Calcutta High Court (Appellete Side)
Ct. 8 The West Bengal Board Of ... vs Shampa Ghorui & Ors on 13 July, 2023
MAT 460 of 2023
Item-2. CAN 1 of 2023
13-07-2023
CAN 2 of 2023
sg
Ct. 8 The West Bengal Board of Primary Education & Anr.
Versus
Shampa Ghorui & Ors.
Mr. Subir Sanyal, Adv.
Mr. Saikat Banerjee, Adv.
Mr. Ratul Biswas, Adv.
Mr. Ksushik Chowdhury, Adv.
...for the appellant Board
Mr. Dibyendu Chatterjee, Adv.
Mr. Pritam Majumdar, Adv.
Mr. Rahul Deb Goenka, Adv.
Mr. Soumish Ghosh, Adv.
...for the writ petitioner/respondent
CAN 1 of 2023 is an application for condonation of delay.
However, the Stamp Reporter in its report dated 24th March,
2023 has indicated that the appeal is filed within time.
CAN 1 of 2023 is, accordingly, disposed of by recording
that the appeal is within time.
The appeal is arising out of an order passed by the learned
Single Judge on 9th February, 2023 directing the West Bengal
Board of Primary Education to consider the candidature of the
writ petitioner without canceling it and to take steps for
recommendation as it is found from the affidavit that she got
higher marks than the last recommended candidate, if she is
otherwise eligible. The timeframe of three weeks was given to
make such recommendation from the date of communication of
the said order.
The appellant is aggrieved by the said order. The appellant
has preferred the instant appeal on 10th April, 2023.
We have been informed by Mr. Subir Sanyal, learned
Counsel representing the appellant Board that an contempt
application has been filed for non-implementation of the order
dated 9th February, 2023 and the same is still pending. In the said
contempt application, the President of the Board was directed to
appear personally on 18th July, 2023.
The facts of the case reveal that she was declared as PH
Category candidate by the West Bengal Board of Primary
Education and she had deposited Rs.50/- on account of fees in
respect of recruitment process of 2016. For a PH Category
candidate, the amount to be deposited is Rs.50/- and it shows
that she apparently had accepted such position. She, however,
later on contended that such mistake was due to inadvertence of
the person working in the local computer centre. Undoubtedly
she was present at the time of making entry in the computer
declaring her category and depending on such declaration, she
was directed to make payment of application fees. If she were to
be considered as a PH candidate, then she had qualified as she
had already secured 84%. However, she did not produce any
physical handicapped certificate which is obvious as she
contended that she never declared herself as PH Category
candidate. Prima facie, it appears that she is not a PH candidate
as the admit card issued by the West Bengal Board of Primary
Education does not refer to the writ petitioner as a PH candidate.
However, the problem lies elsewhere. If we assume for the sake
of argument that she is entitled to a General Category, then
indisputably she is required to get 90% marks.
Mr. Dibyendu Chatterjee, learned Counsel representing the
writ petitioner has candidly submitted that there is a shortfall in
this regard.
The question arises when there is an admitted shortfall,
whether the Court can direct recommendation of her name.
The learned Counsel for the parties have referred to a
judgment of a coordinate Bench in MAT 1594 of 2018 (West
Bengal Board of Primary Education & Ors. vs. Prativa
Mondal) particularly pages 63 and 64 wherefrom it appears that
a direction was given to the Board to award marks to all the
examinees irrespective of whether they have attempted the
wrong questions/options in the key answers of JGB Question
Booklet series or not.
In the supplementary affidavit filed on behalf of the writ
petitioner, the writ petitioner has stated that the writ petitioner is
entitled to get additional six marks in respect of wrong answer
keys provided by the respondent Board in six questions. The said
affidavit was affirmed on 6th February, 2023 prior to the order
passed by the coordinate Bench.
Mr. Sanyal has fairly submitted that giving effect to the
direction of the Hon'ble Division Bench shall take sometime and
only on examination of the entire matter, a fresh list may be
required to be prepared.
Moreover, the Hon'ble Division Bench while disposing of
the matter has observed that:
"This Order shall not however affect steps taken so far by
the Board or, already in the process of being taken by the
Board, in respect of TET 2014".
We must record that the order of the Hon'ble Division
Bench was subsequent to the impugned order and accordingly,
the learned Single Judge could not have the opportunity to
consider this aspect of the matter.
In view of the aforesaid, no recommendation could be
made for the petitioner in respect of TET 2014. The candidature
of the writ petitioner may be considered for future recruitment
process in the event of her making an application by considering
the age bar and subject to fulfillment of other criteria.
The appeal succeeds. The impugned judgment is set aside.
The application for stay being CAN 2 of 2023 also stands
disposed of.
Urgent photostat certified copy of this order, if applied for,
be supplied to the parties upon compliance of all requisite
formalities.
(Uday Kumar, J.) (Soumen Sen, J.)
