Calcutta High Court (Appellete Side)
Tamasi Konar vs The State Of West Bengal & Anr on 29 August, 2023
1
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
WP.ST 66 of 2017
Tamasi Konar
Vs.
The State of West Bengal & Anr.
With
WP.ST 42 of 2017
IA No.: CAN 1 of 2017 (old No.: CAN 3649 of 2017)
Saptarshi Kundu
Vs.
The State of West Bengal & Ors.
With
WP.ST 59 of 2017
IA No.: CAN 1 of 2017 (Old No.: CAN 3647 of 2017)
CAN 2 of 2018 (Old NO.: CAN 716 of 2018)
Amit Sankar Bagchi
Vs.
The State of West Bengal & Anr.
with
WP.ST 60 of 2017
IA No.: CAN 1 of 2017 (Old No.: CAN 3656 of 2017)
Sri Sayontan Chowdhury
Vs.
The State of West Bengal & Ors.
With
2
WP.ST 61 of 2017
IA No.: CAN 1 of 2017 (old No.: CAN 3650 of 2017)
Joy Banerjee
Vs.
The State of West Bengal & Anr.
With
WP.ST 62 of 2017
Md. Munirul Islam
Vs.
The State of West Bengal & Ors.
For the Petitioner : Mr. Madhu Jana
in WP.ST 66 of 2017 Mrs. Tanushree Roy
Ms. Palima Bhadra
For the Petitioner : Mr. Probal Kumar Mukherjee,
Ld. Sr. Advocate
in WP.ST 42 of 2017, Mr. Anindya Halder
in WP.ST 59 of 2017,
in WP.ST 60 of 2017 &
in WP.ST 62 of 2017.
For the Respondent nos. : Mr. Pratik Dhar, Ld. Sr. Advocate
6,7,8,10,11, 13, 15 16,17,18,20, Ms. Deblina Lahiri
21,22,23,24,25,26,29,30,31,32, Mr. Mirinmay Chatterjee
33,34,35,36,37,38,39,40,41,42 Ms. Cardina Roy
44,45,46,47,48,49,50,51 in
WP.ST. 66 of 2017
For the State in : Mr. Tapan Kumar Mukherjee,
WP.ST 66 of 2017, Ld. Sr. Advocate & Ld. AGP
WP.ST 59 of 2017, Mr. Pinaki Dhole
WP.ST 61 of 2017 & Mr. Somnath Naskar
WP.ST 62 of 2017
For the PSC, West Bengal : Ms. Shraboni Sarkar
Heard on : August 29, 2023
Judgment on : August 29, 2023
DEBANGSU BASAK, J.:-
1. Six writ petitions are taken up for analogous hearing as they
emanate out of the same judgment of the West Bengal
Administrative Tribunal rendered in OA-931 of 2016, OA-
683 of 2016, OA-940 of 2016, OA-952 of 2016, OA-1105 of
2016, OA-1129 of 2016 and OA-1130 of 2016.
2. By the impugned order, the Tribunal negated the challenge
of the writ petitioners to the selection process completed by
the Public Service Commission for the post of Assistant
Public Prosecutor.
3. All the writ petitioners were unsuccessful in the selection
process to the post of Assistant Public Prosecutor.
4. Learned Senior Advocate appearing for the writ petitioners in
WP.ST 42 of 2017, WP.ST 59 of 2017, WP.ST 60 of 2017 and
WP.ST 62 of 2017 submits that, his clients secured superior
aggregate marks than the successful candidates in the
selection process. His clients were unfairly shown to be
unsuccessful in the selection process despite his clients
securing higher marks than the successful candidates.
5. Learned Senior Advocate appearing for such writ petitioners
submits that, the selection process was initiated by the
Public Service Commission through an advertisement
bearing No.4 of 2015. He draws the attention of the Court to
the scheme and syllabus of the selection process. In
particular, he draws the attention of the Court to Part-II of
the scheme and syllabus of the selection which speaks about
the personality test. He submits that, the advertisement
prescribed that the final merit list will be prepared on the
basis of the total marks obtained in the written examination
and in the personality test.
6. Learned Senior Advocate appearing for such writ petitioners
submits that, the examination was divided into two
successive parts, namely, written examination followed by a
personality test. He refers to the advertisement concerned
and submits that, for the written examination test, a cut-off
mark was prescribed. However, no cut-off mark was
prescribed for personality test. At least his clients were not
made aware of any prescription of cut-off marks in respect of
the personality test.
7. Relying upon 2023 SCC OnLine SC 994 ( Sivanandan C.T.
and Others vs. High Court of Kerala and Others) learned
Senior Advocate appearing for such writ petitioners submits
that, prescription of cut-off marks in the personality test in
the manner as sought to be done herein was founded upon
by the Supreme Court therein. Such procedure adopted was
held to be incorrect. Therefore, the ground on which, his
clients were disqualified was not available in law.
8. Learned Senior Advocate appearing for such writ petitioners
relies upon (2008) 3 Supreme Court Cases 512 ( K. Manjusree
vs. State of Andhra Pradesh and Another) and submits that,
a change in the criteria of minimum marks for the interview
done subsequent to the initiation of the process for the
selection process was illegal.
9. Learned Senior Advocate appearing for such writ petitioners
relies upon an unreported decision of the Coordinate Bench
dated November 3, 2016 passed in WP.ST 67 of 2016 and
submits that, fixation of qualifying cut-off marks should be
fixed at all stages for all categories in the selection process.
In the facts of the present case, the authorities did not do so.
Therefore, the entire selection stood vitiated.
10. Learned Advocate appearing for the writ petitioner in WP.ST
66 of 2017 adopts the submissions made on behalf of the
four other writ petitioners.
11. None appears for the writ petitioner in WP.ST 61 of 2017.
12. Learned Senior Advocate appearing for the successful
candidates submits that, the ratio of Sivanandan C.T. and
Others (supra) cannot be applied to the facts and
circumstances of the present case. The rules governing the
selection process in respect of Sivanandan C.T. and Others
(supra) were different. Moreover, the decision to deploy a
cut-off at the viva-voce therein was taken subsequent to the
holding of the viva-voce test which is not the case herein.
13. Referring to the facts of the present case, learned Senior
Advocate appearing for the successful candidates submits
that, the decision to prescribe qualifying marks for the viva-
voce was taken in the meeting of the Full Commission on
September 19, 2014 prior to the commencement of the
written examination. A public notification was issued by the
Public Service Commission in newspapers on July 4, 2015.
The written examination was held on July 25, 2015 and July
26, 2015. Personality test was taken subsequent thereto.
14. Learned Senior Advocate appearing for the successful
candidates submits that, his clients are now about six years
into service. He refers to the attempt by the writ petitioners
to obtain an interim order in the present writ petition which
was denied by the Coordinate Bench. He submits that,
thereafter, a Special Leave Petition was filed which was also
rejected. Therefore, referring to Sivanandan C.T. and Others
(supra), he submits that, there also the Supreme Court took
note of the fact that the Judicial Officers were already
engaged and were working for a considerable period of time.
Similar is the factual scenario obtaining in the present case.
15. Learned Senior Advocate appearing for the successful
candidates submits that, personality test plays an important
role considering the nature of the post involved in the
selection process. In support of such contention, he relies
upon (2006) 6 Supreme Court Cases 395 ( K.H. Siraj vs. High
Court of Kerala and Others), (2010) 3 Supreme Court Cases
104 ( Ramesh Kumar vs. High Court of Delhi and Another) and
(2017) 4 Supreme Court Cases 357 (Ashok Kumar and
Another vs. State of Bihar and Others).
16. Learned Senior Advocate appearing for the successful
candidates submits that, the recruitment of Law Officers are
governed by the West Bengal Legal Service (Recruitment)
Rules, 2007 where the prescription of the selection process
is different. He submits that, under the Service Rules of
2007 for Law Officers the final merit list was required to be
prepared on the basis of total marks obtained in all written
papers and in the personality test which is different from
that prescribed in the present selection process.
17. Learned Advocate appearing for the Public Service
Commission, adopts the submissions made on behalf of the
successful candidates. In addition thereto, she relies upon
1995 (3) Supreme Court Cases 486 (Madan Lal & Ors. vs. The
State of Jammu & Kashmir and Others.) in support of her
contention that, the writ petitioners were aware of the
prescription of cut-off marks for the personality test,
participated in the entire selection process without any
demur and are not entitled to challenge the same.
18. Learned Senior Advocate appearing for the State submits
that, the recruitment was held for the post of Assistant
Public Prosecutor who is required to discharge functions
under the Criminal Procedure Code. In discharging their
functions, an Assistant Public Prosecutor is required to
assist the Court in considering applications for pre-arrest
bail and bail applications. An Assistant Public Prosecutor is
required to conduct a criminal trial. Therefore, the
personality test of the candidate applying for the post of
Assistant Public Prosecutor assumes significance. Moreover,
the Public Service Commission laid down the qualifying
marks for the personality test in its meeting on September
19, 2014 much prior to the commencement of the written
examination. Consequently, he contends that, none of the
writ petitioners can be said to be prejudiced. In addition
thereto, he adopts the submissions made on behalf of the
successful candidates and the Public Service Commission.
19. All the writ petitioners participated in a selection process
undertaken by the Public Service Commission by way of an
Advertisement No. 4/2015 for the post of Assistant Public
Prosecutor.
20. The Advertisement No. 4/2015 prescribed that the
commencement of submission of online application would be
from April 13, 2015, closing date of submission of online
application as on May 4, 2015 and the closing date of
submission of fees is on May 6, 2015.
21. The advertisement bearing No. 4/2015 also prescribed that
the selection process will comprise of examination which will
be in two successive parts, namely, written examination and
personality test. So far as the personality test is concerned,
it prescribed that, for such purpose a limited number of
candidates selected on the basis of the written examination
will be called to appear in the personality test. It went on to
prescribe that the final merit list will be prepared on the
basis of the total marks obtained in the written examination
and in the personality test.
22. Public Service Commission, made an announcement on July
4, 2015 that, it may fix qualifying cut off marks for all
categories of vacancies in each level of the examination, that
is, written, interview and in aggregate. The public
notification, was published in newspapers on July 4, 2015
as appearing from the affidavit of the successful candidates.
23. The writ petitioners participated in the written examination
held on July 25, 2015 and July 26, 2015 without any
demur. On February 2, 2016, Public Service Commission
declared the result of the 512 candidates who appeared in
the written examination. The writ petitioners before us
qualified in the written examination.
24. Between March 8, 2016 to April 13, 2016, Public Service
Commission held personality test of the candidates who
qualified in the written examination. The writ petitioners
before us participated in the personality test, again without
any demur.
25. On July 8, 2016, Public Service Commission published a list
of 55 candidates who were recommended to the post of
Assistant Public Prosecutor. None of the petitioners were
successful therein.
26. All the writ petitioners before us secured less than qualifying
marks prescribed in the personality test. The qualifying
marks prescribed in the personality test was 38.
27. It is the contention of the writ petitioners that, the qualifying
marks for the personality test therein was not made known
to the candidates prior to the commencement of the selection
process. We are unable to accept such a contention, in view
of the fact that, the Public Service Commission adequately
and properly informed all candidates, that there would be
prescribed qualifying marks in each test of the examination
namely, written, interview as well as in the aggregate.
Failure to inform numeral of the minimum qualifying marks
to the candidates for the interview will not vitiate the
selection process undertaken inasmuch as, the Public
Service Commission proceeded on the basis of an pre-
informed decision with regard to prescription of a qualifying
mark for the personality text much prior to the
commencement of the selection process and on taking a
decision with regard to the numeral of the minimum
qualifying marks for the personality text went on to apply the
same uniformly across the board in respect of each of the
candidate. No instance was brought to our notice that
despite the prescribed qualifying mark of 38 any candidate
obtaining less than that in the personality test was
recommended for appointment.
28. Sivanandan CT & Ors. (supra) was rendered in the context of
the rules prevailing in the High Court of Kerela. Kerela State
Higher Judicial Services Rule 1961 was considered therein.
Such rules governed the selection process which was made
the subject matter of challenge in the Article 32 petition.
The Supreme Court noted the provisions of Rule 2(c)(iii) of
the Rules of 1961 which prescribed that on the basis of
aggregate marks, which such aggregate was obtained by
adding the marks in the competitive examination and viva
voce conducted by the High Court, 25% of the posts shall be
filled up by direct recruitment from the Bar. It noted that,
the tests were held between January 14, 2017 and January
16, 2017 and that the decision to prescribe a cut off mark
was taken on January 27, 2017. It is in such context, the
Supreme Court held that, the recruitment stood vitiated.
Factual scenario obtaining in the present case is different as
adumbrated above. Decision to prescribe cut off marks for
the personality test was taken prior to the commencement of
the examinations.
29. K. Manjusree (supra) was also rendered in respect of
selection to the post of District and Sessions Judge Grade-II
in the Andra Pradesh State Higher Judicial Service. Rules of
appointment to such post namely, Andhra Pradesh Higher
Judicial Rules 58 were considered. In the facts of that case,
requirement of minimum marks in the interview was
introduced in the selection process, after the entire selection
process consisting of written examination and interview was
completed. In such context, the Supreme Court held that,
such a process would amount to changing the Rules of the
game after the game was played. It was held to be
impermissible. Again, the factual scenario in the present
case is different.
30. Coordinate Bench in Abdul Haque (supra) considered a
selection process to the post in the West Bengal Legal
Service. In the facts of that case, the coordinate Bench
found that the prescription of qualifying marks was done
subsequent to the commencement of the selection process.
It observed that fixation of cut off marks by Public Service
Commission in personality text and upon the aggregate
marks, arrived at upon adding the marks obtained by the
candidate in the written test and the interview is not
sustainable in law. Again, the factual scenario in the fact
and circumstances of the present case is different.
31. K. H. Siraj (supra) is of the view that, interview is the best
mode of assessing the suitability of a candidate for a
particular position. It noted that while the written
examination will testify the candidate's academic knowledge,
the oral test alone can bring out or disclose his overall
intellectual and personal qualities like alertness,
resourcefulness, dependability, capacity for discussion,
ability to take decisions, qualities of leadership etc. which
are essential for judicial officers.
32. Ramesh Kumar (supra) noted K. H. Siraj (supra) and observed
as follows : -
11. In State of U.P. v. Rafiquddin, Krushna Chandra Sahu (Dr.) v. State
of Orissa, Manjeet Singh v. ESI Corpn. And K.H. Siraj v. High Court of
Kerala, this Court held that the Commission/Board has to satisfy itself
that a candidate had obtained such aggregate marks in the written test
as to qualify for interview and obtained "sufficient marks in viva voce"
which would show his suitability for service. Such a course is
permissible for adjudging the qualities/capacities of the candidates. It
may be necessary in view of the fact that it is imperative that only
persons with a prescribed minimum of said qualities/capacities should
be selected as otherwise the standard of judiciary would get diluted
and substandard stuff may get selected. Interview may also be the
best mode of assessing the suitability of a candidate for a particular
position as it brings out the overall intellectual qualities of the
candidates. While the written test will testify the candidate's academic
knowledge, the oral test can bring out or disclose overall intellectual
and personal qualities like alertness, resourcefulness, dependability,
capacity for discussion, ability to take decisions, qualities of leadership,
etc. which are also essential for a Judicial Officer."
33. In Ashok Kumar (supra), the candidates participating in the
selection process participated without any demur. After
participating in the selection process, they turned around to
question the result once they were declared to be
unsuccessful. In such context, it was held, it was not open
to such unsuccessful candidates to question the selection
process.
34. Madan Lal (supra) noted a previous authority of the Supreme
Court and held that, once an unsuccessful candidate
participated in the selection process without demur, after
participating the written examination and is sent up with the
interview after obtaining qualifying marks and does not
secure the qualifying marks in the interview, should not be
allowed to turn around to challenge the selection process.
35. In the facts of the present case, all the petitioners
participated in the selection process for the post of Assistant
Public Prosecutor. It is rightly pointed out on behalf of the
State that by and large the job portfolio of an Assistant
Public Prosecutor is to assist the Court in conducting all
criminal cases both at the trial as also on other judicial
matters including bail petitions. The ability to address the
Court is required. Personality of the candidates, their
alertness, resourcefulness, dependability, capacity for
discussion, ability to take decision, qualities of leadership,
overall intellectual and personal qualities are aspects which
are relevant, can and should be assessed in an interview. An
Assistant Public Prosecutor needs to possess not only
academic knowledge but also requisite personality. An ideal
amalgamation of the two would result in an appropriate
choice.
36. That there would be a cut off marks prescribed for the
personality test in the selection process was made known to
the candidates through public announcement by the Public
Service Commission which the Public Service Commission in
its wisdom, apart from issuing necessary advertisements in
the newspapers hosted it in its website, well before the
commencement of the first stage of the selection process
namely the written examination. The candidates were aware
that, there would be prescription for cut off marks both at
the written examination stage as also at the personality test.
The writ petitioners participated in the selection process
without demur and with the knowledge that there would be
prescription of a cut off mark both at the written
examination as also in the personality test. Rules of the
game were not changed subsequent to its commencement.
Grievances ventilated are without any substance.
37. All the writ petitioners were unsuccessful at the personality
test.
38. In such circumstances, we find no merit in the present writ
petitions.
39. WP.ST 66 of 2017, WP.ST 42 of 2017, WP.ST 59 of 2017,
WP.ST 60 of 2017, WP.ST 61 of 2017, WP.ST 62 of 2017 are
dismissed. All connected applications thereto are disposed
of.
(Debangsu Basak,J.)
40. I Agree.
(Md. Shabbar Rashidi, J.)
(AD/Dd)
