Calcutta High Court (Appellete Side)
Liapubam Upendro Sharma vs Union Of India & Ors on 4 May, 2023
1
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Before:-
The Hon'ble Justice Lapita Banerji
W.P.A. 18906 of 2022
Liapubam Upendro Sharma
Vs.
Union of India & Ors.
With
W.P.A. 28493 of 2022
Shyama Prasad Chattopadhyay
Vs.
The Union of India & Ors.
For the petitioner in Mr. Soumya Majumder, Adv.,
W.P.A. 18906 of 2022: Mr. Victor Chatterjee, Adv.,
Mr. B. Basak, Adv.
For the petitioner (in person) in: Mr. Shyama Prasad Chattopadhyay, Adv.
W.P.A. 28493 of 2022
For the respondent no. 2 in: Mr. Lakshmi Kumar Gupta, Sr. Adv.,
W.P.A. 18906 of 2022 Mr. Sandipan Banerjee, Adv.,
Ms. Amrita Pandey, Adv.,
Ms. Sneha Singh, Adv.
For the respondent no. 5 in: Mr. Joydip Kar, Sr. Adv.,
W.P.A. 18906 of 2022 and Mr. Pinaki Ranjan Chakraborty, Adv.
W.P.A. 28493 of 2022
For the respondent no. 1/U.O.I.: Mr. Dhiraj Trivedi, Ld. DSGI,
Mr. S.N. Dutta, Adv.
For the respondent no. 3 in: Mr. Billwadal Bhattacharyya, Ld. DSGI,
W.P.A. 18906 of 2022 and Mr. Anish Kumar Mukherjee, Adv.
Respondent No. 2 in
WPA 28493 of 2022
For the Respondent No. 4 in: Mr. Sandipan Banerjee, Adv.,
W.P.A. 28493 of 2022 Ms. Amrita Pandey, Adv.
For the Respondent No. 7 in: Mr. Surendar Kumar, Adv.
W.P.A. 28493 of 2022 Mr. Ghanshyam Pandey. Adv.
Heard on: 05.04.2023.
Judgment Delivered on: 04.05.2023.
LAPITA BANERJI, J.: Two writ petitions WPA 18906 of 2022 and WPA 28493
of 2022 were taken up for hearing together. In WPA 18906 of 2022, the writ
petitioner challenged the recommendation of the Hon'ble Governor to interview
20 more candidates on May 20, 2022, apart from the 11 short listed
candidates. Furthermore, he challenged the recommendation of the Hon'ble
Governor dated May 26, 2022 to the Ministry of Culture for appointment of the
Private Respondent No.5 as the Director, Eastern Zonal Cultural Centre (EZCC)
and also the letter of appointment of the private respondent no. 5, dated July
5, 2022. The petitioner was the second empanelled candidate in the letter of
recommendation dated May 26, 2022.
2. In WPA 28493 of 2022, the writ petitioner has, inter alia, prayed for
revoking and or rescinding the decision to call the private respondent no. 5 for
the interview and for a declaration that the appointment of the private
respondent no. 5 is bad in law. He was one of the 20 candidates whose names
were recommended by the Hon'ble Governor by a subsequent list.
3. WPA 18906 of 2022 is taken up for consideration first. Common
questions of facts and law arise in both the writ petitions.
4. Pursuant to an advertisement dated July 17/23, 2021, the petitioner
applied for recruitment to the post of Director, EZCC on short-term contractual
basis for a tenure of 3 years which was extendable by another period of 2 years
depending upon the performance of the incumbent. The candidates could
either apply for appointment on short-term contractual basis or on deputation
basis. The eligibility criteria for candidates applying on deputation basis were
different from the candidates applying on short-term contractual basis. The
eligibility criteria for appointment on short-term contractual basis is as follows:
(i) Eminent cultural personalities (practicing artistes, scholars or
experts) in the field of Art &Culture of at least 10 years
standing and experience;
(ii) Possessing Bachelor Degree; and
(iii) Minimum of 3 years' administrative experience in running
cultural institution (s).
The eligibility criteria for candidates applying on deputation basis are as
follows:-
Officers working in the rank of Director/Deputy Secretary to the
Government of India having experience of working in organizations
related to Art & Culture:
i. Holding post of regular basis in the pay scale of Rs. 37,400-
67,000+GP Rs. 8,700 (pre-revised as per 6th CPC) OR
ii. Having 3 years of regular service in the pay scale of Rs.
15,600-39,100+GP Rs. 7,600 (pre-revised as per 6th CPC).
5. Under the Clause 7.3 of Memorandum of Association and Rules &
Regulations of EZCC, the Executive Board had the power to appoint a Search
Committee and other committees which may be deemed necessary to assist the
Board in furtherance of the objectives of the Society.
6. Under Clause 7.4 (xv) the Executive Board had the power to make
appointment in respect of the posts including the post of Director of EZCC.
The appointment of Director would have to be made with "prior approval" of the
Government of India.
7. Under the bye-laws of EZCC (Recruitment and Service Rules - 2015), the
"Executive Board" of EZCC was the "Appointing Authority" of the Director. The
Executive Board was required to act in consonance with the Government of
India in respect of appointment of the Director.
8. By an electronic mail dated May 12, 2022, the Under Secretary to the
Government of India, Ministry of Culture intimated the Additional Chief
Secretary to the Governor of West Bengal about the constitution of a Scrutiny
Committee for filling up the post of Director, EZCC. As per the direction of the
Ministry of Culture, a 4-member Scrutiny Committee was constituted for
scrutiny of applications received in the Office of the Hon'ble Governor of West
Bengal/Chairperson of EZCC against the advertisement published for filling up
of the post of Director, EZCC. The work of the Scrutiny Committee was to
"examine the applications" and "short list of the eligible candidates".
Thereafter, further process of filling up of the post of Director, EZCC was to be
initiated.
9. Pursuant to the constitution of the Scrutiny Committee, a meeting was
held on May 13, 2022. The said meeting was held under the Chairmanship of
the Director (ZCC), MoC in New Delhi, for filling up of the post of Director,
EZCC.
10. The said Scrutiny Committee noted that out of 41 applicants, 4 applicants
applied on deputation, whereas, remaining 37 applicants applied for short-term
contract. The suitability of the applicants were evaluated on the basis of the
eligibility criteria as per the Recruitment Rules.
11. The Scrutiny Committee found only 11 applicants suitable for appearing
in the interview before the Search-cum-Selection Committee. Out of the 11
applicants, 10 applied for short-term contract while 1 applied on deputation.
12. Mr. Majumder, Learned Counsel appearing for the petitioner, submitted
that the Scrutiny Committee short-listed the names of only 11 candidates and it
was reasonably expected by the petitioner that only 11 candidates would be
called for interview. However, 20 more ineligible candidates were later included
in the list of candidates who were called for the interview. The interview for the
selection was held as scheduled on May 20, 2022 on online mode.
13. At the time of participation in the interview, the petitioner was surprised
to see that a total of 31 candidates were being interviewed. Since the interview
was held on online mode, the petitioner could not enquire about the
participation of 20 more candidates and the petitioner was unable to gather
information about the said 20 more candidates even after visiting the office of
EZCC after the interview. The petitioner made an application under "Right to
Information Act" on July 14, 2022. The response to such information was only
received by the petitioner in August, 2022. Subsequent thereto, the petitioner
filed the instant writ petition.
14. He submitted that by calling 20 more ineligible candidates for interview,
the very purpose of setting up of the Scrutiny Committee was
vitiated/frustrated.
15. The Majority members of the Search-cum-Selection Committee on May 20,
2022 recommended the names of the following candidates for the post of
Director:
a. Mr. Ashis Kumar Giri;
b. Mr. LaipubamUpendro Sharma;
c. Mr. Atul Dwivedi
16. Only one of the Members of the Search-cum-Selection Committee/Joint
Secretary (ZCC) differed with the aforesaid panel. She recommended a panel of
3 candidates from the initial list of the 11 shortlisted candidates :
a. Ms. Madhurima Barman Sen;
b. Mr. LaipubamUpendro Sharma;
c. Dr. Pushpita Mukherjee
17. (The Search-cum-Selection Committee comprised of the following people:
Chairperson of ZCC: Chairman
Joint Secretary (ZCC), MoC: Member
Dr. Sarup Prasad Ghosh: Member
Dr. Sachchidanand Joshi: Member
Culture Secretary, Govt. of Jharkhand Member
Culture Secretary, Govt. of Manipur Member)
18. The Governor of West Bengal/Chairman, Search-cum-Selection Committee
accepted the recommendation of the majority.
19. Pursuant to the information received under the RTI, it transpired that
the Senior Special Secretary, one Mr. Utpal Biswas wrote to the Chairman of
the Scrutiny Committee/Director (ZCC), MoC on June 10, 2022 sending him
a list of 20 candidates, other than 11 shortlisted candidates by the Scrutiny
Committee described as the "Search Committee" who were called for interview
on May 20, 2022. The list was sent to the Chairman of the Scrutiny Committee
by a Member of the Scrutiny Committee on June 10, 2022 pursuant to the e-
mail by the Chairman on June 10, 2022. The said communication was
directed to be sent from the Governor's Secretariat in Kolkata to the Chairman,
Scrutiny Committee.
20. He contended that the Hon'ble Governor in his capacity as the Chairman,
EZCC could not override the recommendations of the Scrutiny Committee. The
Hon'ble Governor of his own accord directed that 31 applicants be called for
interview which he had no authority to do.
21. The Hon'ble Governor by the Impugned Order dated July 5, 2022,
appointed the respondent No.5 to the post of Director/EZCC which should be
set aside and/or quashed due to the fact that a candidate considered to be
ineligible by the Scrutiny Committee was subsequently called for the interview
upon exercise of the discretion used by the Hon'ble Governor, which he had no
right to exercise.
22. Mr. Gupta, Learned Senior Counsel, appeared on behalf of the
respondent No.2/EZCC and submitted that no infirmity was committed in
including the names of 20 more candidates to the initial list of 11 candidates
prepared by the Scrutiny Committee. The Scrutiny Committee had overstepped
their authority in evaluating the candidature of the applicants. The Scrutiny
Committee could only reject such applications which were not made through
proper channel in case of regular Government employees or it could reject the
applications, whereby, the candidates have crossed the maximum age limit or
did not specify the criteria of pay scale as mentioned in the Advertisement
dated July 17/23, 2021.
23. The Scrutiny Committee could not assess the criteria of eminence in the
field of art and culture. Neither could it assess whether a candidate possessed
requisite experience in the field of art and culture, nor could assess whether a
candidate possessed requisite administrative experience.
24. The job of the Scrutiny Committee was only technical/clerical in nature.
Any evaluation was in the domain of the Search-cum-Selection Committee.
25. Since the Scrutiny Committee acted beyond its jurisdiction/without
authority, it was necessary for the Members of the Search-cum-Selection
Committee to advise the Governor accordingly, to protect the constitutional
rights of the candidates who had a right to be considered for appointment
having met the eligibility criteria.
26. He submitted that the Governor did not act on his own discretion but
was advised by the Search-cum-Selection Committee to include the names of 20
more candidates, who met the eligibility criteria. Therefore, pursuant to
telephonic conversation, the Governor orally directed 20 more candidates to be
interviewed by the Members of the Search-cum-Selection Committee. After the
interview was held on May 20, 2022, the said fact intimated to the Chairman of
the Scrutiny Committee on June 10, 2022 pursuant to an enquiry made by the
Chairman. There were various trail mails to that effect which are
contemporaneous documents. He relied on a Judgment reported in 2012 (7)
SCC 678 (East Coast Railway & Anr. vs.Mahadev Appa Rao & Ors.) to
contend that contemporaneous records can be relied upon as the basis for an
action/order to be brought forward.
27. He referred to a decision reported in AIR 1992 SC 1806 (National
Institute of Mental Health and Neuro Sciences vs. K. Kalyana Raman &
Ors.)and also a decision reported in 2012 (1) SCC 157 (Sanchit Bansal & Anr.
Vs. Joint Admission Board & Ors.) in support of his contention that function
of a selection committee is neither judicial nor adjudicatory. As the Selection
Committee consists of men of high status, Courts should be slow to interfere in
their action.
28. He further tried to negate the argument made on behalf of the petitioner
that the Executive Board is the appointing authority of the Director and not the
Chairman as per Rule 1.3(b)(a) of the 2015 Service Rules since the Rule starts
with the phase "unless otherwise provided". The 2015 Service Rules do not
apply to the recruitments on contractual basis. Attention is drawn to Rules 1.2
and 1.2.1 of the 2015 Service Rules.
29. He also submitted that the writ petitioner along with other candidates
were aware on May 16, 2022 about the participation of 31 candidates in the
interview that took place on May 20, 2022. No objection was raised by any of
the candidates. The final decision regarding the selection was made known on
July 5, 2022 by publication on Twitter from the Hon'ble Governor's Office.
Immediately after the petitioner found that he was not selected for
appointment, he made an application under the Right to Information Act, 2005
on July 14, 2022. The present writ petition was filed on August 18, 2022.
Therefore, the petitioner should be now estopped from challenging the
recruitment process as he took a calculated chance for getting selected. He
relied on a Judgment reported in 2022 (2) SCC 173 (Anupal Singh & Ors. Vs.
State of Uttar Pradesh) and also a Judgment reported in 2016(1) SCC 454
(Madras Institute of Development Studies & Anr. Vs. K.
Sivasubramaniyan& Ors.) for contending that after participating in a selection
process a candidate is estopped from challenging the same.
30. Mr. Billwadal Bhattacharya, Learned Deputy Solicitor General of India
appearing on behalf of the respondent No.3/Search-cum-Selection Committee,
EZCC submits that the 2015 Service Rules were silent with regard to the
"appointing authority" in case of persons being recruited on ad-hoc basis,
contractual basis or engaged on daily wage basis for specified jobs or for
specified period by the EZCC. The said rules are not applicable for persons
appointed on deputation from State Government/Central Government and
Semi-Government as they are governed by Fundamental Rule - 9(25). A two-
fold selection process was to be followed pursuant to the advertisement; (a)
preliminary step for scrutiny of applications by Scrutiny Committee (b) actual
selection/final selection done by Search-cum-Selection Committee.
31. The Scrutiny Committee sent one list containing 11 names of the eligible
candidates. The other list contained 30 names of the candidates who were
rejected. Since it was pandemic times, the Governor being the Chairman of the
Search-cum-Selection Committee decided to go through all the files containing
their applications. Thereafter, there were meaningful
discussions/deliberations with the other Members of the Search-cum-Selection
Committee when it occurred to the Chairman/Governor that there are
discrepancies in the matter of short listing of candidates and the names of 20
other eligible candidates were not included in the list of eligible candidates
sent by the Scrutiny Committee. None of the Members of the Search-cum-
Selection Committee found any infirmity with the reasoning of the Governor.
Hence, 31 (11+20) candidates were interviewed.
32. The Scrutiny Committee was not vested with the power of selecting the
candidates (picking up of some candidates and rejection of others). The
selection exercise was specifically vested in the Search-cum-Selection Committee
which alone could decide which of the candidates were to be interviewed,
selected and recommended for appointment. The majority of the Search-cum-
Selection Committee approved of one panel which was also approved by the
Hon'ble Governor being the Chairman of the Search-cum-Selection Committee.
The recommendation of the Hon'ble Governor to appoint the private respondent
No.5 as the Director of EZCC being the first empanelled candidate was
approved by the Ministry of Culture, Government of India.
33. On May 26, 2022, the respondent No.3/Search-cum-Selection Committee
forwarded the names of 3 empanelled candidates in the order of preference to
the Ministry of Culture, Government of India. On July 1, 2022 the Ministry of
Culture approved of the same and on July 5, 2022, the letter of appointment
was issued by the Hon'ble Governor.
34. The petitioner participated in the recruitment process without any
protest or demur. Only after being unsuccessful in the selection process, the
petitioner made an RTI application on July 14, 2022. He referred to the
decisions reported in 1995 (3) SCC 486 (Madan Lal & Ors. Vs. State of J&K &
Ors.) and the one reported in 2015(11) SCC 493 (Pradeep Kumar Rai & Ors.
Vs. Dinesh Kumar Pandey) in support of his contention that the candidate
should not be allowed to approbate and reprobate at the same time.Either the
candidates should not have participated in the interview and challenged the
procedure or they should have challenged immediately after interview was
conducted. He also relied on the decision of Madras Institute (Supra) and
Anupal Singh (Supra) in support of his argument that a person, who
consciously takes part in the process of selection, cannot turn around and
question the method of selection.
35. Mr. Trivedi, Learned Deputy Solicitor General of India appearing on
behalf of Union of India submitted that the petitioners were aware that 31
candidates were called for the interview. As per the averments made in the writ
petition he became aware of the position not later than May 20, 2022 (the
scheduled date of the interview). Having participated in the selection process
without any protest or demur, the petitioner cannot now challenge the same
after being unsuccessful. A decision reported in 2019 (15) SCC 633 (Union of
India and others Vs. C. Girija and others) was relied upon in support of the
contention that after participating in a selection process the petitioner should
not be allowed to challenge the same.
36. Mr. Kar, Learned Senior Counsel appearing on behalf of the private
respondent No.5/present Director of EZCC, submitted that the appointment of
his client was made with approval of the Central Government and without
challenging the said approval, the other challenges in the writ petition were
infructuous. The writ petitioner has challenged the recruitment process after
becoming unsuccessful. He submitted that the Scrutiny Committee was wrong
in coming to the finding that the deponent did not have minimum 3 years of
administrative experience in running a cultural institution as the respondent
No.5 was holding a post of Programme Executive with the All India Radio from
2016 and was continuing in the said capacity till the date of voluntary
retirement. He submitted that the Programme Executive plays a pivotal role in
administration. He is a convener, coordinator and conductor in respect of the
functions and activities to which his unit is attached. He arranges discussions
and consultations within the unit and coordinates the work of different
members of the unit thereby translating ideas and plans into actual
broadcasts. The Programme Executive also has to look into the work of
programme administration by providing relevant budget heads in terms of the
allotment made to different programme units, working out fees and expenses to
be paid to the artistes and submission of detailed proposals for sanction by the
Station Directors, dealing with all the administrative work involved in the
procedure of governing audition and classification of artistes. He had to
perform the task of maintenance of libraries of gramophone records and other
musical instruments and supervise the functioning and discipline of the
working staff of the unit. Supervision and maintenance of transport was also
under his domain. Therefore, the private respondent should not have been
considered to be an ineligible candidate by the Scrutiny Committee.
37. By rejecting the candidature of the Private Respondent No.5, the Scrutiny
Committee committed a palpable error which was rectified by the Hon'ble
Governor. Since the decision of the Scrutiny Committee was palpably wrong, no
infirmity was committed in the decision making process by rectification of the
decision of the Scrutiny Committee and inclusion of the name of the respondent
No.5 in the second list of eligible candidates.
38. Therefore, the recommendation of the Governor/Search-cum-Selection
Committee to include 20 more candidates for being interviewed cannot be
interfered with in a writ petition.
39. In the event the recommendation of the Search-cum-Selection Committee
and the order of appointment dated July 5, 2022 was interfered with, that
would cause immense prejudice to the private respondent No.5 who would
suffer prejudice by the reason of taking voluntary retirement from service.
40. Next he submitted that since the petitioner did not pray for a writ of quo
warranto, it would go to show that the private respondent was eligible to hold
the post.
41. As the recommendation of the Search-cum-Selection Committee as well as
the approval of Government of India has not been challenged, the petitioner
was now estopped from doing so and the appointment of the private
respondent as the Director, EZCC cannot be interfered with at this stage. He
contended that the Scrutiny Committee was not a statutory body and therefore,
its decision is not binding on the Search-cum-Selection Committee. The
Approving Authority/Chairperson of the EZCC had the power to supervise the
decisions of the Scrutiny Committee. The Search-cum-Selection Committee had
the right to supervise the decision of the Scrutiny Committee.
42. The dissenting member of the Search-cum-Selection Committee did not
apply his mind and acted with material irregularity by not analyzing the legal
nature and strength of the decision made by the Scrutiny Committee. The
decision of the Scrutiny Committee cannot be binding upon the Chairperson,
EZCC.
43. He submitted that there was no reason to interfere with the
recommendation of the Search-cum-Selection Committee, approval of Central
Government and the appointment of the private respondent no.5 by the
Hon'ble Governor, Government of West Bengal.
44. He relied on a decision reported in 2013 (16) SCC 440 (B. Amrutha
Lakshmi Vs. State of Andhra Pradesh & Ors.). He submitted that once a
candidate comes into the zone of consideration and satisfies all the
requirements, he cannot be ousted. The rules for selection have to be applied
uniformly and strictly and none from the eligible group can be eliminated from
being considered on any criteria other than those provided in the rules. No
additional criteria can be imposed other than the ones laid down. Denying
equal opportunity to some, in the matter of public employment on the basis of
a criteria which is not laid down, would result in violation of Article 14 and
Article 16(1) of the Constitution of India.
45. Therefore, the Scrutiny Committee by not considering the application of
the respondent No.5 being an eligible candidate acted in violation of Article 14
of the Constitution of India.
46. Mr. Chattopadhyay (appearing in person) in WPA 28493 of 2022
submitted that as per the regulations and office memorandum dated December
23, 2013 all Government servants were required to forward their applications
for outside employment through proper channel. He submitted that despite
being a Government servant and working with the All India Radio (AIR), the
Private Respondent's application was not forwarded through proper channel.
He also contended that the post held by the private respondent no. 5 in AIR
was not an Administrative post. Therefore, the petitioner was ineligible to be
considered for appointment. He further contended that the private respondent
no. 5 was working as a programme executive with AIR at Pay Level-7, Grade
Pay of Rs. 4600/- and not in Pay Level-13 in Grade Pay of Rs. 8700/-.
Therefore, his application should have been summarily rejected. The Private
respondent no. 5 should have first resigned from his parent office in order to be
eligible for direct recruitment on short term contractual basis. Without first
resigning he was ineligible to apply for direct recruitment.
47. Considering the rival submissions of the parties and the materials placed
on record, this Court finds that:
(a) Pursuant to an advertisement dated July 17/23, 2021 the
petitioners in WPA 18906/2022 and WPA 28493/2022 and the Private
respondent no. 5 in both the writ petitions, applied for appointment to
the post of Director, EZCC. EZCC is an autonomous body under the
Ministry of Culture, Government of India. The eligibility criteria for
appointment on short term contractual basis was different from the
eligibility criteria for appointment on deputation.
(b) By a written communication dated May 12, 2022 the Under
Secretary to the Government of India, MoC, intimated to the Additional
Chief Secretary to the Hon'ble Governor of West Bengal, that as per the
decision of Ministry a four member Scrutiny Committee was constituted
for scrutiny of applications received by the Office of the Hon'ble Governor
of filling up the post of Director, EZCC.
(c) It appears from documents that two committees were constituted
and the same was communicated vide electronic mail dated May 12,
2022 received by ZCC Section, Ministry of Culture, Government of India.
One was the Scrutiny Committee and the other one was the Search cum
Selection Committee.
(d) The Scrutiny Committee would examine the applications and would
short list the eligible applicants. Thereafter, further course for filling up
of the post of Director, EZCC would be initiated.
(e) The four members of the Scrutiny Committee were as follows:-
i. Director (ZCC), MoC
ii. Shri Utpal Biswas, IAS, Senior Special Secretary, O/o Hon'ble
Governor of West Bengal.
iii. Under Secretary (ZCC), MoC
iv. Under Secretary (IFD), MoC.
(f) The Search cum Selection Committee was constituted for filling up
of/appointment to the post of Director, EZCC.
(g) The composition of the said committee are as follows:-
i. Chairperson of ZCC - Chairman
ii. Joint Secretary (ZCC), MoC - Member
iii. Dr. Sarup Prasad Ghosh, - Member
iv. Dr. Sachchidanand Joshi - Member
v. Culture Secretary Government of Jharkhand - Member
vi. Culture Secretary Government of Manipur - Member
(h) A meeting of the Scrutiny Committee was held on May 13, 2022 under
the Chairmanship of the Director (ZCC) Ministry of Culture at Puratatya
Bhawan, New Delhi. Out of total 41 applications 4 applied for being
considered on deputation basis and remaining 37 applied for short term
contractual basis. Out of 41 candidates only eleven candidates were
found to be suitable for appearing in the interview to be held by the
Search cum Selection Committee. 30 applications were rejected by the
Scrutiny Committee and the reasons for such rejection were given in
detail.
(i) The reasons for non-selection/rejection of the candidates were as
follows:-
i. Applications not duly received through proper channel in case of
regular government employees (such applications were summarily
rejected).
ii. Crossing the maximum age limit prescribed in Recruitment
Rules (such applications were summarily rejected).
iii. Not satisfying the criteria of eminence in the field of Art and
Culture.
iv. Not possessing the requisite experience in the field o Art and
Culture as provided in the Recruitment Rules.
v. Not possessing the requisite administrative experience as
provided in the Recruitment Rules.
vi. Do not satisfy the criteria of pay scale as mentioned in the
Recruitment Rules.
(j) The name of the writ petitioner in WPA 18906 of 2022 appeared
amongst the 11 short listed Candidates. The candidature of the writ
petitioner in WPA 28493 of 2022 was rejected by the Scrutiny Committee
for being over aged at the first instance, summarily.
(k) At the time of interview the writ petitioner in WPA 18906 of 2022
found that not only 11 short listed candidates were interviewed but
another 20 candidates who were initially considered to be ineligible were
also interviewed. From a communication dated June 10, 2022 issued by
one Utpal Biswas, Senior Special Secretary to the Governnor, to the
Director (ZCC), Ministry of Culture, Government of India who was also a
Member of the Scrutiny Committee, it appeared that a list of 20
candidates other than the 11 short listed candidates by the Scrutiny
Committee were called for interview on May 20, 2022.
(l) The said communication dated June 10, 2022 was sent by the
Senior Special Secretary in response to the electronic mail issued by the
Chairman of the Scrutiny Committee/Director (ZCC) Ministry of Culture.
It is unclear from the said communication that at whose instance names
of 20 more candidates, who were initially considered to be ineligible by
the Scrutiny Committee, were called for interview. The reason for sending
20 more names also does not appear from the said communication.
(m) From the proceedings/minutes of the meeting of the Search cum
Selection Committee dated May 20, 2022 it appears that the Hon'ble
Governor of West Bengal, in his capacity as the Chairman of EZCC
stated that "after taking note of the situation that 31 candidates
including the 11 short listed by the Scrutiny Committee be called for the
interview taking note of the prescriptions of the eligibility criterion."
(n) This Court finds it perplexing to note that despite two committees
being constituted for filling up the post of Director, EZCC the Hon'ble
Governor chose to act in his sole discretion. No reasons are recorded as
to why the Governor chose to override the decision of the Scrutiny
Committee which was directly set up by the Ministry of Culture for
examining the eligibility criteria of the candidates.
(o) There is no recording in the minutes dated May 20, 2022 that the
Hon'ble Governor acted in accordance with the recommendations of the
Search cum Selection Committee.
(p) It is only after the interviews of the 31 candidates were held on
May 20, 2022 and an enquiry was made by the Chairman of the Scrutiny
Committee regarding the names of additional 20 candidates, the same
were forwarded on June 10, 2022 by the Governor's Secretariat.
(q) This Court cannot accept the contention of Mr. Gupta that since
the Scrutiny Committee overstepped its authority by evaluating the
candidature of the applicants, the Search cum Selection Committee
advised the Hon'ble Governor to include the names of 20 more
candidates who met the eligibility criteria.
(r) The Search cum Selection Committee was constituted for a specific
purpose of selecting the suitable candidates from a pool of eligible
candidates after the eligibility of the candidates was examined and they
were short-listed by the Scrutiny Committee. The Search cum Selection
Committee was not constituted for sitting in appeal or reviewing the
decision of the Scrutiny Committee.
(s) Moreover, there is nothing on record to show that the Search cum
Selection Committee advised the Governor to re-assess the eligibility
criteria and send more names of eligible candidates since unfairly some
names were left out.
(t) There are no reasons at all to show why the
decision/recommendation of the Scrutiny Committee were considered to
be faulty or beyond jurisdiction.
(u) Even assuming that the Scrutiny Committee acted beyond
jurisdiction the same could not be rectified by the Hon'ble Governor or
the Search cum Selection Committee by sitting in appeal or reviewing its
decision.
(v) Reference has been made on behalf of the respondent no. 2/EZCC
to an electronic mail dated June 10, 2022 issued by the Chairperson,
Scrutiny Committee. The said mail dated June 10, 2022 refers to trailing
mails and discrepancies pointed out over telephone. None of the trailing
mails have been annexed to show the content thereof. Furthermore, it
has been strenuously argued by Mr. Gupta, that on May 16, 2022 the
petitioner was aware of the list of all 31 candidates who were sought to
be called for interview. However, from the list of 31candidates annexed to
the notes of argument it cannot be deciphered that it was sent on May
16, 2022 to the writ petitioner.
(w) The writ petitioner in WPA 28493 of 2022 who was one of the 20
candidates selected for the interview by way of a subsequent, list relied
on an e-mail to show that he was informed about the said interview held
on May 20, 2022 at around 3.22 P.M IST on May 18, 2022.
(x) Different reasons have been given in different pleadings for
supporting the exercise of discretion by the Hon'ble Governor in
supersession of the recommendation of the Scrutiny Committee. In an
affidavit affirmed on December 13, 2022 it has been stated that the
Hon'ble Governor in his capacity as Chairman of EZCC recommended
that 31 applicants (including the 11 already recommended) ought to be
interviewed to "widen the scope of selection process". In an affidavit
affirmed on February 28, 2023 on behalf of the EZCC it has been stated
that there was no provision of any 'selection' Committee under the rule
and therefore, the Hon'ble Governor as the Chairperson of the EZCC was
not bound by its act/recommendation. Therefore, to widen the scope, 31
candidates were called for interview by the Search and Selection
Committee. The statements made in paragraph 6g of the said affidavit are
in contradiction with the statements made in paragraph 6h of the said
affidavit. In paragraph 6h the minutes of the meeting of May 20, 2022
are referred to whereby the Governor in his capacity as Chairman, EZCC
after taking note of the situation recommended 31 applicants were to be
called for interview.
(y) From the remarks of the Joint Secretary, Ministry of Culture, who
was a member of the Search Committee, it appears that the Hon'ble
Governor in his capacity as Chairman, EZCC recommended 31
candidates to be eligible to be interviewed. The list so prepared by the
Governor's Secretariat at Raj Bhawan was shared with all the committee
members of the Search and Selection Committee. From the said document
being a part of the Minutes dated May 20, 2022 it becomes categorically
clear that the list was shared by Raj Bhawan to the committee members
and the list was not prepared at the behest or advice or recommendation
of the Search cum Selection Committee.
(z) In the notes of argument filed by the EZCC it has been stated that
since it was pandemic time the Hon'ble Governor being the Chairman of
the Search cum Selection Committee went through the files containing
the applications and connected documents and after the meaningful
deliberation with the members of the Search cum Selection Committee
noted certain discrepancies in the matter of rejection of the eligible
candidates. After discussing the matter with the other members and
explaining his views 20 other candidates were found to be eligible. None
of the members of the Search cum Selection Committee found any fault
with the reasoning of the Chairman/Hon'ble Governor. The said stand is
contrary to the remarks of the Joint Secretary.
(aa) This Court cannot accept such an argument since on the face of the
records it appears that the list was prepared by Hon'ble Governor's
Secretariat, Raj Bhawan and shared with the Search and Selection
Committee Members without any discussion or deliberation with the said
Committee Members.
(bb) In the affidavit in opposition filed on behalf of the respondent no. 5
affirmed on January 10, 2023 it appears that the respondent no. 5
contended that in rejecting the candidature of the private respondent the
Scrutiny Committee made a palpable error which was sought to be rectified
and corrected. The Scrutiny Committee's decision would have caused
immense prejudice to the Private Respondent and he was rightly included in
the list of candidates called for interview. No judicial review could lie from
the decision of the Hon'ble Governor. The Search cum Selection Committee
acted within their jurisdiction in including the private respondent's name in
the subsequent list and no judicial review could lie in respect of the said
decision.
(cc) This Court cannot accept such a submission made by Mr. Kar that
whether or not a jurisdictional error has been committed by the Search cum
Selection Committee and/or the Hon'ble Governor in exercising his
discretion, the same cannot be a subject matter of Judicial Review.
(dd) The Scrutiny Committee scrutinised/closely examined the
documents and came to the finding that only 11 candidates were eligible
for the post of the Director, EZCC in all respects. The Scrutiny Committee
took a decision that the private respondent no. 5 did not possess the
requisite administrative experience in running the cultural institution.
Assuming that the Hon'ble Governor acted on the recommendation of the
Search cum Selection Committee even then it is beyond the
comprehension of this court how the Search cum Selection Committee
could sit in appeal or review the decision of the Scrutiny Committee.
(ee) The Scrutiny Committee is constituted of individuals in high
position/authority including the Director of ZCC by the Ministry of
Culture. The applications which were made at the Raj Bhawan, Kolkata
were considered at Parataya Bhawan, New Delhi. Therefore, the
contention that the Scrutiny Committee was only constituted for carrying
out a clerical job cannot be accepted. In the notes of argument filed on
behalf of the Respondent no.3/Search cum Selection Committee it has
been categorically stated that the Hon'ble Governor being the Chairman
of the Search cum Selection Committee and the Chairman of the EZCC
and the Chairman of the Governing body of the EZCC/highest authority
in the organization forwarded the names of the selected candidates in the
panel to the Government of India for approval and such approval was
granted. It has been submitted by the learned Counsel appearing for
respondent no.3/ Search cum Selection Committee, for the candidates
applying on short term contractual basis no selection process was
required to be adhered to in accordance with 1.3 (b)(a) of the 2015
service rules. The Governor in his sole discretion could appoint the
Director in accordance with 1.2.1 of the 2015 rules. Therefore, the
Governor was empowered to give a go-by to the selection procedure laid
down by the Ministry of Culture and to act without any recommendation
of the committees. However, from the appointment order dated July 5,
2022 issued by the Governor/Chairman, EZCC it clearly appears that the
appointment was made in terms of rule 1.3 (b)(a) of the 2015 rules. The
Appointing Authority under 1.3 (b)(a) was the Executive Board of the
EZCC in consultation with the Government of India. Therefore, the
Governor was not the Appointing Authority. The recommendation of the
Search cum Selection Committee had to be vetted by the Executive Board
of the EZCC and then the same would have to be approved by the
Government of India in respect of appointment of the Director. Moreover,
this Court finds that under Clause 7.4(xv) of Memorandum of Association
of the EZCC only the Executive Board had the power to make
appointments to the post of Director. The entire selection procedure is
vitiated by procedural impropriety.
(ff) Mr. Majumder, cited a decision reported in (2001)10 SCC 51
(Maharashtra State Road Transport Corporation and others vs.
Rajendra Bhimrao Mandve and others) for the proposition the rules of
a game meaning thereby the criteria for selection cannot be altered by
the authorities concerned in the middle or after the process of selection
has commenced. In the present case the eligibility criteria or the criteria
for selection was not changed but the procedure for selection has been
altered by one committee/Hon'ble Governor by taking upon themselves
the duties and functions of another committee by giving a go bye to its
decision. Such procedure for Selection could not have certainly be
changed during the course of selection process.
(gg) Mr. Gupta, cited a judgment reported in (1990) 2 SCC 669 (A.P
Public Service Commission, Hyderabad and another vs. B. Sarat
Chandra and others) for the appreciation/elucidation of the word
'selection'. The Apex Court held that the process of selection begins with
the issuance of advertisement and ends with preparation of select list of
candidates for appointment. The final stage of selection is quite often
delayed for various reasons and the candidates who are eligible on the
date of application may find that they are eliminated at the final stage for
no fault of their own if the "age limit" is taken to be applicable on the
date of the preparation of the final list and not on the date of application.
The day to assess minimum or maximum age must be specific and
determinate as on a particular date for candidates to apply and for
recruiting agency to scrutinise the same. In such a context the Apex
Court held that it could be unreasonable to construe the word
"selection" only as the factum of preparation of the select list. The said
case is completely distinguishable on facts and therefore not applicable.
(hh) With regard to the definition of the word 'Scrutiny' as per the
'Webster's dictionary' meaning 'close' or 'minute' investigation whereas
the word 'selection' in Webster's meaning 'to take in preference to another
or others, pick out, choose there can be no controversy. To be selected
would mean to be chosen in preference to the others being the most fit or
desirable'. There is no dispute with regard to such explanations or
meanings of the word 'Scrutiny' and 'Selection'.
(ii) Mr. Gupta relied on (2006) 6 SCC 698 (Union of India and others
vs. Lt. Gen Rajendra Singh Kadyan and another) for elucidating the
term 'selection'. In the said case the issue whether the post of the Army
Commander was a selection post as opposed to a post based on only
seniority was in issue. In such a case the expression "fit" was analysed
by the Apex Court and it was held that it has different meanings. A
person appointed has to be legally eligible. The word 'select' means
chosen or picked up. The Apex Court held that the post of the Army
Commander was a selection post and not merely a promotional post even
though in the usual course the senior most officers would be selected as
the Army Commander. This Court fails to see how the said case aids the
contention of the EZCC, when the post of the Director is clearly a
selection based post, and not a Promotional post based on seniority. The
primary question that has fallen for determination in the present writ
petition is whether the Hon'ble Governor in his sole discretion or at the
behest of the Search and Selection Committee could give a go-by to the
recommendation of the Scrutiny Committee that was constituted for
scrutinising/examining the eligibility of the candidates/applicants in
terms of the advertisement.
(jj) The decision reported in Air 1992 SC 1806 (National Institute of
Mental Health and Neurosciences vs. Dr. K. Kalyanaraman and
others) was cited by Mr. Gupta for the proposition that the courts should
be slow to interfere with the opinion of the selection committee consisting
of experts, persons of high status and unquestionable impartiality. In
that case the selection committee after interview and assessment of
relative merits of the candidates recommended a panel whereby one
Gouri Devi was placed first and the respondent no. 1 was placed second
in the panel. There was no question of usurpation of the powers of one
committee by a singular authority or by another committee or the
candidate being chosen being an ineligible one. The subjective
assessment of the selection committee was not interfered with by the
Hon'ble Supreme Court. Interference by the Courts when administrative
decisions are taken by men of high status is usually limited. The Hon'ble
Governor in his own discretion or at the behest of the Search and
Selection Committee interfered with or sat in appeal over the decision of
the Scrutiny Committee formed undoubtedly by men of high status
holding senior posts in the administrative service even when the Hon'ble
Supreme Court held that Courts should be slow to interfere with such a
decisions. The issue here is whether one set of highly placed individuals
or one individual could interfere with the decision of another set of highly
placed individuals. The facts of Kalyanaraman (Supra) are no way
similar to the present case.
(kk) From the Minutes of the Meeting dated May 20, 2022 it would
appear that the Joint Secretary, 5th member recommended a panel where
the petitioner was again the second selected candidate. Since the said
panel was recommended out of the list of the 11 eligible candidates
recommended by Scrutiny Committee the said panel has not been
challenged by the writ petitioner. The subjective assessment of the 5th
member being a part of the Search cum Selection Committee has not been
challenged even though the petitioner is the second selected candidate in
the said panel. Had the said panel been put under challenge the issue
with regard to the courts being slow to interfere with the decision of
highly placed individuals could have been agitated.
(ll) The case of Sanchit Bansal (supra), in fact its aids the writ
petitioner. The first appellant appeared in IITJEE 2006 as a general
category candidate. Even though the candidate secured higher than the
cut off marks in aggregate, he secured less than the cut of marks in one
of the subjects (chemistry). The Apex Court held that the ranking and
selection of candidates to suit specialised courses were within the
exclusive domain of professional experts in charge, being technical
matters in academic field. The courts will only interfere in the following
cases: (i) violation of any enactment, statutory rules or regulations; (ii)
mala fides or ulterior motive to assist or enable private gain to someone
or cause prejudice to anyone or (iii) where the procedure adopted is
arbitrary and capricious. An action is arbitrary or capricious where a
person in authority does any action based on 'individual discretion' by
ignoring prescribed rules, procedure or law and the action is founded on
prejudice or preference rather than reason or fact. To be arbitrary and
capricious, the action has been illogical and whimsical, without any
reasonable explanation. The fact that the writ petitioner in WPA 28493 of
2022 was also included in the list of 20 candidates being an over aged
candidate only goes to show that without any basis or reason or
application of mind, the recommendation/short listing of 11 candidates
by the Scrutiny Committee was given a go-by.
(mm) In the present case this Court finds that the discretion used by
authorities is beyond jurisdiction and without any reasonable or logical
explanation. There is no iota of reason available on the records as to the
need to override the decision of the Scrutiny Committee by ignoring the
prescribed rules or procedure as laid down in the e-mail dated May 12,
2022 by MoC and without referring the matter to MoC. Various attempts
have been made after the filing of the writ petition to improve the case of
EZCC, but they are uncorroborated by documentary evidence.
(nn) Next he relied on the decision of Anupal Singh (supra) to support
his contention that after participating in the selection process the same
could not be challenged by the petitioner after the result of a selection
process is announced and the petitioner found that he is not selected.
The same contention is reiterated in the case of Siva Subramaniyan
(supra).
(oo) An exception has been carved out by the Hon'ble Supreme Court in
judgment reported in 2019 (20) SCC 17 Dr. (Major) Meeta Sahai Vs.
State of Bihar. In that case it was held that by participating in a
selection process a candidate accepts the prescribed procedure but not
the illegality of it. In that case, the candidate alleged misconstruction of
the statutory rules and the discriminatory consequences arising
therefrom. The Apex Court held such misconstruction and discrimination
cannot be condoned because the candidate has partaken in the 'selection
process'. In fact, a candidate may not have any locus to assail the
incurable illegality unless he or she participates in the selection process.
(pp) This Court also relies on a Judgment of the Apex Court reported in
1997(9) SCC 527 (Raj Kumar and Others vs. Shakti Raj and Others)
for holding that the principle of estoppel by conduct or acquiescence will
have no application a case where the entire selection process is illegal. In
the case of Raj Kumar (supra), the case of Madan Lal (supra) was
discussed/considered before holding that the Government having
committed glaring illegalities in the selection procedure could not rely on
the principle of estoppel by conduct/acquiescence on the part of the writ
petitioner, for contending that a candidate having taken a chance to
appear in interview and after being held to be unsuccessful could not
turn around and challenge either the constitution of the selection board
or the method of selection as being illegal.
(qq) In the present case, the petitioner accepted the selection procedure
but has challenged the illegality of it. The petitioner has challenged the
non compliance of the selection procedure as laid down by the electronic
mail dated May 12, 2022 issued by the MoC and the procedure for
appointment. The illegality/arbitrariness in conducting the selection
process cannot be condoned simply because the petitioner participated in
it.
(rr) Here, on the date of the interview the petitioner found out that 20
more candidates were also being interviewed whose names did not
feature in the first select list of candidates. It is not lost to the mind of
this Court, that an application under Right to Information Act, 2005 was
made on July 14, 2022, after the name of the selected candidate was
published on twitter on July 5, 2022. However, the
illegality/arbitrariness/capriciousness with which the selection process
was conducted cannot be lost sight of.
(ss) Mr. Trivedi cited a judgment reported in 2019 (15) SCC 633 (Union
of India and another vs. C. Girija and others). The facts of that case
are completely distinguishable from the present lis. In that case, 30%
vacancies were, reserved for promotion from Group-C to Group-B Posts
in LDCE quota, out of which 4 vacancies were in unreserved category
and one vacancy was in reserved category. The petitioners were not
allowed to challenge the bifurcation of the vacancies after taking a
chance to get selected in the promotional process. Here, there was only
one post of Director and the selection process or the method of
recruitment has been given a go by, by an authority in its sole discretion,
without recording the reasons for differing with the recommendation of
the Scrutiny Committee.
(tt) Mr. Kar cited B. Amruthalakshmi (supra) on the issue that once a
candidate comes into the zone of consideration and satisfies all the
requirements including that of outstanding merit or ability, his name
could not be precluded from being considered for recruitment and none
from the eligible group can be eliminated from being considered on any
other criteria than those provided in the rules. The similarly situated
candidates cannot be treated dis-similarly. Therefore, the appellant was
held to be eligible for consideration. It was held that the non-
consideration of the appellant was totally unjust.
(uu) The issue of the present case is that whether or not a candidate
can be considered to be eligible in the present selection process once the
Scrutiny Committee held the person to be ineligible. Whether the issue of
eligibility could be considered overriding the decision of the Scrutiny
Committee by the Hon'ble Governor or the Search cum Selection
Committee. This Court finds that the recommendation of the Scrutiny
Committee has been rendered otiose by another authority acting beyond
its jurisdiction.
(vv) Admittedly, the respondent no. 5, use to work as a programme
executive with the AIR in Pay Band-2, Pay Scale Rs. 9300-34800 in
Grade pay - Rs. 4800 (revised as per the recommendation of the 7th
CPC). Therefore, the private respondent no. 5 was not eligible to apply on
deputation even though he was in regular service or holder of a post on
regular basis. Candidates who could apply on deputation basis needed to
a hold a post on regular basis in Pay Scale of Rs. 37,400-67,000 + GP Rs.
8700 (pre-revised as per 6th CPC) or be required in 3 years regular service
in Pay Scale of Rs. 15,600-39,100 + GP Rs. 7600 (pre-revised as per 6th
CPC).
(ww) Therefore, the private respondent no. 5 chose to apply on short
term contractual basis. Since he applied for appointment on short term
contractual basis he subjected himself to the evaluation/examination by
the Scrutiny Committee. The Scrutiny Committee examined the
candidature of the private respondent no. 5 and came to the finding that
he did not possess the requisite administrative experience as provided in
the Advertisement. Even if, there was a subjective assessment involved in
examination of the applications of the candidate/private respondent
no.5, neither this Court can go into the correctness of the same as long
as there was no infirmity in the decision making process nor could the
any other authority/committee could go into the correctness of the
decision of/rejection by the Scrutiny Committee, when not vested with the
authority to do so.
(xx) It may not be out of place to mention here that despite being a
party respondent, no one represented the AIR/respondent no. 4 when it
could have been easily clarified by the said respondent whether or not
the petitioner working as a programme executive in Pay Band- 2, Pay
Scale Rs. 9300-34,800, GP- Rs. 4800 held an administrative post in the
said institution. In the RTI application made by Mr. Chattopadhyay the
said question was not answered as being not applicable.
(yy) Since a challenge has been thrown to the procedural impropriety of
a selection process this Court is not inclined to hold that as the
petitioner did not pray for a writ of Quo Warranto, the appointment of the
private respondent no. 5 cannot interfered with. It is not for the
petitioner to comment on the eligibility of the Private Respondent No. 5
when the authority vested with the jurisdiction to do so has determined
it.
(zz) A beneficial reference may be made on a Judgment reported in
2018 SCC OnLine Cal 16646 (Mriganka Mondal vs. Dr. Asitabha Das &
others) on the issue that personal interest must yield to public interest.
Since compassion, grace or charity cannot colour the minds of the Court,
the argument with regard to saving the appointment of the private
respondent no. 5, because he left his permanent job at the AIR on the
basis of the letter of appointment dated July 5, 2022, to join the post of
Director bearing in mind the harsh consequences that are likely to follow
if the writ petition is allowed, cannot be accepted.
48. In the light of discussion made hereinabove WPA 18906 of 2022 is
allowed by quashing the subsequent list of 20 candidates, letter of
recommendation dated May 26, 2022 and the letter of appointment of the
private respondent dated July 5, 2022. Accordingly, this Court directs the
suitable candidate from the panel recommended by the Joint Secretary, ZCC to
be considered for appointment to the post of Director, EZCC by the Executive
Board, in consonance with/approval of the Government of India within a period
2 weeks from date. The short term contract so executed in terms of the
advertisement dated July 17/23, 2021 will be for an initial period of 3 years
from the date of appointment, further extendable by a period of 2 years.
49. WPA 28493 of 2022 is dismissed along with CAN 1 of 2023 since the
petitioner therein was an ineligible candidate, being over aged, as per the
recommendation of the Scrutiny Committee dated May 13, 2022. The writ
petitioner being an ineligible candidate himself has no locus standi to challenge
the appointment of the private Respondent No.5.
50. All parties to act on server copy of this Order as downloaded from the
official website of this Hon'ble Court.
51. Urgent certified photocopy of this judgment, if applied for, be supplied to
the parties upon compliance of all the requisite formalities.
(Lapita Banerji, J.)
Later:-
A prayer for stay is made on behalf of the respondent no. 2.
Such prayer is considered and refused.
(Lapita Banerji, J.)
