Soma Dutta vs The State Of West Bengal & Ors
2022 Latest Caselaw 922 Cal

                     IN THE HIGH COURT AT CALCUTTA
                     CONSTITUTIONAL WRIT JURISDICTION
                              APPELLATE SIDE

Present:
The Hon'ble Justice Moushumi Bhattacharya

                             WPA 20212 of 2021
                                 Soma Dutta
                                     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 Kr. 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. By an interim order dated 14th December, 2021, this Court had directed

the West Bengal Joint Entrance Examinations Board to keep a certain number

of seats vacant but had allowed the counselling process to continue. The

parties were directed to file affidavits and the matter has now come up for final

hearing. The question before the Court, at this stage, is whether, the affidavits

filed by the State and the West Bengal Joint Entrance Examinations Board

disclose any material grounds for vacating or modifying the interim order and

whether the Reply of the petitioner call for further relief.

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

hospitals and seek 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 M.Sc. (Nursing) courses as

Trainee Reserve candidate. 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. The interim order was passed upon the

Court being convinced that the petitioner had made out a prima facie case for

ad-interim relief pending affidavits.

3. 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.

4. 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.

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

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

6. 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. 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 after 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 is 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 affidavits of the respondents do not disclose any further fact or

material by reason of which the interim order passed by this Court on 9th

December, 2021 should be vacated or modified. The direction on the Board to

keep a certain number of seats vacant until the matter is considered on

affidavits was given as a measure of protection to the petitioner. 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 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 (which is after the interim

order was passed by this court) stating that 219 vacant seats are being handed

over to the University for the extended Mop-up counselling. This stand is to be

read with the interim order which directed the Board to keep a certain number

of seats vacant for the petitioner's till filing of affidavits. 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. 20212 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)