy raised by the parties,

it should be mentioned that by an order dated 30.8.2018, a Coordinate

Bench noted that the private respondents are the sons of members of

the Selection Committee as well as the Governing Body of the College

and held that the entire selection process was vitiated by bias. The

appointments of the private respondents were quashed. The Division

Bench by its order dated 12.12.2019 set aside the order of the Single

Judge and directed status quo with regard to the selection till the

disposal of the writ petition. Hence, the private respondents continue to

hold their positions as on date.

6. The undisputed fact, as corroborated by the petitioners, the

State, the Principal of the College and the private respondents, is that

the College is a government-aided College. The ad hoc Governing Body

of the College consisted of 16 members including the President, the

Secretary, the Teacher-in-charge and the Pradhan, Joypur Gram

Panchayat. The Standing Committee/Selection Committee consisted of

3 members including a Chairman and a Government Nominee. Seven

non-teaching staff posts of one accountant, one cashier, one clerk, one

typist, two peons and one guard were advertised on 30.11.2010 and a

further advertisement was published on 16.01.2011 for the said posts

fixing schedules for written tests as well as oral tests for some of the

posts. The written tests for some of these posts were held on 6.02.2011

and the oral tests for the post of two peons and one guard were held on

19.02.2011 and 20.02.2011. The interview was however not held as per

schedule and the panel was prepared on the basis of the marks

awarded to the candidates in the written test and on the basis of the

academic qualifications of the candidates. The selections were approved

by the Governing Body and the Standing Committee on 13.06.2011.

7. No explanation has been forthcoming from the respondent

College as to the reason of the cancellation of the interview. Hence, the

selection process as advertised, was subsequently altered without any

intimation given of such to the candidates. This itself, amounts to

arbitrary conduct on the part of the respondent College in complying

with the process adopted for selection of the candidates to the seven

non-teaching posts. The sudden change of procedure in the selection

process was noted by the Supreme Court in Ramjit Singh Kardam vs.

Sanjeev Kumar; (2020) 20 SCC 209 and the Supreme Court opined that

this amounted to giving a go-by to a fair and reasonable process for

shortlisting the candidates.

8. The point whether an unsuccessful candidate can challenge the

selection process was decided by a Division Bench of this Court in

Mriganka Mondal vs. Asitabha Das; 2019 (1) CHN (CAL) 310. The Court

disagreed with the view that a participating candidate forfeits his right

to challenge the process. The Court opined that if the unsuccessful

candidate does not have the information at the relevant point of time

and gets access to such information subsequent to the appointments

and the selection is challenged on the ground of patent illegality, then

the illegality of the selection process can always be made the subject of

judicial scrutiny. This Court is also of the view that the petitioners

cannot be deprived of their right to challenge the appointments merely

on the ground that the petitioners unsuccessfully participated in the

same. This is all the more so since the cancellation of the interview

could not have been in the knowledge of the petitioners at the relevant

point of time.

9. The basis of selection of the candidates is shrouded in an

absence of accountability. In Ramjit Singh Kardam, the Supreme Court

highlighted the discrepancies in the selection process where the written

examination, which was notified earlier, was subsequently scrapped.

The Supreme Court was of the view that the process of selection, once

announced, cannot be subsequently altered.

10. The other admitted facts are that the son of the President of the

Governing Body was appointed as the accountant, the son of the

Secretary was appointed as peon, the son of a member of the Governing

Body was appointed as the typist, the son of another member of the

Governing Body was appointed as the clerk, a relative of a member of

the Governing Body was appointed as the guard, a relative of another

member of the Governing Body was appointed as peon and a nephew of

a member of the Governing Body was appointed as the treasurer. Hence,

all the seven appointees to the advertised posts were closely related to

one member or the other of the Governing Body. This coupled with the

fact of three of the members of the Governing Body being the only

members of the Standing Committee completes the picture of a

family-run enterprise masquerading as appointments following due

process. The facts are indeed startling; it is difficult to conceive of a

situation where all seven appointees were closely-related to seven of the

members of the Governing Body, three of who were also members of the

Standing Committee for selection of candidates to these posts. The

counter argument of the 2nd petitioner also being part of the

unwholesome family-frame inasmuch as the father of the 2nd petitioner

was also a part of the Governing Body of the College, is not an answer to

the first impression which one would inevitably draw from the admitted

facts. It is too much of a coincidence that all the candidates who

emerged successful in the selection process had a close relative in the

Governing Body of the College.

11. It may be difficult to pin down the impugned appointments on

the ground of bias as alleged by the petitioners, since this court does

not have enough material before it to come to an indefensible

conclusion on that count. Having said that, any allegation of bias is a

matter of evidence with a fair mix of presumption. This is perhaps the

reason why courts have held that the accepted threshold of annulling

any process on the ground of bias is the perception of it. The settled

position is to test whether there is a real likelihood of bias and whether

the circumstances combine to give rise to a reasonable apprehension in

the mind of a third party that the decision was the outcome of bias and

not objective criteria. This rule has been extended to the

decision-making process of a Selection Committee (Ref: A.K. Kraipak v.

Union of India; AIR 1970 SC 150). In Lila Dhar v. State of Rajasthan;

(1981) 4 SCC 159, relied on in Ramjit Singh Kardam, the Supreme Court

emphasized that the object of entry into public service is to secure the

best person for the job without patronage and favouritism. The

Supreme Court went on to advise that selection should be based on

merit where selection of candidates is decided impartially and

objectively and the appointment should be determined by a neutrally

disinterested body on the basis of objective criteria. In Chanchal Kumar

Patra vs. The State of West Bengal; 2016 SCC OnLine Cal 5054, a

learned Single Judge of this Court dwelt on personal friendship and

personal hostility as being recognized grounds for which Courts have

proceeded to nullify a decision on the finding of real likelihood of bias. A

4-Judge Bench of Supreme Court in Ashok Kumar Yadav vs. State of

Haryana; (1985) 4 SCC 417 reiterated the principle that the question is

not whether there is actual bias but whether there is real likelihood of

bias. The Supreme Court noted that the objectionable part is not that

the decision is actually tainted with bias but that the circumstances are

such as to create a reasonable apprehension in the mind of others that

there is likelihood of bias affecting the decision. In Mohd. Mustafa vs.

Union of India; (2022) 1 SCC 294, a 3-Judge Bench of the Supreme

Court relied on Ranjit Thakur vs. Union of India; (1987) 4 SCC 611 to

explain that the test of real likelihood of bias is whether a reasonable

person, in possession of relevant information, would have thought that

bias was likely and whether the concerned authority was likely to be

disposed to decide the matter only in a particular way. The test was

reiterated as the reasonableness of the apprehension in the mind of the

party.

12. On a combined consideration of the facts, the irrefutable

conclusion is that the appointments to the posts for which the

petitioners participated were processed in a manner which was a

departure from a fair and objective method of selecting the most eligible

candidates. As held in Ranjit Thakur, what is relevant is the

reasonableness of the apprehension in the mind of a third party who is

witness to the facts. The apprehension of a likelihood of bias also has

the effect of colouring all related decisions. In other words, once a

person is convinced that a decision may have been actuated by other

considerations, the entire factual conspectus gets drawn into the web of

bias. Doubtless, the fact that all seven of the appointees were closely

related to members of the Governing Body would satisfy the test of bias.

13. This court is also not convinced of the argument of "necessity"

put forth on behalf of the private respondents. The doctrine of necessity

has a primary nexus to the particular facts at a given point of time and

is essentially one of expediency. The doctrine is pressed into service

where compliance with the rules of natural justice is not feasible and

may lead to failure of the object sought to be achieved. In Charan Lal

Sahu v. Union of India; (1990) 1 SCC 613, a full-Bench of the Supreme

Court, speaking through Justice Sabyasachi Mukharji, opined that the

common law doctrine of necessity in the case of disqualification would

apply where no other person is competent or authorized to be an

adjudicator or a quorum cannot be formed without that person or no

other competent tribunal can be constituted. The Supreme Court was

answering the objection taken by the victims of the Bhopal Gas Tragedy

that there was conflict of interest between the victims and the

Government representing the case of the victims. The Supreme Court

applied the doctrine of necessity and rejected the point of violation of

principles of natural justice on that score. In the present case, there is

no evidence to show that the members of the Governing Body of the

College and the Standing Committee, who were in-charge of the

selection process, could not be substituted by persons not related to the

candidates. There is also no evidence of a pressing urgency for

appointment to the seven posts or that failure to do so would have

resulted in irretrievable damage to the College. Hence, this court is not

inclined to accept the argument that the respondent College had to fall

back on the doctrine of necessity for pushing through the impugned

appointments.

14. It hence follows that the defence of the private respondents that

the 1st petitioner got only 39 out of 50 whereas the selected candidate

(respondent no. 12) got 45 out of 50 and the 2nd petitioner got 24 out of

50 whereas the selected candidate (respondent no. 11) got 36 out of 50

is no defence since the process is found to be tainted for the reasons as

stated above. Once the source is compromised, everything that follows

becomes vulnerable to challenge. The fact that the Governing Body

decided to only treat the written test as a benchmark further sullies the

picture.

15. Notwithstanding the above, the petitioners applied for only two

of the seven non-teaching posts; namely, the petitioner no. 1 for clerk

and the petitioner no. 2 for typist. The petitioners cannot hence be

permitted to challenge the other five posts which were advertised and

candidates were given appointments in relation to the same. The

Supreme Court in B. Srinivasa Reddy vs. Karnataka Urban Water

Supply & Drainage Board Employees' Assn.; (2006) 11 SCC 731 (II)

opined that certiorari jurisdiction can be exercised only at the instance

of a person who is a candidate for the post. The Supreme Court relied

on Umakant Saran (Dr.) v. State of Bihar; (1973) 1 SCC 485 to hold that

a person would have a right to nomination provided he competes for the

seat. Therefore, this Court is inclined to limit the challenge to the

appointments only to the two posts which the petitioners applied for,

namely, clerk and typist. Since the selection process has been found to

be arbitrary and actuated by other considerations, the appointments of

respondent nos. 11 and 12 are set aside.

16. Since this Court has only accepted the challenge in relation to

the two posts as stated above, the points raised regarding the legitimate

appointments of respondent nos. 14 and 15 as being independent and

without any connection to any of the members of the Governing Body is

not being gone into.

17. WPA 30376 of 2014 is allowed by quashing the appointments of

respondent nos. 11 and 12. The respondent College will be at liberty to

publish a fresh advertisement for the said two posts and conduct a

selection process for the two posts in a fair and objective manner. The

College should ensure that the appointments are regulated and decided

by persons who have no relationship with any of the candidates who

appear for the selection process. The College is also directed to be

assisted by an independent body of selectors / Committee who would

also frame the rules and process all the stages of the selection and

appointments.

18. The writ petition is accordingly disposed of.

Urgent Photostat certified copy of this judgment, if applied for,

be supplied to the parties after fulfillment of the requisite formalities.

(Moushumi Bhattacharya, J.)