Mijanur Islam vs The State Of West Bengal & Ors
2022 Latest Caselaw 8301 Cal

21   14.12.2022
Sc   Ct. no.22
                                          WPA 20429 OF 2022

                                              --------------

Mijanur Islam Vs.

The State of West Bengal & Ors.

Mr. Ali Ahsan Alamgir Ms. Rabia Khatoon Ms. Soma Mal.

....For the Petitioner Mr. Bhaskar Prasad Vaisya Mr. Ranjan Saha.

....For the State Mr. Nadeem Sulaiman ....For the Madrasah Service Commission

The petitioner was an aspirant and appeared in the

7th State Level Selection Test (SLST) for the post of

Headmaster in Madrasah. The cut off marks for the

category for which the petitioner appeared in the

examination was "61" as would be evident from page 33

to the writ petition.

Referring to question no.9 at page 39 to the writ

petition the petitioner submitted that all the four options

under the answer-choise to question no.9, as provided in

the answer script, were wrong. In this regard, the

petitioner had relied upon the relevant extract from two

reference books at pages 57 and 59 to the writ petition.

The question no. 9 along with its answer options

from page 39 to the writ petition is quoted below :

"9. 'Zero hour' in State Legislative Assembly is

(A) 1 P.M.

(B) time of sleep (C) end of the day's session (D) expected time of verbal attack"

In view of the above, by an order dated September

9, 2022 this Court directed the respondent no.5 to file a

report in the form of an affidavit. After obtaining

extension of time, finally, such report was filed in the

form of an affidavit affirmed on September 26, 2022.

Subsequently on September 28, 2022, considering

the nature of dispute involved relating to the answer

options against the question no. 9, this Court thought it

fit to obtain another report from a person who is

conversant with and an expert on the procedure, viz. the

Secretary, West Bengal Legislative Assembly. On

November 28, 2022 a report was filed by the Secretary,

Legislative Assembly, West Bengal dated November 23,

2022.

The entire content of the said report dated

November 23, 2022 submitted by the Secretary, West

Bengal Legislative Assembly, is quoted below:

"Report on the Query of the Hon'ble High Court at Calcutta in connection with the WPA 20429 of 2022 (Mijanur Islam Vs the State of West Bengal and Ors.)

In the West Bengal Legislative Assembly like in the Lok Sabha or the Rajya Sabha, Zero Hour is not regulated by any rule of the Rules of Procedure and Conduct of Business in that House.

In the West Bengal Legislative Assembly, 'Zero Hour' is the iterregnum between the conclusion of the reference of Mention Cases under rule 351 of the Rules of Procedure and Conduct of Business in the West Bengal Legislative Assembly and taking up of the listed items of Government Business as per programme of Business of the House. The Assembly meets at 11.00 hours and after the Mention Case, the Zero Hours begins. There is no fixed time allotted for 'Zero Hour'.

A Hand Book for Members (Ninth Edition, 2021) brought out by West Bengal Legislative Assembly Secretariat states as follows :

"The members may, with the permission of the Speaker, also get an opportunity to raise a matter through another parliamentary device called Zero Hour Mention which is not covered under any rule of the Rules of the House. As per prevailing practice Zero Hour Mention generally starts before taking up the Government business fixed for the day ....."(Page-38)

Relevant extracts from the 'Rules of Procedure and Conduct of Business in the West Bengal Legislative Assembly'(Eleventh Edition, 2021) and that from the 'A Hand Book for Members' (Ninth Edition, 2021) are enclosed.

OSD & EO Special Secretary, West Bengal Legislative Assembly (In charge of the Office of the Secretary, West Bengal Legislative Assembly)"

The said report dated November 23, 2022

submitted by the Secretary, West Bengal Legislative

Assembly should receive the prime attention of this Court

and had received the same, as the same was prepared by

the concerned person who is an authority on the

procedure of the West Bengal Legislative Assembly.

This Court is of the firm view that, such report

dated November 23, 2022 prepared and submitted by the

Secretary, West Bengal Legislative Assembly must prevail

over any other contention with regard to the definition of

"Zero Hour" for the West Bengal Legislative

Assembly.

On a careful scrutiny of the answer options against

the question number 9 appearing at page 39 to the

writ petition and from a meaningful reading of the said

report submitted by the Secretary, West Bengal

Legislative Assembly, this Court is of the considered

opinion that, all the answer options mentioned

against question no. 9 were wrong.

Mr. Ali Ahsan Alamgir, learned counsel for the

petitioner has specifically now submitted before this

Court, on instruction, that the writ petitioner is not

insisting for adjudication of any other claim in the

writ petition. Accordingly, the adjudication on this

writ petition is restricted only in respect of the

question no. 9 as mentioned at page 39 to the writ

petition and all other claims in the writ petition are

not adjudicated upon since the writ petitioner had

specifically relinquished those.

Mr. Nadeem Sulaiman, learned counsel appearing

for respondent nos. 3, 4 and 5 contended that, awarding

of the total marks earmarked for the question no. 9

should be restricted for the writ petitioner only who had

applied before this Court and should not be in rem i.e.

those whoever had attempted the said question no. 9. In

support, Mr. Sulaiman had relied upon a decision of a

coordinate Bench delivered in a series of writ petitions on

identical issue, the first of which is in the matter of WP

23006 (W) of 2017 : Prativa Mondal -vs.- The State of

West Bengal & Ors.

Mr. Sulaiman specifically relied upon paragraph 22

from the said judgment, i.e., Prativa Mondal (supra)

which stated that "Needless to mention this order is

strictly restricted in respect of writ petitions

mentioned as above".

This Court thereafter had been informed by Mr.

Alamgir, learned counsel appearing for the writ petitioner

and also by Mr. Sulaiman that a third individual, who

was not a party to any of the said writ petitions in the

series in which the said judgment was delivered, preferred

an appeal before the Division Bench on the ground that

whether the said judgment would apply in rem or in

personam. The Division Bench dismissed the appeal

principally on the ground that the said appellant was not

a party in any of the writ petitions in that series and the

said appellant was granted liberty to file a separate writ

petition before the Single Bench. Being aggrieved thereby,

a Special Leave Petition was preferred by the said

appellant.

This Court had further been informed by learned

counsel appearing for the parties that the issue was

remanded back by the Hon'ble Supreme Court before the

Division Bench. This Court was then informed that

adjudication on the same issue is still pending before the

Division Bench of this Court. The said appellant before

the Division Bench was named as Basir Ahmed who

subsequently filed a writ petition being WPA 7809 of

2019.

After considering the view in the matter of Prativa

Mondal (supra), this Court is of the view that, once the

answer options are found to be totally wrong against one

particular question then, the benefit should be granted to

the candidates whoever had attempted the same

question. When a particular writ petition is filed by an

individual writ petitioner challenging the said wrong

answer options against a particular question viz. the said

question no.9 as in the instant case, the said challenge

should be considered as a challenge thrown against the

entire examination process, of course, limited to the said

question no.9 only. If the benefit is only granted and

restricted to such particular writ petitioner individually,

as in the instant case, then the same will take away the

right of all other candidates whoever had attempted the

said particular question no.9, as each of such candidates

who had attempted the said question no.9 float on the

same water level and are similarly circumstanced in the

same field. It is also trite that in such a situation, the

benefit must be granted to all the similarly placed

candidates otherwise there shall be an elementary

violation of principle of equality.

In view of the foregoing discussions and reasons,

this Court is of the firm view that, all the

aspirants/candidates who appeared in the 7th SLST

attempted the said question no. 9 appearing at page

39 to the writ petition which is also quoted herein

above shall be awarded the total number which was

earmarked against the said question no.9. The merit

list should accordingly be judged and all subsequent and

consequential steps shall be taken by the relevant

authorities as expeditiously as possible but positively

within a reasonable period of time strictly in accordance

with law.

Mr. Sulaiman, learned counsel for the respondent

nos. respondent nos. 3, 4 and 5 prayed for stay of

operation of this order. Such prayer for stay is

considered and operation of this order shall remain

stayed till December 21, 2022.

The writ petition, WPA 20429 of 2022 stands

allowed on the above terms.

There shall, however, be no order as to costs.

Photostat certified copy of this order, if applied for,

be furnished expeditiously.

(Aniruddha Roy, J.)