Sri Anirban Sarkar vs State Legal Services Authority
2023 Latest Caselaw 4840 Cal

     08.08.23
78   Ct. No.25
        Sws.M
                                   WPA 3601 of 2023

                                 Sri Anirban Sarkar
                                         vs.
                 State Legal Services Authority, West Bengal & Ors.

                       Mr. Ayan Banerjee
                       Mr. Dhiman Banerjee
                                                       ...for the petitioner

                       Mr. Partha sarathi Bhattacharya
                       Mr. Arindam Sen
                       Ms. Rinku Sen
                       Mr. Sagnik Bhattacharya
                                                            ...for the SLSA

                       Mr. Jayanta Samanta
                       Mr. Manas Kumar Sadhu
                                                            ...for the State


                             The     petitioner     participated   in   a

                      recruitment process, pursuant to a recruitment

                      notification dated August 25, 2022 for being

                      engaged as a Chief Legal Aid Defense Counsel, for

                      the District of Howrah. The grievance of the

                      petitioner is that as per the notification dated

                      August 25, 2022, the Deputy Chief Legal Aid

                      Defense Counsel and the Assistant Legal Aid

                      Defense Counsel were engaged. However, the

                      petitioner was not engaged.

                             The petitioner made an application under

                      the Right to Information (RTI) Act, 2005. After the

                      said application was made, a merit list for the

                      post of Chief Legal Aid Defense Counsel, for the
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District of Howrah was published in the official

website. From the said publication it appeared

that the petitioner was the first empanelled

candidate. However, the petitioner was informed

that since the petitioner did not obtain 50% in

aggregate (written test + viva voce), the petitioner's

candidature was not considered. Thereafter, a

fresh recruitment notification was published on

January 30, 2023, for engagement of Chief Legal

Aid Defense Counsel.

       Mr. Banerjee, learned counsel appearing

on behalf of the petitioner relied on a judgment

reported in (2008)3 SCC 512 ( K. Manjusree vs.

State of Andhra Pradesh and another)                      in

support    of    his   contention       that     once    the

recruitment process has started, the selection

criteria cannot be changed for the same. No fresh

benchmark requiring the candidate to obtain 50%

in   aggregate    could     be      introduced     by    the

authorities concerned.

       Mr. Bhattacharya, learned senior counsel

appears on behalf of the respondents/State Legal

Services Authority (SLSA), West Bengal. He

submits that the engagement of Chief Legal Aid

Defense Counsel was only a contractual

appointment and the rules for a permanent

appointment of an employee cannot strictly apply

for engagement of a contractual employee. The

selection process was purely based on merit,

taking into account the knowledge, skills, practice

and experience of the candidate.

Even though, the petitioner stood first in

the panel, the authority did not consider him to

be a suitable candidate taking into consideration

the subjective criteria as stipulated in the Legal

Aid Defense Counsel Scheme, 2022. Attention of

this Court is drawn to Clause 4 stipulating the

selection procedure. The selection is to be carried

out by the Selection Committee under the

Chairmanship of Principal District and Sessions

Judge (Chairman, DLSA) as envisaged in NALSA

(Free and Competent Legal Services) Regulations

2010, subject to final approval by the Executive

Chairman, SLSA.

The qualifications for engagement of a

Chief Legal Aid Defense counsel are enumerated

hereinbelow:-

"a) Qualifications for Chief Legal Aid Defense Counsel:

 Practice in Criminal law for at least 10 years,  Excellent Oral and written communication skills,  Excellent understanding of criminal law,

 Thorough understanding of ethical duties of a defense counsel,  Ability to work effectively and efficiently with others with capability to lead,  Must have handled at least 30 criminal trials in Sessions Courts, aforesaid condition of handling 30 criminal cases can be relaxed in appropriate circumstances,  Knowledge of computer system is preferable,  Quality to lead the team with capacity to manage the office."

He submits that it had to be assessed by

the Selection Committee whether the candidate

had excellent oral and written communication

skills, excellent understanding of criminal law,

thorough understanding of ethical duties. Further

it had to be assessed whether the candidate could

work effectively and efficiently and had the quality

to lead a team with the capacity of managing an

office. All such criteria were subjective in nature

and therefore judicial intervention cannot be

called for in assessing such criteria.

Considering the rival submissions of the

parties and the materials placed on record, this

Court is of the view that whether it is a permanent

appointment or a contractual engagement, the

selection procedure as stipulated in the

recruitment notification has to be followed. In the

present case the issue whether the Selection

Committee applied its mind to the candidature of

the petitioner, as a Chief Legal Aid Defense

Counsel has not been addressed at all. Further,

being the first empanelled candidate, the

petitioner's candidature had to be assessed in

terms of the recruitment notification which the

authorities failed to show that they have done.

Without the Selection Committee coming to the

finding that the petitioner was not a suitable

candidate, the Chairman of the SLSA could not

take a decision that the candidate was unsuitable

for such appointment.

Despite a Report-on-Affidavit being called

for, no document was placed on record to

corroborate that the Selection Committee applied

its mind and came to the finding that the

candidate was an unsuitable one in view of the

subjective criteria of assessment.

In the light of the discussions hereinabove,

the new recruitment notification which is

impugned herein dated January 30, 2022 is set

aside and/or quashed. The Selection Committee

shall take a decision with regard to the suitability

of the petitioner to be engaged as a Chief Legal Aid

Defense Counsel pursuant to the Selection

process stipulated in the Memo dated August 25,

2022. The Selection Committee will take a

reasoned decision after evaluating each and every

subjective criterion as stipulated in the said

notification and upload the same in the official

website within a period of one month from date. If

required, the petitioner will be called for an

interview for assessing all the criteria as

stipulated in the selection process.

With the directions aforesaid, WPA 3601

of 2023 is disposed of.

All parties are to act on a server copy of

this order downloaded from the official website of

this Hon'ble Court.

(Lapita Banerji, J)