Panchami Das vs The State Of West Bengal & Ors
2022 Latest Caselaw 4476 Cal

                          IN THE HIGH COURT AT CALCUTTA
                            Constitutional Writ Jurisdiction
                                    Appellate Side

Present :-      Hon'ble Justice Amrita Sinha

                               WPA No. 16090 of 2019

                                       Panchami Das

                                         Vs.
                           The State of West Bengal & Ors.


For the writ petitioner           :-      Mr. Kamalesh Bhattacharya, Sr. Adv.
                                          Mr. G. Patra, Adv.
                                          Mr. Subrata Mukherjee, Adv.

For the State                     :-      Mr. ManasKundu, Adv.
                                          Ms. PrativaGhatak, Adv.

For the Municipality              :-      Mr. Milan Bhattacharjee, Sr. Adv.
                                          Ms. SulagnaBhattacharjee, Adv.

Hearing concluded on              :-      08.07.2022

Judgment on                       :-      20.07.2022


Amrita Sinha, J.:-


       The petitioner is a graduate and has obtained primary teachers' training

under the West Bengal Board of Primary Education and has also completed

Primary Teachers Training (PTT) bridge course of one year. She is a member of

the exempted category.


       In response to an employment notice dated 11th May, 2017 published by

the Baranagar Municipality inviting applications from eligible candidates for

filling up the post of teacher, Group C, the petitioner applied for being

appointed as such in the post reserved for exempted category candidates.


       She appeared in the written test and she claims to have performed very

well in the said examination. The petitioner was thereafter not permitted to

appear in the interview allegedly on the ground that she failed to qualify in the

written test. She approached this Court by filing the present writ application

praying for a direction upon the respondents to allow her to participate in the

interview process.

When the writ petition was moved, this Court was pleased to pass an

order on 26th August, 2019 by directing the respondent authority to hold the

interview scheduled to be held on 28th August, 2019 but not to publish the

result of the interview without the leave of the Court. The Court further

directed that the result of the interview shall abide by the result of the writ

petition.

It is the specific contention of the petitioner that in the unreserved

exempted category she is the only candidate who has the requisite junior basic

training from a government recognized institution. It has been submitted that

the petitioner possesses all the educational qualifications as required for

providing appointment to the post in question. She relies upon the

communication made by the Secretary of the West Bengal Board of Primary

Education under the Right to Information Act, 2005 that one year PTT or two

year PPTTI is equivalent to junior basic training.

The petitioner has annexed the certificate issued in her favour by the

West Bengal Board of Primary Education certifying that she passed the Primary

Teachers' Training Examination, 2006. She has also annexed the certificate for

the PTT/ PPPTT Examination, one year bridge course, ODL mode issued in her

favour by the West Bengal Board of Primary Education. The said course is

approved by NCTE. The petitioner has annexed the identity card issued in her

favour by the department of labour mentioning that she belongs to the

exempted category.

It is the specific case of the petitioner that the respondent Municipality

has adopted pick and choose method to permit candidates to appear in the

interview. She alleges that she has been illegally discriminated.

The petitioner submits that the selection procedure mentioned in the

employment notice includes written test and interview. Selection of the

candidates is to be made on the basis of the marks obtained both in the written

test as well as the interview.

It has been contended that there is no cut off marks mentioned in the

advertisement to be obtained in the written test for being eligible to participate

in the interview process. Only with the view to eliminate the petitioner from the

selection process, the Municipality has resorted to the idea of fixing a cut off

mark which is essential for being eligible to participate in the interview.

It has been argued that the sole reason mentioned by the Municipality

for not permitting the petitioner to participate in the interview is that she failed

to come within the zone of consideration to be called for the interview.

The Municipality, in the affidavit in opposition affirmed on 26th February,

2021, mentions that for unreserved EC category, twenty-two applicants applied

for the job against two vacancies. Out of the twenty-two applicants only twelve

appeared in the written examination. The entire selection process was

conducted by an agency who prepared a list of candidates in order of merit on

the basis of the marks obtained in the written examination. Out of twelve

candidates the petitioner ranked in the eleventh position in the merit list by

securing twenty-four marks in the written examination. Candidates who

secured up to twenty six marks have been permitted to appear in the interview.

It is the further contention of the Municipality that the Primary Teachers'

Training Certificate relied upon by the petitioner is not equivalent to the junior

basic training certificate. The Municipality, after verifying the educational

certificates relied upon by the petitioner, was of the opinion that she is not

properly qualified by having junior basic training but even then she was called

to appear in the written test.

The affidavit in opposition further mentions that out of the twenty-two

applicants only four applicants, including the petitioner, are trained

candidates. The list of candidates who are considered to be trained by the

Municipality is disclosed in paragraph 3 (k) of the affidavit in opposition

affirmed by the Municipality on 26th February, 2021. It appears therefrom that

apart from one Rajesh Roushan, none of the candidates fall in the unreserved

exempted category.

The Municipality contends that mere holding of qualification or fulfilling

the eligibility criteria is not enough for recruitment. A candidate has to succeed

in the written test firstby securing marks which is fixed at twenty six. As the

petitioner failed to obtain twenty-six marks, as such, she has rightly not been

permitted to participate in the interview.

It has been submitted that the petitioner has participated in the selection

process strictly being aware of the selection criteria and being unsuccessful in

the written test she cannot turn around and challenge the selection procedure.

It has been submitted that the writ petition is liable to be dismissed on

the ground of non-joinder of necessary parties as the candidates who were

successful in the written examination have not been impleaded as parties in

the present writ petition. Any order passed herein will adversely affect the

candidates who appeared in the interview after emerging successful in the

written test.

The petitioner relies upon the judgment delivered by the Hon'ble

Supreme Court in the matter of Dilip Kumar Ghosh & Ors. Vs. Chairman &

Ors. reported in 2006 (1) CLJ (SC) 27 paragraph 11 wherein the Court held

that the term 'trained candidate' would mean a candidate who possessed JBT/

PTTC. For appointment of teacher in primary school only the candidates who

possess the academic qualification prescribed under the rules JBT/ PTTC shall

be considered and the candidates who possess higher academic qualification

like BA/ B. Ed shall not be given any credit.

Learned senior advocate representing the respondent Municipality

distinguishes the ratio laid down in the aforesaid judgment and submits that

there is no bar to engage candidates with higher qualification. As the

educational qualification of the petitioner does not match the requisite

qualification as per the advertisement, accordingly, the petitioner cannot get

the benefit of the judgment under reference. It has been submitted that the

entire selection process is over, but in view of the restraint order passed by the

Court, the final result cannot be declared.

Prayer has been made for dismissing the writ petition.

I have heard and considered by the rival submissions made on behalf of

both the parties.

The advertisement pursuant to which the selection process was initiated

mentions that for recruitment as teacher Group-C, the candidates must have

passed Madhyamik or equivalent examination from any Board recognized by

the Government and shall have junior basic training from a Government

recognized institution.

The petitioner is a candidate in the unreserved exempted category. She

has annexed the certificate issued by the West Bengal Board of Secondary

Education mentioning that she passed the Madhyamik examination held in

March, 2000 and was placed in the First Division.

The petitioner has also annexed the certificate issued by the West Bengal

Board of Primary Education certifying that she completed the Primary

Teachers' Training Examination, 2006 held in the month of February, 2011

and was placed in the First Division.

The petitioner has annexed a communication dated 14th March, 2022

obtained under the Right to Information Act from the Secretary of the West

Bengal Board of Primary Education clearly mentioning that the Primary

Teachers' Training Examination is equivalent to Junior Basic Training.

From the documents annexed to the writ petition the contention of the

Municipality that the petitioner does not have the requisite qualification for

recruitment as teacher Group-C cannot be substantiated.

On one hand, the Municipality avers in the affidavit in opposition that

out of twenty-two candidates, four including the petitioner, are trained

candidates; whereas on the other hand, it is averred that the petitioner is not

properly qualified by having Junior Basic Training. The two statements are

contradictory to each other.

If it is the contention of the respondent Municipality that the petitioner

did not possess the requisite qualification, then the petitioner ought not to

have been permitted to appear in the written examination. The fact that the

petitioner was permitted to appear in the written test implies that, the

authorities checked her educational credentials and being satisfied that the

petitioner possessed the requisite qualification for recruitment permitted her to

appear in the written examination.

The Municipality contends that as per the advertisement, if no trained

candidate is available then untrained candidates having the prescribed

qualification may be selected for the post. The aforesaid means that first

opportunity of recruitment has to be offered to trained candidates and if

trained candidate is unavailable, then only there is scope for selecting

untrained candidates.

As it appears that the petitioner does possess the requisite training

qualification accordingly, there is no reason not to permit the petitioner to

participate in the interview. Certificate issued by the West Bengal Board of

Primary Education certifying that the petitioner completed the Primary

Teachers' Training Examination, 2006 coupled with the information provided

under the Right to Information Act by the Secretary, West Bengal Board of

Primary Education, mentioning that the Primary Teachers' Training

Examination is equivalent to Junior Basic Training is enough to conclude that

the petitioner is a trained candidate. In terms of the recruitment notice the

West Bengal Board of Primary Education is competent to certify the

equivalence of the training qualification obtained by the petitioner.

The next hurdle put forth by the Municipality is that the petitioner

scored twenty-four marks in the written test. The cut off marks fixed by the

Municipality for appearing in the interview is twenty-six.

The advertisement pursuant to which the selection process is conducted

does not disclose any cut off marks to be obtained by a candidate in the written

examination for being eligible to participate in the interview. The selection

process as mentioned in the advertisement speaks about the written test and

interview. There is neither any cut off marks mentioned nor is it mentioned

that interview will be conducted from those candidates who secure more than

the cut off marks.

It is always open for the employer to fix a cut off mark to be obtained by

the candidate to proceed in the next level of the selection. Since it is a method

of elimination, the said criteria ought to have been disclosed at the initial stage

so that a candidate can face the selection process in an informed manner and

does not suffer from anill-feeling that the subsequent process has been

adopted only to eliminate him/her from proceeding further in the recruitment

process.

On the contrary, the selection procedure contemplates selection on the

basis of the written test and the interview, that is, the total marks obtained by

the candidates in the written test as well as the interview, both. The expression

'and' is conjunctive, meaning thereby, that the combined marks obtained in the

written test and interview would be the basis for assessing the comparative

merits of the participating candidates.

The Municipality has annexed to the affidavit in opposition a list of

twelve candidates in the unreserved exempted category with their marks

obtained in the written test. It appears therefrom that out of twelve candidates

ten have obtained the marks of twenty-six or more. There is no valid ground to

disallow the last two merit listed candidates to appear in the interview.

The basis and the rationale for fixing twenty-six as the cut off marks in

the midst of the selection processare not disclosed in the affidavit in opposition.

It has been argued that the same is the policy decision of the Municipality and

is not required to be disclosed.

It is settled law that in the matter of public employment there has to be

transparency and fairness in the recruitment process. Vital information

relating to the recruitment process and the selection procedure cannot be

withheld by the employer or its recruitment agency on the garb of 'policy

decision, not required to be disclosed'. The same is contrary to the fundamental

rights as enshrined in the Constitution of India and the law settled by the

Hon'ble Supreme Court in this regard.

It is also settled that the rules of the game cannot be changed after the

game is over. The candidates who participated in the recruitment process were

made aware of the fact that the selection process would include the written test

as well as the interview. After completion of the written test, the Municipality

cannot change the selection process and disallow a candidate to participate in

the interview, allegedly on the ground that she failed to secure the cut off

marks which was never made known to the participating candidates. The same

amounts to changing the rules of the selection procedure in the midst of the

selection, which is impermissible in law.

The Municipality has tried to shrug off their responsibility by contending

that the selection process was outsourced to an independent recruitment

agency and the Municipality did not have any control over the said recruitment

agency. It cannot be denied that the agency was engaged by the Municipality

and must have been paid by the Municipality for conducting the selection

process. Moreover, the said agency is an absolute private body and its conduct

cannot be taken to be as sacrosanct.

The aforesaid stand of the Municipality cannot be accepted by the Court.

The relationship of principal and agent is based on the Latin maxim, "Qui facit

per alium facit per se", meaning, "he who acts through another is deemed in

law to do it himself". It is elementary principle of law that the principal is

always responsible for any act performed on his behalf by his agent. The

recruitment agency merely acts as an agent of the Municipality and the

Municipality will be held responsible for any action or non-action on the part of

the said agency.

Assuming that the petitioner does not possess the requisite training

qualification but she can always be treated as an untrained candidate and be

permitted to participate in the interview. Whether the petitioner will ultimately

succeed in the selection process or not, is an entirely different question all

together and that stage has not yet arisen, but she ought not to be stopped in

the middle of the race relying upon an alleged policy which never existed at all

or was not made known to the participants prior to the selection process.

The Court cannot brush aside the submission of the petitioner that the

agency acted on the dictates of the Municipality and did not permit the

petitioner to appear in the interview. As it appears that there is no valid ground

to support the stand of the Municipality with regard to the fixing up of the cut

off marks accordingly, it was improper for the respondents to not permit the

petitioner to participate in the interview.

There is no issue with regard to the contention of the respondents that

there is no bar to engage candidates with higher qualification but then it is also

settled that no extra benefit can be given to the overqualified candidates.

With regard to the issue regarding non joinder of necessary parties as

raised by the respondents, it can be said that the selection process is yet to be

over. No right has accrued in favour of any party which would be infringed or

curtailed if all the candidates are permitted to appear in the interview. None of

the parties, including the employer, will be prejudiced in any manner if the rest

two candidates are interviewed and the selection process is concluded. On the

other hand, the petitioner will be seriously prejudiced if she is not permitted to

participate in the interview.

Only two candidates are left to be interviewed. The Municipality is

suffering a restraint order and the selection process cannot be finalized. The

process which was initiated by the recruitment notice dated 11th May, 2017

ought not to be kept in a suspended state for an indefinite period and ought to

be concluded at the earliest.

In the fitness of things, the Municipality ought to take steps for

concluding the selection process by conducting interview of the rest two

candidates who participated in the written exams and select the candidates

who secure the highest marks in aggregate combining the marks obtained in

the written test and the interview.

In view of the discussions made herein above, the instant writ petition is

disposed of directing the Municipality to hold interview of the candidates who

were restrained from participating in the same and to assess the comparative

merits of the candidates by adding the marks obtained in the written test as

well as the interview and thereafter select the best candidates for the job. The

interview of the remaining candidates be conducted at the earliest but

positively within a period of four weeks from the date of communication of this

order. After the interview of the remaining candidates is over, the Municipality

will proceed to conclude the selection process without any unnecessary delay.

The writ petition stands disposed of.

No costs.

Urgent certified photocopy of this order, if applied for, be supplied to the

parties or their advocates on record expeditiously on compliance of usual legal

formalities.

(Amrita Sinha, J.)