Calcutta High Court (Appellete Side)

Pijus Patra vs The State Of West Bengal And Others on 13 December, 2022

                 IN THE HIGH COURT AT CALCUTTA
                CONSTITUTIONAL WRIT JURISDICTION
                           (Appellate Side)



                                                    WPA(P) 335 of 2022

                                                    Reserved on: 15.11.2022
                                                    Pronounced on: 13.12.2022


Pijus Patra
                                                                    ...Petitioner
                                      -Vs-
The State of West Bengal and Others
                                                                    ...Respondents

Present:-

Mr. Bikram Banerjee, Mr. Sudipta Dasgupta, Mr. Arka Nandi, Ms. Dipa Acharyya, Mr. Sutirtha Nayek, Ms. Shalini Ghosh, Advocates ... for the petitioner

Mr. S.N. Mookherjee, learned Advocate General Mr. Samrat Sen, Mr. Nilotpal Chatterjee, Ms. Manali Ali, Advocates ... for the State

Coram: THE HON'BLE JUSTICE PRAKASH SHRIVASTAVA, CHIEF JUSTICE THE HON'BLE JUSTICE RAJARSHI BHARADWAJ, JUDGE

Prakash Shrivastava, CJ:

1. By this public interest petition the petitioner has challenged the

Selection Committees constituted by order dated 26.11.2021 relating to

selection of contractual employees for appointment under the

Department of Health & Family Welfare in different Districts and

Health Districts of West Bengal. The grievance of the petitioner is that 2 WPA(P) 335 of 2022

all the Selection Committees constituted in different district are having

political leaders, MLAs or Ministers of the ruling party as Chairperson.

Hence, nepotism and malpractice is apprehended in the selection

process and such a selection process in the public employment is unfair.

2. Submission of learned Counsel for the petitioner is that the

Selection Committee is headed by the political leaders, Ministers and

MLAs of the ruling party, therefore, there is serious apprehension and

danger of bias as there is likelihood of giving preference to the

supporters of the ruling party and the candidates connected thereto. It

has further been submitted that the selection is to be made for different

posts of Health & Family Welfare Department, therefore, such political

leaders are not the experts of the field and there is no justification to

include them as Chairperson. It has been alleged that the political

leaders, chairmen are influential persons of the area, therefore, all other

members of the Committee will be under their pressure and no fair

selection will take place.

3. Opposing the prayer, learned Advocate General has submitted

that there is no bar to have politicians as Chairpersons of the Selection

Board and the Chairpersons had not been impleaded as party in this

petition and there is no possibility of bias. He has further submitted that

the issue of bias can be raised only by the prospective candidates and

that the interview has little weightage in the selection process. Hence,

no case for interference is made out.

4. We have heard learned Counsel for the parties and perused the

record.

5. The State Government had issued the order dated 26th of

November, 2021 for constituting the Committees for selection of 3 WPA(P) 335 of 2022

contractual employees to be engaged under the Department of Health &

Family Welfare in Districts and Health Districts West Bengal. The

composition of the Committee is as under:

i. An eminent person to be Chairman of the Committee.

ii. Other members of the Selection Committees are as follows:

a. Chief Medical Officer of Health - Member Secretary

b. Representative of the District Magistrates - Member

c. Programme Officer of the concerned

Programme/Shceme - Member

d. MSVP in case of concerned Medical College &

Hospital - Member

e. One Expert of the concerned discipline - Member

6. In the order dated 26.11.2021, the names of the Chairmen of

the Committees constituted in 28 different districts have been disclosed.

The petitioner has produced the chart of name of Chairpersons of

district level Selection Committee along with their present status. The

details of these Chairmen are as under:

Sl. Name of the Name of the Present Status No. District Proposed Chairperson 1 Alipurduar Shri Mridul TMC President in Goswami Alipurduar District 2 Bankura Shri Subhasish MLA, Chhatna Batabyal (Bankura) (Ex) 3 Basirhat Health Shri Jyotipriyo Minister for District Mullick Department of Forest Affairs and 4 WPA(P) 335 of 2022

Non-Conventional and Renewable Energy Sources 4 Birbhum Shri Minister for Chandranath fisheries in the Sinha Government of West Bengal 5 Bishnupur Shri Shyamal TMC leader of Health District Santra Bankura District 6 Cooch Behar Shri Binoy TMC leader EX Barman MLA from Mathabhanga MLA constituency 7 Dakshin Shri Goutam Ex MLA TMC Dinajpur Das lost in 2021 Assembly elections from 41 Gangarampur MLA constituency 8 Diamond Shri Sankar MLA from Falta Harbour Health Naskar Assembly District Constituency, South 24 Pgs, West Bengal, Chairperson, Diamond Harbour Health District South 24 Pgs 9 Darjeeling Smt. Shanta Hon'ble Mrs. GTA Chhetri Shanta Chhetri is a member of Parliament, Rajya Sabha, elected from Trinamool Congress.

                    5                          WPA(P) 335 of 2022


10    Darjeeling        Shri Goutam        Cabinet Minister
        SMP                  Deb          of Department of
                                            Tourism in the
                                           Government of
                                            West Bengal,
                                          TMC leader North
                                               Bengal
11     Howrah          Shri Pulak Roy     Minister of Public
                                                Health
                                          Engineering in the
                                           Government of
                                            West Bengal.
12    Hooghly          Shri Dilip Yadav    Defeated TMC
                                          candidate in 2021
                                            Election from
                                               Pursurah
                                            (constituency).
13    Jalpaiguri       Smt. Mitali Roy    Ex-MIC and MLA
                                             of Falakata.
14    Jhargram         Shri Churamani          MLA of
                           Mahato           Gopiballavpur
                                            Vidhan Sabha
                                           Constituency in
                                            West Bengal,
                                            TMC Leader.
15   Kalimpong           Smt. Shanta        Hon'ble Mrs.
                           Chhetri        Shanta Chhetri is a
                                              member of
                                          Parliament, Rajya
                                            Sabha, elected
                                           from Trinamool
                                              Congress.
16     Malda            Dr. Moazzem         TMC leader of
                           Hossain         Malda District.
17   Murshidabad          Shri Jakir        TMC leader of
                    6                          WPA(P) 335 of 2022


                           Hossain         MLA Jangipur
                                          Constituency 2021
                                          Assembly Election
18       Nadia         Shri Kallol Khan    Social Worker,
                                          MLA in the 2021
                                            West Bengal
                                              Assembly
                                              elections.
19    Nandigram          Sk. Supian       Election Agent of
     Health District                      the Hon'ble Chief
                                          Minister & TMC
                                              Leader in
                                             Nandigram
                                              Assembly
                                          Constituency 2021
                                              Election
20   North 24 Pgs.     Shri Jyotirpriyo      Minister for
                           Mullick         Department of
                                           Forest Affairs &
                                          Non Conventional
                                           Renewal Energy
                                              Sources.
21      Paschim          Shri Malay       Cabinet Minister
      Bardhaman            Ghatak          Department of
                                            Law & Public
                                               Works,
                                           Government of
                                            West Bengal.
22      Paschim        Shri Ajit Maity    MLA 2021, Pingla
       Medinipur                              Assembly
                                            Constituency
23       Purba           Shri Swapan         From MLA
      Bardhaman            Debnath           Purbasthali
                                              Dakshin
                                           (Bardhaman) in
                                 7                         WPA(P) 335 of 2022


                                                       2021, Assembly
                                                           Election
          24         Purba          Shri Akhil Giri    Present Minister
                  Medinipur                           of Fisheries in the
                                                       Government of
                                                      West Bengal. He
                                                      is also an MLA &
                                                        TMC leader.
          25        Purulia         Shri Santiram      TMC Leader of
                                       Mahato          Purulia District
                                                         lost in 2021
                                                      Assembly Election
          26      Rampurhat          Shri Ashish          M.L.A. of
                Health District        Banerjee          Rampurhat
                                                          Assembly
                                                      Constituency West
                                                        Bengal, TMC
                                                           leader.
          27     South 24 Pgs       Shri Subhasish    TMC leader & MP
                                     Chakraborty        Rajya Sabha.
          28    Uttar Dinajpur      Shri Kanhaiya     Contested and lost
                                       Agarwal          2021 Election
                                                        from Raiganj
                                                          Assembly
                                                        Constituency.
                                                        TMC leader.

7. The above clearly demonstrates that the Ministers, MLAs and

leaders of the ruling party in the State, have been appointed as Chairman

of the district level Committee in all the districts. None of the Chairman

except one, is doctor connected with or having expertise in the field of

health services. In paragraph 5 of the affidavit in opposition, the

respondent Nos. 1 and 2 have admitted that these Chairmen have been 8 WPA(P) 335 of 2022

appointed because they are well-known to the public. The pleading

contained in this paragraph suggests that influential leaders have been

appointed as Chairman.

8. Since, the matter relates to public employment, therefore, it is

necessary to have fair selection. The argument raised by the Counsel for

the petitioner that if political leaders of the ruling party are appointed as

Chairman of the Selection Committee in all the districts, then there is

every likelihood that these Chairmen will give preference to the

candidates who had supported them or their party in the election or the

kith and kin of the supporters of the ruling party. Such an argument

carries weight. That apart, it has also been pointed out that the members

of the Committee will have no say under the influence of such a

powerful political leader connected with the ruling party.

9. Hon'ble Supreme Court in the matter of A. Umarani vs.

Registrar, Cooperative Societies and Others reported in (2004) 7

SCC 112 while considering the issue of regularisation of irregular

appointment has disapproved appointment on political consideration by

observing that:

"49. It is trite that appointments cannot be made on political considera-tions and in violation of the government directions for reduction of establishment expenditure or a prohibition on the filling up of vacant posts or creating new posts including regularisation of daily-waged employees. (See Municipal Corpn., Bilaspur v. Veer Singh Rajput.)"

10. Thus, appointed of political consideration cannot be given a

seal of approval.

11. If the influential political leaders at the district level are made

Chairman of the Selection Committee, then there is always the 9 WPA(P) 335 of 2022

likelihood of bias. Even if the weightage of interview is 10-15% but any

incidence of bias can render the process non-transparent and cause

serious prejudice to the candidates appearing in the interview.

12. Hon'ble Supreme Court in the matter Kumoan Mandal Vikas

Nigam Ltd. vs. Girja Shankar Pant and Others reported in (2001) 1

SCC 182 in a case relating to departmental inquiry has held that the

issue of bias ought to be decided on the fact and circumstances of the

individual case. In this regard, it has been held that:

"34. The Court of Appeal judgment in Locabail though apparently as noticed above sounded a different note but in fact, in more occasions than one in the judgment itself, it has been clarified that conceptually the issue of bias ought to be decided on the facts and circumstances of the individual case

-- a slight shift undoubtedly from the original thinking pertaining to the concept of bias to the effect that a mere apprehension of bias could otherwise be sufficient.

35. The test, therefore, is as to whether a mere apprehension of bias or there being a real danger of bias and it is on this score that the surrounding circumstances must and ought to be collated and necessary conclusion drawn therefrom -- in the event however the conclusion is otherwise inescapable that there is existing a real danger of bias, the administrative action cannot be sustained: If on the other hand, the allegations pertaining to bias is rather fanciful and otherwise to avoid a particular court, Tribunal or authority, question of declaring them to be unsustainable would not arise. The requirement is availability of positive and cogent evidence and it is in this context that we do record our concurrence with the view expressed by the Court of Appeal in Locabail case ."

13. In the present case, there is not only likelihood of bias but real

danger of bias.

10 WPA(P) 335 of 2022

14. Hon'ble Supreme Court in the matter of A.K. Kraipak and

Others vs. Union of India and Others reported in 1969 (2) SCC 262

in a case where a candidate was included as member of Selection Board

while considering the issue of bias has held that in deciding the question

of bias one has to take into consideration human probabilities and

ordinary course of human conduct. In this regard, Hon'ble Supreme

Court has held as under:

"15. It is unfortunate that Naqishbund was appointed as one of the members of the selection board. It is true that ordinarily the Chief Conservator of Forests in a State should be considered as the most appropriate person to be in the selection board. He must be expected to know his officers thoroughly, their weaknesses as well as their strength. His opinion as regards their suitability for selection to the All-India Service is entitled to great weight. But then under the circumstances it was improper to have included Naqishbund as a member of the selection board. He was one of the persons to be considered for selection. It is against all canons of justice to make a man judge in his own cause. It is true that he did not participate in the deliberations of the committee when his name was considered. But then the very fact that he was a member of the selection board must have had its own impact on the decision of the selection board. Further admittedly he participated in the deliberations of the selection board when the claims of his rivals particularly that of Basu was considered. He was also party to the preparation of the list of selected candidates in order of preference. At every stage of his participation in the deliberations of the selection board there was a conflict between his interest and duty. Under those circumstances it is difficult to believe that he could have been impartial. The real question is not whether he was biased. It is difficult to prove the state of mind of a person. Therefore what we have to see is whether there is reasonable ground for believing that he was 11 WPA(P) 335 of 2022

likely to have been biased. We agree with the learned Attorney General that a mere suspicion of bias is not sufficient. There must be a reasonable likelihood of bias. In deciding the question of bias we have to take into consideration human probabilities and ordinary course of human conduct. It was in the interest of Naqishbund to keep out his rivals in order to secure his position from further challenge. Naturally he was also interested in safeguarding his position while preparing the list of selected candidates."

15. Hon'ble Supreme Court in the matter of Ashok Kumar Yadav

and Others vs. State of Haryana and Others reported in (1985) 4

SCC 417 in a case relating to the issue of bias in viva voce test when

the close relative of member of the PSC was appearing in the interview,

has reiterated the principle laid down in the earlier judgment in the case

of A.K. Kraipak and Others (supra).

16. Hon'ble Supreme Court in the matter of P.D. Dinakaran (1)

vs. Judges Inquiry Committee and Others reported in (2011) 8 SCC

380 while considering the issue of bias in reference to inclusion of a

member in the Committee has taken note of the earlier judgment in the

case of S. Parthasarathi vs. State of Andhra Pradesh reported in

(1974) 3 SCC 459 and finally held as under:

"64. In S. Parthasarathi v. State of A.P. Mathew, J. applied the "real likelihood test" and restored the decree passed by the trial court which invalidated compulsory retirement of the appellant by way of punishment. In SCC para 16 of the judgment, Mathew, J. observed: (SCC p. 465) "16. ... We think that the reviewing authority must make a determination on the basis of the whole evidence before it, whether a reasonable man would in the circumstances infer that there is real likelihood of bias. The court must look at the impression which other people have.

12 WPA(P) 335 of 2022

This follows from the principle that justice must not only be done but seen to be done. If right-minded persons would think that there is real likelihood of bias on the part of an inquiring officer, he must not conduct the enquiry; nevertheless, there must be a real likelihood of bias. Surmise or conjecture would not be enough. There must exist circumstances from which reasonable men would think it probable or likely that the inquiring officer will be prejudiced against the delinquent. The court will not inquire whether he was really prejudiced. If a reasonable man would think on the basis of the existing circumstances that he is likely to be prejudiced, that is sufficient to quash the decision...."

17. The Division Bench of this Court in the matter of Sk. Golap

and others vs. Bhuban Chandra Panda and others reported in AIR

1991 Cal 295 in a case where learned Judge who heard the matter, had

past professional association with the petitioner, considering the issue of

bias has held that the test to be applied in such case is not whether bias

has affected the judgment, but whether there is real likelihood of bias,

by observing that:

"7. The decision in Manak Lal's case is illustrative of the applicability of the principle nemo debet esse judex in propria causa. Against the background of the said ruling and the facts and circumstances of the present case, there is no doubt that the learned single Judge ought not to have heard and decided the instant case. It is farthest from anyone's mind to suggest that as a matter of fact his decision of the case was influenced by his past professional association with the writ petitioners. We have no reluctance in assuming that the learned Judge, when he heard this matter initially, might not have remembered that he had appeared on behalf of the Writ Petitioners in the previous writ proceeding. We have no 13 WPA(P) 335 of 2022

hesitation in believing also that he had no personal contact with the writ petitioners who were his erst-while clients since the previous writ petition was not decided in the recent past. These considerations do not, however, detract from the validity of the legal objection raised on behalf of the appellants. It is not necessary for the appellants to establish that the learned single Judge actually had a bias and that the said bias was the cause of the adverse verdict. The test to be applied in such cases is not whether in fact a bias has affected the judgment but whether there was a real likelihood of bias. The answer depends not upon what actually was done but upon what might appear to be done. Justice must be rooted in confidence; and confidence is destroyed when right minded people may have reason to go away thinking: "the Judge might have been biased.""

18. Thus, it is settled if there is real likelihood of bias on the part of

a member of a Selection Committee then it is not proper to include such

a person in the Committee. In the present case, we find that not only

there is likelihood of bias but real danger of bias if the political leader

having influence in the area concerned is made Chairman of the district

level Committee for selection of the candidate for public employment.

Effect of bias will be stronger when the plea is that that there is no other

strong and equally effective member in the Committee to counter the

influence of the Chairman.

19. Learned Advocate General has placed reliance upon the

judgment of the Hon'ble Supreme Court in the matter of Abraham

Kuruvila vs. S.C.T. Institute of Medical Sciences & Technology and

Others reported in (2005) 9 SCC 49 wherein one of the unsuccessful

candidate had approached the High Court contending that two of the

respondents were bias against him and the writ petition and LPA were 14 WPA(P) 335 of 2022

dismissed. Hon'ble Supreme Court had held that general statement

would not meet the requirement of law and that not only existence of

factual bias is to be proved but it must also be shown that the same had

resulted in miscarriage of justice. In that case correspondence/orders

passed against the petitioner long back were held to be not meeting the

requirement of law to prove bias. Present case stands on different

footing. Hence, benefit of said judgment cannot be extended.

20. Learned Advocate General has also placed reliance upon the

Single Bench judgment of this Court in the matter of Asim Kumar Giri

& Ors. vs. State of West Bengal & Ors. reported in 2016 SCC

OnLine Cal 388 wherein the panel prepared by the members of the

Selection Committee for recruitment to the post of primary teachers was

questioned raising the issue that the composition of the Selection

Committee was not in accordance with the rule and that the Selection

Committee comprised of persons having particular political disposition.

Learned Single Judge refused to interfere noting that the manner of

appointment of the elected representative to the Selection Committee

was not under challenge and the vires of the act or rules prescribing

such appointment was also not questioned. Whereas in the present case,

the Committee has not been constituted under any statutory rule and

very composition of the Committee having political leader as Chairman

has been questioned, therefore, no benefit can be extended to the

respondent on the basis of the Single Bench judgment.

21. Learned Advocate General has also placed reliance upon the

judgment in the matter of Mahesh Chandra Gupta vs. Union of India

and Others reported in (2009) 8 SCC 273 and in the matter of M.

Manohar Reddy and Another vs. Union of India and Others 15 WPA(P) 335 of 2022

reported in (2013) 3 SCC 99 on the proposition that once eligibility

condition is filled, the issue of suitability cannot be gone into by the

Court. There is no dispute to this proposition but it has no applicability

in the present controversy relating to the appointment of a politically

influential person as Chairman of the Committee.

22. Learned Advocate General has also questioned the locus of the

petitioner in filing the present petition. The rule of locus does not

strictly apply in the public interest petition. That apart, the appointment

is to be made on different posts including the post of medical officers,

staff nurse and other staff relating to medical services. Hence, the

quality of appointment on such post involves a larger public interest.

Petitioner is stated to be a social worker who has collected the relevant

material to file the present petition.

23. Hon'ble Supreme Court in the matter of M.S. Jayaraj vs.

Commissioner of Excise, Kerala and Others reported in (2000) 7

SCC 552 has held that:

"12. In this context we noticed that this Court has changed from the earlier strict interpretation regarding locus standi as adopted in Nagar Rice & Flour Mills v. N. Teekappa Gowda & Bros. and Jasbhai Motibhai Desai v. Roshan Kumar and a much wider canvass has been adopted in later years regarding a person's entitlement to move the High Court involving writ jurisdiction. A four-Judge Bench in Jasbhai Motibhai Desai pointed out three categories of persons vis-à-vis the locus standi: (1) a person aggrieved; (2) a stranger; and (3) a busybody or a meddlesome interloper. Learned Judges in that decision pointed out that anyone belonging to the third category is easily distinguishable and such person interferes in things which do not concern him as he masquerades to be a crusader of justice. The judgment has cautioned that the High 16 WPA(P) 335 of 2022

Court should do well to reject the petitions of such busybody at the threshold itself. Then their Lordships observed the following: (SCC p. 683, para 38)

"38. The distinction between the first and second categories of applicants, though real, is not always well demarcated. The first category has, as it were, two concentric zones; a solid central zone of certainty, and a grey outer circle of lessening certainty in a sliding centrifugal scale, with an outermost nebulous fringe of uncertainty. Applicants falling within the central zone are those whose legal rights have been infringed. Such applicants undoubtedly stand in the category of 'persons aggrieved'. In the grey outer circle the bounds which separate the first category from the second, intermix, interfuse and overlap increasingly in a centrifugal direction. All persons in this outer zone may not be 'persons aggrieved'."

13. A recent decision delivered by a two-Judge Bench of this Court (of which one of us is a party -- Sethi, J.) in Chairman, Railway Board v. Chandrima Das after making a survey of the later decisions held thus: (SCC pp. 478-79, para

17) "17. In the context of public interest litigation, however, the Court in its various judgments has given the widest amplitude and meaning to the concept of locus standi. In People's Union for Democratic Rights v. Union of India it was laid down that public interest litigation could be initiated not only by filing formal petitions in the High Court but even by sending letters and telegrams so as to provide easy access to court. (See also Bandhua Mukti Morcha v. Union of India and State of H.P. v. A Parent of a Student of Medical College on the right to approach the court in the realm of public interest litigation.) In Bangalore Medical Trust v. B.S. Muddappa the Court held that the restricted meaning of aggrieved person and 17 WPA(P) 335 of 2022

the narrow outlook of a specific injury has yielded in favour of a broad and wide construction in the wake of public interest litigation. The Court further observed that public-spirited citizens having faith in the rule of law are rendering great social and legal service by espousing causes of public nature. They cannot be ignored or overlooked on a technical or conservative yardstick of the rule of locus standi or the absence of personal loss or injury. There has, thus, been a spectacular expansion of the concept of locus standi. The concept is much wider and it takes in its stride anyone who is not a mere 'busybody'.""

24. This Court also in the matter of Tapas Ghosh vs. The State of

West Bengal and others vide order dated 12th of July, 2022 passed in

WPA(P) 203 of 2022 has rejected the similar preliminary objection

when the appointment of primary teachers without minimum prescribed

eligibility condition was questioned by a social worker and public

spirited person.

25. In view of the above, the petitioner being a public spirited

person who has raised the public cause cannot be ousted on the plea of

locus.

26. In the aforesaid circumstances, we are of the opinion that the

Selection Committees constituted by the order dated 26th November,

2021 should be headed by the Chairman who is a neutral person and in