Calcutta High Court (Appellete Side)

Priyanka Kayal And Ors vs State Of West Bengal And Ors on 20 February, 2023

                                     1


                     IN THE HIGH COURT AT CALCUTTA

                       (Civil Appellate Jurisdiction)

                            APPELLATE SIDE

Present:

The Hon'ble Justice Subrata Talukdar

And

The Hon'ble Justice Supratim Bhattacharya



                             MAT 701 of 2021

                                   With

                           IA No. CAN 1 of 2021

                                   With

                           IA No. CAN 3 of 2022

                                   With

                           IA No. CAN 4 of 2022

                                   With

                           IA No. CAN 5 of 2022

                         Priyanka Kayal and ors.

                                  Versus

                       State of West Bengal and Ors.



For the Appellants        : Mr. Anindya Bose

                           Mr. Diptendu Mandal

                           Mr. Nikhil Kumar Gupta

                           Mr. Mridul Biswas
                                          2


For the Board            :    Mr. L. K. Gupta

                              Mr. Ratul Biswas

For the State                : Mr. Supriyo Chattopadhyay

                               Ms. Iti Datta

                               Mr. Sabyasachi Mondal

For the applicant in         : Mr. Soumik Ganguli

CAN 3 of 2022,

CAN 4 of 2022.



Heard On                     : 01.02.2023

Judgement Delivered On       : 20.02.2023



Supratim Bhattacharya, J.: Under challenge in this appeal is the

Judgment and Order dated 13.07.2021 passed in the writ petition

being WPA 9895 of 2021 with CAN 1 of 2021.


      The appellants in the instant appeal, who are 70 in number,

were the writ petitioners, whereas the respondents in the instant

appeal were also the respondents to the writ petition.

The appellants have preferred the instant appeal being

aggrieved by and dissatisfied with the order of rejection of the

prayer for a writ of and/or in the nature of mandamus by cancelling

and/ or quashing and setting aside the entire selection process

initiated by the West Bengal Board of Primary Education

(hereinafter referred to as the Board) for recruitment to the posts of

Assistant Teachers in Primary Schools in accordance with the

Notification dated 23.12.2020 issued by the Board.

The crux of this appeal is as to whether the Order passed by

the Hon'ble Single Bench in the writ petition being No. WPA 9895 of

2021 is in accordance with law or not.

Learned Counsel appearing on behalf of the appellants

has submitted that the appellants were successful in the Teachers

Eligibility Test (TET), 2014 and are possessing the requisite training

as well as qualification to be appointed as teachers in primary

schools. He has further submitted that the appellants having the

required qualification and being within the prescribed age as per

the Notification dated 23.12.2020 issued by the Board, applied for

the posts of primary school teachers in respect of the State-wide

vacancies of 16,500. It has also been contended that the Board

while conducting the selection process has not followed the

provisions of the West Bengal Primary School Teachers Recruitment

Rules, 2016 specifically Rule 8 Sub-rule 5 and Rule 10 thereof.

It has been alleged that one Susanta Dey and another

namely, Chiranjeet Chatterjee, despite obtaining lower marks have

been included in the merit list in preference to the candidates

having higher marks. It has also been alleged that one Moqbul

Biswas and another being Tutun Bhattacharya, not being para

teachers, have been included in the merit list under the category of

para teachers. It has further been alleged that one Amit Ghosh who

is not an ex-serviceman has been given place in the merit list under

the category of ex-servicemen.

It has been argued on behalf of the appellants/writ petitioners

that the Board has not published the marks obtained by the

candidates in respect of each and every category. Learned Counsel

appearing on behalf of the appellants has thus prayed for setting

aside the order of the Hon'ble Single Bench, relying upon the points

as discussed hereinabove.

Learned Counsel appearing on behalf of the respondents has

submitted that the writ petition was dismissed on the ground that

the same had no factual basis to make up a case of discrimination.

It has further been stated that as per the direction of the Hon'ble

Division Bench, on equitable consideration, the respondents have

furnished the marks obtained by the persons named in the writ

petition. It has further been stated that the allegation on behalf of

the appellants is that some candidates have been appointed who

have obtained lesser academic marks than some of the petitioners.

In this regard it has been submitted on behalf of the Board that as

per Rule 8 (3) of the Recruitment Rules not only the academic

marks are taken into consideration but also the aggregate of marks

obtained from all categories (see chart below). In this respect it has

been stated that during preparation of the panel for appointment of

candidates only 15 marks are allotted for the marks obtained by the

candidates in the categories pertaining to academic qualification,

while 35 marks are distributed in respect of other categories which

is laid down under Rule 8 of the West Bengal Primary Teachers

Recruitment Rules, 2016. Rule 8 (supra) reads as follows:

"8. Prooedures of selection:- (1) The Selec1ion Committee shall make

prima facie scrutiny of the duly filled application form submitted by the

candidates having qualification as mentioned in rule 6.

(2) The Selection Committee shall call all qualified candidates as mentioned ins11b-rule (I),for the viva-voce or interview and Aptitude Test. The performance of the candidates who will be called for viva-vcce or interview and Aptitude Test shall be assessed separately by the Interview Board formed for the specific purpose.

Academic qualifications, training, performance in the TET, Extra Curricular

activities and performance in viva-voce or interview and Aptitude test, shall be

computed in the manner as mentioned in Table A below:

Table A

Sl. Item for evaluation Maximum No. marks

(i) Madhyamik pass under the West Bengal Board of 05 Secondary Education or its equivalent

(ii) Higher Secondary pass under the West Bengal 10 Council of Higher Secondary Education or its equivalent

Note 1.- The percent age of marks obtained by the candidate in the Madhyamik Examination or its equivalent excluding additional marks, if any, shall be reduced proportionately to marks obtained out of 5.

Note 2.- Thc percentage of marks obtained by the candidate in the Higher Secondary Madhyamik Examination or its equivalent excluding additional marks, if any, shall be reduced proportionately to marks obtained out of 1O.

Note 3.- The percentage of marks obtained by the candidate in the relevant Teacher Training shall be reduced proportionately to marks obtained out of 15.

Note 4.- The percentage of marks obtained by the candidate in the TET Examination shall be reduced proportionately to marks obtained out of

15.

Note 5.- Marks out of maximum five (5) Marks shall be awarded to the candidates in the Extra Curriculum Activities on the following Extra Curriculum Activities. In case of candidates applying for the earmarked posts as mentioned in Note 7 to Rule 6, marks out of maximum five (5) shall be awarded on teaching experience:-

For Non-earmarked Vacancies For Earmarked Vacancies

1 Games and Sports 1 Teaching Experience below 4 years 1 2 National Cadet Corps (NCC) 1 Teaching Experience from 4 years to below 6 years. 2 3 Arts and Literature 1 Teaching Experience from 6 years to below 8 years. 3 4 Performing Art (Drama) 1 Teaching Experience from 8 years to below 10 4 years.

( 4) The marks for candidates applying for non-earmarkcd vacancies shall be allotted as follows:-

(a) a certificate of representation in the State/National/lntemational level Games or Sports issued by the Competent State Govt. or Central Government Authorities or agencies, shall be awarded (01) mark;

(b) Minimum 'A' certificate of National Cadet Corps (NCC) shall be awarded {01) marks;

( c) a certificate that any essay, story. short story, drama, poetry written by the candidate selected for publication in State Level or National Newspaper or Magazine (Certificate along with a copy of publication shall be submitted), shall be awarded (01) mark;

(d} a certificate that the candidate bas obtained proficiency in Performing an (Drama) issued by National School of Drama or by the State Government or Central Government shall be awarded (01) mark;

(e} a certificate that the candidate has obtained proficiency in Music or Instrumental Music issued by the State Government or Central Government shall be awarded (01) mark.

(5) ....... "

It is thus argued that even if one candidate obtains less

academic marks but scores better overall marks taking into account

the aggregate marks obtained from all categories, such candidate is

entitled to be selected. Relying on the aforesaid submissions,

Learned Counsel appearing on behalf of the respondents has prayed

for dismissal of the instant appeal.

The Hon'ble Single Bench while passing the impugned order

has elaborately discussed the merits and demerits of the aggregate

marking system (supra). It has been opined by the Hon'ble Single

Bench that the writ petitioners have alleged that one Susanta Dey

and one Chiranjit Chatterjee who have been named in the merit list

have obtained lesser marks than some of the writ petitioners but, in

this regard it has not been stated specifically as to in respect of

whom or which candidate/candidates the said Susanta Dey and

Chiranjit Chatterjee have obtained lesser marks. Additionally,

neither the said Susanta Dey nor the said Chiranjit Chatterjee have

been made parties to the writ application though there are

allegations against the said persons.

It has further been opined by the Hon'ble Single Bench that

the petitioners have preferred the instant writ application in a very

casual manner and the material facts have not been stated and

necessary particulars are wholly absent. Relying on the

aforementioned discussion, the Hon'ble Single Bench has been

pleased to dismiss the aforesaid writ application and has imposed

costs of Rs. 2000/- (Rs Two Thousand only) to be paid by the

petitioners in favour of the High Court Legal Services Committee.

Through the impugned judgment it has also been stated by

the Hon'ble Single Bench that the allegation that one Mokbul

Biswas whose name features in the merit list as a para-teacher is

not at all a para-teacher and, it has also not been pleaded as to how

many of the 70 petitioners are para-teachers and who are they and

how they claim appointment in place of one Mokbul Biswas. It has

also been opined that the said Mokbul Biswas has also not been

impleaded as a party respondent to the writ application.

Thus, from the aforementioned discussion it reveals that the

petitioners, who are 70 in number, have preferred the writ

application seeking redressal from the Hon'ble Court on the ground

alleging that some of the candidates whose names feature in the

merit list have obtained lesser academic marks than the petitioners

and also alleging that candidates who are not para-teachers have

been included in the merit list showing them as para-teachers and

it has been further alleged that candidates who are not ex-

servicemen have been included in the merit list showing them as

ex-servicemen.

It is evident that none of the candidates against whom there

are allegations ranging from getting lesser marks than the

petitioners or, featuring in the merit list as para teachers or ex-

servicemen, have been impleaded as parties to the writ petition. It is

the law of the land that a person against whom an action is sought

to be taken ought to be given the opportunity of hearing and in the

instant proceeding the said persons/ candidates against whom the

petitioners have brought their allegations ought to have been

impleaded as parties which has not been done. The writ petition is

therefore correctly liable to be dismissed for non-joinder of parties.

In this regard this Court intends to cite the judgment passed by the

Hon'ble Apex Court and published in (2014) 1 SCC 144, State of

Rajasthan vs Ucchab Lal Chhanwal;

"9. There can be no scintilla of doubt that the finding recorded by the High Court pertaining to the circular is absolutely correct and unassailable. The said circular could not have been placed reliance upon by the State to contend that the respondents could have been deprived of promotion. However, the said circular is totally inconsequential for the present case, for what we are going to hold.

10. Though some argument was canvassed with regard to the relevance of the punishment of censure, yet the said aspect need not be adverted to. On a perusal of the writ petition, the order of the writ court and that of the Division Bench we notice that there were specific averments that juniors placed at serial numbers 9, 10 and 11 in gradation list had been promoted

vide order dated 20.8.1997. They have not been arrayed as parties. Needless to emphasize, in the event the order passed by the High Court is affirmed, the persons who are seniors to the respondents in the promotional cadre are bound to become junior regard being had to their seniority position in the feeder cadre. It is well settled in law that no order can be passed behind the back of the person that shall adversely affect him.

11. In this context, we may refer with profit to the decision in Vijay Kumar Kaul v. Union of India wherein it has been held thus(SCC p.619 para 36): -

"36. Another aspect needs to be highlighted. Neither before the Tribunal nor before the High Court, Parveen Kumar and others were arrayed as parties. There is no dispute over the factum that they are senior to the appellants and have been conferred the benefit of promotion to the higher posts. In their absence, if any direction is issued for fixation of seniority, that is likely to jeopardise their interest. When they have not been impleaded as parties such a relief is difficult to grant."

12. After so stating this Court referred to the decision in Indu Shekhar Singh v. State of U.P. wherein it has been held thus: ( Vijay Kumar Kaul case, SCC p.620, paras 37-38) - "

37...56. There is another aspect of the matter. The appellants herein were not joined as parties in the writ petition filed by the respondents. In their absence, the High Court could not have determined the question of inter se seniority.( Indu Shekhar Singh case, SCC p.151, para 56)"

38... In Public Service Commission v. Mamta Bisht this Court while dealing with the concept of necessary parties and the effect of non- impleadment of such a party in the matter when the selection process is assailed observed thus: (SCC pp. 207-08, paras 9-10) "

9. ... in Udit Narain Singh Malpaharia v. Board of Revenue wherein the Court has explained the distinction between necessary party, proper party and pro forma party and further held that if a person who is likely to suffer from the order of the court and has not been impleaded as a party has a

right to ignore the said order as it has been passed in violation of the principles of natural justice. More so, proviso to Order 1 Rule 9 of the Code of Civil Procedure, 1908 (hereinafter called 'CPC') provides that non-joinder of necessary party be fatal. Undoubtedly, provisions of CPC are not applicable in writ jurisdiction by virtue of the provision of Section 141 CPC but the principles enshrined therein are applicable. (Vide Gulabchand Chhotalal Parikh v. State of Gujarat, Babubhai Muljibhai Patel v. Nandlal Khodidas Barot and Sarguja Transport Service v. STAT.)

10. In Prabodh Verma v. State of U.P. and Tridip Kumar Dingal v. State of W.B., it has been held that if a person challenges the selection process, successful candidates or at least some of them are necessary parties.

13. In J.S. Yadav v. State of Uttar Pradesh it has been held as follows: (SCC p.583, para 31)

"31. No order can be passed behind the back of a person adversely affecting him and such an order if passed, is liable to be ignored being not binding on such a party as the same has been passed in violation of the principles of

natural justice." "

The petitioners have also not produced before the Hon'ble

Single Bench the specific particulars in respect of which they claim

to be prejudicially affected.

In the backdrop of the aforesaid discussion, this Court finds

no infirmity in the Judgement and Order of the Hon'ble Single

Bench. The Order impugned dated 13.07.2021 deserves no

interference.

MAT 701 of 2021 with IA No. CAN 1 of 2021 with IA No.

CAN 3 of 2022 with IA No. CAN 4 of 2022 with IA No. CAN 5 of

2022 stand accordingly dismissed.

Parties shall be entitled to act on the basis of a server copy of