Calcutta High Court (Appellete Side)
Tanusree Barua vs Union Of India And Others on 29 July, 2022
Page 1 of 6
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE HARISH TANDON
&
THE HON'BLE JUSTICE RABINDRANATH SAMANTA
MAT 1130 of 2021
With
CAN 1 of 2021
Tanusree Barua
Vs
Union of India and Others
_______
Ms. Mousomee Shome,Adv.
Mr. Subhajit Das,Adv.
..... for the Appellant
Mrs. S. Ray,Adv.
..... for the Respondent no. 3
Mr. Tapan Bhanja, Adv.
.....for the Respondent no. 4
Mr.Mainak Bose,Adv.
Ms.Sweta Mukherjee,Adv.
Mr. Kumarjit Das,Adv.
Ms. Mou Saha, Adv.
.....for the Respondent nos. 5 to 7
Mr. Anil Kumar Gupta, Adv.
.....for the Respondent
Judgment on : 29.07.2022
Rabindranath Samanta, J:-
1. This appeal has been preferred against the order dated 08.09.2021
passed by a learned Single Bench in W.P.A 11234 of 2021 whereby
the writ petition filed by the appellant Tanusree Barua has been
dismissed.
2. The facts which led the filing of the writ petition may be summarised
as under:-
The appellant Tanusree Barua belongs to Scheduled Tribe. The
respondent no. 5, the Indian Association for Cultivation of Science by
a Gazette Notification dated 26th May invited applications for filing up
Group 'C' Posts of 'Multi Tasking Staff' (MTS in short) for General and
Technical category having total 21 (Twenty One) number of vacancies
out of which there was only one vacancy for the Scheduled Tribe
category.
The details of the vacancies are as under:-
UR OBC SC ST Total
3. The aforesaid notification did not mention about "cut off marks" either
before or after holding the written as well as trade test, nor any
information was provided about the procedure to be followed in case
of a tie of marks of the candidates. Besides, the authorities did not
reserve any right to include any additional criteria after the
commencement of the selection process.
4. After filing up the form, the appellant received Admit Card or Call
Letter for the examination on 23rd September, 2020 by way of an E-
Mail bearing Roll No. IACS/ADVT/P/2/2019/MTS-Gen/520 from the
Indian Association for the Cultivation of Science. The examination
was to be conducted in two phases, the first one being a written
examination which was held on 27th September, 2020 and the second
one being a trade test which was held on 14th March, 2021. The score
sheet of both the examinations was published on 6th April, 2021 on
the official website of the respondent no. 5.
5. The appellant secured 25 marks out of 50 marks of the written test
and secured 33 marks out of 50 marks of the trade test. In total she
secured 58 marks (25+33). Another candidate belonging to the
Scheduled Tribe also secured 58 marks ( 8 marks in written test and
50 marks in trade test).
6. After the score sheet was published on 6th April, 2021 the appellant
by an E-Mail dated 8th April, 2021 sought clarifications from the
respondent no. 5 as to the procedure to be followed for breaking a tie
between the two candidates of the same category obtaining similar
marks since there was only one vacancy for the post of MTS General
(Administrative) Category for the Scheduled Tribe candidate.
7. Getting no reply to her E-Mail, the appellant made applications under
the Right to Information Act to get the information as sought for by
her.
8. Ultimately, the respondent no. 7, the Registrar, Indian Association for
the Cultivation of Science gave a reply to the application under the
RTI on 14.06.2021 for the first time to the effect that "cut off marks"
were to be obtained by the candidates in the selection process and
amongst the 16 selected candidates, 10 candidates were from General
category and 6 candidates were from the Scheduled Caste category.
None of the candidates from other categories secured the cut off
marks. The appellant submits that the respondent no. 5 in the
notification inviting applications for filing up posts did not mention
about the cut off marks to be secured by a candidate to succeed in
the selection process. Besides, the notification is silent about breaking
of tie if two candidates of the same category secure the same marks.
9. On the grounds as narrated above, the appellant sought for
direction in the nature of Mandamus commanding the respondent no.
7 to revaluate the answer script of the written examination of the
appellant and after evaluation give appointment to the deserving
candidate after explaining the tie breaking procedure, in case of tie,
on the post as per vacancy under ST category for the Group 'C' post of
MTS (General Administration) for which examinations were held as
per notification dated 28th August, 2019.
10. By the impugned order the learned Single Bench negatived the
prayer made by the appellant.
11. It appears from the impugned order that the challenge was made
on the part of the contesting respondents that the writ petition filed
against the Indian Association for the Cultivation of Science was not
maintainable as this Association was not amenable to writ
jurisdiction. The learned Single Bench by referring to a notification
dated 8th May, 2018 of the Ministry of Human Resource Development,
Department of Higher Education published in the Gazette of India has
observed that the Central Government in exercise of power conferred
by Section 3 of UGC Act, 1956 declared Indian Association, Jadavpur,
Calcutta, West Bengal as an institution 'deemed to be University'
under de novo category for a provisional period of five years with effect
from disaffiliation of IACS from its affiliating Universities. Placing
reliance on a decision in the case of Janet JeyaPaul -Vs- SRM
University and Others reported in (2015) 16 SCC 530 has held that
the University notified as deemed University by the Central
Government under Section 3 of UGC Act is amenable to writ
jurisdiction and accordingly the IACS being an authority under Article
12 of the Constitution is amenable to the writ jurisdiction of High
Court. Be that as it may, no plea has been taken by the contesting
respondents to challenge the writ petition on the point of
maintainability as indicated in the impugned order. Therefore, it is
not in dispute that the writ petition is maintainable and the
respondent no. 5 IACS is amenable to the writ jurisdiction.
12. Learned Counsel for the appellant strenuously submits that before
the test conducted by the respondent no. 5 the authority did not
declare any cut off marks to be secured by a candidate to succeed in
the test. Learned Counsel argues that if the authority introduces cut
off marks after the test is over, such action on the part of the
authority is not justifiable. Learned Counsel reminds us of a common
parlance that Rule of Game cannot be introduced after the Game is
over.
13. As to fixation of cut off marks the contesting respondents in their
affidavit-in-opposition have clarified. Admittedly, the advertisement
was published on 20th August, 2019 inviting applications from the
eligible candidates and the examination was conducted in two phases,
the first one being written examination which was held on 27th
September, 2020 and second one being the trade test which was held
on 14th March, 2021. In their affidavit-in-opposition the contesting
respondents state that before the written examination was held on
27th September, 2020 the respondent no. 5 declared the cut off marks
to be obtained by the candidates belonging to different categories. At
paragraph 4 (O) the contesting respondents aver that cut off marks for
Un-Reserved candidates was fixed at 90, cut off marks for SC/ST
candidates was fixed at 60 and the cut off marks for OBC candidates
was fixed at 81. From a document annexed to the affidavit-in-
opposition it appears that the authority finalized the cut off marks
before the written examination was conducted. In such factual
scenario, we are unable to accept the submissions advanced by the
learned Counsel for the appellant that no cut off marks were fixed
before the test was conducted.
14. As the cut off marks for different categories of candidates indicate,
the appellant who secured 58 marks has failed to qualify the aforesaid
test. Similarly, the another candidate belonging to the category
Scheduled Tribe who also secured 58 marks has also been
unsuccessful. That being so, no question arises as to breaking tie
between two unsuccessful candidates.
15. The learned Single Bench in the impugned order has observed that
in the absence of any extant Rule and in the absence of allegations of
malafide it is not open for an unsuccessful candidate to challenge the
selection process or pray for evaluation of answer script. We do not
find any infirmity in the observations recorded by the learned Single
Judge.
16. In view of the above, we do not find any illegality or infirmity in the
impugned order which warrants interference of the order by this
Court.
17. Therefore the appeal is dismissed on contest. The application being
CAN 1 of 2021 also stands dismissed.
18. No order as to costs.
19. Urgent certified website copies of this judgment, if applied for, be
given to the parties upon compliance with all requisite formalities.
(Rabindranath Samanta,J.)
I agree,
(Harish Tandon,J.)
