Jali Dash (Panda) vs The State Of West Bengal & Ors
2023 Latest Caselaw 2683 Cal

19.04.2023
Item No.09
Court No.6.
    S. De
                                  M.A.T. 717 of 2022
                                          with
                                 I.A. No. CAN/1/2022

                                  Jali Dash (Panda).
                                          Vs
                            The State of West Bengal & Ors.

                      Mr. Jayanta Kr. Das,
                      Mr. S.K. Anwar Ali,
                      Ms. Madhumanti Das,
                                        ...for the appellant.
                      Ms. Chaitali Bhattacharyya,
                      Mr. Kartik Chandra Kapas,
                                        ..for the State.
                      Mr. Anindya Bose,
                      Mr. Diptendu Mondal,
                      Mr. Mridul Biswas,
                                        ...for the respondent no.9

This appeal is directed against a judgment and

order dated March 14, 2022, whereby the appellant's

writ petition being WPA 23507 of 2014 was dismissed.

The appellant/writ petitioner approached the

learned Single Judge with the grievance that although

she duly submitted her application for the post of

'ASHA' under Barida Gram Panchayat, within Egra-I

Block of District-Purba Medinipur, she was not called

for interview. The appellant had earlier filed a writ

petition being W.P. 2485(W) of 2014 with the same

grievance which was disposed of by an order dated

April 24, 2014, by permitting her to make a

representation to the concerned Sub-Divisional Officer

who was directed to take a reasoned decision in the

matter. The writ petitioner made such a

representation dated July 7, 2014, which was

disposed of by an order dated July 30, 2014, passed

by the concerned Sub-Divisional Officer. Challenging

the said order dated July 30, 2014, the appellant filed

the present writ petition. The Sub-Divisional Officer

recorded in the order impugned before the learned

Single Judge that the writ petitioner's application had

been summarily rejected on the ground of

incompleteness for non submission of copies of

marksheet as required by the advertisement issued for

recruitment to the post of 'ASHA'.

Before the learned Single Judge, the appellant

argued that she had submitted all relevant documents.

She was the only candidate with first division marks.

She was the most qualified and suitable candidate.

She should have been appointed.

When the writ petition was moved by an order

dated May 14, 2015, a learned Single Judge had

directed the District Magistrate, Purba Medinipore, to

"conduct an appropriate enquiry and file a report as to

whether the petitioner had submitted a copy of her

marksheet along with the application and as to the

veracity of the register which has been relied upon by

the authorities."

An enquiry was held by the District Magistrate.

She passed an order dated July 1, 2015. The material

portion of the said order reads as follows :-

"The Writ Petitioner stated that she is Higher Secondary passed but she did not submit any document in support of her claim.

As enclosures she has furnished ad seriatim following documents :-

1) Xerox copy of Admit Card of WB Secondary Education.

2) Xerox copy of Certificate of WB Secondary Education.

3) EPIC Card of Petitioner.

4) Ration Card

5) Marriage delcaration.

Thus it is very difficult to presume that one of the documents which is claimed to be submitted by the writ petitioner has been missed by the receiving office. Receiving clerk of the Block Development office also stated that he was not mindful of the required documents as there was no check list.

Sub-Divisional Officer, Egra also stated that out of total 140 applications received from different Block Development offices in his jurisdiction five applications have been rejected for non-submission of Marksheet of Madhyamik Pariksha which was mandatory for submission as per the advertisement. He also stated that none of the Block Development office has taken any signature of the candidates in the received register as there was no guideline regarding format of the application receiving register.

On verification of concerned register, it is found that the applications received from different Gram

Panchayats under Egra-I block have been entered separately in the register under due authentication of the Block Development officer himself. So there is no space left for any doubt regarding veracity of the register as questioned by the petitioner.

The applicant's application alongwith all other incumbents have duly been acknowledged through the counterpart handed over to each and every incumbent under proper seal and signature of the receiving clerk. The petitioner also failed to substantiate her claim with any supporting documents.

In view of the above I am of the opinion that so far to the best of my observation I found no ill-motive of malafide tendency either from the end of Block Development Officer or from the end of Sub-Divisional Officer concerned behind non-consideration of the matter of the petitioner"

The learned Judge observed that the contention

of the writ petitioner that copy of the register annexed

at page 19 of the affidavit-in-reply filed by the writ

petitioner, is a forged and manufactured one as the

same does not bear the signature of the writ petitioner,

was not pleaded in the writ petition and she also did

not plead her case that she had put her signature on

the said register. The learned Judge held that the writ

petitioner has tried to make out a new case in the

affidavit-in-reply.

The learned Judge also took into consideration

the order of the District Magistrate dated July 1, 2015.

The learned Judge held that the findings of fact arrived

at by the District Magistrate did not suffer from any

infirmity and cannot be interfered with by the High

Court under Article 226 of the Constitution of India.

Finally, the learned Judge disposed of the writ

petition with the following observations :-

"Since the only dispute which is germane is whether the writ petitioner's candidature was rightly cancelled, this Court is of the view that the order dated July 30, 2014 rejecting the application of the petitioner cannot be said to be a non-speaking and cryptic order, as contended by the learned advocate for the petitioner, as the reason for rejection has been disclosed therein.

Selection to the said post is based on marks obtained in the Madhyamik or equivalent examination and the score in the interview. Therefore, marksheet of the applicant is a vital document for such selection. An application is thus liable to be cancelled for non- submission of the said document and the authority was justified in cancelling the application of the petitioner."

Being aggrieved, the petitioner is before us by

way of this appeal.

We have heard learned counsel for the parties at

length. The short dispute is whether or not the

appellant submitted her marksheet along with her

application? She says she had done so. The State

says otherwise. This is a factual dispute which is

impossible for the writ Court to decide. That is why a

learned Single Judge, at the time of admission of the

present writ petition, had directed the concerned

District Magistrate to conduct a fact finding exercise.

The District Magistrate has submitted her report

which has been considered by the learned Single

Judge. The District Magistrate has recorded that

although other documents have been submitted, the

appellant did not submit the marksheet.

We are not in a position to go into such a factual

dispute. The learned Judge has rightly accepted the

order of the District Magistrate. The learned Judge

was also not in a position to decide the factual

dispute.

Having expressed our opinion above, we find it

difficult to understand as to why the appellant, who

had secured first division marks in Madhyamik, would

not submit the marksheet along with the application

knowing well that the same would make her

application ineligible for consideration. However, the

dispute is of such a nature that we are unable to grant

any relief to the appellant.

Before parting we would like to say that in

connection with any public recruitment process, after

receiving applications along with supporting

documents from the candidates, the concerned

recruitment board should ascertain whether or not

there are defects in the applications of the candidates.

If a candidate's application is found to be defective,

but the defect is of a curable nature, e.g., where the

candidate has not submitted requisite certificates or

other documents, an opportunity should be given to

such candidate to rectify the defect within a stipulated

time. The concerned candidate may be notified

through electronic mode or by publication in the

website of the board or through any other acceptable

mode as the board may decide. If the defects are not

removed within the time stipulated, the application

may be rejected on that ground. No such exercise need

be undertaken where an application is found to be

suffering from a defect which is incurable, e.g., when

the candidate is under age or over age as per the

advertisement.

Accordingly, the appeal being MAT 717 of 2022

is dismissed along with the application being I.A. No.

CAN 1 of 2022.

Urgent certified photostat copy of this order, if

applied for, shall be given to the parties as

expeditiously as possible on compliance with all the

necessary formalities.

(Apurba Sinha Ray, J.) (Arijit Banerjee, J.)