(Ad 1) vs The State Of West Bengal & Ors
2022 Latest Caselaw 2758 Cal

Court No. 17                  WPA 8059 of 2022

12.05.2022                        Soma Sinha
(AD 1)                                Vs.
                        The State of West Bengal & Ors.
(S.   Banerjee)




                  Mr. Bikash Ranjan Bhattacharya, Sr. Advocate
                  Mr. Sudipta Dasgupta
                  Mr. Bikram Banerjee
                  Ms. Dipa Acharya
                  Mr. Arka Nandi
                  Mr. Sutirtha Nayek
                                                    ... for the petitioner

                  Mr. Bhaskar Prasad Vaisya
                  Mr. Suman Dey
                                                        ... for the State

                  Mr. Kishore Datta, Sr. Advocate
                  Dr. Sutanu Kumar Patra
                  Ms. Supriya Dubey
                                                    ... for the WBCSSC

                  Ms. Koyeli Bhattacharya
                                                     ... for the WBBSE




                  1.

This writ application has been filed by one

candidate of the First State Level Selection

Test, 2016 of Teachers for classes IX and X

(SLST in short). Her prayer is for publication of

fair and transparent merit list including the

waiting list disclosing the breakup and/or

segregation of the marks obtained by the

candidates in written examination, for

academic and professional qualification and in

the personality test. Her further prayer is for a

direction by way of mandamus to the School

Service Commission (commission in short) to

upload the online application forms of the

candidates in respect of the said SLST.

2. In support of the application the petitioner has

submitted that there is no delay in making the

application though the panel and the waiting

list were published in the year 2017. As it is a

matter relating to recruitment and her

fundamental right under Article 16 of the

Constitution of India and as several illegalities

and irregularities have come to light regarding

panel and waiting list and as there are serious

allegations of illegalities, irregularities and

corruption in the recruitment process of the

said SLST the publication of marks along with

the candidates' online applications form, will

show the marks obtained by the petitioner is

below the marks of which candidates and

above the marks of which candidates. For non-

publication of the marks she cannot compare

her marks with others for coming to a

conclusion that she has been deprived of the

opportunity of getting a job correctly and

legally. The petitioner is a candidate named in

the waiting list. It has been pleaded in

paragraph 5 that now no waiting list with

regard to the said SLST is available in the

website of the Commission.

3. I wonder why the waiting list has been

removed from the website of the Commission.

It has been submitted that the panel is also

not there in the website.

In my view the Commission has made a

very serious mistake by removing the panel

and the waiting list from the website and this

action of the Commission has created doubt

as to the fairness of the Commission. Why the

waitlist and the panel of a recruitment test

would not be there in the website, which gives

easy access to interested persons is not

understood.

4. The petitioner has further submitted that

unless the breakup of marks, i.e., marks

obtained in the written test, obtained against

academic score and professional qualification

and obtained against personality test are

known to her, she would never know whether

she has been given any marks at all in respect

of those heads.

5. There is some merit in the submission that

unless a candidate knows her/his marks

she/he would not be in a position to compare

her/his marks with the other candidates in

the panel or the waiting list and that while

calculating and scrutinizing the academic

score and score against professional

qualification, unless such application forms,

(as has been prayed in prayer (b) of the writ

application), are disclosed by the Commission

by uploading the same in the Commission's

website it would be impossible to check the

academic score and the score against

professional qualification.

6. The Commission has resisted this application

vehemently on several grounds to which I will

come later but I do not understand who would

be adversely affected under the sky if breakup

of marks along with the application forms of

the empanelled and waitlisted candidates are

published by the Commission i.e. uploaded in

its website along with the panel and the

waiting list which was once published but now

withdrawn as has been alleged.

7. It is a question of transparency. Transparency

is one antidote to corruption. If the authorities

or any person remains transparent to others

who are in touch with such authority or

persons, the question of corruption or false

statements and non-genuine actions would

become less.

8. I do not understand why the Commission has

fought it with such vehemence for not

publishing the breakup of marks and

uploading of the online application forms.

Instead of that the Commission has first raised

a question of delay by submitting that the

panel has expired long back, the petitioner has

come to the court with the prayer after expiry

of the panel when nothing can be done in

respect of the panel as the recruitment process

is over and, therefore, on the ground of delay

this writ application is not required to be

entertained. The Commission has failed to

show to this court in respect of questions put

by this court as to whether accrued right of

any person would be adversely affected if such

breakup of marks and the online application

forms are disclosed. It does not require the

knowledge of rocket science to understand

that except those persons, who have got the

recommendation from the Commission and

appointment letters from the West Bengal

Board of Secondary Education illegally

(instances are there is the application) no

candidate who has been appointed in a fair

way, i.e., really on the basis of the marks

obtained by her/him in written examination,

against academic score and professional

qualification and against the interview would

be affected. Transparency in this regard would

go against corruption. In the meantime a large

number of matters have come to the

knowledge of this court through writ

applications (of which this court is taking

judicial note) wherefrom it has become

gradually clear that the tip of the iceberg of

corruption in appointments by School Service

Commission is being enlarged day by day for

which not less than in five occasions this court

had to pass orders for enquiry by CBI and

other related orders.

9. In such view of the matter when nobody except

a person who has got appointment in the post

of a school teacher illegally and in an irregular

manner, would be affected and his accrued

right as a result of such irregularity and

illegality and corruption, if any, would be

affected the question of delay cannot stand in

the way of entertaining this writ application.

10. Therefore, I do not accept the objection of the

Commission for not entertaining this

application on the ground of delay.

11. The petitioner has placed the Recruitment

Rules framed by the Government of West

Bengal by referring to Rule 2(1)(f), which

defines merit list; Rule 7(1), which speaks

about manner of selection; Rule 12(6), which

speaks about selection of candidates and

preparation of panel. Rules 2(1)(f), 7(1) and

12(6) are set out herein below:

"2(1)(f) - "merit list" means a list of candidates prepared category-wise on the basis of marks obtained by a

candidate in written test, in academic and professional qualification and in the personality test;"

(Emphasis mine) "7(1) - Selection to the post of the Teacher for Classes IX and X shall be made on the basis of the results of the State Level Selection Test (SLST) comprising written examination conducted by the Central Commission, evaluation of academic and professional qualification and personality test of the candidates in the manner as specified in Schedule II."

(Emphasis mine)

"12(6) - After the evaluation of the OMR Sheet or answer-sheet of the written examination, the Central Commission shall prepare and publish in their website with all details of the candidates to be called for personality test (Interview List) category-wise on the basis of merit (marks of written test, academic and professional qualification as mentioned in Part B of Schedule II) in the ratio of 1:1.4 of final vacancies."

(Emphasis mine)

12. From the definition of merit list, it is found

that it is a list prepared on the basis of marks

obtained in written test, in academic and

professional qualification and in the

personality test. In the 'manner of selection'

also it is stated that selection shall be made

on the basis of the results of SLST comprising

written examination conducted by the Central

Commission, evaluation of academic and

professional qualification and personality test

of candidates. Regarding selection of

candidates and preparation of panel in Rule

12(6) it has been stated inter alia that all

details of the candidates to be called for

personality test (interview list) category-wise

on the basis of merit (marks of written test,

academic and professional qualification as

mentioned in part B of Schedule II) in the ratio

of 1:1.4 of final vacancies.

13. Mr. Bhattacharya, learned senior advocate

appearing for the petitioner, has submitted

that here all details of the candidates includes

the marks obtained by the candidates. He has

submitted that by knowing the names,

addresses, and role numbers of a candidate

the other candidate, who is a competitor of the

said candidate, would not come to know any

material thing in a recruitment process, i.e.,

the marks obtained by the other candidates,

therefore, the expression "all details of

candidates" means beside other details of

names addresses etc., the marks of written

test, academic and professional qualification

and thereafter the marks of personality test

while preparing the panel and the waitlist.

14. The Commission in their submission has

stated that this expression of "all details of

candidates" has nothing to do with marks and

the Commission is not mandated by the

provision of law to publish the breakup of

marks of the candidates and there is no

question of publishing the online application

forms of the candidates. Therefore, the

Commission has not committed any wrong by

not publishing the marks of the candidates

and publishing the online application is out of

question.

Mr. Dutta, learned senior advocate

appearing for the Commission, has also drawn

my attention to Rule 12(7) and Rules 17 and

18 to say that it is the validity period of the

panel within which such challenges are to be

made for publication of the marks and in no

way 'all details' means the marks obtained by

the candidates in the related recruitment test.

15. But delving deeper into the issue, I fail to

understand how a person will calculate his

own marks and the marks of others in respect

of written test, academic and professional

qualification and personality test and how the

candidate would know whether any such

marks have been awarded to her/him by the

Commission in the recruitment test at all. If

the marks are not published, what a

candidate gets only the name, role number

and his panel position or waitlisted position. I

also do not understand why the material

thing, i.e., the marks (to be precise - the

breakup of marks), was not published by the

Commission for the sake of transparency.

16. From a conjoint reading of Sections 2(f), 7(1)

and 12(6) of the aforesaid rules it is clear that

all details of candidates includes break up of

marks. Otherwise the reference of marks

obtained in written test, academic

qualification and professional qualification

and personal details becomes meaningless. If

the marks are not published and it is not

known to the candidates the candidates will

be kept in the dark and they will remain

totally blind as to the inter-se performance. In

this age of information and transparency no

statutory authority can keep or allowed to

keep the most important material of a

selection procedure in respect of candidate i.e.

her/his marks obtained in the selection test. It

is clear from the above mentioned Rules that

marks of the candidates are to be published

and it is found that the intention of the Rule-

markers is publication of marks. There is no

provision in the said Rules which forbids

publication of marks along with panel and

waiting list. Had it been the intention of the

Rule makers to put a negative provision as to

publication of marks they had no constraint at

all in making such a provision. And after all it

is to be kept in mind that it is the marks

obtained by the candidates against their

performance which they are entitled to know.

Marks of the candidates are not properties of

the commission which they can keep under

cover. It is their duty to disclose the marks of

the candidates.

17. On behalf of the commission it has been

submitted that as the petitioner has

approached the court after expiry of the panel

and its validity period of panel within which

such claims were to be made, the petitioner

has actually abandoned her known right. It

reply to such submission, it has been

submitted on behalf of the petitioner that the

matter relates to his fundamental rights under

Article 16 of the constitution of India and

actually it is her fundamental rights to know

her marks and marks of others for knowing

whether she has been illegally excluded from

the selection process for getting an

employment. There cannot be any question of

waiver as waiver or abandonment of a known

right cannot act in respect of fundamental

rights.

18. In paragraph 15 of the writ application the

petitioner has given examples of 17 candidates

wherefrom it comes to light that the

candidates in the waitlist who are below the

rank of other candidates got recommendation

and appointment but the candidates above the

said below-ranking candidate has not been

recommended. In the said list also there are

names of some non-listed candidates, i.e.,

candidates who were neither in the waitlist

nor in the panel. There is utterly

surprising.

19. While dealing with the same list of names in

another matter, being WPA 13700 of 2021

(Setab Uddin & Ors. -Vs.- State of West

Bengal & Ors.), judgement and order whereof

has been produced today by the petitioner, I

held that those allegations in respect of those

individuals were not denied by the

Commission. Therefore, such allegations in

respect of those 17 candidates are considered

as correct and this court is taking judicial

note of the proceeding (in WPA 13700 of 2021)

which has become a record of this court of

record.

20. In this view of the matter, as I am satisfied

that without publishing the breakup of marks

of the empanelled candidates and the

waitlisted candidates and without uploading

their online application forms in the website of

the Commission along with the alleged

disappeared panel and the waiting list of all

empanelled and waitlisted candidates in the

said SLST it is not at all possible to know by a

candidate whether her/his position in the

panel is a correct position.

21. Therefore, I direct the West Bengal Central

School Service Commission to publish the

breakup of marks of the empanelled and

waitlisted candidates against written test,

academic and professional score and

personality test by 20th May, 2022 and to

upload the online application forms of the

empanelled and waitlisted candidates and to

come up with such a list with breakup of

marks and to come up with preparation to

demonstrate that online application forms of

the empanelled and waitlisted candidates in

respect of 1st State Level Selection Test, 2016

(Classes IX and X) has been uploaded.

22. The Commission is further directed not to

take any further step for initiation of

recruitment or selection process of State Level

Selection Test for Assistant Teachers for the

Classes IX and X till 17th June, 2022 as after

publication of the marks it has to be checked

and verified by the petitioner and all other

concerned persons to see whether the panel

and the waitlist is to be completely recast or

not. If a recruitment process is initiated in the

meantime before doing that, a further

complicated situation will arise in the future

recruitment process as vacancies are to be

published and Rule 18 of the said Rules

provide for carry forward of vacancy.

23. Dr. Patra, learned advocate for the

Commission, has reminded this court that the

Commission's Senior Counsel, Mr. Datta,

wanted to file one affidavit on the question of

transparency which I did not allow as I do not

understand how, in respect of transparency,

which is a subjective and abstract concept

and an idea and not involved with any facts,

an affidavit can be filed. Learned advocates

appearing in this court know that facts, only

can be dealt with in an affidavit and not ideas

or subjective matters. Therefore I did not allow

filing of the affidavit on the question of

transparency.

Further, Section 5 of the Evidence Act

clearly states that evidence may be given in

any suit or proceeding of the existence or non-

existence of every fact in issue and all such

other facts as are hereinafter declared to be

relevant and of no others.

Therefore, the question of transparency

which is neither involved with a fact or a

relevant fact but only an idea and are some

principles on the basis of the idea, there

cannot be any evidence which can be dealt

with in an affidavit.

24. This matter will appear in the list for further

hearing on 20th May, 2022 at 10:30 a.m.

under the heading 'Specially fixed matter'.

25. Nobody has prayed for stay of the operation of

this judgment and order despite quiry by the

court.

The matter is marked as 'heard in part'.

(Abhijit Gangopadhyay, J.)