Calcutta High Court (Appellete Side)

Hasanur Jaman & Ors vs The State Of West Bengal & Ors on 2 March, 2023

02.03.2023

Court No.18 P.Jana W.P.A. 4294 of 2023

Hasanur Jaman & Ors.

-Vs-

The State of West Bengal & Ors.

Mr. Pratik Dhar, Sr. Advocate Mr. Anindya Lahiri, Mr. Samrat Dey Paul, ......for the petitioners.

Mr. A.K. Nag.

... for the State.

Dr. Sutanu Kumar Patra, Ms. Supriya Dubey, ...for the WBCSSC.

Ms. Koyeli Bhattacharyya, ... for the WBBSE.

The West Bengal Central School Service

Commission in compliance with the order dated

February 08, 2023 and the order dated February

02, 2023 passed by this Court in WPA 25380 of

2022 (SUBHAMAY BHUNIA & ORS. vs. THE

STATE OF WEST BENGAL & ORS.) published a

notice bearing Memo No. 226/L-

6594/CSSC/ESTT/2023 dated February 13,

2023 whereby and whereunder the Commission

had proposed to exercise its power under Rule

17 of the West Bengal School Service

Commission (Selection for Appointment to

the Posts of Teachers for classes IX and X in

Secondary and Higher Secondary Schools)

Rules, 2016(hereinafter referred to as the 'said

Rules of 2016' in short) to withdraw and/or

cancel the recommendations of 618 (Six

hundred eighteen) candidates appointed in the

post of Assistant Teachers in relation with the

1st SLST, 2016.

Some of the teachers, whose names were so

notified, had challenged the validity and legality

of the said notice in WPA 2967 of 2023

(GOPINATH BHANJA vs. THE STATE OF WEST

BENGAL & ORS.). This Court by the judgment

and order dated February 08, 2023 dismissed

the said writ petition.

An appeal has been taken out against the

aforesaid order being MAT 244 of 2023

(SOUMEN KUMAR DAS & ORS. vs. STATE OF

WEST BENGAL & ORS.).

The Hon'ble Division Bench on March 01,

2023 while directing the parties to exchange

their affidavits observed as follows:-

"To the mind of this Court, the arguments advanced by the appellants relying on Section 65-B of the Evidence Act and Rule 18(5)(d) of the West Bengal School Service Commission (Selection of Persons for Appointment to the post of Non-Teaching Staff) Rules, 2009 (for short, the 2009 Rules) are, prima facie, not adequate to overwhelm the reasoning reflected from the Order dated 8th February, 2023 in WPA 2967 of 2023(supra) holding, inter alia, that the appellants have been unable to plead a cause in support of their prayer for a declaratory relief since they are not claiming that the OMR sheets uploaded on the Website of the Commission against their names and roll numbers are their OMR sheets. Further, with reference to Rule 18(5)(d) (supra) of the 2009 Rules, it is trite

that the Commission is not devoid of jurisdiction to take steps in the process of identifying the source and nature of the misrepresentation attached to the recruitment process.

Similarly, the requirement of proof under Section 65-B of the Evidence Act, having regard to the particular nature of proceedings, is a requirement which can be satisfied at an appropriate stage and is not fatal but curable(see In Re: Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal and others; (2020)7 SCC 1, at Paragraphs 51, 52 and 53) In the light of the aforesaid discussion, although Leave to Appeal stands granted and MAT 244 of 2023 shall be heard, however no interim reliefs can be granted.

Let Affidavit-in-Opposition be filed within four weeks. Reply two weeks thereafter.

Liberty to mention."

Another appeal against the order dated

February 08, 2023 passed in said WPA 25380 of

2022 being MAT 245 of 2023 (ARUP SARKAR

& ORS. vs. SUBHAMAY BHUNIA & ORS.) along

with two other appeals being MAT 85 of

2023(GOPINATH BHANJA & ORS. vs. SETAB

UDDIN & ORS.) and MAT 124 of

2023(HAFIZUR RAHAMAN & ORS. vs. SETAB

UDDIN) directed against the orders passed by

the Co-ordinate Bench on the similar

issue/issues were also disposed of by a common

judgment and separate orders dated March 01,

2023.

The following observations of the said

common judgment, being relevant, are quoted

below:-

"This Court finds that under the provisions of Rule 17 of the 2016 Rules (supra), the Commission enjoys a predominant role to ultimately decide on the validity of its recommendations. Rule 17 does not provide for any opportunity to be heard. Rule 17 has also not been challenged in this set of appeals. Rule 17 reads as follows:

"17. Cancellation or Withdrawal of Recommendation.-

If prior to or after recommendation or during the course of selection process, it is found that any candidate concealed or suppressed or misrepresented or made false declaration in his/her application or at any subsequent stage or any mistake or fault committed by the Commission in granting recommendation wrongly to any candidate in contradiction to the provisions of the Act, Rules or other conditions as may be laid down, such candidate will be treated as disqualified and his/her recommendation will be cancelled and/or withdrawn at any stage and further his/her appointment, if any, shall stand terminated/cancelled and in such cases the decision of the Central Commission shall be final. Further the Central Commission may also take steps to fill up such post(s) from Waiting List within the validity period of the Panel and Waiting List, by issuing suitable direction to the concerned Regional Commission."

This Court, therefore, cannot find any visible infirmity in the reasoning of the Hon'ble Single Bench to allow the Commission to take steps by invoking Rule 17. Before Court, the appellants, even if arguably added as parties, cannot ventilate a right larger than the right of the Commission to act under Rule 17.

In a scenario therefore, when the appellants cannot claim an absolute right to be heard under the statutory Rules, the only principle to which the appellants can fall back upon is of natural justice. Natural Justice, not being a straitjacket formula, now requires to be assessed by this Court with regard to the extent of its

application to the appellants in MAT 85 of 2023 and MAT 124 of 2023. Although it is trite that the electronic evidence relied upon by the Commission is subject to scrutiny under the Evidence Act, at the same time with the Commission placing its findings in aid of Rule 17 before the Hon'ble Single Bench, in the absence of a right larger than that of the Commission, the appellants cannot insist upon being individually heard. It is also an admitted position that the appellants have never denied that the OMR sheets generated data, as relied upon by the Commission does not pertain to them or, in other words, is not their OMR sheets".

The names of the petitioners are appearing

in the said notice dated February 13, 2023 and

the said notice, is the subject matter of

challenge in the present writ petition.

In the meantime, the Chairman of the West

Bengal Central School Service Commission, on

March 01, 2023 by another notification bearing

Memo No. 293/L-6594/CSSC/ESTT/2023,

has passed the following order:-

"In terms of the solemn judgement dated 01-03-2023 passed in MAT 85 of 2023 and MAT 124 of 2023 by the Hon'ble Division Bench of the Hon'ble High Court, Calcutta, and in continuation with the earlier Notification No. 226/L-

6594/CSSC/ESTT/2023 dated 13.02.2023 issued by the West Bengal Central School Service Commission, the recommendations of 618 candidates (as in annexure A) are hereby cancelled on and from today in exercise of the power conferred upon the Commission in terms of Rule 17 of the West Bengal School Service Commission (Selection for Appointment to the Post of Teachers for classes IX and X in Secondary and Higher Secondary Schools)Rules, 2016."

This Court is of the prima facie opinion,

that in view of the aforesaid development,

challenge to the notice dated February 13, 2023

has become infructuous.

However, Mr. Pratik Dhar, learned Senior

Counsel for the petitioners, submits that his

clients by a separate writ petition are proposing

to challenge the vires of Rule 17 of the said

Rules of 2016; at this stage, dismissal of the

instant writ petition as infructuous would be

prejudicial to his clients, he prays that hearing

of the writ petition may be deferred enabling him