Calcutta High Court (Appellete Side)
Tushar Kanti Mondal vs The State Of West Bengal & Ors on 1 May, 2023
23 01-05-2023
AKG WPA 4502 of 2023
Ct. 238
Tushar Kanti Mondal
Vs.
The State of West Bengal & Ors.
Mr. Siddhartha Banerjee,
Ms. Reshmi Ghosh,
Ms. Jyoti Routh
...For the Petitioner
Dr. Chapales Bandyopadhyay,
Ms. Gargy Basu,
Ms. Anandamoyee Dutta
...for N.S.O.U.
Mr. Swpan Kr. Datta,
Mr. Rajat Dutta
...For the State
The petitioner was an aspirant for the post of
Junior Assistant-Cum-Typist at Netaji Subhas Open
University. The relevant advertisement prescribed the
eligibility criteria as follows :-
"Qualifications, Experience & Other
Requirements:
(A) Essential :
1. H. S. (10+2).
2. Diploma/Certificate in
Computer of at least 6-month
duration.
(B) Desirable :
1. Honours Graduate from a
recognised University.
2. Whole time working
experience of not less than one
year in Institute of Open
Distance mode of learning
(ODL)."
The said post was reserved for a Scheduled Caste
(Exempted Category) candidate. It appears that though
some other Scheduled Caste candidates had applied, the
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petitioner was the only candidate, who belonged to
Scheduled Caste (Exempted Category).
The selectors, however, did not recommend the
petitioner's appointment. The selection committee opined
as follows :
"Not Found Suitable as the marks in
interview was less than 40%."
Mr. Siddhartha Banerjee, learned advocate
appearing for the petitioner submits that the
advertisement did not specify any requirement that a
candidate must secure 40% marks in the interview for
appointment to the relevant post. He submits that the
introduction of a new criterion after the commencement of
the selection process is illegal, as the selectors cannot
change the rules of the game once it has commenced.
Mr. Banerjee also submits that the petitioner was
the sole candidate, who met the eligibility criteria
prescribed in the advertisement. His right to appointment
to the post in question could not have been denied by
introducing a new criterion during the selection which
was not present at the outset. In support of his
submission, Mr. Banerjee has relied upon two decisions of
the Hon'ble Supreme Court, reported at (2019) 12 SCC
798 (Dinesh Kumar Kashyap Vs. South East Central
Railway) and (2008) 3 SCC 512 ( K. Manjusree Vs.
State of Andhra Pradesh).
Mr. Chapales Bandyopadhyay, learned advocate
appearing for the university, on the other hand, submits
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that the writ petition is not maintainable since the writ
petitioner has challenged the appointment of respondent
no. 6, who is not connected with the relevant selection
process. He further submits that the petitioner being an
unsuccessful candidate cannot challenge the selection
process. With regard to the introduction of selection
criteria, it is the submission of Mr. Banerjee that no new
selection criteria were introduced by the selection
committee. The selectors were required to assess the
suitability of the petitioner and this suitability could be
ascertained only by awarding marks. As there were no
other eligible candidates, it cannot be said that the
petitioner was discriminated against. The selectors simply
did not find him to be suitable for the appointment, that
is why his name was not recommended.
I am of the view that the decision of the selectors
that the petitioner was not suitable for the post in
question, should not be interfered with. There is no
dispute that the petitioner fulfilled all the eligibility
criteria as prescribed in the advertisement. However,
fulfilling the eligibility criteria only brings a candidate
within the zone of consideration. After passing this
threshold test, a candidate requires to cross the second
hurdle and be found meritorious among the other
candidates to be appointed to the post in question.
In the present case no doubt, the petitioner was
eligible to come within the zone of consideration. The
assessment of his suitability was based on his
performance in the interview. The selectors found him not
suitable since he could not secure 40% marks in the
interview. There were no recruitment rules and it was the
discretion of the selectors to evolve a criterion to assess
the suitability of the candidate and in this case, they
decided to fix 40% marks in the interview.
In my view, in the absence of any specific
recruitment rules, it cannot be said that the selectors
have altered the rules.
The judgment in Dinesh Kumar Kashyap (supra)
deals with the right of the empanelled candidates in a
selection process. In this case, the petitioner was found
not suitable.
Paragraph 27 of the judgment in K. Manjusree
(supra) is quoted below :-
"27. But what could not have been done
was the second change, by
introduction of the criterion of
minimum marks for the interview. The
minimum marks for interview had
never been adopted by the Andhra
Pradesh High Court earlier for
selection of District & Sessions Judges,
(Grade II). In regard to the present
selection, the Administrative
Committee merely adopted the
previous procedure in vogue. The
previous procedure as stated above was
to apply minimum marks only for
written examination and not for the
oral examination. We have referred to
the proper interpretation of the earlier
Resolutions dated 24-7-2001 and 21-2-
2002 and held that what was adopted
on 30-11-2004 was only minimum
marks for written examination and not
for the interviews. Therefore,
introduction of the requirement of
minimum marks for interview, after
the entire selection process (consisting
of written examination and interview)
was completed, would amount to
changing the rules of the game after
the game was played which is clearly
impermissible. We are fortified in this
view by several decisions of this Court.
It is sufficient to refer to three of them
-- P.K. Ramachandra Iyer v. Union of
India , Umesh Chandra Shukla
v. Union of India and Durgacharan
Misra v. State of Orissa."
It is apparent that the selection committee in that
aforesaid case deviated from the practice followed in the
earlier years by the introduction of minimum marks for
the interview after the selection process was completed. In
the present case, as mentioned earlier, there was no
recruitment rule to be followed, and hence the question of
deviation did not arise.
In any event, in the absence of any specific rules,
the selectors were required and perhaps obligated to
assess the suitability of a candidate by evolving a
criterion. Unless the criterion itself is found to be
unreasonable or it has been demonstrated that the same
has not been applied in a just manner, there is no scope
to interfere with the same.
With the aforesaid observations, WPA 4502 of
2023 is dismissed.
Urgent photostat certified copy of this order, if
applied for, be supplied to the parties upon compliance
with the requisite formalities.
(Kausik Chanda, J.)
