Calcutta High Court (Appellete Side)
Ramesh Malick & Ors vs The State Of West Bengal & Ors on 12 December, 2023
Author: Amrita Sinha
Bench: Amrita Sinha
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present :- Hon'ble Justice Amrita Sinha
WPA 7907 of 2019
Ramesh Malick & Ors.
Vs.
The State of West Bengal & Ors.
With
IA No. CAN 1 of 2022, CAN 3 of 2023, CAN 4 of 2023,
CAN 5 of 2023, CAN 7 of 2023, CAN 8 of 2023, CAN 9
Of 2023 & CAN 10 of 2023
With
WPA 9979 of 2022
Soumen Nandy
vs.
The State of West Bengal & Ors.
With
IA No. CAN 1 of 2023, CAN 2 of 2023,
CAN 7 of 2023 & CAN 8 of 2023
For the writ petitioners :- Mr. Sudipta Dasgupta, Adv.
Mr. Bikram Banerjee, Adv.
Mr. Arka Nandi, Adv.
Ms. Dipa Acharyya, Adv.
Mr. Sutirtha Nayak, Adv.
(In WPA 7607 of 2019)
For the writ petitioner :- Mr. Firdous Samim, Adv.
Ms. Gopa Biswas, Adv.
Ms. Payel Shome, Adv.
Ms. Sampriti Saha, Adv.
Ms. Purba Mukherjee, Adv.
Mr. Avijit Kar, Adv.
Ms. Mohona Das, Adv.
(In WPA 9979 of 2022)
For the applicants :- Mr. Saptansu Basu, Sr. Adv.
Mr. Ayan Banerjee, Adv.
(In CAN 9 & 10 of 2023
in WPA 7907 of 2019)
Mr. Tarunjyoti Tewari, Adv.
(In CAN 8 of 2023 in
WPA 7907 of 2019)
For the added respondent :- Mr. Santanu Kumar Mitra, Adv.
No. 11 Mr. Subhabrata Das, Adv.
Mr. Amartya Pal, Adv.
(In WPA 7907 of 2019)
For Kuntal Ghosh :- Mr. Ayan Poddar, Adv.
(In CAN 7 of 2023 in
WPA 9979 of 2022)
For the CBI :- Mr. Arijit Majumdar, Adv.
(In both the matters)
For the State :- Mr. Sirsanya Bandopadhyay, Jr. SC.
Mr. Arka Kumar Nag, Adv.
(In both the matters)
For the Enforcement :- Mr. Dhiraj Kumar Trivedi, Ld. DSGI
Directorate Mr. Samrat Goswami, Adv.
(In both the matters)
For WBBPE :- Mr. L.K. Gupta, Sr. Adv.
Mr. Saikat Banerjee, Adv.
Mr. Ratul Biswas, Adv.
Mr. Kausik Chowdhury, Adv.
Heard on :- 30.11.2023
Judgment on :- 12.12.2023
Amrita Sinha, J.:-
CAN 9 of 2023 is an application for addition of parties filed by ninety
applicants claiming themselves to be prejudicially affected by the order passed
by this Bench on 10th October, 2023 in WPA 7907 of 2019 (Ramesh Malick &
Ors. vs. State of West Bengal & Ors.) with WPA 9979 of 2022 (Soumen Nandy
vs. State of West Bengal & Ors.).
The aforesaid order was passed relying upon a report in the form of
affidavit filed by the West Bengal Board of Primary Education with a finding
that ninety-four candidates did not qualify in TET 2014 but were issued
appointment letter. The Board arrived at the aforesaid finding after verification
of all records. The said ninety-four candidates were afforded opportunity to
produce documents in support of their educational qualification, but as the
said candidates were unable to produce any document in support of their TET
qualification, the Board found them to be ineligible for appointment.
Under such circumstances, the Court directed the respective District
Primary Schools Councils to cancel the letter of appointment issued in favour
of the ninety-four candidates who did not possess the requisite qualification for
being appointed as primary school teachers.
Challenging the order passed by this Bench the applicants, being found
ineligible, preferred an intra court appeal before the Hon'ble Division Bench
being MAT 210 of 2023 with CAN 1 of 2023 and CAN 2 of 2023 which was
considered and disposed of on 18th October, 2023. The Hon'ble Division Bench
observed that the basic document, that is, the TET certificate was not annexed
or disclosed in the petition. Accordingly, the Court was not inclined to interfere
with the order passed by this Bench. However, the Hon'ble Division Bench
permitted the said candidates to approach this Bench for modification of the
order with convincing materials.
On the strength of the order passed by the Hon'ble Division Bench, the
application for addition of party has been filed being CAN 9 of 2023 along with
a further application being CAN 10 of 2023 praying for vacating and/or varying
and/or modification of the order dated 10th October, 2023.
Learned senior counsel representing the applicants submits that in terms
of the order passed by this Court on 10th October, 2023, the Primary School
Council has cancelled the letter of appointment issued in favour of the
applicants and terminated their service.
It has been submitted that there has been no suppression of material
facts by the applicants in the recruitment process. The applicants produced all
the educational certificates in support of their candidature; relying upon which
letter of appointment was issued. The applicants are in service for a
considerable period of time, that is, from the year 2017 to 2023 and by this
time they have acquired a permanent status in service. The Council could not
have terminated their service without initiating any disciplinary proceeding
against them.
It has been submitted that similar order passed by a Coordinate Bench of
this Court, whereby appointment of 269 candidates were set aside, has been
stayed by the order of the Hon'ble Supreme Court and, accordingly, the order
passed by this Bench on 10th October, 2023 ought to be vacated/ modified/
varied by the Court.
The submissions of the applicants have been strongly opposed by the
learned advocates representing the writ petitioners and the learned advocate
representing the applicants in CAN 8 of 2023 in WPA 7907 of 2019.
It has been submitted that as per the recruitment notice, the eligibility
criteria for being appointed as primary school teacher requires that the
candidate should possess TET qualification. None of the applicants possess the
TET qualification and, as such, they are ineligible for being appointed as
primary school teacher. Any candidate who does not possess the eligibility
criteria cannot be appointed and the termination of their appointment has been
rightly made. Without the requisite qualification, the candidates cannot hold on
to the post of primary school teacher.
It has been contended that there is no requirement of conducting any
disciplinary proceeding for terminating the ineligible candidates from service as
the initial appointment was bad, accordingly, the said candidates never
acquired any status in service and, as such, there is no requirement of
initiating separate proceeding against them for their termination.
It has been submitted that issuance of the notice of termination of
service gives rise to a fresh cause of action and the applicants ought to have
filed separate writ petition challenging the same.
Prayer has been made to dismiss the applications.
Learned senior counsel representing the West Bengal Board of Primary
Education submits that on detection that the applicants did not possess the
requisite educational qualification for being appointed as primary school
teachers, the Board recommended termination of their service.
I have heard and considered the detailed rival submissions made on
behalf of all the parties.
The appointment notification for primary teachers dated 26th September,
2016 prescribes the qualification for recruitment in the post of Assistant
Teachers in primary schools. The eligibility criteria mention that the candidate
should be TET qualified. The application form was available online and the
mode of submitting the application form was also online. Marks obtained in the
TET examination are required for computation of the total marks obtained by
an intending candidate for securing a position in the merit list.
Admittedly, the applicants are not TET qualified and do not possess the
TET certificate. Despite not possessing the requisite qualification, the
applicants were favoured with letter of appointment. Writ petitions are pending
before this Court challenging such illegal appointments and investigation by
central investigating agencies are undergoing to identify the culprits involved in
such illegal act.
It has been strenuously argued that as the applicants are in service for
nearly six years and have acquired a permanent status in service, there is no
scope to terminate them without initiating a regular disciplinary proceeding. It
has also been painstakingly submitted that the applicants were no way
responsible in misleading the appointing authority nor did they suppress any
material fact to obtain the letter of appointment. There is no fault in the part of
the applicants and there was no role of the applicants in issuing the
appointment letter in their favour. The applicants disclosed whatever
educational qualification and certificate they possessed before the selection
committee and the committee found the applicants eligible for appointment,
hence, issued appointment letter in their favour.
The Hon'ble Division Bench order relying upon which the instant
application for addition of party has been filed clearly mentions that, it would
be open for the applicants to approach the learned Single Judge for
modification of the order with convincing materials. Having regard to the fact
that the basic document i.e. the TET certificate was not disclosed, the Hon'ble
Division Bench declined to interfere with the order passed by this Bench.
In the instant application the TET certificate of the applicants has not
been disclosed. The very fact of not disclosing / annexing the TET certificate
implies that the applicants do not possess the same. In fact, had the applicants
possessed the said certificate, they would have certainly produced the same
before the Hon'ble Division Bench and also at the time of verification of
testimonials before the Board of Primary Education. As the applicants failed to
produce the relevant educational certificates in terms of the recruitment notice,
accordingly, the Board recommended termination of their service.
On this ground alone the applications could have been rejected; but as
detailed submissions have been advanced by the applicants seeking
modification/variation of the order, accordingly, I propose to deal with the said
submissions herein below.
Let me consider whether a regular disciplinary proceeding ought to have
been initiated for terminating the applicants from service and whether the
ineligible applicants acquired a permanent status in service as they have
served for nearly six years.
The very basic concept in service jurisprudence is that appointment in a
public recruitment is made after conducting a regular selection process.
Recruitment notice is published inviting applications from intending candidates
mentioning the eligibility criteria and the mode of selection. A job aspirant, only
if he/ she possesses the requisite eligibility criteria, can apply for the job. Any
candidate who does not possess the minimum eligibility criteria does not have
any right to apply for the same. The selection committee, after conducting
competitive examination and after verification of all educational testimonials,
selects the best available candidate. The very idea of conducting public
examination is to test the comparative merit of eligible candidates and
thereafter select the best ones.
In the instant case, the applicants, on account of not possessing the TET
qualification, were ineligible to apply for the job at the very first place. The
application procedure was conducted online. The application could have been
accepted by the online system only after the applicant disclose that he/ she
possessed the TET qualification. The application form could not have been
accepted online if the candidate had not disclosed that he/ she was TET
qualified.
The submission of the applicants that they did not suppress material
fact, accordingly, does not appear to be correct. On the contrary, it appears
that the applicants disclosed incorrect information in the application form for
submitting the same online and thereafter somehow managed to procure the
appointment letter despite being ineligible for appointment. Deliberate
incorporation of wrong or incorrect data in the application form thereby
misrepresenting facts and figures amounts to fraud. It is settled law that fraud
vitiates everything as it goes to the very root of the issue.
Does an ineligible candidate acquire any status in service even if he/she
served for six years? In the opinion of the Court, the answer would be an
emphatic no. Any person who is ineligible for appointment on account of not
possessing the requisite qualification does not have any right to be appointed,
far less, continue in service. The initial appointment of an ineligible candidate
is bad and void ab initio. The same is a nullity. No legal right accrues in favour
of an employee who is appointed de hors the provisions of law. Permitting an
ineligible candidate to hold on to the post and remain in service is contrary to
the principles of Articles 14 and 16 of the Constitution of India.
If ineligible candidates are appointed and permitted to remain in service,
then the very purpose and object of conducting a public examination to select
the most deserving candidate is frustrated. The entire exercise of conducting a
regular selection process becomes futile. Permitting ineligible candidates to
remain in service on sympathetic ground will be absolute disservice to the
nation and certainly impermissible in law. At a stage when public employment
is far and few between, there is no scope for favouritism or nepotism. The
recruitment process ought to be absolutely transparent so that the
participating candidates may get to assess their individual merit and they also
get to know exactly the position where they stand in comparison to a fellow job
aspirant.
Any appointment given in the absence of minimum requisite qualification
is an incurable defect and the same is liable to be rectified the moment it is
detected. An employee cannot claim to hold any status in service, far less,
permanent status if it is later detected that the initial appointment was bad. In
such a situation there is no requirement of initiating any disciplinary
proceeding by permitting the employee to remain in service. An ineligible
candidate cannot be permitted to remain in service even for a single moment.
The illegality once detected is liable to be rectified forthwith.
In Pramod Kumar vs. UP Secondary Education Services Commission
& Ors. reported in (2008) 7 SCC 153 the Hon'ble Supreme Court inter alia
held that if the essential educational qualification for recruitment to a post is
not satisfied, ordinarily the same cannot be condoned. Such an act cannot be
ratified. An appointment which is contrary to the statute/statutory rules would
be void in law, a nullity. The Court further held that a candidate must establish
existence of a legal right in himself and a corresponding legal duty in the State.
If he did not possess the requisite qualification to hold a post, he could not
have any legal right to continue. It is, therefore, immaterial whether any
proceeding is initiated against him or not.
In National Fertilizer Limited vs. Somvir Singh reported in (2006) 5
SCC 493 it was inter alia held that if appointment is made without following
the Rules, the same being a nullity, the question of confirming the employees
would not arise. Adherence to Articles 14 and 16 of the Constitution is a must
in the process of public employment.
In State of Bihar & Ors. vs. Kirti Narayan Prasad reported in 2018
SCC Online SC 2615 the Court held that the employees whose appointment
was illegal and void ab initio cannot be said to be civil servants of the State and
there is no requirement of initiating disciplinary proceedings against them for
terminating their service.
In the case at hand, the Court is not convinced that the applicants
possess the requisite educational qualification for appointment as primary
school teachers in terms of the recruitment notice and, as such, the Court
declines to allow the applications filed by them seeking addition and
modification/ variation of the subject order.
With regard to the submission that the Hon'ble Supreme Court was
pleased to stay the order passed by a Coordinate Bench terminating the service
of similarly placed 269 primary school teachers, I am of the opinion that the
instant case does not lie in the same footing. Here, the Court did not pass the
order of termination. The Council, after permitting the applicants to produce
educational certificates, detected that the applicants did not possess TET
qualification. The Council recommended termination of ineligible candidates
after observing the principles of natural justice. Had the applicants not been
given opportunity of hearing or the applicants not been given chance to
produce testimonials in support of their educational qualification, then the
case would have been otherwise. As it appears that, the order of termination
was rightly issued on detection of the ineligibility of the applicants to be
appointed as primary school teachers, accordingly, the Court refrains from
modifying/ vacating/ varying the order as sought for by the applicants.
CAN 9 and CAN 10 of 2023 in WPA 7907 of 2019, accordingly, stands
dismissed.
Urgent certified photocopy of this judgment, if applied for, be supplied to
the parties or their advocates on record expeditiously on compliance of usual
legal formalities.
(Amrita Sinha, J.)
