Sumona Mondal vs The State Of West Bengal & Ors
2022 Latest Caselaw 916 Cal

                      IN THE HIGH COURT AT CALCUTTA
                     CONSTITUTIONAL WRIT JURISDICTION
                              APPELLATE SIDE

Present:
The Hon'ble Justice Moushumi Bhattacharya

                             WPA 20516 of 2021
                               Sumona Mondal
                                     Vs.
                        The State of West Bengal & Ors.


For the Petitioner                   : Mr. Soumya Mazumder, Adv.
                                       Mr. Subhankar Chakraborty, Adv.
                                      Mr. Saptarshi Bhattacharjee, Adv.
                                      Ms. Ruchira Manna, Adv.
.

For the State                        : Mr. Swapan Kumar Dutta, Adv.
                                       Mr. Rajat Dutta, Adv.

For the WEJEEB                       : Mr. Amitava Chaudhuri, Adv.
                                       Mr. Moniruzzaman, Adv.
                                       Mrs. Mololeena Chaudhuri, Adv.
                                       Mr. N. Roy, Adv.

Last Heard on                        : 25.02.2022.


Judgment on                          : 01.03.2022.



Moushumi Bhattacharya, J.

1. The writ petitioner before this Court is serving as nurse in government

hospitals and seeks to be placed in the Trainee Reserve category in colleges

offering Post-graduate and graduate degree courses. A "Trainee Reserve" seat

is a coveted post since the Trainee Reserve gets full pay from the Government

and is not required to take leave from service for the duration of the course. In

the present case, the petitioner has applied for Post Basic B.Sc. (Nursing)

courses as Trainee Reserve candidates. The writ petitioner approached this

Court being aggrieved by a notice cancelling a provisional eligibility list dated

23rd November, 2021 and the revised scores and ranks which were made

available on the website of the Board on 3rd December, 2021. The writ

petitioner challenged the unilateral cancellation of the list published on 9th

November, 2021 and the consequential change of marks and rank in the

revised Rank Card without notice to the petitioner.

2. The affidavit of the Board indicates that the Answer Keys sent by the

West Bengal University of Health Sciences were not separated in two separate

parts and that the Board decided to issue the notice dated 23rd November,

2021 cancelling the provisional list pursuant to considering the requests of

candidates who had personally approached the Board on 18th November,

2021. The affidavit seeks to absolve the Board of any error or latches and puts

the blame on the West Bengal University of Health Sciences. The Board also

says that the writ petition suffers from misjoinder and non-joinder of

necessary parties since the West Bengal University of Health Sciences has not

been made a party to the Writ Petition. It is also the stated position of the

Board that the petitioner cannot challenge the first round of counselling after

having participated in the same.

3. The affidavit of the State contains a statement that a technical error

took place at the time of evaluation of the OMR sheets. The position of the

State respondent is also that the State was compelled to cancel the

provisional list on 23rd November, 2021 since the Board cancelled the merit

list.

4. Since several points have been raised on behalf of the Board as well as

the State, the points are being dealt with in sequence.

5. The contention of the Board that the Writ Petition suffers from non-

joinder of necessary party is a weak argument. By definition a necessary party

is a party in the absence of who no decree can be passed.

6. The State says that the Board has conducted the entire entrance

examination of M.Sc. Nursing and the B.Sc. Post Basic Nursing courses for

the relevant academic session and the decision to cancel the first provisional

list was entirely that of the Board. The role of the University, if any and at

best, is that of a by-stander who has been nudged into relevance by the

Board. The point of non-joinder is hence found to be without substance. In

Ram Janam Singh vs State of U.P.; (1994) 2 SCC 622, the Supreme Court was

of the view that the High Court should not proceed with a writ petition

without insisting on persons to be joined as parties who would be affected by

the outcome of the writ petition. The decision of a learned Single Judge, as

His Lordship then was, in Amarendra Kumar Singh vs Damodar Valley

Corporation; W.P No. 26829 (W) of 2013 proceeds on the mandatory

requirement to implead a necessary party. These decisions do not assist the

Board since it has been found that the West Bengal University of Health

Sciences is not a necessary party in the present facts.

7. The point with regard to the petitioner not being entitled to approach

the writ Court after having participated in the examination is also without

merit. The petitioner obtained marks and ranks which would have made her

eligible for admission to the Post Basic B.Sc. and M.Sc. Nursing courses as

Trainee Reserve candidate without any further evaluation. The petitioner's

grievance arose out of the notice of the Director of Health Services cancelling

the first provisional list in which the petitioner had emerged successful. The

grievance was exacerbated by the unilateral alteration of the petitioner's

scores and rank in the revised list published on 3rd December, 2021. This is

hence not a case of a disgruntled and unsuccessful candidate approaching

the writ court for cancelling the selection process having participated in the

Selection; refer: Ranjan Kumar vs State of Bihar; (2014) 16 SCC 187 and

Madras Institute of Development vs K.V. Subramania; (2016) 1 SCC 454.

8. The third issue is the point of the alleged mistake/error in the marking

of the OMR sheet. The respondents submit that the petitioner cannot take the

benefit of an admitted mistake. However, contrary to such allegation, the

affidavits of the Board and the State do not spell out the exact mistake / error

and at what stage such alleged mistake was committed. The Board states that

the Answer Keys sent by the University were not separated in two separate

parts namely, "Part-A" and "Part-B". The Board terms this failure to separate

the Answer Keys as a "mistake". In the later part of the affidavit, the Board

states that after publication of the first list on 9th November, 2021, a number

of candidates visited the office of the Board on 18th November, 2021 to

question the scores obtained by prompting the Board to call for re-

confirmation of the Answer Keys.

9. The affidavit of the State does not say that there was any mistake or

error in the calculation of the marks. The position of the State is the

subsequent discovery of the Answer Keys not matching for the four sets of

question papers. The State merely parrots the position taken by the Board in

its affidavit. Moreover, the chain of correspondence between the Board and

the University on 18th November, 2021 does not mention any error or mistake

in the calculation of marks or the process of evaluation. The Board merely

says that it has received complaints from candidates with regard to their

scores and Answer Keys in the examination. Therefore, the argument of the

petitioner taking advantage of a so-called mistake is without any factual

basis. In fact, there is no stated position from either of the respondents as to

what necessitated the unilateral cancelling of the first provisional list by the

notice dated 23rd November, 2021. In the absence of any 'mistake' being

spelled out the conclusion of this Court leans in favour of the petitioner and

against the respondents. In fact, the respondents have also failed to disclose

any basis for the revised assessment of answer-sheets/ fresh merit list which

led to the unilateral alteration of marks. Union of India vs S.R Dhingra; (2008)

2 SCC 229 has been cited for the joint proposition that a mistake does not

confer any right to any party and can be corrected and it does not apply to the

specific facts of this case. Since, there is no specified mistake in the present

case - in fact no stated mistake at all - the said decisions do not come to the

aid of the respondents.

10. The petitioner's case, as substantiated in the writ petition, stands

unaltered. The petitioner continues to face prejudice by reason of the

unexplained, unilateral and sudden decision of the Board to cancel the

provisional list and alter the marks to the detriment of the petitioner. Even if

the case of the respondents of four marks being in the doubtful zone is

accepted, that cannot lead to a drastic alteration of the petitioner's ranks and

scores in the revised Rank Card published on 3rd December, 2021.

11. Moreover, the reason for withdrawing the first provisional list in which

the petitioner scored well, is not apparent from the affidavits of the

respondents. There is no reason, intelligible or otherwise, forthcoming in the

affidavits, as to why the first provisional list was cancelled and the marks

altered thereafter. The impugned notice cancelling the eligibility list is abrupt,

cryptic and without any reasonable explanation for such.

12. In view of the above reasons this court is of the considered view that the

petitioner is entitled to the relief as prayed for. In this context, it should be

reiterated that the petitioner's ranks and scores were sufficient to secure

seats in the Trainee Reserve Category in the Government colleges even

without the petitioner undergoing the counselling process. The affidavit of the

Board contains a document dated 28th December, 2021 stating that 219

vacant seats are being handed over to the University for the extended Mop-up

counselling. Hence, the position now taken by the respondents that seats

have subsequently been filled up is of little relevance and runs counter to the

direction passed by this Court. The respondents, particularly the West Bengal

Joint Entrance Examinations Board, are hence directed to consider the ranks

and scores of the petitioner as published on 9th November, 2021 (or on other

dates) before the said list was cancelled by the notice dated 23rd November,

2021 for placement in the available vacant seats for admission to the Post

Basic B.Sc (Nursing) and M.Sc (Nursing) courses. Needless to say, the

respondents shall act in accordance with the statutory rules. The respondents

shall also take into account the fact that the petitioner has missed the first 2

rounds of counselling and have had to forego the process by reason of

pendency of the present proceeding.

13. W.P.A No. 20516 of 2021 is disposed of in terms of the above.

Urgent photostat certified copy of this Judgment, if applied for, be given

to the parties on usual undertakings.

(Moushumi Bhattacharya, J)